Petition for Writ of Certiorari — Probro, Inc. v. Department of Alcoholic Beverage Control of California

SUPREME COURT. UD, & 2 | APR 29

‘ : -IN THE

Supreme Court of the United tt a

October Term, 1967

: No. 43-7 3

Prosro, INnc., dbasLakewood Club, »

7 : | Petitioner,

2 VS. .

DEPARTMENT OF Atconotic BEVERAGE CONTROL OF

THE STATE OF CALIFORNIA,

Respondent.

‘Petition for Writ of Certiorari to the Supreme

Court of the State of California.

E..is J. Horvitz,

SAMUEL GOLDFARB and

BERNARD A. MINKow,

15720 Ventura Boulevard,

Encino, Calif. 91316, |

Counsel for Petitioner. -

_ Parker & Son, Inc., Law Printers, Los Angeles. Phone MA. 6-9171.

SUBJECT INDEX.

~ Opinion Below .?....2....4....... 1

Jurisdiction’ ........... Sieniee crnaee aed ~

Statement of Questions Presented ........ eee

Statutory Provisions Involved . | P 3

Statement of the Case 4

Reasons Reliéd on for Allowance of Writ ........... = 9

I.

The Department of Alcoholic Beverage Control of

the State of California Has Acted Arbitrarily

to Deprive Petitioner of His Right to Operate

a Liquor Establishment for Which It Has Been

Licensed Without Due Process of Law ............ 9

II.

~The Department si Alcoholic ie Control

of the State of. California Is Denying Peti-

tioner Equal Protection Under the Laws by

Proceeding With This Suspension When Other

Cases in the State of California Have Found

the Employment of .“Topiess” Waitresses Not

to Be Contrary to: Public Welfare and Morals .. 12

ie

_ The Department of Alcohiic Beverage Control of

_the State of California Has Acted as a Censor

- in That Itself Alone Has Determined the Em- .

ployment. of “Topless” Waitresses Is Wrong.

and Is Grounds for Penalty dcivututdeihhaabieliaaina , oe

Conclusion , 14.

ii.

°

INDEX TO APPENDICES,

| ; | _ Page

Appendix A. Proposed Decision ... . ~

Appendix B. Certificate of Decision ....... ne

Appendix C: Opinion ‘of the Alcoholic meverage 7

Control Appeals Board ..............-.-- ‘ 7

Appendix D. Decision’ of the Court of Appeal, .

Los Angeles, California, January 2, 1968 ............ 18

Appendix E. | Decision of the California Supreme

Court ie 19

_ Appendix F. Decision of the Court of Appeal. Los

Angeles, California, February 26, 1968 iunndesoaiiiadai 20

Appendix 6. Order ineiima = “

\.. Appendix H. Findings of Fact and Conclusions “

of Law .. pices Sol

Appendix I. ieeieik seth | secccee “24

- o :

TABLE OF AUTHORITIES CITED —

American’ Communication Association. Ve: Douds,

.339- Uz. S. 382. . ; A § |

‘Baggett v. Bullitt, 377 U. S. 360 ‘ . 11

Boreta Enterprises, -Inc. dba Off Broadway v. the

Department of Alcoholic: Beverage Control of the |

State of California, San Francisco Superior Court

Case No. 570°652 (1967) : 3, 12

Cantwell v. Connecticut, 310 U.S. 296 ee

Colbert v. New York, 87 S. Ct. 2092 - .u

Freedman v. Maryland, 380 U.S. 51 ns 14.

Giaccio v. Pennsylvania, 382 U.S. 399 11

Herndon v. Lowery, 301 U.S. 242 iaaree a

Katner v. California, 87 S. Ct. 2090 .. : ; . 11

Manual Enterprises, Inc? v. Day, 370 U.S. 478 ww 11 |

Mounce v. U.S., 355 U.S. 180 ..........: wees BS

Probro, Inc. v: Department of Alcoholic Beverage

_ Control of the State of California, Los Angeles |

Superiot Court Case No. 920.751 A See

3, 12, 13

. Schackman v. . California, 87. S. Ct. BE deistinniaiglinns 11

Smith v. California, 361 U.S. 147 .. 12

Sunshine Book Co. v. Summerfield, 355 U.S. 372 .. 11

Superior Films, Inc. v. — of Education,

346 U.S. 587. ; _ 14

| Winters v. New York, Ek a Se ‘12

7

Nie teat | > Page

California Business and. Professions Code, Sec,

24200: ee ‘ ii

California Stee po Professions Code, Sec. .

