Mercurio v. Department of Alcoholic Beverage Control

• Decision Date: 25 September 1956
• Docket Number: No. 16986,16986
• Citation: 301 P.2d 474,144 Cal.App.2d 626
• Court: California Court of Appeals Court of Appeals
• Parties: Sara MERCURIO and Joseph F. Mercurio, Petitioners and Appellants, v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL and Russell S. Munro, Respondents.

Page 474

301 P.2d 474

144 Cal.App.2d 626

Sara MERCURIO and Joseph F. Mercurio, Petitioners and Appellants, v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL and Russell S. Munro, Respondents.

No. 16986.

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

Sept. 25, 1956.

Rehearing Denied Oct. 25, 1956.

Hearing Denied Nov. 21, 1956.

George C. Carmody, Pittsburg, for appellants.

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

BRAY, Justice.

Appellants, owners of an on-sale liquor license at 'Murphy's Club,' Pittsburg, were accused and found guilty by the State Board of Equalization of violating subdivisions (a) and (b) of section 24200, Business and Professions Code, rule 143 of the board, and article XX, section 22, Constitution, in that they permitted female employees to accept alcoholic beverages purchased on the premises. ¹

On a review by the superior court of the proceedings before the board the court found that the decision of the Department of Alcoholic Beverage Control ² was supported by the weight of the evidence and denied the writ of mandate petitioned for. The petitioners appeal.

Questions Presented.

1. Do the board findings support the decision? (a) Must a proprietor knowingly permit violations? (b) Did the board find that appellants' actions were contrary to public welfare and morals?

2. Is rule 143 unconstitutional?

3. Was there proof that the drinks were alcoholic?

4. Was the analysis of the contents of certain drinks admissible?

5. Are the trial court's findings sufficient?

Facts.

Four board officers testified that each on two separate occasions respectively purchased drinks at appellants' premises for one or more cocktail waitresses admittedly employed there. There were three separate dates involved, and on two of them appellant Joseph Mercurio was on the premises. If the drinks were alcoholic there is ample evidence in spite of Mercurio's testimony that he had instructed the waitresses not to drink while working and had never seen them doing so, to justify the finding that appellants permitted the waitresses to accept alcoholic beverages from the customers.

1. Board Findings.

(a) Knowledge.

The accusation charged appellants with knowingly permitting the waitresses to accept alcoholic beverages. The findings merely found that appellants permitted such to be done, omitting the word 'knowingly.' Appellants contend that this omission is fatal and that a liquor license may not be revoked unless the owner knowingly permitted the violation charged. As findings upon immaterial issues are not required Renfer v. Skaggs, 96 Cal.App.2d 380, 383, 215 P.2d 487, it becomes necessary to determine whether 'knowingly' is a necessary element of 'permitting' in this case.

Section 25750, Business and Professions Code, authorized the board to 'make and prescribe such reasonable rules as may be necessary or proper to carry out the purposes and intent of Section 22 of Article XX of the Constitution * * *.' Pursuant to that authority the board adopted rule 143. ³ Section 24200, Business and Professions Code, makes violating by a licensee or permitting the violation of any rule of the board adopted pursuant to section 25750 and other provisions of law, grounds for suspension or revocation of a license.

In neither rule 143 nor section 24200 is there any requirement that the 'permitting' be 'knowingly' done. In Swegle v. State Board of Equalization, 125 Cal.App.2d 432, 270 P.2d 518, in upholding the revocation of a liquor license on a charge that the owner permitted the premises to be used as a disorderly house, the court held that the permission did not have to be a 'knowing' one. The case dealt with section 58 of the then Alcoholic Beverage Control Act, and the court stated that the word 'permits' therein included 'an unknowing consent' and that a licensee can be held to have permitted acts constituting a violence by a showing that the acts themselves took place. In our case, one of the licensees was present when most of the acts took place. The language of the Swegle case is particularly appropriate here, 125 Cal.App.2d at page 438, 270 P.2d at page 522: 'Appellant's agents were always present in the bar. It was said in Mantzoros v. State Board of Equalization, 87 Cal.App.2d 140, 144, 196 P.2d 657, 660, that 'The licensee, if he elects to operate his business through employees must be responsible to the licensing authority for their conduct in the exercise of his license, else we would have the absurd result that liquor could be sold by employees at forbidden hours in licensed premises and the licensees would be immune to disciplinary action by the board. Such a result cannot have been contemplated by the Legislature. Even in the case of criminal statutes vicarious liability for the acts of employees is not unknown.' Therefore, whatever is permitted by appellant's agents must be attributed to her.'

