Jurisdictional Statement — Keller v. Department of Alcoholic Beverage Control

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SUPREME COURT: | %>

Moen ee

JOHN F. DAVIE, CLERK

| IN THE —_

Supreme Court of the United States

— iy 9

CORLON C, KELLER,

4

Petitioner,

WS,

THE DEPARTMENT OF ALCOHOLIC

- BEVERAGE CONTROL OF THE STATE

QF CALIFORNIA,

Respondent.

JURISDICTIONAL STATEMENT

re BURTON MARKS

pee 9720 Wilshire Boulevard ‘

Beverly Hills, Calif. 90212 s

Telephone - (213) 278-2301

Attorney for Petitioner

Offeet printed by: 315 3rd St., Hun Ca. 92646

—s pe Nag) $96 7161 — .

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ee, ee oe = APw REIS

Se ee ee ee oe .

TOPICAL INDEX

- Opinions Below. ........ PEPE TET Se eer ee

Jurisdiction ............ cay an tits as epon ain

eC PESELUTEL TTS Tee ee TT ETE

Questions Presented ...... if eee ap ers |

OE OE GID inc dick ka cnc bacrdacins

Substantiality of the i es.

co Reet re eer Vain ae uaeoe fae!

California Business and Professions Code

- Section 25600 is void for vagueness ~

since a man of ordinary intelligence

could not govern his conduct i insuch —

a way as to avoid prosecution merely

by reading the statute ........ aaah

Il

California Business and Professions Code

. Section 25600 is invalid under the

equal protection clause of the Four-

teenth Amendment because it bears

no rational relation to a legitimate —

state interest and is arbitrary and

SE 6 44 kaw Ons bak cAR A Ke

- Ill

‘ The failure of the courts to adequately

review the decision of the Depart-

ment of Alcoholic Beverage Control _

is a denial of due process .......... ay

Fa

me.)

aor mh

10.

1]

_* Griffin v. Ilinois, 351 US. 1

ii ;

TOPICAL INDEX

4

Argument (cont'd)

IV

The decision suspending petitioner’ S

- . , licénse must be reversed since

there was a fatal variance between

th® conduct proven by the evidence

and the conduct proscribed by the

eC re reer es ee

Conclusion oh Se ae pn @ ote ik ee ee a

TABLE OF AUTHORITIES CITED

Cases | a

/

Connally v. General Constr. Co.,

269 U.S. 385 (1926) ......... Caer

Champlin Ref. Co. v. Corporation Commission,

286 U.S. 210 (1943) Pane a aa hk a

Douglas. California, 372.U.S. 353 (1963) ..... *

Giaccio v. Pennsylvania, 382 U.S. 399 (1966) -....

a ee

Lanzetta v. New Jersey, 306 A (1998) ....

_

Lindsley ‘v. Natural Carbonic Gas Co.,

FWUS.GUAGNY 22-26 cn g

Morey Vv. — 354-US. 457 (1957) see ehenas

ne “ean United States, 342 U.S. 246 (1952).

Russell v. United States, 369 U.S. 749 (1962):

th

\2

ty

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‘ - TABLE OF AUTHORITIES CITED

Cases (cont'd) : Page

Stirone v. United States, 361 U.S. 212 (1960)... 2,3,.11

Walters v. Saint Louis, 347 U.S. 231 (1954) .... > 10

Statutes (United States) —

United States Constitution ./

Pir Amondmont- .< 0. rican >

Fourteenth Amendment. .... Peer e re i a?

»

28 U.S.C. 1257(2), . 0.656 Paw pene Stig

Statutes (California) .

|

Business and Professions Code | e

tPCT CE ELLE ELT ee . Se

BS a rr ree Pek ee

Section 23090.2 ..... EB OLN err . | Por 4,5

Ce eee rr ee ~s 4,5

Section 24200(a) (BD): 0 veces wie 6

Section 25600 ..... ae ores Pyayer 2, 5, 6, 8,.9, 10, 11

Text

Note, The Void-for Vagueness Doctrine

“in the Supreme Court, 109 U.Pa.L.Rev.

BF, PPPS CIPO swe cw aeh inde cses dian ‘aa

IN THE . 5

SUPREME COURT OF THE UNITED STATES

J October Kerm, [YoY

445 ir aaa

CORLON C RELLER,

Petitions

WA

VRE DEPARTMENT OF ALCOHOLIC

—REVIERAGE CONTROL OF THE STATE

OP CALIBORNIA,

Resporig ®:

JURISDICTIONAL STATEMENT

OPINIONS BELOW

Phas ts an appeal from the Order of the Count ot Appeal

far Re State of California, Second Appellate Dotan Henny wy

without, OPUON oF hearuyg, petitioner's statutory Penton tor

& “Wart at Review” brought to review the Onder ot the Calton

we Ahoohahe Beverage Control Appeals Boat alloy ui |

-

x

Order of the Department of Alcoholic Beverage Control sus-

pending petitioner’s “‘on sale” beer license. The California

Supreme Court denied, without opinion, a Petition for Hear-

ing of the said Order of the California Court of Appeal.

