Stoumen v. Reilly
| Decision Date | 28 August 1951 |
| Citation | 37 Cal.2d 713,234 P.2d 969 |
| Court | California Supreme Court |
| Parties | STOUMEN v. REILLY et al. S. F. 18310. |
Morris Lowenthal, San Francisco, for appellant.
Fred N. Howser, Atty. Gen., and J. Albert Hutchinson, Deputy Atty. Gen., for respondents.
The State Board of Equalization suspended, for an indefinite period, plaintiff's general on-sale license to sell alcoholic beverages at the Black Cat Restaurant, and this appeal is taken from a judgment denying a writ of mandate to compel the board to annul its order and reinstate the license.
The accusation filed against plaintiff was in two counts and alleged violations of sections 58 and 61(a) of the Alcoholic Beverage Control Act. 1 2 Deering's Gen.Laws, 1944, Act 3796. Count one charged that plaintiff permitted his premises to be used as a disorderly house for purposes injurious to public morals. Count two charged that one of plaintiff's employees sold beer to a person under the age of 21 years.
The hearing officer of the board, who received the evidence, found that plaintiff 'kept and permitted his licensed premises to be used as a disorderly house in that * * * persons of known homosexual tendencies patronized said premises and used said premises as a meeting place,' and that beer was sold to a minor as alleged. He concluded that plaintiff had violated sections 58 and 61(a) and recommended 'indefinite suspension' of the license. The findings and recommendation were adopted by the board as its decision. Thereafter the superior court denied a writ of mandate after reviewing the matter on the record before the board. See Covert v. State Board of Equalization, 29 Cal.2d 125, 131, 173 P.2d 545.
The principal question with respect to count one is whether the evidence is sufficient to warrant suspension of plaintiff's license. Several police officers testified that many of the patrons of the Black Cat were homosexuals and that it was reputed to be a 'hangout' for such persons. A number of people were arrested there, some for vagrancy and some because they 'demonstrated homosexual actions', but there was no showing that any of those arrested were convicted. There was no evidence of any illegal or immoral conduct on the premises or that the patrons resorted to the restaurant for purposes injurious to public morals.
Section 58 of the act makes it a misdemeanor for a licensee to permit his restaurant and bar to be used as a disorderly house or place 'to which people resort for purposes which are injurious to the public morals.' The terms of the section refer to conduct on the premises or resort thereto for improper purposes, and it is clear that it would be necessary to read something into that section before it could be construed as an attempt to regulate mere patronage by any particular class of persons without regard to their conduct on the premises. Cf. Orloff v. Los Angeles Turf Club, 36 Cal.2d 734, 227 P.2d 449. Members of the public of lawful age have a right to patronize a public restaurant and bar so long as they are acting properly and are not committing illegal or immoral acts; the proprietor has no right to exclude or eject a patron 'except for good cause,' and if he does so without good cause he is liable in damages. See Civ.Code, §§ 51, 52. In analogous cases it has been held that a liquor license could not be revoked on the ground that prostitutes had dined in the licensee's restaurant, In re Farley 217 N.Y. 105, 111 N.E. 479, and that a conviction of maintaining a bawdy house was not supported by evidence that women of loose or immoral character had obtained lodging in defendant's hotel. Patterson v. State, 9 Okl.Cr. 564, 132 P. 693, 695. In the Patterson case the court pointed out that such women are human beings entitled to shelter and that it is not a crime to give them lodging unless it is done for immoral purposes. The same reasoning applies to the patronage of a public restaurant and bar by homosexuals, and mere proof of patronage, without proof of the commission of illegal or immoral acts on the premises, or resort thereto for such purposes, is not sufficient to show a violation of section 58.
The fact that the Black Cat was reputed to be a 'hangout' for homosexuals indicates merely that it was a meeting place for such persons. See Webster's New Internat. Dict. Unlike evidence that an establishment is reputed to be a house of prostitution, which means a place where prostitution is practiced and thus necessarily implies the doing of illegal or immoral acts on the premises, testimony that a restaurant and bar is reputed to be a meeting place for a certain class of persons contains no such implication. Even...
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Boreta Enterprises, Inc. v. Department of Alcoholic Beverage Control
...idea, a judicially established limit to the admittedly broad power of the Department, has remained constant. Thus, in Stoumen v. Reilly (1951) 37 Cal.2d 713, 234 P.2d 969, we mandated the reversal of a license suspension, stating, 'The board's (of Equalization) discretion under section 22 (......
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