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Filed 8/8/16 Dept. of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Board CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

DEPARTMENT OF ALCOHOLIC 

BEVERAGE CONTROL,

Petitioner,

v.

ALCOHOLIC BEVERAGE CONTROL 

APPEALS BOARD,

Respondent;

CIRCLE K STORES, INC.,

Real Party in Interest.

E065144

OPINION

ORIGINAL PROCEEDINGS; petition for writ of review. Decision annulled.

Kamala D. Harris, Attorney General, Chris A. Knudsen, Assistant Attorney 

General, Celine M. Cooper and Jodi L. Cleesattle, Deputy Attorneys General, for 

Petitioner.

Linda A. Mathes for Respondent.
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Solomon Saltsman & Jamieson, R. Bruce Evans and Jennifer L. Oden, for Real 

Party in Interest.

In this matter we interpret section 25666 of the Business and Professions Code1 as 

it existed prior to its amendment by Assembly Bill 776 (2015-2016 Reg. Sess.) effective 

January 1, 2016. We conclude that when the subject proceedings were held in 2014, the 

statute meant then what it more clearly means now. Accordingly, respondent, Alcoholic 

Beverage Control Appeals Board (Board) erred in ruling that the accusation had to be 

dismissed.

STATEMENT OF THE CASE

The underlying proceeding involves an accusation filed by the Department of 

Alcoholic Beverage Control (ABC) against Circle K Stores, Inc. (Circle K) in which it 

was alleged that on May 20, 2014, 19-year-old Mariah Daily was sold an alcoholic 

beverage by a Circle K clerk.

On the date set for hearing of the matter, September 18, 2014, Daily—who had 

acted as a decoy—failed to appear. Counsel for the ABC requested a continuance, noting 

that the minor had been properly subpoenaed and also informing the court that the minor 

was apparently in route. The administrative law judge (ALJ) granted a continuance.

At the renewed hearing on November 19, 2014, counsel for Circle K attempted to 

inquire about the subpoena, apparently hoping to challenge whether it had been properly 

 

1

 All further statutory references shall be to the Business and Professions Code 

unless otherwise indicated.
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served on Daily. However, the ALJ refused to permit such inquiry, casting the matter in 

terms of whether it was appropriate to revisit a ruling on the previous continuance. The 

ALJ subsequently issued a proposed decision, finding that Circle K’s clerk sold an 

alcoholic beverage to Daily without properly verifying the latter’s age, and that Daily 

“displayed the appearance which could generally be expected of a person under 21 years 

of age . . . .” A license suspension of 15 days was imposed by the ALJ.

Circle K appealed the decision to the Board. Circle K’s argument was that the 

continuance of the original hearing was unauthorized under section 25666, and the matter 

should have been dismissed when the minor failed to appear. Circle K cited a very recent 

decision of the Board, Purciel v. Department of Alcoholic Beverage Control (2015) AB9454 (Purciel).)2

 In that case, the Board held that section 25666 only allows a 

continuance due to the absence of a decoy minor witness in very limited circumstances. 

(See infra.)

The Department responded that in several cases preceding Purciel, the Board had 

uniformly held that a hearing officer had general discretion to continue a hearing when 

the minor decoy was absent, and argued that Purciel wrongly interpreted recent 

amendments to section 25666. However, the Board reaffirmed its position in Purciel and 

upheld Circle K’s appeal, reversing the decision of the hearing officer.

 

2

 http://www.abcappealsbd.ca.gov/res/docs/Decisions/AB-9400/9454.dec.pdf, as 

of August 4, 2016.
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DISCUSSION

1. The Petition is Not Untimely

First, we deal with a procedural issue. Circle K argues that we must reject the 

petition because it was not timely filed. Section 23088 provides that a decision of the 

Board “shall be filed by delivering copies to the parties personally or by mailing copies to 

them by certified mail.” Section 23090 provides for judicial review and specifies that the 

application for review “shall be made within 30 days after filing of the final order of the 

board.”

