Rolfe v. Munro

SCHOTTKY, J.

An accusation was filed with the Department of Alcoholic Beverage Control charging Russell S. Rolfe and M. Yvonne Rolfe, possesors of a general on-sale liquor license, with five violations of the Alcoholic Beverage Control Act. Count I of the accusation charged that from November 1, 1955, through January 21, 1956, the licensee had permitted his licensed premises to be used in conjunction with a place in which illegal gambling was conducted. Count II charged

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that from November 1, 1955, to January 21, 1956, the licensee aided and abetted in the keeping of a disorderly house in which illegal gambling was conducted in conjunction with his licensed premises. Count III charged a conspiracy by Russell S. Rolfe, Peter A. Bijarella, Eugene Battilana and Raymond Rodriguez to violate the gambling laws of the State of California through the construction and operation of a gambling casino. Count IV charged that during the years 1953, 1954 and up to September 7, 1955, the licensee permitted his premises to be used in conjunction with a disorderly house in which illegal gambling was conducted. Count V charged that between November 1, 1955, and January 21, 1956, appellants, through invitation, prevailed upon persons to visit a room which was maintained for gambling purposes.

The licensees requested a hearing and at the same time filed a statement of objections to the accusations. No ruling was ever made on the objections. Hearings were then had at which evidence was received. The Department of Alcoholic Beverage Control then issued its decision. The licensees were found to have committed each act charged, and their license was revoked as to each violation. An appeal was taken to the Alcoholic Beverage Control Appeals Board which reversed the decision as to Count III and affirmed it as to the other four counts. The licensees then sought a writ of mandate in the superior court, and after a hearing the court affirmed the decision of the department as to Counts I, II and IV and reversed it as to Count V. The court denied a peremptory writ of mandate, and the licensees have appealed from the judgment of the superior court. Only Counts I, II and IV are involved in this appeal.

Appellants’ first contention is that the department prejudicially abused its discretion in not ruling on the statement of objections filed by the licensees. In this regard, it is asserted the failure to rule constitutes a failure to proceed in the manner required by law. By section 11506 of the Government Code, the accused may file a notice of defense in which he may object to the accusation on the ground that it does not state acts upon which the agency may proceed, or that the accusation is so indefinite or uncertain that the accused can not identify the transaction or prepare his defense. The appellants objected on both of these grounds.