Sail'er Inn, Inc. v. Kirby

Decision Date27 May 1971
CourtCalifornia Supreme Court
Parties, 485 P.2d 529, 3 Fair Empl.Prac.Cas. (BNA) 550, 46 A.L.R.3d 351 SAIL'ER INN, INC., et al., Petitioners, v. Edward J. KIRBY, as Director, etc., et al., Respondents. L.A. 29811. . In Bank

Manuel H. Miller and Julius A. Dix, Sherman Oaks, for petitioners.

Richard Gladstein, Gladstein, Leonard, Patsey & Andersen, San Francisco, and Herma Hill Kay, Berkeley, as amici curiae on behalf of petitioners.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., and Henry G. Ullerich, Deputy Atty. Gen., for respondents.

PETERS, Justice.

Petitioners, holders of on-sale liquor licenses, seek a writ of mandate to prevent the Department of Alcoholic Beverage Control from revoking their licenses because they hired women bartenders, contrary to the prohibition contained in section 25656 of the Business and professions Code. 1 Section 25656 prohibits women from tending bar except when they are licensees, wives of licensees or are, singly or with their husbands, the sole shareholders of a corporation holding the license. 2 Petitioners and amicus curiae contend that the code section violates article XX, section 18 of the California Constitution, the 1964 Federal Civil Rights Act (42 U.S.C.A. § 2000e--2), and the equal protection clauses of the United States and California Constitutions. 3

Petitioners challenge the constitutionality of the statute on its face; no material facts are disputed. 4 They raise important legal issues of statewide significance. Two of them are placed in the untenable situation of having to choose whether to obey possibly conflicting federal and state laws and face a penalty under the one they choose to disobey. In light of these extraordinary circumstances, it would be improper to require them to exhaust their administrative remedies.

Mandamus, like certiorari, is an appropriate writ for the review of the exercise of quasi-judicial power by constitutionally authorized statewide agencies such as the Department of Alcoholic Beverage Control (Cal.Const., art. XX, § 22; People v. County of Tulare, 45 Cal.2d 317, 319, 289 P.2d 11; Boren v. State Personnel Board, 37 Cal.2d 634, 637, 234 P.2d 981; see also Kleps, Certiorarified Mandamus Reviewed: The Courts and California Administrative Decisions--1949--1959, 12 Stan.L.Rev. 554, 555, 563, fn. 35.) While ordinarily mandamus will issue only after final order or decision of the administrative agency, a limited number of exceptions to the exhaustion doctrine have long been recognized in this state. (See, e.g., County of Alpine v. County of Tuolumme (1958) 49 Cal.2d 787, 322 P.2d 449; United States v. Superior Court (1941) 19 Cal.2d 189, 120 P.2d 26; Diaz v. Quitoriano, 268 Cal.App.2d 807, 812, 74 Cal.Rptr. 358.)

The writ of mandate 'may be issued by any court * * * to any inferior tribunal, corporation, board, or person * * * to compel the admission of a party to the use and enjoyment of a Right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person.' (Italics added.) (Code Civ.Proc., § 1085.) In a number of cases, mandamus has been held to issue to prohibit official conduct where prohibition would not lie because the threatened official act was not judicial but ministerial in nature. (Miller v. Greiner, 60 Cal.2d 827, 830, 36 Cal.Rptr. 737, 389 P.2d 129; Perry v. Jordan, 34 Cal.2d 87, 207 p.2d 47; Evans v. Superior Court, 20 Cal.2d 186, 124 P.2d 820; see 3 Witkin, Cal.Procedure (1954) § 77, pp. 2575--2577.)

Accordingly, although the remedy of certiorari might be appropriate as to the petitioners who have been charged with violations of section 25656, mandate is also appropriate, and mandate is an appropriate remedy for those petitioners not yet charged but who wish to employ female bartenders and fear enforcement of the section by defendant.

By issuing the alternative writ, we have determined that the legal remedy is inadequate, and the exercise of our jurisdiction in this case is proper. (San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d 937, 945, 92 Cal.Rptr. 309, 479 P.2d 669; Westbrook v. Mihaly (1970) 2 Cal.3d 765, 773, 87 Cal.Rptr. 839, 471 P.2d 487; Hagan v. Superior Court (1960) 53 Cal.2d 498, 2 Cal.Rptr. 288, 348 P.2d 896.)


