Opinion
Rehearing Denied Feb. 25, 1969. Thomas C. Lynch, Atty. Gen., of the State of California, L. Stephen Porter, Charlton G. Holland, Deputy Attys. Gen., San Francisco, for respondent and appellant.
Melvin M. Belli, Robert L. Lieff, Belli, Ashe, Ellison, Choulos, Cone & Harper, San Francisco, for petitioner and respondent.
SIMS, Associate Justice,
In each of these two actions, consolidated on appeal, the Department of Alcoholic Beverage Control has appealed from a judgment of the superior court granting a peremptory writ of mandate which set aside a decision of the department, affirmed by the Alcoholic Beverage Control Appeals Board, revoking, subject to a one-year conditional stay (involving a 30-day suspension in the second proceedings), respondent's on-sale general bona fide public eating place license. The disciplinary action was imposed by the department because of activities which were found to constitute conduct contrary to public welfare and morals and grounds to suspend or revoke the license pursuant to the provisions of article XX, section 22, state Constitution, and of section 24200, subdivisions (a) and (b) of the Business and Professions Code. The trial court in each case remanded the proceedings to the department with instructions to reconsider its action in the light of findings of fact and conclusions of law which held that there was no substantial evidence to sustain the findings and conclusions of the department, and that there were no legal grounds for the action taken.
By Statutes 1967, chapter 1525, sections 3 and 4, pages 3634-3636, sections 23090-23090.7 were added to provide for review of final decisions of the Alcoholic Beverage Control Board by direct application to the appellate courts of this state, and sections 23090-23091, which, with section 1094.5 of the Code of Civil Procedure, provided for judicial review by petition for writ of mandate in the superior court, were repealed.
Unless otherwise indicated, all statutory references are to the Business and Professions Code.
Wuest v. Wuest, 53 Cal.App.2d 339, 345, 127 P.2d 934, 936, states:
Section 22 of article XX of the state Constitution provides in pertinent part: " * * * The department shall have the power, in its discretion, to deny, suspend or revoke any specific alcoholic beverages license if it shall determine for good cause that the granting or continuance of such license would be contrary to public welfare or morals, or that a person seeking or holding a license has violated any law prohibiting conduct involving moral turpitude."
Section 25750, in pertinent part, provides: "The department shall make and prescribe such reasonable rules as may be necessary or proper to carry out the purposes and intent of Section 22 of Article XX of the Constitution and to enable it to exercise the powers and perform the duties conferred upon it by that section or by this division, * * *."
American Jurisprudence 2d, volume 1, Administrative Law, section 96, page 893, discussing so-called "policy statements" of administrative agencies, states: "There is a type of rulemaking or policy stating by which a statute administered is implemented by the statement by the administrative agency of general principles by which it will be governed in the exercise of its authority, irrespective of whether such authority is exercised in a 'legislative' or 'judicial manner." (See also Bank of Italy v. Johnson, 200 Cal. 1, 22-23, 251 P. 784.)
In each case the court ruled as follows: "Findings of Fact 1. That there is no substantial evidence to show that the presence of topless waitresses encourages the consumption of liquor. 2. That there is no substantial evidence to show that the presence of topless waitresses encourages intemperance or immorality. 3. That there is no substantial evidence to show that the presence of topless waitresses is contrary to public health and welfare. Conclusions of Law 1. That there are no grounds demonstrated by respondent for suspension of the petitioner's license under section 24200 of the business and Professions Code. 2. Respondent's revocation order of petitioner's license was unjust, arbitrary and capricious. 3. That there are no regulations or statutes which prohibit petitioner's conduct. Let judgment be entered ordering a peremptory writ of mandamus to issue from this Court remanding the proceedings and commanding respondent to set aside its decision."
Code of Civil Procedure section 1875 repealed effective January 1, 1967; Evidence Code section 452, effective January 1, 1967; Harris v. Alcoholic Bev. etc. Appeals Bd., 62 Cal.2d 589, 595, 596, 43 Cal.Rptr. 633, 400 P.2d 745.
In view of the stipulated record in this case the principal issue is whether the
It is determined that in the absence of statute or regulation, the activities complained of, when unaccompanied by any evidence of improprieties, cannot be grounds for suspension or revocation of a license. Insofar as the department seeks to control the costuming, or lack thereof, of its licensee's employees, whose deportment is otherwise unimpeached, because of the possibility of, rather than the actual occurrence of, conduct or activities contrary to public welfare or morals, it must do so under provisions embodied in an appropriate rule or statute.
Statement of Facts
In the first accusation filed May 6, 1965 against the licensee (1 Civil 24500) the department relied on activities taking place on April 23 and 26, 1965. The first count, predicated upon the provisions of section 22 or article XX of the state Constitution, and of section 24200, subdivision (a), of the Business and Professions Code, set forth four acts allegedly contrary to public welfare and morals. These acts consisted of display and exposure, in the manner at issue herein, by three named waitresses on April 13 (subcount a), the display and exposure of her breasts by another named employee, apparently a model (subcount b), and the distribution of photographs of the model so exposed to patrons (subcount c), and the display and exposure of breasts by two named employees on April 26 (subcount d). A second count charged that the licensee permitted the waitresses on April 23 to wilfully and lewdly expose their persons or the private parts thereof in violation of subdivision 1 of section 314 of the Penal Code. A third count made Prior to the hearing, on June 1, 1965, the department filed an amended accusation in one count which alleged nine specific acts giving rise to grounds for suspension or revocation under the general provisions. Four subcounts (a, c. e and f) charged display and exposure of breasts by waitresses in the manner described above--three on April 23, three on April 26, four on May 7, and five on May 11 (cf. subcouns a and d of original accusation). Additional counts charged the distribution of photographs of the exposed mode (subcount b; cf. c, subcount in original), exposure of breasts by a named employee in the presence of licensee's president on May 7, 1965 (subcount d), and that the licensee procured, counseled and assisted the female employees involved in making an exhibition of themselves to public view on the occasions charged (subcounts g, h and i). The charge relating to the display and exposure by the named individual of whom photographs were distributed (original subcount b) was omitted, and there was no reference to any violation of the provisions of section 314 of the Penal Code. Grounds for disciplinary action were predicated on the general provisions of the Constitution and statute, and on violation of the provisions of section 25601. Although the matter was originally set for hearing at the same date as the original accusation, it was, on June 10, 1965 ordered continued to August 16, 1965.
Section 314 of the Penal Code provides: "Every person who willfully and lewdly, either 1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby; or 2. Procures, counsels, or assists any person so to expose himself or take part in any model artist exhibition, or to make any other exhibition of himself to public view, or the view of any number of persons, such as is offensive to decency, or is adapted to excite to vicious or lewd thoughts or acts, is guilty of a misdemeanor. Upon the second and each of this section, or upon a first conviction under subdivision 1 of this section after a previous conviction under Section 288 of this code, every person so convicted is guilty of a felony, and is punishable by imprisonment in state prison for not less than one year."
A sampling of department findings relating to its experience with topless waitresses discloses the following:
Meanwhile, on June 8, 1965 a second accusation (1 Civil 24438) was filed against the licensee in one count which alleged then specific acts of misconduct. Three subcounts (a, d and F) charged display and exposure by waitresses in the manner described above--four on May 14, three on May 18, and three on May 26. Three subcounts (b, e and g) charged display and exposure by models on the foregoing dates. One count alleged distribution of photographs, similar to those referred to in the first accusation, on May 14, and three additional subcounts (h, i and j) accused the licensee of procuring, counseling and assisting the acts referred to in other counts. The licensee having filed his notice of defense and request for hearing, the matter was set for hearing on October 11, 1965.
At the hearing on the amended first accusation the department dismissed the charges of procuring, counseling and assisting contained in subcounts g, h and i. It was stipulated that the facts, although not the conclusions, alleged in subcounts a through f were true. Photographs were received in evidence, and the parties stipulated as to the actual proximity of the waitresses with respect to the patrons (see fn. 4, supra). The referee found in accordance with the allegation of the accusation, and on November 21, 1965 rendered the decision adopted by the department on In the meantime the second accusation came on for hearing before a different referee. It was stipulated that the facts, as distinguished from the conclusions, set forth in subcouonts a, c, d and f were true. Photographs were introduced in evidence to show the costume worn by the waitresses, and the nature of the picture distributed to the patrons. The proximity of the waitresses to the patrons was defined in the same manner as at the hearing on the first accusation (see fn. 4, supra). The counts referring to display and exposure by models (b, e and g) and those relating to alleged misconduct of the licensee (h, i and j) were dismissed, although it was stipulated that there were models employed and modeling on the premises on the occasions in question. On December 30, 1965, while licensee's appeal from the decision on the first accusation was pending, the referee rendered his findings and proposed decision on the second accusation. This Both matters ultimately were the subject of hearings in the superior court which terminated in both cases on December 16, 1966, and resulted on February 7, 1967 in the findings, conclusions and judgment from which these appeals have been taken.
