Filed 8/8/16 Dept. of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Board CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



DEPARTMENT OF ALCOHOLIC
BEVERAGE CONTROL,
                                                                        E065144
         Petitioner,
                                                                        OPINION
v.

ALCOHOLIC BEVERAGE CONTROL
APPEALS BOARD,

         Respondent;

CIRCLE K STORES, INC.,

         Real Party in Interest.




         ORIGINAL PROCEEDINGS; petition for writ of review. Decision annulled.

         Kamala D. Harris, Attorney General, Chris A. Knudsen, Assistant Attorney

General, Celine M. Cooper and Jodi L. Cleesattle, Deputy Attorneys General, for

Petitioner.

         Linda A. Mathes for Respondent.



                                                             1
       Solomon Saltsman & Jamieson, R. Bruce Evans and Jennifer L. Oden, for Real

Party in Interest.

       In this matter we interpret section 25666 of the Business and Professions Code1 as

it existed prior to its amendment by Assembly Bill 776 (2015-2016 Reg. Sess.) effective

January 1, 2016. We conclude that when the subject proceedings were held in 2014, the

statute meant then what it more clearly means now. Accordingly, respondent, Alcoholic

Beverage Control Appeals Board (Board) erred in ruling that the accusation had to be

dismissed.

                                STATEMENT OF THE CASE

       The underlying proceeding involves an accusation filed by the Department of

Alcoholic Beverage Control (ABC) against Circle K Stores, Inc. (Circle K) in which it

was alleged that on May 20, 2014, 19-year-old Mariah Daily was sold an alcoholic

beverage by a Circle K clerk.

       On the date set for hearing of the matter, September 18, 2014, Daily—who had

acted as a decoy—failed to appear. Counsel for the ABC requested a continuance, noting

that the minor had been properly subpoenaed and also informing the court that the minor

was apparently in route. The administrative law judge (ALJ) granted a continuance.

       At the renewed hearing on November 19, 2014, counsel for Circle K attempted to

inquire about the subpoena, apparently hoping to challenge whether it had been properly

       1 All further statutory references shall be to the Business and Professions Code
unless otherwise indicated.



                                            2
served on Daily. However, the ALJ refused to permit such inquiry, casting the matter in

terms of whether it was appropriate to revisit a ruling on the previous continuance. The

ALJ subsequently issued a proposed decision, finding that Circle K’s clerk sold an

alcoholic beverage to Daily without properly verifying the latter’s age, and that Daily

“displayed the appearance which could generally be expected of a person under 21 years

of age . . . .” A license suspension of 15 days was imposed by the ALJ.

       Circle K appealed the decision to the Board. Circle K’s argument was that the

continuance of the original hearing was unauthorized under section 25666, and the matter

should have been dismissed when the minor failed to appear. Circle K cited a very recent

decision of the Board, Purciel v. Department of Alcoholic Beverage Control (2015) AB-

9454 (Purciel).)2 In that case, the Board held that section 25666 only allows a

continuance due to the absence of a decoy minor witness in very limited circumstances.

(See infra.)

       The Department responded that in several cases preceding Purciel, the Board had

uniformly held that a hearing officer had general discretion to continue a hearing when

the minor decoy was absent, and argued that Purciel wrongly interpreted recent

amendments to section 25666. However, the Board reaffirmed its position in Purciel and

upheld Circle K’s appeal, reversing the decision of the hearing officer.




       2http://www.abcappealsbd.ca.gov/res/docs/Decisions/AB-9400/9454.dec.pdf, as
of August 4, 2016.


                                             3
                                       DISCUSSION

              1. The Petition is Not Untimely

       First, we deal with a procedural issue. Circle K argues that we must reject the

petition because it was not timely filed. Section 23088 provides that a decision of the

Board “shall be filed by delivering copies to the parties personally or by mailing copies to

them by certified mail.” Section 23090 provides for judicial review and specifies that the

application for review “shall be made within 30 days after filing of the final order of the

board.”

