Opinion
Petitioner, McFaddin San Diego 1130, Inc., doing business as Confetti (Confetti), seeks a writ of review after the Alcoholic Beverage Control Appeals Board (the Board) upheld the Department of Alcoholic Beverage Control’s (the Department) suspension of its liquor license under Business and Professions Code section 24200, subdivision (a).1 The Department in its charging accusation alleged Confetti permitted or suffered its premises to be used in a manner which created conditions contrary to the public welfare and morals through permitting specified cocaine sales. Thus we can affirm the Department’s decision only if the facts support a determination Confetti “permitted or suffered” the drug transactions to be carried out on its premises.2 As more fully discussed below, the facts as found by the Department (i.e., Confetti did not know of the drug transactions and further had taken extensive preventive measures) do not support such a determination. Accordingly, we grant the petition.3
*1388Factual and Procedural Background4
Confetti is a large (7,500 square feet), popular San Diego disco which serves an average of 650 patrons nightly. On weekends there are as many as 1,500 patrons generally ranging from 21 to 36 years of age. It has three bars at three different levels. In February 1986 Confetti employed 90 people.
From January 31, 1986, until February 21, 1986, the San Diego Police Department conducted an undercover operation. Three female undercover officers on an almost daily basis posed as Confetti patrons in an effort to buy narcotics from Confetti employees or patrons. On six occasions the officers bought small amounts of cocaine from four different patrons. At the completion of the undercover operation, the police raided Confetti, arrested certain patrons and searched the Confetti premises and employees. They found no controlled substances.
The Department filed the underlying accusation alleging Confetti through its agents and employees permitted or suffered its premises to be used in a manner which created conditions contrary to the public welfare and morals in violation of article XX, section 22,5 of the California Constitution and section 24200(a) (i.e., unknown employees permitted four patrons on six occasions to unlawfully sell or otherwise distribute cocaine and a bartender conspired to sell and furnish cocaine to the undercover officers.) As an additional ground for suspension or revocation of the license, the Department alleged Confetti permitted the violation of section 24200.5(a).6
*1389The administrative law judge found that Confetti through its agents and employees permitted its premises to be used in a manner that created conditions contrary to public welfare and morals in violation of article XX, section 22, and section 24200(a), basing her conclusion on specific findings four patrons had unlawfully sold or furnished cocaine to the undercover agents on six occasions. However, as to two of the transactions, the administrative law judge concluded it was not established Confetti employees had permitted the sales. As to another transaction, she found it was not established Confetti employees were involved in or aware of it. As to the remaining three transactions, she found it was not established any employee knew or reasonably should have known of the transactions.
The administrative law judge also found the bartender accused of conspiring to sell or furnish cocaine knew certain patrons were involved in illicit drug activity but it was not established his conduct constituted a conspiracy to sell or furnish controlled substances. Finally, she found Confetti diligently attempted to control narcotics trafficking on its premises and it was not established Confetti knowingly permitted the cocaine sales.
She determined grounds for the suspension or revocation of Confetti’s license existed under section 24200(a) based on the occurrence of the sales of the narcotics and further determined there were no grounds for revocation of the license under section 24200.5 because it was not established Confetti knowingly permitted the sales.
The Department adopted the proposed decision which decision Confetti appealed to the Board. After correcting what the Board characterized as “typographical error[s],” the Board affirmed the decision. These proceedings ensued.
Discussion
I
Does the operator of a nightclub “permit” the sale of narcotics on its premises if the operator diligently attempts to control such sales and the operator and its employees do not know, or should not reasonably know, of the specific drug transactions?
It is not necessary for a licensee to knowingly allow its premises to be used in a prohibited manner in order to be found to have permitted its use. *1390(See, e.g., Mercurio v. Dept. Alcoholic etc. Control (1956) 144 Cal.App.2d 626, 629-631 [301 P.2d 474].) Further, “The word ' “permit” implies no affirmative act. It involves no intent. It is mere passivity, abstaining from preventative action.’ ” (Harris v. Alcoholic Bev. Con. Appeals Bd. (1963) 212 Cal.App.2d 106, 123 [28 Cal.Rptr. 74], quoting Dorris v. McKamy (1919) 40 Cal.App. 267, 274 [180 P. 645], italics added.)
We have not found a case where a licensee’s preventive actions were sufficient to find the licensee did not permit its premises to be used in a manner contrary to the public welfare and morals.7 However, Harris, supra, implies that such a situation may exist if a licensee takes the requisite preventive actions. (See also Kershaw v. Dept. Alcoholic Bev. Control (1957) 155 Cal.App.2d 544, 548 [318 P.2d 494] [finding licensee permitted prohibited behavior at least in part because licensee took no measures to curb or prevent behavior]; but see Reilly v. Stroh (1984) 161 Cal.App.3d 47, 54 [207 Cal.Rptr. 250] [in cases where a licensee has knowledge of underage drinking and does not prevent it “ ‘abstaining from preventative action,’ . . . means abstaining from the action that in fact prevents, . . .”].) We conclude that where a licensee does not reasonably know of the specific drug transactions and further has taken all reasonable measures to prevent such transactions, the licensee does not “permit” the transactions.
