Walsh v. Department of Alcoholic Beverage Control

• Decision Date: 11 June 1963
• Court: California Supreme Court
• Parties: , 382 P.2d 337 L. A. WALSH, Plaintiff and Respondent, v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, Defendant and Appellant. S. F. 21255.

Page 297

31 Cal.Rptr. 297

59 Cal.2d 757, 382 P.2d 337

L. A. WALSH, Plaintiff and Respondent, v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, Defendant and Appellant.

S. F. 21255.

Supreme Court of California, In Bank.

June 11, 1963.

Stanley Mosk, Atty. Gen., and Wiley W. Manuel, Deputy Atty. Gen., for defendant and appellant.

Huovinen & White and Joseph T. White, Jr., Oakland, for plaintiff and respondent.

SCHAUER, Justice.

Defendant Department of Alcoholic Beverage Control (hereinafter sometimes called 'the department') appeals from a judgment, entered in a citizen's action, directing issuance of a peremptory writ of mandate restraining defendant from granting an application for transfer of a general off-sale liquor license to certain premises located on Telegraph Avenue in Berkeley.

The ultimate issue presented is one of statutory construction. In applying the prohibition set forth in Penal Code section 172 ¹ against the sale of intoxicating liquor 'within one mile of the grounds belonging to the University of California, at Berkeley,' shall that statutory distance be measured (1) from the nearest point of the 'main' or 'traditional' campus of the university (as the department has held), or (2) from the nearest point of other property in Berkeley recently acquired by the university as part of its expansion program and upon which student dormitories have been constructed (as the plaintiff contends)? We must, in resolving this issue, not only consider the conventional and traditional principles of statutory construction but also, as the problem is apparently one which may recur in differing applications, give heed particularly to the practical workability of the rule we declare. Under these criteria we have concluded that the first of the above stated measuring points is the proper one, and hence that the judgment directing mandate should be reversed.

The facts are not in dispute. Joseph Navone, holder of a general off-sale liquor license in Oakland, applied to the department for a transfer of that license to premises situated at 3053 Telegraph Avenue in Berkeley. The latter location appears to be a corner grocery store or market, which for a number of years has held an off-sale beer and wine license. A protest was filed by one L. A. Walsh, plaintiff herein (sometimes hereinafter referred to as 'protestant'), who alleges that he 'owns property at 469-66th Street, Oakland * * * and resides at * * * San Leandro, California.' Plaintiff's single ground of protest is that the premises to which the transfer would apply are 'within one mile of the grounds belonging to the University of California, at Berkeley' and hence fall within the prohibition of Penal Code section 172 (ante, fn. 1).

At the hearing on the application and protest the parties stipulated that the subject premises were more than one mile distant from the 'main' campus of the university (i. e., bounded by Bancroft Way, Fulton and Oxford Streets, Hearst Avenue, and the university property on Strawberry Creek) as measured from the intersection of Telegraph Avenue and Bancroft Way, but only nine-tenths of a mile from new student dormitories erected on the block (Block No. 1874) bounded by Dwight Way, College Avenue, Bowditch and Haste Streets. It was also established that title to the latter property was acquired by the university between 1952 and 1959 pursuant to a 'Long Range Development Plan' adopted in its most recent form by the Board of Regents in 1956; that such property is in the southernmost of four city blocks thus acquired in whold or in large part and lying in a straight line from Bancroft Way southwards to Dwight Way; that the university property in the intervening three blocks is or will be devoted to similar dormitories, intramural playing fields, underground parking structures, and a 'campus cultural center'; and that the bisecting east-west streets (i. e., Bancroft, Durant, Channing, and Haste) remain the property of and under the jurisdiction of the City of Berkeley. It was also established that both prior to and as a part of its Long Range Development Plan the university had acquired several parcels of land in Berkeley (and nearby communities) wholly isolated from other university properties; i. e., where as distinguished from the subject dormitory property none of the surrounding parcels or blocks was university-owned.

