Filed 1/17/17
                                CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                 THIRD APPELLATE DISTRICT
                                              (Sacramento)
                                                  ----




DEPARTMENT OF ALCOHOLIC BEVERAGE                                      C078574
CONTROL,
                                                             (Alcoholic Beverage Control
                  Petitioner,                                Appeals Board No. AB9434)

        v.

ALCOHOLIC BEVERAGE CONTROL APPEALS
BOARD,

                  Respondent;

GARFIELD BEACH CVS, LLC et al.,

                  Real Parties in Interest.

        ORIGINAL PROCEEDING: Petition for writ of review. Petition granted.

      Kamala D. Harris, Attorney General, Alicia M.B. Fowler, Assistant Attorney
General, Peter D. Halloran and Lauren Sible, Deputy Attorneys General for Petitioner.

      Linda A. Mathes, Sarah M. Smith, John D. Ziegler for Respondent Alcoholic
Beverage Control Appeals Board.




                                                   1
      SOLOMON, SALTSMAN & JAMIESON, Stephen Warren Solomon, Ralph Barat
Saltsman, Stephen Allen Jamieson, R. Bruce Evans, Ryan M. Kroll, Jennifer L. Oden and
Margaret Warner Rose for Real Parties in Interest.




       California Constitution, article XX, section 22, prohibits the sale of alcoholic
beverages to persons under 21 years of age. (See also Bus. & Prof. Code, § 25658,
subd. (a),1 [making it a misdemeanor to sell alcohol to a person under 21 years of age].
Here, the Department of Alcoholic Beverage Control (Department) issued a 15-day
suspension of an off-sale general license held by the Garfield Beach CVS LLC Longs
Drug Stores California LLC, doing business as CVS Pharmacy Store 9174 (CVS) after an
administrative law judge found the store clerk sold alcohol to a minor decoy.2 The
Alcohol Beverage Control Appeals Board (Appeals Board) reversed the suspension based
on California Code of Regulations, title 4, section 141 (Rule 141) that allows a law
enforcement agency to use an underage decoy only “in a „fashion that promotes
fairness.‟ ” (Id., subd. (a).) In the Appeals Board‟s view, the suspension was unfair
because the minor decoy did not respond about his age when the store clerk looked at his
driver license and remarked, “I would never have guessed it, you must get asked a lot.”
To challenge the reversal of the license suspension, the Department petitioned for a writ
of review in this court. (§ 23090.)
       The Department contends it correctly interprets Rule 141 to require minor decoys
to answer only questions about their ages. Based on the administrative law judge‟s
finding in this case that the store clerk‟s remark constituted a statement rather than a




1      Undesignated statutory references are to the Business and Professions Code.
2     The license is held by Garfield Beach CVS LLC Longs Drug Stores California
LLC, doing business as CVS Pharmacy Store 9174.


                                              2
question, the Department argues its decision was legally correct and supported by
substantial evidence. The Appeals Board counters Rule 141 is ambiguous and results “in
confusion and manifest unfairness.” And CVS argues the Department‟s interpretation of
Rule 141 unfairly allows decoys to remain silent in the face of mistaken statements about
age. According to CVS, affirming the license suspension would allow deceptive and
misleading silence in the face of a store clerk‟s explicit mistake about the minor decoy‟s
age.
       We conclude Rule 141 is not ambiguous in requiring minor decoys to answer
truthfully only questions about their ages. Because substantial evidence supports the
administrative law judge‟s factual finding the decoy in this case was not questioned about
his age, we determine as a matter of law that Rule 141 does not provide CVS with a
defense to the accusation it sold an alcoholic beverage to an underage buyer.
Accordingly, we annul the Appeals Board‟s decision.
                                    BACKGROUND
             The Department’s Imposition of a 15-day License Suspension
       In October 2013, the Department accused CVS of selling alcohol to an underage
person at its Garfield Beach store. An administrative hearing was held in February 2014,
in which the administrative law judge made the following findings of fact:
       CVS has held an off-sale general license to sell alcohol since June 2009, with no
prior record of discipline by the Department. On June 3, 2013, Joseph Childers was 18
years old and had the appearance and mannerisms of a person under the age of 21. On
that date, Childers accompanied Department agents and law enforcement officers to
conduct an alcoholic beverage decoy operation at the Garfield Beach CVS store.
Childers entered the store at 2:30 p.m., went to the beer cooler where he selected a 24-
ounce bottle of beer, and took the beer to the checkout line. The CVS store clerk scanned
the bottle of beer and asked Childers for identification. Childers handed his California



