Eleven v. Dept. of Alcoholic Bev. Control
Filed 8/16/06 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
| 7-ELEVEN, INC., et al., Petitioners, v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, Respondent; JERRY R. JOLLY, as Director, etc., Real Party in Interest. | B187790, B188875, B189476 (A.B.C. Nos. AB8360, AB8377, AB8421) Los Angeles County |
ORIGINAL PROCEEDINGS; review of decisions of the Alcoholic Beverage Control Appeals Board. Annulled and remanded.
Solomon, Saltsman & Jamieson, Ralph B. Saltsman, Stephen Warren Solomon and Ryan M. Kroll for Petitioners.
Bill Lockyer, Attorney General, Jacob A. Appelsmith, Senior Assistant Attorney General, Elizabeth Hong and Claudia Ramirez, Deputy Attorneys General for Respondent and Real Party in Interest.
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These consolidated cases arise from disciplinary proceedings prosecuted by the Department of Alcoholic Beverage Control (Department). The disciplined licensees claim their statutory and constitutional rights to due process and fair hearing were violated by ex parte communications by the departmental prosecutor to the departmental decision maker at the time the proposed decision of the hearing officer was under consideration. We annul the decisions and remand the causes to the Alcoholic Beverage Control Appeals Board (Appeals Board) for new review.
FACTUAL AND PROCEDURAL SUMMARY
Petitioners hold licenses to sell beer and wine, and operate 7-Eleven stores in Southern California.[1] The Department brought disciplinary proceedings against them between June and October 2003, alleging in each instance that petitioners sold alcoholic beverages to a minor who was acting as a decoy. In each case, a hearing on the accusation was prosecuted by the Department before an administrative law judge (ALJ), in accordance with the procedures set forth in the Administrative Procedure Act (Gov. Code, § 11400 et seq.). In each case, the ALJ's proposed decision found petitioners had violated Business and Professions Code section 25658, subdivision (a), and recommended discipline. The Department adopted the proposed decision as to each petitioner without modification. Petitioners appealed the Department's decision to the Appeals Board, which affirmed the Department's decision in each case. Petitions for review were filed with the Supreme Court. Each petition claimed that following the disciplinary hearing before the ALJ but before the Department's decision maker had acted on the ALJ's proposed decision, the Department's prosecutor had submitted written, post-hearing communication to the Department's decision maker, in violation of the Administrative Procedure Act and principles of due process. The Supreme Court transferred the cases to this court. We issued writs of review, set the matters for oral argument, and consolidated the cases for purposes of argument and decision. We annul the challenged orders and remand for further proceedings.
DISCUSSION
Petitioners contend that due process and the Administrative Procedure Act prohibit the Department's practice of having its prosecutor provide an ex parte communication--a report of hearing--to the Department's decision maker after the conclusion of the administrative hearing and before the Department's decision maker decides whether to reject or adopt the hearing officer's proposed decision. In Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (Quintanar), Division 7 of this District held such ex parte communication violated due process and the Administrative Procedure Act. In the Quintanar cases, the Department's decision maker rejected the proposed decision of the hearing officer. The Supreme Court granted review in the Quintanar cases (July 13, 2005, S133331), and they are pending in that court.
In each of our cases, the Department's decision maker adopted the decision of the hearing officer. Because of that distinction, the Department argues, and the Appeals Board found, there is no violation of rights from any ex parte communication. We do not agree.
Government Code section 11430.10, subdivision (a) prohibits â€