The proposed decision reads, with deletions: "FINDINGS OF FACT: It was stipulated and is thus found as true that the above named licensee, at all times a holder of an on-sale general bona fide public eating place license, did permit, allow and suffer the following acts to occur: a. On April 23, 1965, female employees in the course of their employment as waitresses and while in the actual proximity to patrons who were ordering their meals and alcoholic beverages from said employees, did display and expose their breasts to patrons and persons assembled on the above named bona fide public eating place. Waitress No. 1--White female adult, approximately 23 years of age, 5' 4"', 115 pounds, dark hair, wearing tights and black net transparent top with breasts exposed to public view. [There follows descriptions of two waitresses in similar manner.] b. On April 23, 1965, the above named licensee did suffer, and permit photographs, depicting the exposed breasts of [named female] to be taken and then distributed to patrons and persons assembled in the above named public premises according to ticket number. c. On April 26, 1965, female employees [naming three] in the course of their employment as waitresses and while in the actual proximity to patrons, who were ordering their meals and alcoholic beverages from said employees, did display and expose their breasts to patrons and persons assembled on the above named bona fide public eating place. d. On May 7, 1965 female employee [named], while seated at the bar in the presence of [the] President of the above named corporation, did expose her breasts to the public view of patrons seated in the bar and elsewhere in the above-described bona fide public eating place premises. e. On May 7, 1965 female employees in the course of their employment as waitresses and while in the actual proximity to patrons who were ordering their meals and alcoholic beverages from said employees did expose their breasts to patrons and persons assembled on the above named bona fide public eating place. [There follows descriptions of four waitresses in similar manner as in "a" above.] f. On May 11, 1965 female employees in the course of their employment as waitresses and while in the actual proximity to patrons who were ordering their meals and alcoholic beverages from said employees did display and expose their breasts to patrons and persons assembled on the above named bona fide public eating place. [There follows descriptions of five waitresses in similar manner as in "a" above.] Prior to the receipt of any evidence thereon, all of the allegations under items g, h and i, on page 3 of the First Amended Accusation were dismissed and stricken upon Motion by the Department of Alcoholic Beverage Control.
Barmaid is defined as "A waitress or tapstress in a bar." (Webster's New International Dictionary, 2d ed., Unabridged.)
The proposed decision reads in part: "FINDINGS OF FACT: It is true that at all times concerned herein the respondent was the holder of an on-sale general bona fide public eating place license, and that while being the holder of such license permitted, allowed and suffered the following acts to occur: a. On May 14, 1965, female employees in the course of their employment and while in the actual proximity to patrons, who were ordering their meals and alcoholic beverages from said employees, did display and expose their breasts to patrons and persons assembled on the above-named bona fide public eating place. c. On May 14, 1965, the respondent suffered and permitted photographs, depicting the exposed breasts of [named female] to be taken and then distributed to patrons and persons assembled in the above-named bona fide public eating place according to ticket number. d. On May 18, 1965, female employees in the course of their employment as waitresses and while in the actual proximity to patrons, who ordering their meals and alcoholic beverages from said employees, did display and expose their breasts to patrons and persons assembled on the above-named bona fide public eating place. f. On May 18, 1965, female employees in the course of their employment as waitresses and while in the actual proximity to patrons, who were ordering their meals and alcoholic beverages from said employees, did display and expose their breasts to patrons and persons assembled on the above-named bona fide public eating place.
In each proceeding the licensee contended before the department (1) that the display of topless nudity did not render the premises a disorderly house within the provisions of section 25601, (2) that the display was protected by the guaranty of freedom of speech found in the First Amendment to the United States Constitution, (3) that the display was not obscene, (4) that the question of obscenity had been determined adversely to the views of the department in a criminal action against the licensee, and 95) that the department was not authorized to adjudicate that the display was obscene. The department, for its part, relied on the board powers conferred by the provisions of article XX, section 22 of the state Constitution, and the established right of government to regulate the conduct of female employees in places dispensing alcoholic beverages to establish that any communication inherent in the display was not protected as freedom of speech.
In the first proceeding the appeals board considered the following questions: "1. All of these issues are presented by the present appeal. It is significant that the department, as indicated by the deletions in the amended accusation in the first proceeding, does not contend that the displays and exposures of which it complains constitute indecent exposure within the provisions of section 314 of the Penal Code (see fn. 6, supra). Nor does it contend that the use of "topless" waitresses is obscene within the meaning of the provisions of section 311 of the Penal Code. In view of these concessions, and because of the constitutional power of the department to license the purchase, sale, service and consumption or other disposition of alcoholic beverages the licensee's arguments predicated upon freedom of speech, and collateral estoppel are not pertinent. the department, however, has not established that the conduct of which it complains rendered the premises a disorderly house within the provisions of section 25601 so that disciplinary action would be warranted under subsection (b) of section 24200. Nor does the juxtaposition of the broad general powers conferred by the department by the state Constitution, and the acknowledged right to prescribe by law or regulation for the prohibition of or the terms of employment of females establish that the conduct in question was in and of itself contrary to public welfare or morals. In short, the department in support of its decision must depend upon suggested resulting evils and objectionable practices which are not shown to have occurred on the premises of the licensee. That such consequences might warrant a general statute or regulation proscribing the conduct in question does not justify a judicial finding against the particular licensee, in the absence of such a prior legislative finding. Freedom of Speech
Penal Code section 311 provides in part:
The licensee suggests that the display and exposure condemned by the department is a form of expression entitled to the protection which the First Amendment of the United States Constitution and article I, section 9 of the state Constitution give to artistic expression and entertainment. (See Jacobellis v. Ohio (1964) 378 U.S. 184, 187 and 191, 84 S.Ct. 1676, 12 L.Ed.2d 793; Manual Enterprises v. Day (1962) 370 U.S. 478, 490, 82 S.Ct. 1432, 8 L.Ed.2d 639; Roth v. United States (1957) 354 U.S. 476, 487, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495, 501-502, 72 S.Ct. 777, 96 L.Ed. 1098; Winters v. New York (1948) 333 U.S. 507, 510, 68 S.Ct. 665, 92 L.Ed. 840; In re Giannini and Iser (1968) 69 A.C. 588, 592-597, 72 Cal.Rptr. 655, 446 P.2d 535; Burton v. Municipal Court (1968) 68 A.C. 720, 725, 68 Cal.Rptr. 721, 441 P.2d 281; People v. Noroff (1967) 67 Cal.2d 791, 796, 63 Cal.Rptr. 575, 433 P.2d 479; Weaver v. Jordan (1966) 64 Cal.2d 235, 242, 49 Cal.Rptr. 537, 411 P.2d 289.) Generally, the government cannot discriminatorily withhold a privilege on the condition that one surrender his right to freedom of speech. (See Speiser v. Randall (1958) 357 U.S. 513, 518, 78 S.Ct. 1332, 2 L.Ed.2d 1460.) Nevertheless, under provisions of the Constitutions of the United States and of this state, hereinafter referred to, the state has broad powers in regulating the sale and distribution of alcoholic beverages. The employment of "topless" waitresses has been deemed entertainment for local licensing purposes. (See Robins v. County of Los Angeles (1966) 248 Cal.App.2d 1, 8-9, 56 Cal.Rptr. 853, and People v. Kukkanen (1967) 248 Cal.App.2d Supp. 899, 903-904, 56 Cal.Rptr. 620.) It has been recognized, however, that there is a distinction between the power of the Alcoholic Beverage Control Board to proscribe by regulation the use of bare-breasted female waitresses to attract business to cocktail bars, saloons, and restaurants which serve alcoholic beverages, and the proprietor's right to conduct such activities as entertainment which may be carried out without the serving of liquor. (See Robins v. County of Los Angeles, supra, at pp. 6 and 7, 56 Cal.Rptr. 853.) No question of freedom of speech is raised by the attempted control over the manner in which alcoholic beverages may be served.
In the cases mentioned above support is found for the proposition that "the display of the bare female bosom whether defined as 'entertainment' or not, does not violate state law, is not regulated by the state, and does not constitute criminal sexual activity in the area definitely preempted by the state." (Robins v. County of Los Angeles, supra, at pp. 10 and 11, 56 Cal.Rptr. at p. 860. See also People v. Hansen (1966) 245 Cal.App.2d 689, 690, 54 Cal.Rptr. 311, and In re Davis (1966) 242 Cal.App.2d 645, 667, 51 Cal.Rptr. 702.) The charges in the second accusation involving the use of models were dismissed. It is concluded that the taking and distribution of photographs of a model as found in count (b) of the first proceeding and count (c) of the second proceeding is not an activity contrary to public welfare and morals, and is not so closely related to the sale and distribution of alcoholic beverages as to authorize the department to prohibit the practice. It may increase the patronage of he establishment and so indirectly affect the consumption of alcoholic beverages in that establishment, but its impact cannot be distinguished from other promotional schemes such as hiring topflight entertainers, or giving away autographed pictures of sports celebrities to patrons who follow baseball or football on the television in a local tavern.
Collateral Estoppel
The licensee in its brief before he appeals board asserted that it had been acquitted of criminal charges involving the same activities and that such a determination procluded further action by the department. (See Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal.2d 601, 606, 25 Cal.Rptr. 559, 375 P.2d 439.) Its failure to make a record on this point Solari v. Atlas-Universal Service, Inc.
Epstein v. California Horse Racing Board Cornell v. Reilly Kelly v. Municipal CourtDisorderly House
Since the partial nudity itself offended no stated law or regulation of the department, it is difficult to ascertain on what theory the department determined in the first proceeding (fn. 7, supra) that grounds existed for disciplinary action under subdivision (b) of section 24200 (see fn. 2, supra). In the section proceeding it was determined (fn. 8, supra) that such grounds existed because the activities complained of violated the provisions of section 25601 (fn. 5, supra).
