Hargens v. Alcoholic Beverage Control Appeals Bd.

• Decision Date: 28 June 1968
• Citation: 69 Cal.Rptr. 868,263 Cal.App.2d 601
• Court: California Court of Appeals Court of Appeals
• Parties: Donavan J. HARGENS and Helen E. Hargens, dba Can-Can Petitioners, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD, Respondent; DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, State of California, Real Party in Interest. Civ. 32796.

Page 868

69 Cal.Rptr. 868

263 Cal.App.2d 601

Donavan J. HARGENS and Helen E. Hargens, dba Can-Can Petitioners, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD, Respondent DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, State of California, Real Party in Interest.

Civ. 32796.

Court of Appeal, Second District, Division 2, California.

June 28, 1968.

Rehearing Denied July 12, 1968.

Hearing Denied Aug. 21, 1968.

Potter, Creim & Rogers and Bertram L. Potter, Pasadena, for petitioners.

Thomas C. Lynch, Atty. Gen., and David Gould, Deputy Atty. Gen., for respondent and Real Party in Interest.

American Civil Liberties Union by William D. Markenson, Los Angeles, amicus curiae.

McCOY, Justice pro tem. ^*

This is a timely proceeding to review a decision of the Alcoholic Beverage Control Appeals Board affirming a decision of the Department of Alcoholic Beverage Control suspending petitioners' on-sale beer and wine license. (Bus. & Prof.Code, § 23090 et seq.)

On January 26, 1967, an accusation was filed with the department against petitioners, charging that on December 22, 1966, they, as licensees 'did use the services of Angelina McKeel, a female person not the wife of co-licensee Donovan Hargens, in the dispensing of wine from behind a permanently affixed fixture which is used for the preparation or concoction of alcoholic beverages on the (licensed) premises used for the sale of alcoholic beverages for consumption thereon,' in violation of section 25656 of the Business and Professions Code. Following hearing on the accusation the hearing officer recommended that petitioners' license be suspended for five days. On May 18 the department adopted the decision of the hearing officer as its decision to become effective July 6, 1967. The decision of the department was affirmed by the Alcoholic Beverage Control Appeals Board on January 30, 1968.

Although purportedly attacking the decision of the department on several statutory grounds (Bus. & Prof.Code, § 23090.2), petitioners' principal contention, and the only one with respect to which any authorities have been presented, is that section 25656 of the Business and Professions Code is unconstitutional. Specifically they contend that the section violates the Fifth and Twenty-fourth Amendments of the United States Constitution, in that it denies them equal protection of the laws and denies them substantive due process of law. They further contend that the section also violates their rights under article XX, section 18, of the California Constitution. ¹ Accordingly, we shall confine ourselves to a consideration of the constitutionality of the section.

At the time the accusation was filed against petitioners section 25656 of the Business and Professions Code read as follows: 'Every person who uses the services of a female in dispensing wine or distilled spirits from behind any permanently affixed fixture which is used for the preparation or concoction of alcoholic beverages containing distilled spirits, on any premises used for the sale of alcoholic beverages for consumption on the premises, or any female who renders such services on such premises, is guilty of a misdemeanor, and upon conviction is punishable by a fine of not more than one hundred dollars ($100) or by imprisonment in the county jail for not more than three months, or by both such fine and imprisonment. The provisions of this section do not apply to the dispensing of wine or distilled spirits or to the mixing of alcoholic beverages containing distilled spirits by any on-sale licensee or to the dispensing of wine or distilled spirits or to the mixing of such beverages by the wife of any licensee on the premises for which her husband holds an on-sale license.' ²

It is not necessary to review here the cases which govern the powers of the courts in determining the constitutionality of acts of the Legislature. It is enough to note, as stated in Eye Dog Foundation v. State Board of Guide Dogs for the Blind, 67 Cal.2d 536, 63 Cal.Rptr. 21, 27, 'that every intendment is in favor of the constitutionality of the legislative act. (Lockard v. City of Los Angeles, 33 Cal.2d 453, 460, 202 P.2d 38, 7 A.L.R.2d 990.) As stated in Lockard, '* * * we must keep in mind the fact that the courts are examining the act of a coordinate branch of the government--the legislative--in a field in which it has paramount authority, and not reviewing the decision of a lower tribunal or of a fact-finding body. Courts have nothing to do with the wisdom of laws or regulations, and the legislative power must be upheld unless manifestly abused so as to infringe on constitutional guaranties. The duty to uphold legislative power is as much the duty of appellate courts as it is of trial courts, and under the doctrine of separation of powers neither the trial nor appellate courts are authorized to 'review' legislative determinations. The only function of the courts is to determine whether the exercise of legislative power has exceeded constitutional limitations.' (Pp. 461--462, 202 P.2d p. 43.)'

