Raab v. Department of Alcoholic Beverage Control

[334]

MONROE, J. pro tem.

*

The petitioners Raab and Miller were engaged in the business of retail liquor sales, and in November, 1956, an accusation was filed against them alleging the sale of alcoholic beverages to a minor. The accusation was amended several times, the final amendment being on February 4, 1957. As finally amended the accusation was in four counts. In the first count it was charged that a sale was made to Gerald Leon Waters, a minor. The second and third counts involved alleged sales to Frank Mejia, a minor, and the fourth count alleged a sale to Tom Halby, a minor. In each case it was alleged that the sale was made by

“a

male clerk, name not known.” The amended accusation was served on petitioners on February 7, 1957, together with a notice of a hearing on February 25, 1957. At the hearing, the petitioners objected to the accusation on the ground that it was indefinite and uncertain, that it did not state facts upon which the agency could proceed, and that a defense could not be properly prepared, and they denied all of the allegations. The objections were overruled and a hearing was had. Evidence was taken and as a result of the hearing the agency determined that the charges had been established and it was ordered that the liquor license of the petitioners be suspended for a total period of 75 days. Thereupon petitioners brought this proceeding in the superior court for a writ of mandate to review the action of the department. At the trial a judgment was entered denying the petition for a writ and quashing the alternative writ, from which judgment the petitioners appeal.

Petitioners contend that they did not have a reasonable opportunity to prepare their defense, as is guaranteed by Government Code, section 11507. This contention is based in part upon the fact that the accusation was amended on several occasions and that in its final form was served some 18 days before the hearing and, further, that petitioners had no information as to the identity of the clerk alleged to have made the sale.

The answer to this contention is that although objection was made, no continuance was sought and the parties proceeded with the hearing. Upon the hearing it developed that the parties during the period in question employed three clerks. The trial court concluded that in view of all circumstances no unfair advantage was taken of petitioners in this regard, and we agree with that conclusion.