Tarbox v. Board of Supervisors

NOURSE, J. pro tem.

*

Appellant here, petitioner below, appeals from the judgment denying his petition for a writ of mandate addressed to the respondent board of supervisors and the county tax collector and dismissing said petition. While the judgment appealed from purports to be based upon an order sustaining a demurrer to the petition without leave to amend, inasmuch as the petition set forth the entire record before the board of supervisors and as the return to the alternative writ issued by the superior court incorporated that record and as the superior court was not entitled to receive any other evidence than that which was before the board

(Fascination, Inc.

v.

Hoover,

39 Cal.2d 260 [246 P.2d 656]), we treat the judgment as one upon the merits.

The petitioner is the owner of and since October, 1955 has operated a motion picture theater known as the Carmel Museum Theater in the county of Los Angeles. Each year he was issued a license by the county of Los Angeles to conduct the operation of that theater. In March of 1957 petitioner applied for a renewal of his license and, objection thereto having been made by the sheriff of the county, a hearing was held before a referee appointed by respondent board of super

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visors; and after that hearing, the referee made a written report to the board of supervisors recommending that petitioner’s application be denied. The board, without hearing further evidence, adopted the report of the referee and denied the petitioner’s application.

The question for decision here is: Did the evidence before the referee, giving that evidence every intendment in favor of the action of the board, justify the board’s action denying petitioner a renewal of his license ?

The facts as shown by the evidence, viewing that evidence in the light most favorable to the respondent board, are:

The petitioner purchased the theater in question in October, 1955 and from that time until the theater was closed by the police in March of 1957 operated it as a motion picture theater; the theater was operated in the same manner as similar theaters in the county were operated. In the theater he showed only films of high quality and there is no contention that any of them were of a lewd or immoral character or which might induce lewdness on the part of any patrons. From October 25, 1956, until March 17, 1957, 19 men were placed under arrest in the theater during the showing of pictures on charges of violation of section 647, subdivision 5, of the Penal Code (vagrancy, lewd). These arrests were all based upon attempts by the persons arrested to place their hands upon the private parts of members of the sheriff’s vice squad (plain clothesmen) who had seated themselves as decoys in the theater. All arrests of the alleged offenders occurred when the theater was dark for the purpose of exhibiting the picture. During the period in which the arrests were made from two to five members of the vice squad attended each performance in the theater. In this period a minimum of 20,000 patrons attended the theater.