Appendix — Richter v. Rice

IN THE

SUPREME COURT OF THE UNITE MGAA ARAM JR. CLERK

C2 ~ 30-4 Term, 1977

No.

Paul Richter, dba The Body Shop,

Petitioners,

vs.

Baxter Rice, Director of The Department of

Alcoholic Beverage Control of the State

of California, The Department of

Alcoholic Beverage Control of the State

of California, and The Alcoholic Bever-

age Control Appeals Board of the State

of California,

Respondents.

SUPPLEMENTAL APPENDIX TO

PETITION FOR WRIT OF CERTIORARI TO THE

ALCOHOLIC BEVERAGE CONTROL APPEALS

BOARD OF THE STATE OF CALIFORNIA

Joshua Kaplan, A Member of

Hertzberg, Kaplan & Koslow

Attorney for Petitioner

HERTZBERG, KAPLAN & KOSLOW

3550 Wilshire Blvd., #1418

Los Angeles, CA 90010

Telephone: (213) 381-1121

of Counsel

SUBJECT INDEX

APPENDIX "A", a Opinion of the

Alcoholic Beverage Control Appeals

Board

IN THE

SUPREME COURT OF THE UNITED STATES

Term, 1977

No.

Pavl Richter, dba The Body Shop,

Petitioners,

vs.

Baxter Rice, Director of The Department of

Alcoholic Beverage Control of the State

of California, The Department of

Alcoholic Beverage Control of the State

of California, and The Alcoholic Bever-

age Control Appeals Board of the State

of California,

Respondents.

SUPPLEMENTAL APPENDIX TO

PETITION FOR WRIT OF CERTIORARI TO THE

ALCOHOLIC BEVERAGE CONTROL APPEALS

BOARD OF THE STATE OF CALIFORNIA

Pursuant to the request of the Court,

Petitioner herewith submits a revised

‘Appendix "A" in compliance with Supreme

Court Rule 39.

BEFORE THE ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD

In the Matter of the ) AB-4350

Accusation Against ) File 24157; Reg. 5216

) ALJ: Gruen

PAUL A. RICHTER )

dba The Body Shop ) Date and Place of Hear-

3776 Riley Street

San Diego

Respondent and Licensee

On-sale general license

ing: January 26, 1977

314 West First Street

Los Angeles, Califor-

nia

)

)

)

)

)

) For Department:

) Honorable Evelle J.

Under the Alcoholic Beverage)

Control Act. )

)

)

)

)

Younger, Attorney

General, Marilyn Mayer

Deputy Attorney General

For Appellant:

Joshua Kaplan, Esq.

Appellant Paul A. Richter, doing business

as The Body Shop, has appealed a decision of the

Department of Alcoholic Beverage Control which

determined:

"1. The Department's motion to dis-

miss Counts II, III, IV and VI of the

Accusation and to amend licensee's pre-

vious record to show ‘finality’ of

decision relative to Accusation 43,

4-10-74 and Accusation 18386, 7-30-73,

should be granted.

"2. Exhibit A (reporter's partial

transcript in file 32772; Reg. 43) is

admitted into evidence.

"3. Article XX, Section 22 of the

California Constitution and Sections

24200(a) and (b) of the Business and

Professions Code are not unconstitutional

and there is no violation found of the

First and Fourteenth Amendments to the

United States Constitution.

"4. Section 143.3(1) (c), Califoria

Administrative Code was not unconstitution-

ally found above, and there is no violation

found of the First and Fourteenth Amend-

ments to the United States Constitution.

"5. It was not established that

there existed conspiratorial motives

or bad faith on the part of enforcement

officials whereby respondent and others

similarly situated were subjected to

selective and arbitrary enforcement of

the law.

"6. Respondent violated Section

143.3(1) (c), California Administrative

Code as to Counts I through IV of the

findings of fact above. Grounds for

disciplinary action against respon-

dent's license have been established

pursuant to Sections 24200(a) and (b)

of the Business and Professions Code

and Article XX, Section 22 of the

California Constitution."

As a penalty the department revoked respondent's

license as to each of Counts I through IV of the

decision.

The department's decision further provides:

"A. Ruling on Notice of Special

Defense: All of the special defenses

and any motion contained therein, are

2

each overruled and denied.

"B. Pursuant to stipulation the

matter was head in Los Angeles,

California.

"C. The Department moved to

dismiss Counts II, III, IV and 71

of the Accusation, and moved to amend

licensee's previous record to show

the decision was final relative to

Accusation 43, 4-10-74 and Accusa-

tion 18386, 7-30-73.

