I agree with my colleagues that in the present state of the law the possession of cocaine or marijuana for sale involves moral turpitude per se as that protean phrase is currently construed. Of course this standard is, as the majority forthrightly concedes, a shifting one, and the conduct itself is malum prohibitum and not malum in se. * But in any event, given applicable standards of review, the board had no legal right to substitute its notion of what constitutes “turpitude” for that of the director. I find it easy, however, to sympathize with the board’s inclination.
It is instructive to speculate on the practical impact of the revocation in the light of what the majority believes to be the object of the director’s edict, namely, not punishment of the malefactor, but protection of the public: Eyra Martinez will lose her interest in a valuable liquor license, because her husband and colicensee Alfredo possessed marijuana and cocaine in amounts sufficient to be sold. And she will lose it without a scrap of proof of her fault, without trial, and without demonstration of any rational nexus between her husband’s behavior and the business they operate, because the department, like the sanctimonious judge in Oliver Twist, regards Eyra and Alfredo as forming a single entity, a perfect union such as Mr. and Mrs. Bumble’s, the one’s faults being imputable to the other.
And the only discernible public protection to be gleaned from this, is that henceforth the dining public in Martinez’ restaurants will be denied the “privilege” of enjoying traditional beer with their enchiladas.
If in fact the purpose of such Tartarean severity is the public protection, how is that interest advanced by stripping Mrs. Martinez of *41her property, perhaps of the means of her livelihood? And if the real purpose is punishment of her husband, on what bizarre moral theory does the director direct his sanctions at her?
Above all, what leads me to a conclusion contrary to the majority’s is the capricious way in which the director is permitted to and does exercise the discretion vested in him by our state Constitution and statutes. Thus, if pursuant to article XX, section 22, the director, as a kind of master of morals, deems any given conduct sufficiently opprobrious in his eyes, he may punish it by instant revocation, raining his wrath on the innocent and guilty alike; whereas, if it please him, he may find the guilty conduct insufficiently turpitudinous and stay such execution, permitting the licensee time within which to sell the tainted license.
Here, he has chosen for no reason evident in the record, to withhold his largesse; elsewhere, on the same facts (as public record shows) he has exercised it.
I suggest that the possession of this power is a weapon which will often clash, as here, with due process, because its exercise is so vague and standardless that it leaves the public uncertain as to the precise conduct it prohibits. (Cf. Giaccio v. Pennsylvania (1966) 382 U.S. 399 [15 L.Ed.2d 447, 85 S.Ct. 1558].) It promotes an invidious uncertainty which “ ‘injects into the governmental wheel so much free play that in the practical course of its operation it is likely to function erratically—responsive to whim or discrimination unrelated to any specific determination of need by the responsible policy-making organs of society— . . .’”(In re Berry (1968) 68 Cal.2d 137, 156, fn. 15 [65 Cal.Rptr. 273, 436 P.2d 273].)
I readily concede that the director has broad powers, but they are not plenary, and in my view they are here exercised in derogation of due process, for an impermissibly punitive purpose. (Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67 [64 Cal.Rptr. 785, 435 P.2d 553].)
In light of the views expressed, I would affirm that part of the board’s orders remanding for redetermination of penalty.
The petition of the real parties in interest for a hearing by the Supreme Court was denied March 29, 1979. Clark, J., and Newman, J., were of the opinion that the petition should be granted.
Indeed, as Mr. Figg-Hoblyn points out, as early as 1915 the Alabama Supreme Court held the actual sale of cocaine was not inherently immoral, but merely malum prohibitum, and consequently did not involve moral turpitude. (Pippin v. State, 197 Ala. 613 [73 So. 340].)