Rice Alcoholic Beverage etc. Appeals Bd.

• Decision Date: 31 January 1979
• Citation: 89 Cal.App.3d 30,152 Cal.Rptr. 285
• Parties: Baxter RICE, as Director of the Department of Alcoholic Beverage Control of the State of California, Petitioner, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD of the State of California, Respondent; Alfredo MARTINEZ d/b/a El Amigo David, Real Party in Interest. Baxter RICE, as Director of the Department of Alcoholic Beverage Control of the State of California, Petitioner, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD of the State of California, Respondent; Alfredo and Eyra MARTINEZ d/b/a Frank's Restaurant, Real Party in Interest. Civ. 43931, 43932.
• Court: California Court of Appeals Court of Appeals

Page 285

152 Cal.Rptr. 285

89 Cal.App.3d 30

Baxter RICE, as Director of the Department of Alcoholic Beverage Control of the State of California, Petitioner, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD of the State of California, Respondent;

Alfredo MARTINEZ d/b/a El Amigo David, Real Party in Interest.

Baxter RICE, as Director of the Department of Alcoholic Beverage Control of the State of California, Petitioner, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD of the State of California, Respondent;

Alfredo and Eyra MARTINEZ d/b/a Frank's Restaurant, Real Party in Interest.

Civ. 43931, 43932.

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

Jan. 31, 1979.

Hearing Denied March 29, 1979.

Evelle J. Younger, Atty. Gen., Matthew P. Boyle, Deputy Atty. Gen., San Francisco, for Dept. of Alcoholic Beverage Control.

W. D. Figg-Hoblyn, Sacramento, for respondent Alcoholic Beverage Control Appeals Bd.

James J. Reilly, San Francisco, for real parties in interest. RACANELLI, Presiding Justice.

We granted a writ of review in these consolidated cases to determine whether respondent Alcoholic Beverage Controls Appeals Board (hereafter Board) exceeded its jurisdiction in reversing the decision of the Department of Alcoholic Beverage Control (hereafter Department) revoking real parties' on-sale general licenses on grounds including the commission of crimes involving moral turpitude per se. We agree with the Department's findings and determinations that the crimes of possession of cocaine and marijuana for sale involve moral turpitude as a matter of law. We further conclude that no clear abuse of discretion is demonstrated in imposing a penalty of revocation under such circumstances. Accordingly, we annul those portions of the orders of the Board reversing the Department's decisions and direct reinstatement as hereinafter provided.

The procedural history and evidence disclosed in the administrative record is undisputed and recounted as follows:

The Accusations

On March 19, 1976, the Department filed two separate accusations against real parties in interest seeking suspension or revocation of the on-sale general liquor licenses pursuant to article XX, section 22, of the California Constitution and section 24200, subdivision (a), of the Business and Professions Code. ¹

The Millbrae Premises : The Millbrae accusation charged Alfredo Martinez, co-licensee of Eyra Martinez for the licensed premises known as "Frank's Restaurant," with the unlawful negotiation and sale of cocaine and possession of restricted dangerous drugs and narcotics paraphernalia; the accusation was later amended to add two additional counts charging Alfredo with convictions of violations of the Health and Safety Code, alleging his pleas of guilty in the San Mateo Superior Court to section 11351 (possession of a controlled substance for sale) and in the San Francisco Superior Court of a similar charge plus section 11359 (possession of marijuana for sale), crimes involving moral turpitude.

The San Francisco Premises : The San Francisco accusation charged Alfredo, sole licensee for the business premises known as "El Amigo David," with possession of a quantity of amphetamine tablets; the accusation was likewise amended to add similar counts based upon the San Mateo and San Francisco convictions.

The Administrative Decisions

During the administrative hearings conducted on May 31, 1977, testimony was presented that pursuant to a warrant search of the Millbrae premises, approximately two ounces of cocaine having a street value of over $2,500, and paraphernalia consistent with the use and processing of cocaine were found in the business office located in the rear of the licensed premises; a body search incident to Alfredo's arrest disclosed several bindles containing cocaine. Additionally, uncontroverted documentary evidence was received establishing Alfredo's guilt of the crimes charged in each accusation. Neither Alfredo nor co-licensee, Eyra, presented any evidence in defense or mitigation.

On June 14, 1977, the administrative law judge rendered proposed decisions ordering license revocations in each case. ² The decisions, as adopted by the Department, included findings that Alfredo (1) possessed cocaine, marijuana and narcotics paraphernalia on the Millbrae premises, and (2) had pled guilty to the charged crimes involving moral turpitude. The decisions concluded that the findings of possession and multiple convictions of felonious possession for sale constituted cause for revocation pursuant to the constitutional and statutory provisions; the remaining charges in each case were dismissed.

The Administrative Appeal

On administrative appeal, the Board concluded that (1) neither possession, nor possession for sale, of marijuana or cocaine constituted acts involving moral turpitude per se, but (2) such possession on the licensed (Millbrae) premises constituted acts contrary to the public welfare and morals justifying discipline. The Board further concluded that in view of the absence of evidence that the San Francisco offenses were committed on the licensed premises, a finding that such convictions was contrary to public welfare and morals was unsupported. Finally, that since the statutory misconduct was Alfredo's first offense, the penalty of revocation on that sole basis in each case was excessive. Following the Board's reversal and remand for reconsideration of penalty, the Department instituted the instant petition for review.

