Petition for Writ of Certiorari — Grimes v. Department of Alcoholic Beverage Control

. wae 3097

si i) i7a Ta, ¥ wt a Fy 7

IN THE

SUPREME COURT OF THE

UNITED STATES

October Term, 1971

iNo< -

-

EDWARD GRIMES,

Petitioner,

We |

THE DEPARTMENT. OF ALCOHOLIC ~°

BEVERAGE CONTROL OF THE

STATE OF CALIFORNIA AND THE

-ALCOHOLIC BEVERAGE CONTROL

APPEALS BOARD OF THE whine

OF atrenaichcaiatnt aah as

Respondents.

PETITION FOR WRIT. OF CERTIORARI

TO THE ‘COURT OF APPEAL OF: THE

STATE OF CALIFORNIA

McCPHERSON BERRIEN E. MOORE,

KENNETH SCHOLTZ:

1515 Redondo Beach Blvd. ':

Gardena, Calif. 90247.

(213) 327-3815

770-1515

Attorneys for Plaintiff.

IN THE

SUPREME COURT OF THE

UNITED STATES

October Term, 1971

' No.-

EDWARD GRIMES,

Petitioner,

WE oe :

THE DEPARTMENT OF ALCOHOLIC

BEVERAGE CONTROL OF THE

STATE OF CALIFORNIA AND THE

ALCOHOLIC BEVERAGE CONTROL

APPEALS BOARD OF THE STATE

OF CALIFORNIA,

‘Respondents.

PETITION FOR WRIT OF CERTIORARI °

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

McPHERSON BERRIEN E. MOORE, ©

KENNETH SCHOLTZ :

-1515 Redondo Beach Blvd..

Gardena, Calif. 90247 7

(213) 327-1515

. 770-1515

Attorneys for Plaintiff

s . » TOPICAL INDEX

Table of Authorities

OPINIONS BELOW |

JURISDICTION

QUESTIONS

STATUTORY PROVISIONS

INVOLVED

STATEMENT OF THE CASE

‘REASONS RELIED ON FOR —

ALLOWANCE FOR WRIT

I ‘SECTION 288a OF THE

CALIFORNIA PENAL CODE IS

UNCONSTITUTIONAL AND MAY

NOT BE THE* BASIS’ FOR

REVOCATION OF AN ALCOHOLIC

"BEVERAGE LICENSE

ae I CONCLUSION -

navies A - DECISION OF THE

DEPARTMENT OF

ALCOHOLIC BEVER-

AGE CONTROL

APPENDIX B - DECISION OF THE

7 ALCOHOLIC BEVER-

Ao

‘AGE CONTROL APPEALS: .

BOARD é

APPENDIX C -:-ORDER OF THE COURT

OF APPEALS .

APPENDIX D - SUPREME COURT OF

CALIFORNIA PETITION '

FOR WRIT OF REHEAR-

“ING DENIED

7 &

TABLE OF AUTHORITIES

Cases

Page

American Motorcycle

Association v. Davids: |

158 Nw2d 2 (Mich. APP BSR}. .-: 12°

Buchanan v. Batchelor: ae

208.F Supp. 729° (DC Tex, (13970) 9, 10

Everhardt v. City of New Orléans. . maa

208 So.2d 423 (La.Appl. 1968) 13,14

“Griswold v. Connecticut (1965):

|, eel U.S. 379,..85 $.ct. 1678

14 L.Ed.2d 510, : aria

People v. Butterwick (1968) |

258 Cal.App.2d 586 ef

65: Cal.Rotr. 765 =o

People v. Giani (1956)

145 Cal.App.2d -539 .

206 P.xG 612. . ears. 2

uit v. Hensel.

233 Cal.App.2d 834

43 Cal.Rptr. 865 . ee

People v. Hurd (1970)

5 Cal.App.3d 865 2 ae

Bo Cai.Rptr. Fis . % EL

People v. Ragsdale (1960)

177 Cal.App.2d 676 .

2°CalsRptr. 640 10, 11

ee

People v. Velous. (1969) »

fi Cal.2d 934

$0. Cai.Rptr. 354

People v. Roberts - (1967)

256 Cal.App.2d 488

64 Cal-sRptr. 70.

Robinson v. California

370 U.S. -660

ae ie Buchanan gh ig

ot Bit tees eet

| Peaad Code 5274,

| ' §288a os 2-8, 10, 12,

§24200(a) .

