Opinion
11-10-1958
Russell S. MUNRO, Director of the Department of Alcoholic Beverage Control of the State of California, Petitioner and Respondent, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD of the State of California; Martin Bert Haley, Respondents and Appellants. * Civ. 17967.
Edsel W. Haws, Chief Counsel, Alcoholic Beverage Control Appeals Board, Sacramento, for appellant Appeals Board. Foley & Foley, James W. Foley, San Jose, for appellant Martin Bert Haley. Edmund G. Brown, Atty. Gen., Wiley W. Manuel, Deputy Atty. Gen., for respondent.
Russell S. MUNRO, Director of the Department of Alcoholic Beverage Control of the State of California, Petitioner and Respondent,
v.
ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD of the State of California; Martin Bert Haley, Respondents and Appellants. *
Nov. 10, 1958.
As Amended on Denial of Rehearing Dec. 10, 1958.
Hearing Granted Jan. 7, 1959.
Edsel W. Haws, Chief Counsel, Alcoholic Beverage Control Appeals Board, Sacramento, for appellant Appeals Board.
Foley & Foley, James W. Foley, San Jose, for appellant Martin Bert Haley.
Edmund G. Brown, Atty. Gen., Wiley W. Manuel, Deputy Atty. Gen., for respondent.
MARTINELLI, Justice pro tem.
This is an appeal from a judgment of the superior court granting a writ of mandate annulling the decision of the Alcoholic Beverage Control Appeals Board (hereinafter referred to as the board) which had reversed the decision of the Department of Alcoholic Beverage Control (hereinafter referred to as the department) revoking the on-sale liquor license of one Martin Bert Haley. Both the board and Haley present appeals.
The accusation filed with the department alleged as follows: 'Ever since 1943 and continually up to the date of this accusation, the above-named licensee has not been, and is not now, the true and sole owner of the business operated and conducted under the above-mentioned license at the above-designated premises, but in truth and in fact, one Frank Mendoza has been, and is now, the owner or part owner of said business, in violation of sections 23300, 23355, 23396, 23951, 23953, 24040 and 24200 of the Alcoholic Beverage Control Act [Bus. & Prof.Code].'
The evidence produced at the hearing shows that Haley first acquired the license in 1942. In 1943 Mendoza became a business partner with Haley and as a result Mendoza had equal authority in running the establishment. Both Haley and Mendoza represented the business to be a partnership. Partnership income tax returns were prepared and various insurance policies were issued to both parties covering the licensed premises.
For each of the years 1943 through 1955 only Haley signed applications for renewal of the license although the application form indicated that the renewal application should be signed by each partner.
Lawler, a liquor control agent, testified that Haley had told him that since the partnership agreement was an informal verbal one entered into without the aid or advice of an attorney, he did not believe that there was any necessity for a change of the liquor license. Lawler testified that Haley appeared to have been acting in good faith and 'I would say it was more ignorance on his part than anything else.'
Both Haley and Mendoza testified that in 1953 they went to the San Jose office of the Board of Equalization for the purpose of transferring the license into both names, but were advised by a man at the desk that this was unnecessary.
No other accusations were filed against the licensee during the period of partnership.
The hearing officer determined that Haley had violated sections 23300, 23355, 23951 and 23953 of the Alcoholic Beverage Control Act and that grounds for suspension or revocation of the license under provisions of section 24200, subdivisions (a), (b) and (c) had been established. He recommended that the license be revoked and the department adopted the decision and recommendation.
The board upheld the department on all issues except as to the penalty and remanded the matter on the ground that the penalty was arbitrary as a matter of law. The department filed a petition for a writ of mandate and after a hearing judgment was entered in favor of respondent.
The board contends that the sole question presented here is whether the penalty of revocation was an abuse of discretion as a matter of law. Respondent argues that the offenses committed were legally sufficient to permit the license revocation, the penalty imposed was therefore proper and the board did not have the power to interfere with a penalty imposed by the department.