JURISDICTION

The jurisdiction of: this Court is invoked on the ground

that the California Business and Professions: Code Section

25600 has been sustained against a claim of unconstitutional

ity under the federal Constitution.

(i) ‘ Appellant was charged with a violation of California

Business and Professions Code Section 25600, which prohibits

“siv[ing] any premium, gift, or free goods in connection with

the sale of any alcoholic beverage.”’ Said charge was used as a

basis for the susperision of petitioner’s ‘‘on sale’’ beer license..

(ii) The suspension of petitioner’s license was affirmed -

by the Alcoholic Beverage Control Appeals Board on June 26,

1969; his petition for writ of review was denied by the Court

of Appeal on August 26, 1969; and his petition for a hearing

before the California Supreme Court was denied on September

24, 1969. Notice of appeal was filed in the California Court of

Appeal on October 21, 1969.

: (iii) Jurisdiction of this Court is conferred by Title 28,

United States‘Code, Section'1257(2).

_ 4fiv) Cases which sustain jurisdiction. are: Champlin Ref.

Co. v. Corporation Commission, 286 U.S. 210 (1943); Lan-

zetta v. New Jersey, 306 U.S. 451 (1939); Connally v. General .

\ Constr. Co., 269 U.S. 385 (1926); Giaccio v. Pennsylvania, ;

\ 382 U.S. 399 (1966); Morey v. Doud, 354 U.S. 457 (1957);

Bae v. California, 372 U.S. 353 (1963); Stirone v. United

_3~

States, 361 U.S. 212 (1960).

STATUTES INVOLVED ee.

California Business and Professions Code Section 25600:

“No licensee shall, directly or indirectly, give .

any premium, gift, or free goods in connection with

the sale of any alcoholic beverage.” — 5

California Business and Professions Code Section 23090:

“Application for writ of review; person entitled;

court; limitations. ;

“*‘Any person affected by a final order of the. board,

including the department, may, within the time limit

‘specified ir in this section, apply to the Supreme Court

or to the court of appeal for the appellate district in

which the proceeding arose, for a writ of review of |

such final order. The application for writ of review

shall be made within 30 days after filing of the final

order of the board. (Added Stats. 1967, c. 1525, p.

3635, sec. 4.)” tia

California Business and Professions Code Section 23090.1:

“Return of writ; time and place; direction; new

or additional evidence not to be introduced; hearing

. on whole record. |

“The writ of review shall be ante returnable

at a time and place then or thereafter specified by

court order and shall direct the board to certify the

whole record of the department i in the case to the

court within the time specified. No new or addi- .

=

tional evidence shall be introduced i in such court,

but the cause shall be heard on the whole record

of the department as certified to by the board.”

California Business and Professions Code Section

23090.2: -

“Scope ofr review.

“The review by the court shall not extend

further than to determine, based on the whole

record of the department as certified by the

board, whether: °

“(a) The department has sidatiied without

or in excess of its jurisdiction. .

“(b) The department has proceeded i in the -

manner required by law. .

“(c) The decision of the department i is sup-

ported by the findings.

“(d) The findings in the department's s deci-

' sion are supported by substantial evidence in the

light of the whole record. — ,

““(e) There is relevant evidence which, in

the exercise of reasonable diligence, could not

have been produced or which was improperly.

excluded at the hearing before the department.

“Nothing in this article shall permit the court

to hold a trial de novo, to take evidence, or to

exercise its independent judgment on the evidence.” -

California Business and Professions Code Section

23090.3:

“Conclusiveness of findings and conclusions; -

appearances of parties; judgment. |

=

“The findings and conclusions of the depart- |

ment on questions of fact are conclusive and final

and are not subject to review. Such questions of

fact shall include ultimate facts and the findings

and conclusions of. the department. The board,

the department, and each party to the action or

proceeding before-the board shall have the right

to appear in the review. proceeding. Following the

hearing, the court shall enter judgment either

affirming or reversing the decision of the depart-

ment, or the court may remand the case for further

proceedings before or reconsideration by the depart-

ment.”

