WEISS v. STATE BOARD OF EQUALIZATION

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

WEISS et al. v. STATE BOARD OF EQUALIZATION et al.*

Civ. 18947.

Decided: December 22, 1952

Riedman & Silverberg, Long Beach, for appellants. Edmund G. Brown, Atty. Gen., and Howard S. Goldin, Deputy Atty. Gen., for respondents.

Alfred K. Weiss and Buddy Weiss operate a delicatessen. They sell kosher meats and ‘appetizers' on the northwest corner of Rosewood and Fairfax, in Los Angeles. On the east side of Fairfax the grounds of the Fairfax High School extend from Rosewood two blocks to the north, to Melrose. The school buildings are in the northern area about 1,000 feet from the Weiss premises. The grounds are surrounded by a fence with gates which are usually locked, and the southerly portion of the area is the school athletic field. The Weiss brothers applied to the State Board of Equalization for an off sale license to sell beer and wine, and after a hearing their application was denied. The board found that said ‘premises are located in the immediate vicinity of a school,’ and from this fact alone determined that to grant the application would be contrary to public welfare and morals. A petition for reconsideration was filed and denied. Petitioners then went to the superior court seeking a writ of mandate, and they appeal from an adverse judgment of the court.

In the hearing before the board the following facts were established: The Weiss brothers bear good reputations; they have not heretofore held a license; 99 1/212 per cent of their customers are adult; they have no trade with school children; a great majority of the residents of the neighborhood are Jewish; there is a demand among the customers and neighbors for sacramental wine and no other type of wine, and there is no demand among the customers for beer, nor have the petitioners facilities for storing a stock of beer. Buddy Barden Weiss testified: ‘Well, it is predominantly a Jewish neighborhood that use all the time sacramental wine Friday night services and holidays where it is the only wine they use.’

No one appeared at the hearing to protest. The witnesses who did appear, and who were familiar with the facts above stated, favored the granting of the application. A survey made at the instance of the board developed the following facts: At Fairfax and Melrose, in the immediate vicinity of the school buildings, there is a drug store which carries a line of distilled spirits. On the southwest corner of Rosewood and Fairfax, immediately across Rosewood from the premises of the petitioners is a Safeway Store which is licensed to sell wine and beer. On the same side of the street, and within the same block, are three other licensed grog shops holding off sale licenses, and there are two establishments holding on sale licenses where various types of liquor may be consumed on the premises. All of these are within a radius of 600 feet of the school premises. There was no evidence as to whether any of these shops or drinking establishments carry sacramental wine.

Respondent board may deny an application for a license or revoke one ‘if it shall determine for good cause that the granting or continuance of such license would be contrary to public welfare or morals.’ Const., Art. XX, § 22. Immediate proximity to a school is made a ground for denial of an ‘on sale’ license, but not an off sale license by section 13 of Alcoholic Beverage Control Act, 1935, Deering's General Laws, Act 3796. The board may deny a license only for good cause. It has discretionary but not arbitrary powers. If it had been the policy of the board to keep liquor away from the vicinity of the school grounds altogether, we would readily agree that the public welfare and morals would have been served. But when there is already a colony of licenses within 600 feet of the school grounds, we can but classify as arbitrary the denial of another off sale license under the circumstances.

The law does not limit the number of liquor licenses that may be issued in a given locality. The powers of the board are not so broad as to authorize it to grant monopolies to favored individuals, which it could do if it possessed arbitrary powers. We do not hold that the board had not the discretionary power to limit the number of licenses by regulations that are reasonable and operate uniformly. There was no evidence of the existence of any such regulation. If there is one it was not the basis of the denial of petitioners' application. The board made a finding and upon that finding made its order. This was the cause for denial of the application. There was no other. The question here is whether the board, having issued seven licenses, two of them on sale licenses, within 600 feet of high school grounds, proceeded upon good cause to deny the application of these petitioners. It is too clear for argument that the action of the board evidences discrimination which has no rational justification. If it was consistent with public welfare and morals that seven places be licensed where customers could buy what they liked and carry it away or consume it on the premises as they desired, why would an eighth license for the sale of beer and wine in the same territory be contrary to public morals and welfare? Is it demoralizing for Jewish people to purchase wine for religious purposes, when others can purchase any liquor they desire for purposes and reasons too numerous to mention? We should look at the problem realistically. Proximity to the school grounds was the sole reason for the board's decision. The welfare of the high school children was its professed concern. We cannot visualize any harm to youth which would result from the granting of a license to petitioners. Denial of the license did not improve existing conditions and granting it would not have made them worse. We doubt that any case of juvenile delinquency has been traced to the purchase of a bottle of Manischewitz in a Kosher delicatessen, or that a school boy would pass up several gin parlors on his way to a malt shop and then suddenly discover that what he really wanted was a pint of sacramental wine. To pretend that petitioners' license was denied because it is contrary to the public welfare and morals to have a liquor store near high school grounds is the ultimate in sophistry. It is utterly inconsistent with the policy which allows all the other liquor places to operate in the immediate locality.

