Hollywood Circle, Inc. v. Department of Alcoholic Beverage Control

California Court of Appeal Sep 3, 1957 No. Civ. 22095Published

Before: Drapeau

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Holding. The court held that the 40-day statutory time limit for filing an administrative appeal from a Department of Alcoholic Beverage Control decision is a jurisdictional prerequisite that must be complied with literally and exactly. Because the appellant failed to file its appeal within this period, the Appeals Board correctly dismissed the appeal for lack of jurisdiction, precluding judicial review.

Issues

Whether the 40-day time limit for filing an appeal to the Appeals Board is a jurisdictional requirement.
Whether the filing of a petition for reconsideration or other procedural steps extends the statutory time limit for appeal.
Whether the superior court erred in sustaining a demurrer without leave to amend when the administrative appeal was untimely.

Disposition. affirmed

Quotations verified verbatim against the opinion

“But it is the policy of our law that time limits for filing notices of appeal in all legal proceedings must be complied with literally and exactly. This is generally held to he a jurisdictional prerequisite.”

“Therefore, in this case, the administrative appeal was filed too late, the Appeals Board correctly held that it had no further jurisdiction over it, the department’s decision became final, and the courts have no jurisdiction to review the proceeding.”

DRAPEAU, J. pro tem.

March 22, 1956, the Department of Alcoholic Beverage Control of the State of California revoked the on-sale liquor license of Hollywood Circle, Inc., a corporation.

[525]

March 23d, the order of revocation was mailed to Hollywood Circle.

April 20th, Hollywood Circle’s petition for reconsideration was denied by the department.

May 3d, Hollywood Circle mailed its notice of appeal to the Appeals Board of the department.

May 7th, the Appeals Board filed the notice of appeal.

The Appeals Board dismissed the appeal for lack of jurisdiction, because it was filed more than 40 days after the department mailed the order of revocation.

Hollywood Circle appeals from a judgment of the superior court, denying its petition for a writ of mandate to review the proceeding of the board.

The first inquiry is whether or not the notice of appeal was filed in time.

Section 23081 of the Business and Professions Code provides in part, “Within 40 days after the decision of the department is delivered or mailed” an aggrieved party may appeal to the Appeals Board.

The Appeals Board is set up under the Constitution and Code as part of the administrative control of liquor sales in California. (Const., art. XX, § 22; Bus.

Prof. Code, § 23075.)

Section 10 of our Civil Code provides that the time in which an act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is also excluded.

Computing the time from the date of mailing the decision —March 23d—to the date of mailing the notice of appeal— May 3d—results in 41 days, eight in March, 30 in April, and three in May.

So here we have a case of first impression in California: Does the same strict rule that requires a notice of appeal to be filed within the time specified by law apply to an appeal to an appeal board of an administrative agency?

Hollywood Circle, Inc. v. Department of Alcoholic Beverage Control

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