Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Board
7 Cal. App. 5th 628
| Cal. Ct. App. | 2017Background
- CVS Pharmacy (Store 9174) sold a 24-oz beer to an 18‑year‑old decoy (Joseph Childers) during a Department decoy operation; Childers presented his California driver license showing DOB and an "AGE 21 IN 2015" stripe.
- The clerk looked at the ID, attempted to scan it, looked again, and said, "I would not have guessed it, you must get asked a lot," which the administrative law judge found to be a statement (not a question).
- Childers remained silent (believing the remark was casual conversation and ambiguous as to age) and the sale was completed.
- The Department suspended CVS’s off‑sale general license for 15 days; CVS appealed to the Alcoholic Beverage Control Appeals Board, which reversed based on Rule 141, reasoning the decoy should have clarified ambiguous remarks about age.
- The Department petitioned for writ of review to the Court of Appeal, which considered whether Rule 141 requires decoys to answer statements (not just questions) relating to age and whether substantial evidence supported the ALJ’s factual finding.
Issues
| Issue | Department (Petitioner) Argument | Appeals Board / CVS Argument | Held |
|---|---|---|---|
| Does Rule 141(b)(4) require a minor decoy to respond to a seller's statement (not a question) that may imply a mistake about age? | Rule 141 requires decoys to answer truthfully only questions about age; no duty to correct statements. | Rule 141 is ambiguous and fairness requires decoys to clarify any seller statement that could be construed as about age. | Rule 141 is unambiguous: decoys must answer questions about age only; no duty to respond to statements. |
| Was the ALJ’s factual finding that the clerk’s remark was a statement (not a question) supported by substantial evidence? | ALJ credibility finding is supported; decoy testimony showed he perceived the remark as casual/ambiguous and not a question. | Decoy testimony was ambiguous and could support viewing the remark as a question, so Appeals Board erred in deferring to ALJ. | Substantial evidence supports the ALJ’s finding; Appeals Board lacked power to overturn fact findings. |
| Can the Appeals Board judicially expand Rule 141’s defenses (impose a duty to speak) based on fairness? | No—Rule 141’s text prescribes specific safeguards; adding defenses would usurp rulemaking authority. | Fairness demands the additional obligation to avoid misleading silence. | Court rejects adding an unwritten duty; fairness does not justify judicially grafting exceptions into Rule 141. |
| Does a decoy’s silence, when ID is shown, constitute deceptive conduct that triggers Rule 141 defense? | Silence plus accurate ID is not deceptive; California law generally does not impose liability for silence alone. | Silence can be misleading and thus make the operation unfair. | Silence (with truthful ID) is not deceptive here; no Rule 141 defense. |
Key Cases Cited
- Provigo Corp. v. Alcoholic Beverage Control Appeals Bd., 7 Cal.4th 561 (1994) (upholding use of decoys and noting licensees can ask for ID to avoid liability)
- Yamaha Corp. of America v. State Bd. of Equalization, 19 Cal.4th 1 (1998) (deference to agency interpretations of their own regulations unless clearly erroneous)
- Acapulco Restaurants, Inc. v. Alcoholic Beverage Control Appeals Bd., 67 Cal.App.4th 575 (1998) (agency may not ignore or refuse to apply an express rule requirement; exceptions must be explicit)
- Rhode Island v. Innis, 446 U.S. 291 (1980) (framework for distinguishing express questioning from statements that are reasonably likely to elicit responses)