                                             3
driver license to the clerk. The driver license indicated Childers‟s date of birth and had a
red stripe with white letters that stated, “AGE 21 IN 2015.” In addition, the driver
license had a blue stripe with white letters that stated, “PROVISIONAL UNTIL AGE 18
IN 2012.”
       The administrative law judge made the following factual findings: “The clerk
looked at Childers‟s [driver license], tried to scan it, and looked at the [license] again.
She then stated, „I would not have guessed it, you must get asked a lot,‟ or words to that
effect. The clerk‟s remark was framed as a statement not a question. The decoy did not
say anything to the clerk in response to her remark. He thought the clerk‟s statement was
„casual conversation.‟ The decoy also testified the statement might or might not have
been related to his age. Thus, in his mind it was unclear what the clerk meant by her
statement. [¶] The clerk sold Childers the 24-ounce bottle of Corona beer. At no time
during the transaction did the clerk ask Childers how old he was or his age. Following
the sale of the beer, the decoy exited the premises.” The administrative law judge found
Childers‟s testimony at the hearing to be clear, concise, and credible. On this basis, the
administrative law judge decided there was cause to suspend CVS‟s off-sale general
license for 15 days.
       In April 2014, the Department adopted the administrative law judge‟s proposed
decision as its decision in this case. CVS appealed the decision to the Appeals Board.
                  The Appeals Board’s Reversal of License Suspension
       In January 2015, the Appeals Board issued its decision. The Appeals Board‟s
decision relied upon its prior decision to conclude Rule 141 required the decoy to
respond to the store clerk‟s statement upon looking at his driver license. The Appeals
Board‟s decision emphasized the following testimony by the decoy at the administrative
hearing:




                                               4
       “[Counsel for CVS]: [A]fter the clerk made that statement to you, what did you
take that statement to mean?
       “A. [Childers]: Casual conversation.
       “Q. And [in] that casual conversation did you see it related in any way to your
age?
       “A. Yes and no.
       “Q. When you say „Yes and no,‟ what do you mean?
       “A. Yes, that maybe I looked younger. No, because she thought I was older or
thought that I do it a lot, you know.”
       The Appeals Board reasoned that “[w]hen the decoy believes, as here, that a
clerk‟s remarks are ambiguous as to his or her age, the decoy has an obligation to respond
verbally and truthfully. That is the plain meaning of rule 141(a)‟s language instructing
that minor decoy operations must be conducted in a „fashion that promotes fairness.‟ ”
(Italics omitted.) The Appeals Board further stated that whenever “the decoy him or
herself interprets a seller‟s comments to in any way pertain to the decoy‟s age, the
Department should insist that decoy err on the side of responding with clarification.” On
these grounds, the Appeals Board reversed the Department‟s decision and rescinded the
suspension of CVS‟s off-sale general license.
                                Petition for Writ of Review
       In February 2015, the Department filed in this court a petition for writ of review
from the decision of the Appeals Board. We issued a writ of review in March 2015.
(§ 23090.)




                                             5
                                       DISCUSSION
                                              I
                                    Standard of Review
       In addition to prohibiting the sale of alcohol to minors, the California Constitution
“vests the Department with broad discretion to revoke or suspend liquor licenses „for
good cause‟ if continuing the license would be „contrary to public welfare or morals.‟
(Cal. Const., art. XX, § 22.) In the absence of a clear abuse of discretion, the courts will
uphold the Department‟s decision to suspend a license for violation of the liquor laws.
(E.g., Martin v. Alcoholic Bev. etc. Appeals Bd. (1959) 52 Cal.2d 238, 248–249.)”
(Provigo Corp. v. Alcoholic Beverage Control Appeals Bd. (1994) 7 Cal.4th 561, 566
(Provigo).) “ „The administration of the Alcoholic Beverage Control Act, within the
scope of the purposes of that act, is initially vested in the department. Its decisions,
however, are subject to administrative review by the board and a final order of the board
is, in turn, subject to judicial review.‟ ” (Caressa Camille, Inc. v. Alcoholic Beverage
Control Appeals Bd. (2002) 99 Cal.App.4th 1094, 1099, quoting Walsh v. Kirby (1974)
13 Cal.3d 95, 102.)
       The scope of review of the Department‟s decisions is the same in the Appeals
Board and this court. (Department of Alcoholic Beverage Control v. Alcoholic Beverage
Control Appeals Bd. (2002) 100 Cal.App.4th 1066, 1071 (Deleuze).) Section 23090.2
provides that review “shall not extend further than to determine, based on the whole
record of the department as certified by the board, whether: [¶] (a) The department
has proceeded without or in excess of its jurisdiction. [¶] (b) The department has
proceeded in the manner required by law. [¶] (c) The decision of the department is
supported by the findings. [¶] (d) The findings in the department‟s decision are
supported by substantial evidence in the light of the whole record. [¶] (e) There is
relevant evidence which, in the exercise of reasonable diligence, could not have



