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District Court of Appeal, Second District, Division 3, California.


Civ. 18678.

Decided: February 15, 1952

Edmund G. Brown, Atty. Gen., Bayard Rhone, Deputy Atty. Gen., for appellant, State Board of Equalization. Louis L. Lasher, David P. Connelly, Beverly Hills, for appellant. J. Henry Schweitzer, Los Angeles, for respondents.

Defendants Louis L. Lasher and the Board of Equalization appeal from a judgment ordering the Board to vacate and set aside its order granting a general ‘on sale’ liquor license to Lasher for premises located at 1776 Westwood Boulevard, Los Angeles. The superior court granted a peremptory writ of mandate on the ground that Lasher's premises are within one and one-half miles of ‘a building actually occupied as a home, retreat, or asylum’ for veterans, which would render any sale of intoxicating liquor on the premises a violation of Penal Code, section 172(1).

As assignee of an existing license, Lasher applied for a general ‘on sale’ license for his cafe. There were existing ‘off sale’ licenses at Harold's across the street, and Tony's next door. The application was opposed by plaintiffs on the ground it would be against public welfare and morals to license the premises for the reason that Y. M. C. A. and Y. W. C. A. buildings, schools and churches were in the immediate vicinity, and the further reason that the premises were within a mile and a half of Sawtelle Soldiers' Home Building (#215) and Wadsworth General Hospital (Veterans Administration facilities). The examiner recommended denial of the application because of the churches and youth groups in the vicinity, and it was denied by the Board on October 9, 1950. Lasher's petition for reconsideration was granted and a hearing was held by the Board on October 26, 1950. Both the examiner and the Board found that sales at the location would not be in violation of section 172(1). The Board granted the license and plaintiffs petitioned for a writ of mandate. After a consideration of the transcript of the Board hearing the court rendered judgment issuing a peremptory writ ordering the Board to revoke the license.

The court found that Wadsworth Hospital is a ‘retreat or aslyum’ within the meaning of Penal Code, section 172. All the evidence was that it is exclusively a medical and surgical hospital where patients remain only while undergoing treatment. Under no tenable theory could it be regarded as a home, retreat or asylum. The type of building to which the code section relates is one which provides residential facilities. There are no such facilities for patients in the Wadsworth Hospital. When the Legislature specified ‘home, retreat or asylum’ it did not also mean ‘hospital.’ The finding would appear to have been made inadvertently. It has no support in the evidence, and therefore cannot lend support to the judgment.

Building ‘215’ is a barracks building of the Veterans Administration. It is not questioned that it is a building to which section 172(1) would apply if it is within the minimum distance. Appellants contend that as to building ‘215’ the Board decided, on conflicting evidence, that it was distant more than one and one-half miles from the licensed premises, and the court was without power to overturn that determination.

It appears that the Board used one method for measurement of the distance and that the court adopted another. Section 172(4) provides that the distance is to be measured by ‘following the shortest road or roads connecting the points in question.’ Both routes here contended for use roads and sidewalk approaches. The Board adopted a measurement from the licensed premises to the main center entrance of building 215 and calculated the distance at 8022.22 feet (102.22 feet greater than a mile and a half); the court held the measurement should have been to a south end entrance of building ‘215’ which gives a distance of 7835.36 feet (84.64 feet less than the required distance).

The evidence indicates the end entrance is at present locked and not used. It is argued that the Board reasonably decided that the main entrance, which is the one generally used, should be one terminus of the measurement. We might agree if the statute left any room for interpretation, but it does not. Section 172 mentions two points—the place of sale and the ‘building’ described—making no provision for method of measurement other than that it is to be by ‘the shortest road or roads connecting the points in question.’ A literal reading indicates that the measurement here should be in straight lines along roads from those parts of the two buildings which are the shortest distance apart. Whether a pedestrian would naturally leave the barracks for the bar from one door or another, and would or could follow straight lines either going or returning, is not to be considered. The offense defined by section 172(1) relates to sales generally, and not merely to sales to inmates of a particular building. But if a door in the Veterans building should be taken as a terminus of the measurement, it should be the one which would first come within the minimum distance. This is the door at the south end of the building, which is upon an established road. It is not necessary to consider respondents' contention that the approach to the main entrance is a walkway, and not a road.

The decision of the Board rests upon an interpretation and application of the statute, and is not one of fact upon conflicting evidence. We are of the opinion that the method of measurement used by the trial court was the correct one.

Appellants contend the petition was filed after the 30-day limitation period of section 11523 of the Government Code for review by mandamus. Section 11518 of the code provides that: ‘The [Board's] decision shall be in writing and shall contain findings of fact, a determination of the issues presented and the penalty, if any. * * * Copies of the decision shall be delivered to the parties personally or sent to them by registered mial.’ Section 11519 provides: ‘(a) The decision shall become effective 30 days after it is delivered or mailed to respondent unless: A reconsideration is ordered within that time, or the agency itself orders that the decision shall become effective sooner, or a stay of execution is granted.’ Section 11523 provides, in part: ‘Except as otherwise provided in this section any such petition [mandate] shall be filed within 30 days after the last day on which reconsideration can be ordered.’ Under section 11521, ‘The power to order a reconsideration shall expire 30 days after the delivery or mailing of a decision to respondent, or on the date set by the agency itself as the effective date of the decision if such date occurs prior to the expiration of the 30-day period.’ The court found the license was issued to Lasher October 26, 1950, and further, ‘that the decision of the Board [as defined in Government Code, sec. 11518] ordering that the application of respondent Louis L. Lasher for such license be granted was not rendered until November 10, 1952, and was not effective until November 13, 1950.’

On October 26th the Board adopted a resolution granting the license, but it did not render its decision in writing and findings until November 10th. These were mailed in Sacramento to the defendant at Los Angeles on November 10th. The Board contends that the 30-day period within which a petition for mandate could be filed commenced to run October 26th for the reason that the matter was actually decided and the license was issued on that date. We cannot agree. The resolution of the Board did not order the license to be issued at that time nor fix any date for its issuance. The decision of November 10, 1950, provided that it would be ‘effective on notice hereof.’ The time would commence to run not earlier than November 10th when the written decision and findings were filed. December 10th fell on Sunday, and the petition for mandate was filed on the following day, or within the 30-day period. This being true, it is unnecessary to determine whether the fixing of November 13th as the affective date of the order affected in any manner the element of time for filing a petition for writ of mandate. Neither is it material that November 11th and 12th were holidays, and, as implied by the court's finding, that notice of the order was not received by the defendant until November 13th.

The judgment is affirmed.

SHINN, Presiding Justice.

PARKER WOOD and VALLÉE, JJ., concur.

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