Opinion
Page __
__ Cal.App.2d __258 P.2d 1079TOSHIKUNI TAENAKAv.STATE BOARD OF EQUALIZATION et al.Civ. 19524.California Court of Appeals, Second District, Second DivisionJuly 1, 1953Rehearing Denied July 24, 1953.
Hearing Granted Aug. 27, 1953.
Edmund G. Brown, Atty. Gen., and Alexander Googooian, Dep. Atty. Gen., for appellants.
James K. Mitsumori, Los Angeles, for respondent.
FOX, Justice.
This is an appeal from a judgment granting a peremptory writ of mandate requiring the defendants to restore to petitioner his off-sale liquor license and annulling the decision of the State Board of Equalization denying petitioner's application for such license.
Petitioner is a citizen of the United States of Japanese ancestry. Since 1938 he has owned the commercial property at 2024-6 East 103d Street in the city of Los Angeles. An August, 1941, he was licensed by the Board to operate a retail liquor store on those premises and was so engaged on December 7, 1941. In May, 1942, the Board cancelled petitioner's license on the ground that the holding of, and doing business under, such license was against the public welfare by reason of his Japanese ancestry. Subsequently Taenaka leased his property to Robert Martin, who subleased it to Sam Youseff, to whom the Board issued a similar license. In April, 1947, Youseff's license was transferred to Martin, who operated a liquor store on the Taenaka property until June when, with the Board's approval, he transferred his license to other [258 P.2d 1081] premises across the street and about 100 feet from Taenaka's property.
In 1951 the Legislature amended the Alcoholic Beverage Control Act by adding section 7.1 providing for the reinstatement of licenses to persons of Japanese ancestry. In September, Taenaka filed an application, pursuant to this remedial legislation, for an off-sale general license (the same as he had previously held) for his formerly licensed premises.
Section 7.1, Stats.1951, Ch. 1457, p. 3434, reads:
At a Board meeting on November 15, 1951, counsel for Taenaka represented to the Board that his client was faced with an immediate recall to active military duty and that there were no objections to the issuance of a liquor license to him by the people in the immediate locality. Relying on these representations, the Board overruled the adverse recommendation of the District Liquor Control Administrator which was based on the proximity of Taenaka's property to churches and a school, and ordered that an off-sale general liquor license be issued to him on condition that no protests had been filed. None had been filed but on November 26 protests were filed by representatives of one of the churches and the Parent-Teachers Association on the ground that the property in question was too close to a public school and the churches in the neighborhood and consequently the licensing of his premises was against public welfare and morals.
Thereafter, on December 13, 1951, at a meeting of the Board, there was a discussion between Mr. Bonelli of the Board, Reverend Hicks, a protestant, and Taenaka's counsel relative to the filing of these protests after the issuance to petitioner of his license. It was pointed out that Taenaka had a license at that time solely by reason of the representations of his counsel. It was suggested that Taenaka should not exercise the privileges of his license until there was a hearing on the protests. Thereupon Taenaka's attorney advised the Board that 'by reason of my representations, I definitely will go along with the Board in the recommendation of whatever it sees fit to do in recommending to Taenaka that he move or get out of business or do whatever he should do.' Mr. Bonelli then stated to counsel that 'in order to strengthen your approach in discussing the matter with your client, and for the purpose of remedying what is apparently a mistake' he would move that 'the State Liquor Administrator immediately request of the licensee that the license be returned for safe keeping to the custody of the State Administrator, or in the event he is unwilling to follow that procedure that a complaint for revocation be immediately filed and served on the theory that there was fraud or mistake in [its] procurement * * *.' This motion was passed unanimously. Taenaka's attorney advised him to return the license, which he did on January 10, 1952. At the hearing Taenaka testified that he did so 'under the instructions' of his attorney.
