KREMER, P.J.

Plaintiff Gayle Bauer appeals a judgment denying her petition for writ of administrative mandate against defendants City of San Diego, San Diego City Council, Board of Zoning Appeals, and Developmental Services Department (together City). Bauer contends the court should have found that the City's procedure in deeming the 60-day suspension of Bauer's California Department of Alcoholic Beverage Control (ABC) license to terminate automatically Bauer's "grandfathered" existing legal nonconforming use of her property as a liquor store under Business and Professions Code section 23790 violated Bauer's due process rights to notice and the opportunity to be heard. Concluding Bauer was entitled to the opportunity to be heard on the issue of the termination of her grandfathered rights, we reverse the judgment and direct the superior court to grant a writ mandating the City to hold a new administrative hearing including adjudication of such termination issue before applying its zoning ordinance to require Bauer to obtain a conditional use permit (CUP) to resume selling alcoholic beverages at her business.

I INTRODUCTION

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 whether Bauer's license suspension constituted a substantial change in the mode or character of the operation of Hilltop Liquor amounting to a break in the premises' continuous operation, the City deemed such license suspension to terminate automatically Bauer's grandfathered rights to continue operating Hilltop Liquor as an existing legal nonconforming use. Based upon its theory that Bauer's grandfathered rights had automatically terminated, the City told Bauer she must obtain a CUP before resuming sales of alcoholic beverages upon reinstatement of her ABC license. Hence, consistent with the City's directives, Bauer requested a CUP from the City. However, after an administrative hearing limited to the issue of Bauer's entitlement to a CUP, the City denied Bauer's CUP request. Ultimately, the superior court entered judgment denying Bauer's petition for administrative mandate.

Concluding 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 the mode or character of Hilltop Liquor's operation amounting to a break in the continuous operation of the business so as to terminate Bauer's grandfathered rights to continue operating Hilltop Liquor as an existing legal nonconforming use, we reverse the judgment.

II FACTS

Bauer operates Hilltop Liquor on property she owns at 2499 Market Street in San Diego. Sales of alcoholic beverages comprise 60 to 65 percent of Bauer's income.

Effective November 20, 1995, section 101.0515 of the San Diego Municipal Code (the 1995 Zoning Ordinance) made it unlawful for an "Alcoholic Beverage Outlet" to sell alcoholic beverages without first obtaining a CUP from the City. ( Id. at subd. (D).) However, the 1995 Zoning Ordinance permits an Alcoholic Beverage Outlet in existence on November 20, 1995, to continue to operate if the outlet "retains the same type of retail liquor license within a license classification" and "is operated continuously without substantial change in the mode or character of operation." ( Id. at subd. (P)(1)-(2).) The 1995 Zoning Ordinance defines "substantial change in mode or character of operation" to include revocation or suspension of the outlet's ABC license "for a period of more than thirty (30) days for any reason. . . ." ( Id. at subd. (P)(2)(c).)

Hilltop Liquor is located in an area with an over concentration of alcoholic beverage licenses and/or a higher than average crime rate as defined under section 23958.4. Five liquor licenses exist in Hilltop Liquor's census tract although section 23958.4 allows only four. Further, Hilltop Liquor is situated within 100 feet of a residential zone boundary. However, since Hilltop Liquor was in operation as an ABC-licensed outlet on November 20, 1995, Bauer continued to operate the business without a CUP as a grandfathered existing legal nonconforming use under section 23790 and subdivision (P) of the 1995 Zoning Ordinance.

In October 1996 a Hilltop Liquor employee sold beer to a 19-year-old police decoy. On February 4, 1997, since such October 1996 incident was not Bauer's first license violation, the ABC suspended Bauer's liquor license for 60 days until April 5, 1997. During the suspension period, Hilltop Liquor remained open and sold items other than alcoholic beverages. However, on March 26, 1997, the City notified Bauer that because the ABC had suspended her liquor license for 60 days, she was required to obtain a CUP before resuming alcohol sales. Hence, on May 7, 1997, Bauer applied to the City for a CUP to resume alcohol sales at Hilltop Liquor. On May 9, 1997, noting "[t]his is a new enforcement process, and because of that, there was some delay in informing you of the requirement," the City permitted Bauer to "sell alcoholic beverages during the processing of your Conditional Use Permit application provided ABC reinstates the license." Hence, after the ABC reinstated Bauer's liquor license following the end of the suspension period, Hilltop Liquor resumed selling alcoholic beverages with the City's consent pending administrative determination of Bauer's request for a CUP.