Here, the Board issued its original decision on December 7, 2015. It then 

purported to “amend” its decision on December 10, 2015; the “amendment” was merely 

to attach a copy of the decision by the ALJ.

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 The instant petition was not physically filed 

and stamped until January 12, 2016.

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We have concluded that the decision was never properly “filed” within the 

meaning of section 23088. The proof of service indicates that the decision was served on 

 

3 Due to our resolution of the timeliness issue, we need not decide whether 

Circle K is correct in arguing that the Board had no power to amend its decision. It relies 

on section 23088, which also provides: “Each such order shall become final upon being 

filed as provided herein, and there shall be no reconsideration or rehearing by the board.” 

4 The Department attempted to “e-file” the petition on January 8, 2016, but the 

petition was not one of the documents authorized to be so “e-filed” at that time. 

Accordingly, we believe the filing was ineffective for any purpose related to the statute of 

limitations.
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the Department by “messenger mail.” Our inquiries5 concerning this notation produced 

the explanation from both the Board and the Department that the usual practice is for a 

Board employee to place documents in a “pick-up box” from which they may be 

retrieved by a Department employee. Obviously this is not the “certified mail” required 

by section 23088.

The Board argues that its method of delivery is quicker and more efficient than 

mailing by certified mail. The Legislature required certified mail or personal delivery. 

(§ 23088.) The problem with “messenger mail” is made obvious by this case. Unlike 

either certified mail or personal service, it results in no official “paper trail” establishing 

the date on which the receiving party actually received the document.6 Accordingly, the 

petition was not untimely filed.

2. The Continuance was Lawful

First, as a state agency, the Department is subject to the Administrative Procedures 

Act. (Gov. Code, §§ 11340 et seq.) Government Code section 11524, part of the chapter 

governing hearing procedures, has provided essentially since 1945 that “[t]he agency may 

grant continuances” and that “[a] continuance may be granted for good cause . . . if the 

party seeking the continuance is not responsible for and has made a good faith effort to 

prevent the condition or event establishing the good cause.” The hearing officer is 

guided by the same general principles which influence the granting or denying a 

 

5

 The court invited all parties to submit letter briefs addressing questions with 

respect to the timeliness of the petition. The order was dated March 22, 2016.

6 A copy in the Department’s possession is stamped “Received Dec 14, 2015.”
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continuance in judicial proceedings, and the decision-maker has broad discretion. 

(Bussard v. Department of Motor Vehicles (2008) 164 Cal.App.4th 858, 864 (Bussard).)

However, the Department is also subject to various rules set out in the Business 

and Professions Code specifically governing the regulation of alcohol sales. Section 

25666 deals specifically with accusations brought concerning the sale or furnishing of 

alcohol to minors and its primary purpose is to ensure that the minor (or alleged minor) is 

present at the hearing. Prior to January 1, 2016, section 25666 in its entirety provided: 

“In any hearing on an accusation charging a licensee with a violation of Sections 25658, 

25663, and 25665, the department shall produce the alleged minor for examination at the 

hearing unless he or she is unavailable as a witness because he or she is dead or unable 

to attend the hearing because of a then-existing physical or mental illness or 

infirmity, . . . When a minor is absent because of a then-existing physical or mental 

illness or infirmity, a reasonable continuance shall be granted to allow for the appearance 

of the minor if the administrative law judge finds that it is reasonably likely that the 

minor can be produced within a reasonable amount of time . . . .” 

As indicated above, in 2015 the Board issued its decision in the Purciel case, 

interpreting Business and Professions Code section 25666 as limiting the power of the 

ALJ to continue a matter due to the absence of a minor solely to circumstances relating to 

death or illness. This interpretation read Business and Professions Code section 25666 as 

a more specific statute applicable to sale-to-minor cases that superseded the general 
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provisions of Government Code section 11524. (See Department of Corrections &

Rehabilitation v. Superior Court (2015) 237 Cal.App.4th 1472, 1482.)

