Cardoso v. Department of Alcoholic Beverage Control

WARNE, J. pro tem.

*

This is an appeal from a judgment of dismissal entered upon an order sustaining a general demurrer to a petition for a writ of mandate without leave to amend.

The petition was filed by appellants, seeking review of a decision of the Department of Alcoholic Beverage Control which revoked their on-sale liquor license. Appellants did not appeal the decision to the Alcoholic Beverage Control Appeals Board as provided in section 23081 of the Business and Professions Code, but instead proceeded from the decision directly to the superior court. The demurrer was sustained on the ground that appellants had failed to exhaust their administrative remedy.

Appellants contend that they had an alternative statutory remedy of judicial review and that the doctrine of exhaustion of administrative remedy has no application.

[278]

The contention presents the question: May a liquor licensee seek a court review of a decision of the Department of Alcoholic Beverage Control Board revoking a license without first appealing to the Alcoholic Beverage Control Appeals Board ?

The question has been decided adversely to appellants’ contention in

Hollywood Circle, Inc.

v.

Department of Alcoholic Beverage Control,

153 Cal.App.2d 523 [314 P.2d 1007], and in

Fiscus

v.

Department of Alcoholic Beverage Control,

155 Cal.App.2d 234 [317 P.2d 993], in each of which cases a like question was presented. In the Hollywood Circle ease,

supra,

the court said:

“Referring to Hollywood Circle’s final contention that it had the right to appeal under Government Code, section 11523, without appealing to the Appeals Board of the Department of Alcoholic Beverage Control. Examination of the constitutional and code provisions as to liquor control refutes this contention. The applicable part of the Constitution is as follows: ‘. . . When any person aggrieved thereby appeals from a decision of the department . . . revoking any license . . . the board shall review the decision subject to such limitations as may be imposed by the Legislature. ’ (Const., art. XX, § 22.)