The hearing officer determined that the premises to which the proposed transfer would be applicable 'are not within one mile of the grounds of the University of California at Berkeley' and that 'it would not be contrary to public welfare and morals' to allow such a transfer; accordingly, it was recommended that the protest be overruled and the transfer be granted. The department adopted these recommendations as its decision. The protestant appealed, and the parties agreed that the matter be returned to the department for further hearing. On rehearing it was again recommended that the transfer be granted, and the department again so decided. The Alcoholic Beverage Control Appeals Board unanimously affirmed the decision of the department.

The protestant as plaintiff then instituted the present proceeding in the superior court against the department as defendant (Code Civ.Proc. §§ 1063, 1094.5). After hearing, the court issued a peremptory writ of mandate restraining the department from granting the subject transfer and remanding the matter for reconsideration in the light of the court's decision. The department has appealed.

Although some of the findings and conclusions of the court speak in terms of the challenged decision's being 'not supported by substantial evidence or any evidence in the light of the whole record,' it is apparent that in a material sense no question of the substantiality of evidence, or of factual conflict, is actually involved. The sole contested issue which was before both the department and the court is one of law: ² how should Penal Code section 172 (ante, fn. 1) be construed in determining the point from which the one-mile statutory limit around 'the grounds belonging to the University of California, at Berkeley' is to be measured?

At the outset it should be made clear that whichever way this issue is decided, no existing licenses will be affected. Even under plaintiff's interpretation of the statute (i. e., measurement to begin at newlyacquired 'contiguous' property of the university) existing licenses would not be invalidated by past or future university expansion in view of the unequivocal declaration by the Legislature that 'The extension of the boundaries of any institution mentioned in Sections 172, 172a, 172b, and 172d of the Penal Code shall not affect licenses issued and in effect at the time the boundaries are extended and such licenses are transferable from one person to another for use on the premises for which issued * * *.' (Bus. & Prof.Code, § 24052, 2d section of that number.) This provision, enacted in 1959, was in force at the time of the departmenths decision in the present proceeding. And in 1961 the Legislature reaffirmed the policy thus declared by adding a materially identical provision to the Penal Code, section 172f.

The precise issue befoer us appears to be one of first impression in this state. No California case has been found construing the words, 'within one mile of the grounds belonging to the University of California, at Berkeley' (Pen.Code, § 172). Nor is there evidence in the record showing the substance of any heretofore established administrative practice in this regard. However, during the proceedings before the hearing officer an agent of the department testified that in the course of his official duties he had had occasion to assist in the measurement of distances, for licensing purposes, from the University of California at Berkeley; but when counsel for the applicant sought to ask the witness 'where the starting point was for measuring distances south of the campus,' an objection by plaintiff (then protestant) on the ground of irrelevancy was sustained. Such evidence could well have been admitted, as the contemporaneous construction of a statute by the administrative agency charged with its enforcement (and Penal Code section 172 is primarily relevant to licensing by the department) may be proved as a relevant fact and is 'entitled to great weight.' (Cannon v. Industrial Accident Comm. (1959) 53 Cal.2d 17, 22 (2), 346 P.2d 1, and cases there cited.)

In default of prior judicial interpretation, we begin by determining the purpose of section 172. The purpose of a related statute, Penal Code section 172a, ³ has been defined as follows: 'The law under consideration is penal. It is passed in the exercise of the police power. Its very apparent design is to protect students in the formative periods of their lives from the temptations of alcoholic drink.' (Matter of Burke (1911) 160 Cal. 300, 303, 116 P. 755.) The prevention of such ills, whether real or imagined, appears also to be the purpose of the subject portion of section 172.

The department carries further the analogy between sections 172 and 172a, contending that the latter's use of the disjunctive phrase 'grounds or campus' demonstrates that the two terms are interchangeable and hence that in section 172 the words 'grounds belonging to the University of California, at Berkeley' should be construed to mean 'campus of the University of California, at Berkeley.' The department then points to two instances when the Legislature specifically distinguished between the 'campus' and the 'other grounds' of the university, ⁴ and urges that the dormitory property here involved is likewise to be distinguished from the 'campus' in applying section 172.

In Vanoli v. Munro (1956) 147 Cal.App.2d 179, 185(1), 304 P.2d 722, a decision construing section 172a, the court indicated that 'campus' boundaries may not include 'noncontiguous lands, nor lands obviously not connected with the...