"D. The matter was submitted

subject to the right of the parties to

submit briefs and points and authorities.

Respondent's briefs and points and autho-

rities were filed on July 14, 1976. The

Department filed its brief and points and

authorities on July 30, 1976.

"Pursuant to stipulation of the

parties, the Administrative Law Judge

makes the findings of fact, as follows:

"FINDINGS OF FACT:

“COUNT I

"On or about October 9, 1975, the

above-named on-sale licensee did permit

Denise LaMont to perform acts in the

above-designated on-sale licensed pre-

mises at which time said Denise LaMont

did display her pubic hair.

"COUNT II

"On or about November 8, 1975, the

above-named on-sale licensee did permit

Donna Diane Millard and Linda Sue Spring

to perform acts in the above-designated

on-sale licensed premises at which time

3

mot

said Donna Diane Millard and Linda Sue

Spring did display their pubic hair.

"COUNT III

"On or about November 21, 1975,

the above-named on-sale licensee did

permit females known only as Felicia

and Donna to perform acts in the above-

designated on-sale licensed premises

at which time said females known only

as Felicia and Donna did display their

pubic hair.

"COUNT IV

"On or about March 16, 1976, the

above-named on-sale licensee did per-

mit Sherry Duke and Ruth Rae Bridwell

to perform acts in the above-designated

on-sale licensed premises at which time

said Sherry Duke and Ruth Rae Bridwell

did display their pubic hair.

"SPECIAL FINDINGS:

"It was stipulated by the parties

that the reporter's partial transcript

be identified and received in evidence

as Exhibit A and that testimony con-

tained therein be received as if the wit-

ness were called, sworn and testified

at the herein hearing subject to the

same objections of record contained in

said Exhibit A.

"LICENSEE PREVIOUS RECORD:

"Paul A. Richter type '48' licensed

as individual at above premises since

11-17-75 with no disciplinary action.

"Paul A. Richter, President and

sole stockholder of Paul Richter &

Associates, Inc., type '48' licensed "Paul A. Richter type 40' licensed

at above premises from 1-31-68 to at above premises as individual from

11-17-75 with the following: 2-14-66 to 3-17-67; type '48' licensed

9 at above premises as individual fram

“Accusation 43, 4-10-74, Rule 143.3 2-16-67 to 1-31-68, with the following:

(1) (c) - 11 counts, Rule 143.3(1) (b)

& (c) 1 count, & Rule 143.3(2) - 1 "Type '48' licensed:

stmval, Aepenie Quien a "Accusation 3415, 4-20-67, 25658

respondent. Decision final. > a & b & 25665; 4-20-67 five days, POIC

($250) in lieu on 6-2-67.

"Accusation 18981, 11-12-73, = "

Rule 143.3(1) (c) - 22 counts, Rule Accusation 4001, 1-27-67, 25658

143.2(1) - 1 count, Rule 143.3(2) - a & b & 25665, 8-24-67 fifteen days/

2 counts, and Rule 143.3(2) -- 12 ten stayed, POIC accepted on 11-17-67

counts, Decision of 11-28-75: 30 ry (five days); and reimposition of ten

days/ 10 stayed; appealed, pending. days stayed for POIC $1,543.26) accep-

ted on 8-6-73.

"Accusation 18386, 7-30-73, Rule

143.3(1) (c) - 20 counts, Rule 143.3(2) - "Accusation 4947, 12-26-67, 25632,

1 count, Decision of 3-21-74, thirty 6-8-70, ten days, POIC ($1,408.80)

days/ ten stayed, Appealed, 3-4-76 " accepted on 7-8-70.

(sic). All appeals resolved adverse

to respondent. Decision final. Appellant appeals under Business and Profes-

"Accusation 7562, 2-21-69, 24200 sions Code section 23084, subsections (a), (b),

a B & P Sec. 22, Art. XX, State Cons-

titution; 11-17-71 ten days/five 9 (c) and (d).

stayed (imposition of penalty stayed Peis

ma U.S. Supreme Court mR The department dismissed Counts II, III,

in the LaRue case); POIC ($771.63 ' ,

Accepted on a in Pe er IV and VI of the accusation at the hearing. The

days/five stayed.

ys/ 7 , Attorneys for the department and respondent stip-

“Accusation 11791, 11-24-70, 2568a

& b & 25665, 3-1-71 fifteen days/ten ulated as to the truth of Counts I, V, VII and

stayed, eff. 6-24-71 sted).

