Chosick v. Reilly

NOURSE, P. J.

This is an appeal from a judgment denying a writ of mandate in proceedings under section 1094.5, Code of Civil Procedure, to review an order of the State Board of Equalization revoking appellants’ on-sale general liquor license.

The controversy herein relates to the third count only of the amended accusation inaugurating the administrative proceedings, which count in substance charged violation of section 303, Penal Code, by employing “B girls” upon appellants’ licensed premises for the purpose of procuring or encouraging purchase or sale of alcoholic beverages and by paying those girls commissions on the sales they procured. After an oral hearing the hearing officer filed his proposed decision in which he found true the employment of named “B girls” but not true the payment of a commission to them; it was, however, found that the licensees kept a record on the cash register tape of the sales procured by each girl. The

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proposed penalty for the violation of section 303, Penal Code, was indefinite suspension of license. The hoard considered the proposed decision at its meeting of April 2, 1953, and informed the licensees that the board itself would decide the case under section 11517, subdivision (c), Government Code, and give consideration to a greater penalty than the one proposed. At the meeting of the board on May 28, 1953, in which this matter was decided the licensees were represented by counsel who presented argument. The board adopted the proposed decision except that the penalty was increased to revocation of license. After proceedings based on the transcript and record before the board only, the superior court found, among other things, that the findings of the board are supported by adequate and substantial evidence and that the proceedings before the board were conducted in the manner required by law and within its jurisdiction without abuse of discretion or error of law and were neither arbitrary nor capricious.

Appellants’ first grievance is that the court erred in not holding that the board abused its discretion by not proceeding in the manner required by section 11517, subdivision (a), of the Government Code. The contention is without merit. Section 11517, subdivision (a), is not applicable to the proceedings in this case. That section reads: “If a contested case is'heard before an agency itself the hearing officer who presided at the hearing shall be present during the consideration of the case and if requested, shall assist and advise the agency. Where a contested case is heard before an agency itself, no member thereof who did not hear the evidence shall vote on the decision.” As is shown by its text, it applies to cases in which the agency itself with the hearing officer presiding (§11512, subd. (b)) hears the case including the evidence. Here the ease was originally heard by a hearing officer alone and the proceedings before the board were under section 11517, subdivision (c), without taking of additional evidence or further reference to a hearing officer. The agency itself may then decide the case upon the record including the transcript after having afforded the parties opportunity to present argument. Under this proceeding of section 11517, subdivision (c), there is no requirement, as advocated by appellants, that the hearing officer who prepared the proposed decision must be present during the consideration by the agency of the record and the transcript made before him.