                                              6
been produced or which was improperly excluded at the hearing before the department.”
Section 23090.2 also excludes the power to make findings of fact from the scope of
review. (Ibid.)
         In conducting our review, “ „[w]e defer to the Department‟s interpretation of its
own rules, „since the agency is likely to be intimately familiar with regulations it
authored and sensitive to the practical implications of one interpretation over another.‟
(Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 12, (Yamaha
Corp.).) Courts generally will not depart from the Department‟s contemporaneous
construction of a rule enforced by the Department unless such interpretation is clearly
erroneous or unauthorized. (Department of Alcoholic Beverage Control v. Alcoholic
Beverage Control Appeals Bd. (2003) 109 Cal.App.4th 1687, 1696 . . . .)” (Department
of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2005) 128
Cal.App.4th 1195, 1205.) In short, the Department‟s decisions are “subject to review
only for insufficiency of the evidence, excess of jurisdiction, errors of law, or abuse of
discretion.” (Deleuze, at p. 1072.)
                                              II
                                           Rule 141
         The Department contends it correctly rejected CVS‟s reliance on Rule 141
as providing a defense to its sale of alcohol to the underage decoy in this case. We
agree.
                                              A.
                       The Department’s Reliance on Minor Decoys
         The Department relies on minor decoy operations as an integral part of its
enforcement of the constitutional and statutory prohibitions on sales of alcohol to persons
under 21 years of age. (Cal. Const., art. XX, § 22; § 25658, subd. (a).) The California
Supreme Court has approved of the practice, noting that “[t]he use of underage decoys to



                                               7
enforce laws against unlawful sales to minors clearly promotes rather than hinders” the
California constitutional and statutory prohibitions on sales of alcoholic beverages to
minors. (Provigo, supra, 7 Cal.4th at p. 567.)
       The Business and Professions Code provides that “[p]ersons under 21 years of age
may be used by peace officers in the enforcement of this section to apprehend licensees,
or employees or agents of licensees, or other persons who sell or furnish alcoholic
beverages to minors.” (§ 25658, subd. (f).) In pertinent part, subdivision (f) of section
25658 further provides: “Guidelines with respect to the use of persons under 21 years of
age as decoys shall be adopted and published by the department in accordance with the
rulemaking portion of the Administrative Procedure Act . . . .” To comply with
subdivision (f) of section 25658, the Department promulgated Rule 141. (Acapulco
Restaurants, Inc. v. Alcoholic Beverage Control Appeals Bd. (1998) 67 Cal.App.4th 575,
579 (Acapulco Restaurants).) In its entirety, Rule 141 states:
       “(a) A law enforcement agency may only use a person under the age of 21
years to attempt to purchase alcoholic beverages to apprehend licensees, or employees
or agents of licensees who sell alcoholic beverages to minors (persons under the age
of 21) and to reduce sales of alcoholic beverages to minors in a fashion that promotes
fairness.
       “(b) The following minimum standards shall apply to actions filed pursuant to
Business and Professions Code Section 25658 in which it is alleged that a minor decoy
has purchased an alcoholic beverage: [¶] (1) At the time of the operation, the decoy shall
be less than 20 years of age; [¶] (2) The decoy shall display the appearance which could
generally be expected of a person under 21 years of age, under the actual circumstances
presented to the seller of alcoholic beverages at the time of the alleged offense; [¶] (3) A
decoy shall either carry his or her own identification showing the decoy‟s correct date of
birth or shall carry no identification; a decoy who carries identification shall present it