Keane v. Reilly, 130 Cal.App.2d 407, 279 P.2d 152, cited by appellants, is not opposed to this rule. There this court held that the alleged violation by the bartender had not been proved. The question of knowledge by the licensee was not involved. Nor is Tatsuko Okuda Endo v. State Board of Equalization, 143 Cal.App.2d 395, 300 P.2d 366, in point. There the court was dealing with section 24200.5(a), Business and Professions Code, which expressly requires that the licensees 'permitting' the illegal sale of narcotics must be 'knowingly' done. The very fact that rules and laws providing for violations for which disciplinary action may be taken, provide that some violations must be 'knowingly' done and as to others the word 'knowingly' is omitted, indicates that in the latter cases there is no requirement that the violations be knowing ones. 'Knowingly' not being required in either Rule 143 or section 24200, the use of that word in the accusation was immaterial and is not necessary to be found. The board's finding that appellants permitted the violation was sufficient.

(b) Contrary to Public Welfare and Morals.

The board made no finding in so many words that appellants' acts or the violations were contrary to public welfare and morals. ⁴ The board found that ppellants morals. ⁴ The board found that appellants Section 22 of Article XX of the Constitution of California and of the Alcoholic Beverage Control Act.' ⁵ This, in effect, is a finding that the acts of appellants were contrary to public welfare and morals because by specifically adopting rule 143, the board was articulating the acts specified therein as being ones which the board felt were contrary to public welfare and morals. The rule was adopted to enable the board to exercise the powers conferred upon it by the Constitution. Moreover, it requires no argument to prove that permitting women employees of an on-sale liquor premises to accept alcoholic drinks purchased by patrons is contrary to the public welfare and morals.

2. Constitutionality of Rule 143.

Appellants attack its constitutionality on the ground that the rule is too broad, covering, as they claim, a situation where, the premises being closed, a waitress accepts a drink from the licensee, or the waitresses at such time buy each other drinks. They contend that in considering the reasonableness of a statute, the manner in which it might be construed is to be considered, not merely the way it is construed. (Apparently appellants are contending that if one can conjure up some hypothetical situation as to which the rule might be unreasonable, the rule must be held unconstitutional in every case of facts actually before the court. They cite no authority to this effect.) That is not the rule. As said in Max Factor & Co. v. Kunsman, 5 Cal.2d 446, 468, 55 P.2d 177, 187: 'Respondent presents several hypothetical situations under which enforcement of the act would be inequitable or difficult, or, perhaps, even unconstitutional. It is elementary, of course, that a statute may be invalid as applied to one set of facts, yet valid as applied to another. Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239. The situations conjured up by respondent are not here involved, and respondent is limited in his attack to the application of the statute to the factual situation now before the court.' We fail to see, and counsel has not pointed out, any respect in which rule 143 as applied to the facts of this case is either unreasonable or arbitrary. On the contrary, on the face of it, it is a very reasonable and necessary rule if taverns and the like are to be decently conducted.

Appellants further contend that because the Legislature enacted sections 25657 and 24200.5(b), Business and Professions Code, it covered the field and that the board, even under the powers granted by section 22 of article XX, Constitution, and by section 25750, Business and Professions Code, could not prohibit actions of the licensee not prohibited by those sections. Section 25657 prohibits the employment or paying of hostesses or entertainers to procure or encourage the purchase of alcoholic beverages on the licensed premises or to employ or permit anyone to loiter in or about the premises to beg or solicit anyone to purchase any alcoholic beverage for the solicitor. The section was probably adopted to meet the B-girl situation. Section 24200.5(b), Business and Professions Code, provides for revocation if licensee has employed anyone to solicit or encourage others to buy drinks. We find nothing in the law limiting the board's powers of termination of a license to the precise statutory grounds. It is clear from an examination of the Constitution and of section 25750 that the board has the broad power to determine what shall be 'contrary to public welfare or morals' and to prohibit a licensee from doing or permitting on his premises any such acts.

The rule has a reasonable relation to the legitimate ends for which the board was created; i. e., to...