Ciambetti v. Department of Alcoholic Beverage Control

PEEK, J.

This appeal arises out of an accusation containing two counts filed by the Department of Alcoholic Beverage Control, hereinafter referred to as the department. In Count I plaintiff was charged with having refilled two one-quart bottles of whiskey. Count II charged that plaintiff for some time has not been the sole owner of the business operated by her, but that her husband, James Ciambetti, is a part owner thereof in violation of sections 23300, 23355, 23951, 24040 and 24200, subdivision (e), of the Alcoholic Beverage Control Act.

A hearing officer before whom the matter was heard found both charges to be true and recommended the license be suspended for 30 days on Count I and that it be suspended indefinitely on Count II. The department adopted the recommendations of the hearing officer and plaintiff then appealed to the Alcoholic Beverage Control Appeals Board. The board affirmed the action of the department and thereafter plaintiff filed her petition for a writ of mandate in the superior court. That court enjoined the suspension on Count II and this appeal followed.

The charge contained in Count I, being admitted, we have therefore limited our examination of the record solely to the evidence in support of Count II. Although the accusation contained in Count II was dependent upon evidence of owner

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ship of the license itself, much of the testimony introduced by the department had to do with the property interests of Berscelia and James, apparently upon the theory that such evidence showed an intent to operate a community business. A summary of the evidence in this regard shows that plaintiff and her husband were married in 1945. The real property on which the licensed premises are located was acquired by plaintiff as sole grantee on September 17, 1946. While the record is not clear, it would appear that Berscelia and James operated a restaurant known as the Mint Café on the premises, and that for approximately two years prior to 1951 he had a beer license in his name. On October 23, 1950, plaintiff in her name alone purchased a general on-sale liquor license for the sum of $12,187.10, of which all but $187.10 was paid in cash. And on January 26, 1951, a general on-sale license was issued to her as the sole licensee by the then administrator of the department’s Vallejo office. In order to equip the bar, a note and deed of trust was executed on February 17, 1951, by “Berscelia Ciambetti, a married woman, as her separate property, of the City of Suisun, County of Solano, State of California, and Jim Ciambetti, her husband,” as trustors. On April 21, 1953, a deed of reconveyaneé was executed to “Berscelia Ciambetti, a married woman, as her separate property, and Jim Ciambetti, her husband.” A second loan was secured in the sum of $12,000. The note and deed of trust was executed by “Jim Ciambetti and Berscelia Ciambetti, his wife.” Shortly thereafter a notice of intention to mortgage the equipment in the restaurant and bar was executed by “. . . Jim Ciambetti and Berscelia Ciambetti dba The Mint Café” and the subsequent chattel mortgage was executed by “Jim Ciambetti and Berscelia Ciambetti, his wife.” A fire insurance policy on the building was issued to Berscelia. A glass insurance policy was also issued in her name, and likewise a workmen’s compensation and employer’s liability policy was issued to her as the employer and as an individual doing business as the Mint Café. Joint federal and state income tax returns which were filed by James and Berscelia for the years 1952, 1953 and 1954, showed Berscelia to be the owner of the bar and café and Jim to be the manager. His withholding tax statements for 1952, 1953 and 1954 showed him to have been paid wages by Berscelia. He was a member of the Bartenders and Culinary Workers Union and consistently paid his monthly dues. A joint cheeking account for the Mint Café showed that for the period from