Eleven v. Dept. of Alcoholic Bev. Control

Filed 4/21/06 7-Eleven v. Dept. of Alcoholic Bev. Control CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

ORIGINAL PROCEEDINGS; review of a decision of the Alcoholic Beverage Control Appeals Board. Reversed and remanded.

Solomon, Saltsman & Jamieson, Ralph B. Saltsman and Stephen Warren Solomon for Petitioners.

Bill Lockyer, Attorney General, Jacob A. Appelsmith, Senior Assistant Attorney General, Elizabeth Hong and Judith R. Seligman, Deputy Attorneys General for Respondent.

BACKGROUND

Petitioners, 7-Eleven, Inc. and Debbie L. Triplett, doing business as a 7‑Eleven store in Santa Maria, originally filed their writ petition in the California Supreme Court to review a decision of the Department of Alcoholic Beverage Control (Department).[1] Petitioners filed in the Supreme Court first because, they allege, substantively identical issues were decided in a published opinion of Division Seven of this court, and review was granted in that case, which is now pending in the Supreme Court.[2] The Supreme Court transferred the instant petition to this court for review, and we granted the writ on November 21, 2005, directed respondent Department to file a return, and set the matter for oral argument.

The decision under review resulted from disciplinary proceedings against petitioners, prosecuted by the Department under the procedures set forth in the Administrative Procedure Act (APA).[3] Petitioners do not dispute the facts which gave rise to the disciplinary proceedings. After a contested evidentiary hearing, the administrative law judge found that petitioners, holders of a license to sell beer and wine, had violated Business & Professions Code section 25658, subdivision (a), by selling alcohol to a minor police decoy. The administrative law judge concluded that the violation established cause for the suspension or revocation of petitioners' license, and taking into consideration petitioners' previous violation less than 36 months before, the judge suspended petitioners' license for 25 days. The Department adopted the proposed decision of the administrative law judge, and the Alcoholic Beverage Control Appeals Board (Board) affirmed the Department's decision.[4]

DISCUSSION

Petitioners contend that that their rights under the APA and their right to due process were violated when the departmental prosecutor made an ex parte communication regarding the facts and process of the administrative hearing to the departmental â€