Issue Presented

The decisive question presented is whether a violation of the crimes of possession of cocaine and marijuana for purposes of sale constitutes an offense involving moral turpitude per se within the meaning of the relevant constitutional and statutory provisions.

Scope of Review

Our scope of review of a final decision of the Department is limited to a determination whether substantial evidence exists to support its underlying findings. (Boreta Enterprises, Inc. v. Department of Alcoholic Beverage Control (1970) 2 Cal.3d 85, 94, 84 Cal.Rptr. 113, 465 P.2d 1, and cases there cited.) Where there is no conflict in the evidence supporting the finding, then the conclusions or determinations reached present questions of law subject to review for correctness, jurisdictional excess or any resulting abuse of discretion. (Id. at p. 95, 84 Cal.Rptr. 113, 465 P.2d 1; see also Covert v. State Board of Equalization (1946) 29 Cal.2d 125, 132, 133, 173 P.2d 545.)

Herein, the evidence of Alfredo's guilt of the charged offenses is undisputed; ³ whether such offenses involve moral turpitude within the meaning of the applicable constitutional and statutory provisions thus becomes a question of law. (See In re Higbie (1972) 6 Cal.3d 562, 569, 99 Cal.Rptr. 865, 493 P.2d 97; Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 74, fn. 7, 64 Cal.Rptr. 785, 435 P.2d 553; In re McAllister (1939) 14 Cal.2d 602, 604, 95 P.2d 932.)

Moral Turpitude

The elusive concept of "moral turpitude" has long been the subject of judicial scrutiny; our courts have grappled with the amorphous term in a variety of factual contexts largely involving disciplinary proceedings. (In re Rohan (1978) 21 Cal.3d 195, 145 Cal.Rptr. 855, 578 P.2d 102; In re Cohen (1974) 11 Cal.3d 416, 113 Cal.Rptr. 485, 521 P.2d 477; In re Fahey (1973) 8 Cal.3d 842, 106 Cal.Rptr. 313, 505 P.2d 1369; In re Higbie, supra, 6 Cal.3d 562, 99 Cal.Rptr. 865, 493 P.2d 97; In re Hallinan (1954) 43 Cal.2d 243, 272 P.2d 768; In re McAllister, supra, 14 Cal.2d 602, 95 P.2d 932 (attorneys); Morrison v. State Board of Education (1969) 1 Cal.3d 214, 82 Cal.Rptr. 175, 461 P.2d 375 (school teacher); Yakov v. Board of Medical Examiners, supra, 68 Cal.2d 67, 64 Cal.Rptr. 785, 435 P.2d 553 (medical doctor); Hallinan v. Committee of Bar Examiners (1966) 65 Cal.2d 447, 55 Cal.Rptr. 228, 421 P.2d 76 (bar admittee); see also Board of Trustees v. Judge (1975) 50 Cal.App.3d 920, 123 Cal.Rptr. 830 (school teacher); Weissbuch v. Board of Medical Examiners (1974) 41 Cal.App.3d 924, 116 Cal.Rptr. 479 (medical doctor); Otash v. Bureau of Private Investigators (1964) 230 Cal.App.2d 568, 41 Cal.Rptr. 263 (private investigator).)

Notwithstanding its frequency of use as a legislatively imposed standard of conduct for purposes of discipline, ⁴ the concept by nature defies any attempt at a uniform and precise definition. For nearly 40 years our highest court has defined moral turpitude as "an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." (In re Craig (1938) 12 Cal.2d 93, 97, 82 P.2d 442, 444) or " 'everything done contrary to justice, honesty, modesty or good morals.' " (In re McAllister, supra, 14 Cal.2d 602, 603, 95 P.2d 932, 933; see also In re Rohan, supra, 21 Cal.3d 195, 200, 145 Cal.Rptr. 855, 578 P.2d 102; In re Fahey, supra, 8 Cal.3d 842, 849, 106 Cal.Rptr. 313, 505 P.2d 1369; In re Higbie, supra, 6 Cal.3d 562, 569, 99 Cal.Rptr. 865, 493 P.2d 97; Yakov v. Board of Medical Examiners, supra, 68 Cal.2d 67, 73, 64 Cal.Rptr. 785, 435 P.2d 553; In re Boyd (1957) 48 Cal.2d 69, 70, 307 P.2d 625; Webster's Third New Internat. Dict., p. 2469.) Yet it is innately a relative concept depending upon both contemporary moral values and the degree of its inimical quality (In re Fahey, supra, 8 Cal.3d at p. 849, 106 Cal.Rptr. 313, 505 P.2d 1369) whose purpose as a legislated standard is not punishment but protection of the public. (In re Rothrock (1940) 16 Cal.2d 449, 454, 106 P.2d 907; see also Hallinan v. Committee of Bar Examiners,supra, 65 Cal.2d at pp. 471-472, 55 Cal.Rptr. 228, 421 P.2d 76; Copeland v. Dept. of Alcoholic Bev. Control (1966) 241 Cal.App.2d 186, 188, 50 Cal.Rptr. 452.)

While not every public offense may involve conduct constituting moral turpitude without a showing of moral unfitness to pursue a licensed activity (Hallinan...