II
We turn now to the Department’s decision to determine whether Confetti may be found to have permitted the cocaine sales as alleged in the accusation. The Department found Confetti through its employees “permitted” its premises to be used for the sale of illegal drugs. However, as to the specific transactions, the Department found the employees did not permit the sales or did not know, or should not reasonably have known, about the sales.
The Department also found Confetti had diligently attempted to control the trafficking “as much as possible” through “invoking stringent sanctions against the possession and usage of narcotics by its employees[8] and by *1391taking reasonable measures to control trafficking by its patrons through the posting of signs warning of citizen’s arrest and prosecution . . . .” The sign admitted into evidence which was posted in all the restrooms stated:
“REWARD
“FOR INFORMATION LEADING TO THE ARREST AND CONVICTION OF ANY PERSON OR PERSONS COMMITTING A FELONY BY SELLING, GIVING AWAY, USING, OR ATTEMPTING TO DO SO; OR TO INDUCE ANY OTHER PERSON OR PERSONS TO COMMIT THE ACT OF SELLING, GIVING OR USING ANY NARCOTICS, PILLS OR DANGEROUS DRUGS, INCLUDING MARIJUANA, OR ANY ILLEGAL DRUGS ON THIS PREMISES SHALL BE SUBJECT TO CITIZEN’S ARREST AND PROSECUTION TO THE LIMIT OF THE LAW!
“The Management”
The Department also found Confetti checked the restrooms every 10 minutes in its efforts to control narcotic trafficking.
Confetti’s efforts to prevent drug trafficking were extensive. Additionally, the Department found no fault with those efforts. The record even contains evidence Confetti’s efforts met with some success, no drugs being found on the premises or on the employees when police conducted the raid at the conclusion of its undercover operation.
Pursuant to section 23090.2,9 our review of the Department’s decision is limited to “whether the department proceeded illegally or exceeded its jurisdiction, whether relevant evidence was unavailable or improperly excluded, and whether the department’s findings supported its decision and were themselves supported by substantial evidence.” (Department of Alcoholic Bev. Control v. Alcoholic Bev. etc. Appeals Bd. (1981) 122 Cal.App.3d *1392549, 554 [175 Cal.Rptr. 342]; see also Kirby v. Alcoholic Bev. etc. Appeals Bd. (1972) 7 Cal.3d 433, 436 [102 Cal.Rptr. 857, 498 P.2d 1105].) Under the standard set forth in section I, ante, the Department’s findings that Confetti attempted to control narcotic trafficking as much as possible and that it did not permit or have knowledge of the specific drug transactions do not support a determination Confetti “permitted” its premises to be used for illegal drug transactions thereby creating conditions contrary to the public welfare and morals. The Department’s findings do not support a determination Confetti violated section 24200(a).
Ill
The Board recognized the inconsistencies in the Department’s decision and attempted to rectify them by correcting what it described as “typographical error[s].” In addition, the Board contends that it can be inferred the administrative law judge found Confetti’s drug prevention program wanting because she used the word “control” rather than “suppress” to describe Confetti’s efforts to curtail drug activity. The Board’s attempts are unsuccessful.
As to two of the drug transactions, the Department found it was not established that any employee permitted the sale. This finding was facially inconsistent with the Department’s general finding that Confetti through its employees permitted or suffered its premises to be used in all the sales. The Board held that the decision contained “typographical error[s]” and deemed the decision corrected by qualifying the word “permitted” in the two specific findings with the word “knowingly” (i.e., knowingly permitted.) Obviously more is involved here than typographical errors. But even if we assume the “errors” could be corrected, the “corrections” must still have evidentiary support. In light of our decision it is irrelevant whether the decision says the employees did not permit the sale or did not knowingly permit the sale. As discussed above, Confetti’s diligent efforts to control drug trafficking coupled with its lack of knowledge of the specific drug transactions is inconsistent with finding Confetti permitted the drug transactions.
From the Department’s choice of the word “control” rather than “suppress” in its finding that Confetti diligently attempted to control narcotics trafficking, the Board infers Confetti’s efforts were deficient. The Board additionally set forth how it considered Confetti’s program to be deficient. We consider the use of the word control rather than suppress to be a matter of semantics and find nothing in the Department’s decision that indicates the Department considered Confetti’s drug program to be *1393insufficient. Rather the decision states that Confetti is diligent in its efforts to control the trafficking, that it invokes stringent sanctions as to its employees, that it takes reasonable measures to control trafficking by its patrons. In short that it does as much as possible. Review by the Board of the Department’s decision is limited in the same manner as review by this court. (See Cal. Const., art. XX, § 22.) The Board may not infer for the Department that which is contrary to the decision.
The Board in its opinion argues the Department’s finding that a bartender knew certain patrons were involved in illicit drug activity supports the Department’s determination. However, the Department determined grounds for the suspension of the license existed because of the six specific drug transactions. There is no finding the bartender was involved in those transactions.
Disposition
The order of the Board and the decision of the Department are reversed.
Todd, J., and Huffman, J., concurred.
Respondents’ petition for review by the Supreme Court was denied June 7, 1989.