Review of a decision of the Alcoholic Beverage Control Appeals Board affirming a decision of the Department of Alcoholic Beverage Control to grant a conditional liquor license to the Barona Tribal Gaming Authority. Decision affirmed. (ABC No. AB8336).
The opinion of the court was delivered by: McINTYRE, J.
CERTIFIED FOR PUBLICATION
In this petition for writ of review the County of San Diego (County) and Robert Coffin (together Petitioners) challenge the assignment of Administrative Law Judge Rodolfo Echeverria (ALJ Echeverria) by the Department of Alcoholic Beverage Control (Department) to conduct the administrative hearing on their protests against a liquor license application by Barona Valley Ranch Resort & Casino (Barona).
We conclude that the Department did not proceed in a manner contrary to law or in excess of its jurisdiction when it directed ALJ Echeverria, who is not a judge with the Office of Administrative Hearings, to hear and decide the protests at issue in this case because Business and Professions Code sectioná24210 authorized the Department to employ its own administrative law judges for the purpose of conducting all hearings under the Alcoholic Beverage Control Act. (Bus. & Prof. Code, §á23000; undesignated statutory references are to this code.) We also conclude that ALJ Echeverria properly denied Coffin's peremptory challenge, and was not required to unilaterally disqualify himself from hearing the matter.
FACTUAL AND PROCEDURAL BACKGROUND
In 2004, ALJ Echeverria issued a proposed decision that granted Barona a conditional liquor license. The Department adopted the decision as its own, and the Alcoholic Beverages Commission Appeals Board (Board) affirmed the decision. We annulled the decision granting the conditional liquor license because ALJ Echeverria applied the incorrect burden of proof. (Coffin v. Alcoholic Beverage Control Appeals Bd. (2006) 139 Cal.App.4th 471, 473.) On remand, the Department sent the matter back to ALJ Echeverria with instructions for him to "prepare a proposed decision for the matter, with or without additional evidentiary proceedings as he, in his exclusive discretion, deem[ed] necessary." Coffin filed a peremptory challenge seeking ALJ Echeverria's disqualification on the ground he had heard the matter prior to the annulment of the initial decision and that he "is prejudiced against the protesting parties represented by the undersigned and against the undersigned so that they cannot have a fair and impartial trial, hearing, or other proceeding with ALJ Echeverria."
ALJ Echeverria denied the peremptory challenge on the ground Coffin had failed to establish a basis for disqualification. After a hearing, ALJ Echeverria issued a proposed decision that again granted Barona a conditional liquor license. The Department adopted the proposed decision without changes. Petitioners and other protestants appealed the decision to the Board on various grounds, including whether ALJ Echeverria should have disqualified himself from rehearing the matter. Among other things, the County argued that ALJ Echeverria "was not qualified to hear the matter" because he was not "on the staff of the Office of Administrative Hearings" as required by sectioná24016 and Government Code sectioná11502.
The Board affirmed the Department's decision granting the conditional liquor license. Petitioners sought review of the Board's order on the ground the Department proceeded without or in excess of its jurisdiction and failed to proceed in a manner required by law because ALJ Echeverria improperly denied the peremptory challenge and did not have jurisdiction to decide the protests. We issued a writ of review of the Board's order.
The Department has discretion to deny, suspend or revoke a liquor license for good cause if it determines that permitting a party to hold a license would be contrary to public welfare. (Cal. Const. art. XX, §á22, subd. (d).) Our review of the Department's decision is limited to whether: (1) the Department proceeded without or in excess of its jurisdiction; (2) in a matter provided by law; (3) its decision is supported by the findings; (4) its findings are supported by substantial evidence; or (5) evidence was improperly excluded. (§á23090.2.)
Petitioners filed a protest to Barona's proposed liquor license as allowed by Division 9, Chapter 6 of the Business and Professions Code. Accordingly, they reason that any proceeding on the protest was governed by section 24016 in Article 3 of Chapter 6 that provides for hearings conducted in accordance with Government Code section 11500 et seq., including the mandate that hearings be conducted by an administrative law judge on the staff of the Office of Administrative Hearings. (Gov. Code, §á11502, subd. (a).) The Department, however, appointed ALJ Echeverria to hear the protest. ALJ Echeverria was not on the staff of the Office of Administrative Hearings; rather, he was a Department administrative law judge. Because the Department failed to appoint an administrative law judge from the ...