Marcucci v. Board of Equalization

VAN DYKE, P. J.

This is an appeal from a judgment of the Superior Court of Sonoma County, denying a writ of mandate in a proceeding brought to review a final order of respondent board. That board ordered the on-sale liquor license of appellant suspended for 15 days for violation of section 24200, subdivision (b), of the Business and Professions Code, in that she permitted a minor to consume beer upon her licensed premises.

The cause was heard in the trial court upon the record before the respondent board, which record includes a hearing at which evidence was taken as follows: William Hunt, a state liquor control officer, testified that while on a routine

[607]

patrol in the Sonoma Valley he and other officers went into the licensed premises. A Halloween party was being held there. The officers went into the barroom portion of the premises and observed a minor sitting at the bar. They stood behind him and watched him consume a bottle of beer. The bartender then served him with another bottle. The minor poured beer from that bottle into his glass and Officer Dickson reached over and seized the glass and bottle. The officers talked to the bartender who said he had not served the beer to the minor but to a Mr. Norbaum who, with his wife, the minor and the Norbaums’ son, was in the premises. Norbaum and the minor were sitting at the bar side by side when the officers entered. The officers charged the minor with consuming alcoholic beverage in the premises, charged the bartender with furnishing liquor to the minor and made a like charge against Norbaum. After trial the minor was convicted, fined $50, and given a year’s probation; Norbaum was convicted and fined $50; the bartender was acquitted. On cross-examination Hunt further testified that the minor was consuming a glass of beer when the officers walked in and was then served with another bottle of beer; that he saw the minor pour beer from the bottle into a glass, which he seized; that this bottle was directly behind an empty bottle sitting in front of the minor, so that for a short period of time the minor was seated at the bar with two beer bottles in front of him, one directly behind the other; that the bartender placed the second bottle in front of the minor.

The minor testified as follows: That he was not sitting at the bar, but was standing between Mr. and Mrs. Norbaum; that he knew the bartender, but had no talk with him that night; that the bartender did not serve him anything, but that he drank beer on the premises which he picked up off the bar; that he had one or two bottles; that he picked up the last one from the counter; that the beer had been ordered for Norbaum and his wife and was put on the bar by the bartender. On cross-examination he said he would not have asked for a drink at the bar; that the bar was busy; that he thought the bartender had not seen Mm and he thought he did not see him drink, because if he had the bartender would have ordered Mm out; that he did not buy any beer; that he picked up a bottle and drank a part of it while the bartender was back of the bar attending to customers other than the Norbaums; that he had tried to hold the beer so nobody would know he had it; that he kept it in between the two grownups.