Thorp v. Department of Alcoholic Beverage Control
| Decision Date | 20 November 1959 |
| Citation | 346 P.2d 433,175 Cal.App.2d 489 |
| Parties | Arthur W. THORP, Petitioner and Appellant, v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL of the State of California, Respondent. Civ. 6049. |
| Court | California Court of Appeals Court of Appeals |
Walter L. Maas, Bakerfield, for appellant.
Stanley Mosk, Atty. Gen., E. G. Funke, Asst. Atty. Gen., William T. Chidlaw, Deputy Atty. Gen., for respondent.
The appellant, petitioner and licensee, here appeals from an order and judgment of the Superior Court denying his petition for a writ of mandate annulling the decision of the Department of Alcoholic Beverage Control Revoking his on-sale general license.
The petitioner operated the licensed premises, known as Art's Cafe, in Oildale, Kern County. On May 5, 1956, immediately after the running of the Kentucky Derby, agents of the Department of Alcoholic Beverage Control (hereafter referred to as 'Department') entered the licensed premises and observed petitioner behind the bar. A scratch sheet was observed in an office just off the bar. On May 8 the agents revisited the premises and observed the petitioner take several telephone calls during which he made marks on a scratch sheet in front of him and quoted numbers to the caller. After each telephone call, he made a notation on a white slip of paper. These slips of paper were always folded by petitioner and then placed by him in a cigar box located on the back bar. Also on May 8, Agent Constantine heard a patron ask petitioner, 'Are you still making the horses?' Petitioner replied, 'Yes, but be quiet about it.' The patron then gave petitioner some money which was then folded inside a white slip of paper by petitioner and placed in the cigar box on the back bar.
On May 9, Agent Hutchins observed two patrons in the premises hand white slips folded over currency to the petitioner. These slips were similar to those Thorp had marked after listening to telephone calls. On Saturday, May 12, agent Farrell again entered the licensed premises and observed the petitioner receive many telephone calls after which he made notations on white slips of paper which were then put in his trousers pocket. Soon thereafter several deputies from the Kern County Sheriff's Office and agents of the Department entered the bar, arrested petitioner and searched his person and the premises. Since petitioner does not contend on this appeal that the evidence disclosed by the search is insufficient to support the findings and decision, a detailed statement of the evidence is not required.
During the search, calls were received on petitioner's telephone from unknown persons who attempted to place horse-racing bets.
The department filed an accusation charging petitioner with violation of Penal Code Section 337a, subdivisions 1, 2, 3 and 4 (), and with possession of illegal punch boards in violation of Penal Code Section 330b, subdivision (1) and with possessing a blackjack in violation of Penal Code Section 12020. The Department adopted the proposed decision of the hearing officer finding petitioner guilty of the six counts of the accusation. Petitioner's license was revoked separately and severally upon each of four counts charging bookmaking and the license was suspended for two consecutive terms of 15 days each upon the counts charging the punchboard and blackjack violations.
After the decision was affirmed upon appeal to the Alcoholic Beverage Control Appeals Board, the petition for writ of mandate was filed in the superior court.
The petitioner urges that the evidence uncovered during the search was improperly considered by the hearing officer because the search was illegal. He contends that the rule of People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513, applies to administrative hearings. The Department replies that the Cahan rule does not apply to administrative or civil proceedings and, also, that Business and Professions Code Section 25753 authorizes agents of the Department to conduct inspections which might otherwise constitute unlawful searches. The hearing officer admitted the evidence upon the theory that Section 25753 entitled the agents to enter licensed premises at any time and make whatever investigations they deemed necessary. The Appeals Board interpreted the scope of authority granted by Section 25753 more narrowly but found that the officers had reasonable cause to believe that a felony was being committed on the premises and were therefore acting within their lawful authority in arresting petitioner and searching the licensed premises incident to the arrest. Pe...
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...(1956) 141 Cal.App.2d 293, 298, 296 P.2d 588.) The question was postulated but not decided in Thorp v. Dept. of Alcoholic Bev. Control (1959) 175 Cal.App.2d 489, 492, 346 P.2d 433. Since the trial court pronounced judgment the Supreme Court in People v. One 1960 Cadillac Coupe (1964) 62 Cal......
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