The provisions of section 25601 have been recently reviewed in Los Robles Motor Lodge, Inc. v. Dept. of Alcoholic Bev. Control (1966) 246 Cal.App.2d 198, 54 Cal.Rptr. 547. With respect to "Disorderly house" the opinion states: "Its meaning is specific both in common parlance and in common law. We select from 12A Words and Phrases (Supp.1966) pages 45-46, the definition taken from Curley v. State, 215 Md. 382, 137 A.2d 640, 644, 'A house is "disorderly" if kept as a place where acts prohibited by statute are habitually indulged in or permitted,' and that taken from Payne v. United States (D.C.Mun.App.) 171 A.2d 509, 511, ' "[D]isorderly house" is one where acts are performed which tend to corrupt morals of the community or promote breaches of peace.' (See also 16 Cal.Jur.2d 249; 24 Am.Jur.2d 81, 'Disorderly Houses.') But we need not rest our decision on the sufficiency of clarity of 'disorderly house' standing alone. It does not stand alone in section 25601. Los Robles refers to 'disorderly house' out of context. The section in material part reads: 'Every licensee, or agent or employee of a licensee, who keeps, permits to be used, or suffers to be used, in conjunction with a licensed premises, any disorderly house or place in which people abide or to which people resort, * * * for purposes which are injurious to the public morals, health, convenience, or safety, is guilty of a misdemeanor.' There is no uncertainty in that definition. The section being clear, there can be no doubt of its constitutionality as a valid exercise of the state's police power. The language of the section is not materially different from Penal Code section 316 relating to the keeping of 'any disorderly house.' The constitutionality of that section was upheld in an early decision of this court in People ex rel. Bradford v. Barbiere, 33 Cal.App. 770, 775, 166 P. 812." (246 Cal.App.2d at pp. 203-204, 54 Cal.Rptr. at p. 550.) More tersely, in order for premises to constitute a disorderly house there must be improper acts committed on the premises. The mere presence of those who might engage in proscribed conduct elsewhere cannot even be grounds for legislation penalizing the licensee. Overt acts of impropriety are required. (See Vallerga v. Dept. of Alcoholic Bev. Control (1959) 53 Cal.2d 313, 316, 318, 1 Cal.Rptr. 494, 347 P.2d 909, and Stoumen v. Reilly (1951) 37 Cal.2d 713, 716, 234 P.2d 969.) An examination of the cases in which section 25601 has been applied sustains the
In the instant case the conduct relied upon is the display and exposure of bare breasts. There is, however, no precedent for concluding that this activity violates any statute, or of itself corrupts the morals of the community, or promotes breaches of the peace. The activity does not disturb the neighborhood. Nor can it be said that the people attracted by this type of display have resorted to the licensee's premises for purposes which are injurious to the public morals, health, convenience or safety. (See Robins v. County of Los Angeles, supra, 248 Cal.App.2d 1, 10-11, 56 Cal.Rptr. 853, and In re Davis, supra, 242 Cal.App.2d 645, 667, 51 Cal.Rptr. 702.)
The following language from People v. Noroff (1967) 67 Cal.2d 791 at pages 796-797, 63 Cal.Prt. 575 at page 579, 433 P.2d 479 at page 483 is apt: "The United States Supreme Court has wisely recognized that ultimately the public taste must determine that which is offensive to it and that which is not; a public taste that is sophisticated and mature will reject the offensive and the dull; it will in its own good sense discard the tawdry, and once having done so, the tawdry will disappear because its production and distribution will not be profitable. Understandably, such maturity does not come quickly or easily, and, in a time when the structure of Victorianism have been replaced by wide swings of extremism, it seems hopelessly remote."
The department relies upon Adler v. Department of Alcoholic Beverage Control (1959) 174 Cal.App.2d 256, 344 P.2d 336 (hearing in the S.Ct. denied), wherein the evidence supporting revocation is summarized as follows: " * * * the pertinent testimony in support of the findings discloses that one taxi dancer rubbed her hands against the leg of a witness and then 'touching him in the pubic area' asked him to go home with her saying 'you can have ham and eggs or anything else you would like.' Another girl demonstrated her 'peek-a-boo' dress by exposing her breasts to a customer who happened to be an agent of respondent board. On another occasion, the same taxi dancer illustrated the punch line of a story she was telling by pulling the upper part of her dress away from her body displaying her bosom. There was also evidence that sexually suggestive dancing occurred as charged." (174 Cal.App.2d at p. 258, 344 P.2d at p. 338.) There is a semblance of similarity in that breasts have been exposed on both premises. The circumstances of the display, however, are in no way comparable. The stipulation in this case precludes any finding of improper conduct vi-a-vis, the patrons. (Cf. the conduct related in People v. Kukkanen, supra, 248 Cal.App.2d Supp. 899 in fn. 3 at p. 905, 56 Cal.Rptr. 620.)
The record fails to sustain the conclusion of the department that grounds
General Regulatory Powers
In a well documented brief the department points out that the business of manufacturing and selling alcoholic beverages occupies a unique position under both the federal (U.S. Const., Amend. 21) and state (Cal. Const., art. XX, § 22) Constitutions. It also points out the many evils attributed to the intemperant consumption of alcoholic beverages. The existence of alcoholism and problems associated with misuse of alcoholic beverages, the problems of arrests and commitments for drunk and disorderly conduct, the increase in loss of life due to cirrhosis of the liver, the hazards created on the highways by those driving under the influence of liquor are all factors which justify, if not compel, strict regulation of the traffic in alcoholic beverages. The statistics themselves, however, do not indicate how any of the waitresses whose conduct is under review in this case contribute more to those evils than does the average bar girl who is interested in increasing her sales and resultant tips.
The People of this state through their governing authority, the constitutionally established Department of Alcoholic Beverage Control, have the unquestioned right to grant or limit the privilege of selling alcoholic beverages upon such terms as the department may constitutionally prescribe. (See Joseph E. Seagram & Sons v. Hostetter (1966) 384 U.S. 35, 41-51, 86 S.Ct. 1254, 16 L.Ed.2d 336; Los Robles Motor Lodge, Inc. v. Dept. of Alcoholic Bev. Control, supra, 246 Cal.App.2d 198, 202, 54 Cal.Rptr. 547; Farah v. Alcoholic Bev. etc. Appeals Bd. (1958) 159 Cal.App.2d 335, 338, 324 P.2d 98; Cooper v. State Board of Equalization (1955) 137 Cal.App.2d 672, 679, 290 P.2d 914, and Tokaji v. The department contends that the provisions of the state Constitution give it plenary self-executing powers to revoke a license whenever it determines that continuance of the license would be contrary to public welfare or morals. In Vallerga v. Dept. of Alcoholic Bev. Control, supra, 53 Cal.2d 313, 1 Cal.Rptr. 494, 347 P.2d 909, the court observed, "Section 22, article XX of our Constitution vests the Department of Alcoholic Beverage Control with authority to institute disciplinary proceedings against a licensee and to revoke his license and to revoke his license upon determination 'for good cause' that the continuance of such license would be 'contrary to public welfare or morals.' " (53 Cal.2d at p. 321, 1 Cal.Prt. at p. 498, 347 P.2d at page 913. See also Allied Properties v. Dept. of Alcoholic Beverage Control (1959) 53 Cal.2d 141, 145, 346 P.2d 737; Weiss v. State Board of Equalization (1953) 40 Cal.2d 772, 775, 256 P.2d 1; Harris v. Alcoholic Bev. Cont. Appeals Bd. (1963) 212 Cal.App.2d 106, 119, 28 Cal.Rptr. 74; Torres v. Dept. Alcoholic Bev. Control (1961) 192 Cal.App.2d 541, 550, 13 Cal.Rptr. 531, and Moore v. State Board of Equalization (1946) 76 Cal.App.2d 758, 765, 174 P.2d 323.)
It has been said, "There is nothing in the constitutional provision which requires the board to prescribe by rule what infraction or misconduct will put a license in jeopardy." (Moore v. State Board of Equalization, supra, 76 Cal.App.2d 758, 764, 174 P.2d 323, 327. See also Gore v. Harris (1964) 229 Cal.App.2d 821, 827, 40 Cal.Rptr. 666, and Cornell v. Reilly, supra, 127 Cal.App.2d 178, 185, 273 P.2d 572.) Nevertheless, as pointed out in Vallerga there must be "good cause" for a revocation. In Stoumen v. Reilly, supra, the court ruled: "The board's discretion under section 22, however, is not absolute but must be exercised in accordance with the law, and the provision that it may revoke a license 'for good cause' necessarily implies that is decisions should be based on sufficient evidence and that it should not act arbitrarily in determining what is contrary to public welfare or morals." (37 Cal.2d at p. 717, 234 P.2d at 971. See also Martin v. Alcoholic Bev. etc. Appeals Bd. (1961) 55 Cal.2d 867, 876, 13 Cal.Rptr. 513, 362 P.2d 337; Weiss v. State Board of Equalization, supra, 40 Cal.2d 772, 775, 256 P.2d 1, and Reimel v. Alcoholic Bev. etc. App.Bd. (1967) 255 Cal.App.2d 40, 45, 65 Cal.Rptr. 251.)
