Skipitar v. Munro

California Court of Appeal Oct 30, 1959 No. Civ. 18406Published

Before: Foley

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Holding. The court held that the denial of a continuance for an administrative hearing was not an abuse of discretion where the appellant had sufficient notice and failed to exercise reasonable diligence in obtaining counsel. Furthermore, the court found that the administrative proceedings were not quasi-criminal and that the appellant failed to demonstrate that relevant evidence was improperly excluded.

Issues

Did the hearing officer abuse his discretion by denying the appellant's request for a continuance?
Was the administrative proceeding quasi-criminal in nature, thereby requiring different procedural protections?
Did the trial court err in its findings regarding the appellant's failure to produce relevant evidence or exhaust administrative remedies?

Disposition. affirmed

Quotations verified verbatim against the opinion

“In a matter such as the instant proceeding, appellant had no absolute right to have the matter continued.”

“A proceeding before an administrative agency to determine whether a license should be revoked is not a criminal or quasi-criminal prosecution.”

“The findings of the trial court on the questions of waiver of appeal and failure to exhaust administrative remedies are not necessary to support its judgment.”

FOLEY, J. pro tem.

This is an appeal from a judgment denying a peremptory writ of mandate and ordering that the alternative writ theretofore issued be vacated, annulled, and set aside.

Appellant, James Skipitar, is the owner of an on-sale liquor establishment in San Francisco. On October 24, 1956, a written accusation charging him with violations of sections 25657 subdivisions (a) and (b), 25655, and 25602 of the Business and Professions Code, section 303a of the Penal Code, and rule 143 of the Department of Alcoholic Beverage Control, was filed against him by the Director of Alcoholic Beverage Control.

He was duly served by mail with a copy of the accusation together with a notice of defense under section 11505 of the Government Code on October 30, 1956. On November 9, 1956, the department received an executed notice of defense from appellant. A hearing on the accusation was set for January 23, 1957, before a hearing officer of the Department of Alcoholic Beverage Control at San Francisco. Appellant was duly served by mail with a notice of time and place of said hearing on November 30, 1956. This notice in conformity with section 11509 of the Government Code contained the following statement: “You may be present at the hearing, may be but need not be represented by counsel, may present any relevant evidence, and will be given full opportunity to cross-examine all witnesses testifying against you. You are entitled to the issuance of subpenas to compel the attendance of witnesses and the production of books, documents or other things by applying to the Department of Alcoholic Beverage Control at 1215 O Street, Sacramento 14, California.”

After a hearing on the date specified, the hearing officer proposed a decision finding the allegations of the accusation to be true and recommending revocation of appellant’s license. The department adopted the proposed decision and ordered the license revoked. Appellant filed an appeal with the Appeals Board and his appeal was denied. Thereafter, appellant

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petitioned the superior court for a writ of mandate, the denial of which has led to this appeal.

Appellant contends that it was error for the court below to hold that appellant received a fair trial before the administrative tribunal under the circumstances disclosed by the record. In support of this contention he argues that the hearing officer abused his discretion in denying him a continuance. Appellant was given notice on November 30, 1956, that the hearing was to be held January 23,1957. At the hearing he requested a continuance on the ground that he had no attorney. The following occurred: ‘ ‘ The Hearing Officer : . . . Mr. Skipitar, I understand you have a motion to make at this time. Mr. Skipitar. We like to continue the case. I don’t know anything about the laws or regulations. I may say something to jeopardize my license. I may not say the right thing to help my license. Therefore, rather give me permission to continue the case. The Hearing Officer. What is your reason, sir? Mr. Skipitar. I got to have an attorney. The Hearing Officer. Haven’t you hired an attorney up to this time? Mr. Skipitar. I thought I come out and explain to the gentlemen here look to me just like going to be regular trial, and there is a lot of things written in paper there. I’m confused. I don’t know how to go about it. The gentlemen familiar with everything goes on, and every day keeping cases, and I don’t—if it was one question or two, but there’s a lot of stuff in there, and I don’t understand what it’s all about. I feel I should have some presentation here. The Hearing Officer. Mr. Skipitar, did you get notice that this hearing was going to be held sometime around the 30th of this month? Mr. Skipitar. Yes, sir. The Hearing Officer. You have known about it since that time, that you were going to have this hearing? Mr. Skipitar. If I know I was going to have a- The Hearing Officer. You knew you were going to have a hearing since the 30th of the month. Mr. Skipitar. Yes. The Hearing Officer. And up from that time you haven’t employed an attorney or called- Mr. Skipitar. I had one attorney—he’s busy, and I didn’t like the person—the way he conducted his business—and I feel that I should have an attorney. Mr. Feinberg. In this connection I would like to state this before the Hearing Officer rules, and I’m not offering this as evidence. I would like to state that the record shows that there was a criminal prosecution against Mr. Skipitar arising out of the same transaction at which time Mr. Skipitar was represented

Skipitar v. Munro

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