We are not to be understood as holding that a liquor license should be granted against the opposition of those who live or have business in the community. See Hansen v. State Board of Equalization, 43 Cal.App.2d 176, 110 P.2d 453. This is not such a case. It appears from all the evidence that no one opposed the application and that granting of the license would be consistent with the wishes of the community.

In adopting the Alcoholic Beverage Control Act, the legislature declared that the purpose of control of the liquor traffic in accordance with law is to promote temperance in the use and consumption of alcoholic beverages and to further the economic, social and moral well-being, and the safety of the state and of all its people. § 1 of the Act. It seems to us that it would be especially within the stated purposes to recognize the religious beliefs and customs of the people in the neighborhood of the Weiss store and their desire for sacramental wine. We do not hold that such desire would always be a sufficient reason for granting a license, but that it was a factor to be considered in determining the question of the public welfare and morals of the community.

The judgment is reversed with directions to annul the order of the board denying the application, and to refer the matter to the respondents for further consideration.

I dissent. I do not agree with the law or the philosophy proclaimed in the majority opinion. That opinion announces in effect that as a matter of law the board's denial of the application for license to sell beer and wine 80 feet from the high school grounds was not a denial for good cause.

The State Board of Equalization has the right to deny, for good cause, an application for a liquor license. The board denied the application for the reason that appellants' premises are located in the immediate vicinity of Fairfax High School. The board found that appellants' premises are about 80 feet from the school grounds, and that the issuance of the license would be contrary to public welfare and morals.

The superior court upheld the action of the board. The superior court found that the board had determined, for good cause, that the granting of the license would be contrary to public welfare and morals; that the findings of the board are supported by substantial evidence; and that the board did not abuse its discretion.

The board did not abuse its discretion or act arbitrarily when it refused to permit Alfred and Buddy Weiss to edge up, as close as possible to the school grounds, with a beer and wine store. The proposed beer store could not have been closer to the school grounds without actually being upon the grounds. Only the street (Fairfax Avenue—80 feet wide) separates appellants' store from the school grounds and the R.O.T.C. building in the corner of the grounds.

The school grounds are bounded on the west by Fairfax Avenue (for a distance of two blocks), on the south by Rosewood Avenue, and on the north by Melrose Avenue. Appellants' store is on the northwest corner of the intersection of Fairfax and Rosewood. A corner of the school grounds is at the northeast corner of that intersection, and in that corner there is an R.O.T.C. building. In other words, the said corner of the school grounds and the R.O.T.C. building are directly across Fairfax Avenue from the store. Fairfax Avenue is about 80 feet wide.

In the two blocks on the west side of Fairfax Avenue, which are directly across the street from the school grounds, there is no place which has a liquor license. (Appellants' store is within those two blocks and is at the south end of the southerly block.)

In the 800-foot-long block on Fairfax Avenue south of appellants' store and across Rosewood Avenue from appellants' store, and farther from the school grounds, there are five places which have off-sale licenses, and two places which have on-sale licenses, for beer and wine. The first of those places, on the west side of Fairfax, is a Safeway Store which is about 100 feet from appellants' store and about 175 feet from the school grounds. (A witness for appellants did testify, however, that the Safeway Store was just across Rosewood or 40 feet from his store. Apparently, he was attempting to minimize the distance to the Safeway by stating the distance to the edge of the 60-foot-wide parking lot of Safeway instead of stating the distance to the store building.) The second of those places is about 300 feet from the school grounds. The other places on the west side are, respectively, about 350 feet, 500 feet, and 600 feet, from the grounds. On the east side of Fairfax, the first place is about 600 feet, and the other place is about 800 feet, from the grounds.

At the northeast corner of Melrose and Fairfax Avenues (two blocks north of appellants' store) there is a drug store which has a liquor license. The drug store is across Melrose from the school grounds. Melrose is about 80 feet wide. The drug store and appellants' place are approximately the same distance from the grounds.

Buddy Weiss testified that he intended to sell wine for sacramental purposes; that he was not interested in beer because there was no room in the store for it, but if the store were larger he would seriously consider selling beer. A real estate agent, and a meat market proprietor, testified that the residents in the neighborhood are predominantly Jewish, and that the issuance of the license would not do any harm to the neighborhood.

The majority opinion states that if the board had kept liquor away from the vicinity of the school grounds altogether, they (my associates) would readily agree that the public welfare and morals would have been served, but since a colony of licenses is within 600 feet of the grounds, the denial of ‘another’ license is an arbitrary act. The import of this assertion is that the public welfare and morals would have been served if, in the first instance, no liquor license had been granted in the vicinity of the school, but since some mistakes have been made in regulating liquor traffic in the neighborhood it would be an arbitrary act for the board (even if the board should be comprised of new personnel) to stop making such mistakes.

