Greenblatt v. Martin

• Decision Date: 09 March 1961
• Citation: 189 Cal.App.2d 787,11 Cal.Rptr. 669
• Court: California Court of Appeals Court of Appeals
• Parties: Robert W. GREENBLATT, Petitioner and Respondent, v. Thomas W. MARTIN, Director of Alcoholle Beverage Control of the State of California, Respondent and Appellant. Civ. 19095.

Page 669

11 Cal.Rptr. 669

189 Cal.App.2d 787

Robert W. GREENBLATT, Petitioner and Respondent, v. Thomas W. MARTIN, Director of Alcoholle Beverage Control of the State of California, Respondent and Appellant.

Civ. 19095.

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

March 9, 1961.

As Amended March 27, 1961.

Hearing Denied May 3, 1961.

Stanley Mosk, Atty. Gen., Wiley W. Manuel, Deputy Atty. Gen., for appellant.

Walter H. Duane, San Francisco, for respondent.

FRED B. WOOD, Justice pro tem.

The State Director of Alcoholic Beverage Control has appealed from a judgment of the Superior Court which (1) set aside an order and decision of the State Alcoholic Beverage Control Appeals Board, (2) ordered the Director of Alcoholic Beverage Control to reinstate petitioner Greenblatt's license at the Aloha Club, 145 Eddy Street, San Francisco, and take no further action in this matter, and (3) directed the issuance of a peremptory writ of mandate.

After an administrative hearing the Department's hearing officer recommended findings against the licensee upon all four counts of the accusation, and revocation in respect to each of the counts. The Department adopted these recommendations except as to Count IV, which it dismissed.

Upon the licensee's appeal to the Alcoholic Beverage Control Appeals Board, the Department's decision was affirmed as to Counts II and III but reversed as to Count I.

The licensee then applied to the Superior Court for review pursuant to the sanction of the provisions of section 1094.5 of the Code of Civil Procedure. The case was heard upon the record of the proceedings before the Department and the Appeals Board, resulting in the judgment above described.

In the case of a statewide agency which exercises judicial functions conferred directly upon it by the Constitution, as does the agency here involved, the separation of powers clause of the Constitution does not apply. In such a case the trial court's power of review is governed by the 'substantial evidence' rule as used in civil adversary litigation. Martin v. Alcoholic Beverage Control Appeals Board, 52 Cal.2d 238, 246, 340 P.2d 1; Marini v. Department of Alcoholic Beverage Control, 177 Cal.App.2d 785, 786-787, 2 Cal.Rptr. 714. Our examination of the record convinces us that there is substantial evidence in support of the board's order and decision and that the judgment should be reversed.

Count II of the accusation charged that on September 6, 1957, the licensee allowed and permitted 'Betty' Doe to loiter in and about the licensed premises for the purpose of soliciting or begging alcoholic beverages for her own consumption.

Our examination of the evidence before the Department supports Count II. The following, which we find accurate, is the board's condensed summary of that evidence: 'The agent testified that on September 7, 1957, when he entered the premises there were two female persons sitting at the bar; that after he ordered a beer the woman Betty approached the agent and said that she was a waitress in the premises and requested that the agent purchase her a drink; that this conversation took place in the immediate presence of the bartender; that Betty said that she would take an 'Old Fashioned'; that before...