Circle K. Stores v. Dept. of Alcoholic Beverage Control
In this writ proceeding, petitioner Circle K Stores, Inc. (Circle K) seeks an order directing the Alcoholic Beverage Control Appeals Board (the Appeals Board) to vacate and annul an administrative decision affirming an administrative order to suspend Circle Ks liquor license. Circle K asserts that respondent Alcoholic Beverage Control (ABC) violated Circle Ks right to due process and violated the Administrative Procedures Act (APA) by permitting the ABC prosecuting attorney at the administrative trial to provide an ex parte written communication, called a Report of Hearing, to the ABC final decision maker or the advisors to the ABC final decision maker.
In response, the ABC does not dispute that if it provided the ABC prosecuting attorneys Report of Hearing to the ABC final decision maker or the advisors to the decision maker, such a communication would have violated the APAs bar against ex parte communications pursuant to Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2006) 40 Cal.4th 1, 4 (Quintanar). Instead, in these writ proceedings, the ABC responds that it did not provide the Report of Hearing to the ABC final decision maker or the advisors to the decision maker. The ABC did not raise this issue at any time during the administrative proceedings. In support of its contention, the ABC submitted declarations from two ABC officials in an attempt to establish that it implemented a screening procedure preventing the ABC prosecuting attorney from providing the written ex parte communication to the ABC final decision maker or the advisors to the ABC final decision maker.
Court grant the petition and issue the writ in favor of Circle K. Quintanar unequivocally holds that the ABCs practice of permitting its administrative prosecuting attorneys to provide the ex parte written communications, i.e., Reports of Hearings, to the ABC final decision maker or to the final decision makers advisors constitutes a violation of the APAs ban on ex parte communications. (Quintanar, supra, 40 Cal.4th at p. 17.) In addition, the ABC is barred by statute from presenting to this court new or additional evidence, including the purported evidence regarding its alleged ethical screening procedures. (See Bus. & Prof. Code, 23090.1 & 23090.2.) Circle K timely raised this issue below during the administrative proceedings. The ABC was required by statute to present its evidence at that time.
The petition is granted. Let a peremptory writ of mandate issue directing the Appeals Board to vacate and annul the suspension of Circle Ks liquor license. The stay imposed by this court is vacated. The order to show case is discharged.
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