Appellant board concedes that the evidence supports the finding that appellant Haley was not the sole owner of the business. Therefore, it is not disputed that sections 23300, 23355, 23951 and 23953 of the Alcoholic Beverage Control Act were technically violated.
Both the department and the board were created in 1954 by the amendment of section 22, Article XX of the California Constitution. This section provides in part that: 'The department shall have the power, in its discretion, to deny, suspend or revoke any specific alcoholic beverages license if it shall determine for good cause that the granting or continuance of such license would be contrary to public welfare or morals, or that a person seeking or holding a license has violated any law prohibiting conduct involving moral turpitude.' (Emphasis added.)
Section 22 provides in part as to the function of the board: 'Review by the board of a decision of the department shall be limited to the questions whether the department has proceeded without or in excess of its jurisdiction, whether the department has proceeded in the manner required by law, whether the decision is supported by the findings, and whether the findings are supported by substantial evidence in the light of the whole record. * * * When the order reverses the decision of the department, the board may direct the reconsideration of the matter in the light of its order and may direct the department to take such further action as is specially enjoined upon it by law, but the order shall not limit or control in any way the discretion vested by law in the department.' (Emphasis added.)
It is agreed that as a general rule when an administrative agency is given discretion as to the extent or mode of the penalty to be imposed, a reviewing court has no power to inquire into the propriety of a particular penalty imposed within the area of such discretion. 2 Cal.Jur.2d § 235, p. 393, citing Painless Parker v. Board of Dental Examiners, 216 Cal. 285, 300, 14 P.2d 67; Fuller v. Board of Medical Examiners, 14 Cal.App. 734, 59 P.2d 171.
Appellant board and respondent cite cases involving the question of the scope of review of a reviewing court under a writ of mandate. California courts have stated that the degree or appropriateness of the penalty is a matter vested in the administrative agency which penalty should not be disturbed by the courts unless there has been an abuse of discretion. Bonham v. McConnell, 45 Cal.2d 304, 288 P.2d 502; Nardoni v. McConnell, 48 Cal.2d 500, 310 P.2d 644; Griswold v. Dept. of Alcoholic Bev. Control, 141 Cal.App.2d 807, 297 P.2d 762; Altadena Church v. St. Bd. Equalization, 109 Cal.App.2d 99, 240 P.2d 322. Code of Civil Procedure, § 1094.5, defining the trial court's scope of review into the validity of an administrative hearing under a writ of mandate, states: '(b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. '(c) Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence; and in all other cases abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.'
Subdivision (e) states that the judgment of the court 'shall not limit or control in any way the discretion legally vested in the respondent.'
Business and Professions Code, §§ 23084 and 23085 define the scope of review of the Appeals Board employing the same language as in Article XX, section 22 as set out above.
Thus harmoniously resident in Constitution, Article XX, section 22 and in section 23085 of the Business and Professions Code and compatibly disposed to correlative section 1094.5 of the Code of Civil Procedure, subdivision (e) is the vaining norm employed in the expression 'but the order shall not limit or control in any way the discretion vested by law in the department.'
Respondent cites the above code sections and argues that an abuse of discretion which will permit the courts or the board to remand a case back to the department does not include the degree or appropriateness of the penalty imposed. Respondent states that the department could not have abused its discretion when it imposed the penalty which it is empowered to impose. In Joseph George v. Dept. of Alcoholic Beverage Control, 149 Cal.App.2d 702, 308 P.2d 773, 781, the court said, 'It was a matter of discretion with the Department to revoke the license once it found that the continuance of it was contrary to law. The trial court had no authority under the rules of mandamus to control that discretion.'
In a case involving the Insurance Commissioner, our Supreme Court stated, 'While any action taken by him may, of course, be judicially reviewed to determine whether the charges upon which it is based are supported by the evidence, his decision regarding the appropriate penalty should not be disturbed unless there has been an abuse of discretion.' Bonham v. McConnell, 45 Cal.2d 304, 306, 288 P.2d 502, 503. This same rule has been held applicable to the court's review of the department's imposition of a penalty. Griswold v. Dept. of Alcoholic Bev. Control, supra, 141 Cal.App.2d 807, 811, 297 P.2d 762.
