Pastime Cafe, Inc. v. Department of Alcoholic Beverage Control

FOX, P. J. An accusation was filed with respondent charging appellant, as the holder of a general on-sale liquor license, with violations of subdivisions (a) and (b) of section 25658, Business and Professions Code, in that it did sell an alcoholic beverage to a minor 19 years of age and permitted said minor to consume the same upon the licensed premises. A hearing officer found both charges to be true and also found that appellant did not establish a defense under the provisions [115]of section 256601 of the Business and Professions Code. The officer therefore recommended that the license be suspended for 15 days. The department adopted his decision and accordingly suspended the license. Appellant thereupon appealed to the Alcoholic Beverage Control Appeals Board, which affirmed the decision and order of the department.

Appellant then petitioned the superior court for a writ of mandate. Respondent’s demurrer to appellant’s amended petition was sustained without leave to amend. A judgment of dismissal followed, from which appellant licensee has appealed.

The evidence shows that Margaret Lochhead, a young woman 19 years of age, entered appellant’s premises on March 7, 1956, with her escort and occupied a booth with two other couples. When orders for drinks were being taken appellant’s waitress asked Miss Lochhead for identification. She handed the waitress a birth certificate issued by the Health Department of Canton, Ohio, which was, however, the birth certificate of her sister, Roberta Janet, who was born on September 30, 1934. The waitress looked at the document, handed it back to Margaret, and took her order for a Tom Collins, which was later served and partially consumed by Margaret.

The only issue here is whether appellant established a defense under the provisions of section 25660, Business and Professions Code (quoted in the footnote)—i.e., was appellant’s waitress shown '“bona fide documentary evidence of majority and identity” of Margaret?

The Alcoholic Beverage Control Appeals Board, in affirming the decision of the department that a defense under section 25660 was not established, took the position that the birth certificate was not evidence of identity. We think the position of the department and appeals board is sound and that the [116]