Town Council of Los Gatos v. State Board of Equalization

AGEE, J. pro tem.

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On October 16, 1953, Guilio A. Bocei (applicant) filed with the State Board of Equalization (respondent) an application for the transfer of a general on-sale liquor license to his restaurant which is located at

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42 Central Avenue, Los Gatos, California. From 1937 to 1942 this restaurant had had an on-sale distilled spirits license and an on-sale beer and wine license. In 1942, both licenses were transferred to a location near Saratoga, California. Thereafter the restaurant had no liquor license of any type until May 24, 1946, when an on-sale beer and wine license was issued to it.

On December 2, 1946, the town of Los Gatos adopted a comprehensive zoning ordinance (No. 276) effective January 1, 1947. The area in which the restaurant was located was zoned as a single family residential district, “R-l.” However, the ordinance provided: “The lawful use of a building existing at the time of the adoption of this ordinance may be continued, although such use does not conform to the regulations specified for the district in which such building is located; ...” Therefore, the restaurant was allowed to continue its existing operation.

When Bocci made his application to license the sale of distilled liquor on the premises, the town of Los Gatos filed a written protest with the board. The board nevertheless granted the application. The town then filed a petition in the superior court for a writ of mandate against the board to compel it to sustain the protest and deny the application. The petition was denied and the town of Los Gatos, hereinafter referred to as appellant, has appealed from the resulting judgment.

The only question on this appeal is whether the board had a right to grant Bocci’s application in view of the existing zoning restrictions in the district in which the premises are located.

Appellant’s position is that, while section 22 of article XX of the Constitution of the State of California, adopted November 6, 1934, provides that “The State Board of Equalization shall have the exclusive power to license the . . . sale of intoxicating liquors in this State,” the same section further provides that, “Until the Legislature shall otherwise provide, the privilege of keeping, buying, selling, serving and otherwise disposing of intoxicating liquors in bona fide hotels, restaurants, cafés, cafeterias, railroad dining or club cars, passenger ships, and other public eating places, . . . shall be licensed and