Farah v. Alcoholic Beverage Control Appeals Bd.

• Decision Date: 10 April 1958
• Citation: 159 Cal.App.2d 335,324 P.2d 98
• Court: California Court of Appeals Court of Appeals
• Parties: Joseph L. FARAH and Mary T. Farah, Plaintiffs and Appellants, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD of the State of California and Department of Alcoholic Beverage Control, Defendants and Respondents. Civ. 22901.

Page 98

324 P.2d 98

159 Cal.App.2d 335

Joseph L. FARAH and Mary T. Farah, Plaintiffs and Appellants, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD of the State of California and Department of Alcoholic Beverage Control, Defendants and Respondents.

Civ. 22901.

District Court of Appeal, Second District, Division 1, California.

April 10, 1958.

Carl B. Sturzenacker and Walter Monarch, Los Angeles, for appellants.

Edmund G. Brown, Atty. Gen., Edward M. Belasco, Deputy Atty. Gen., for respondents.

FOURT, Justice.

This is an appeal from a judgment denying appellants' petition for a writ of mandate to compel respondents to cancel their order suspending for fifteen days appellants' on-sale general liquor license.

The facts are as follows: On April 20, 1956, the plaintiffs, licensees, sold and furnished beer to a girl about nineteen years of age and permitted her to consume the beer on their premises. At the time of this sale and consumption the minor was not requested to produce nor exhibit any bona fide documentary evidence of her majority or identity. About two or three weeks before the sale about mentioned, the girl had exhibited to a waitress in the establishment a temporary automobile operator's license, upon which the date of birth had been fraudulently altered to show the age as twenty-two, instead of nineteen. The Department of Alcoholic Beverage Control, by accusation, charged the licensees with a violation of sections 25658a and b, and 24200(b) of the Business and Professions Code for the acts heretofore mentioned. The Department of Alcoholic Beverage Control found, after a hearing, that the charges were true and found that the licensees had failed to establish the defense available to liquor licensees under section 25660, Business & Professions Code, that the alterations were reasonably apparent on an inspection of the driver's license, and also that the minor could not reasonably have been mistaken for a person of the age of majority. The licensees took an appeal to the Alcoholic Beverage Control Appeals Board, which considered the matter and made its decision. The Appeals Board ordered stricken from the decision the statements as to the alteration of the driver's license being apparent and as to the unlikelihood of the minor's being mistaken for an adult, on the ground that there was no evidence in the record to support such findings. The decision of the Department, however, was affirmed, apparently upon the ground that the licensees 'did not demand, nor were they shown, on April 20, 1956, documentary evidence of majority and identity.' The minor admitted altering the driver's license and exhibiting it as altered over a period of time to the licensees and their employees.

It seems generally agreed by all that the licensees had been previously imposed upon by the minor without fault on their part.

The licensees petitioned the superior court for a writ of mandate to compel the Department and the Appeals Board to set aside their decision. The writ was denied and this appeal is from that determination.

The question involved here is the interpretation of section 25660 of the Business & Professions Code, as amended in 1955. That section reads as follows:

'In any criminal prosecution or proceeding for the suspension or revocation of any license based upon violation of Section 25658, proof that the defendant licensee, or his agent or employee, demanded and was shown, immediately prior to furnishing any alcoholic beverage to a person under 21 years of age, bona fide documentary evidence of majority and identity of the person issued by a federal, state, county, or municipal government, or subdivision or agency thereof, including, but not limited to, a motor vehicle operator's license, a registration certificate issued under the Federal Selective Service Act, or an identification card issued to a member of the armed forces, is a defense to the prosecution or proceeding for the suspension or revocation of any license.' (Emphasis added.)

The 1955 amendment, among other things, substituted the words 'immediately prior,' for the word 'before,' just preceding the phrase 'furnishing any alcoholic beverage,' which had appeared in the statute before amendment.

Appellants' contentions are that a complete defense was established under the section in question; that the section does not require proof of age and identity on each occasion of service of an alcoholic beverage; that the section violates the due process clauses of the state and federal constitutions, and that a legislative body may not, under the guise of the police power, impose restrictions that are unnecessary and unreasonable upon the use of private property...