Lukin v. State Bd. of Equalization

• Decision Date: 17 September 1953
• Citation: 120 Cal.App.2d 261,260 P.2d 1046
• Court: California Court of Appeals Court of Appeals
• Parties: LUKIN et al. v. STATE BOARD OF EQUALIZATION et al. Civ. 19340.

Page 1046

260 P.2d 1046

120 Cal.App.2d 261

LUKIN et al. v. STATE BOARD OF EQUALIZATION et al.

Civ. 19340.

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

Sept. 17, 1953.

Philip E. Poppler, Long Beach, for appellants.

Edmund G. Brown, Atty. Gen., Alexander Googooian, Deputy Atty. Gen., for respondents.

DORAN, Justice.

According to appellants' brief, 'Petitioners applied for an off-sale general liquor license and the Board refused to receive, act upon or grant the application. Petitioners thereupon petitioned for an alternative writ of mandamus and for damages, to which petition the Board demurred. The demurrer was sustained without leave to amend, from which order (judgment of dismissal) petitioners appeal'.

The Board's refusal to act on appellants' application, renewed several times, was based, as respondents state, 'on its interpretation of Section 38f of the Alcoholic Beverage Control Act [Gen.Laws, Act 3796], which interpretation did not allow the issuance of any new off-sale general licenses in Los Angeles County on the basis of a population increase, as the total number of off-sale licenses, including off-sale beer and wine licenses, was in excess of the number allowable for the population of Los Angeles County, (one per 1,000 persons in a county)'.

Section 38f reads as follows:

'It is hereby determined that the public welfare and morals require that there be a limitation on the number of premises licensed for the sale of distilled spirits.

'The number of premises for which an on-sale general license is issued shall be limited to one of such premises for each 1,000, or fraction thereof, inhabitants of the county for which the premises are situated, provided that no additional on-sale general licenses, other than a renewal or transfer or as permitted hereinafter in this section, shall be issued in any county where the number of all premises for which on-sale licenses, other than on-sale beer licenses, are issued shall be more than one of such premises for each 1,000 or fraction thereof, inhabitants of such county, and provided further that no on-sale general license shall be issued in lieu of or upon the cancellation or surrender of an on-sale beer and wine license. The number of premises for which an off-sale general license is issued shall be limited to one of such premises for each 1,000, or fraction thereof, inhabitants of the county in which the premises are situated, provided that no additional off-sale general license, other than a renewal or transfer or as permitted hereinafter in this section, shall be issued in any county where the number of premises for which all off-sale licenses are issued shall be more than one of such premises for each 1,000, or fraction thereof, inhabitants of such county. Population * * * shall be determined by the most recent United States decennial or special census.' (Italics added.)

The trial court's judgment of dismissal, entered after the sustaining of respondents' demurrer to petitioners' petition for a writ of mandate, without leave to amend, states that judicial notice is taken of official statistics published in the Alcoholic Beverage Control Bulletin for June, 1951, showing that 'there are 3,336 premises with off-sale general liquor licenses, 198 premises with off-sale and on-sale general liquor licenses, and 3,747 premises with off-sale beer and wine licenses, making a total of 7,281 premises with off-sale liquor licenses in the County of Los Angeles.' Under this computation, as respondents' brief points out, the Board could not possibly issue a new license to appellants, possessed no discretion in respect to the matter; therefore no hearing was required.

Appellants object to the Board's interpretation of Section 38f of the Alcholic Beverage Control Act, 'so as to include in the computation of the total number of off-sale general licenses the number of existing off-sale beer and wine licenses'. In support of this contention appellants cite such cases as Johnstone v. State Board of Equalization, 95 Cal.App.2d 527, 213 P.2d 429. Unlike the present case, the Johnstone opinion involved an...