Shortly after the decision in Purciel, Assembly Bill 776 (2015-2016 Reg. Sess.), 

which had dealt with brewery events, was amended to add a provision modifying section 

25666. This amendment added subdivision (b)(2), which now reads “This section is not 

intended to preclude the continuance of a hearing because of the unavailability of a minor 

for any other reason pursuant to Section 11524 of the Government Code.” Hence, since 

the effective date of January 1, 2016, it is clear that section 25666 operates in harmony 

with Government Code 11524.

The question before us, however, is whether the amendment constituted a change 

in the law as the Board would believe, or confirmed prior law. We conclude the latter is 

correct.

The laws relating to the sale or furnishing of alcohol to minors were enacted in 

their current form beginning in 1953. (Bus. & Prof. Code, § 25658.) From that time until 

the enactment of Business and Professions Code section 25666 in 1963, Government 

Code section 11524 necessarily controlled the granting of continuances in proceedings 

before the Board. (See Givens v. Department of Alcoholic Beverage Control (1959) 176 

Cal.App.2d 529, 532.) As we have noted, whether to grant a continuance under 

Government Code section 11524 rests within the decision-maker’s discretion. Business 

and Professions Code section 25666, on the other hand, requires that a continuance be 
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granted in specified circumstances. The nature of those circumstances, we think, is the 

key to the answer.

Government Code section 11524 generally requires that when a party seeks a 

continuance, that party must have good cause for the request and must have acted with 

diligence to prevent the problem which necessitates the request. (See Bussard, supra, 

164 Cal.App.4th at p. 865; Mendez v. Superior Court (2008) 162 Cal.App.4th 827, 835.) 

Business and Professions Code section 25666 contains no such requirement, and for 

obvious reasons: the Department has no ability to influence or improve the health of a 

minor essential to the case. Hence, its diligence is irrelevant and good cause necessarily 

exists.7

Accordingly, section 25666 requires that when the conditions are met, the ALJ

must grant a continuance so that the minor’s presence may be secured. (Assuming, that 

is, that the ALJ finds that the minor is likely to be able to attend within a reasonable 

time.) This provision, therefore, relieves the Department from a possible dismissal based 

on an absence it had no power to prevent. It in fact effectively prohibits dismissal.

Viewed in this light, it is clear to us that Business and Professions Code 

section 25666 is complementary, rather than contradictory, to the Government Code 

provision. The latter provides the court with broad discretion to grant continuances 

without specifying details, in recognition of the fact that the circumstances that may 

 

7 The Department would, however, have the obligation to establish that the minor 

was in fact ill or deceased.
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justify a continuance are myriad and not susceptible of exclusive description. (Bussard, 

supra, 164 Cal.App.4th at p. 864.) We do not, of course, know whether the enactment of 

Business and Professions Code section 25666 was prompted by the Department’s 

complaint to the Legislature that hearing officers were improperly refusing to grant 

continuances on the grounds of the minor’s illness. Arguably, the stimulus could also 

have been complaints by licensees that had been compelled to participate in hearings 

without the minor’s presence when the licensee’s request for continuance was refused.8 

In either case, the proper interpretation is that Business and Professions Code section 

25666 describes a limited situation in which the hearing must be continued until the 

minor can be present. It does not even purport to restrict the hearing officer’s discretion

in all other cases. Nor can we imagine any reason why the discretion to grant 

continuances should be severely restricted in Department cases in comparison with other 

state agency proceedings.

Hence, the Board was both right and wrong in this case. It was right in its earlier 

decisions, and wrong in Purciel and this instant case.

 

8 Although, as enacted, section 25666 provided that the Department “shall” 

produce the minor, without exception, it did not provide for the sanction of dismissal. 

(See DeYoung v. Commission on Professional Competence etc. (2014) 228 Cal.App.4th 

568, 576 [construing a statute as directory rather than mandatory if the statute contains no 

express consequence for noncompliance].)
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DISPOSITION

The decision of the Board is annulled. The decision of the Department is 

reinstated and the case is remanded to the Board for further proceedings consistent with 

this opinion.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

RAMIREZ

P. J.

HOLLENHORST

J.