Harem Corp. v. State Board of Equalization

GOODELL, J.

The respondent board filed an accusation alleging that appellant on May 22, 1947, and thereafter did on its premises “sell, serve or otherwise dispose of alcoholic beverages, other than beer, for consumption on said premises, over or at a public bar or in a public barroom which was not then and there equipped and maintained for the sale and service of meals to the public, and in which meals were not then and there actually sold and served to the public.” This charged a violation of section 22, Article XX of the Constitution and of section 53 of the Alcoholic Beverage Control Act (Stats. 1935, p. 1123, as amended; 2 Deering’s Gen. Laws, Act 3796). The board’s hearing, conducted by a hearing officer, resulted in a finding that “ever since May 22, 1947 the respondent has not conducted, and is not now conducting, the premises herein concerned as a bona fide public eating place ...” The board suspended appellant’s on-sale liquor license indefinitely. Appellant then sought in the superior court an annulment of the board’s order by a writ of review. After a hearing judgment went in favor of the board and this appeal was taken.

[917]

The issue tried in the superior court was tendered by appellant in its petition by the allegation “That plaintiff is and at all times herein mentioned has been operating as a restaurant at 22nd Street and Broadway . . . Oakland ...” This was found to be “untrue and without support of the evidence.”

The issue on this appeal is thus stated by appellant: “Did appellant sell liquor in a bona fide restaurant, or in a public bar ? ’ ’

“In determining whether or not a particular establishment qualifies under the Constitution it is the province of the board to ascertain the facts, for example, the physical aspects, equipment and supplies, the amount of food and liquor sold, and the manner in which the business is conducted . . . The existence of bona tides is not to be determined merely from the expressed intention of the licensee, but, like the determination of whether a place is a ‘saloon’ or a ‘restaurant,’ it must be ascertained objectively on the basis of all the physical characteristics and the actual mode of operation of the business ...”

(Covert

v.