Stoumen v. Reilly

California Supreme Court Aug 28, 1951 No. S. F. 18310Published

Before: Gibson

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Holding. The court held that mere patronage of a licensed establishment by homosexuals does not constitute a 'disorderly house' under the Alcoholic Beverage Control Act absent evidence of illegal or immoral conduct on the premises. Because the indefinite license suspension was based on both the invalid disorderly house charge and a valid charge of selling alcohol to a minor, the matter must be remanded for reconsideration of the penalty.

Issues

Whether evidence of homosexual patronage and reputation as a 'hangout' for homosexuals is sufficient to support a charge of maintaining a 'disorderly house' under section 58 of the Alcoholic Beverage Control Act.
Whether the State Board of Equalization's discretion to revoke a license for 'good cause' under the Constitution allows for suspension based solely on the sexual orientation of patrons.
Whether the indefinite suspension of a license is appropriate when based on both an invalid charge and a valid charge of selling alcohol to a minor.

Disposition. reversed

Quotations verified verbatim against the opinion

“mere proof of patronage, without proof of the commission of illegal or immoral acts on the premises, or resort thereto for such purposes, is not sufficient to show a violation of section 58.”

“The board’s discretion under section 22, however, is not absolute but must be exercised in accordance with the law”

“In order to establish “good cause” for suspension of plaintiff’s license, something more must be shown than that many of his patrons were homosexuals and that they used his restaurant and bar as a meeting place.”

GIBSON, C. J.

The State Board of Equalization suspended, for an indefinite period, plaintiff’s general on-sale license to sell alcoholic beverages at the Black Cat Restaurant,

[715]

and this appeal is taken from a judgment denying a writ of mandate to compel the board to annul its order and reinstate the license.

The accusation filed against plaintiff was in two counts and alleged violations of sections 58 and 61(a) of the Alcoholic Beverage Control Act.

(2 Deering’s Gen. Laws, 1944, Act 3796.) Count one charged that plaintiff permitted his premises to be used as a disorderly house for purposes injurious to public morals. Count two charged that one of plaintiff’s employees sold beer to a person under the age of 21 years.

The hearing officer of the board, who received the evidence, found that plaintiff “kept and permitted his licensed premises to be used as a disorderly house in that . . . persons of known homosexual tendencies patronized said premises and used said premises as a meeting place,” and that beer was sold to a minor as alleged. He concluded that plaintiff had violated sections 58 and 61(a) and recommended “indefinite suspension” of the license. The findings and recommendation were adopted by the board as its decision. Thereafter the superior court denied a writ of mandate after reviewing the matter on the record before the board. (See

Covert

State Board of Equalization,

29 Cal.2d 125, 131 [173 P.2d 545].)

The principal question with respect to count one is whether the evidence is sufficient to warrant suspension of plaintiff’s license. Several police officers testified that many of the patrons of the Black Cat were homosexuals and that it was reputed to be a “hangout” for such persons. A number of people were arrested there, some for vagrancy and some because they “demonstrated homosexual actions,” but there was no showing that any of those arrested were convicted. There was no evidence of any illegal or immoral conduct on the premises or that the patrons resorted to the restaurant for purposes injurious to public morals.

Stoumen v. Reilly

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GIBSON, C. J.

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