Wright v. Munro
| Decision Date | 08 October 1956 |
| Citation | 301 P.2d 997,144 Cal.App.2d 843 |
| Court | California Court of Appeals Court of Appeals |
| Parties | C. Doyle WRIGHT and Betty M. and Benny Ardowski, Petitioners and Appellants, v. Russell S. MUNRO, Director of the Department of Alcoholic Beverage Control of the State of California, Respondent. Civ. 16968. |
Mervyn Schneider, Anthony E. O'Brien, San Francisco, for appellants.
Edmund G. Brown, Atty. Gen., Charles A. Barrett, Deputy Atty. Gen., for respondent.
The Department of Alcoholic Beverage Control revoked the general on-sale liquor license of petitioner. The Appeal Board affirmed. Thereupon, the petitioner sought a writ of mandate to review the propriety of the ruling. From a judgment denying the petition for a writ of mandate petitioner appeals.
On March 4, 1954, the State Board of Equalization, the predecessor of the Department of Alcoholic Beverage Control, charged the appellants with having violated section 25657(b) of the Business and Professions Code, 1 and thus created a cause for suspension or revocation of their liquor license under section 24200(b) of that code. 2
The accusation, after referring to the two code sections, was couched in the following terms: 'On or about March 3, 1954, the above-named licensees, who did then and there hold an on sale general license for the above-described premises and who were then and there engaged in the business of selling alcoholic beverages for consumption on the premises where sold, did employ, or did knowingly permit Janet Hudson to loiter in and about said premises for the purpose of begging or soliciting patrons or customers of said premises to purchase alcoholic beverages for her consumption or use.'
At a hearing on June 9, 1954 appellants offered to plead guilty to the charge and to retire from the liquor business if their license was suspended and not revoked. 3 Subject to that offer, appellants stipulated to the truth of the matters alleged in the accusation. The Hearing Officer found the charges to be true and recommended an indefinite suspension of the license. The State Board adopted the proposed decision of the Hearing Officer, but, without further evidence, ordered the license revoked instead of suspended. Thereafter, on petition for a writ of mandate, the Superior Court set aside the revocation order and directed the trial court to grant appellants a full hearing. Thereafter, on December 6, 1954, a full hearing was held. This time the Hearing Officer recommended that the license be revoked. The Department of Alcoholic Beverage Control adopted the recommendation of the Hearing Officer, and revoked the license. The Appeal Board affirmed this ruling. Thereupon, this mandamus proceeding was instituted. The trial court found in favor of the Board and denied the petition. The licensees appeal.
At the hearing but two witnesses were called, both agents of the Board. Other than cross-examining one of these agents, appellants submitted no evidence.
The principal witness was agent Templeman. He testified that on March 3, 1954, he entered the licensed premises at about 10:25 p. m. He sat at the bar and ordered a highball, for which he paid 50 cents. A few minutes later a girl, later identified as Janet Hudson, sat down beside him and asked: 'Do you want a drinking companion?' Templeman, who did not then know the young lady, replied: 'Sit down.' Janet then motioned to the bartender and told him: 'Give me a drink,' without stating what she wanted. The bartender filled an old-fashion glass with chipped ice and poured over it a drink from a vermouth bottle. Templeman put some money on the bar and the bartender took from it $1 for the girl's drink. When Janet had consumed her drink the bartender asked Templeman if he wanted to buy the lady another drink. Templeman said that he did, and the bartender prepared a drink similar to the first one, and again charged Templeman $1.
Templeman then left the premises at about 10:45 p. m., conferred with two other agents, made arrangements that they would enter the premises later and assist him with the arrest, and then reentered the licensed premises at about 11:15 p. m., again sitting at the bar. Janet immediately sat down beside him. The bartender asked Templeman if he wanted to buy the lady a drink, and, upon receiving an affirmative reply, poured her a drink from a vermouth bottle, charging Templeman $1 for that drink and 50 cents for his highball. Between 11:15 and 11:45 p. m. this routine was followed at least four times. At 11:45 p. m. the two other agents entered the premises and assisted Templeman in the arrest of the girl and the bartender.
Appellants challenge the sufficiency of the evidence, contending that there is no evidence that they permitted Janet Hudson to 'loiter' on the premises, or that Janet Hudson 'solicited' or 'begged' any patron to buy drinks for her, or that Janet Hudson consumed any 'alcoholic' beverage on the premises.
The evidence is weak, but it is legally sufficient.
The circumstances recounted by Templeman support the inference that the bartender knew that Janet Hudson was loitering on the premises and soliciting drinks from patrons. The bartender's knowledge is, of course, chargeable to the licensees. Cornell v. Reilly, 127 Cal.App.2d 178, 273 P.2d 572. Janet merely told the bartender 'Give me a drink.' He apparently recognized her, knew what she wanted, and served it to her. The subsequent actions of the bartender in returning to the agent and asking him if he wanted to buy the girl another drink is also susceptible of the reasonable inference that the bartender knew that the girl was loitering on the premises for the prohibited purpose. This is corroborated by the actions of the bartender and the girl when the agent returned to the premises. The term 'loiter' has a well-recognized meaning, and that is 'to linger idly by the way, to idle,' 'to loaf' or to 'idle.' Phillips v. Municipal Court, 24 Cal.App.2d 453, 455, 75 P.2d 548. The evidence is susceptible of the reasonable interpretation that Janet Hudson was 'loitering' on the premises and that this was known to the bartender.
That Janet Hudson 'solicited' or 'begged' a patron to buy her a drink is obvious The question 'Do you want a drinking companion?' under the circumstances, was equivalent to, 'Will you buy me a drink?' Knowledge on the part of the bartender is reasonably...
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