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District Court of Appeal, First District, Division 2, California.


Civ. 14666.

Decided: October 10, 1950

Morris Lowenthal, San Francisco, for petitioner and appellant. Fred N. Howser, Atty. Gen., J. Albert Hutchinson, Deputy Atty. Gen., for respondents.

Petitioner commenced this proceeding in certiorari-mandamus to review and set aside an order of the State Board of Equalization suspending his liquor licenses after an accusation filed with the board and heard by a hearing officer. The first count of the accusation charged that the licensee conducted a disorderly house and a meeting place for known homosexuals. The second charged the sale of liquor to a minor. Respondents filed a return to the alternative writ in the nature of a demurrer to the petition, a motion to dissolve the writ, and an answer to the merits consisting of a full transcript of the proceedings had before them and before the hearing officer. On the issues thus raised the matter was argued orally and by briefs following which judgment was entered for respondents after an order sustaining the demurrer to the petition without leave to amend.

On this appeal the petitioner lists ten charges of error, the first three all relating to the same claim that the court erred in sustaining respondents' demurrer without leave to amend. It should be noted that, though such an order was made, the judgment appealed from was based on findings of fact and contained the pertinent recital ‘and evidence having been offered by the parties and received by the Court, and the matter having been argued and submitted, the Court made findings of fact and conclusions of law and directed that the writ of mandate herein sought by petitioner be denied * * *.’

Since the record of the proceedings before the respondent board was before the trial court and the sufficiency of the evidence was fully argued it is of no consequence whether the judgment was based on the order sustaining the demurrer alone or upon the findings that the evidence taken by the respondent board was sufficient to justify the board's order. The proceeding in mandamus can originate either by an order to show cause or by notice of motion. (Code Civ.Proc. § 1088.) The return made to the order to show cause is like an answer to the motion for a writ and may tender both issues of law and of fact. If the court determines that the petitioner has not made out a proper case for a peremptory writ it is of no consequence that a demurrer to the petition has been sustained. The substantial and controlling part of the judgment is that petitioner has not shown that he is entitled to the writ. Here the trial court had the proceedings before the respondent board showing the grounds upon which the licenses were suspended. It also had the benefit of lengthy briefs and oral argument addressed particularly to the evidence found in the transcript and the propriety of the proceedings before the hearing officer. Its judgment on sustaining the demurrer was in accord with Housman v. Board of Medical Examiners, 84 Cal.App.2d 308, 313, 190 P.2d 653, 192 P.2d 45; and Dare v. Board of Medical Examiners, 21 Cal.2d 790, 794, 136 P.2d 304. To recapitulate—when, after a full hearing on the law and the facts, the trial court enters judgment denying the writ of mandate, the applicant is not prejudiced by the method or the language used in arriving at such judgment. It is sufficient that the judgment recites that the application is denied. If a demurrer to the petition is sustained after a full hearing on the merits the judgment on the merits is not subject to attack because the ruling on the demurrer might have been error.

The other matters argued in appellant's briefs are merely rearguments of those heard by the trial court. At the conclusion of the hearing the learned trial judge filed a written opinion correctly disposing of all these issues. This opinion we approve and adopt as our reasons for an affirmance of the judgment.

‘In the first place let me say that many of the contentions advanced by counsel for Petitioner are answered by the provisions of the Administrative Procedure Act (Government Code sec. 11500–11528), The Act Providing for Judicial Review by Mandamus, (C.C.P. Sec. 1094.5) and The Tenth Biennial Report of the Judicial Council of California which deals with the two Acts mentioned. This last mentioned Report has been held to explain fully the purpose, intent, meaning and effect of the proposed statutory changes, and to constitute ‘a most valuable aid’ in ascertaining the meaning of the two Acts. See Hohreiter v. Garrison, 81 Cal.App.2d 384, 394, 397, 184 P.2d 323.

‘With reference to Petitioner's objection that ‘hearsay evidence’ was improperly received by the Hearing Officer I would call attention to the provisions of section 11513 of the Government Code dealing with the subject of evidence which section should be read in light of the treatment of that topic of evidence in the Report of the Judicial Council referred to above. On the subject of the admissibility of evidence of reputation of a place of business of the general type of Petitioner's also see Anzine v. U. S., 260 F. 827 decided by the Ninth Circuit Court of Appeals and the comparatively recent case of State v. Tacconi, Utah, 171 P.2d 388 391. Also see Demartini v. Anderson, 127 Cal. 33, 59 P. 207.

‘Petitioner's contentions are based in large part on the theory that due to misrepresentations made to him he was not represented by counsel at the hearing before the Hearing Officer of the Board of Equalization. This contention is invalidated by the fact that, assuming that the representations were made by the member of the Board of Equalization to whom Petitioner refers, he was not justified in relying on those representations since he knew or should have known that that member was not authorized to bind the Board by his representations. It also overlooks the fact that when Petitioner was asked if he was ready to proceed with the hearing, he answered that he was ready. (Tr. p. 1).