                                              8
upon request to any seller of alcoholic beverages; [¶] (4) A decoy shall answer truthfully
any questions about his or her age; [¶] (5) Following any completed sale, but not later
than the time a citation, if any, is issued, the peace officer directing the decoy shall make
a reasonable attempt to enter the licensed premises and have the minor decoy who
purchased alcoholic beverages make a face to face identification of the alleged seller of
the alcoholic beverages.
       “(c) Failure to comply with this rule shall be a defense to any action brought
pursuant to Business and Professions Code Section 25658.” (Italics added.)
                                             B.
                           Availability of the Rule 141 Defense
       The Appeals Board contends subdivision (b)(4) of Rule 141 required the minor
decoy in this case to truthfully respond to the clerk‟s statement, “I would not have
guessed it, you must get asked a lot.” Similarly, CVS argues the minor decoy‟s lack of
response violated Rule 141 and provided a defense to the Department‟s accusation. The
Department counters by noting the administrative law judge made the factual finding
that the CVS clerk‟s words to the minor decoy constituted a statement rather than a
question. On this basis, the Department argues the defense supplied by Rule 141 does
not apply here. Resolving these contentions requires us to construe the meaning of
Rule 141.
       As this court has previously explained, “Generally, the same rules governing the
construction and interpretation of statutes apply to the construction and interpretation of
administrative regulations. (In re Richards (1993) 16 Cal.App.4th 93, 97–98.)
Accordingly, „ “we begin with the fundamental rule that a court „should ascertain the
intent of the Legislature so as to effectuate the purpose of the law.” ‟ [Citations.] „An
equally basic rule of statutory construction is, however, that courts are bound to give
effect to statutes according to the usual, ordinary import of the language employed in



                                              9
framing them.‟ [Citations.] Although a court may properly rely on extrinsic aids, it
should first turn to the words of the statute to determine the intent of the Legislature.
[Citations.] „If the words of the statute are clear, the court should not add to or alter them
to accomplish a purpose that does not appear on the face of the statute or from its
legislative history.‟ (California Teachers Assn. v. San Diego Community College Dist.
(1981) 28 Cal.3d 692, 698.)” (Schmidt v. Foundation Health (1995) 35 Cal.App.4th
1702, 1710-1711.) “ „The construction of an administrative regulation and its application
to a given set of facts are matters of law.‟ ” (Ibid., quoting Auchmoody v. 911 Emergency
Services (1989) 214 Cal.App.3d 1510, 1517.)
       In enacting the Alcoholic Beverage Control Act (Act) (§ 23000 et seq.), the
Legislature declared the Act “involves in the highest degree the economic, social, and
moral well-being and the safety of the State and of all its people.” (§ 23001.) The Act
establishes the Department “to provide a governmental organization which will ensure a
strict, honest, impartial, and uniform administration and enforcement of the liquor laws
throughout the State.” (§ 23049.) To that end, section 23001 declares that “[a]ll
provisions of this division shall be liberally construed for the accomplishment of these
purposes.”
       Rule 141(b)(4) provides that “[a] decoy shall answer truthfully any questions
about his or her age.” The Rule‟s guidance is clear and unambiguous. Minor decoys do
not need to respond to statements of any kind nor do they need to respond truthfully to
questions other than those concerning their ages. Thus, Rule 141 does not require minor
decoys to correct mistakes articulated by licensed alcohol sellers. Instead, the minor
decoys need to respond truthfully only to questions about their ages. In short, Rule 141
sets forth clear, unambiguous, and fair guidance for minor decoys to follow during the
Department‟s operations. Consequently, the Department properly construed the plain




                                              10
language of Rule 141 in determining the minor decoy in this case was not required to
respond to the clerk‟s statement that might have related to the decoy‟s age.
       The Appeals Board disagrees with the Department‟s plain-meaning interpretation
of Rule 141, asserting the Rule is ambiguous and unfair. The Appeals Board argues that
“the language of Rule 141[(b)(4)] is ambiguous, and decoys lack the expertise to make a
fair decision about whether a clerk‟s words are a „question‟ „about his or her age.‟ ” The
Appeals Board bases its argument on the assertion that “[t]he word „question‟ is,
especially when uttered vocally as opposed to being written, not free from doubt.” In
support, the Appeals Board argues the ambiguity of the word “question” is demonstrated
by the need for an evidentiary hearing to determine the nature of the store clerk‟s
communication to the minor decoy. We reject the argument.
       Courts have long resolved factual issues concerning whether a spoken
communication constitutes a question that invited an answer. In Rhode Island v. Innis
(1980) 446 U.S. 291 [64 L.Ed.2d 297], the United States Supreme Court articulated a test
for determining when Miranda advisements must be given to a suspect that “come[s] into
play whenever a person in custody is subjected to either express questioning or its
functional equivalent.” (Id. at pp. 300-301.) The test under Rhode Island v. Innis
requires that police officers understand not only whether they are engaging in “express
questioning,” but also when their words or actions “are reasonably likely to elicit an
incriminating response from the suspect.” (Id. at p. 301.) The United States Supreme
Court‟s decision establishes the unproblematic nature of distinguishing between oral
communications constituting questions (and even their functional equivalents) and
statements not reasonably likely to elicit an incriminating answer. Courts even require
law enforcement officers to distinguish between suggestive and nonsuggestive questions.
(People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1590.) Here, the determination
required of minor decoys is more clear than the Rhode Island v. Innis test or the