QUESTIONS PRESENTED

I. | Whether California Business and Professions Code

Section 25600, as applied, violates the Fifth and Fourteenth

Amendments’ guarantee of due process because it is overly

vague.. ' | icone |

II, Whether California Business and Professions Code

Section 25600 violates the equal protection clause of the

Fourteenth Amendment because it bears no rational relation-

ship to a legitimate state interest and is arbitrary and over-

broad. | if

II. Whether California Business and Professions Code

Sections 23090, 23090.1, 23090.2 and 23090.3 permitting,

and the denial by the Court of Appeal and the California

Supreme Court of, petitioner’s Petition for Writ of Review ~

_and Petition for a Hearing—without any opinion and without ©

any hearing—violates the constitutional 6 ies of due

process and equal protection of the law.

_ IN. Whether the variance between the evidence pre-

sented and the conduct proscribed by Business and Profes-

sions Code Section 25600 is a violation of petitioner’s right

to due process of law. |

STATEMENT OF THE CASE

[PAGE REFERENCES ARE TO THE REPORTER'S TRAN-

SCRIPT OF THE PROCEEDING BEFORE THE DEPARTMENT

OF ALCOHOLIC BEVERAGE CONTROL, WHICH DOCUMENT

HAS BEEN OR WILL BE TRANSMITTED TO THIS COURT IN

" THE CERTIFIED RECORD.)

The Department of Alcoholic’ Beverage Control charged

that cause for disciplinary action had been established under

Business and Professions Code Section 24200(a) and (b) on

the basis that petitioner had on one or more occasions violated

Business and Professions Code Section 25600 which makes it

‘a misdemeanor to— '

sees: . directly or indirectly, give any premium,

sift, or free goods in connectionwith the sale of

any alcoholic beverage. ~ (Emphasis added.)

After a hearing on the charges, the hearing officer found

that petitioner did— 7

a . directly give premiums, gifts, and free

goods for the purpose of, and with the intent to

encourage the sale and purchase of alcoholic

beverages... .””

Motions were wih to dismiss the acoitinds on the

ground that Section 25600 is unconstitutionally vague and

on the further ground that the Accusation did not state an

-. |

offense cognizable under that section (.e., that there was

a fatal variance between the conduct proscribed by the

statute and the conduct proven by the evidence). These

motions were denied (R. 4). ss - f

The evidence showed that two ABC investigators ob-

served and participated in free lottery drawings at petitioner's

place of business and observed or participated in an occasion

on the same.dates when dollar bills were blown out of the

ventilator shaft. The investigators made no attempt at that -

time to inform petitioner that he had violated any law, nor

did they make any attempt to issue a misdemeanor complaint

(R. 22-23). :

No evidence was presented which tended to show that

the lottery drawings or the dollar bill blowing was “in connec-

tion with” the sale of alcoholic beverages. Non-alcoholic bev-

erages are sold at petitioner's place of business, and some of

the customers present were not drinking alcoholic beverages.

Petitioner testified that he did not know that his acts :

were unlawful (if, in fact, they were).and that he stopped —

giving away prizes when informed by the ABCAhat he was

violating the law (R. 33-35). He was told that he “could not

give away to entice people to drink” (R. 43). He complied a

with the ABC’s version of the law, although he did not feel |

that he was enticing people to drink: “I was requiring nothing »

of the patrons. That's why I had a juice bar, because there are

- lot of people that don’t want to drink alcoholic lc beverages

Pere 43). '

- refusing to consider the judgment of the Alcoholic

Beverage Control Appeals Board, the California Supreme

Court has decided awainst petitioner's attacks on the statute.

It has, in effect, held that the federal constitutional attack

. os

raised by petitioner has no merit, and therefore an appeal

lies to this Court.

SUBSTANTIALITY OF THE QUESTIONS

The Department of Alcoholic Beverage Control regu-

lates all sales of alcoholic beverages in California, our most:

populous state. The effect of a suspension or revocation of

a license by the Department may be very serious but, at its

most minimal, is a denial of property, which must be accom-

panied by due process of law. The infirmities in the instant

case would not be tolerated in a more “‘substantial” criminal _

matter and, petitioner submits, cannot be tolerated here

where substantial constitutional questions are raised. See

Morissette v. United States, 342 U.S. 246 (1952). Before

the ABC, no less than in other penal matters, those accused

are entitled to something more than casual justice, for casual

justice is no justice at all and is a denial of the due process of

law which is guaranteed by the United States Constitution.

ARGUMENT

I

California Business and Professions Code Section

25600 Is Void For Vagueness Since A Man |

Of Ordin y Intelligence Could Not Govern

His Conduct In Such A Way As To Avoid

Prosecution Merely By Reading The Statute.

