Kirby v. Alcoholic Beverage Control Appeals Board

PETERS, J.

I dissent.

I disagree with the majority’s conclusion that there is substantial evidence supporting the conclusion that the existence of the licensed premises could cause or aggravate a police problem, or could interfere with the residents’ quiet enjoyment of their property, and consequently would be contrary to public welfare and morals.

The basic rule regarding the discretion of the Department of Alcoholic Beverage Control to deny a liquor license is well-established and perhaps best stated in Schaub’s Inc. v. Dept. Alc. Bev. Control, 153 Cal.App.2d 858, 865 [315 P.2d 459]: “While the department is vested with the constitutional power to deny in its discretion any specific liquor license if it determines for good cause that granting the license would be contrary to public welfare and morals, in so determining, the department performs a quasi-judicial function similar to local administrative agencies. [Citations.] But, ‘The board’s discretion under section 22 [of the California Constitution], however, is not absolute but must be exercised in. accordance with the law, and the provision that it may revoke a license “for good cause” necessarily implies that its decisions should be based on sufficient evidence *443and that it should not act arbitrarily in determining what is contrary to public welfare or morals’ [Citations.]” (Italics in original.)

The hearing examiner made several findings of fact reflecting conditions in the Isla Vista area and recommended that the license be granted. The department adopted the findings but concluded that: “1. The premises sought to be licensed are in a residential area where normal operation would interfere with the quiet enjoyment of their property by the residents thereof; [1|] 2. Issuance of the license would aggravate an existing police problem . . . :”

The first conclusion cannot be sustained on the record before us for several reasons.

It is not supported by the findings of fact made by the hearing officer which were adopted by the department. The conclusion is based not on the proximity of the proposed establishment to the university campus but on its proximity to a residential area. Yet the overwhelming evidence establishes as a matter of law that this was a business district, with a large commercial shopping center strategically located to serve Isla Vista’s population of over 12,000. It is within this shopping center that the applicant, Schaeffer (the real party in interest) seeks to establish a small retail outlet for the sale of beer and wine for consumption off the premises. The proximity of the store to the residential area is similar to the proximity of liquor stores in most suburban shopping centers, where for obvious economic reasons they will be successful in terms of profit to the owner and convenience to customers. Even in larger cities, hundreds of licenses have been issued where there is a much closer proximity between liquor stores located in a business district and nearby residential areas. It would seem that any attempt to deny the license based on the potential interference with the quiet enjoyment of residential property is not supported by the record.

In basing their decision on proximity of the proposed establishment to the campus community and the university itself, the majority have departed from the department’s conclusion that the issuance of the license would interfere with the quiet enjoyment of residential property. Since the department did not rely on proximity to the campus it is improper for the majority to rely upon such proximity.

Finally, in this connection, the majority in erroneously relying on proximity to the university and the campus community and not on proximity to nearby residential areas, cite cases dealing with proximity to churches and schools. No cases of denial of a license are cited which are based on proximity to a residential area.

*444Even in cases of proximity to schools and churches the department’s denial of a license has been reversed in the absence of a clear showing of potential harm. (Martin v. Alcoholic Bev. etc. Appeals Bd., 55 Cal.2d 867, 876 [13 Cal.Rptr. 513, 362 P.2d 337]; Reimel v. Alcoholic Bev. etc. App. Bd., 255 Cal.App.2d 40, 45 [62 Cal.Rptr. 778].) As the majority correctly point out, cases agree that “mere proximity to schools or .churches may not constitute good cause for denial of a license,” but that “proximity to a church or school coupled with some additional evidence disclosing a potential threat to the public welfare or morals has been held sufficient to justify denial of a license.” These cases as the majority also recognize find the needed additional evidence in such matters as use of the school or church by very young children, but they are clearly inapposite here because Isla Vista has a lesser percentage of young children than almost any other area in the state. Thus none of the cases cited by the majority are applicable to the instant set of facts.

A close reading of the record compels me to conclude that there is no substantial evidence showing that the issuance of an off-sale beer and wine license in a commercial area with a surrounding residential area of a population of more than 12,000 would interfere with the quiet enjoyment of that residential property.

In finding substantial evidence to concur with the department’s second conclusion for denying the license, that the proposed establishment would cause or aggravate a police problem, the majority improperly rely upon the testimony of ex-Sheriff James Webster. When application was made by Schaeffer for the license, Webster, then sheriff, protested the application. He was, however, not reelected to another term. When the department’s decision was issued John Carpenter was Sheriff of Santa Barbara County. Shortly after taking office but before the decision was issued he wrote to the department advising it that he would not protest the application. Nevertheless, the decision denied the application based upon the police problem in the area as described by Webster, and to a lesser extent the possible interference with the quiet enjoyment of the property owned by the surrounding businessmen and residents.

I believe that the testimony of Webster should have been given little if any weight. The department and the majority of this court in reaching similar conclusions have misplaced their reliance on Webster’s testimony which provides little if any direct, relevant evidence let alone substantial evidence indicating that the off-premises sale of beer and wine would cause or aggravate a police problem.

In his protest filed against the issuance of the license, Webster argued *445that if the license were granted, “it will tend to create a policing problem because of its proximity to the Santa Barbara campus of the University of California and the recent civil disturbances which occurred in this area.”