On January 14, 1952, a hearing on Taenaka's application was conducted by a hearing officer for the Board. It was there developed that Taenaka's premises were approximately 250 feet from a grade school, about 100 feet from a church which had moved into the area shortly before November 15, 1951, and which was in process of reconstruction but which had not yet opened for services, and approximately 400 feet from another church. The P.T.A. and church protests were withdrawn. The sole remaining protestant was Reverned Hicks, [258 P.2d 1082] minister of an evangelical church located in excess of 1,000 feet from Taenaka's property. The proposed decision of the hearing officer was not adopted, the Board electing to decide the matter. Government Code, sec. 11517(c). The Board denied petitioner's application but gave him leave to amend his application for the issuance of an off-sale general license for premises other than those here in question.
In granting the peremptory writ the court found that the Board forced petitioner to return the license, and concluded that the evidence did not support the Board's finding and decision that the granting of a license to petitioner was against public welfare and morals. The Board challenges both determinations.
We find no evidentiary support of the court's finding that petitioner was forced to return the license. The clear effect of Mr. Bonelli's motion was to request Taenaka to return the license and then have a hearing on the protests that had been filed; if, however, this procedure was not acceptable, then, in light of the representations made on his behalf which resulted in its issuance, the Board was authorized to bring an action to revoke the license on the ground that it had been procured by fraud or mistake. Thus the Board offered Taenaka's counsel two alternatives: one, to have Taenaka surrender the license; or, two, to allow Taenaka to keep the license but with the understanding that an action would be brought for its revocation. Taenaka's counsel pursued the first alternative and recommended to Taenaka that he return the license. This Taenaka did 'under the instructions' of his attorney according to his own testimony. It is undoubtedly true that the request of the Board to return the license induced Taenaka, on the advice of his counsel, to return it, but 'there must be more to a claim of coercion than mere causation. * * *' Weil v. Weil, 37 Cal.2d 770, 782, 236 P.2d 159, 165. Merely because the Board suggested the procedure adopted by petitioner does not mean he was forced to do what he did, viz., surrender the license. In this connection it should be noted that the procedure suggested by the Board and accepted by Taenaka was necessitated by the representations of his counsel as to the quiescent attitude of the people in the area and the imminence of Taenaka's recall to active military duty. But for these representations the license would not have been granted initially. In deciding whether to return the license petitioner and his attorney had to consider the probable effect of these representations in an action to revoke the license. This required an exercise of their judgment.
It should also be pointed out that the procedure suggested by the Board protected Taenaka's application rights under section 7.1 of the Alcoholic Beverage Control Act, for if his license had been revoked by court action on the ground of fraud or mistake his rights under that remedial section would have been foreclosed. This, too, was a matter which petitioner had to consider in determining which of the proposed alternatives he would follow.
It is thus plain from the action of the Board, the statements of Taenaka's counsel to the Board, and Taenaka's testimony, that he was not forced to surrender the license but that its return was his own voluntary decision, made in the light of all the facts and circumstances, assisted, of course, as he stated, by his counsel's advice.
The evidence before the Board was sufficient to support its finding and decision that the granting of an off-sale liquor license to petitioner for the particular premises was against public welfare and morals. In passing on this question it must be remembered that the Board has the power 'in its discretion, to deny * * * any specific liquor license if it shall determine for good cause that the granting * * * of such license would be contrary to public welfare or morals.' California Constitution, Art. XX, sec. 22. This "necessarily implies that its decisions should be based on sufficient evidence and that it should not act arbitrarily in determining what is contrary to public welfare or morals." Weiss v. State Bd. of Equalization, 40 Cal.2d 772, 775, 256 P.2d 1, 2; Stoumen v. Reilly, 37 Cal.2d 713, 717, 234 P.2d 969. By the terms of section 13 of the [258 P.2d 1083] Alcoholic Beverage Control Act, 2 Deering's Calif. Gen. Laws, Act 3796, the Board is 'specifically authorized to refuse the issuance of on-sale retail licenses for premises located within the immediate vicinity of churches, * * * [and] schools * * *.' There is, however, no such express provision with respect to off-sale licnses. Nevertheless, as pointed out in the Weiss case, 256 P.2d at page 3, 'proximity of the licensed premises to a school may supply an adequate basis for denial of a license as being inimical to public morals and welfare.' Stronger justification for the Board's decision is found where, as here, not only a school but who churches are situated in the affected area.