‘Moreover, as the record discloses, Petitioner took an active part in the hearing examining the documentary evidence that was produced against him and cross-examining witnesses. Moreover, he showed a surprising familiarity with legal procedure as evidenced for example by his reference to the hearsay rule and by his ‘withdrawing a question after its materiality had been questioned. He apparently considered himself to be entirely competent to present his case until an adverse ruling was rendered against him. This was not surprising since as the Judicial Council's Report points out (p. 17) a large number of Respondents against whom accusations are directed by the Board of Equalization are not represented by counsel at the hearings.

‘As to Petitioner's contention that one member of the Board of Equalization who voted with the other members to suspend the license of Petitioner's restaurant had prejudged the matter and that he had a prejudice against Petitioner the answer, as pointed out by counsel for Respondents, is that Petitioner is too late in urging this objection. The Government Code provides that (p. 11):

“Any party may request the disqualification of any hearing officer or agency member by filing an affidavit, prior to the taking of evidence at a hearing, stating with particularity the grounds upon which it is claimed that a fair and impartial hearing cannot be accorded.' (Section 11512(c).)

‘The purpose of this procedure according to the report of the Judicial Council above referred to (p. 20) was ‘to cut to a minimum the delays necessarily involved.’

‘This provision in the Administrative Procedure Act is entirely new in this state so that it is not necessary to consider the cases cited by counsel which were rendered prior to its enactment.

‘Petitioner charges that Count One of the Accusation against him does not state facts sufficient to justify the suspension of his license. I cannot agree with him.

‘The California Beverage Control Act provides (Sec. 58) in substance that every licensee who permits his premises to be used as a disorderly house or as a place to which people resort for purposes which are injurious to the public morals is guilty of a violation of that Section.

‘In my opinion Count One clearly stated valid and sufficient grounds for the suspension or revocation of Petitioner's license. It would be a gross and inexcusable reflection on the Legislature to find that the law as enacted by it would tolerate on the part of license holders such conduct as is charged in the accusation. Fortunately the law is not open to the construction contended for by Petitioner.

‘It is true that there is some slight variance between the accusation and the proposed decision of the Hearing Officer. But it is in my opinion not of sufficient consequence to merit extended consideration. The law is settled that a variance between pleadings and proof, even in our criminal courts in which stricter rules prevail, which does not operate to the accused's prejudice or impair his substantive rights and does not mislead or hinder him in preparing and making his defense does not constitute a ground for reversal. 24 C.J.S., Criminal Law, § 1897, p. 878. Clearly the variance in this case did not prejudice or impair the substantive rights of Petitioner nor did it mislead or hinder him in preparing or in making his defense.

‘It is also contended by Petitioner that the decision of the Hearing Officer as adopted by the Board of Equalization is insufficient to justify the action taken against him.

‘The decision as adopted by the Board, insofar as it pertains to Count One, is in substance that during the period between September 3rd, 1948 and August 15th, 1949, Petitioner permitted his premises ‘to be used as a disorderly house in that during that period of time persons of known homosexual tendencies patronized said premises and used said premises as a meeting place.’

‘The comment that I have just made as to the sufficiency of the charge as embodied in Count One of the Accusation is largely applicable to this decision. It would be a sorry commentary on the law as well as on the morals of the community to find that persons holding liquor licenses could permit their premises to be used month after month as meeting places for persons of known homosexual tendencies with all of the implications that may reasonably be drawn from that last phrase and the people's legal representatives find themselves helpless to take action against the holders of such licenses.

‘Counsel for Petitioner argue that persons of homosexual tendencies may not lawfully be prohibited from collecting in groups in restaurants for the purpose of securing meals and alcoholic beverages.

‘An occasional fortuitous meeting of such persons at restaurants for the innocent purpose mentioned is one thing. But for a proprietor of a restaurant knowingly to permit his premises to be regularly used ‘as a meeting place’ by persons of the type mentioned with all of the potentialities for evil and immorality drawing out of such meetings is, in my opinion, conduct of an entirely different nature which justifies action on the part of the Board of Equalization.

‘Counsel for Petitioner spends many pages of his brief in setting forth what appears to be an argument based on the so-called ‘Kinsey Report’ and similar publications to the effect that what he terms the ‘social taboo’ against homosexuals is un-unjustified.

‘It will not be necessary to give that phase of Petitioner's argument any extended consideration. The views of the citizens of California on that subject are to be found in Sections 286 and 288a of the Penal Code. Any complaint against those provisions based on the theory that the mores of our times have changed since the enactment of those sections should be directed to the Legislature and not to the courts.

‘I stated at the outset that in my opinion the demurrer of Respondent should be sustained without leave to amend. I so hold because I have read the evidence taken before the Hearing Officer and in my opinion it amply sustains the charge made in Count One against Petitioner.

‘While I am on the subject I may add that in my opinion the rights of Petitioner in this case were observed with scrupulous care at the hearing before the Hearing Officer. There would have been far less criticism of administrative hearings in the past had similar care always been exercised by the Officers in charge of such hearings.

‘As to Count Two of the Accusation the evidence as embodied in the record which I have read also clearly sustains a finding against Petitioner. I may add, however, that the punishment meted out to him under that finding of guilty was in my judgment excessive. Nevertheless the matter is academic since I find that the action of the Board insofar as the First Count is concerned was entirely proper and justified.’

Judgment affirmed. The writ of supersedeas is dissolved.

NOURSE, Presiding Justice.

GOODELL, J., concurs.