CHEVRON STATIONS, INC. v. Alcoholic Beverage Control Appeals Board

Following suspension of its license to sell beer and wine, Chevron Stations, Inc. (Chevron), petitions for review of an order of the Alcoholic Beverage Control Appeals Board (the Board) affirming the decision of the Department of Alcoholic Beverage Control (Department) under Business and Professions Code section 23090. Chevron contends its rights under the Administrative Procedure Act (Gov. Code, § 11340 et seq. (APA)) and the due process clauses of the federal and state Constitutions were violated by an ex parte communication from the Department’s prosecutor to the Department’s decision maker before a decision was made whether to adopt the proposed decision of the administrative law judge (ALJ).

We need not address the constitutional claim, because we shall conclude the APA was violated, pursuant to a recent California Supreme Court case, which held the APA is violated by the Department’s practice of having the Department’s prosecuting attorney send a “report of hearing” to the Department’s decision maker before a final decision is made. (Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2006) 40 Cal.4th 1 [ 50 Cal.Rptr.3d 585 , 145…