III ADMINISTRATIVE PROCEEDINGS

On August 27, 1997, the City's Board of Zoning Appeals (BZA) held a hearing to consider Bauer's appeal of the hearing officer's denial of her request for a CUP. The City's administrative process did not present the BZA with the option of determining whether Hilltop Liquor had operated continuously without substantial change in the mode or character of its operation. After hearing, the BZA denied Bauer's appeal of the hearing officer's denial of her request for a CUP.

In September 1997 Bauer appealed to the City Council the BZA's decision denying her request for a CUP. Bauer's written appeal to the City Council included an argument that section 23790 prohibited the City from applying the 1995 Zoning Ordinance retroactively to affect her assertedly vested property rights in her existing business. However, on December 2, 1997, the City Council declined to hear Bauer's appeal of the BZA's decision denying her request for a CUP. The City notified Bauer that the City Council's action denying her request for an appeal hearing meant that the BZA's decision was "the final discretionary action" taken by the City on Bauer's request for a CUP and that Bauer had "exhausted" her "appeal opportunities with the City. . . ."

IV SUPERIOR COURT PROCEEDINGS

On December 22, 1997, in accord with the parties' stipulation, the superior court preliminarily enjoined the City from taking any action to prevent Bauer from using her business premises as a nonconforming existing alcoholic beverage outlet.

On June 26, 1998, Bauer's petition for writ of administrative mandate came on for hearing in the superior court. After hearing, the court denied Bauer's petition. The court found: The suspension of Bauer's liquor license for 60 days constituted a substantial change in the mode or operation of the

business; the City's requirement of a CUP from Bauer was consistent with subdivision (P)(2)(c) of the 1995 Zoning Ordinance and authorized under section 23790; there was no preemption or improper retroactive application of zoning laws when the City required a CUP; and substantial evidence supported the City's denial of Bauer's CUP application.

Bauer appeals the judgment denying her petition for a writ of administrative mandate.

V DISCUSSION

This case presents the question whether the City was required to afford Bauer the opportunity to be heard before deeming her 60-day ABC liquor license suspension to constitute a substantial change in the mode or character of Hilltop Liquor's operation amounting to a break in the premises' continuous operation so as to terminate automatically Bauer's grandfathered rights to resume operating her liquor sales business as an existing legal nonconforming use under section 23790 upon reinstatement of her liquor license after the suspension period. As acknowledged by the City, pure questions of law are reviewed de novo by the appellate court. ( Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1443.)

A Parties' Contentions

The City contends that upon the 60-day suspension of Bauer's ABC license, Hilltop Liquor's status as a legal nonconforming use ceased to exist, the business automatically came under the 1995 Zoning Ordinance's CUP requirement, and the business could not resume alcoholic beverage sales without obtaining a CUP from the City. The City also contends that even if the issue whether Bauer's license suspension terminated her grandfathered rights should have been adjudicated during its administrative hearing process, the judgment should nevertheless be affirmed because the administrative record assertedly contained sufficient evidence to support a determination that Bauer lost her grandfathered rights. However, because of the City's flawed process of deeming Bauer's grandfathered rights automatically terminated without first affording Bauer the opportunity to be heard on such issue, we conclude the judgment should be reversed with directions to the superior court to grant a writ mandating the City to hold a new administrative hearing including adjudication of the grandfathered rights termination issue before applying its 1995 Zoning Ordinance to require Bauer to obtain a CUP to resume selling alcoholic beverages at her business.

