Am-Chi Restaurant, Inc. v. Simonson

• Decision Date: 01 May 1968
• Docket Number: No. 21192.,21192.
• Citation: 396 F.2d 686,130 US App. DC 37
• Parties: AM-CHI RESTAURANT, INC., Appellant, v. Joy R. SIMONSON et al., etc., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

130 US App. DC 37, 396 F.2d 686 (1968)

AM-CHI RESTAURANT, INC., Appellant, v. Joy R. SIMONSON et al., etc., Appellees.

No. 21192.

United States Court of Appeals District of Columbia Circuit.

Argued February 16, 1968.

Decided May 1, 1968.

Mr. Samuel Intrater, Washington, D. C., with whom Mr. Albert Brick, Washington, D. C., was on the brief, for appellant.

Mr. John R. Hess, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. Charles T. Duncan, Corporation Counsel, Hubert B. Pair, Principal Asst. Corporation Counsel, and Richard W. Barton, Asst. Corporation Counsel, were on the brief, for appellees.

Before BAZELON, Chief Judge, and WRIGHT and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

Appellant corporation operates a nightclub and is licensed to serve liquor therein. Appellees, the members of the District's Alcoholic Beverage Control Board, found that appellant had "allowed the premises for which the license was issued to be used for an unlawful purpose," in violation of D.C. Code § 25-118, by permitting a female employee to solicit a patron for the purpose of prostitution. A fourteen-day suspension of appellant's liquor license was ordered. The District Court, on cross-motions for summary judgment, upheld the Board's action. This appeal followed.

The testimony before the Board showed that a police officer in plain clothes went to appellant's nightclub to conduct an undercover investigation. On entering he was met by a young lady who conducted him to a table in the darkened rear area of the premises and joined him there. She identified herself as an exotic dancer employed at the nightclub. At her urging he offered to buy her a drink. When the maitre d'hotel, one "Nick," came to the table to take their order, the girl ordered a bottle of champagne. When the officer suggested she might like a drink instead, she told him that in the rear of the restaurant he had to buy champagne. It cost $14.00, and payment was required on the spot, although he was permitted to defer payment for his own drink. He not only tippled, he tipped, for she also told him a tip to Nick was mandatory.

After a brief conversation she indicated that for $75.00 she would meet him the next day to have sexual relations. That tentatively agreed on, she left the table to start her dance. She warned him that Nick would bring another girl over to the table, but that by saying he was short of money he could avoid another round of champagne. Another girl was brought over, and this time the officer bought only a champagne cocktail. Later that evening the dancer gave him her name and telephone number. The next day she met him at his hotel, accepted $75.00 from him, and was arrested.

Appellant contends that it may not be penalized by suspension of its liquor license unless it had knowledge of the act of its employee. Appellant urges that it had no such knowledge, and claims that the evidence shows merely an isolated instance of solicitation for prostitution. Appellant further points out that all its dancers were hired through a union, and were required to be members in good standing of the union, and that this particular dancer was fired as soon as her conduct was known.

We think the Board's finding was permissible, and therefore affirm the District Court's order. The Alcoholic Beverage Control Act provides for revocation or suspension of a license if the licensee violates the Act or regulations issued thereunder "or fails to superintend in person, or through a manager approved by the Board, the business for which the license was issued, or allows the premises * * * to be used for any unlawful, disorderly, or immoral purpose, or knowingly employs in the sale or distribution of beverages any person who has * * * within ten years prior thereto, been convicted of any felony, or such licensee otherwise fails to carry out in good faith the provisions of this act."¹ The word "knowingly" is specifically used only in the provision as to knowing employment of a felon. We have no occasion to consider whether a suspension or revocation could be sustained if the record were totally devoid of circumstances implicating the licensee, on a theory utilized in some...