Although neither the Constitution nor the Alcoholic Beverage Control Act has specifically included as within the scope of review of the Appeals Board abuse of discretion lying solely in the imposition of the penalty, it was stated in Munro v. Alcoholic Beverage Control Appeals Board, 154 Cal.App.2d 326, 316 P.2d 401, 405, 'The question of penalty is for the administrative agency unless an abuse of discretion is established as a matter of law.' In that case the Appeals Board had reversed the decision of the department on the ground that it was not supported by the findings. The superior court, as in the instant case, annulled the decision of the appeals board.
Again there are cases that seem to hold that if there is substantial evidence to support the findings of the administrative agency, the determination of the penalty to be imposed lies with the agency and not with the court. Thayer v. Board of Osteopathic Examiners, 157 Cal.App.2d 4, 9, 320 P.2d 28; Hansen v. Civil Service Board, 147 Cal.App.2d 732, 739, 305 P.2d 1012; Newman v. Board of Civil Service Com'rs, 140 Cal.App.2d 907, 912, 296 P.2d 41; Schneider v. Civil Service Commission, 137 Cal.App.2d 277, 285, 290 P.2d 306; Black v. State Personnel Board, 136 Cal.App.2d 904, 912, 289 P.2d 863. It would seem that California presents no case where a decision of an administrative agency has been reversed solely on the ground of the appropriateness of the penalty imposed.
It would seem that the board's power to review the appropriateness of a penalty is the same as the scope of review of the courts under a writ of mandate. That is, the penalty can be found to be too severe and an abuse of discretion as a matter of law if the department was without or exceeds its jurisdiction, if the evidence does not support the findings, or if the findings do not support the decision.
Encountering and resolving the factor of 'abuse of discretion' imposes some, but not all, stern questions such as:
1. In exploring the whole record and in the search to detect abuse of discretion, where does the search begin and where must it end?
2. Must the search be confined to the area below the level of the penalty imposed?
3. May the search invade or penetrate the area of penalty alone?
4. Must the search be confined to the proceeding had before the department up to the point, and only to the point, of the imposition of the penalty of revocation?
5. May an abuse of discretion inhere in the penalty alone?
6. When, if ever, does a penalty in and of itself speak of its excessive nature?
7. When, if ever, is a penalty excessive if it does not exceed the power to impose?
To these questions, there is no gross or singular answer, but each must be determined for itself.
Appellant board's concept of the true holding in Bonham v. McConnell, supra, 45 Cal.2d 304, 288 P.2d 502; Covert v. State Board of Equalization, 29 Cal.2d 125, 173 P.2d 545, and Altadena Church v. St. Bd. Equalization, supra, 109 Cal.App.2d 99, 240 P.2d 322, would appear to be too loose to contain the answers.
The Altadena case is not appropriately in point, merely holding that an abuse of discretion on the part of the State Board of Equalization in granting an on-sale general liquor license in a given area in the face of written protests filed by three churches, over 500 area citizens and by the sheriff of Los Angeles County, and notwithstanding the hearing officer's recommendation for denial of the license in the interest of public welfare and morals, is not shown by the location of the premises in the immediate vicinity of three churches and a youth center.
The Altadena case 109 Cal.App.2d at page 104, 240 P.2d at page 325, however, proffers some, though not all, of the cardinal guides for determining the whereabouts of an abuse of discretion, therein taken from Sharon v. Sharon, 75 Cal. 1, at page 48, 16 P. 345, at page 366, wherein the court held "In a legal sense, discretion is abused whenever, in its exercise, a court exceeds the bounds of reason, all the circumstances before it being considered.' 1 Bouvier's Law Dict, Rawle's Third Revision, page 94, defines abuse of discretion as 'A discretion exercised to an end or purpose not justified by and clearly against reason and evidence."