24200(a) aca eviienindy ay Oe

California Constivation, Art.. XX} Sec. > i APF 5, 10

California Government Code, Sec. 11517 ak: <a 5

United States Code, Title 28, Sec. VAY A&) a.

United States Constitution, First Amendment ua ae

United’ States Constitution, Fourteenth Amendment —

Roeacicauianiniean ; 2

_ United States Constitution, Twenty-First Amend- |

_ ment ............ ed sii me 13

IN THE |

Supreme Court of the United | States,

October Tenm, - ‘1967 :

No: .=<...... *

Prosro, INnc., dba Lakewood Club,

G. 4 ' Petitioner, .

VS. .

DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL OF

THE STATE OF CALIFORNIA, |

- Respondent.

‘Petition for Writ of Certiorari to the Supreme

Court of the State of California.

_. Probro, Inc., a corporation, respectfully prays that a

Writ of Certiorari be issued“to review the final judg-

ment of the Supreme Court of California entered in

the above matter on January 31, 1968.

Opinion Below.

‘The Decision of the California Court - of Appeal,

Second District; Division I, is printed as Appendix D

- hereto.

Jurisdiction. , }

The order of the California Supreme Court denying

petition for Hearing was entered on January 31, 1968.

' The jurisdiction of this court is invoked under 28

U. S.C. 1257(3).

: =

Sastiiiane of Questions Presented.

Is the California Constitution, Article XX, citi F

22 and California Business and Professions Code, Sec-

tion 24200(a) unconstitutional and violative of the due

process clause of the. Fourteenth Amendment of the

United States Constitution because they are vague and

uncertain in that (a) they dgp not give the liquor .li-

censee ahy notice of the kind of conduct that is or is

not contrary to. public. welfare and morals; and (b)

the standard under the Constitution and the statute is ..

ever varying and changing with ‘fluctuations of. moral

- sentiments ? 3

Is the Department of Alcoholic Beverage Come of

the State of California, an administrative agency, violat-

ing the due’ process clause of the Fourteenth Amend-

ment to the United States Constittition when it acts to

suspend the liquor license of a‘licensee when it has pro-

mulgated no standards, rules or regulations to apprise

and give notice to the liquor licensee that the conduct

~ for which the licensee has been accused is conduct viola-

tive of state law, but rather the Department has relied

solely for its action upon the standard that the conduct

is “contrary to public welfare and morals”?

Is the Department of Alcoholic Beverage Control of

the State of California violating the due process clause

of the Fourteenth Amendment..to the United States

‘Constitution when it acts to suspend the liquor license

of a licensee by determining for itself that the conduct

_

alias |

is subject to disciplinary action in that such conduct is

contrary to public welfare and morals without a.y evi-

_ dentiary showing to the trier of fact, how, why, or in

what mariner, the conduct complained of is contrary to

" public welfare and morals?

Is the Department of Alcoholic Beverage Control of

the State of California denying Petitioner equal protec-

tion under the law in suspending the liquor license of a

licensee for conduct alleged to be subject to disciplinary

action by the Department when that same conduct has

been held in cases in the state courts of California’

. to be non-violative of state law? :

Has the Department of Alcoholic Beverage Control of

the State of California acted as a censor in that it has

assumed that it has knowledge and expertise’ to de-

termine whether or not the conduct complained of is to

be prohibited?

Statutory Provisions Involved...

Article XX, Section 22, California Constitution,

“The Department of Alcoholic Beverage Control

shall have the exclusive power, except as herein

provided and in accordance with laws enacted by

the Legislature, to license the manufacture, impor-

tation and sale of alcoholic beverages in this State,

and to collect license fees or occupation taxes on

_ account thereof. The department shall have the

coe

- 1Boreta Enterprices, Inc. dba Off Broadway v. the biccttacs

of Alcoholic Beverage Control of the State of California, San

Francisco Superior Court Case No. 570 652 (1967) ; Probro, Inc.

v. Department of Alcoholic Beverage Control of the State of

‘ aaa Los Angeles Superior Court Case No. 920 751 Oy).

oe

—_ a

‘power, in its discretion,: to deny, suspend or re-

voke any specific alcoholic beverages license if it

Shall determine for good cause that the granting

or continuance of ‘such license would be contrary

to public welfare or morals, or that a person seek-

., ing or holding a license has violated any law prohib-

iting conduct involving moral turpitude. It shall

- be unlawful for any person other than a licensee

- of said department to manufacture, import or sell

alcoholic beverages in this State.”

~ . Section 24200, Business and Professions Code,

“Grounds. The following are the grounds which

constitute a basis for the suspension or the revoca-

‘tion of licenses:

(a) When the continuance of a license wie be

contrary to public welfare or morals; but proceed-'

ings under this section upon this ground are not a

_ limitation upon the department’s authority to pro-

| ceed under Article XX, Section 22, of the Con-

stitution.”