In section 24200, subdivision (a), fn. 2, supra), the Legislature recognized that the Constitution gave the department plenary power to proceed to revoke a license when its continuance would be contrary to public welfare or morals. Nevertheless, as just noted above, the Constitution does not give the department unlimited power to determine what is contrary to public welfare or morals. It cannot act arbitrarily in making such a determination. The suggestion, contained in the cases referred to above, that the constitutional power furnishes grounds for disciplinary action independent of any breach of law or regulation, and regardless of the nature of the conduct involved, must be so qualified. No case has permitted the exercise of this power without proof of conduct which in itself, and not merely because of possible consequences, was contrary to public welfare or morals.
In Vallerga, supra, the license was revoked under an unconstitutional statute which had authorized revocation because of the nature of the type of patron who resorted to the licensed premises. The court noted that there was "sufficient evidence of a display of sexual desires and urges which, when made in a public place as a continuing course of conduct, could reasonably be found by the trier of fact to be 'contrary to public welfare or morals' " so as to justify a revocation under the constitutional provision if such grounds had been properly charged and tried. (53 Cal.2d at pp. 320-321, 1 Cal.Rptr. at p. 497, 347 P.2d at p. 913.) In Gore v. Harris, supra, the court noted: "It is settled that a liquor license is a permit to do what would otherwise be unlawful, and that the department need not define by rule or law all of the things that will put that license in jeopardy [citing Cornell v. Reilly, see infra]." (229 Cal.App.2d at p. 827, 40 Cal.Rptr. at p. 670.) The court pointed out, " * * * the evidence of respondents' guilt was not closely balanced, and the department accordingly had no alternative but to find that respondents' license had become 'null and void' pursuant to section 24040." (Id., p. 828, 40 Cal.Rptr. at p. 670.) Of course, the breach of the provisions of that statute would constitute, as also found, grounds for disciplinary action under the constitutional provisions. The lack of rules referred to in the opinion was not lack of rules prescribing what conduct by licensees was prohibited. Section 24040 contained the pertinent provisions. The quoted statement was directed to the licensee's contention that the department had failed to promulgate a regulation defining "use" of the license as that word was used in section 24040.
In Harris v. Alcoholic Bev. Con. Appeals Board, supra, the court noted that the constitutional power applied both to applications for licenses and to proceedings for their suspension or revocation. (212 Cal.App.2d at p. 119, 28 Cal.Rptr. 74.) The revocation involved a "disorderly house" under section 25601, and the breach of the provisions of that statute warranted the finding of additional grounds under the constitutional provisions.
In Schaub's Inc. v. Dept. of Alc. Bev. Control (1957) 153 Cal.App.2d 858, 315 P.2d 459, the court was reviewing the denial of the application for the transfer of a license to a new location. The court indicated that the department was not bound by hard and fast rules in determining what was contrary to public welfare or morals, and that the department could act on each application upon the circumstances then before it. (153 Cal.App. at p. 866, 315 P.2d 459. See also Torres v. Dept. Alcoholic Bev. Control, supra, 192 Cal.App.2d 541, 551, 13 Cal.Rptr. 531, but cf. Reimel v. Alcoholic Bev. etc. App.Bd. (1967) 255 Cal.App.2d 40, 49-50, 65 Cal.Rptr. 251.) In Martin v. Alcoholic Bev. etc. Appeals Board (1959) 52 Cal.2d 259, 341 P.2d 291, the court noted, " * * * there is a clear distinction between proceedings involving the revocation of an existing license and proceedings involving the denial of an application for a license. [Citation.]" (52 Cal.2d at p. 264, 341 P.2d at p. 294.)
In Mercurio v. Dept. Alcoholic etc. Control (1956) 144 Cal.App.2d 626, 301 P.2d 474, the court referred to the broad provisions of the Constitution to sustain the rule-making power of the department (§ 25750) and found that the violation of a rule prohibiting women employees from accepting alcoholic drinks purchased by patrons was contrary to public welfare and morals. (144 Cal.App.2d at pp. 631-633, 301 P.2d 474.) The court did state, "Moreover, it requires no argument to prove that permitting women employees of an on-sale liquor premises to accept alcoholic drinks purchased by patrons in contrary to the public welfare and morals." (Id., p. 631, 301 P.2d p. 479.) Nevertheless, the conduct in question did in fact occur after proper promulgation and adoption of the rule.
In Cornell v. Reilly, supra, the court observed, "Thus, although it is not indispensable to a holding in the instant case that the evidence supports the findings, because the evidence does show a violation of section 303 of the Penal Code, it is the law that appellant's license could have been revoked irrespective of a violation of a specific Penal Code section, if the evidence shows a situation contrary to public welfare or morals." (127 Cal.App.2d at p. 186, 273 P.2d at p. 577.) The case indicates that hiring female employees on a commission basis for the purpose of soliciting the purchase of drinks by customers of the licensed premises is of itself contrary to public welfare or morals. No such activity has been charged or shown in this case. In Moore, supra, the fountainhead of the principle upon which the department relies, the proceedings were based on a rule which made conviction of a violation of federal price control regulations a ground for disciplinary action. The licensee's attack upon the manner in which the rule was promulgated was disposed of by the court's conclusion that the conviction of the federal offense could be considered contrary to public welfare and morals under the Constitution by analogy to the provisions of law which made violation of state statute grounds for disciplinary action. (See Alcoholic Beverage Control Act, Stats.1935, p. 1123, § 40, subd. 2; cf. § 24200, subd. (b).) No such violation is involved in these proceedings.
The question then resolves itself into whether there is sufficient evidence to show that the department did not act arbitrarily in determining that the activities conducted by the licensee were contrary to public welfare and morals. Before pursuing this question, attention is directed to the particular powers to control the activities of females in connection with the sale of alcoholic beverages.
Regulation and Control of Activities of Females in Connection with the Sale and Serving of Alcoholic Beverages
In its scholarly brief the department has collected statutory and judicial precedents from this state, from the federal legislative and judicial branches of government and from sister states which demonstrate that the government may by legislation or rule prohibit or proscribe the activities of females in connection with the sale and serving of alcoholic beverages. (See Goesaert v. Cleary, (1948) 335 U.S. 464, 465-466, 69 S.Ct. 198, 93 L.Ed. 163; City of New Orleans v. Kiefer (1964) 246 La. 305, 164 So.2d 336, 339; Milwaukee v. Piscuine (1963) 18 Wis.2d 599, 119 N.W.2d 442, and In re Tahiti Bar, Inc. (1959) 395 Pa. 355, 150 A.2d 112.)
In this state the Legislature has acted in various forms to prohibit the solicitation of the purchase of drinks (§§ 24200.5, subd. (b) and 25657; and Pen.Code, §§ 303 and 303a) and to prohibit the employment of female bartenders (§ 25656). The board, by rule, has specifically proscribed the use of "B-girls" (see fn. 12, supra).
These precedents do not control the instant case. The decisions relied upon by the department fall within the "disorderly house" section, which has been discussed above, or involve a violation of one of the other cited state statutes or a promulgated rule, or a violation of a local ordinance. Sufficiency of the Evidence
Munson v. Dept. Alcoholic Bev. Control, supra, 248 Cal.App.2d 598, 599, 56 Cal.Rptr. 805; Los Robles Motor Lodge, Inc. v. Dept. of Alcoholic Bev. Control, supra, 246 Cal.App.2d 198, 200, 54 Cal.Rptr. 547; Presto v. Alcoholic Bev. etc. Appeals Bd., supra, 179 Cal.App.2d 262, 266, 3 Cal.Rptr. 742; Adler v. Dept. Alcoholic Bev. Control, supra. 174 Cal.App.2d 256, 258, 344 P.2d 336; Rosales v. Dept. Alcoholic Bev. Control, supra, 171 Cal.App.2d 624, 625-626, 341 P.2d 366; Swegle v. State Board of Equalization, supra, 125 Cal.App.2d 432, 70 P.2d 518.
Harris v. Alcoholic Bev. etc. Appeals Bd. (1965) 62 Cal.2d 589, 591, 43 Cal.Rptr. 633, 400 P.2d 745; Hargens v. Alcoholic Beverage Control App.Bd. (1968) 263 A.C.A. 663, 669-674, 69 Cal.Rptr. 868; Harris v. Alcoholic Bev. etc. Appeals Bd. (1964) 224 Cal.App.2d 468, 470, 36 Cal.Rptr. 697; Greenblatt v. Martin (1960) 177 Cal.App.2d 738, 741, 2 Cal.Rptr. 508; Skipitar v. Munro (1959) 175 Cal.App.2d 1, 3, 345 P.2d 508; People v. Holstun (1959) 167 Cal.App.2d 479, 487, 334 P.2d 645; Karides v. Dept. Alcoholic Bev. Control (1958) 164 Cal.App.2d 549, 551, 331 P.2d 145; Garcia v. Munro (1958) 161 Cal.App.2d 425, 427-428, 326 P.2d 894; Greenblatt v. Munro (1958) 161 Cal.App.2d 596, 599, 326 P.2d 929; Oxom v. Dept. Alcoholic etc. Control (1957) 153 Cal.App.2d 740, 747-748, 315 P.2d 484; Wright v. Munro (1956) 144 Cal.App.2d 843, 848, 301 P.2d 997; Cooper v. State Board of Equalization (1955) 137 Cal.App.2d 672, 680, 290 P.2d 914; Hobson v. Reilly (1955) 132 Cal.App.2d 275, 278, 281 P.2d 877; Cornell v. Reilly (1954) 127 Cal.App.2d 178, 186, 273 P.2d 573; Chosick v. Reilly (1954) 125 Cal.App.2d 334, 335, 270 P.2d 547; People v. Jemnez (1942) 49 Cal.App.2d Supp. 739, 742-743, 121 P.2d 543.
