Yu v. Alcoholic Bev. etc. Appeals Bd.

• Decision Date: 31 January 1992
• Docket Number: H008615,Nos. H008497,s. H008497
• Citation: 3 Cal.App.4th 286,4 Cal.Rptr.2d 280
• Court: California Court of Appeals Court of Appeals
• Parties: Jey Lyang YU, Petitioner, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD, Respondent; Jay R. STROH, as Director, etc., Real Party in Interest. Kyung S. MIN, et al., Petitioners, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD, Respondent; Jay R. STROH, as Director, etc., Real Party in Interest.

Page 280

4 Cal.Rptr.2d 280

3 Cal.App.4th 286

Jey Lyang YU, Petitioner, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD, Respondent;

Jay R. STROH, as Director, etc., Real Party in Interest.

Kyung S. MIN, et al., Petitioners, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD, Respondent;

Jay R. STROH, as Director, etc., Real Party in Interest.

Nos. H008497, H008615.

Court of Appeal, Sixth District, California.

Jan. 31, 1992.

Review Denied April 29, 1992.

Jay-Allen Eisen, Ann Perrin Farina, Paul Nicholas Boylan, Jay-Allen Eisen Law Corp., Sacramento, Luis C. Jaramillo, Pioda, Brayan, Ames, Helfrich & Wills, Salinas, for petitioners.

M. Armon Cooper, St. Peter & Cooper, San Francisco, Jo-Linda Thompson, Gen. Counsel, Calif. Restaurant Assc., Sacramento, for amicus curiae on behalf of petitioners.

Daniel E. Lungren, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., Henry G. Ullerich, Supervising Deputy Atty. Gen., Los Angeles, for respondent and real party in interest.

AGLIANO, Presiding Justice.

We have consolidated these petitions for review of decisions of the Department of Alcoholic Beverage Control (Department), which were affirmed by the Alcoholic Beverage

Control Appeals Board (Board). We have issued writs of review in both matters and have temporarily stayed revocation of petitioners' off-sale beer and wine licenses pending our review. The issue is whether, because of frequently occurring illegal drug transactions on the premises, the Department may revoke the off-sale alcohol licenses of petitioners without requiring proof that petitioners knowingly permitted the drug transactions or that the sale of alcohol caused or [3 Cal.App.4th 289] contributed to the illegal conduct. We have determined the Department may revoke the licenses under its constitutionally based broad power to prevent licensed premises from becoming a nuisance and a police problem. Accordingly we will affirm the decisions of the Department.

Yu

The Department filed an accusation in three counts against petitioner Jey Lyang Yu, doing business as the Del Monte Market in Salinas, California. The accusation sought the revocation of Yu's off-sale beer and wine license. Count I charged that the licensee kept, suffered or used, or permitted to be kept or used, a disorderly house, in violation of Business and Professions Code section 25601. ¹ Count II recited the commission of an illegal narcotics sale immediately outside the main premises entrance in violation of Health and Safety Code section 11352. Count III charged that the licensee permitted or suffered the premises to be used in a manner creating a law enforcement problem for the City of Salinas, and creating conditions contrary to the public welfare and morals in violation of California Constitution article XX, section 22 and of section 24200, subdivision (a).

The accusation recites numerous instances of drug transactions on or near the premises of petitioner's market. In Count I, five such instances are listed occurring between February 3, 1989, and March 28, 1989, involving sales of marijuana and cocaine; Count II consists entirely of the description of a drug transaction on February 3, 1989, when an individual "immediately outside" the main premises entrance sold cocaine to an investigator; and Count III recites numerous instances when the Salinas Police Department was required to make calls, investigations, arrests or patrols concerning conduct at or near the licensed premises, occurring between January 1, 1988, and April 1, 1989, and involving among other things drug transactions, fighting and disorderly conduct, disturbances, stolen property, loitering, and "suspicious circumstances." The accusation charges that Salinas police were required to make calls to the premises more than 100 times in about 15 months.

The Department revoked the license on the grounds that (1) petitioner kept, suffered or used, or permitted to be kept, suffered or used, a disorderly house, creating conditions injurious to the public welfare, morals, health, convenience and safety, under California Constitution article XX, section 22 and sections 24200, subdivision (a), and 25601 and (2) that petitioner permitted or suffered the premises to be used in a manner which created a law enforcement problem for the City of Salinas, in violation of California Constitution article XX, section 22 and section 24200, subdivision (a). The Board affirmed the Department's decision.

