Dept. of Alcoholic Bev. Control v. Alcoholic Bev. Control Appeals
C083619
| Cal. Ct. App. | Dec 15, 2017Background
- An 18-year-old decoy (Christian) bought a can of Coors Light at CVS; clerk asked for DOB but not ID and completed the sale.
- After the sale, a peace officer took the decoy back inside; from about 10 feet away the decoy pointed out the clerk as the seller; he did not speak to her at that moment.
- The officer told the clerk she had sold alcohol to a minor while the decoy stood next to the officer; the clerk apologized and did not dispute the sale; the officer photographed the clerk with the decoy holding the beer.
- The Department suspended CVS’s license for 10 days for violating Bus. & Prof. Code §25658(a); the ALJ found Rule 141(b)(5)’s face-to-face identification requirement was met.
- The Alcoholic Beverage Control Appeals Board reversed, concluding the in-store identification from ~10 feet was not a face-to-face identification; the Department petitioned for writ of review.
- The Court of Appeal held the identification satisfied Rule 141(b)(5) under the totality of the circumstances and annulled the Appeals Board decision, remanding to reinstate the suspension.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the decoy made the face-to-face identification required by Cal. Code Regs., tit. 4, §141(b)(5) | Department: pointing out the clerk inside the store from ~10 feet, then standing next to her while the officer informed her, and photographing together satisfied face-to-face under the rule and its purpose | CVS: Acapulco requires strict, literal compliance; here the decoy identified the clerk to the officer (not to the clerk) and the clerk was not aware at the exact instant, so the identification was insufficient | Court: The identification met Rule 141(b)(5). Under the totality of circumstances (in-person pointing, proximity, officer informing clerk, no dispute, photo) the face-to-face requirement was satisfied; Appeals Board erred |
Key Cases Cited
- Acapulco Restaurants, Inc. v. Alcoholic Beverage Control Appeals Bd., 67 Cal.App.4th 575 (1998) (rule 141(b)(5) requires face-to-face ID; strict compliance required where no identification occurred)
- Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd., 109 Cal.App.4th 1687 (2003) (7-Eleven) (face-to-face identification may satisfy rule even if conducted outside premises or at short distance; context matters)
- Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd., 100 Cal.App.4th 1066 (2002) (Deleuze) (scope of judicial review of Appeals Board decisions limited; substantial-evidence standard)
- Provigo Corp. v. Alcoholic Beverage Control Appeals Bd., 7 Cal.4th 561 (1994) (upheld constitutionality of using minor decoys in enforcing sale-to-minors laws)