4 wo , VIII of the accusation (Counts I, II, III and IV

"Accusation 12043, 1-8-71, 25665

& 25663: 4-1-71 twenty-five days/ ’ of the department's decision). They also stip-

fifteen stayed, POIC ($1,108.60) ‘ ; ,

accepted in lieu on 6-17-71. ulated that a partial transcript of the testimony

of one Virginia Chase, In Case No. L-6576, be

received into evidence as if Ms. Chase had testi-

fied at the instant hearing (Respondent's

Exhibit A), with the objections thereto also in

full force and effect, to be ruled upon by the

Administrative Law Judge presiding over the instant

department hearing regardless of prior rulings.

Ms. Chase had testified as an expert witness with

regard to the definition of a "dance" and related

matters in the previous department hearing.

Appellant filed a petition with the appeals

board to suspend this proceeding before the appeals

board pending the outcome of a hearing scheduled

by the department relative to whether section 143.3

of the California Administrative Code,

1/ Section 143.3 states in pertinent part: "Acts

Or conduct on licensed premises in violation of

this rule are deemed contrary to public welfare and

morals, and therefore no on-sale license shall be

held at any premises where such conduct or acts are

permitted.

"Live entertainment is permitted on any lic-

enzed premises, except that:

"(1) No licensee shall permit any person

to perform acts of or acts which simulate:"

x kk

"(c) The displaying of the pubic hair,

anus, vulva or genitals."

should be repealed or amended, and pending an

action filed by the appellant in the United States

Ninth Circuit Court of Appeals, entitled Richter v.

The Dept. of Alcoholic Bev. Control. (Case No.

76-2422).

With regard to the stay requested by appel-

lant due to the aforementioned hearing by the

department, we find said request devoid of merit.

There is no evidence in the record that a repeal

of section 143.3 is pending nor imminent. More-

over, repeal of said rule would not necessarily

affect violations occurring prior thereto.

With regard to appellant's waquest for a

stay of these proceedings due to his appeal to the

United States District Court of Appeal for the

Ninth Circuit, supra, Business and Professions

Code section 23084(e) and Article XX, section 22

of the California Constitution, cited by appellant,

permit a remand (not a suspension) only and this

is only when relevant evidence could not have been

produced, or was excluded, at the department hear-

ing. Appellant has shown no relevant evidence

which was not considered by the department. The

appeals board is not aware of any legal authority

to suspend a proceeding before it on appeal. A

matter is stayed by law while being considered by

this board and during the time that an application

may be made for a Writ of Review to the appellate

courts (Business and Professions Code section

23090.7); hence, granting such a stay would be a

redundant act. Finally, in People v. Green, 66

Cal.App.3d 801, the court stated:

California courts also have

recognized that a federal district

court cannot impose a duty io act

upon any state court and that a state

court acts independently and voluntar-

ily in responding to the federal order.

(See People v. Pasanella (1971) 14

Cal.App.3d 1004 [92 Cal.Rptr. 655];

People v. Hamilton (1975) 80 Cal.App.3d

476 [123 Cal.Rptr. 390])" (People v.

Green, 66 Cal.App.3d 801, at

p. 804.

Upon appeal appellant contends: the enfor-

cement of section 143.3 against him would amount

to a deprivation of rights guaranteed under the

First and Fourteenth amendments to the Constitution

of the United States in at least three respects:

(1) that section 143.3 cannot, consistent with the

9 ad

guarantees of the First Amendment, apply to for-

bid dance performances in a neighborhood theater

absent gross sexuality on the facts of the parti-

cular application, (2) that it is inconsistent

with the due process guarantee of the Fourteenth

Amendment read in light of the First Amendment

context in this action, for the determination

of gross sexuality to be made by any other than

a judicial tribunal in the first instance, and

(3) that the procedure herein, by not guarante-

eing applicant judicial review of the department's

decision as a matter of right, fails to afford

appellant minimum due process, and violates

Article XX, section 22 of the Constitution of the

State of California; and, appellant further submits

that the drastic remedy herein sought, revocation

of his license, is so excessive and abusive in

relation to the conduct at issue to be beyond the

department's administrative discretion.

Appellant's contention that since gross

sexuality was not proven as to the dance perfor-

mances, section 143.3 constitutes a violation

10

of the First Amendment as applied to the specific

violations herein, is devoid of merit. The vio-

lations stipulated to specifically indicate the

licensee of the subject premises simply per-

mitted individual females to display their pubic

hair. The testimony in Respondent's Exhibit A

did not pertain to the acts on the dates in ques-

tion. However, assuming arguendo the exposures

herein in some manner partook of communication,

we find appellant's "gross sexuality" argument to

be unpersuasive in view of the reaffirmation of the

simple nudity test of California v. LaRue, (1972),

409 U.S. 109 [93 S. Ct. 390], In Doran v. Salem

Inn, Inc., (1975) 95 S.Ct. 2561. In Doran the

United States Supreme Court stated:

"Although the customary ‘bar room'

type of nude dancing may involve only

the barest minimum of protected expres-

sion, we recognized in California v.