Bonham v. McConnell, supra, 45 Cal.2d 304, at pages 305 and 306, 288 P.2d at page 503, declares: 'Under section 1731 of the Insurance Code, the commissioner has been vested with discretion to revoke or suspend licenses. While any action taken by him may, of course, be judicially reviewed to determine whether the charges upon which it is based are supported by the evidence, his decision regarding the appropriate penalty should not be disturbed unless there has been an abuse of discretion. He should not be precluded from exercising his discretion either initially or where, as here, some of his findings of misconduct are upheld on judicial review and others are not. [Emphasis ours.] Where some of the findings are not supported by the evidence, it is obvious that his discretion has been exercised under a misconception as to the extent of the licensee's misconduct. If the case is not remanded, the commissioner will not be afforded an opportunity to exercise his discretion in the light of the established facts and thus perform the function entrusted to him by the Legislature. The decisions involving this problem have generally adopted the practice of directing the administrative agency to reconsider the penalty to be imposed.'
The reason for this pronouncement is as obvious as the fact that the penalty may not have been the same, although not necessarily so, as it might have been had a complete discretion been employed limiting the penalty consideration of the commissioner only to those findings supported by the evidence.
In Covert v. State Board of Equalization, supra, 29 Cal.2d 125, 173 P.2d 545, the Supreme Court had under consideration portions of Constitution, Article XX, section 22, germane to our present study in respect of the power to deny or revoke any specific liquor license upon determination for good cause that the granting or continuance of such license would be contrary to public welfare or morals.
The court enunciated at page 131 of 29 Cal.2d, at page 548 of 173 P.2d the same norms, viz.: 'In order to revoke a license the board obviously must examine the facts, resolve any conflicts in the evidence, and exercise its judgment with respect thereto. * * * This does not mean, of course, that the 'discretion' given to the board is absolute, since it must be exercised in accordance with the law. 'The functions of the board are thus similar in some respects to those of a local administrative tribunal, a decision of which will be sustained if it has committed no error of law and if the evidence, although conflicting, is sufficient to support its findings of fact. * * *'
At page 132 of 29 Cal.2d, at page 549 of 173 P.2d the court pronounced 'It would appear, therefore, from the foregoing authorities, that the decisions of the board are final, subject to review for excess of jurisdiction, errors of law, abuse of discretion and insufficiency of the evidence * * *.'
The nature of the discretionary powers of the department appear not unlike those formerly inherent in the State Board of Equalization and characterized in Jacques, Inc. v. State Bd. of Equalization, 155 Cal.App.2d 448 at page 458, 318 P.2d 6 at page 13, in the language following, viz.: 'The Board was given broad discretion under the Constitution to determine what constitutes good cause for the suspension or revocation of a license, that is, the power to determine when the continuance of the license would be contrary to public welfare and morals. Moore v. State Board of Equalization, 76 Cal.App.2d 758, 174 P.2d 323 and Hansen v. State Board of Equalization, 43 Cal.App.2d 176, 110 P.2d 453. These cases point out that the Board's powers [the department's in our case] are not limited to the statutory provisions but also come from the Constitution.'
There is nothing in Article XX, section 22 of the Constitution which requires the department to prescribe by rule what infraction or misconduct will put a license in jeopardy.
Jacques, Inc. v. State Bd. of Equalization, supra, 155 Cal.App.2d 448, 318 P.2d 6, cited by appellant board is not in point, save for the portions quoted above and save for the portion quoted by appellant board in its closing brief, viz.: 'While it may be conceded that not every violation of the penal statute of this state would constitute a good cause for revocation of a liquor license.'
A statement so obvious incurs little comment for it is a distant cry from the positive language of section 24200(b) and (c) of the Business and Professions Code. It is equally obvious that the instant case does not pose a violation of a motor vehicle law, a game law or some unrelated law, but rather current violations directly related to the license itself.