Foster v. Board of Police Commissioners (1894) 102 Cal. 483, 491, 37 P. 763; Ex parte Hayes (1893) 98 Cal. 555, 556, 33 P. 337, 20 L.R.A. 701; Ex parte Felchlin (1892) 96 Cal. 360, 362, 31 P. 224; Ex parte Smith and Keating (1869) 38 Cal. 702, 709-712; People v. King (1952) 115 Cal.App.2d Supp. 875, 877, 252 P.2d 78, and see Carolina Lanes, Inc. v. City of Los Angeles (1967) 253 Cal.App.2d 831, 835-836, 61 Cal.Rptr. 630.
It may be assumed, without deciding, that ample precedent exists for governmental authority to prescribe reasonable laws or regulations governing the dress or lack of dress of feminine employees engaged in the sale and service of alcoholic beverages. Breach of such law or regulation would then give rise to the right to take disciplinary action.
The showing upon which the department relies in this case is not found in the record. Although it has disclaimed any contention that the display and exposure are lewd or obscene, it states that it is a "sexual display generally unacceptable by the society at large," and that "taverns and bars are not the places to promote a radical innovation in sexual mores." In People v. Hansen, supra, the court noted that the regulation of sex was the subject of regulation by the Legislature, and that a local agency could not use its power to prescribe health regulations to regulate the covering of waitress' breasts. (245 Cal.App.2d at p. 691, 54 Cal.Rptr. 311.) The department, as demonstrated, has broad powers to control the conduct of female employees of licensees, but it must connect the activity complained of with some conduct which is contrary to public welfare or morals. The department seeks "to keep the regulated business clean and wholesome." (See Cornell v. Reilly, supra, 127 Cal.App.2d at p. 184, 273 P.2d 572.) "The law demands that [the licensee] in fact so conduct his business that it meets the minimum requirements of decency and morality." (Givens v. Dept. Alcoholic Bev. Control (1959) 176 Cal.App.2d 529, 534, 1 Cal.Rptr. 446, 450.) These principles do not give the department the arbitrary power to act as the arbiter of what the patrons may observe. No one who does not consider such display and exposure clean and wholesome is required to patronize the licensee's establishment. (See Robins v. County of Los Angeles, supra, 248 Cal.App.2d 1, 12; and fn. 11, 56 Cal.Rptr. 853, supra.)
The department seeks to uphold its action on the theory that the working girl should be protected from "the vulgarity and violence which has a greater tendency to develop at a bar than at most other places." (Kovalchuk Liquor License Case (1963) 202 Pa.Super. 389, 391, 195 A.2d 828, 829.) Action for this commendable motive is not warranted on the record in this case. Despite the fact that the regulation of the working conditions of women generally is committed to the Industrial Welfare Commission (Lab.Code, Div. 2, Pt. 4, §§ 1171-1398), the department may have power to regulate and rule when the employment involves sale and service of alcoholic beverages. Summary action, where no vulgarity or violence has been shown, is not warranted.
The department contends that the conduct complained of should be equated with that of "B-girls." In Ex parte Smith and Keating (1869) 38 Cal. 702, the court upheld an ordinance which made it unlawful for females to be in premises where alcoholic beverages were sold after midnight. It observed, "It is not to be supposed that In Greenblatt v. Martin (1960) 177 Cal.App.2d 738, 2 Cal.Rptr. 508, the court upheld the provisions of section 24200.5, subdivision (b). The court notes: " * * * the very facts of this case demonstrate the attendant evils of solicitation: The deceptive payment of one dollar to two dollars per drink for orange juice; the feminine favors that were bestowed as part of the inducement; the sale of many drinks in quick succession. These are the characteristics of the bar girl pattern. Here is a system which converts the proper use of the bar as a place of sociable and relaxed drinking into a purposeful and commercial exploitation of the customer. The Legislature provided that the customer should be free of engineered enticement." (177 Cal.App.2d at p. 742, 2 Cal.Rptr. at p. 511. See also Mercurio v. Dept. Alcoholic etc. Control, supra, 144 Cal.App.2d 626, 631-634, 301 P.2d 474.)
Section 24200.5 provides in part: "Notwithstanding the provisions of Section 24200, the department shall revoke a license upon any of the following grounds: * * * (b) If the licensee has employed or permitted any persons to solicit or encourage others, directly or indirectly, to buy them drinks in the licensed premises under any commission, percentage, salary, or other profit-sharing plan, scheme, or conspiracy."
The department urges that considerations similar to those found in the quoted passages warrant its action in this case. In each case, however, before activities, which were otherwise legal, could be the subject of penal or disciplinary sanctions they were made the subject of an express law or regulation. There is no evidence that the waitresses in this case were soliciting the customers to buy them drinks.
Section 23001 provides: "This division is an exercise of the police powers of the State for the protection of the safety, welfare, health, peace, and morals of the people of the State, to eliminate the evils of unlicensed and unlawful manufacture, selling, and disposing of alcoholic beverages, and to promote temperance in the use and consumption of alcoholic beverages. It is hereby declared that the subject matter of this division involves in the highest degree the economic, social, and moral well-being and the safety of the State aNd of all its people. All provisions of this division shall be liberally construed for the accomplishment of these purposes." The department assets, "the clear intent of the licensee with his use of these bare-breasted bargirls is to stimulate increased sales of alcoholic beverages." It may be assumed that the exposure and display is good for business, but the record is silent as to whether the per capita consumption of alcoholic beverages is higher or lower among the patrons of this licensee's establishment, than it is in other restaurants or bars. From all that appears the patrons may spend more time gawking, than imbibing. Literal obeisance to the promotion of temperance would render the conducting of any promotional activity the subject of disciplinary proceedings.
As a final basis on which to predict the disciplinary action, the department asserts: "It is reasonable to expect that patrons will demand more of a bare-breasted employee who serves them a drink than the drink itself. Such a female who of necessity will have to be very close to the patron, especially after the patron has consumed a few drinks, provides an open opportunity for criminal, lewd or obscene conduct." It attempts to buttress its fears in this regard with reference to other disciplinary proceedings in which such fears were realized. Endler v. Schutzbank
Appeal of Leyborune, A.B. 2568 (Dec. 13, 1966); Matter of the Accusation against Richard H. Powers and John W. Smith, doing business as the Rate Fink, File No. 116, Reg. No. 8811 (July 28, 1966). See also People v. Kukkanen (1967) 248 Cal.App.2d Supp. 899, fn. 3, p. 905, 56 Cal.Rptr. 620.
In this case there is no evidence that the evils which the department seeks to avoid occurred on the licensee's premises. The stipulation in which the department joined precludes a finding of any indecorous conduct on the part of the waitresses. The licensee cannot be charged with the immorality permitted on the premises of his competitors, particularly when, as appears from the record, the acts referred to in the proceedings occurred many months after the exposures and displays which are the subject of these proceedings. Nor does the policy declaration, or the fact that more than one proceeding was commenced against the licensee strengthen the department's position. Without the ability to question a department policy aimed at activities legal and moral the licensee must "knuckle under" or fact the consequences. Such a procedure falls short of administrative due process.
There was no decision much less any hearing in the first proceeding at the time the activities, of which complaint was made in the second proceeding, occurred.
To permit the department to act summarily against activity lawful in itself, because of fears, no matter how justifiable, that it will lead to further conduct contrary to public welfare and morals may present some constitutional problems. In re Davis (1966) 242 Cal.App.2d 645, 51 Cal.Rptr. 702, held that phrase "outrages public decency" as used in a penal statute was unconstitutionally vague. (242 Cal.App.2d at pp. 650-666, 51 Cal.Rptr. 702.) The court observed, "It is proper to point out that here we have far more than a simple problem of determining whether given conduct falls on one side or the other of a reasonably defined prohibition. That problem is faced by courts and juries every day and is, in the nature of things, unavoidable, whether it involves purely a question of fact, a mixed question, or one of law. Here we are faced with a far more basic question--did the Legislature intend to regulate manners, morals, or both, and if so, what is the applicable standard. [fn. omitted.] We have a statute which may truly mean all things to all men, for if it be said that public decency should not be defined by the standards of the most profligate segment of the community, neither could we accept the definitions of the most What is contrary to public welfare and morals may be a fit standard for defining the exercise of legislative power. Nevertheless, it gives but a nebulous test for gauging specific human conduct in an adjudicative proceeding involving the loss of liberty or property. It can only subject the actor or compliance with the whims of those charged with the administration of the laws on pain of losing his license. If the rule-making power (§ 25750) is exercised the licensee may secure a determination of the validity of the exercise of that power without facing the alternative of compliance, or risk of loss of license. (Gov.Code, § 11440; and see Ralph Grocery v. Reimel, supra, 69 A.C. 171, 174-176, 70 Cal.Rptr. 407, 444 P.2d 79; Blatz Brewing Co. v. Collins (1948) 88 Cal.App.2d 438, 440, 199 P.2d 34.)