La Rue, 409 U.S. 109, 118, 93 S.Ct.

309, 397, 34 L.Ed.2d 342 (1972), that

this form of entertainment might be

entitled to First and Fourteenth Amend-

ment protection under some circumstances.

In La Rue, however, we concluded that

the broad powers of the states to

regulate the sale of liquor, conferred

by the Twenty-First Amendment, outweighed

any First Amendment interest in nude

ll

dancing and that a state could therefore

ban such dancing as part of its liquor

license program."

(Emphasis ours, p.2568.)

(The Doran Court went on to conclude, that the

statute being considered therein was unconstitu-

tional because it went beyond licensed premises

in its application.)

Appellant's contention that the instant

procedure amounts to an unconstitutional prior

restraint on appellant's constitutional right of

free expression under the First and Fourteenth

Amendments, is devoid of merit (California v.

LaRue, supra, 409 U.S. 109 [93 S.Ct. 390] and

Doran v. Salem Inn, Inc., supra, 95 S.Ct. 2561).

There was no injunction applied by the department

prior to its hearing regarding the instant accusa-

tion under section 143.3, a fortiori, the licen-

see was and is allowed to proceed with his alleged

communicative acts without any prior restraint

thereon. Moreover, as heretofore indicated, the

department is not allowed to enforce its decision

during the pendency of an appeal with the Alcoholic

Beverage Control Appeals Board and during the time

12

appellant may file a Writ of Review with the Dis-

trict Court of Appeal or Supreme Court after the

Appeals Board's decision (Business and Professions

Code section 23090.7). Clark v. The City of

Fremont, Nebraska, 377 F.Sup. 327, is not applica-

ble because it misinterprets the decision of LaRue

to mean that a finding upon gross sexuality is

required in licensed premises. As stated in Doran

v. Salem Inn, Inc., supra, gross sexuality is not

the test that is required in LaRue; mere nudity

in a licensed premises is sufficient.

Appellant's contention that the instant

procedure fails to afford him a meaningful oppor-

tunity to be heard and denied him due process of

law, is devoid of merit. This is not a situation

as the court was faced with in Misurelli v. City of

Racine, 346 F.Sup. 43, where the liquor license

might expire prior to a final determination of the

denial of the liquor license's renewal; and, that

the only grounds for reversal of the liquor license

denial would be if the municipality decision had

been found to be arbitrary, capricious or discri-

minatory. Under Business and Professions Code

13

2 ee Oe

section 23090.2, a court on review (as did this

board) may consider whether: the department

has proceeded without or in excess of its jurisdic-

tion; the department has proceeded in the manner

required by law; the decision of the department is

Supported by the findings; the findings in the

department's decision are supported by substan-

tial evidence in the light of the whole record; and,

there is relevant evidence which, in the exercise

of reasonable diligence, could not have been pro-

duced or which was improperly excluded at the hear-

ing before the department. Moreover, any person

affected by a final order of the appeals board, may,

under Business and Professions Code section 23090,

apply to the Court of Appeal or the Supreme Court

for a Writ of review of said final order within

thirty days after the filing of said final order.

Under Business and Professions Code section 23090.7,

no decision of the department which has been appea-

led to the board and no final order of the board

shall become effective during the period in which

a petition may be made for such aWrit of Review;

14

and, under Business and Professions Code section

23090.6, the court before which the Petition for

Writ of Review is filed may stay or suspend, in

whole or in part, the operation of the order,

rule, or decision of the department.

Appellant's contention that Article xX,

section 22 of the California Constitution has been

violated by a change in the law which removes

the right for judicial review of appeals board

decisions in all cases, is devoid of merit. The

subject Constitutional provision states: "Orders

of the board shall be subject to judicial review

upon petition of the director or any party

aggrieved by such order." (emphasis added.) It

does not state: "Orders shall be reviewed."

Since the appellant has the ability to appeal the

board's decision to the courts of appeal of the

State of California under Business and Professions

Code section 23090, with the concamitant right

to have the decision stayed upon said appeal, the

provision in Article xX, section 22 has been

appropriately provided for by statutory law.

