Bauer v. City of San Diego

In Bauer v. City of San Diego (1999) 75 Cal.App.4th 1281, plaintiff Bauer had long operated a liquor store. In 1995 the city enacted a zoning ordinance requiring use permits for operation of liquor stores, but under the zoning ordinance's "grandfather clause," Bauer was permitted to continue operating her existing store as a legal nonconforming use. (Id. at p. 1286.) The ordinance provided for such "grandfathering" if the liquor store was " 'operated continuously without substantial change in the mode or character of operation.' " (Id. at p. 1287.) The ordinance defined a " 'substantial change in mode or character of operation' " to include revocation or suspension of the outlet's California Department of Alcoholic Beverage Control (ABC) license " 'for a period of more than thirty (30) days for any reason . . . .' " (Ibid.) In effect, Bauer had been granted a permit by operation of law as long as she operated "continuously." (Ibid.) In 1997 the ABC suspended Bauer's liquor license for 60 days for selling alcohol to a minor. Without affording Bauer the opportunity to be heard on the issue of whether Bauer's license suspension constituted a break in the premises' continuous operation, the city deemed that such license suspension terminated automatically Bauer's grandfathered rights. The appellate court held Bauer was entitled to an evidentiary administrative hearing, including adjudication of the issue whether the 60-day suspension of her ABC liquor license constituted a substantial change in operation amounting to a break in the continuous operation of the business so as to terminate Bauer's grandfathered rights to continue operating as an existing legal nonconforming use, reversing the judgments below. In particular, the court pointed out, " 'Interference with the right to continue an established business is far more serious than the interference a property owner experiences when denied a conditional use permit in the first instance. Certainly, this right is sufficiently personal, vested and important to preclude its extinction by a nonjudicial body.' " (Id. at p. 1295.) In Bauer v. City of San Diego (1999) a liquor store owner was operating her business as a legal nonconforming use without a use permit under a "grandfather clause" in a zoning ordinance that otherwise would have required her to obtain a permit. (Bauer at p. 1286.) After her liquor license was suspended for 60 days, the City decided, without affording her the opportunity to be heard, that the suspension of her liquor license was a discontinuation of her business that eliminated her eligibility to continue operating under the grandfather clause. The City barred her from operating her business until she obtained a conditional use permit. (Bauer at p. 1286.) The City then denied her request for a conditional use permit. (Bauer at p. 1286.) Bauer sought a writ of mandate claiming that she had been entitled to a hearing on the issue of whether the suspension of her liquor license disqualified her from operating under the grandfather clause in the zoning ordinance. (Bauer at p. 1286.) The superior court denied her petition, but the Court of Appeal reversed. Bauer turned on the question of whether the liquor store operator's vested unconditional right to operate her business as a legal nonconforming use could be revoked without a hearing on the "mixed questions of law and fact" underlying the issue of "whether an existing legal nonconforming use should continue to be allowed under grandfathered provisions . . . ." ( Bauer at p. 1293.) The Court of Appeal held that the City could not resolve this mixed question of law and fact adversely to the liquor store owner without a hearing.