Anderson v. Department of Alcoholic Beverage Control

GRIFFIN, J.

The principal question here involved is whether petitioner, under the provisions of the Alcoholic Beverage Control Act (Bus. & Prof. Code, § 23081) filed his notice of appeal from an order of the respondent, Department of Alcoholic Beverage Control, revoking plaintiff’s on-sale beer and wine license, within the required 40 days after “service or mailing” of such decision by said board. On December 20, 1956, the license was revoked and on the same date a certificate of such revocation was mailed by it to petitioner. It was received by him on December 24, 1956. On January 30, 1957, petitioner mailed his notice of appeal to the Alcoholic Beverage Control [Appeals] Board. It was not received by it until February 4, 1957. February 2nd and 3rd fell on Saturday and Sunday respectively. On March 4, 1957, the board, on motion, dismissed the appeal because it was not filed within the period above described. It subsequently denied

[415]

a motion to reconsider said decision. Petitioner, by way of mandate in the superior court, sought to require the board to hear and determine the appeal and to cancel and annul its decision on the ground that petitioner was not afforded a proper hearing in the first instance. Judgment went for respondents on the ground that petitioner had not exhausted his administrative remedies in that he had failed to perfect his appeal within the statutory time. Petitioner now claims, on this appeal, that an appeal to the Alcoholic Beverage Control [Appeals] Board was not a condition precedent to the right of judicial review by writ of mandate, citing section 11523 of the Government Code, and that since he subsequently petitioned for a reconsideration of the decision he had exhausted his remedy before said board and a writ of mandate was authorized.

It has been uniformly held in this state, as to the right of judicial review of an administrative board, that all available administrative remedies must be first exhausted; that it is jurisdictional and cannot be excused by the court on the ground that it would cause unreasonable delay or hardship. (2 Cal.Jur.2d p. 304, § 184;

Alexander

v.

State Personnel Board,

22 Cal.2d 198 [137 P.2d 433] ;