The majority opinion also states that if it was consistent with public welfare and morals that seven places be licensed, why would an eighth place in the same territory be contrary to public welfare and morals? The import thereof is that appellants' place is ‘in the same territory’ as the other places. Appellants' place is 80 feet, and directly across the street, from the school grounds and the reserve officers' training building. None of the other places on Fairfax is opposite the school grounds and none is closer to the grounds. Only the drug store, across Melrose, is as near to the grounds as appellants' place is, but it is not as near to the training building as appellants' place is. As above shown, the other places are south of Rosewood and are much farther away.

My associates also say that they ‘cannot visualize any harm to youth which would result from the granting’ of the license. This is a prediction as to what the behavior of high school pupils would be if a beer and wine store were allowed to operate directly across the street from the grounds and the reserve officers' training building. It pertains to a question of fact which was for the determination of the administrative agency, the board.

The majority opinion also states that a denial of the license would not improve conditions, and the granting of it would not make them worse. This is an appellate court finding regarding a factual question which was for the determination of the administrative agency.

The majority opinion also states that to pretend that the license was denied because it was contrary to public welfare and morals to have a liquor store ‘near high school grounds is the ultimate in sophistry.’ The import thereof is that the hearing officer, the board, and the superior court were announcing the utmost in deceptively subtle reasoning when they held that it was contrary to public morals to have the proposed beer and wine store about 80 feet from the school grounds and the officers' training building.

The majority opinion also states that it seems that it would be within the purposes of the Alcoholic Beverage Control Act to recognize the religious beliefs of the people in the neighborhood and their desire for sacramental wine. This assumes that it is a fact that appellants wanted the beer and wine license for the purpose of selling sacramental wine only. The board was empowered to decide the facts. The hearing officer was in the best position to decide the credibility of Buddy Weiss. His testimony that he was not interested in beer is refuted by his other testimony that if his store were larger he would seriously consider selling beer. The hearing officer and the board might well have concluded that Buddy was not trustworthy and that his main concern was to get a beer license. It is not clear why he should have such a commercial interest in a wine which is limited allegedly to use for religious purposes. I agree, as suggested in the majority opinion, that we ‘should look at the problem realistically.’ The realistic view is indicated by Buddy's statement that he would seriously consider selling beer if his store were larger. Of course, it would be an easy matter, after obtaining a beer license, to find space in his store for the beer. Also it is obvious that, after getting the license, they could sell all kinds of wine for other ‘purposes and reasons too numerous to mention.’

I do not agree with the implication in the majority opinion that after a few or several mistakes have been made by the Board of Equalization in granting liquor licenses near a school that thereafter, as a matter of law, the board, even if it be comprised of new personnel, cannot deny a liquor license, upon the basis of violation of good morals, for a place which is closer to the school grounds and a building thereon than the other licensed places.

Under the majority opinion the board would not be justified hereafter in denying, upon the basis of violation of good morals, an application for a liquor license at any place on Melrose or Fairfax Avenues directly opposite the school or at any place within 600 feet of the school.

It is established and well known that the sale of intoxicating liquor in the immediate vicinity of a public school is against public welfare and morals. That standard of good morals is not changed as a matter of fact or law by an act or acts of the Board of Equalization in permitting the sale of liquor in violation of that standard. The standard remains the same even though at times it is disregarded. Even though the board at times has failed to observe that standard of good morals in granting a license, it is not required by reason of such failure to keep on failing to observe the standard. Certainly the board, upon discovering the error of its way, has the right to stop making the error. Certainly a new board would not be compelled to grant a license, in violation of good morals, because a former board had granted such a license.

I do not agree with the philosophy that two or more wrongs make a right, or that a few errors justify the making of another error.

The alleged principle that after a license has been granted in violation of good morals other such licenses should be granted in order to prevent discrimination and a monoply of the liquor business by a favored few is based upon the commercial aspect of the liquor traffic and is of no importance in comparison with the duty of the board to maintain the high moral principle that public school pupils and the public school system must be protected from encroachments of the liquor traffic. The pupils and the school were entitled to the protection which they received at the hands of the board, in the Weiss application, without the necessity of a protest. It was not necessary to protest on the basis that the Weiss beer store would be too near the school or on the basis that there were too many licenses already in the community. Upon either basis the question of good morals would be involved. The order of the board denying the application was for good cause under either basis.

The matter was within the discretionary powers of the Board of Equalization. The board is to be commended for its sound judgment in denying the application. I agree with the hearing officer, the board, and the superior judge. In my opinion the judgment should be affirmed.

SHINN, Presiding Justice.

VALLÉE, J., concurs.