Greenblatt v. Munro

• Decision Date: 24 June 1958
• Docket Number: No. 18000,18000
• Citation: 326 P.2d 929,161 Cal.App.2d 596
• Parties: Robert W. GREENBLATT, Petitioner and Appellant, v. Russell S. MUNRO, Director of Aicoholic Beverage Control, Respondent.
• Court: California Court of Appeals Court of Appeals

Page 929

326 P.2d 929

161 Cal.App.2d 596

Robert W. GREENBLATT, Petitioner and Appellant, v. Russell S. MUNRO, Director of Aicoholic Beverage Control, Respondent.

No. 18000.

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

June 24, 1958.

Rehearing Denied July 24, 1958.

Walter H. Duane, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Wiley W. Manuel, Deputy Atty. Gen., for respondent.

BRAY, Justice.

Appellant appeals from a superior court judgment denying his application for a peremptory writ of mandate in which appellant sought to reverse the action of the Department of Alcoholic Beverage Control affirmed by the Alcoholic Beverage Control Appeals Board.

'Questions Presented.

1. Sufficiency of the evidence. The main contention in this respect is that the findings were based solely upon hearsay evidence and that therefore the evidence was insufficient.

2. Was there a violation of section 303a, Penal Code?

3. Does the rule requiring exhaustion of administrative remedy bar consideration by this court of question 2?

Record.

Appellant is the holder of an on-sale liquor license at a place in San Francisco known as the Robin Hood. He was charged with six counts of violation of liquor control regulations. The hearing officer dismissed all but count III and count V, and found that under count III appellant was guilty of violating rule 143 of the department, in knowingly permitting Anna, employed by him, to solicit at said place Donald Madsen for an alcoholic beverage, to wit, champagne, and that under count V appellant was guilty of violating rule 143 and section 303a, Penal Code, in knowingly permitting Grace, a cigarette girl employed by him, to solicit Richard Gerisch for about ten 'screwdrivers,' a mixed drink containing orange juice and vodka, an alcoholic beverage. The department adopted the hearing officer's findings, imposed a 60 day suspension of license for the count III violation, and revoked appellant's license for the count V violation.

Evidence.

About 10 p. m. September 27, 1955, Madsen, a department agent, entered the Robin Hood, taking a seat at a table. Anna, an entertainer employed by appellant, was drinking an undisclosed beverage with two other patrons. Leaving them, she joined Madsen. Thereafter Anna at least three times asked Madsen to buy her champagne. Madsen refused but did buy her three 'mists' which Anna said contained brandy, vodka and orange juice. The price for each was $1.25. Appellant testified that a 'mist' as served in his place contained orange juice only. ¹

December 21, 1955, about 1 a. m., Gerisch, in military uniform, having just been released from the army, entered the Robin Hood. Grace, employed there as a cigarette girl, approached and asked him to buy her a drink. Gerisch ordered a 'Seagrams seven, seven-up.' The bartender asked Grace if she wanted a 'screwdriver.' She said that she did. Gerisch paid 90 cents for his drink and $1.20 for hers. During his stay there Grace asked him for a drink four times. He actually bought her about 10 or 12. He left at 2 a. m. 'feeling good.' He had spent $130 in that time. He put his money on the bar and didn't watch it. He thinks he was short-changed. There was evidence showing that appellant's feminine employees were free to mingle with the patrons at the bar and drink beverages solicited from the patrons. Appellant was on the premises and observed Gerisch buying Grace drinks. Within a few days thereafter appellant discharged Grace, solicitation of drinks being one of the factors, but an indirect one. The fact that both Grace and Anna had solicited drinks was brought to his attention and he discharged them both. Appellant testified that a 'screwdriver' as served in his place contained orange juice and vodka. He had instructed the girls not to solicit patrons to buy them alcoholic drinks although the girls could have nonalcoholic drinks.

