Harris v. Alcoholic Beverage Control Appeals Board

DRAPER, P. J. Although this dispute concerns regulation of the drinking habits of striptease entertainers, the record is by no means bare. Filed here are 363 pages of transcript, many exhibits, and 200 pages of briefs.

Respondent director filed an accusation against each of two bars owned by appellant licensee. One charged three violations of department rule 143 (Cal. Admin. Code, tit. 4, art. 22, §143), and eight violations of the Alcoholic Beverage Control Act (Bus. & Prof. Code, § 24200.5, subd. (b)). The other charged one violation of the regulation, and six of the code section. The regulation prohibits a licensee’s permitting consumption by a female employee, on the premises, of any alcoholic beverage purchased there. The statute directs license revocation if the licensee “has employed or permitted any persons to solicit or encourage others, directly or indirectly to buy them drinks in the licensed premises under any commission, percentage, salary, or other profit-sharing plan, scheme, or conspiracy.” After hearing, the department found against the licensee on all counts of both accusations. It ordered suspension of the license for five days on each violation of the regulation and 60 days on each violation of the statute, the suspensions to run concurrently. Upon expiration of the 60-day period, each license was to be revoked but revocation was stayed permanently on specified terms.

The licensee appealed to the Alcoholic Beverage Control Appeals Board, but conceded the charged violations of the regulation. The board reversed the department’s order as to all charged violations of the statute in each bar. The department brought this mandamus proceeding. After hearing on alternative writ, the trial court issued peremptory writ directing vacation of the board's order and affirmance of that of the department. Both board and licensee appeal.

The two bars operate identically. During the evening hours, there is continuous entertainment, principally “exotic” or “striptease” dancing. Four complete shows are presented each night. Each consists of six 12-minute acts. Thus each female entertainer is on stage for 12 minutes and off for an hour. During these off-stage periods, it is the practice for them “to mingle with customers at the bar and accept drinks from them.” The owner expects “the girls to be friendly and sociable.” He approves of their joining customers [471]for drinks because “it helps stimulate business.” But in a third bar owned by the same licensee, the acts are “of higher caliber,” and it is “operated on a different level.” The girls “very seldom drink with the customers at all; they don’t come on the floor. ’ ’