Maloney v. Department of Alcoholic Beverage Control

KAUFMAN, P. J.

This is an appeal by Edward M. Maloney, the licensee, from a judgment of the trial court denying his petition for a writ of mandate to set aside a decision of the Department of Alcoholic Beverage Control revoking his license.

In April 1953, appellant applied for and received a general on-sale liquor license for premises known as “Red Maloney’s”

[106]

in San Francisco. In April 1956, the department filed an accusation against the appellant charging him with violations of sections 25601 and 24200, subdivisions (a), (b) and (d) of the Alcoholic Beverage Control Act. The hearing officer found that the accusation was true, as the appellant had permitted gambling on the premises in violation of section 25601 and section 337a of the Penal Code, and the appellant and his employees had pleaded guilty to a public offense involving-moral turpitude, namely a violation of title 18, United States Code, section 371 [conspiracy to commit offense or to defraud United States], and title 26, sections 4401, 4411, and 7201 [attempt to evade or defeat any tax imposed by title 26]. The hearing officer found that grounds for suspension or revocation of the license under section 24200, subdivisions (a) and (d), had been established and recommended' revocation of the license on each of the four counts contained in the accusation. The department adopted his recommendation and revoked appellant’s license in December 1956. j

The appellant then appealed to the Alcoholic Beverage Control Appeals Board, which affirmed the department on all grounds. Appellant commenced this action in the superior court to obtain a writ of mandate to set aside the decision of the department. The superior court received the entire record and denied the appellant’s petition. On appeal, it is argued that: (1) the findings of fact made by the department are not supported by substantial evidence; and (2) the penalty imposed is unduly harsh and disproportionate to the offense.

The department found that the appellant and his employees engaged in bookmaking and permitted bookmaking to take place on the licensed premises (Counts I, II, and IV), and that the appellant licensee and his epployees pleaded guilty to the felony of conspiracy to evade payment of federal taxes (Count III). The evidence is uncontroverted. The appellant himself admitted that he had accepted horse race bets at his premises; that he had instructed his employees to accept such wagers, and that his income from these operations had been between $100-$200 a day. Several witnesses testified that they had placed bets on the premises during the time in question. Two of appellant’s employees testified that they had accepted bets and had also pleaded guilty to a federal charge of wilfully failing to pay the federal tax levied on every person in the business of accepting wagers. Certified copies of the federal court indictments against the appellant and his employees were received into evidence, as well as a certified