Goeosnene mae |

| 611506 (a).

28 U.S.C. §1257(3)

pA Be

Is ie

SUPREME COURT OF THE...

UNITED, STATES

October Term, 1971

_EDWARD GRIMES,

. Petitioner,

‘ ‘Ve 7 = . yay 4

- THE DEPARTMENT OF ALCOHOLIC

BEVERAGE CONTROL OF THE

STATE OF CALIFORNIA AND THE :

ALCOHOLIC BEVERAGE CONTROL’ °

APPEALS BOARD OF THE STATE -

..OF CALIFORNIA,

Respondents.

a —_—_——— _ ———

PETITION FOR WRIT OF CERTIORARI

TO THE COURT*OF APPEAL OF THE

a A STATE OF CALIFORNIA ‘

The Petitioner, EDWARD GRIMES, .

respectfully prays that a Writ of

Certiorari be issued to review the final

‘Sudgment of the Court of Appeal of the

State of California for the Second

Appellate District entered in the above

matter on January 6,-1972 ;

1 ._

OPINIONS BELOW

The written decision of the

"Department of Alcoholic Beverage Control .

revoking Petitioner's license set forth

in Apendix A. The opinion’of the

Alcoholic Beverage Control Appeals Board

affirming the suspension set forth in _

Appendix B. The order of the Court of

Appeal for the State of California,

Second Appellate District, denying the

Petition for Writ of Review as set forth

in Appendix C. The order of the Supreme

5 Court of the State of California denying

a hearing as set forth in Appendix D.

4

JURISDICTION

The jurisdiction of this court is

2nvoked under 28 U.S.C. §1257(3).

QUESTIONS PRESENTED

May the California Department of

Alcoholic Beverage Control constitution-

ally premise revocation of a license upon

a violation of §288a of the California

Penal Code which makes illegal any act of .

oral copulation?

‘STATUTORY PROVISIONS INVOLVED

Section 288a of.the California Penal

Code which provides in relevant part as

follows: ; | -. ;

"Any person participating

in an act of copulating the

mouth of one person with the

‘sexual organ of another is

punishable by imprisonment in

a state prison for not exceed-

ing fifteen years, or by impris-

onment in the county jail not to

exceed one year; provided, .-how-

ever, whenever any person is

‘found guilty of the offense

specified herein, and it is

charged and admitted or found

to be true...that he has com-

pelled the other's participation

/ in such an act by force, violence,

duress, menace, or threat of

great bodily harm, he shall be |

punished by imprisonment in the

state prison for not, less than

three years..."

STATEMENT OF THE CASE

~

_ Petitioner has been and now is the

holder of an on-sale beer license issued

by the California Department ‘of Alcoholic

Beverage Control (ABC) for-the premises

located. at 10809 South Vermont Avenue, —

Los Angeles, California. Said premises

are known as and dobusiness as The Circle.

On November 13, 1970 an accusation

was filed which alleged that Petitioner

had, on-or about October 8, 1970, suf- |

fered and permitted his licensed premises

to be used as a place wherein persons

engaged in conduct contrary to public

‘welfare or morals. Said accusations also

alleged that the conduct was in violation

of §288a of the California Penal

Code. The accusation was served upon

Petitioner on or about November 17,1970.

On December 24, 1970 Petitioner

duly filed a Notice of Defense and

Special Notice of Defense under §11506(a)

of the California Government Code.

On April 7, 1971 a hearing was held

on the accusation before Jerome Schwimmer,

a hearing officer of the California

office of Administrative Procedure duly

4.

appointed to hear the case. On April 9,

1971 the hearing officer rendered his

proposed decision to A.B.C. in which he

found that the matters set forth in the

accusation were true and that Petitioner |

_ had permitted ‘violations of §288a of the

Penal Code and §24200(a), of the Business ,

and Professions Code to occur on the

licensed premises. The proposed decision

recommended that Petitioner's license be |

revoked. On April 22, 1971 A.B.C. adopted

the proposed decision as its own.’

On May 18,:1971 Petitioner duly

filed a petition for. reconsideration with

“AcB.C. which was denied on May 24,. 1971.

. On May 28, 1971 Petitioner duly

filed a Notice of Appeal from the decision

of the A.B.C. to the Alcoholic Beverage

Control Appeals Board of the State of

California.

