Harris v. Alcoholic Beverage Control Appeals Board

STEEL, J. pro tem.* The Department of Alcoholic Beverage Control (referred to herein as the department) has appealed from a judgment of the superior court denying a petition for a writ of mandate by which petitioner sought to reverse a decision of the Alcoholic Beverage Control Appeals Board (referred to herein as the appeals board) which set aside a decision of the department suspending an on-sale beer license held by Arnold P. Payseno and Mary Satterly.

The licensees operate a business called the “Blue Jackets” in San Diego, California. In October 1958 the Armed Forces Disciplinary Control Board requested the licensees to appear before it in response to an accusation which had been made with regard to homosexual activity on the premises of the licensed establishment. One of the licensees and his attorney attended the hearing, but left after they were informed that no witnesses would be sworn or allowed. Thereafter, the licensees received written notice from the department that the licensed premises had been placed “off limits” to military personnel. Three daj^s later, agents of the department requested the licensees to post two “off-limits” signs on their premises. This the licensees refused to do. The department then filed an accusation against the licensees for refusing to comply with rule 70 (Cal. Admin. Code, tit. 4, §70), which provides:

‘ ‘ Every licensee whose licensed premises have been declared ‘out of bounds’ or ‘off-limits’ by an armed forces disciplinary control board shall post two notices of such fact in conspicuous places on his premises, one on the exterior and one on the interior thereof. He shall maintain such signs during the operation of the military or naval order. Such signs shall be [731]in the form prescribed, and shall be furnished, by the department.”

After filing a notice of defense, pursuant to the provisions of section 11505 of the Government Code, the licensees appeared with their counsel at the hearing subsequently held by the department. Their defense was that rule 70 was unconstitutional and an unlawful delegation of power by the department to the armed forces board. The department’s accusation was directed to the sole issue of whether licensees refused to post the signs. Neither the reason for the military off-limits order nor the nature of the military proceedings was inquired into. The hearing officer found that the accusation charges, which were undisputed, were true; that the provisions of rule 70 were valid; and that grounds for disciplinary action existed under the Alcoholic Beverage Control Act. The findings of the hearing officer were adopted by the department as its decision. The order provided a penalty of suspension of the license for 30 days and “thereafter so long as respondents shall remain in violation of Bule 70.” From this decision licensees appealed to the appeals board of the department, which reversed the department’s decision. The department filed a petition for a writ of mandate in the lower court, which was denied, and this appeal followed.