                                            11
distinction between suggestive and nonsuggestive questions because subdivision (b)(4) of
Rule 141 applies only to questions relating to age. “Question” is not an ambiguous term
and does not lead to confusion in limiting spoken communications to those involving
inquiries that contemplate answers.
       We also reject the Appeals Board‟s contention Rule 141 is ambiguous because “no
definition is provided as to what „fairness‟ means or how it is to be determined.” The
lack of a definition of fairness, by itself, does not render Rule 141 ambiguous. (Cf. Nava
v. Mercury Cas. Co. (2004) 118 Cal.App.4th 803, 805 [lack of definition does not render
a term ambiguous].) Contrary to the Appeals Board‟s contention, Rule 141 provides
specific guidance regarding how to preserve fairness in minor decoy operations.
Subdivision (b) of Rule 141 implements the goal of fairness by imposing five specific
requirements for every minor decoy operation. Decoys must be under the age of 20; have
the appearance of a person under 21; carry their own actual identification and present that
identification upon request; truthfully answer any questions about their ages; and make
face-to-face identifications of the persons who sold the alcoholic beverages. (Rule
141(b)(1)-(5).) Fairness under Rule 141 is assured by a set of five expressly defined
safeguards, all of which must be fulfilled during a minor decoy operation. (Acapulco
Restaurants, supra, 67 Cal.App.4th at p. 580.) Consequently, Rule 141‟s use of the word
“fairness” does not render the rule ambiguous or confusing.
       In support of the Appeals Board‟s argument Rule 141 is ambiguous regarding
what constitutes fairness, it points to its earlier decisions in 7-Eleven, Inc./Johal Stores,
Inc. (2014) AB-9403 (7-Eleven), Equilon Enterprises, LLC (2002) AB-7845 (Equilon),
Lucky Stores, Inc. (1999) AB-7227 (Lucky), Southland Corp./Dandona (1999) AB-7099
(Southland), and Thrifty Payless, Inc. (1998) AB-7050 (Thrifty). We may take judicial
notice of decisions of the Appeals Board. (Department of Alcoholic Beverage Control v.
Alcoholic Beverage Control Appeals Bd. (2005) 128 Cal.App.4th 1195, 1208, fn. 5;



                                              12
accord Reimel v. Alcoholic Beverage Control Appeals Bd. (1967) 254 Cal.App.2d 340.)
Thus, although we are not bound by the Appeals Board‟s decisions, we take judicial
notice of the cited decisions and consider their reasoning for persuasive value.
       Regarding agency decisions, the California Supreme Court has noted that “[w]here
the meaning and legal effect of a statute is the issue, an agency‟s interpretation is one
among several tools available to the court. Depending on the context, it may be helpful,
enlightening, even convincing. It may sometimes be of little worth. [Citation.]
Considered alone and apart from the context and circumstances that produce them,
agency interpretations are not binding or necessarily even authoritative.” (Yamaha Corp.
of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7-8.) Based on our review,
we conclude the Appeals Board‟s cited decisions vary in their persuasiveness and fidelity
to Rule 141.
       In 7-Eleven, supra, AB-9403, the Appeals Board affirmed the suspension of an
off-sale license based on sale to a minor decoy after the store clerk looked at the minor
decoy‟s identification and stated, “oh, you are so young.” (7-Eleven, at pp. 2, 14.) In
affirming the suspension, the Appeals Board concluded the minor decoy was not required
to respond because the store clerk did not ask a question or indicate a mistake as to the
minor decoy‟s age. The Appeals Board reasoned that “[t]he wor[d] „young‟ is a
subjective term, and gives no indication that the clerk has made a miscalculation and as a
result believes the decoy to be over 21” years of age. (Id. at p. 12.) Under the reasoning
of 7-Eleven, the Appeals Board should have affirmed the license suspension in this case
as well. Here, the administrative law judge found the store clerk did not ask a question of
the minor decoy. And the store clerk did not clearly demonstrate confusion as to the
minor‟s age in the statement, “I would never have guessed it, you must get asked a lot.”
The minor decoy testified he thought the statement might mean either that “she thought I
was older or thought that I do it a lot . . . .” Because the store clerk in this case made a