       Here, the Board issued its original decision on December 7, 2015. It then

purported to “amend” its decision on December 10, 2015; the “amendment” was merely

to attach a copy of the decision by the ALJ.3 The instant petition was not physically filed

and stamped until January 12, 2016.4

       We have concluded that the decision was never properly “filed” within the

meaning of section 23088. The proof of service indicates that the decision was served on




       3  Due to our resolution of the timeliness issue, we need not decide whether
Circle K is correct in arguing that the Board had no power to amend its decision. It relies
on section 23088, which also provides: “Each such order shall become final upon being
filed as provided herein, and there shall be no reconsideration or rehearing by the board.”

       4  The Department attempted to “e-file” the petition on January 8, 2016, but the
petition was not one of the documents authorized to be so “e-filed” at that time.
Accordingly, we believe the filing was ineffective for any purpose related to the statute of
limitations.



                                             4
the Department by “messenger mail.” Our inquiries5 concerning this notation produced

the explanation from both the Board and the Department that the usual practice is for a

Board employee to place documents in a “pick-up box” from which they may be

retrieved by a Department employee. Obviously this is not the “certified mail” required

by section 23088.

       The Board argues that its method of delivery is quicker and more efficient than

mailing by certified mail. The Legislature required certified mail or personal delivery.

(§ 23088.) The problem with “messenger mail” is made obvious by this case. Unlike

either certified mail or personal service, it results in no official “paper trail” establishing

the date on which the receiving party actually received the document.6 Accordingly, the

petition was not untimely filed.

              2. The Continuance was Lawful

       First, as a state agency, the Department is subject to the Administrative Procedures

Act. (Gov. Code, §§ 11340 et seq.) Government Code section 11524, part of the chapter

governing hearing procedures, has provided essentially since 1945 that “[t]he agency may

grant continuances” and that “[a] continuance may be granted for good cause . . . if the

party seeking the continuance is not responsible for and has made a good faith effort to

prevent the condition or event establishing the good cause.” The hearing officer is

guided by the same general principles which influence the granting or denying a

       5  The court invited all parties to submit letter briefs addressing questions with
respect to the timeliness of the petition. The order was dated March 22, 2016.
       6 A copy in the Department’s possession is stamped “Received Dec 14, 2015.”




                                               5
continuance in judicial proceedings, and the decision-maker has broad discretion.

(Bussard v. Department of Motor Vehicles (2008) 164 Cal.App.4th 858, 864 (Bussard).)

       However, the Department is also subject to various rules set out in the Business

and Professions Code specifically governing the regulation of alcohol sales. Section

25666 deals specifically with accusations brought concerning the sale or furnishing of

alcohol to minors and its primary purpose is to ensure that the minor (or alleged minor) is

present at the hearing. Prior to January 1, 2016, section 25666 in its entirety provided:

“In any hearing on an accusation charging a licensee with a violation of Sections 25658,

25663, and 25665, the department shall produce the alleged minor for examination at the

hearing unless he or she is unavailable as a witness because he or she is dead or unable

to attend the hearing because of a then-existing physical or mental illness or

infirmity, . . . When a minor is absent because of a then-existing physical or mental

illness or infirmity, a reasonable continuance shall be granted to allow for the appearance

of the minor if the administrative law judge finds that it is reasonably likely that the

minor can be produced within a reasonable amount of time . . . .”

       As indicated above, in 2015 the Board issued its decision in the Purciel case,

interpreting Business and Professions Code section 25666 as limiting the power of the

ALJ to continue a matter due to the absence of a minor solely to circumstances relating to

death or illness. This interpretation read Business and Professions Code section 25666 as

a more specific statute applicable to sale-to-minor cases that superseded the general




                                              6
provisions of Government Code section 11524. (See Department of Corrections &

Rehabilitation v. Superior Court (2015) 237 Cal.App.4th 1472, 1482.)

