Coleman v. Harris

SHOEMAKER, J.

Plaintiffs appeal from an order of the superior court denying their request for a peremptory writ of mandate.

This matter arises out of a proceeding that had its commencement on December 24, 1959, when an accusation was filed with the Department of Alcoholic Beverage Control charging Anderson and Howard Coleman, owners of the Club Manhattan and a general on-sale liquor license, with three violations of the Alcoholic Beverage Control Act. Count I of the accusation charged the Colemans with having permitted the licensed premises to be used as a resort for prostitutes in violation of Business and Professions Code, section 24200, subdivision (e) ; count II, that the Colemans violated Business and Professions Code, section 25601, by maintaining a disorderly house; and count III, that the Colemans had permitted a female to loiter on the premises for the purpose of begging or soliciting a customer to purchase an alcoholic beverage, in violation of Business and Professions Code, section 25657, subdivision (b).

The matter was tried and the hearing officer for the Department of Alcoholic Beverage Control recommended that the Colemans’ license be revoked separately and severally as to each of the three counts. The department adopted the proposed decision of its hearing officer as to counts II and III, but ordered count I dismissed. The Colemans then appealed to the Alcoholic Beverage Control Appeals Board, which affirmed the department as to count II only. The appeals board, in so holding, specifically found that the reversal of count III did not necessitate a remand to the department, since a penalty of revocation had been imposed separately upon each of counts II and III.

The Colemans thereafter petitioned the San Francisco Superior Court for a writ of mandate setting aside the decision

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revoking their license. The superior court issued an alternative writ of mandate but, after hearing, discharged that writ and refused the peremptory writ.

Appellants concede, at the outset, that there was sufficient evidence at the original hearing before the Department of Alcoholic Beverage Control to support count II of the accusation. Their sole contention is that the order revoking their license was a harsh and discriminatory penalty which ought not to have been imposed against first offenders who were guilty, at most, of a “passive” tolerance of the wrongful acts charged in count II of the accusation. Appellants’ contention may not be sustained.