Adler v. Department of Alcoholic Beverage Control

STONE, J. pro tem.* This is an appeal by Sidney Adler, the licensee, from a judgment of the Superior Court of Alameda County denying his petition for a writ of mandate to set aside a decision of the Department of Alcoholic Beverage Control revoking his license.

The appellant is the operator of The Rose Room, a taxi-dance establishment in Oakland, for which he obtained an on-sale beer license in January of 1954. On January 17, 1956, an accusation in two counts was filed by the department. Count I charged that the licensed premises were used as a disorderly house; Count II charged that the appellant had permitted one Emily Young to solicit customers to purchase alcoholic beverages for her. The hearing officer found that the charges in Count II were not true, but recommended revocation of appellant’s license for violation of section 25601 of the Alcoholic Beverage Control Act (Bus. & Prof. Code, §§ 23000-26000) as charged in Count I. The board found that cause for disciplinary action had been established under section 24200, subdivision (b), of the statute.† On November 13, 1956, the department adopted the hearing officer’s recommendation and ordered revocation effective January 2, 1957.

The appellant then appealed to the Alcoholic Beverage Control Appeals Board which on July 31, 1957, reversed the revocation on the ground that the evidence did not support the charges of misconduct on the particular dates of November 11, 19 and 25 contained in Count I, and gave the department time to reappraise the penalty in accordance with Bonham v. McConnell, 45 Cal.2d 304 [288 P.2d 502]. The department reconsidered its record and on August 29, 1957, issued a new order of revocation.

[258]Appellant again appealed to the Alcoholic Beverage Control Appeals Board which affirmed the order of revocation. Appellant petitioned the superior court to obtain a writ of mandate to set aside the decision of revocation on the ground of insufficiency of the evidence. The superior court issued the alternative writ, but after examining the entire record discharged that writ and denied the peremptory writ.

The issues on appeal are: (1) whether there is substantial evidence to support the department’s findings; and (2) whether the department abused its discretion in imposing the penalty of revocation.

The procedure followed by the Department of Alcoholic Beverage Control in this matter was approved by the Supreme Court in Martin v. Alcoholic Beverage Control Appeals Board, 52 Cal.2d 238 [340 P.2d 1], This case also makes it clear that the sole province of this court is to determine whether there is substantial evidence to support the findings of the board. (See also Rosales v. Department of Alcoholic Beverage Control, 171 Cal.App.2d 624, 625 [341 P.2d 366].)