Statement of the Case.

Petitioner is a corporation duly organized and exist-

ing under and by virtue of the laws of the State of

California. Petitioner applied for an on-sale beer li-

cense for the subject premises from the Department of

Alcoholic Beverage Control and was granted a license

on March-11, 1966. On May 6, 1966, the Department

of Alcoholic Beverage Control issued an accusation

against Petitioner alleging that Petitioner’s employment

of “topless” waitresses was conduct corttrary to public

a

_

welfare and morals and thus violative of ‘Article XX,

Section 22 of the California Constitution and Section

24200(a) of the California Business and Professions

Code. Upon a hearing before a Hearing Officer the

Officer issued a decision in favor of Petitioner, stating

that no cause of action existed against Petitioner ands *

thus dismissed the accusation. The Department, under

its authority granted by California Government Code

Section 11517 refused to accept the Hearing Officer’s

decision and issued a decision finding that Petitioner’s

employment of “topless” waitresses was contrary to pub-

— lic welfare and morals and ordered that the license be .

suspended for 45 days with 15 days stayed under cer-

‘tain conditions. The Department’s decision was then

- appealed to the Alcoholic Beverage Control Appeals

Board. The Appeals Board issued a decision upholding

the Department. A petition for writ of mandate was

‘then filed in the Los Angeles Superior Court.on No-

vember 2,. 1967, Los — Superior Court Case No.

920 751.

On November 30, 1966, prior ‘to a decision by the

Alcoholic Beverage Control Appeals Board on the ac-

cusation against Petitioner, the Department of Alco-

holic Beverage Control issued another. accusation

against Petitioner,- again alleging that the employment

of “topless” waitresses was conduct contrary to public _.

welfare and morals and violative of the California Con-

,stitution and California Business and Professions Code.

(A Hearing was held before a ss Officer. This

Hearing Officer issued a decision upholding the ac-

cusation and ordering Petitioner’s license to be stis-

pended for 30 days. The Department of Alcoholic

Beverage Control adopted the Hearing Officer’s de-

cision. An appeal of the Department’s decision was

taken to the Alcoholic Beverage Control Appeals Board

and the Appeals Board — the Department’s. de-

cision.

On November 8, 1967, said to the California

Business and Professions Code went into. effect which —

provided that judicial review of the decisions of the De-

partment of Alcoholic Beverage Control and the. Al-:

coholic Beverage Control Appeals Board would be heard

before the California Courts of Appeal or the Cali-

fornia Supreme Court, whereas prior to that time,

judicial review of such decisions were heard before the

Superior Courts of the State. By reason of the statu-

tory amendments, the petition for writ of mandate in

the second topless accusation was filed with the Cali-

fornia Court of Appeal, Second District. Said petition

was filed on December 1, 1967. Therefore, due to the

aforementioned statutory amendment, the latter accusa-

tion, which is referred to herein as the “second ‘accusa-

tion” was placed: procedurally ahead of the earlier ac-

cusation. It is the second accusation that is the subject.

for this Petition for Writ of Certiorari. a oo

The petition for writ of mandate before the Court of

Appeal was denied on January 2, 1968. A petition,

for hearing before the California Supreme Court was

_ denied on January 31, 1968. :

waillies

On February 5, 1968, a hearing on the petition for

‘writ of mandate in the first accusation was’ held in the

Ios Angeles Superior Court. The judge found that the |

Department’s finding that the employment of “top-

less” waitresses is contrary to public welfare and morals

was not supported by substantial evidence. The judge

thus issued a decision setting aside the Department’s

decision and remanded the proceeding to the Depart-

ment for further hearing on the issue of whether or

not the employment of topless waitresses is contrary to

public welfare and morals.

In both accusations, Petitioner’s attorney stipulated

with the attorney for the Department of Alcoholic

‘Beverage Control that the facts alleged in the accusa--

tions were true, i.e., that Petitioner did, on the dates :

- specified, employ “topless” waitresses. -No other evi-

dence was introduced by either party at either hearing.

The Department’s decisions in the absence of any evi-

dence showing how. the conduct was contrary to p

! "was erroneous.

There is a case now befor

—8—

liquor licensee and set aside the decision of the Depart-

ment of Alcoholic Beverage Control. The judge held

' that the employment of “topless” waitresses was not con-

trary to public welfare and morals and was not grounds

for the suspension or revocation of a license.

