Acapulco v. ALCOHOLIC BEV. CONT. APP. BD.

79 Cal.Rptr.2d 126 (1998) 67 Cal.App.4th 575 ACAPULCO RESTAURANTS, INC., Petitioner,

v.

ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD, Respondent

No. B123929. Court of Appeal, Second District, Division One.

October 28, 1998. Solomon, Saltsman & Jamieson, Ralph Barat Saltsman and Stephen Warren Solomon, Playa Del Rey, for Petitioner.

Hinman & Carmichael, John A. Hinman, Richard D. Warren, Beth Aboulafia, San Francisco, Nielsen, Merksamer, Parrinello, Mueller & Naylor, James R. Parrinello, and John E. Mueller, Mill Valley, as Amici Curiae on behalf of Petitioner.

Daniel E. Lungren, Attorney General, Martin H. Milas, Senior Assistant Attorney General, Silvia M. Diaz, Supervising Deputy Attorney General, and Laura Lee Gold, Deputy Attorney General, for Respondent.

MIRIAM A. VOGEL, Associate Justice.

The Department of Alcoholic Beverage Control regulates the use of underage decoys to enforce the constitutional and statutory prohibitions against the sale of alcoholic beverages to minors. In this case, we address the requirement that, after a completed sale and no later than the time at which a citation is issued, "the peace officer directing the decoy shall make a reasonable attempt to enter the licensed premises and have the minor decoy who purchased alcoholic beverages [127] make a face to face identification of the alleged seller of the alcoholic beverages." (Cal.Code Regs., tit. 4, § 141, subd. (b)(5), italics added.)[1] "Failure to comply with this rule shall be a defense to any action brought pursuant to Business and Professions Code [s]ection 25658."[2] (Rule 141(c), italics added.)

In the case now before us, a 19-year-old decoy working with the Los Angeles Police Department entered the Acapulco restaurant, sat down at the bar, and ordered a beer. Without first requesting identification, the bartender served the decoy. The decoy paid for the beer. A police officer seated at a nearby table observed the transaction. The restaurant's owner (Acapulco Restaurants, Inc.), the holder of an on-sale general (public eating place) liquor license, was cited by the Department for selling an alcoholic beverage to a minor in violation of section 25658, subdivision (a). Acapulco denied the accusation and a hearing was held. The police officer and the decoy testified about the sale, and the officer testified that, upon completion of the transaction, he had informed the bartender that she had sold beer to a minor, and identified the decoy as the minor. It is undisputed that the police officer did not have the decoy make the required face-to-face identification of the bartender.[3] An administrative law judge sustained the charge and ordered a 15-day suspension of Acapulco's liquor license.