Article XX, section 18 of the California Constitution provides that '(a) person may not be disqualified because of sex, from entering or pursuing a lawful business, vocation, or profession.' 5

In explicit and unqualified language, this section makes it clear that sex alone may not be used to bar a person from a vocation, profession or business. (See, e.g., Carter v. City of Los Angeles (1948) 31 Cal.2d 341, 346, 188 P.2d 465; Matter of Maguire (1881) 57 Cal. 604.) Provisions of the Constitution are 'mandatory and prohibitory, unless by express words they are declared to be otherwise.' (Cal. Const., art. I, § 22.) Section 18 constitutes a restraint upon the law-making power of the state, and legislative enactments contrary to its provisions are void.

Well before the turn of the century this court enunciated the meaning and effect to be given this section of the Constitution in a case quite similar to the instant one. Matter of Maguire, Supra, 57 Cal. 604, held that a San Francisco ordinance which prohibited women from waiting on customers between 6 p.m. and 6 a.m. in a place where liquor was sold conflicted with section 18.

Justice Thornton, expressing the opinion of three of the four justices in the majority, said: 'As we understand the section, it does establish, as the permanent and settled rule and policy of this State, that There shall be no legislation either directly or indirectly incapacitating or disabling a woman from entering on or pursuing any business, vocation, or profession permitted by law to be entered on and pursued by those sometimes designated as the stronger sex. * * * (T)here are no exceptions in this section, and neither we nor any other power in the State have the right or authority to insert any, whether on the ground of immorality or any other ground. All these are considerations of policy, the determination of which belonged to the convention framing and the people adopting the Constitution; and their final and conclusive judgment has been expressed and entered in the clear and unmistakable language of the Constitution itself, * * *' (Italics added.) (Matter of Maguire, Supra, 57 Cal. at p. 608.) 6

As Maguire made clear, section 18 does not admit of exceptions based on popular notions of what is a proper, fitting or moral occupation for persons of either sex. Although an inability to perform the tasks required by a particular occupation, sex-linked or not, may be a justification for discrimination against job applicants, under section 18, mere prejudice, however ancient, common or socially acceptable, is not.

If section 18 is to be endowed with any force and meaning it must invalidate section 25656. It is clear that bartending is a lawful vocation, that women are as capable of mixing drinks as men, and that section 25656 nonetheless disqualifies the vast majority of women from entering the bartending occupation.

The Attorney General makes two arguments based on the notion that women are incapable of tending bar. First, he suggests that the Legislature may have concluded that a male bartender or owner must be present in a liquor establishment to preserve order and protect patrons, a function which he contends a woman could not perform. This argument ignores modern day reality. Today most bars, unlike the saloons of the Old West, are relatively quiet, orderly and respectable places patronized by both men and women. Even if they were not, many bars employ bouncers whose sole job is to keep order in the establishment. Furthermore, the experience in the states which permit women to tend bar indicates that the dire moral and social problems predicted by the Attorney General do not arise. (See, e.g., Paterson Tavern & Grill Owners Assn. v. Borough of Hawthorne (1970) 57 N.J. 180, 185, 270 A.2d 628, 631; Anderson v. City of St. Paul (1948) 226 Minn. 186, 209, 32 N.W.2d 538, 550--551 (dissenting opinion by Loring, C.J.).)

Second, the Attorney General argues that the statute was designed to protect women since fewer women can be injured by inebriated customers if they are not permitted to work behind a bar. It is difficult to believe that women working behind the bar would be more subject to such dangers than the cocktail waitresses who are now permitted to work among the customers.

But even if we assume that bartending is more dangerous than waiting on tables, there is no evidence that women bartenders are more likely than male bartenders to suffer injury at the hands of customers. The desire to protect women from the general hazards inherent in many occupations cannot be a valid ground for excluding them from those occupations under section 18. Women must be permitted to take their chances along with men when they are otherwise qualified and capable of meeting the requirements of their employment. (See Kanowitz, Women and The Law (1969) pp. 33--34.) We can no more justify denial of the means of earning a livelihood on such a basis than we could deny all women drivers' licenses to protect them from the risk of injury by drunk drivers. Such tender and chivalrous concern for the well-being of the female half of the adult population cannot be translated into legal restrictions on employment opportunities for women.

A third contention raised by the Attorney General is that section 25656 was intended to prevent improprieties and immoral acts. Section 18 in no way prevents the Legislature from dealing effectively with the evils and dangers inherent in selling and serving alcoholic beverages; it merely precludes resort to legislation against women rather than against the...

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