15

(Also see: Francisco Enterprises, Inc., v. Kirby,

482 F.2d 481, which concludes that the department

is a state court of limited jurisdiction.)

Appellant's contention that the penalty

of revocation lies beyond the legal boundaries of

the department's regulatory discretion under these

facts, is devoid of merit. Many of the previous

violations of appellant have become final. Walsh

v. Kirby, 13 Cal.3d 95, cited by appellant, indica-

tes that in a fair trade matter the department must

serve an accusation on a licensee prior to the date

of a subsequent violation, in order to be permitted

to file a subsequent accusation based upon said

subsequent violation; no final decision is required

before the subsequent accusation can be filed,

however. Walsh does not concern situations,

such as this, involving an habitual violator. The

department is given broad discretion as to the im-

position of a penalty (Cadilla v. Bd. of Medical

Examiners, 26 Cal.App.3d 961; Lake v. Civil Service

Commission, 47 Cal.App.3d 224). Since the record

demonstrates appellant is an habitual offender as

to the rule involved and unwilling to conform

16

(Dave's Market, Inc. v. Dept. of Alcoholic Bev.

Control, 222 Cal.App.2d 671 [35 Cal. Rptr. 348]),

we cannot say imposition of the penalty of revoca-

tion in this case constitutes an abuse of discre-

tion as a matter of law. (See Martin v. Alcoholic

Bev. Control Appeals Bd. & Haley, 52 Cal.2d 287

[34] P.2d 296].) As discussed, apes, this deci-

sion of the department, is "subject to" judicial

review.

There is no merit to the issues raised

upon appeal. The evidence supports the find-

ings, and the findings support the department's

decision, which is affirmed.

PETER M. FINNEGAN, CHAIRMAN

ALCOHOLIC BEVERAGE CONTROL

APPEALS BOARD

We Concur:

Patricia Wilkey

Eugene V. Lipp

17

AFFIDAVIT

STATE OF CALIFORNIA )

COUNTY OF LOS —€

I, ANDREA F. JACKSON, depose and say:

That I re-typed the Opinion of the

Alcoholic Beverage Control Appeals Board, which

is attached hereto as Appendix "7." to the Petition

for Writ of Certiorari, from a true and correct

copy thereof; that I certify that this is a true

and accurate reproduction of said Opinion.

- : 4

4 . “i

4 a4 ——

Le -7274h Ai l- we- > thei eoe

‘s ANDREA F. JACKSON

Subscribed and sworn to before me

this 25th day of August, 1977.

SL . (“\ ‘- 4a ac& |

Notary Rais in and for rt Gite

and State

iagnce~aie aoe.” eee

eet eee De

OF Fic TAL SE AL

ia: JSN'CE A. DAGGETT

NOTSRS PURLIC-CaLIFOR DA

/ LOS ANGELES COUNTY _

ms Seon Expires Jet. 3] 197

PROOF OF SERVICE BY MAIL

(1013, 1013a C.C.P. (2), 2015.5 (C.C.P.))

STATE OF CALIFORNIA )

COUNTY OF LOS mae

AFFIDAVIT OF SERVICE BY

MAIL BY ATTORNEY

I, JOSHUA KAPLAN, being first duly

sworn, say:

That I am and was at all times herein

mentioned, a citizen of the United States,

employed in the County aforesaid, and over

the age of eighteen years; I further say

that I am an active member of the State Bar

of California, a member of Hertzberg, Kaplan

& Koslow, attorneys of record in this case, |

and am not a party thereto.

My business address is 3550 Wilshire

Boulevard, Suite 1418, Los Angeles,

ee

California 90010.

That on August 25, 1977, I served the

within SUPPLEMENTAL APPENDIX TO PETITION

FOR WRIT OF CERTIORARI TO THE ALCOHOLIC

BEVERAGE CONTROL APPEALS BOARD OF THE STATE

OF CALIFORNIA on the interested parties in

said action by placing a true copy thereof

in a sealed envelope with postage thereon

fully prepaid, in the United States mail at

3550 Wilshire Boulevard, Los Angeles,

California 90010 addressed as follows:

Attorney General Evelle J. Younger

Mel Segal, Deputy Attorney General

110 West “A" Street, Suite 600

San Diego, California 92i01

State Supreme Court

3580 Wilshire Boulevard

Los Angeles, California 90010

Court of Appeal,

Fourth \ppellate District

6010 State Building

1350 Front Street

San Diego, California 92101

/“JOSHUA KAPLAN

Subscribed and sworn to before

me this 25th day of August, 1977.

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Notary Public in “aid for said

County and State , i \

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