According to the factual findings of the Department, the premises are similar to other neighborhood convenience stores and the petitioner sells dairy products, beer and wine, cigarettes, groceries, newspapers, candy and similar merchandise. People tend to congregate in and about the premises parking lot directly in front of the entrance and along both sides of the building. Many of the disturbances reported to the police have occurred in that area, and drug dealers use the parking area for their transactions and often select certain areas to secrete their contraband.

In its decision the Department recited the occurrence of drug transactions. On The decision further recites that on March 28, 1989, a Salinas police officer in full uniform stopped at the premises to purchase a candy bar. While he was standing in line to pay for it he saw the customer in front of him (Serrano) remove two baggies containing a white powder, drop them on the counter, turn his palm face up and say "eight ball." He then pushed the baggies toward the clerk. The clerk picked up one bag and said he did not know what it was. The officer then seized the baggies and arrested Serrano.

                February 3, 1989, Department investigators purchased $10 worth of marijuana from one "Blue Boy" on the premises in the immediate presence of two clerks.  On February 21, 1989, an investigator contacted one Rascon on the premises and bought a "dime bag" of marijuana from him for $10.  The Department investigators testified that these drug sales took place about fifteen feet from the counter and consumed less than a minute each;  there was a clerk behind the counter at these times who may or may not have been watching.  On March 6, 1989, the same investigator returned and was contacted by one Ponce near the video machines next to the entrance.  The investigator asked Ponce if he had $10 worth of "weed."   He gave him a $20 bill.  Ponce went to the clerk on duty and obtained change and then gave the investigator change and a baggie of marijuana
                

Further, as the investigators were leaving the premises after the drug transaction of February 3, 1989, one Jorge approached them just outside the front door and asked if they were interested in buying some "weed." They subsequently bought cocaine from him for $20.

The Department further found that Salinas police officers were required to make the calls, investigations, arrests or patrols concerning the subject premises as recited in the accusation. There were 109 such incidents.

The parties stipulated that the premises are located in a higher crime area than normal areas of the City of Salinas.

Petitioner has owned the premises for three years. He has been licensed since January 20, 1988. He has made attempts to disperse individuals crowded about outside and has called the police and instructed his employees to do so also. About a month before the filing of the accusation he hired a security company service to place a uniformed person on the premises on weekends from 6:30 p.m. to 10:30 p.m. to prevent loitering in the parking lot. Petitioner admits he could observe sales of marijuana in the parking lot. He contacted the police at least once monthly in 1989. He is on the premises daily from 9 a.m. to 10 p.m. (closing time) and although he is aware of cocaine and marijuana he has never seen any in the premises, other than a marijuana cigarette on the parking lot.

A police officer of the City of Salinas testified that during the time he had been so employed he observed that the number of calls to the particular beat including the licensed premises had an effect on other beats in the city by preventing adequate policing of other areas.

Larry Myers, a police captain of the city of Salinas, testified that in his experience when liquor licenses are revoked in high crime areas the drug problems decrease in those areas.

The Department found there was insufficient evidence to establish cause for disciplinary action under Count II. But it found cause for discipline under Counts I and III. The Department found the evidence established that petitioner kept, suffered or used, or permitted to be kept, suffered or used, a disorderly house or a place to which people abided or resorted to the disturbance of the neighborhood and for injurious purposes; and that petitioner permitted or suffered the premises to be used in a manner which created a law enforcement problem for the City of Salinas, and that he was either unwilling or unable to control the conduct of individuals congregating in the immediate area of the premises.

Min

The Department filed an accusation in two counts against petitioners Kyung and The Mins owned the business from 1982 to 1984, sold it and purchased the Del Monte Market (now owned by Yu), then sold that market and repurchased the San Martin Market January 1, 1988. Mr. and Mrs. Min each testified that they have not personally observed narcotics transactions on the premises but that they have had recurrent problems with loiterers and have on occasion had to eject such loiterers or call the police when they refuse to go. They each put in about ten hours a day at the business. Due to persistent loitering at the premises Mr. Min put in a "No Loitering" sign. Also they hired a security guard company (A & B Security Company) in March 1990, to patrol the premises from 5 to 10 p.m. every day; however that firm quit in June. According to the owner of the security business, the guards were threatened by patrons of the premises and were afraid to work...