Paradoxically, by its grossly revealing nature, the activity proscribed in this case tends to obscure the principle involved. If it be assumed that a rule or regulation embodying the department's policy (see fn. 12, supra) would be sustained, why should the department be restrained from proceeding on an ad hoc, or case by case procedure in regulating the dress of the feminine employees of its licensees? The licensee who is engaging in legal conduct for promotional purposes is entitled to be heard on the question of how that conduct may otherwise lead to activity contrary to public welfare or morals. He should not be judged on the evils suffered or permitted by other licensees. If the department decided to summarily take disciplinary action because of the height of the hemline of the skirts, or because of the nature of costumes worn by the female employees of the licensee, the requirement of a preliminary hearing on the merits of the prohibition would be more readily apparent. The fact remains, that from all that appears in this case, the display and exposure are as legal as the costuming which may be found in other establishments.
It is concluded that there is no substantial evidence that the activities admittedly conducted in the manner stipulated on the premises of the licensee were contrary to public welfare or morals. The judgment of the superior court must be affirmed.
In closing it should be noted that although it is concluded that any disciplinary action such as was attempted here against activities innocent of themselves must be by rule or statute, this court has not been called upon to pass upon the validity or constitutionality of any particular rule, and refrains from so doing. (Cf. In re Davis, supra, 242 Cal.App.2d at p. 667, 51 Cal.Rptr. 702.)
The judgments are affirmed.
MOLINARI, Presiding Justice.
I concur in the opinion of Justice Sims.
This case does not yield to any predilections as to whether the practice of an alcoholic beverage licensee in permitting female waitresses to expose their breasts is per se obscene or immoral on the basis that, applying contemporary community standards, such practice appeals to the prurient interests of the licensee's patrons and offends accepted standards of decency. (See In re Giannini and Iser, 69 A.C. 588, 72 Cal.Rptr. 655, 446 P.2d 535.) The department concedes that in the present case there is no showing of obscenity or immorality, but seeks to justify the license revocation on the ground that the subject conduct is contrary to public welfare or morals because it will inevitably lead to serious social and moral problems.
The California Constitution (art. II, § 22) confers upon the department the power, in its discretion, to suspend or revoke any liquor license if it determines for good cause that the continuance of the license will be contrary to public welfare or morals. (Allied Properties v. Dept. of Alcoholic Beverage Control, 53 Cal.2d 141, 145, 346 P.2d 737.) Accordingly, the department has the broad power to determine what acts are contrary to public welfare or morals. (Mercurio v. Dept. Alcoholic etc. Control, 144 Cal.App.2d 626, 632, 301 P.2d 474.) In making the determination the department may not, however, act arbitrarily, but "In the exercise of its discretion the department can properly consider substantial violations of statutory provisions concerning alcoholic beverages or of rules of the department as good cause for suspension of licenses, * * *." (Allied Properties v. Dept. of Alcoholic Mercurio v. Dept. of Alcoholic etc. Control,
1With respect to the adoption of rules, the power of the department is derived from article XX, section 22 of the Constitution and section 25750, 2 and this power includes the power to interpret such rules. (See Joseph George, Distr. v. Dept. Alc. Beverage Control, 149 Cal.App.2d 702, 705, 308 P.2d 773; Samson Market Co. v. Kirby, 261 A.C.A. 659, 666, 68 Cal.Rptr. 130, and see 23 Ops.Cal.Atty.Gen. 199.) In promulgating such rules or interpretations, the department, although vested with broad powers, may not enact rules or make interpretations thereof that contravene clear provisions of statutory law, nor may such rules or interpretations be arbitrary, inconsistent, contradictory or unreasonable. (See Gov.Code, § 11374; Cal.Const., art. XX, § 22; § 25750; Mercurio v. Dept. Alcoholic etc. Control, supra; Joseph George Distr. v. Dept. Alc. Beverage Control, supra, 149 Cal.App.2d at p. 706, 308 P.2d 773; Blatz Brewing Co. v. Collins, 69 Cal.App.2d 639, 645-646, 160 P.2d 37; Harris v. Alcoholic Bev. etc. Appeals Bd., 235 Cal.App.2d 479, 482, 45 Cal.Rptr. 450; Harris v. Alcoholic Bev. etc. Appeals Bd., 228 Cal.App.2d 1, 6-7, 39 Cal.Rptr. 192.) Such rules and regulations may be tested in the courts to determine whether the object of the rule or regulation is one for which the department's powers may legitimately be invoked, and if so, whether the rule or regulation is reasonably directed to the accomplishment of that purpose. (See Allied Properties v. Dept. of Alcoholic Beverage Control, supra, 53 Cal.2d at p. 146, 346 P.2d 737; Am. Distilling Co. v. State Bd. of Equalization, 55 Cal.App.2d 799, 805-806, 131 P.2d 609.)
In the present case there is no contention by the department that the licensee has violated any statute or that the licensee has violated any rule which it has promulgated. The only basis for declaring that the practice in question is contrary to public welfare or morals is that it is such as will inevitably lead to serious social and moral problems. Such a determination is, in our opinion, an arbitrary exercise of the powers conferred upon the department. In the absence of a statutory provision proscribing certain conduct concerning alcoholic beverages, the department can only determine that certain acts are contrary to public welfare or morals by the promulgation of rules proscribing certain conduct by the licensee will be deemed contrary to public welfare or morals and grounds for suspension or revocation of a license. (See Allied Properties v. Dept. of Alcoholic etc. Control, supra, 53 Cal.2d 141, 146, 346 P.2d 737; Mercurio v. Dept. Alcoholic etc. Control, supra, 144 Cal.App.2d 626, 632-633, 301 P.2d 474; and see Cal.Admin.Code, tit. 4, § 1.)
Where a rule or regulation is promulgated the licensee is on notice as to the It is significant to note that in this state females have been restricted with reference to their rights in liquor establishments, but that such restrictions find their basis in either a statute or a rule of the department. (See § 25656, prohibiting employment of female bartenders; § 25657, prohibiting employment of hostesses for procuring or encouraging the purchase or sale of alcoholic beverages for consumption or use by such employee; and Cal.Admin.Code, tit. 4, art. 22, § 143, prohibiting female employees from soliciting or accepting alcoholic drinks.
I am not unmindful that the department has in fact promulgated a "policy statement" against topless barroom waitresses. The significance of such a statement of policy remains obscure in view of the provisions of section 25750 and the procedure set out in the Administrative Procedure Act (Gov.Code, §§ 11370-11445) for the adoption and promulgation of rules or regulations by state administrative agencies. I apprehend that when the department has intended to promulgate a rule it has followed this procedure and has specifically designated the specific regulation to be a rule. (See Cal.Admin.Code, tit. 4, ch. 1.) It may be judicially noticed, moreover, that when the department has deemed that a licensee has violated any of its rules and regulations (see Cal.Admin.Code, tit. 4, § 1), the accusation against him has so alleged. In the present case the licensee was not charged with the violation of any rule or regulation. To now suggest that a policy statement such as that pronounced in the present case attains the dignity of a rule is tantamount to a request that we sanction an unwarranted aberration from the basic minimum procedural requirements prescribed by the Legislature. (See Gov.Code, § 11420.)
In my opinion the broad statement in Moore v. State Board of Equalization, 76 Cal.App.2d 758, 174 P.2d 323, 327 that "There is nothing in the constitutional provision which requires the board to prescribe by rule what infraction or misconduct will put a license in jeopardy" must be interpreted in the context of the rationale in that case. There a rule which made a conviction of a violation of federal law a ground for revocation of a liquor license was declared to be a declaration of board policy amounting merely to a warning, since in adopting the rule the board did not rely on the rule-making provisions of the Alcoholic Beverage Control Act. The revocation, however, was justified upon the violation of a federal law which dealt with the same subject as a state penal provision, the violation of which constituted good cause for revocation.
The case of Bank of Italy v. Johnson, 200 Cal. 1, 22-23, 251 P. 784, must likewise be considered in the context of its rationale. There a declaration of policy by the superintendent of banks, outlining the conditions upon which branch banks would be permitted, was held to constitute a rule having the force of law. The declaration was held to be a rule of the superintendent's department prescribing the showing which applicants had to make, and was held to be a rule which the superintendent had the power to prescribe under the implied powers granted him. The Supreme Court was there concerned with a principle frequently applied to licensing agencies which permits such agencies to adopt rules and regulations containing restrictions and conditions Cal. Drive-In Restaurant Assn. v. Clark,
ELKINGTON, Associate Justice.
I dissent.
The holding of the majority is based solely on the failure of the department to promulgate a rule (pursuant to Gov.Code, §§ 11370-11445) forbidding the employment of topless cocktail waitresses. This failure, they conclude, results in a withdrawal from the department, insofar as such employees are concerned, of the constitutionally granted power (Cal.Const., art. XX, § 22), "in its discretion, to * * * suspend or revoke any specific alcoholic beverages license if it shall determine for good cause that the granting or continuance of such license would be contrary to public welfare or morals."
In the strain to such this result settled rules of law have been rejected. It has long been established that the department "need not define by rule or law all of the things that will put that license in jeopardy." (Emphasis added; Gore v. Harris, 229 Cal.App.2d 821, 827, 40 Cal.Rptr. 666, 670; Cornell v. Reilly, 127 Cal.App.2d 178, 185, 273 P.2d 572; Moore v. State Board of Equalization, 76 Cal.App.2d 758, 764, 174 P.2d 323.) In Torres v. Dept. Alcoholic Bev. Control, 192 Cal.App.2d 541, 550, 13 Cal.Rptr. 531, 537, it was held that "the authority of the Department to deny the granting of a license upon the ground that its issuance would be contrary to public welfare or morals is derived from self-executing provisions of the Constitution; exists independently of any legislation; and may not be restricted by statute." (Emphasis added.)