The sections violated by appellant Haley provide: ' § 23300. When license required. No person shall exercise the privilege or perform any act which a licensee may exercise or perform under the authority of a license unless the person is authorized to do so by a license issued pursuant to this division.' ' § 23355. License privileges. Except as otherwise provided in this division and subject to the provisions of Section 22 of Article XX of the Constitution, the licenses provided for in Article 2 of this chapter authorize the person to whom issued to exercise the rights and privileges specified in this article and no others at the premises for which issued during the year for which issued.' ' § 23951. Contents. The application shall contain the following: '(a) The name of the applicant. '(b) In the case of a copartnership, the names of the individual partners. '(c) In the case of a corporation, the principal officers and directors. '(d) The location of the premises for which the license is applied.' ' § 23953. Signatures. The application shall be signed by the applicant. In the case of a partnership the application shall be signed by each of the partners, and in the case of a corporation by an officer and under the seal of the corporation.'
The findings of the department in respect to the above sections may be considered in the atmosphere of the contentions contained in appellant Haley's opening brief and in the light of the opening paragraph in appellant board's reply brief, viz.: 'Respondent contends that where, as here, a finding of a violation is supported by substantial evidence * * *.'
The Department made no specific finding that Haley's violations were contrary to public welfare and morals. Article XX, section 22 provides: 'The department shall have the power, in its discretion, to deny, suspend or revoke any specific alcoholic beverages license if it shall determine for good cause that the granting or continuance of such license would be contrary to public welfare or morals, or that a person seeking or holding a license has violated any law prohibiting conduct involving moral turpitude.'
Clearly there was no moral turpitude involved in the instant case. Although the Department made no specific finding in so many words that Haley's acts were contrary to public welfare and morals, the finding that he violated the above sections enacted in pursuance of section 22 of Article XX is tantamount in effect to a finding that Haley's violations were contrary to public welfare and morals. In Mercurio v. Dept. of Alcoholic Beverage Control, 144 Cal.App.2d 626, 631, 301 P.2d 474, 478, the court, in considering the finding of violation of rule 143 made by the Board of Equalization, declared: 'The board made no finding in so many words that appellants' acts or the violations were contrary to public welfare and morals. The board found that appellants 'violated Rule 143 issued in pursuance of Section 22 of Article XX of the Constitution of California and of the Alcoholic Beverage Control Act.' This, in effect, is a finding that the acts of appellants were contrary to public welfare and morals because by specifically adopting Rule 143, the board was articulating the acts specified therein as being ones which the board felt were contrary to public welfare and morals.'
More proximal to a specific finding concerning public welfare and morals in the instant case is the finding of the department 'that grounds constituting a basis for the suspension or revocation of the license had been established under section 24200, subdivisions (a), (b), and (c) of the Alcoholic Beverage Control Act.'
Respondent admits that these sections were enacted 'to clear up the racketeering surrounding liquor licenses and to take every precaution against illegal traffic in liquor.' Citing Report to the 1954 Special Session of the California Legislature of the Sub-Committee on Alcoholic Beverage Control, a Sub-Committee of the Joint Committee on Governmental Reorganization, February 8, 1954.
Thus the purpose of these sections violated by Haley was to prevent acts contrary to public welfare and morals. There is no evidence showing that appellant Haley's acts were designed to accomplish illegal purposes, in fact the department's agent testified that 'I would say it was more ignorance on his part than anything else.' In Stoumen v. Reilly, 37 Cal.2d 713 at page 717, 234 P.2d 969 at page 971, the Supreme Court stated, 'The board's discretion under section 22, however, is not absolute but must be exercised in accordance with the law, and the provision that it may revoke a license 'for good cause' necessarily implies that its decision should be based on sufficient evidence and that it should not act arbitrarily in determining what is contrary to public welfare or morals.'