The essence of petitioners' argument is that in enacting section 25656 of the Business and Professions Code, the Legislature adopted an unreasonable and arbitrary classification of persons who may dispense wine or distilled spirits from behind a bar or in mixing alcoholic beverages containing distilled spirits which deprives petitioners of equal protection of the law and that the action is therefore unconstitutional. They contend that there can be no constitutionally reasonable--nor any logical distinction made between a female licensee or the wife of any licensee on the premises for which her husband holds an on-sale license, and any other female.

The rules by which we must determine whether section 25656 establishes an arbitrary or unreasonable classification were recently restated in WHITTAKER TAKER V. SUPERIOR COURT, 68 CAL.2D ---, --- - ---, 66 CAL.RPTR. 710, 718, 438 P.2D 358, 366:^A 'It is clear, however, that neither the equal protection clause of the United States Constitution,14 nor those provisions

of the state Constitution which embody the principle of equality before the law,15 proscribe

Cal. Law (7th ed. 1960) Constitutional Law, § 125, p. 1930), permit classification 'which has a substantial relation to a legitimate object to be accomplished. * * *' (Board of Education of City of Los Angeles v. Watson (1966) 63 Cal.2d 829, 833, 48 Cal.Rptr. 481, 409 P.2d 481; see Morey v. Doud (1957) 354 U.S. 457, 463--466, 77 S.Ct. 1344, 1 L.Ed.2d 1485, 1490--1492; Blumenthal v. Board of Medical Examiners (1962) 57 Cal.2d 228, 233, 18 Cal.Rptr. 501, 368 P.2d 101; Lelande v. Lowery (1945) 26 Cal.2d 224, 232, 157 P.2d 639, 175 A.L.R. 1109; People v. Western Fruit Growers, Inc. (1943) 22 Cal.2d 494, 506, 140 P.2d 13; Martin v. Superior Court (1924) 194 Cal. 93, 100, 227 P. 762.) So long as such a classification 'does not permit one to exercise the privilege while refusing it to another of like qualifications, under like conditions and circumstances, it is unobjectionable upon this ground.' (Watson v. Division of Motor Vehicles (1931) 212 Cal. 279, 284, 298 P.2d 481, 483; see also Blumenthal v. Board of Medical Examiners, supra, 57 Cal.2d 228, 233, 18 Cal.Rptr. 501, 368 P.2d 101.) Finally, it is to be observed that a classification based on legislative experience is presumed valid and will not be rejected unless plainly arbitrary. 'Statutory discrimination between classes which are in fact different must be presumed to be relevant to a permissible legislative purpose, and will not be deemed to be a denial of equal protection if any state of facts could be conceived which would support it.' (Asbury Hospital v. Cass County (1945) 326 U.S. 207, 215, 66 S.Ct. 61, 90 L.Ed. 6, 13; see Board of Education v. Watson, supra, 63 Cal.2d 829, 833, 48 Cal.Rptr. 481, 409 P.2d 481.)' ³ As stated in Morey v. Doud, 354 U.S. 457, 463--464, 77 S.Ct. 1344, 1349, 1 L.Ed.2d 1485, 1490, cited in Whittaker, supra, the rules for testing a statutory discrimination have been summarized in Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 79, 31 S.Ct. 337, 55 L.Ed. 369, 377, as follows: '1. The equal-protection clause of the 14th Amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.' To these rules the court added 'the caution that 'Discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.' Louisville Gas & E. Co. v. Coleman, 277 U.S. 32, 37--38, 72 L.Ed. 770, 774, 48 S.Ct. 423, 425; Hartford Steam Boiler Inspection Ins. Co. v. Harrison, 301 U.S. 459, 462, 57 S.Ct. 838, 840, 81 L.Ed. 1223, 1226.' These rules are quoted with approval in Ferrante v. Fish & Game Commission, 29 Cal.2d 365, 371--372, 175 P.2d 222.

Coming to the case before us, it must be remembered that 'There can be no question that because of the particular problems presented by traffic in liquor that it is subject to regulation by the state in the exercise of its police power. Schaub's, Inc. v. Department of Alcoholic Beverage Control, 153 Cal.App.2d 858, 867, 315 P.2d 459. Furthermore, "* * * there is no inherent right in a citizen...