Moreover, basic principles relating to appellate procedure are ignored. The appeal is decided on a point developed by this court alone, after briefing, oral argument and submission by the parties on other issues. The point was abandoned by Boreta in the department and appeals board hearings; it was not raised or considered in the superior court; and it was not presented, relied upon or argued, orally or in writing, by any party to this appeal. At the time this dissent is written the department has no knowledge that the court has even considered the issue which to the majority is decisive. No suggestion of further briefing or argument has been made. The department thus has had no opportunity to argue the point upon which its cases have been decided by this court; it has in effect been denied its right of appeal. 1
Although not required, the department did in fact announce a policy against the use of topless bar waitresses. This policy statement was in effect at the times with which we are here concerned and was in the following language: "The Department considers contrary to public welfare and morals conduct in any licensed premises where licensees, waitresses or other females employed or performing any type of services within or upon the licensed premises when commingling with or waiting upon patrons, expose their bare breasts
2 3Boreta has made no contention that it lacked notice of the department's policy. 4 Indeed, the subject matter of the second proceeding against Boreta took place while the first proceeding was pending.
It thus appears that we are not here concerned with a licensee acting in good faith who finds himself charged with conduct unknown by him to be considered by the department as contrary to public welfare and morals. In that case such action of the department might very well be unreasonable and arbitrary, thus subject to reversal. (See Harris v. Alcoholic Bev. etc. Appeals Board, supra, 62 Cal.2d 589, 594, 43 Cal.Rptr. 633, 400 P.2d 745; Magit v. Board of Medical Examiners, 57 Cal.2d 74, 88, 17 Cal.Rptr. 488, 366 P.2d 816; Brown v. Gordon, 240 Cal.App.2d 659, 667-668, 49 Cal.Rptr. 901.)
Boreta's principal contention here, as well as before the department, the appeals board and the superior court is that the use of "topless" cocktail waitresses cannot reasonably be considered offensive to public welfare or morals. It follows, Boreta urges, that the department's orders were arbitrary and not based upon sufficient or substantial evidence.
From a review of the published reports of the appellate courts of this state the question appears to be one of first impression. However, we note that on at least six occasions since the perfection of the instant appeals, the Court of Appeal, Second District (under the new "writ of review" procedure, Bus. & Prof.Code, §§ 23090-23090.7, enacted 1967), even though the "rule" here required by the majority was absent, has denied review of decisions of the appeals board upholding the imposition of discipline by the department against bar licensees for employing topless waitresses. 5 Judicial notice may be taken of these proceedings. (See fn. 3, ante.)
The broad power of a state to regulate the use of alcoholic beverages was pointed out by the United States Supreme Court in Crowley v. Christensen, 137 U.S. 86, 89, 91, In Farah v. Alcoholic Bev. etc. Appeals Bd., 159 Cal.App.2d 335, 338, 324 P.2d 98, 101, the court tersely expressed the same principle in this manner: "The business of selling intoxicating liquor is one attended with dangers, and under the police power the state may limit the operation of such business to conditions which will minimize its evils."
The constitutional grant of power to the department is self-executing. The department may act in any situation where continuance of a license would be contrary to public welfare or morals; it is not bound to await an expression of legislative policy. Nor may its power be restricted by the Legislature. (Vallerga v. Dept. Alcoholic Bev. Control, 53 Cal.2d 313, 318-319, 1 Cal.Rptr. 494, 347 P.2d 909; Torres v. Dept. Alcoholic Bev. Control, supra, 192 Cal.App.2d 541, 550, 13 Cal.Rptr. 531.)
Regulation of licensees by the department under its constitutional power is subject only to two limitations: (1) that it base its decision on sufficient evidence; and (2) that is not act arbitrarily in determining what is contrary to public welfare and morals. (Martin v. Alcoholic Beverage Control Appeals Board, 55 Cal.2d 867, 876, 13 Cal.Rptr. 513, 362 P.2d 337; Stoumen v. Reilly, 37 Cal.2d 713, 717, 234 P.2d 969.) Accordingly, the sole function of this reviewing court is to determine whether the department acted arbitrarily or without sufficient evidence. If the department did not so act, we may not overturn its decisions even though we may consider that contrary findings would have been equally or even more reasonable. (Reimel v. Alcoholic Bev. etc. App. Board, supra, 250 Cal.App.2d 673, 679, 58 Cal.Rptr. 788; DeMartini v. Department of Alcoholic Beverage Control, 215 Cal.App.2d 787, 799, 30 Cal.Rptr. 668; Bowman v. Alcoholic Bev. etc. Board, 171 Cal.App.2d 467, 472, 340 P.2d 652; Jacques, Inc. v. State Bd. of Equalization, 155 Cal.App.2d 448, 462-463, 318 P.2d 6; Schaub's Inc. v. Dept. Alc. Bev. Control, 153 Cal.App.2d 858, 866, 315 P.2d 459.)
The department insists that while there is nothing immoral per se in the display of the female breast, the circulation of seminude cocktail waitresses among bar patrons inevitably leads to serious social and moral problems.
It has long been held that activities, though innocent in themselves, may be restrained if pursuit of those activities has a tendency to bring about acts or conditions contrary to public welfare or morals.
The United States Supreme Court in Booth v. Illinois, 184 U.S. 425, 429, 22 S.Ct. 425, 427, 46 L.Ed. 623, has said, "A calling may not in itself be immoral, and yet the tendency of what is generally or ordinarily or often done in pursuing that calling may be towards that which is admittedly immoral or pernicious. If, looking at all the circumstances that attend, or which may ordinarily attend the pursuit of a particular calling, the state thinks that certain admitted evils cannot be successfully reached unless the calling be actually prohibited, the courts cannot interfere, unless, looking through mere forms and at the substance of the matter, they can say that the statute enacted professedly to protect the public morals has no real or substantial relation to that object, but is a clear, unmistakable infringement of rights secured by the fundamental law. [Citations.]" (See also Murphy v. California, 225 U.S. 623, 629, 32 S.Ct. 697, 56 L.Ed. 1229.) In a case concerning an alcoholic beverage regulatory statute of Mississippi the same court in Purity Extract & Tonic Co. v. Lynch, 226 U.S. 192, 201, 33 S.Ct. 44, 46, 57 L.Ed. 184, stated: "It is also well established that, when a state exerting its recognized authority, undertakes to suppress what it is free to regard as a public evil, it may adopt such measures having reasonable relation to that end as it may deem necessary in order to make its action effective. It does not follow that because a transaction, separately considered, is innocuous, it may not be included in a prohibition the scope of which is regarded as essential in the legislative judgment to accomplish a purpose within the admitted power of the government. [Citations.] With the wisdom of the exercise of that judgment the court has no concern; and unless it clearly appears that the enactment has no substantial relation to a proper purpose, it cannot be said that the limit of legislative power has been transcended. To hold otherwise would be to substitute judicial opinion of expediency for the will of the legislature,--a notion foreign to our constitutional system."
It is the experience of law enforcement agencies that bars, with frequently inebriated patrons, pose greater police problems than any other type of business. This truism has often received judicial confirmation. Upholding a Pennsylvania statute regulating the proximity of women employees to bar customers, the court in Kovalchuk Liquor License Case, 202 Pa.Super. 389, 391, 195 A.2d 828, 829, asserted that "vulgarity and violence * * * has a greater tendency to develop at a bar than at most other places." Confronted with a similar question, the court in People v. King, 115 Cal.App.2d Supp. 875, 877, 252 P.2d 78, 79, stated: "The obvious purpose of the ordinance under consideration is to prevent female employees from improprieties and immoral acts likely to result from intimate familiarity of the sexes in liquor establishments. It is plain enough that drinking with patrons or dancing with patrons would tend to encourage improprieties and there are, no doubt, many intimate acts of association to numerous to specifically prohibit by statute which would tend to encourage improprieties by female employees and patrons."
The court in City of Milwaukee v. Piscuine, 18 Wis.2d 599, 119 N.W.2d 442, was concerned with an ordinance prohibiting certain conduct of women employees of bars. The court there stated: "Although standing or sitting at a bar many not by itself be conduct which is against morals and the public welfare, this is not the test. Ever since Eve, mankind has recognized that one thing may lead to another and if the city of Milwaukee common council chose to enact these restrictions as part of a program * * * to reduce the fraternizing by female employees with patrons of these liquor establishments, we must hold that this ordinance is a reasonable exercise of the police power and that the regulations are directly related to preserving morals and the public welfare." (pp. 449-450.)
The case files of the department attest to a continuation of the age-old problem pointed out in Milwaukee v. Piscuine, supra. These records, of which judicial notice may be taken (see fn. 3, ante0, disclose conduct directly relating to topless waitresses and their customers which even from the most tolerant view must be considered contrary to public welfare and morals. 6 Undoubtedly our country is undergoing a profound change in its standards of behavior and acceptable display of the human body. This transition must be recognized and when not too clearly unreasonable, accepted. However, it seems to the writer of this dissent that bars are not the places, nor bar licensees the persons, to initiate and promote innovations of sexual mores. In any event the department could reasonably so conclude. Having so concluded its decision, under recognized principles, is not arbitrary and is based upon sufficient evidence. Boreta contends that "The Department failed to introduce any evidence showing that topless waitresses are contrary to public welfare or morals. Therefore its attempted revocation of [Boreta's] liquor license was arbitrary and capricious, and in violation of law." Such evidence was unnecessary. The determination of the department was in the nature of a conclusion of law based on admitted evidence that Boreta's conduct was violative of public welfare and morals.
