Fromberg v. Department of Alcoholic Beverage Control

ASHBURN, J. Appeal from judgment denying petition for peremptory writ of mandate which would require respondents to set aside an order revolting petitioner’s on-sale liquor license.

Petitioner’s license covered a place known as Chuck’s Play Room at 733 North Main Street, Los Angeles, which was operated by his bartender, Henry Mestas. Petitioner himself conducted a liquor store at 901 North Alameda Street, Los Angeles, and visited Chuck’s Play Room about twice a week in the afternoon when the place was supposed to be closed. His major contention is that the license was revoked because of narcotics transactions conducted or permitted by Mestas without any showing of knowledge on appellant’s part.

The accusation is in two counts, charging violation of sections 24200, subdivision (a), 24200, subdivision (b), 24200, subdivision (e), 24200.5, subdivision (a) and 25601, Business and Professions Code. The first count alleges that petitioner, the licensee, between February 3, 1956, and February 29, 1956, kept and permitted his said premises (Chuck’s Play Room) to be used for purposes “which were then and there injurious to the public morals, health, convenience and safety in that said premises were a resort and place of contact for illegal users, possessors and sellers of narcotics, and a place where illegal sales of narcotics were made, the dates of such sale being set forth in Count II hereof.” Count II alleged that during said period of time the “said licensee knowingly permitted the following illegal sales of narcotics, to-wit, heroin, upon his licensed premises.” Here follows enumeration of nine sales made on February 3, 4, 7, 8, 9, 15 and 24, 1956, by different people, one of them being a sale by Henry Mestas on February 3 and one or probably two by his wife Helen Mestas; others by persons shown in the evidence to be frequenters of the place. By amendment two more sales were alleged to have been made on February 28 and 29, 1956.

The hearing officer found to be true the allegations of Count I of the accusation and added: “At all times herein mentioned Henry Mestas was the bartender of respondent; on February 3, 1956, said bartender did sell narcotics upon said premises; on February 15, 1956, and on February 28, 1956, narcotics were sold on said premises by John Almida and by a female known as ‘Tina,’ respectively; all of said three sales were made with the knowledge of said bartender.” Concerning Count II the finding was that appellant “knowingly [232]permitted” the making of the following sales: February 3, 1956 sale by Henry Mestas; February 15, 1956 sale by John Almida; February 28, 1956 sale by female known only as ‘Tina.’ ” The hearing officer concluded that grounds for revocation of the license were established under sections 24200, subdivision (e), 24200, subdivision (a), 24200, subdivision (b), and 24200.5, subdivision (e) [a] as to Count II. Also: “Continuance of the on-sale general license of respondent would be contrary to public welfare and morals.”