HERE COMES THE JUDGE
When Does a Licensee Get To See A Real Judge?
When does a licensee accused of wrong-doing get to see a judge
in robes? That is, a real judge. A judge appointed by the governor
or elected by the people. A judge who can make decisions on all
legal and constitutional issues presented. You know…a genuine
judicial officer. Usually it’s never. Usually, it’s an
administrative law judge employed by the Department who hears the
accusation and issues a proposed decision, not a real judge.
It’s the Department which accepts or rejects the proposed
decision, not a judge at all. It’s the Appeals Board which
reviews those decisions. Members of the Board are gubernatorial
appointees but don’t have to be lawyers to be on the Board. They
certainly are not judges. Then, the only available review is to
the Court of Appeal which consists of real appellate court
justices, but the court doesn’t have to take the case, and
rarely does. Business and Professions Code Section 23089, allows
that licensee to seek appellate court review but also allows the
Department the same remedy before the same Court of Appeal. When
the ABC seeks discretionary appellate court review, it hires the
Attorney General. Many view this system inadequate and unfair.
The Department loses a healthy number of cases before the Board
which can reverse a Department decision, affirm that decision or
remand the case back to the Department for further proceedings.
Reversals of Department decisions are handed down by the Board
virtually every time it convenes. A decision rendered by the Board
cannot be reviewed by the Superior Court as a matter of right.
Parties appearing before most other state agencies do have the
right to Superior Court review and therefore a real judge. With
ABC cases any party including the ABC can petition only the Court
of Appeal for a Writ of Review or the California Supreme Court for
a Hearing. Those Courts can grant such petition and review the
Board’s decision or summarily deny the request. Either way, as
anyone who has had a case before the Court of Appeal knows, it can
be an expensive proposition. That’s true whether the Department
or the licensee files the petition.
There have been times when it would appear that the Department has
not spent its attorney allowance wisely. For example, in 1998
after losing scores of Appeals Board appeals on a question
concerning discovery rights in a multitude of jurisdictions (and
appellate court districts) the Department filed petitions for
review in just about every appellate court and even in the
California Supreme Court. The Court, in each instance, summarily
denied each petition as did the California Supreme Court. What did
that misguided adventure cost the taxpayer in attorneys’ fees
paid by the Department to the Attorney General?
Frequently, however, the Department pursues cases to the appellate
court where that court’s decision would have significant
statewide impact. One current example is the case where the
Appeals Board determined that the ALJ in a Southern California
case failed to accurately and adequately analyze the apparent age
of a minor decoy. The apparent age of the decoy is usually in
issue and must satisfy the Department’s rule in that regard. In
this case, the Board found the rule was violated based upon the
ALJ’s failure. The Attorney General filed a petition for writ,
and the matter is presently pending before the Court of Appeal.
In another example, in Northern California, the Court issued a
writ where the Appeals Board reversed a decision of the Department
where the important question before the court is whether a fake ID
manufactured by computer and not the state satisfies the statutory
criteria as a defense in a sale to a minor case. Business and
Professions Code Section 25660 references “a document issued by
a federal, state, county, or municipal government….” The
Courts have upheld such reliance when reasonable and in good
faith. The Department now argues that unless the ID is actually
manufactured by a government, it cannot be the basis for a defense
in a sale to minor case. The licensee responds with an obvious
truth that the self-manufactured ID may look exactly like an ID
issued by the DMV and would seem reliable in every observable way.
In this case pending before the Court, the minor purchased the ID
on the streets of San Francisco. It is never a surprise when the
ALJ buys the Department’s argument and sustains an accusation,
and that’s what happened here. However, based upon around fifty
years of court of appeal precedent and its own consistent
decisions, the Appeals Board reversed saying, among other things,
that since the ID looked genuine and real, the fact that it
wasn’t actually printed by the DMV didn’t negatively impact
the defense of reasonable reliance on what seemed to be an ID
issued by the government. The Department relied on the 1968 Court
of Appeal case, Kirby v. Appeals Board, for the proposition that
reliance on ID that is not issued by the government is not a
defense. However, the Court in Kirby was reviewing ID that
didn’t purport to come from a governmental entity. The Appeals
Board in the case presently before the Court of Appeal determined
that where an ID gives every appearance that it came from a
governmental entity and appears to satisfy the statutory criteria,
the defense is established even it turns out the ID actually came
from the streets of San Francisco. If the Court reverses the
Appeals Board in this instance, it is conceivable that licensees
will no longer be able to rely on computer generated false ID for
the sole reason that the computer wasn’t acting on behalf of the
government when it manufacture that identification. It will not
matter that the ID in question actually looks more like genuine ID
than ID actually issued by the DMV but to someone else. Under that
circumstance, the computer ID could look more real and realistic
than the found ID since the computer ID was tailor-made for the
minor presenting the ID to the clerk, bartender, or waitress. In
other words, the licensee could rely on real ID that belonged to
someone other than the presenting minor but couldn’t rely on ID
that was accurate in every way except the date of birth and even
had the minor’s own name, physical description, address and
photograph incorporated into that identification.
A word to the wise: those computer ID’s don’t pass inspection
through scanning devises. The magnetic strip on the back doesn’t
have the sophisticated technology to fool a scanning system.
That’s coming. At that point, if the Court rules the way the
Department wants, licensees will be fully disarmed and defenseless
against minors who buy their fake ID’s.
What does this Court review mean to you the licensee? It means
that in a system fully weighted in the favor of the ABC, the ABC
can still lose cases. Quite clearly the state statutes and the
ABC’s rules favor the Department. Many of the laws that enable
the Department to go after licensees are strict liability. That
means that if the licensee did the act, it doesn’t matter what
the licensee was thinking or intended. Accusation sustained. The
hearing process favors the Department, and the Department’s
burden of proof is not steep. The hearing officers are
Administrative Law Judges who are ABC employees, and they only
submit a proposed decision to the Department which can reject or
accept. The Appeals Board cannot substitute its judgment for the
Department in an appeal.
The best assumption as to the inside decision-making process in
the Department is that all Appeals Board decisions in favor of
licensees are reviewed for viability of a Department petition to
the Court of Appeal. Obviously most Appeals Board decisions
adverse to the Department do not generate petitions to the Court
of Appeal. Most petitions filed with the Court of Appeal are
denied without review. Both licensee and Department have the right
to file petitions but nnless granted, there is never a real judge
in an ABC case.
The ABC still loses cases before the Board. Usually the appellate
court stays out. Even with no real judges ever involved, most
licensees choose to stand and defend since even a seemingly low
grade offense can have such dire consequences. More accurately,
most licensees have no choice but to stand and defend against
Department accusations. For example, a first offense of a sale to
a minor looks like it can be resolved with payment of a fine. But
the ABC or the local police will always be back; a second offense
if sustained and affirmed on appeal would lead to a suspension; a
third such offense will trigger the Department’s revocation
machine. It’s not easy, and it takes a lot of experience and
expertise because the Department hates to lose. But when in the
right hands, defeating the Department is always within reach. Real
judge or no real judge.
Solomon, Saltsman & Jamieson are
attorneys practicing in the areas of ABC law, ABC Appeals Board
cases, and all related Land Use Matters such as City and County
Conditional Use Permits, Variances, Police and Fire permits,
Entertainment law, and Gambling Law; as well as Business and
Personal Injury litigation. Solomon, Saltsman & Jamieson can
be reached at 800 405 4222."
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