After’ receiving the decision of the Los Angeles Su-

perior Court, Petitioner filed a petition for stay otder

with the California Court of Appeal, Second District,

asking that the administrative order of the Department

of Alcoholic Beverage Control be stayed until either 5. \

decision ori the first accusation became final or until

the United States Supreme Court had acted upon Peti-

tioner’s Writ of Certiorari, whichever occurred later.

The Court of Appeal denied the petition on ‘February =)

27, 1968. |

Petitioner duly raised the federal questions presented

here at the original hearing [R. T. pp. 1,.2 and 3], be-

fore the Alcoholic Beverage Control Appeals Board, and

. in the California Court of Appeal, and i in the California

Supréme Court by its pleadings. |

On February 28, 1968, petitioner filed an application

for stay of administrative decision of the Department

of Alcoholic Beverage Control of the State of California

with this Court. On March 5, 1968, Associate Justice

William O. Douglas of this court issued an order stay-

ing the administrative order of the Department of

Alcoholic Beverage Control of the State of California

pending the timely filing of a petition for Writ of Cer-

tiorari and this Court’s action on the said petition.

REASONS" RELIED ON FOR ALLOWANCE

3 _. OF WRIT.

. I.

The Department of Alcoholic Beverage Control of .

_ the State of California Has Acted Arbitrarily’ to .

Deprive Petitioner of His Right to Operate a.

Liquor: Establishment for Which It Has Been

Licensed Without Due Process of Law. |

The- Department of Alcoholic Beveragé Control’ of

the State of California, an administrative agency of. the

State, has ordered a suspension of Petitioner’s on-sale -

beer license for a period of 30 days without establishing

that Petitioner has. violated any rule or regulation of

the Department or statute of the State’ of California.

In fact, the Department of Alcoholic Beverage -Con- .

‘trol had not promulgated or established any -rules, -_

regulations or standards, nor had the State of California:

any statute which apprised the Petitioner that the em-

ployment of topless waitresses is a violation subject’ to

disciplinary action. Therefore, Petitioner had no set of

standards, rules or regulations: to apprise it whether or

not the employment by it of. topless waitresses was in

violation of any rule or regulations of, the Department

of Alcoholic Beverage Control or statute of the State a

of California.

It must be assumed that the Cinpeioiaie of Alcohol- :

ic Beverage Control has taken it upon itself to set up a

standard without giving notice of such standard to li-

censees that the: employment of “topless” waitresses in

and of itself is action contrary to public. welfare and

morals and thus i is grounds for suspension or revoca-

tion of a license. The standard is arbitrary and un-

reasonable and is an abuse of the Department’s discre-

/ —10—

tionary powers. The Department of Alcoholic Bever-

age Control clearly does .not have the expertise to make

this determination; it is a determination that must be

_ made by the courts or by the legislature. There has

been no legislative action nor definitive court decision

on the issue at the present time. The Department thus

has gone beyond the limits of its authority and has

abused its discretion in declaring the employment of -

“topless” waitresses to be contrary to public welfare

and morals. By so acting in suspending Petitioner’s

license, the Department has deprived Petitioner of.a

valuable property right without due process of law.

_ Besides the fact that there were no rules, regulations

or standards to apprise Petitioner that such conduct

would be considered violative of the Statutes of the

State of California by the Department of Alcoholic

Beverage Control, the Department of Alcoholic Bever-

age Control produced no evidence whatsoever to show

how or in what manner the employment of “topless”

waitresses is violative of any statute or regulation; 1.e.,

conduct contrary to public welfare and morals. In the

- absence of some evidence, the Department of Alcoholic

- Beverage’ Control of the State of California cannot

‘suspend Petitioner’s license, and to.do so is denying

Petitioner its right of due process-of law.:

The Department of Alcoholic Beverage Control has

relied upon California Constitution Article XX, Section

22, and California Business and Professions Code, Sec-

tion 24200 (a) which gives the Department authority

to suspend or revoke a license for conduct “contrary to

public welfare and morals.” Such provisions are vague

‘and uncertain in that the licensee is given no notice of

what conduct would be considered to be violative of the

oe |

state law; the standard set up by the statute and con-

stitutional section in question is, at best, an ever-vary-

= ing-changing standard, Slactunting with the changes of

_moral sentiment. ;

This Court has on innumerable occasions held a state _

statute void as violating the due process clause of the

_, °. Fourteenth Amendment in that the language. of

a ae as statute was so vague and standardless that it left.

public uncertain as to the conduct it prohibited. .

See: ; »

Giaccio v. Pennsylvania, 382 U.S. 399;

Baggett v. Bullitt, 377 U.S. 360;

American Communication Association v. Douds,

339 U.S. 382. |

This Court has found. that photographic nudes as

well as nude paintings come within the broad guarantees _

of the First Amendment.

