# Appendix — Richter v. Rice

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2436%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 904

## Text

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.

~
\

\ oS mee aa

%, 4 : ' ow
- 4; vee. © AL. ‘ Ys Nort < .
Notary Public in “aid for said
County and State , i \

ee wo ele tt a Cee
os - *). ‘ EY ‘ AL SE, AL.
y }< my JANICE A. DACCEIT
_“ 48% KOTAPY CURLIC-cauIpe nya
° ‘ feed LCOS ANG VELES COUNTY
- My Corn ssionEaperes Oct. 21.1377
SOLO OOOO

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2436%3A3. Public record. Not legal advice.