Munro v. Alcoholic Beverage Control Appeals Board

HANSON, J. pro tem.* On the petition of the Director of the Department of Alcoholic Beverage Control, the superior court granted a writ of mandate ordering the respondent Alcoholic Beverage Control Appeals Board to set aside its decision and order thereon which reversed the director, who had found the licensees guilty as charged in Count II of an accusation of violating the Alcoholic Beverage Control Act and article XX, section 22, of the state Constitution and as a consequence had suspended their liquor license for 30 days.

The narrow question here at issue in its final analysis is whether the Board of Appeals had the jurisdiction and power [295]to enter the order it did. The superior court said it did not and we are of the same opinion.

Accordingly, we turn to a recital of the material facts upon which our decision must rest.

The accusation against the licensees charged in four counts that for a considerable length of time they had permitted the licensed premises to be used as a disorderly house. Count II with which we are here concerned charged that for such period of time the licensees permitted persons to become intoxicated on the premises and that intoxicated persons were permitted to remain in and about the said premises.

A hearing was held on the charges contained in the accusation before a hearing officer of the department who, upon the submission of the case, found that the fourth count of the accusation was not sustained by substantial evidence, but that the other three counts were sustained in the manner and to the extent found by him. As to Count II he found only that the licensees had during the period in question permitted intoxicated persons to remain in and about the licensed premises. The hearing officer on the basis of his findings reported that cause for disciplinary action against the licensees had heen established and recommended that the license be suspended for 30 days as to each of Counts I, II and III; said penalties to run concurrently. The director adopted and approved the proposed decision as recommended by the hearing officer. The licensees thereupon filed an appeal with the Appeals Board. That board concluded after its review of the appeal that Count II was sustained by substantial evidence, but that Counts I and III were not. Accordingly, the board reversed the director on Counts I and III, but instead of merely affirming the director on Count II reversed and remanded the ease on that count with a direction to the director that he reevaluate the penalty he had assessed against the . licensees on Count II.