It is contended that the action of the department abridges the First Amendment right of "freedom of expression" as guaranteed by the Fourteenth Amendment. Cited as authority is Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098. That case deals with a state statute forbidding the showing of a motion picture film if found by state officials to be "sacrilegious." Here we are not in any way concerned with freedom of expression. We are concerned only with women who serve liquor, the traditional barmaid. 7
It is further argued that the San Francisco Municipal Court directed verdicts for certain defendants, including Boreta, in a misdemeanor proceeding "on the grounds that as a matter of law a topless dance and mere exposure of breasts at the Off-Broadway were neither lewd conduct nor indecent exposure." It is urged that the doctrine of res judicata or of collateral estoppel must therefore apply to the issue before us. We are furnished with no record of the proceedings to which Boreta refers, nor can we determine the facts or issues upon which that case was decided. We are therefore unable to consider further the application of the urged principles. Moreover, it is established law that acquittal of a licensee of a criminal charge is in no way binding on the department. (Cornell v. Reilly, 127 Cal.App.2d 178, 183-186, 273 P.2d 572; see also Epstein v. California Horse Racing Board, 222 Cal.App.2d 831, 840-841, 35 Cal.Rptr. 642; Kelly v. Municipal Court, 160 Cal.App.2d 38, 44, 324 P.2d 990.)
The penalty imposed on Boreta by the department may not be considered unreasonably harsh or abusive of discretion. In each case the department's order is now stayed, which stay will become permanent if Boreta commits no act which will give rise to disciplinary action within one year from the date the decision becomes final.
I would reverse the judgments of the superior court.
Section 24200 of the Business and Professions Code provides in subdivisions (a) and (b), with exceptions not material here, as follows: "The following are the grounds which constitute a basis for the suspension or the revocation of licenses: (a) When the continuance of a license would be contrary to public welfare or morals; but proceedings under this section upon this ground are not a limitation upon the department's authority to proceed under Article XX, Section 22, of the Constitution. (b) * * * the violation or the causing or the permitting of a violation by a licensee of this division, * * * any rules of the department adopted pursuant to the provisions of this division, or any other penal provisions of law of this State prohibiting or regulating the sale, exposing for sale, use, possession, giving away, adulteration, dilution, misbranding, or mislabeling of alcoholic beverages or intoxicating liquors."
"LICENSEE'S PREVIOUS RECORD: Licensed December 28, 1962. No record of disciplinary action.
"DETERMINATION OF ISSUES PRESENTED: The activities found to be true in the above Findings of Fact constitute conduct, which is contrary to public welfare and morals and grounds to suspend or revoke the license exist pursuant to Article XX, Section 22, State Constitution, and Sections 24200(a) and (b), of the Business and Professions Code.
"PENALTY OR RECOMMENDATION: The license is hereby revoked; provided, however, that such Order of Revocation is hereby stayed upon the condition that no cause for disciplinary action shall occur within one year from the effective date of this decision; that should the Director of the Department of Alcoholic Beverage Control determine, upon evidence satisfactory to him, that such cause for disciplinary action has occurred during said one-year period, he may, in his discretion and without a hearing, immediately vacate the stay of the Order of Revocation and reimpose the Order of Revocation; and that otherwise the stay shall become permanent."
"DETERMINATION OF ISSUES PRESENTED: By reason of the foregoing facts found to be true, grounds for suspension or revocation of such license exist and the continuance of such license would be contrary to public welfare and morals, as set forth in Article XX, Section 22 of the State Constitution and Section 24200(a) of the Business and Professions Code. Additional grounds for suspension or revocation under section 24200(b) of the Business and Professions Code exist in that the respondent violated, or permitted the violation, of Business and Professions Code's Section 25601 as found under Count I and subcounts a, c, d an f thereof.
"PENALTY: The license is revoked on Count I and on each of subcounts a, c, d and f thereof severally and separately; provided, however, that said order of revocation is stayed for a period of one year from the effective date of this decision upon the following conditions: (a) That the license be suspended for thirty (30) days from the effective date of this decision, and (b) that no subsequent decision be made after hearing or upon stipulation and waiver that cause for disciplinary action occurred within one (1) year from the effective date of this decision; that should such subsequent decision be made, the Director of Alcoholic Beverage Control may in his discretion vacate the stay order and reimpose the order of revocation; and that should no such decision be made for case arising during such one (1) year period, the stay shall become permanent.
"Subcounts b, e, g, h, i and j of Count I are dismissed."
"(a) 'Obscene' means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance. * * * "
In Harris v. ALcoholic Bev. etc. Appeals Bd. (1965) 62 Cal.2d 589, 43 Cal.Rptr. 633, 400 P.2d 745, the court took judicial notice of a department bulletin as evidence of its policy regarding penalties. (62 Cal.2d at pp. 595-597, 43 Cal.Rptr. 633, 400 P.2d 745, and cf. Gov. Code, § 11515.) Here the department's policy is clear. The issue is the propriety of enforcing that policy with respect to the specific activities of this particular licensee.
"The right of appeal is as sacred and inviolable as the right to a trial, and when by judicial oppression such right is violated or vitiated, the guaranteed and substantial rights of a party have been materially affected thereby."
1. Accusation against Hults, file 2384: Topless waitress allowed male patrons to fondle exposed portions of her body without being repulsed in any manner. Another topless employee performed lewd acts with her body in a manner that exposed her vagina.
2. Accusation against Leybourne, file 8488: Topless waitress kissed 10 or 12 male patrons on the lips allowing those patrons to caress her upon her buttocks and legs.
3. Accusation against Maselli, file 16950: Topless waitress sat on lap of male customer, and also engaged "in a dance wherein she performed lewd and suggestive actions relating to her public area and used abusive and profane language."
4. Accusation against Furr, file 18219: Topless waitress permitted her patron to fondle her breasts.
5. Accusation against Delta Star Corporation, file 28603: Topless waitress removed her brassiere and other clothing, requested $1 of each of several male patrons for doing so, and then performed a three-minute dance routine known as "bumps and grinds."
6. Accusation against Hall, file 31302: Topless female employee (bar manager named Cora) engaged with a topless female entertainer in the following conduct: "Said topless female entertainer, while on stage, placed the front portion of her body against the back portion of [Cora's] body, and began a forward and backward motion with her hips, thereby causing firm physical contact between the bodies at the peak of each forward thrust. * * * Said topless entertainer stepped off the stage area and reached out and pinched the buttock area of [Cora]. [Cora] proceeded to the pool table area and obtained a pool cue. She powdered the butt end, held the stick in such a manner that approximately eighteen inches protruded from the front of her left hand, and began a stroking action by sliding the stick back and forth through her left hand with her right hand. [Cora] then approached said topless entertainer, who was on the stage, pointed the butt end of the stick toward the topless entertainer's public area and shouted, 'Come and get it--it has a rubber tip and is all slicked up for you.' "
A topless waitress, while standing directly behind Cora reached her right hand around Cora's upper torso and grasped her right breast and squeezed it. The waitress then slid her right hand down Cora's body and grapsed Cora's public area.
7. Accusation against Hall, file 31302 (later offense): Topless waitress, Virgie, asked a patron for his eye glasses. She then placed them on her breasts with a nipple behind each lens, saying, "Now, my [breasts] can see." The same waitress talking to a male customer, asked him "Do you know what a seven inch douche is?" and when he replied "No" she stated, "That's my girl friend's long tongue and mouth wash."
8. Accusation against Johnson, file 36523: Topless waitress dipped her bare breasts in a pitcher of beer and in several glasses of beer at the request of male customers. She also dropped her bikini bottom, exposing her vaginal lips. Another topless waitress engaged in a "bumps and grinds" dance before customers. She also pulled down her bikini bottom exposing her buttocks and vaginal area. A third topless waitress with a zippered lower bikini stood in front of a male customer and stated, "You can try to pull down my zipper with your teeth."
9. Accusation against Marcella, file 44368: Here a topless waitress, when "asked by the male customer is she wanted something to eat, replied that she did not as someone had given her a banana and added that she would rather have had the real thing and made a sucking motion with her mouth." On another occasion she sat on the bar within a few feet of a male customer and said, "Here, I'll make it taste better for you" and then picked up his partly filled glass of beer, put her right breast about one inch into the glass and squeezed her said breast with her left hand in a "milking" type motion.
10. Acustion against Theoharris, file 48952. Here a topless waitress danced atop the bar and cocktail table. Another topless waitress sat in the lap of a male patron and permitted him to fondle her breasts.
11. Accusation against Hughes, file 50042: A topless waitress did "press her bare breasts upon the bare arms of male patrons; she did run her tongue around the edges and in to the ear canals of male patrons, all of which conduct occurred while she was on duty tending bar and waiting on patrons."
12. Accusation against Hughes, file 50042 (later offense): Topless waitress "did commit acts of lewd conduct, to-wit: she made groaning and moaning noises with her mouth while kissing and running her tongue in and out of the ear canal of a patron, all of which did occur while she was on duty tending bar and waiting on patrons."