Burako v. Munro

DRAPER, J.

Petitioners’ on-sale liquor license was ordered suspended for 45 days. The Alcoholic Beverage Control Appeals Board affirmed. The superior court issued alternative writ of mandate and, after hearing, denied peremptory writ. Petitioners appeal.

The accusation against petitioners was in four counts. Count 1 charged that on November 7, 1956, Brdar, one of the licensees, sold vodka “to an obviously intoxicated female person whose first name is Fay, and whose last name is not known to the complainant.” Count 2 charged sale on the next day “to an obviously intoxicated person whose name is not known to the complainant.” Counts 3 and 4 charged sale of liquor to a named minor, and that he was permitted to consume the liquor on the premises. Upon findings that each count was true, suspension was ordered for 15 days on each count, with the suspension on Counts 3 and 4 to run concurrently.

Appellants objected to the form of the accusation as to Counts 1 and 2, asserting that it did not enable them to identify the transactions. As to Count 1, the objection clearly was without merit. The colicensee who sold liquor to “Fay” testified fully and made it amply clear that he identified her readily and knew her well.

As to Count 2, the description of the purchaser was vague and is by no means to be commended. However, in the proceeding before the hearing officer the department offered testimony identifying the purchaser as a Navy chief petty officer. The colicensee, testifying in his own defense, readily identified the incident and the officer, and named a number of persons present when this drink was sold. The licensees then were granted a three-day continuance for completion of their ease. They produced one of the patrons said to have been

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present at the time of the sale charged in Count 2. But he was asked only about Counts 3 and 4. Others identified by the eoowner as being present were not called, although they were employed in the city where the hearing was held.

We conclude that appellants were not prejudiced by any claimed deficiency in the accusation. The code requirement is that the accusation be sufficient to enable the licensee to prepare his defense. (Gov. Code, §§ 11503, 11506[a] [3].) In such proceedings the courts are more interested in fair notice to the accused than in adherence to technical rules of pleading.