Appellant Haley, termining the violations 'technical' and the penalty 'extreme' blatantly asks 'Can a department of state government act arbitrarily, unreasonably and dictatorially with impunity?'
Appellant board urges 'The penalty of revocation in the present case is so disproportionate to the offenses found as to constitute an abuse of discretion as a matter of law.' (Apparently predicating abuse of discretion above the level of the trial and in the determination of the penalty alone.)
These challenges of abuse of discretion incur consideration of some of the facets of the total matter including: (a) The Nature of the License (A.B.C.)
'Therre is no inherent right in a citizen to thus sell intoxicating liquors by retail. It is not a privilege of a citizen of the state or of a citizen of the United States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils.' Jacques, Inc. v. State Bd. of Equalization, supra, 155 Cal.App.2d 448, 462, 318 P.2d 6.16.
A license is 'but a permit to do what would otherwise be unlawful.' Moore v. State Board of Equalization, supra, 76 Cal.App.2d 758, 764, 174 P.2d 323, 327. (b) Public Morals or Welfare.
It is not difficult to extract from the neat language of the relevant enactments which provide the source of the powers in dispute, the pure intent, scope, design and spirit of the Alcoholic Beverage Control structure.
The isolated word 'Control' would import that all segments subject to control ought to be exposed to the arm of surveillance, regulation and discipline, perhaps better termed 'actual control.'
All premises under license, all owners of a licensed establishment and all licensees ought to be exposed to control and remain within the area of control in order that the field occupied by control be kept in a manner compatible with public welfare and morals.
The identity of true licensees (owners) ought to be exposed in order to fully delineate the full area of responsibility and to truly broaden the field wherein the control is to be exerted. It would seem axiomatic that the department ought to have complete knowledge of this field of control. Full and complete compliance with law and rigid enforcement of law relating to licensees and premises as well as all regulatory or penal laws is vital to public morals and welfare, else the body of the law might atrophy, wither and by indifference become a sterile thing.
Appellant Haley was found in violation of the quoted sections of the Business and Professions Code.
Haley's partner, Mendoza, was in constant violation of Article XX, section 22 of the Constitution, viz.: 'It shall be unlawful for any person other than a licensee of said department to * * * or sell alcoholic beverages in this State,' and sections 23301 and 23355, supra, comprising a continuing misdemeanor (§ 23301 provides, 'Any person violating section 23300 is guilty of a misdemeanor'). Thus Haley from 1943 and for upwards of twelve years became and remained the means or implement of a continuing violation of law by Mendoza if not an aider and abettor therein, by providing a place of cloister and refuge wherein to enjoy the benefits of the premises as well as the benefits of a true owner, secure from control.
It hardly follows that such scoffing at laws fails to embarrass public morals or welfare.
(c) The precise language of Article XX, section 22 of the Constitution, supra, speaks thus 'contrary to public welfare or morals'. (Emphasis ours.) It is not conduct 'dangerous,' 'injurious,' 'damaging,' or 'deleterious' upon which the Constitution frowns, but rather 'contrary,' ('opposed,' 'antagonistic,' 'wayward,' 'repugnant' or 'incompatible').
Appellant Haley's contention that the revocation was based in part on a violation neither alleged, proved nor found as a fact stands without merit. The department adopted the decision of the hearing officer that grounds for revocation were established under the provisions of section 24200, subdivisions (a), (b) and (c) of the Alcoholic Beverage Control Act (Bux. & Prof. Code, § 24200, subd. (c)) that a ground for suspension is 'The misrepresentation of a material fact by any applicant in obtaining any license.' It is argued that this violation was not alleged or proved nor was there a finding made.
The accusation charged that Haley, the licensee, was not the true and sole owner of the business in violation of sections 23300, 23355, 23396, 23951, 23953, 24040 and 24200. Haley cites Greenblatt v. Munro, 161 Cal.App.2d 596, 326 P.2d 929, 934, but that case would not seem applicable. There the appellant was found guilty of violating Rule 143 and section 303a, Penal Code. The appellant court held that '* * * because of lack of charge and of findings there could be under no circumstances of the case a violation of section 303a.' The accusation in the Greenblatt case apparently did not even mention section 303a. Neither appellant nor his employee were charged with its violation. In addition section 303a does not deal with the license of a place of business and it is doubtful whether an employee could 'loiter.'
