Heidkamp v. Department of Alcoholic Beverage Control

DEVINE, J. Appellants’ liquor license was ordered revoked by the Department of Alcoholic Beverage Control on [517]March 9, 1961, to become effective April 20, 1961. Appellants asked for reconsideration, which was denied, and they appealed to the Alcoholic Beverage Control Appeals Board, which affirmed the decision of the department, and so notified appellants on January 23, 1962. On March 7, 1962, appellants filed their petition for writ of mandate against the Department of Alcoholic Beverage Control, alleging that they did not-have a fair trial, that there was a prejudicial abuse of discretion in that the findings of the department are not supported by substantial evidence, that the decision is not supported by the findings, that the penalty imposed is excessive and is not supported by the evidence or the findings, and that they have exhausted their administrative remedies by unsuccessful appeal to the Alcoholic Beverage Control Appeals Board. They seek a writ commanding the department to set aside its decision and penalty. The Alcoholic Beverage Control Appeals Board is not made a party to the proceeding for writ of mandate.

Demurrer was filed by the department in which it pleads the bar of the statute of limitations, and the demurrer was sustained without leave to amend, and judgment for respondent was given, denying the petition. Prom the judgment, this appeal is taken.

The question is whether section 11523 of the Government Code bars the proceeding.

Respondent contends that the present proceeding, an application for writ of mandate, is in essence as well as in form a proceeding against the Department of Alcoholic Beverage Control, not a proceeding against the Alcoholic Beverage Control Appeals Board, and that section 11523 is controlling. Appellants contend that the mandamus proceeding, although in form directed against the department, actually is a proceeding to set aside the decision of the appeals board and that section 11523 does not apply. They contend that the only applicable statute of limitations is the “catch-all” four-year statute, section 343 of the Code of Civil Procedure, for actions not otherwise provided for.

Section 11523 of the Government Code, so far as it is relevant here, reads: “Judicial review may be had by filing a petition for a writ of mandate in accordance with the provisions of the Code of Civil Procedure. Except as otherwise provided in this section any such petition shall be filed within 30 days after the last day on which reconsideration can be ordered. The right to petition shall not be affected by the fail