                                              13
statement akin to that in 7-Eleven, the reasoning employed in 7-Eleven should have led
the Appeals Board to affirm the Department‟s decision.
        We reject the reasoning contained in the remainder of the Appeals Board‟s
earlier decisions because the reasoning in each would require minor decoys to speak
up to clarify any mistake about their ages even in the absence of a question. (Equilon, at
p. 2 [concluding Rule 141 “was violated when the decoy failed to respond to a statement
by the clerk which implied that she was 21 years of age or older”], Lucky, at p. 4
[same where minor decoy did not respond to mistaken statement, “1978. You are 21”],
and Southland, at pp. 6, 7 [same where decoy did not respond to statement, “You are
21”]. In each of these decisions, the Appeals Board relied on the notion of fairness to
craft a new requirement for Rule 141, namely the obligation of a minor decoy to
respond to any indication of mistake regarding age even in the absence of a question.
Rule 141, however, expressly requires minor decoys only to answer questions relating to
their ages. (Rule 141(b)(4).) The Appeals Board lacks the power to add a new defense
to Rule 141.
        The Appeals Board‟s decision in Thrifty, supra, AB-7050 involved a reversal of
the Board‟s decision based on the minor decoy‟s silent tendering of a driver license rather
than answering the clerk‟s question about her age. (See Thrifty, at p. 6 [speculating about
the minor decoy‟s motivation in offering her identification rather than answering about
her age].) Unlike this case, Thrifty involved an actual question by the clerk about the
minor decoy‟s age and is therefore inapposite in this case where the administrative law
judge determined the clerk did not ask any questions. (Id. at pp. 5-6.) Consequently, we
need not consider whether Thrifty was correctly decided in harmony with Rule 141.
        Ultimately, we are not persuaded by the Appeals Board‟s prior decisions that Rule
141 is ambiguous in requiring decoys to answer truthfully only questions relating to their
ages.



                                            14
       Next, the Appeals Board argues the principle of fairness upon which Rule 141 is
founded imposes an affirmative duty on minor decoys to speak up in order to clarify any
mistake regarding age articulated by the vendor. If the Department had wanted to
provide license holders with a defense for mistakes about a minor decoy‟s age or based
on a minor decoy‟s failure to respond to a statement by the clerk, the Department could
have done so by including express language to that effect in Rule 141. However, as we
explained above, the language of Rule 141 requires minor decoys to respond only to
questions about their ages. We reject the Appeals Board‟s attempt to add a new defense
to Rule 141 that is not expressed in the rule. (Acapulco Restaurants, supra, 67
Cal.App.4th at p. 580.)
       Acapulco Restaurants involved a minor decoy operation in which the Department
did not comply with Rule 141‟s requirement the minor decoy make a face-to-face
identification of the clerk who sold the alcoholic beverage. (67 Cal.App.4th at p. 577;
see also Rule 141(b)(5).) Despite the failure to follow this express requirement of
Rule 141, the Department imposed and the Appeals Board affirmed a 15-day license
suspension on grounds a law enforcement officer witnessed the entire transaction.
(Acapulco Restaurants, at p. 577.) However, the Acapulco Restaurants court reversed,
explaining, “[t]o ignore a rule and the defense that arises from law enforcement‟s
failure to comply with that rule is not a matter of „interpretation.‟ What the Department
has done is to unilaterally decide that rule 141[](b)(5) applies in some situations but
not others, a decision that exceeds the Department‟s power. By its refusal to apply
rule 141[](b)(5) when a police officer is present at the time of the sale, the Department
has crossed the line separating the interpretation of a word or phrase on one side to
the legislation of a different rule on the other, thereby substituting its judgment for
that of the rulemaking authority. It might as well have said that rule 141[](b)(5) applies




