Altadena Community Church v. State Bd. of Equalization
| Decision Date | 04 February 1952 |
| Citation | 240 P.2d 322,109 Cal.App.2d 99 |
| Court | California Court of Appeals Court of Appeals |
| Parties | ALTADENA COMMUNITY CHURCH v. STATE BOARD OF EQUALIZATION et al. Civ. 18457. |
Edmund G. Brown, Atty.Gen., Bayard Rhone, Deputy Atty. Gen., for appellant.
Roland Maxwell, Paul H. Marston, Pasadena, for respondents.
This case comes before us by reason of an appeal by the State Board of Equalization from a judgment of the superior court directing the issuance of a peremptory writ of mandate ordering that board to deny a 'petition of the respondent [therein], Venetian Dining Room & Gardens, Inc., a corporation, for an on sale general liquor license filed in 1950 for the premises described as 2556 North Lake Avenue, Altadena * * *.' The court declared that the granting of the 1950 application of the corporation by the Board was an abuse of discretion because of the proximity of three churches and a youth center to the premises in question, and also that the decision of the Board in 1948 in denying a similar application was res judicata. The matter came before the lower court upon a petition by the respondent churches for a writ of mandate. It was heard upon the records and files of the appellant Board. No other evidence was introduced before the court.
It appears from the record that the premises in question had a general liquor license from 1939 to 1945, a beer and wine license from 1946-1948 and a similar license from 1948-1950. One Charles Ingrao testified that he had owned the premises in question since 1944. Whether or not he operated during all that time as a corporation is not clear although he testified he had a partner in 1946 and 1947 and that the restaurant was closed for a while in 1947 because of litigation between him and that partner. At the close of that litigation a new building was erected and thereafter Mr. Ingrao operated alone.
The premises of the restaurant have at all times been within a recognized business district and located on the east side of Lake Avenue about 100 feet south of Foothill Boulevard. On June 21, 1948, when the 1948 application was denied, the respondent Altadena Community Church was located on the north side of Foothill Boulevard east of Lake Avenue and about 235 feet from the restaurant. At that time the St. Marks Episcopal Church was located on the south side of Foothill Boulevard and about 300 feet east of the restaurant. There was also a youth center operated by one of these churches and located on Foothill Boulevard about 220 feet west of the restaurant. The only substantial change in physical conditions between 1948 and 1950 was the erection by the respondent First Church of Christ, Scientist, of a church building on the south side of Foothill Boulevard. The west side of the lot upon which it is located is separated from the rear of the restaurant lot by a 21 foot alley. The west side of the rear portion of the church building is about 50 feet from the outdoor gardens where the restaurant serves meals during suitable weather. The nearest establishment where spiritous liquors may be served is approximately 2,000 feet from the restaurant.
At the time of denying the 1948 application the appellant Board made the following order: 'It is ordered that the application mentioned in the said proposed decision be denied on the grounds that the issuance of an on-sale general license for the premises of the applicant would be contrary to public welfare and morals, it appearing to said Board that said premises are located within the immediate vicinity of churches.' Shortly thereafter it issued the applicant a beer and wine license for its premises.
The 1950 application was opposed by the three churches. Over 500 citizens of the area signed petitions of protest. The sheriff of Los Angeles County likewise filed a protest. An extensive hearing was had before the Hearing Officer of the Board. At the conclusion thereof he recommended denial of the application in the following language:
'Premises are in the immediate vicinity of three churches and a Youth Center building. Issuance of license would be contrary to public welfare and morals. Penalty or Recommendation:
"That protests be sustained."
At the hearing before the appellant Board the only evidence offered or received was that which had been received by the Hearing Officer. At the conclusion of argument the Board made the following finding and order:
'That applicant's premises are located in a business district and consist of a high-type restaurant with an outdoor dining area in the rear thereof; that at said premises and since 1948 applicant now holds and has held an on-sale beer and wine license; that heretofore and from 1946 until 1948 an on-sale beer and wine license was issued for said premises to persons other than applicant; that for four years prior to 1946 an on-sale distilled spirits license was issued for said location to persons other than applicant; that the church building of the First Church of Christ which was completed in February, 1950, is about 50 feet from the outdoor dining area of applicant's premises; that the Saint Marks Episcopal Church is on property contiguous on the east to that of the First Church of Christ; that across East Foothill Boulevard from said two churches is located the Altadena Community Church, on the property of which said church conducts a youth center; that said Altadena Community Church is located about 235 feet by air line from applicant's premises; and that applicant's premises are not so located with respect to said churches and youth center as to cause a moral hazard to said churches or said youth center.
'Determination of issues presented: that because of the facts as found aforesaid it would not be contrary to public welfare and morals to issue an on-sale general license to the applicant at the premises aforesaid.
'Wherefore, it is hereby ordered that the application herein be granted effective on notice hereof.'
The appellant Board was authorized and empowered to control the licensing of the liquor industry by article XX, section 22, adopted in 1934, of the State Constitution. That section reads in part as follows: 'The State Board of Equalization shall have the exclusive power to license the manufacture, importation and sale of intoxicating liquors in this State, * * * and shall have the power, in its discretion, to deny or revoke any specific liquor license if it shall determine for good cause that the granting or continuance of such license would be contrary to public welfare or morals.' It is interesting to note that the constitution gives the Board the 'exclusive power to license' without any specified limitation while it declares the Board may deny or revoke a license '* * * if it shall determine for good cause that the granting or continuance of such license would be contrary to public welfare or morals.' In denying the 1948 application the appellant acted under the latter part of the sentence while in granting the 1950 application it acted under the first part. The Legislature indicated the same purpose by the passage of section 13 of the Alcoholic Beverage Control Act, 1935, 2 Deering's California General Laws, Act 3796. Section 13 reads as follows: 'The board is specifically authorized to refuse the issuance of on-sale retail licenses for premises located within the immediate vicinity of churches, hospitals, schools and children's public playgrounds.' This section while authorizing the denial of a license because the premises involved are within the immediate vicinity of churches, etc. does not forbid the granting of a license if the premises are so located.
It had been definitely established that the power of a court is very limited in reviewing the decisions of the Board. In the case of Covert v. State Board of Equalization, 29 Cal.2d 125 at page 131, 173 P.2d 545, at...
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