The question then is, Did the Board act arbitrarily in denying the application for the license on the ground of the proximity of the premises to a school and two churches? We think not. It was not unreasonable for the Board to conclude that public welfare and morals would be jeopardized by the granting of an off-sale license at premises which were approximately 100 feet from a church; 250 feet from a school and 400 feet from another church. Weiss v. State Board of Equalization, supra.
It is argued, however, that there is another liquor license for premises in the immediate vicinity, and that to deny a license for petitioner's premises therefore constitutes arbitrary action on the part of the Board. That question was considered in the Weiss case and ruled on adversely to petitioner's position. It was there pointed out that 'plaintiffs' argument comes down to the contention that because the board may have erroneously granted licenses to be used near the school in the past it must continue its error and grant plaintiffs' application.' 256 P.2d at page 3. Such an argument is not only illogical but ignores the Board's primary responsibility, viz., the protection of public morals and welfare. It was pointed out by the court, 256 P.2d at page 4, that the Board was not acting arbitrarily even if it changed its position 'because it may have concluded that another license would be too many in the vicinity of the school.' Similarly, here the Board could reasonably have concluded that another license would have been too many in that area, and particularly so since another church was in process of being established there.
Petitioner emphasizes the fact that the P.T.A. and the church withdrew their protests leaving Rev. Hicks, whose church was 1,000 feet distant, as the sole protestant. The reason for the withdrawal of the two protests does not appear. However, the question of whether the granting of a particular liquor license would be inimical to public morals and welfare does not depend upon who or how many object to or approve the granting of the license, but rather upon the actual conditions in the particular area. Here the Board had been furnished reliable information as to the location of the school, the two churches, the fact that there was another licensee just across the street, and the character of the community. With this complete picture before it, it was the Board's duty to determine whether the granting of the requested license was contrary to the public welfare or morals regardless of protests or petitions of approval.
Finally, it is argued that section 7.1 is remedial and must be liberally construed. This is undoubtedly true, but it does not mean that the Board must adopt new or more lenient standards for applicants thereunder. The statute does not require that the license be reinstated for the same premises. By the express terms of the section 'the issuance of such a license shall be subject to the approval of the board and other provisions of this act.' It is thus made unmistakably clear that the Board has discretion, except in certain specified particulars not here in controversy in granting or denying a license under this section; also, that the other provisions of the Alcoholic Beverage Control Act are applicable except section 38f which is expressly excluded. It is thus apparent that whether the granting of a license will be inimical to public welfare and morals is a paramount consideration for the Board whether the application is under this special section or one of the other sections. No principle of [258 P.2d 1084] liberal construction of even remedial legislation can deprive the Board of the right and duty to protect the public welfare and morals in the issuance of liquor licenses. While it would have been desirable for the Board to grant a license for the premises here in question since petitioner owned the property yet in considering such applications no amount of desirability can out-weigh the importance of protecting public welfare and morals.
In this connection, however, it should be noted that in denying Taenaka's application the Board expressly provided that he have leave to amend his application for the issuance of a license for other premises. Thus his opportunity to have his license reinstated was not cut off by the expiration of the six months' period provided in section 7.1. In making this provision the Board was obviously trying to carry out the purpose and intent of the section and assist petitioner but at the same time protect public welfare and morals.
The judgment is reversed.
MOORE, P. J., and McCOMB, J., concur.
'Any individual, who held a license under this act on December 7, 1941, and whose license was thereafter revoked because of the Japanese ancestry of the licensee, or surrendered, or was permitted to expire by such Japanese, may at any time within six months after the effective date of this section file an application for a similar license, and the board shall issue such a license upon the payment of the current fee therefor. The provisions of Section 38f shall not apply to licenses issued to such persons. No license shall be issued pursuant to this section to a person who is not qualified to hold a license at the time of filing his application hereunder, and the issuance of such a license shall be subject to the approval of the board and other provisions of this act. * * *'