“Sunshine Book Co. v. Summerfield, 355 US.

(372;

Mounce v. U.S., 355 USS. 180;

Manual Enterprises, Inc. v. Day, 370 U.S. 478.

_ This court has also found that “girlie. pictures” in

coin operated peepshows are not obscene and thus pro-

_ tected:under the First Amendment. ’

Schackman v. California, 87 S. Ct. 2107;

Katner v. California, 87 S. Ct. 2090;

Colbert v. New. York, 87 S. Ct. 2092.

a

-

—12—

_ This ‘court has also insisted upon strict standards

_ relative to vagueness in the area of free expression and

_ the. statutes involved in this case are too vague to be

permissible.

' Smith v. California, 361 U.S. 147;

Winters v. New York, 333 U.S. 507;

Herndon v. Lowery, 301 U.S. 242;

Cantwell v. Connecticut, 310 U.S. 296.

II.

The Department of Alcoholic Scie Control of

the State of California Is Denying Petitioner

_ Equal Protection Under the Laws by Proceed-

ing With This Suspension When Other Cases in

the State of California Have Found the Employ- |

- ment of “Topless” Waitresses Not to Be Con-

trary to Public Welfare and Morals.

‘The Department of Alcoholic Beverage Control is .

acting to suspend the Petitioner’s on-sale’ beer license

_ for 30 days with full knowledge that there has been no

definitive final decision by the California Supreme

Court on whether or not the employment of “topless”

waitresses is action sanctionable by the ‘Department.

‘ There have been two court decisions known to Peti-

‘tioner in the State of California (there may be other

court cases decided in favor of licensees) on exactly-

the same issue as this case that hold that such conduct

is not sanctionable, thus permitting licensees to remain

open. Boreta Enterprises, Inc. dba Off Broadway

v..the Department. of Alcoholic Beverage Control of

the State of Cahfornia, San Francisco Superior Court

Case No. 570 652 (1967); Probro, Inc..v. Department

of Alcoholic Beverage Control of the State of Cali-

—

=

_ fornia, Los Angeles Superior Court Case No. 920 751

Co (1968). In fact, one of these cases involves Petitioner

a itself. Thus there is a disparity. of decision through-

’ out the State of California on the this issue. Some

court decisions have allowed licensees employing “top-

| less” waitresses to. remain open and the other decisions

- : have ordered a license suspended for the employment of '

! “topless” waitresses. Thus at the present time in the

State of California, there exists-an unequal application

of the law by the Department of Alcoholic’ Beverage

Control, a statewide agency, in that some establish-

_ ments are allowed to remain open while others are closed

although all of these establishments were permitting

‘the same conduct. Until there has been a final decision

by the. highest court in the state, the Departmént of -

. Alcoholic Beverage Control,~by suspending Petitioner’s ..

license, is denying Petitioner equal protection under the

Jaw. | ; | eu ;

Bt ees aA Il }

The Department of Alcoholic Beverage Control of

| the State of California Has Acted as a Censor

in That Itself Alone Has Determined the Em-

a ployment of “Topless” Waitresses Is Wrong

and Is Grounds for Penalty. _ |

The: Department of Alcoholic Beverage Control jis _

alone determining whether the actions of Petitioner are |

to, be sanctioned without any standards or rules or regu-

. lations set forth by which to independently judge

whether the conduct of Petitioner is in fact violative

. of any statutes. The Department of Alcoholic Bever-

age Control is clearly preseribing semi-nudity as wrong _

in and of itself. While the Department’s power is to

regulate the sale of alcoholic : beverages, neither the

ea At irst Amendment to the United States Con-

' q

;

nein

stitution nor the constitutional laws of the State of

California empower the Department to act as a censor

or to constitute it to be a critic of art; nor is there basis

for the Department expanding its authority to regu-

late the attire of waitresses without any showing of a

“wrong” or “evil” to be cured. | |

What the Department of Alcoholic Beverage Control

has done amounts to prior restraint. It alone has seen

fit to determine that the employment of “topless”: wait-

' Tesses is wrong and is grounds for suspension or revoca-

tion of a liquor license.

This court has eeu prior restraints to be v uncon-

. ‘stitutional.

See: . | ew |

Freedman v. Maryland, 380 U.S. 51;

‘Superior Films, Inc. v. Department of Educa-

tion, 346 U.S. 587. |

™

| Conclusion. —

For the foregoing reasons this Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

Extis J. Horvitz, r

SAMUEL GOLDFARB and

BERNARD A. MINKow,

=~” Counsel for Petitioner.

: €

Ae a NM