Coletti v. State Board of Equalization

SHINN, P. J.

The State Board of Equalization and the members thereof, hereinafter referred to as defendants, appeal from a judgment for the issuance of a writ of mandate directing them to vacate an order revoking an on-sale, general liquor license theretofore issued to Michael Gerbosi and Michael Coletti, the latter alone being the plaintiff in the action. The defendants demurred to the petition, the matter was submitted on the petition and demurrer, the demurrer was overruled and judgment entered commanding the board to vacate its order revoking the license and to restore physical possession of the license to the plaintiff Coletti.

From the petition and the findings of the hearing officer of the board, which were incorporated in the petition, the following facts appear: A license had been issued under section 6, paragraph J of the Alcoholic Beverage Control Act [Stats. 1935, p. 1123; 2 Deering’s Gen. Laws, Act 3796] to petitioner and Gerbosi for the sale of beer, wine and distilled spirits for consumption on the premises at 1903 West Sixth Street, Los Angeles. Coletti and Gerbosi were partners in a restaurant at that location. Gerbosi was the holder of another license applying to premises at 742-746 South Vermont Avenue, Los Angeles. Gerbosi and his wife owned and operated an unlicensed café on Atlantic Boulevard in county territory. The employees of Gerbosi at the unlicensed café made numerous sales of distilled liquors which were found to have been made with the consent and knowledge of Gerbosi. These acts were charged as violations of sections 3 and 40(2) of the act. Gerbosi also was found to have been in possession of 348 emptied, undestroyed, distilled spirits bottles on the same premises, in violation of section 36b(3) of the act. Coletti, admittedly had no interest in the Atlantic Boulevard café and no knowledge of said violations of law. The accusation brought by the District Liquor Control Administrator was for revocation of the license held by Gerbosi alone, and also that held by Gerbosi and Coletti.

[63]

The question is: Upon these facts was defendant board authorized to revoke the partnership license? Under section 40(1) and 40(2) of the act, a license may be suspended or revoked ‘1 [w] hen the continuance of such license would be contrary to public welfare or morals” etc., and where a licensee is guilty of violating or permitting a violation of the act (with exceptions not involved here) or any rules and regulations of the board, or “any other penal provision of law of this State prohibiting or regulating the sale, exposing for sale, use, possession, giving away, adulteration, dilution, misbranding or mislabeling of alcoholic beverages or intoxicating liquors.” It is not questioned by plaintiff Coletti that the evidence was sufficient to justify the suspension or revocation of any license held by Gerbosi. His contention is that even if the partnership license could be suspended as to Gerbosi’s interest he may not be deprived of his interest for the reason that he is not responsible for the acts of his partner unconnected with the operation of the partnership and committed without his own knowledge or authority.