B Bauer Has Not Waived Appeal of Issue Whether Her Grandfathered Rights Were Properly Deemed Terminated

Preliminarily, the City contends Bauer has waived any right to challenge by this appeal the City's theory that she lost her grandfathered rights upon suffering the 60-day suspension of her ABC license. Specifically, the City contends Bauer implicitly waived any right to raise such issue on appeal because she assertedly never raised that issue before the BZA. However, as noted, the City expressly acknowledges that its administrative procedures did not permit the BZA to determine whether Bauer's grandfathered rights had been lost. As also noted, the City asserts the BZA lacked authority to waive the 1995 Zoning Ordinance's CUP requirement once Hilltop Liquor automatically lost its status as a legal nonconforming use upon the 60-day suspension of its ABC license. Hence, in light of the City's administrative process, it would have been futile for Bauer to raise before the BZA the issue whether her grandfathered rights had been terminated. Further, the record indicates that in seeking relief at the highest administrative level, to wit, the City Council, Bauer specifically argued that section 23790 prohibited the City from applying its 1995 Zoning Ordinance retroactively to affect her assertedly vested property rights in her existing business but the City Council declined to hear Bauer's appeal.

The City also contends that in the superior court Bauer waived both explicitly and implicitly any challenge to the loss of Hilltop Liquor's status as an existing legal nonconforming use. Specifically, the City notes that in replying to its opposition to her mandate petition in the superior court, Bauer submitted a memorandum stating that in seeking the writ she was "not asserting that the City lacks authority to require that she obtain a conditional use permit, or that it lacks authority to impose reasonable conditions upon the operation of her business." However, although the City characterizes such statement as an admission by Bauer that Hilltop Liquor's status as an existing legal nonconforming use had properly been deemed lost because of the 60-day ABC license suspension, the record indicates Bauer made such statement only in reply to a statute of limitations argument not addressed by the City in responding to this appeal. Further, when read in context, such statement simply reflects Bauer's recognition that the City may have the authority to regulate reasonably, but not terminate, an existing land use, and did not amount to a waiver of the issue whether Hilltop Liquor's status as an existing legal nonconforming use was terminated improperly by the City's retroactive application of the 1995 Zoning Ordinance. Moreover, at the superior court hearing, the City's counsel stated, "the threshold issue in this entire case, from the City's perspective, is whether or not petitioners had a legal nonconforming right after the 60-day suspension." Finally, as the City acknowledges, Bauer's brief in support of her petition for writ of mandate in the superior court expressly raised the issue whether the City retroactively applied the 1995 Zoning Ordinance's CUP requirement in violation of section 23790.

In sum, on this record Bauer has not waived her right to challenge by this appeal the City's theory that Bauer automatically lost her grandfathered rights upon suffering the 60-day suspension of her ABC license.

In essence, section 23790 "prohibits" the ABC from issuing any liquor licenses whose exercise would be contrary to a local zoning ordinance except in cases of existing legal nonconforming uses with grandfathered rights. ( City of Oakland v. Superior Court, supra, 45 Cal.App.4th at p. 752.) The statute also "specifies the conditions under which a licensee may retain his or her `grandfathered' status as a `deemed approved,' but nonconforming use for the particular geographic area." ( Korean American Legal Advocacy Foundation v. City of Los Angeles, supra, 23 Cal.App.4th at p. 397.) The "plain language" of section 23790 "exempts existing nonconforming uses from compliance with later enacted zoning ordinances . . . when the business has continuously operated without substantial change in either mode or character of operation." ( Suzuki v. City of Los Angeles, supra, 44 Cal.App.4th at p. 277.)

Generally, the determination whether an existing legal nonconforming use should continue to be allowed under grandfathered provisions involves mixed questions of law and fact. (Cf. Hansen Brothers Enterprises, Inc. v. Board of Supervisors, supra, 12 Cal.4th at p. 552.) "When continuance of an existing use is permitted by a zoning ordinance, the continued nonconforming use must be similar to the use existing at the time the zoning ordinance became effective." ( Ibid.) "[I]n determining whether the nonconforming use was the same before and after the passage of the zoning ordinance, each case must stand on its own facts." ( Ibid.)