The question is whether the statute is couched in “words

and phrases. . . so vague and indefinite that any penalty

wc

prescribed for [its] violation constitutes a denial of due

process of law.” Champlin Ref. Co. v. Corporation Com-

mission, supra, 286 U.S. 210, 243. As applied, Section

25600 meets that test.

While different standards apply to questions of

vagueness when freedom of speech is not at stake (see

- Note, Zhe Void-for-Vagueness Doctrine in the Supreme

hs U.Pa.L.Rev. 67, 74-75 [1960] ), this Court

has insisted that every sanction that is penal in nature must

adequately inform those who might come within its purview

the conduct that is proscribed with sufficient particularity

so that they might guide their conduct thereby. Zanzetta

v. New Jersey, supra, 306 U.S. 451; Connally v. General

Constr. Co., supra, 269 U.S. 385. Statutes must also pro-

vide a certain standard for the determination of guilt.

_Giaccio v. Pennsylvania, supra, 382 U.S. 399. ra

The application of Section 25600,to any gift bya.

licensee is not something that could have been foreseen

by that licensee merely by reading the statute. What we

have here is a penal statute which “forbids. . . the doing

~ of.an act in terms so vague that men of common intelligence

must necessarily guess at its meaning and differ as to its

application.” Connally v. General Constr. Co., supra, 269

U.S. at 391.

Il

California Business and Professions Code Section

25600 Is Invalid Under The Equal Protection

Clause Of The Fourteenth Amendment _

Because It Bears No Rational Relation To a

Legitimate State Interest And Is Arbitrary

a 10—

And Bverbroad.

’ Section 25600, as applied, is invalid because it causes

“different treatments. . . so disparate,-relative to the dif

ference in classification, as to be wholly arbitrary.” Walters

vy, Saint Louis, 347 U.S. 231, 237 (1954). The statute “is

without any reasonable basis and therefore is purely arbi-

trary.” Lindsley v. Natural Carbonic Gas Co., 220 U.S.

61, 78 (1911). Always, “a statutory discrimination must

be based on differences that are reasonably related to the

' purpose of the Act in which it is found.” Morey v. Doud,

354 U.S. 457, 465 (1957).

The state of California has not seen fit to proscribe the

sale of alcoholic beverages but, as some kind of vestige of

_ prohibition, seeks to discriminate against those who sell

them The only rational basis for Section 25600 would be

that alcohol is bad; but if that is the case, then the state

should prohibit its sale, not make things difficult for its

sellers. |

Even if the section bore a rational relation to a legi-

timate state interest, it would be invalid because, as applied,

it is overbroad. For, if the state can legitimately so inhibit

sales of alcoholic beverages, its method here— proscription

of the giving of premiums (even if the purpose is to attract

more patrons; is essentially ‘‘advertising’) by bar owners

whether or not actually connected with such sales—is not

the least onerous method of achieving that end.

“on

cen,

pe

Il

' The Failure Of The Courts To Adequately Review

» The Decision Of The Department Of Alcoholic

Beverage Control Is A Denial Of Due Process.

The failure of the state appellate courts to provide ade-

‘ quate judicial review is analogous to the “‘meaningless ritual”

deplored by this Court in Douglas v. California, supra, 372

U.S. 353, 358 (1963). There is né doubt about the impor

tance of appellate review (Douglas, supra; Griffin v. Minois, |

351 US. 12 [1956]); and there is no exception to the right

to equal review (i.e., once a State decides to afford judicial

review) where, as in Griffin and Douglas, the appellants are

poor nor, as in Morissette, the penalty is “insignificant.”

IV

The Decision a Seapeaiting Petitioner's License Must

Be Reversed Since There Was A Fatal Variance

Between The Conduct Proven By The Evidence

And The Conduct Proscribed By The Statute.

- If Business and Professions Code Section 25600 is held

not to b ague (see I, supra), then the decision below must

be reversed for the failure to prove a violation of that statute

as written. It isa fundamental requirement of due process

that the offense charged be proven; the proof of another

offense cannot sustain a conviction. Cf. Stirone vy. United

States, supra, 361 U.S. 212; Russell v. United States, 369

U.S. 749 (1962). This is true a fortiori where the conduct

* proven is not a crime at all (see Statement Of The Case,

supra). |

>

_}2-

CONCLUSION ©

Rar the reasons stated above, this appeal involves

SSTLORA BAONOWAd Constitutional questions which this

Corre Show Goode.

Respectfully submitted,

BURTON MARKS

Attorney for Petitioner

APPENDIX,

Post Cand Denial of Petition for Writ of Reeteti:

- Sond Appellate District, Court of Appeal & for

te State of California.

Post Cand Denial of Petition for Hearing,

Saprome Court of the State of California.