Boreta Enterprises, Inc. v. Dept. of Alcoholic Beverage Control

Decision Date30 January 1969
Citation75 Cal.Rptr. 79
CourtCalifornia Court of Appeals Court of Appeals
PartiesBORETA ENTERPRISES, INC., dba Off Broadway, Petitioner and Respondent, v. The DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL of the State of California, Respondent and Appellant. Civ. 24438 and 24500.

Thomas C. Lynch, Atty. Gen., of the State of California, L. Stephen Porter, Charlton G. Holland, Deputy Attys. Gen., San Francisco, for respondent and appellant.

Melvin M. Belli, Robert L. Lieff, Belli, Ashe, Ellison, Choulos, Cone & Harper, San Francisco, for petitioner and respondent.

SIMS, Associate Justice,

In each of these two actions, consolidated on appeal, the Department of Alcoholic Beverage Control has appealed from a judgment of the superior court 1 granting a peremptory writ of mandate which set aside a decision of the department, affirmed by the Alcoholic Beverage Control Appeals Board, revoking, subject to a one-year conditional stay (involving a 30-day suspension in the second proceedings), respondent's on-sale general bona fide public eating place license. The disciplinary action was imposed by the department because of activities which were found to constitute conduct contrary to public welfare and morals and grounds to suspend or revoke the license pursuant to the provisions of article XX, section 22, state Constitution, and of section 24200, subdivisions (a) and (b) of the Business and Professions Code. 2 The trial court in each case remanded the proceedings to the department with instructions to reconsider its action in the light of findings of fact and conclusions of law which held that there was no substantial evidence to sustain the findings and conclusions of the department, and that there were no legal grounds for the action taken. 3

In view of the stipulated record in this case the principal issue is whether the department's finding that "female employees in the course of their employment as waitresses and while in actual proximity 4 to patrons who were ordering their meals and alcoholic beverages from said employees, did display and expose their breasts to patrons and persons assembled" in the licensed premises, is , in and of itself, without any specification of other offensive conduct, sufficient to support the conclusion that the continuance of the license would be contrary to public welfare or morals as that phrase is used in the Constitution and governing statutes. Subsidiary questions involve the propriety of taking and distributing photographs of a bare-breasted model as charged and found in each proceeding; and whether the conduct charged constituted a violation of section 25601 of the Business and Professions Code 5 as concluded in the second proceedings.

It is determined that in the absence of statute or regulation, the activities complained of, when unaccompanied by any evidence of improprieties, cannot be grounds for suspension or revocation of a license. Insofar as the department seeks to control the costuming, or lack thereof, of its licensee's employees, whose deportment is otherwise unimpeached, because of the possibility of, rather than the actual occurrence of, conduct or activities contrary to public welfare or morals, it must do so under provisions embodied in an appropriate rule or statute.

Statement of Facts

In the first accusation filed May 6, 1965 against the licensee (1 Civil 24500) the department relied on activities taking place on April 23 and 26, 1965. The first count, predicated upon the provisions of section 22 or article XX of the state Constitution, and of section 24200, subdivision (a), of the Business and Professions Code, set forth four acts allegedly contrary to public welfare and morals. These acts consisted of display and exposure, in the manner at issue herein, by three named waitresses on April 13 (subcount a), the display and exposure of her breasts by another named employee, apparently a model (subcount b), and the distribution of photographs of the model so exposed to patrons (subcount c), and the display and exposure of breasts by two named employees on April 26 (subcount d). A second count charged that the licensee permitted the waitresses on April 23 to wilfully and lewdly expose their persons or the private parts thereof in violation of subdivision 1 of section 314 of the Penal Code. 6 A third count made a similar charge concerning the exposure which occurred on April 26, and the fourth count charged the licensee with violation of subdivision 2 of section 314 of the Penal Code on both April 23 and 26. The accusation relates that the licensee had been licensed December 28, 1962 and had no prior record of disciplinary action. Grounds for suspension or revocation of the license were claimed to exist under the general constitutional and statutory provisions because continuance of the license would be contrary to public welfare and morals, and under section 24200, subdivision (b), because the licensee had violated or permitted the violation of section 25601 and section 314 of the Penal Code. The licensee filed his notice of defense and requested a hearing, and the matter was regularly set for hearing on June 21, 1965.