       Shortly after the decision in Purciel, Assembly Bill 776 (2015-2016 Reg. Sess.),

which had dealt with brewery events, was amended to add a provision modifying section

25666. This amendment added subdivision (b)(2), which now reads “This section is not

intended to preclude the continuance of a hearing because of the unavailability of a minor

for any other reason pursuant to Section 11524 of the Government Code.” Hence, since

the effective date of January 1, 2016, it is clear that section 25666 operates in harmony

with Government Code 11524.

       The question before us, however, is whether the amendment constituted a change

in the law as the Board would believe, or confirmed prior law. We conclude the latter is

correct.

       The laws relating to the sale or furnishing of alcohol to minors were enacted in

their current form beginning in 1953. (Bus. & Prof. Code, § 25658.) From that time until

the enactment of Business and Professions Code section 25666 in 1963, Government

Code section 11524 necessarily controlled the granting of continuances in proceedings

before the Board. (See Givens v. Department of Alcoholic Beverage Control (1959) 176

Cal.App.2d 529, 532.) As we have noted, whether to grant a continuance under

Government Code section 11524 rests within the decision-maker’s discretion. Business

and Professions Code section 25666, on the other hand, requires that a continuance be




                                             7
granted in specified circumstances. The nature of those circumstances, we think, is the

key to the answer.

       Government Code section 11524 generally requires that when a party seeks a

continuance, that party must have good cause for the request and must have acted with

diligence to prevent the problem which necessitates the request. (See Bussard, supra,

164 Cal.App.4th at p. 865; Mendez v. Superior Court (2008) 162 Cal.App.4th 827, 835.)

Business and Professions Code section 25666 contains no such requirement, and for

obvious reasons: the Department has no ability to influence or improve the health of a

minor essential to the case. Hence, its diligence is irrelevant and good cause necessarily

exists.7

       Accordingly, section 25666 requires that when the conditions are met, the ALJ

must grant a continuance so that the minor’s presence may be secured. (Assuming, that

is, that the ALJ finds that the minor is likely to be able to attend within a reasonable

time.) This provision, therefore, relieves the Department from a possible dismissal based

on an absence it had no power to prevent. It in fact effectively prohibits dismissal.

       Viewed in this light, it is clear to us that Business and Professions Code

section 25666 is complementary, rather than contradictory, to the Government Code

provision. The latter provides the court with broad discretion to grant continuances

without specifying details, in recognition of the fact that the circumstances that may


       7 The Department would, however, have the obligation to establish that the minor
was in fact ill or deceased.


                                              8
justify a continuance are myriad and not susceptible of exclusive description. (Bussard,

supra, 164 Cal.App.4th at p. 864.) We do not, of course, know whether the enactment of

Business and Professions Code section 25666 was prompted by the Department’s

complaint to the Legislature that hearing officers were improperly refusing to grant

continuances on the grounds of the minor’s illness. Arguably, the stimulus could also

have been complaints by licensees that had been compelled to participate in hearings

without the minor’s presence when the licensee’s request for continuance was refused.8

In either case, the proper interpretation is that Business and Professions Code section

25666 describes a limited situation in which the hearing must be continued until the

minor can be present. It does not even purport to restrict the hearing officer’s discretion

in all other cases. Nor can we imagine any reason why the discretion to grant

continuances should be severely restricted in Department cases in comparison with other

state agency proceedings.

       Hence, the Board was both right and wrong in this case. It was right in its earlier

decisions, and wrong in Purciel and this instant case.




       8 Although, as enacted, section 25666 provided that the Department “shall”
produce the minor, without exception, it did not provide for the sanction of dismissal.
(See DeYoung v. Commission on Professional Competence etc. (2014) 228 Cal.App.4th
568, 576 [construing a statute as directory rather than mandatory if the statute contains no
express consequence for noncompliance].)



                                             9
                                     DISPOSITION

       The decision of the Board is annulled. The decision of the Department is

reinstated and the case is remanded to the Board for further proceedings consistent with

this opinion.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                              MILLER
                                                                                           J.


We concur:


RAMIREZ
                       P. J.


HOLLENHORST
                          J.




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