Reynolds v. State Board of Equalization

GIBSON, C. J. This is a companion case to Covert v. State Board of Equalization, ante, p. 125 [173 P.2d 545], As in the Covert case, the matter came to this court by appeal from a judgment of the superior court issuing a peremptory writ of mandate directing the State Board of Equalization to revoke the liquor license* of a cafe. The principal question involved is whether the board has the power to suspend as well as revoke a license. With respect to this issue, none of the material allegations in the petition for the writ were denied by the answer, and the case was submitted to the trial court on the pleadings.

It appears that prior to August, 1943, the licensees, Joe Enos and Enrico Olcese, operated a cafe in Santa Clara County and held a license issued by respondent board for selling intoxicating beverages, apparently for consumption on the premises. The petitioner filed a complaint with the board alleging, among other things, that the licensees maintained a public saloon, selling intoxicating liquors, although the premises and business did not constitute a bona fide hotel, restaurant or other public eating place, in violation of section 22 of [139]article XX of the California Constitution. In December, 1943, a hearing was held before a representative of the board. The representative made findings to the effect that the licensees did not maintain a bona fide public eating place; that no food was customarily served excepting sandwiches sold at cost; and that practically the entire business consisted of the sale of alcoholic beverages. In accordance with the recommendation of its representative, the board, in February, 1944, notified the licensees that their license was indefinitely suspended. Petitioner, asserting that the order of suspension was inadequate, asked for a reconsideration and that the license be revoked. In March, 1944, the board denied the request for reconsideration and at the same time reinstated the license.

The petition for mandate, filed shortly thereafter, alleged that on the facts found by the representative there was a clear duty to revoke the license and that the board was without power to reinstate it.

The trial court concluded that the indefinite suspension was insufficient; that it was the duty of the board to revoke the license; and that the board had no right to restore the license except upon a new application. The judgment provided that a writ issue directing the board to revoke the license forthwith.