In the instant case, the sections violated were set out in the accusation and it was found that the business was in fact a partnership. It appears that a misrepresentation in the renewal applications was proved and a basis for disciplinary action under section 24200(c) existed.
Appellant did not raise this issue before either the Appeals Board or the trial court. It is a general rule that questions not raised in the trial court will not be considered on appeal. Greenblatt v. Munro, supra, 161 Cal.App.2d 596, 326 P.2d 929, citing 3 Cal.Jur.2d, § 140, p. 604. In addition a party may not make a perfunctory showing before an administrative agency with the expectation of making a more complete showing before the courts. Dare v. Bd. of Medical Examiners, 21 Cal.2d 790, 799, 136 P.2d 304; Greenblatt v. Munro, supra. Since it would seem that appellant Haley was adequately apprised of his alleged violations, the evidence shows that his partner's name was never included on the license, and the department found that the sections requiring both partners' names were violated, there is no occasion for this court to make an exception to the above rules.
Appellant Haley also contends that the department was estopped to take disciplinary action against him. This contention is based on the testimony of Haley and Mendoza that a person in the then Board of Equalization office advised them that it was unnecessary to put both of their names on the license. There was no evidence as to the identity of this advisor or whether he was advised of the facts, nor was it even established that he was an employee of the department's predecessor.
Even if this testimony was accepted as true, which it need not be, the requisites for an estoppel are not present. One requisite of estoppel is that the person to be estopped must be apprised of the facts. 18 Cal.Jur.2d § 5, p. 406. At any rate, the principles of equitable estoppel cannot be applied to deprive the public of the protection of a statute because of the mistaken action on the part of public officials. Jacques, Inc. v. State Bd. of Equalization, supra, 155 Cal.App.2d 448, at page 461, 318 P.2d 6, at page 15: 'Hence statements of policy, or administrative opinions interpreting laws or regulations, will not prevent the agency from taking subsequent action inconsistent therewith' and again on page 462 of 155 Cal.App.2d, at page 15 of 318 P.2d: 'The general rule is that a governmental agency may not be prevented from taking action by its past conduct where the public welfare is involved, as in the present case.' Also citing San Diego County v. California Water & Tel. Co., 30 Cal.2d 817, 186 P.2d 124, 130, 175 A.L.R. 747, as holding 'It is clear, however, that neither the doctrine of estoppel nor any other equitable principle may be invoked against a governmental body where it would operate to defeat the effective operation of a policy adopted to protect the public.'
Certainty is the mother of repose--the law seeks certainty. Article XX, section 22 of the Constitution and statutes germane with certainty vest the discretion to determine the penalty squarely and solely in the department, in words no less clear than the following: 'The department shall have the power, in its discretion, to deny, suspend or revoke any specific alcoholic beverage license if it shall determine for good cause that the granting or continuance of such license would be contrary to public welfare or morals * * *'.
There is no suggestion, however slight, in either to vest the same in the board. To recognize such power in the Board would purport to embarrass, diminish and devitalize the power given wholly to the department, something little less than derogation under the naked mantle of interpretation.
To limit the discretion of the department in determining penalty by according to the board a 'virtual' control over the penalty is to equate the powers of each, with violence to the Constitution which divided the powers between each.
After a consideration of all of the facts and circumstances in the light of the whole record and the governing enactments, we are unable to feel an abiding conviction that the department exceeded or abused its given discretion, or that it imposed a penalty lying beyond its power to impose.
The judgment granting the writ of mandamus is affirmed.
KAUFMAN, P. J., and DRAPER, J., concur. --------------- * Opinion vacated 341 P.2d 296.