1. Sufficiency.

Petitioner contends ² that Madsen's testimony is not sufficient to support the count III findings, because (1) it was not proved that a 'mist' contains alcohol, and (2) that no champagne was actually served, and (3) Madsen's testimony was hearsay and therefore not sufficient. As to (1), the findings were in favor of appellant on this point, and were not used as a basis for suspension. As to (2), there can be no denial that champagne is an alcoholic drink. In a charge of soliciting to buy it is immaterial whether the drink solicited is actually purchased. Rule 143, Alcoholic Beverage Control Act, provides: 'No on-sale retail licensee shall permit any female employee of such licensee to solicit, in or upon the licensed premises, the purchase or sale of any alcoholic beverage, any part of which is for, or intended for, the consumption or use of such female employee * * *' It is the soliciting of the drink that constitutes the offense charged here. ³ There appear to be no cases discussion this precise question as it applies to rule 143. However, the analogy of the criminal law applies. There a person is guilty of solicitation where he solicits another to commit a crime, even though the crime solicited is never committed. 'It is complete when the solicitation is made, and it is immaterial that the object of the solicitation is never consummated, or that no steps are taken towards its consummation.' People v. Burt, 1955, 45 Cal.2d 311, 314, 288 P.2d 503, 505, 51 A.L.R.2d 948; see also 14 Cal.Jur.2d 224.

As to (3), appellant contends that the statements made to Madsen by appellant's employees were hearsay as to him, and that section 11513, Government Code, requires more than hearsay evidence. That section states: '* * * Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.'

While Anna's statement to Madsen as to the fact that a 'mist' contains alcoholic liquors was hearsay, her statements and those of Grace which constituted solicitations were not hearsay. We are not concerned with the truth of what the girls said but with the fact that they made the statements.

It is stated in VI Wigmore on Evidence, 3rd ed., pp. 177-178, that 'The theory of the Hearsay rule * * * is that, when a human utterance is offered as evidence of the truth of the fact asserted in it, the credit of the assertor becomes the basis of our inference, and therefore the assertion can be received only when made upon the stand, subject to the test of cross-examination. If, therefore, an extra-judicial utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the Hearsay rule does not apply. The utterance is then merely not obnoxious to that rule. It may or may not be received, according as it has any relevancy in the case; but if it is not received, this is in no way due to the Hearsay rule.' (See also 19 Cal.Jur.2d 109.)

In People v. Henry, 1948, 86 Cal.App.2d 785, 195 P.2d 478, the defendant was accused of attempting to obtain narcotics by fraud and misrepresentation. In rejecting the defendant's contention that the trial court erred in admitting certain testimony, the court said (86 Cal.App.2d at page 789, 195 P.2d at page 480): 'With respect to the telephone conversations between the pharmacist and the first-named drug store and an unknown person and that between the pharmacist at the second drug store and an unnamed person, only one party to the respective conversations testified and of course the appellant was not a party thereto. There is a well-established exception or departure from the hearsay rule applying to cases in which the very fact in controversy is whether certain things were said or done and not as to whether these things were true or false, and in these cases the words or acts are admissible not as hearsay, but as original evidence.' See also People v. King, 1956, 140 Cal.App.2d 1, 294 P.2d 972.

In Werner v. State Bar, 1944, 24 Cal.2d 611, 150 P.2d 892, the statements of the petitioner's wife as related by three witnesses were held not to be hearsay. The court said that the hearsay rule does not forbid the admission of evidence that a statement has been made when the making of the statement is significant irrespective of the truth or falsity of its content.

In Head v. Wilson, 1939, 36 Cal.App.2d 244, 97 P.2d 509, it was held that a telephone call to the hospital was not hearsay as it was not introduced for its truth, but only to show that it was made and acted upon. The issue there was whether an ambulance was responding to an emergency call at the time it was involved in an accident.

In the instant case the statements of the bartender and female employees were not introduced for truth of the contents but only to show what was said, for what was said is part of the violation itself. It made no difference whether the female employees wanted the beverages or not as long as they did ask the witness to purchase the beverages. As the violation is the solicitation, such can only be accomplished by words.

As to count V, appellant contends that it was not proved that Grace was served an alcoholic drink. The bartender asked her if she wanted a 'screwdriver' and she said she did. As we have heretofore pointed out, it is not necessary that she actually received the drink. Here, however, there is proof that she did receive an alcoholic drink.

Since it was indicated by the bartender that he was serving Grace a 'screwdriver,' there is a disputable presumption that she was served an alcoholic drink which presumption prevails until controverted and may support a finding. Griswold v. Dept. of Alcoholic Beverage Control, 141 Cal.App.2d 807, 811, 297 P.2d 762. In Mercurio v. Dept. of Alcoholic, etc., Control, 144 Cal.App.2d 626, 634-635, 301 P.2d 474, at page 481, it is said: 'If the bartender were to serve soft drinks when alcoholic...