Taenaka v. State Board of Equalization

CARTER, J. The State Board of Equalization, respondent in mandamus proceedings in the superior court, appeals from a judgment of that court granting a peremptory writ of mandate ordering the board to restore to Taenaka, petitioner, an off-sale liquor license at his premises on East 103d Street in Los Angeles.

According to the findings, petitioner is a United States citizen of Japanese ancestry. He owns the above-mentioned premises, and in 1941, he held an off-sale liquor license at said premises regularly issued to him by respondent, and operated a liquor business thereunder. After the outbreak of the second World War and in May, 1942, respondent revoked and cancelled petitioner’s license on the ground of his Japanese ancestry. In 1951, the Legislature added a section to the Alcoholic Beverage Control Act (Stats. 1935, p. 1123, as amended),* and pursuant thereto on September 4, 1951, [659]petitioner applied to the board for a license. On November 15, 1951, the board,, after hearing, granted the application and ordered the issuance of the license “provided no protests have been filed against the issuance of such license.” At that time no protests had been filed. Thereafter, on November 26, 1951, protests were filed by a church, the Parent-Teachers Association, and John J. Hicks, president of South East Ministers’ Alliance, on the ground that the premises were too close to a school and churches. At a meeting of the board on December 13, 1951, the matter of setting the protests for hearing was discussed in the presence of petitioner’s counsel and Hicks. After some discussion in which one of the board members expressed his belief that there had been a fraud perpetrated on the board in the issuance of the license on November 15, 1951, because of petitioner’s counsel’s assurance at the hearing thereon that no protests had been filed, a resolution was adopted that petitioner be requested to deliver his license to the custody of the state liquor administrator, and if he refused, proceedings for revocation of the license be initiated. Thereafter the same board member suggested that as petitioner was going into military service the board keep custody of the license for a year. Petitioner’s counsel said he would cooperate and recommended the procedure to his client but demanded a hearing on the protests. At his counsel’s suggestion petitioner handed the license to the board. Hearings were held thereafter to consider the protests on the basis of petitioner’s application for a license rather than as a basis for its revocation. All of the protests were withdrawn except that of Hicks which was on behalf of a church which moved into the area 400 feet from petitioner’s premises and next door to a liquor store shortly before the license was issued on November 15, 1951, but had not yet opened as a church. In March, 1952, the board “denied” petitioner’s application for a license on the basis that it would be contrary to “public welfare and morals” because of the proximity of the premises to churches and a school.