Opinion
Stanley Mosk, Atty. Gen., of the State of California, Wiley W. Manuel, Deputy Atty. Gen., San Francisco, for appellant.
Huovinen & White, Oakland, for respondent.
SHOEMAKER, Justice.
Plaintiff L. A. Walsh sought a writ of mandate restraining defendant Department of Alcoholic Beverage Control from issuing a general off-sale liquor license for premises located on Telegraph Avenue in Berkeley, California, upon the ground that the premises in question were less than one mile from grounds belonging to the University of California at Berkeley, and that the issuance of the license would violate Penal Code, § 172.
The facts are without dispute. Joseph Navone originally applied for transfer of a liquor license to the Telegraph Avenue premises, and plaintiff filed a protest with defendant Department of Alcoholic Beverage Control; thereupon, the department, after hearing, found that the proposed premises were not within one mile of the University of California grounds and recommended that the license be issued. Plaintiff appealed to the Department of Alcoholic Beverage Control Appeals Board, and the matter was returned to defendant for further hearing; upon rehearing, defendant again recommended that the license be issued; plaintiff again appealed to the appeals board, but said body affirmed the decision of defendant.
Upon return to the alternative writ and after hearing, the trial court entered judgment directing the issuance of a peremptory writ of mandate restraining defendant from issuing the liquor license in question. Defendant The sole question presented is whether the premises proposed to be operated by applicant are within one mile of the grounds belonging to the University of California at Berkeley, within the meaning of section 172 of the Penal Code. If the answer to this question is in the affirmative, the writ has been properly granted. Penal Code, § 172, provides that 'Every person who, * * * within one mile of the grounds belonging to the University of California, at Berkeley, * * * sells, gives away, or exposes for sale, any intoxicating liquor, is guilty of a misdemeanor * * *.'
The parties stipulated that the proposed premises are more than one mile distant from the northeast corner of Telegraph Avenue and Bancroft Way, but less than one mile distant from a student dormitory located on certain university property bounded by College, Bowditch, Dwight and Haste, which was acquired by the University pursuant to a 'long range development plan' and is situated three blocks south of Bancroft Way. Large portions of the three blocks separating the dormitory property from the 'main campus' (we apply this designation to the university grounds at Berkeley which have been developed and used for university purposes to distinguish it from more recently acquired property) have also been acquired by the university pursuant to its development plan. According to the testimony of the university's acting business manager, the block bounded by College, Haste, Bowditch and Channing, and located immediately north of the dormitory property, is to be used by the university as an underground parking structure with tennis courts and intramural playing flelds on the top surface. Proceeding on in a northerly direction, the next block, which is bounded by Durant, College, Channing and Bowditch, is to be occupied by another dormitory, housing approximately 840 students. Certain portions of this block have not been acquired by the university and are to remain under private ownership. The third block, which is bounded by Bancroft, Bowditch, Durant and College, and is thus directly adjacent to the 'main campus,' presently contains the university housing office and a parking lot for staff and students. It will eventually be occupied by a campus cultural center. Portions of this block will also remain under private ownership.
The lower court found that the dormitory property situated three blocks south of the 'main campus' constituted 'grounds belonging to the University' within the meaning of section 172. It further found, in accordance with the stipulation of the parties, that the premises sought to be licensed to sell liquor were located less than one mile from the dormitory property. Appellant department was accordingly restrained from licensing the proposed premises.
Appellant's sole argument for reversal is that university-owned property may be considered 'grounds' within the meaning of Penal Code, § 172, only if it is 'contiguous' to the 'main campus.' Appellant contends that although the dormitory property is located within a mile of the premises sought to be licensed, nevertheless it is separated from the 'main campus' by city streets and by certain parcels of land which are under private ownership, hence it is not 'contiguous' to the 'main campus' and cannot be considered university 'grounds' under section 172.