The civil disturbances and campus disruptions testified to by Webster were in no way attributable to any licensed premises, alcoholic beverages or the issuance of a beer and wine license to Schaeffer. It bears emphasis that at the time of the disruptions there was not a single alcoholic beverage license in the entire community of Isla Vista. The disruptions were directly attributable to campus problems, and to the students’ reaction to the increased offensive in Vietnam and the announcement of President Nixon’s policy to invade Cambodia with United States ground troops and air support. It is illogical to assume as Webster did that the presence or non-presence of beer and wine had any effect on the disturbances of the spring of 1970. In fact, the evidence shows no relation between, beer and wine sales in the area and the past violence, as no license to sell beer or wine existed in Isla Vista when the violence referred to occurred. Yet even if an off-sale license were issued no evidence was presented indicating that this would foment violence or aggravate existing problems. It is a matter of public record that the department has, in fact, granted applications for licenses to premises located within the immediate vicinity of several campus communities.

One need only walk the streets of Berkeley—the so-called “hotbed or birthplace” of student violence and disruption—to observe countless beer parlors, restaurants, various food shops, and super markets selling beer and wine of the same proof the real party in interest intends to sell. And yet no link has ever been, shown between the existence of these establishments and the disturbances and disruptions which periodically occur there. On the other hand, there are numerous universities and colleges in this state where there have not been any disruptions although wine and beer and perhaps hard liquor are readily available at licensed premises near the school. There is nothing in the record to significantly connect the disruptions at Isla Vista with the sale or consumption of beer and wine. In this connection, Webster estimated that of the 700 to 800 persons arrested in the disruptions approximately 10 arrests involved alcohol.

Webster testified that in his opinion at least 50 to 60 percent of the people arrested were under the influence of intoxicating liquors and that Isla Vista has the highest crime rate in the county.

He indicated that no statistical information was available and none was presented at the hearing. He further testified that no figures were available as to the correlation between intoxication and crime in the Isla Vista area.

*446There was no showing that the issuance of a license to sell beer and' wine in a high crime area increased the crime rate. Thus, his testimony was pure speculation and conjecture without any support or factual basis.

Nothing in Webster’s testimony links the presence of alcohol to the so-called “high rate of crime" and nothing in his testimony indicates that the existence of an off-sale licensed establishment would at present adversely affect that crime rate.

To the contrary, if any inference is permissible as to the correlation of a licensed beer and wine off-sale establishment and the high-crime rate, the record points in the direction that there is an inverse correlation. The record before us reflects that the highest crime rate in the county exists in the one area in the county where there is no such establishment. The lower crime rate areas in the county are the ones where licenses are permitted. I would be very reluctant to draw the inference that crime can be reduced by permitting off-sale establishments in Isla Vista, but such an inference on the basis of the record before us would seem more reasonable than the one the majority seem to draw, namely, that the presence of licensed premises increases the crime rate.

On cross-examination it was pointed out to Webster that several nearby licensed premises were trucking alcoholic beverages into Isla Vista and he was asked what was the difference, from a standpoint of law enforcement, between having beer delivered into the area from without and the licensing of Mr. Schaeffer’s establishment. Webster testified: “Well, of course, if there wasn’t an establishment in the Isla Vista area, it would eliminate the possibility of it being broken into and liquor or beer taken and people furnishing themselves in this manner, or if there was a situation develop [sic], such as Isla Vista 1, 2, or 3, that the Highway Patrol would set up road blocks which would, in essence, cut down or even eliminate the possibility of bringing in liquor from the outside."

To premise a denial of a license on such a basis would be a manifest abuse of discretion.

Every area of high population density such as a campus community or downtown core-area will have a somewhat higher crime rate than the outlying suburbs. If this line of reasoning were applied statewide, then off-sale licenses would be necessarily denied to any applicant who engaged in business in any area of the state where the crime rate was above average. The department and the majority have cited no authorities which would permit such an arbitrary denial of an off-sale license.

I conclude that to deny the license because of a. “police problem.” based upon one man’s testimony is misplaced reliance and that testimony in the *447instant case should not provide substantial evidence to support such an erroneous conclusion.

The overwhelming evidence shows and the hearing examiner and the department found:

“10. The people who actually reside in Isla Vista, the University population, and the University administration are overwhelmingly in favor of the application for the license.
“11. The business interests and the local community and service organizations are preponderantly in favor of the application.”

It is clear that those who are most directly concerned with the question whether beer and wine should be sold in Isla Vista favored issuance of the license. Denial of the license will not mean that beer and wine will not be consumed in Isla Vista; the denial means only that obtaining the beverages will be made inconvenient; the residents will continue to resort to delivery by retailers outside the community. To impose this inconvenience as a punishment upon the residents of the community because some engaged in the disruptions appears to me to be the kind of bureaucratic pettiness which undermines confidence in all of our governmental institutions. I would hold that the department’s decision is not supported by the record and that the decision was correctly reversed by the appeals board.

Tobriner, J., and Mosk, J., concurred.

Respondent’s petition for a rehearing was denied August 2, 1972. Peters, J., and Tobriner, J., were of the opinion that the petition should be granted.