                                              15
on Mondays but not Thursdays.” (Acapulco Restaurants, supra, 67 Cal.App.4th at
p. 580.)
       The result in Acapulco Restaurants followed the well-established rule that “ „[a]n
exception to a statute is to be narrowly construed. (Citation.) When a statute specifies an
exception, no others may be added under the guise of judicial construction.
(Citations.)‟ ” (Kirby v. Alcoholic Beverage Control Appeals Bd. (1968) 267 Cal.App.2d
895, 898, quoting Lacabanne Properties, Inc. v. Department of Alcoholic Beverage
Control (1968) 261 Cal.App.2d 181, 189.) Fairness does not require the new exception
to be judicially grafted into Rule 141 to provide additional defenses that require a minor
decoy to speak up in the absence of a question by the store clerk. As the California
Supreme Court has noted, “licensees have a ready means of protecting themselves from
liability by simply asking any purchasers who could possibly be minors to produce bona
fide evidence of their age and identity.” (Provigo, supra, 7 Cal.4th at p. 570.)
       Likewise, we reject the argument made by CVS that the minor decoy‟s silence
in response the clerk‟s statement about his youthful appearance was “deceptive and
misleading.” As this court has previously noted in a case involving a claim a
governmental agency engaged in fraudulent concealment, “Courts uniformly
distinguish between the misleading half-truth, or partial disclosure, and the case in
which defendant says nothing at all. The general rule is that silence alone is not
actionable.” (Wiechmann Engineers v. State of California ex rel. Dept. Pub. Wks.
(1973) 31 Cal.App.3d 741, 751.)
       Here, the minor decoy did not say anything untrue. To the contrary, the minor
decoy presented accurate information in the form of his driver license. Thus, the minor
decoy did not engage in deceptive and misleading communication with the clerk.
Notably, the California Supreme Court has rejected a claim the use of a “mature-looking”
decoy constitutes an unfair practice by the Department in a case in which a minor decoy



                                             16
“simply bought beer and wine, without attempting to pressure or encourage the sales in
any way.” (Provigo, supra, 7 Cal.4th at p. 569, italics added.) The same reason applies
here. The minor decoy‟s silence in this case did not involve any attempt to pressure or
encourage the sale of an alcoholic beverage to him. The minor decoy‟s silence did not
render the Department‟s operation unfair.
       CVS‟s argument its clerk was deceived and misled by the minor decoy in this case
is based on the same premise as that advanced by the Appeals Board, namely a minor
decoy has a duty to speak up in response to a statement indicating a mistaken calculation
of age. However, as we have explained, Rule 141 does not supply a defense based on a
minor decoy‟s failure to respond to statements made by the clerk. Consequently, we
conclude the Department properly rejected CVS‟s argument the minor decoy‟s silence
rendered the operation unfair under Rule 141.
                                            C.
               Substantial Evidence Supports the Department’s Decision
       As part of its argument Rule 141 is ambiguous, the Appeals Board asserts the
minor decoy‟s testimony during the hearing was equally uncertain. Specifically, the
Appeals Board asserts that “[t]he decoy‟s testimony is as ambiguous as [Rule 141], and
certainly does not support the conclusion, reached by the Department, that the clerk‟s
words were „[i]ndisputably a statement‟ falling outside the Rule.” In light of the
administrative law judge‟s factual finding, we disagree.
       Viewed in the light most favorable to the Department‟s decision, we conclude
substantial evidence supports the administrative law judge‟s decision. As the
administrative law judge found, the minor decoy‟s testimony was clear and credible. The
administrative law judge also expressly found the testimony established the store clerk‟s
communication to the minor decoy was a statement and not a question. Under section
23090.2, the Appeals Board lacks power to disregard the Department‟s factual findings,



                                            17
which includes findings made by the administrative law judge. (Hasselbach v.
Department of Alcoholic Beverage Control (1959) 167 Cal.App.2d 662, 667 [“The
statement made in the opinion of the appeals board was not a finding of fact for that
board is without power to make findings of fact”].) Accordingly, we reject the Appeals
Board‟s argument the store clerk‟s statement might have been a question instead of a
statement.
                                     DISPOSITION
       The decision of the Alcohol Beverage Control Appeals Board is annulled. The
decision of the Department of Alcoholic Beverage Control is reinstated and the case is
remanded to the Alcohol Beverage Control Appeals Board for further proceedings
consistent with this opinion.




                                                             /s/
                                                 HOCH, J.



We concur:



         /s/
BLEASE, Acting P.J.



         /s/
RENNER, J.




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