Hansen v. State Board of Equalization

TUTTLE, J.

This is an appeal from the judgment rendered in favor of respondents upon the sustaining of a demurrer to the amended petition of appellant for a writ of mandate, requiring respondents to issue an off-sale distilled spirits license and other licenses described in the Alcoholic Beverage Control Act of the State of California. . (Stats. 1935, chap. 330, as amended; Deering’s Gen. Laws, [1937] Act 3796.)

The original petition was amended after a demurrer thereto was sustained. The demurrer to the amended petition was sustained without leave to amend. Permission to further amend was not requested by appellant.

The individual respondents are members of respondent State Board of Equalization, and are made parties in their official capacity. We shall refer herein to the respondents as the Board.

[178]

We do not deem it necessary to give an extended summary of the amended petition. Respondents concede that it sets forth all the formal procedural steps required by the statute mentioned. It is further alleged that a public hearing was held by the Board in connection with the application. A copy of the testimony taken at such hearing was made part of the petition, and was thus brought before the trial court on demurrer. The factual situation, from the record, appears to be as follows:

The premises for which the licenses were sought are described as in a business district of Pacific Grove, five blocks from the nearest school and five hundred feet from the nearest church, which is maintained in a Salvation Army meeting hall. Appellant was either a lessee or permittee of the premises, the property belonging to a third person, and proposed to deal in alcoholic beverages exclusively.

No alcoholic beverage business has ever been maintained in Pacific Grove, and all property in the city has been conveyed to its present owners subject to restrictive covenants running with the land against the use of any of such property for the business of manufacturing or vending alcoholic beverages; these restrictions are still effective and have been enforced since a time prior to the establishment of the city of Pacific Grove; and an organization known as the Pacific Grove Retreat Association has existed since June 1, 1875, for the express purpose of preserving and enforcing such restrictions upon the use of the real property within the city.