Griswold v. Department of Alcoholic Beverage Control

• Decision Date: 24 May 1956
• Citation: 297 P.2d 762,141 Cal.App.2d 807
• Court: California Court of Appeals Court of Appeals
• Parties: Dewey GRISWOLD and Fritz Hommen, Petitioners and Appellants, v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL and Russell S. Munro, Director of Department of Alcoholic Beverage Control, Respondents. Civ. 16848.

Page 762

297 P.2d 762

141 Cal.App.2d 807

Dewey GRISWOLD and Fritz Hommen, Petitioners and Appellants, v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL and Russell S. Munro, Director of Department of Alcoholic Beverage Control, Respondents.

Civ. 16848.

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

May 24, 1956.

Morris Oppenheim, San Francisco, for appellants.

Edmund G. Brown, Atty. Gen., Charles A. Barrett, Deputy Atty. Gen., for respondents.

PETERS, Presiding Justice.

Dewey Griswold and Fritz Hommen operate a restaurant and bar in Los Altos, Santa Clara County, and are the possessors of an on-sale general liquor license. They were duly charged with selling liquor to a minor on a specified date, and with permitting the minor to consume the liquor on the licensed premises. After a hearing, the hearing officer acquitted the licensees of the consumption charge, but found that the licensees had furnished whiskey to the minor in violation of the Alcoholic Beverage Control Act, Business and Professions Code, § 23000 et seq., and recommended a 15-day suspension of the license. The Department of Alcoholic Beverage Control adopted the recommendation of the hearing officer, which decision was affirmed by the Alcoholic Beverage Control Appeals Board. On petition for a writ of mandate, the Superior Court denied the petition. The licensees appeal from that judgment.

The finding that the licensees furnished whiskey to a minor on October 2, 1954, is supported by the evidence.

The minor involved, a student at Stanford University, was 20 years and four months of age at the time of the offense. He testified that on the night in question he attended a party at the licensed premises given by his fraternity; that after the meeting he walked up to the bar which was quite crowded; that he called out to the bartender that he wanted a 'bourbon on rocks'; that the bartender placed the drink on the bar and a customer picked it up and handed it to him; that he then tossed 50 cents on the bar as the drink was in transit to him; that he then sat down at a nearby table but, before he had started to consume the drink, liquor control officers picked it up and put it in a bottle; that at no time did anyone connected with the licensed premises ask him his age or for identification.

Liquor control officer Spitzley testified that he and three other liquor control officers arrived at the licensed premises about 10:20 p. m. of October 2, 1954; that he and another officer entered the restaurant and in a rear room saw 'a group of young people sitting at a table with liquor in front of them--apparently liquor'; that he questioned the Stanford student, and after being first told by the boy that he was 21, finally ascertained from his driver's license that he was 20 years and 4 months old; and that the student stated that he had bought the drink at the front bar. The seized frink was put into a medicine bottle.

Officer Coulman corroborated Spitaley and testified that when he entered the back room he saw the student 'with an old fashioned glass which we assumed to contain distilled spirits, in his hand'; that Spitzley then 'seized the old fashioned glass which contained distilled spirits.'

Neither officer saw the student consume any of the liquor. Neither the bottle nor its contents containing the student's drink was introduced into evidence. The officers also testified that Cobb, the bartender, did not deny serving the drink to the student, but stated that he could not remember doing so. He admitted that he was the only bartender on duty at the time.

Griswold, one of the licensees, appeared at the hearing in propria persona. He did not deny that liquor had been served to the minor, but testified that the policy of the restaurant was to be careful about serving minors, and that 'it was crowded that night,' and the student looked 'around 25 or 26, and that was one reason * * * a mistake was made, but we try to stay within the law.'

The record also shows, and the hearing officer expressly found, that there was no previous record of any violations by the licensees.

The finding that the licensees served liquor to a minor is supported. The findings of the Alcoholic Beverage Control Board, a constitutional agency, must 'be sustained if it has committed no error of law and if the evidence, although conflicting, is sufficient to support its findings of fact.' Covert v. State Board of Equalization, 29 Cal.2d 125, 131, 173 P.2d 545, 548; see also Genser v. State Personnel Board, 112 Cal.App.2d 77, 245 P.2d 1090; Chosick v. Reilly, 125 Cal.App.2d 334, 270 P.2d 547; § 1094.5, Code Civ.Proc.

The major contention of appellants is that there is no substantial evidence to sustain the finding that the beverage served to the student contained distilled spirits, and if there is any such evidence it is hearsay or improper conclusion evidence which should have been excluded by...