Although no prior case appears to have interpreted the word 'grounds' as utilized in section 172, our courts have had occasion to construe a related statute, Penal Code, § 172a. This latter section prohibits the sale of intoxicating liquor 'within one and one-half miles of the university grounds or compus, upon which are located the principal administrative offices of any university having an enrollment of more than 1,000 students, more than 500 of whom reside or lodge upon such university grounds or campus * * *.' (Emphasis added.) In Matter of Petition of Burke In the later case of Vanoli v. Munro (1956) 147 Cal.App.2d 179, 304 P.2d 722, the State Board of Equalization had suspended a liquor license attached to certain premises which were located less than one and one-half miles from the area which the Stanford Board of Trustees had designated 'as the official campus boundary' of the university. On appeal from a judgment denying them a writ of mandate, the license holders contended that the campus boundaries, as established by the Stanford trustees, included certain plots of land which could not be deemed 'university grounds or campus' as those terms were used within section 172a. The plots referred to were located between the actual administrative buildings of the university and the premises licensed to sell liquor. The first plot was used for intramural athletics and parking during football games; the second for hitching extra polo ponies during polo games; the third for golf instruction, polo games, and football parking; and the fourth as a residence for university cashiers. In holding that the four plots could properly be considered part of the 'university grounds or campus' referred to in section 172a, the court stated: 'Obviously, a modern university, with its class rooms, its laboratories, its dormitories and its athletic and other facilities, covers an area in excess of the area covered by the administrative offices. This additional area is just as much a part of the campus, and as important to the university as a university as the administrative buildings themselves. The real question is, who shall decide the extent of the university campus? In the first instance, this question should be determined by the governing board of the university. That board knows the area necessary for university purposes. That board's determination is not conclusive, however. Such board could not include non-contiguous lands, nor lands obviously not connected with the university and not used for university purposes. * * * It must be conceded that the connection of several of the four plots with the operations of the university as a university is somewhat vague, but certainly, none of the four plots is so unconnected with the university as to permit us to hold, as a matter of law, that they are not part of the university proper.' (P. 185, 304 P.2d p. 726.) In the light of these two authorities, it is apparent that the phrase 'grounds or campus,' as employed in section 172a, has not been given a restrictive meaning but has been broadly construed in such a manner as to include plots of land used by a university for such varied purposes as hitching extra polo ponies and providing housing for university cashiers. However, the Vanoli case does appear to have attached two limitations to the 'grounds or campus' specified in the section: it may not be deemed to include 'noncontiguous lands, nor lands obviously Turning to an examination of section 172, we first note that the language of section 172 is considerably broader than that employed in section 172a. The former section refers solely to 'grounds belonging to the University of California.' In the Burke case, supra, the court pointed out that the Legislature, by expressly limiting section 172a to those campuses 'upon which are located the principal administrative offices', had made it clear that the section was not applicable 'to university grounds or a university campus generally.' (160 Cal. p. 305, 116 P. p. 757.) This reasoning is not persuasive when applied to the broad language of section 172. Nor is there any validity to the argument that the two statutes, since both prohibit the sale of liquor within the vicinity of educational institutions, ought to be given a uniform construction despite the difference in wording. This contention was expressly rejected in Gunn v. State Board of Equalization (1954) 123 Cal.App.2d 283, 287, 266 P.2d 840, 843, where the court stated, 'it is at once apparent from reading these sections that the Legislature was concerned not with uniformity, but with individual circumstances.'
Appellant contends, however, that the Legislature could not have intended section 172 to operate in such a manner as to prohibit the sale of liquor within one mile of such isolated areas of the University of California campus as its married students' housing establishment in Albany. Assuming for purposes of argument that this contention is a valid one, there is clearly a vast difference between the Albany property, which is an isolated area more than a mile distant from the Berkeley campus, and the dormitory construction with which the instant litigation is concerned.
Appellant concedes that property containing student dormitories would constitute university grounds within the meaning of section 172 if the dormitories were 'situated upon the campus.' Appellant differentiates this admission from the present situation by urging that section 172 is not applicable where university property is separated from the 'main campus' area by city streets and by certain isolated plots under private ownership. We do not agree with this contention.
Even if the broad language of section 172 may be construed in such a manner as to limit its operation to 'contiguous' property utilized for university purposes, there can be no doubt that the dormitory property in the instant case meets these requirements. The evidence establishes that the University of California, in order to provide for future needs, undertook an integrated expansion program involving the major portion of four city blocks directly adjacent to the 'main campus.' The trial court specifically found that there was no evidence, as in the Vanoli case, supra, that the university board of regents had ever officially designated certain grounds as constituting the university. The 'main campus' boundaries thus represent no more than the outer perimeter of those grounds which the university formerly considered sufficient for its then existing needs. When it became evident that additional grounds were needed, the university had no alternative but to expand outward into the surrounding community. The mere fact that the university failed to acquire the intervening streets and all of the property comprising the four blocks does not, in our opinion, deny these additional grounds the protection afforded by section 172.
Although appellant urges that a rigid requirement of contiguity ought to control, its position finds no support in our decisions. Cases involving eminent domain proceedings have recognized that land usage is a far more significant factor than mere physical contiguity. In People By and Through Department of Public Works v. Thompson (1954) 43 Cal.2d 13, 23, 271 P.2d 507, 512, the court quoted the following passage from 18 Am.Jur. 910-911, section 270: 'In determining what constitutes a separate and independent parcel of land, when the property is actually used and occupied, unity of In re Brady
For the foregoing reasons, the judgment issuing the peremptory writ of mandate is affirmed.
KAUFMAN, P.J., and AGEE, J., concur.