Opinion
As Amended on Denial of Rehearing June 6, 1973.
Hearing Granted July 6, 1973.
Opinion on pages 112-115 omitted.
HEARING GRANTED
Evelle J. Younger, Atty. Gen., L. Stephen Porter and Charlton G. Holland, Deputy Attys. Gen., San Francisco, for petitioners.
Leo K. Gallant, Sacramento, for respondent Appeals Board.
Mark C. Peery, San Francisco, for real party in interest, Duarte.
J. Bruce Fratis, San Francisco, for real party in interest, Gourmet, Inc.
Robert Edmonson, San Francisco, for real party in interest, George A. and Rose V. Vallerga (Taffy's).
DRAPER, Presiding Justice.
The sole question presented upon these writs of review is whether Department of Alcoholic Beverage Control is authorized to impose license suspension or revocation upon a licensee who sells wine, as distinguished from distilled spirits, below fair trade price. The department found that the Vallergas (Taffy's) and Gourmet, Inc. (Jackson's Party Service) had each committed three such violations. It imposed license suspension for 10 days for the first violation, 30 days for the second, and revocation for the third. As to Duarte (Lawton Liquors), one such sale of wine and 10 of distilled spirits were made. He [107 Cal.Rptr. 714] was fined for each hard liquor violation, and a 10-day license suspension was imposed for the wine sale. All three licensees appealed to the A. B. C. Appeals Board, which held that the maximum penalty which could be imposed for wine sales is by way of fine. It therefore reversed the revocations and the suspensions. This writ proceeding followed. The appeals board affirmed the fines against Duarte for sales of hard liquor, and he does not here seek relief. Thus his case presents only the problem of suspension for one wine sale.
Until 1965, suspension or revocation was an entirely proper penalty for fair trade violation, whether in sale of wine of distilled spirits. In that year, the Legislature adopted a provision (Bus. & Prof.Code, § 24755.1) that only a fine could be imposed as the penalty for sale of distilled spirits below fair trade price. Section 24755.1 relates only to the penalties for violation of section 24755, which in turn relates only to sale of distilled spirits. Separate and distinct provisions (Ch. 11 of Div. 9) prescribe the fair trade regulations for wine. The enforcement section (§ 24880) originally permitted a 10-day suspension for the first violation, 30 days for the second, and revocation for the third. Significantly, section 24880 was not amended in 1965 when the penalty for sales of hard liquor was restricted. It was amended in 1970 to provide, but merely as an alternative to suspension or revocation, fine of $100 for the first offense, $250 for the second, and $500 for the third. This provision, however, carefully retained to the department the power to suspend for each of the first two offenses, and to revoke for the third.
Thus, on the face of the statute, suspension or revocation was barred as a penalty for fair trade violation in the sale of hard liquor, but permitted for like violation in selling wine. The appeals board took the view that the failure to limit the wine penalties was but a legislative oversight, which the board here rectified by applying the restrictive section 24755.1 to wine sales, as well as to the distilled spirits to which it is expressly limited. But an established rule of statutory construction is that failure to alter statutory language when the subject is before the Legislature indicates an intention that the Law remain unchanged except for the alteration actually made (Williams v. Industrial Acc. Com., 64 Cal.2d 618, 620, 51 Cal.Rptr. 277, 414 P.2d 405; Kusior v. Silver, 54 Cal.2d 603, 618, 7 Cal.Rptr. 129, 354 P.2d 657). Here, the Legislature indicated its intent to continue the penalties of suspension and revocation for wine sales by failing to amend section 24880 in 1965, when it added section 24755.1 to restrict hard liquor penalties. The intent was strongly reaffirmed when, in 1970, the Legislature modified the section (24880) dealing with wines, but specifically retained the authorization for suspension or revocation. The intent is made unmistakably clear by the Legislature's 1970 rejection of a bill (A.B. 1556) which would have extended the distilled spirits penalty limitation to sales of wine.
In 1972, the Legislature again amended section 24755.2 to return to the department power to suspend or revoke for fair trade violations in sale of distilled spirits. (Stats.1972, ch. 1008.)
Difference in penalty treatment of fair trade violation in sale of wine and that of hard liquor is not a denial of equal protection (see Joseph's of California v. Alcoholic Bev. etc. Appeals Bd., 19 Cal.App.3d 785, 789, 97 Cal.Rptr. 183 [hg. den.]), and no contention to the contrary is here made. Our sole task is to construe the statutes. These clearly make the distinction, and to ignore them would be to arrogate to the courts and to the board a power which is vested only in the Legislature.
Insofar as the appeals board decisions reverse the department's imposition of penalties for wine sales, they are annulled, and those penalties are reinstated.
BROWN, HAROLD C. and CALDECOTT, JJ., concur.