Munro v. Alcoholic Beverage Control Appeals Board

PAULSEN, J. pro tem.

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The Department of Alcoholic Beverage Control ordered the on-sale liquor license of appellant, Arnold Weiss, revoked. The Alcoholic Beverage Control Appeals Board reversed the order. The superior court issued a writ of mandate commanding the Appeals Board to vacate its order of reversal and directed it to affirm the order of the department. The licensee and the Appeals Board appeal from the judgment.

Viewing the evidence, as we must, in the light most favorable to respondent, it appears that Weiss conducted his business in one room approximately 20 feet long and 10 feet wide located at the corner of Clay and Kearny Streets in San Francisco. He employed one clerk, Edward Cute. On September 27, 1956, Sergeant Mullan of the San Francisco Police Department, an expert on bookmaking, entered the premises and noticed that Cute had a slip of paper in his hand which he attempted to conceal. The sergeant identified the slip as a record of bets for the day and placed Cute under arrest. Cute was charged with a violation of section 337, subdivision (a) of the Penal Code and was found guilty.

After arresting Cute, Sergeant Mullan searched the premises and found old betting records and slips, not, however, of recent date.

Weiss was not on the premises at the time Cute had the slip in his possession and there was no evidence that he participated in taking bets.

When Weiss returned from lunch about 20 minutes after the arrest, he informed Sergeant Mullan that Cute was his regular clerk

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that each day he and Cute were at the premises practically all day long, with the exception of the lunch hour;

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that he did not know Cute was bookmaking. Sergeant Mullan testified that on a half-dozen or more occasions he had told Weiss that he had information Weiss was

bookmaking

and that he should cease; that when he visited the premises several times before the arrest he observed Weiss standing on the corner of Clay and Kearny Streets in such a position that no one could approach the entrance to the premises without being seen by Weiss. At the hearing, both Cute and Weiss failed to testify.