(b) Procedural Rights of Grandfathered Liquor Licensees

In Goat Hill Tavern v. City of Costa Mesa, supra, 6 Cal.App.4th 1519, the appellate court concluded the rights affected by Costa Mesa's refusal to renew Goat Hill Tavern's CUP were "sufficiently vested and important to preclude their extinction by a nonjudicial body." ( Id. at p. 1527.) The appellate court observed: "`When an administrative decision affects a right which has been legitimately acquired or is otherwise vested, and when that right is of a fundamental nature from the standpoint of its economic aspect or its effect . . . in human terms and the importance . . . to the individual in the life situation, then a full and independent judicial review of that decision is indicated because [t]he abrogation of the right is too important to the individual to relegate it to exclusive administrative extinction.' [Citation.] [¶] `Whether an administrative decision substantially affects a fundamental vested right must be decided on a case-by-case basis. . . . In deciding whether a right is "fundamental" and "vested," the issue in each case is whether the "`affected right is deemed to be of sufficient significance to preclude its extinction or abridgment by a body lacking judicial power.'"'" ( Id. at p. 1526, italics in original.) The appellate court also observed: "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. 1529.) Similarly, in Malibu Mountains Recreation, Inc. v. County of Los Angeles, supra, 67 Cal.App.4th 359, the appellate court concluded that "the grant of a CUP with subsequent reliance by the permittee creates a fundamental vested right that subjects a revocation to judicial review under the independent judgment test." ( Id. at p. 368.)

2 Analysis

Here, Bauer's ABC license was reinstated after completion of the 60-day suspension period. However, relying on its 1995 Zoning Ordinance and without affording Bauer the opportunity to be heard, the City simply deemed that "a substantial change in mode or character of operation" of Hilltop Liquor occurred automatically upon suspension of Bauer's ABC license for more than 30 days so that Bauer lost all grandfathered rights to continue operating her existing business as a legal nonconforming use under section 23790. As discussed, the City could not properly deem Bauer's grandfathered rights automatically terminated without providing Bauer with an opportunity to be heard. ( Korean American Legal Advocacy Foundation v. City of Los Angeles, supra, 23 Cal.App.4th at pp. 391-393, fn. 5; cf. Malibu Mountains Recreation, Inc. v. County of Los Angeles, supra, 67 Cal.App.4th at p. 368; Goat Hill Tavern v. City of Costa Mesa, supra, 6 Cal.App.4th at pp. 1526-1529.) Hence, before applying its 1995 Zoning Ordinance to require Bauer to obtain a CUP to resume selling alcoholic beverages at Hilltop Liquor, Bauer was entitled to an administrative hearing including an adjudication of the issue of the termination of her grandfathered rights.

As noted, the City has acknowledged that its administrative procedures did not require its administrative hearing bodies to make a finding on the issue whether Hilltop Liquor had operated continuously without substantial change in the mode or character of its operation. The City has also maintained that its administrative bodies lacked authority to waive the 1995 Zoning Ordinance's CUP requirement once Hilltop Liquor assertedly lost its status as an existing legal nonconforming use automatically upon suspension of Bauer's business's ABC license for more than 30 days. Nevertheless, the City contends that even if the issue whether Bauer had lost her grandfathered rights should have been adjudicated during its administrative hearing process, the judgment should nonetheless be affirmed because the administrative record assertedly contained sufficient evidence to support a finding that the 60-day suspension of Bauer's liquor license constituted a break in continuous operations terminating her grandfathered rights. However, on this record the City's contention must be rejected. Although the superior court effectively found that suspension of Bauer's ABC license terminated Bauer's grandfathered rights under section 23790 and the 1995 Zoning Ordinance, such finding was based solely on the evidentiary record of administrative proceedings that were limited to the issue whether Bauer's business should receive a CUP and where termination of her grandfathered rights was not at issue or otherwise adjudicated but instead taken as a given by the administrative hearing bodies. Thus, since Bauer did not receive a full evidentiary hearing on the issue of termination of her grandfathered rights either at the administrative level or in the superior court's later review of the limited administrative record, the judgment must be reversed.

D Conclusion

VI DISPOSITION

We concur:

McINTYRE, J. AMOS, J.