Prior to the hearing, on June 1, 1965, the department filed an amended accusation in one count which alleged nine specific acts giving rise to grounds for suspension or revocation under the general provisions. Four subcounts (a, c. e and f) charged display and exposure of breasts by waitresses in the manner described above--three on April 23, three on April 26, four on May 7, and five on May 11 (cf. subcouns a and d of original accusation). Additional counts charged the distribution of photographs of the exposed mode (subcount b; cf. c, subcount in original), exposure of breasts by a named employee in the presence of licensee's president on May 7, 1965 (subcount d), and that the licensee procured, counseled and assisted the female employees involved in making an exhibition of themselves to public view on the occasions charged (subcounts g, h and i). The charge relating to the display and exposure by the named individual of whom photographs were distributed (original subcount b) was omitted, and there was no reference to any violation of the provisions of section 314 of the Penal Code. Grounds for disciplinary action were predicated on the general provisions of the Constitution and statute, and on violation of the provisions of section 25601. Although the matter was originally set for hearing at the same date as the original accusation, it was, on June 10, 1965 ordered continued to August 16, 1965.

Meanwhile, on June 8, 1965 a second accusation (1 Civil 24438) was filed against the licensee in one count which alleged then specific acts of misconduct. Three subcounts (a, d and F) charged display and exposure by waitresses in the manner described above--four on May 14, three on May 18, and three on May 26. Three subcounts (b, e and g) charged display and exposure by models on the foregoing dates. One count alleged distribution of photographs, similar to those referred to in the first accusation, on May 14, and three additional subcounts (h, i and j) accused the licensee of procuring, counseling and assisting the acts referred to in other counts. The licensee having filed his notice of defense and request for hearing, the matter was set for hearing on October 11, 1965.

At the hearing on the amended first accusation the department dismissed the charges of procuring, counseling and assisting contained in subcounts g, h and i. It was stipulated that the facts, although not the conclusions, alleged in subcounts a through f were true. Photographs were received in evidence, and the parties stipulated as to the actual proximity of the waitresses with respect to the patrons (see fn. 4, supra). The referee found in accordance with the allegation of the accusation, and on November 21, 1965 rendered the decision 7 adopted by the department on November 26, 1965, and affirmed by the appeals board on May 6, 1966, from which the licensee sought relief in the superior court on May 13, 1966.

In the meantime the second accusation came on for hearing before a different referee. It was stipulated that the facts, as distinguished from the conclusions, set forth in subcouonts a, c, d and f were true. Photographs were introduced in evidence to show the costume worn by the waitresses, and the nature of the picture distributed to the patrons. The proximity of the waitresses to the patrons was defined in the same manner as at the hearing on the first accusation (see fn. 4, supra). The counts referring to display and exposure by models (b, e and g) and those relating to alleged misconduct of the licensee (h, i and j) were dismissed, although it was stipulated that there were models employed and modeling on the premises on the occasions in question. On December 30, 1965, while licensee's appeal from the decision on the first accusation was pending, the referee rendered his findings and proposed decision on the second accusation. 8 This decision was adopted by the department on January 6, 1966, and affirmed by the appeals board on August 19, 1966. A second action was thereupon filed in the superior court the following month.

Both matters ultimately were the subject of hearings in the superior court which terminated in both cases on December 16, 1966, and resulted on February 7, 1967 in the findings, conclusions and judgment from which these appeals have been taken.

In each proceeding the licensee contended before the department (1) that the display of topless nudity did not render the premises a disorderly house within the provisions of section 25601, (2) that the display was protected by the guaranty of freedom of speech found in the First Amendment to the United States Constitution, (3) that the display was not obscene, (4) that the question of obscenity had been determined adversely to the views of the department in...

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  • Boreta Enterprises, Inc. v. Department of Alcoholic Beverage Control
    • United States
    • California Supreme Court
    • February 26, 1970
    ...by Mr. Justice Elkington in the dissenting opinion prepared by him for the Court of Appeal in Boreta Enterprises, Inc. v. Department of Alcoholic Bev. Con. (Cal.App.) 75 Cal.Rptr. 79, 101--106. 1 The instant appeal is governed by procedures prevailing prior to the 1967 amendments to the rev......

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