On December 3, 1971 the Appeals

Board issued its decision and opinion

affirming A.B.C.'s order revoking Peti-

tioner's license. . : t.

On December 31, 1971 Petitioner filed :

a Petition for Writ of Review with the

Je

Court of Appeal of the State of California

for the Second Appellate District. On

January 6, 1972 the Court of Appeal ‘issued

its order denying the - writ.

- On January 14, 1972 ic caloie filed

a Petition for Hearing to the Supreme

Court of the State of California. On

February 3, 1972 the Supreme Court issued

its order denying a-hearing in said case.

REASONS RELIED ON FOR

ALLOWANCE FOR WRIT

ee

SECTION 288a OF THE CALIFORNIA

PENAL CODE IS UNCONSTITUTIONAL

AND MAY NOT BE THE BASIS FOR ©

REVOCATION OF AN ALCOHOLIC

BEVERAGE LICENSE.

The findings of fact contained in.

the Department’ s decision was Supported |

.by substantial evidence. Those findings

ere as follows: Sy

"On or about October 8, 1970, ...

de- 2.6 « @ female entertainer,

Ruth Ann Richards, while

on a stage did lie in front |

6.

of a male patron, Ronald

Edgar Hill, and did permit.

said patron to copulate

his mouth with said a

entertainer's sexual organ.

2... . a female entertainer,

Linda Maxine Ward, while on

a stage did lie in front of

a male patron, Ronald Edgar

Hill} and did permit said

patron to copulate his :

mouth with said entertain-

er's sexual organ."

In its decision, the Department .

found that acts of oral copulation had

occurred at Petitioner's licensed prem-

ises between female entertainers and a

member of the audience. The decision

further found that said acts constituted)

violations of both §288a of the Penal’ .

Code and §24200(a) of the Business and

Professions Code. It is Petitioner's

contention that §288a of the Penal Code

is unconstitutional and that the Depart-_

ment's decision cannot stand since it is

based upon a finding of a violation

thereof. |

Section. 288a of the Penal Code

provides as foliows:

"Any person participating

“in an act of copulating the

mouth of one person with the

sexual organ of another is

punishable by imprisonment in

the state prison for not ex-

ceeding 15 years, or by

imprisonment in the county jail

‘not to exceed one year;

provided, however, whenever any..

person is found guilty of the

offense specified herein, and

it is charged and admitted or

found to’be true. . . that he

has compelled the other‘s >

participation in such an act by

force, violence, duress, menace,

' or threat of great bodily: harm,

he shall be punished by impris-

onment in the state prison for

not less than three years. . .'

Thus, 5" is clear from the face of

tthe statute that a violation of §288a can

be committed even though. there is-no

8.

threat or coercion and the persons are

acting voluntarily with respect to one

another. - Moreover, the statute denqunces

acts of oral copulation taking place in

. private as well as.win public. People v.

Butterwick, 258 Cal.App.2d 586, 65 Cal.

Rptr.' 765 (1968); People v..Hensel, 233

Cal.App.2d 834, 43 Cal.Rptr. 865. No.

particular intent is required to obtain

the conviction of persons engaging in

oral copulation. People v.-Giani, 145

Cal.App.2d 539, 302 P.2d 813 (1956).

_ ina recent’ case, a three- judge

District Court in the State of Texas

held unconstitutional the Texas sodomy

statute upon the ground that it did not

distinguish between public and private

acts or between acts of married and.

_ unmarried persons, and that it plainly

applied to private consensual acts of

married persons and homosexuals. The

court found that the Texas sodomy statute

was an unconstitutional invasion of

privacy under Griswold v. Connecticut,

381 U.S. 379, 85 S.Ct. 1678, IM

-L.Ed.2d 510 (1965) and that the statute —

was therefore void on its face.

Bucharan v. Batchelor, 308 F.Supp. 729

9.

(DC Tex. 1970); rev's on other grounds,

subnom. Wade.v..Buchanan, 91 S.Ct. 1221

(1971). The findings of the Texas three-

judge court in Buchanan v. Batchelor

apply equally to the California oral

copulation: statute, Penal Code §288a.. As

noted. above, §288a clearly applies to

: private consensual acts.

Although the California Appellate

Courts have rejected such’ arguments. to

date, none of the opinions involved have

addressed themselves to the problems in

any detail. The leading case at the

present time is People v. Ragsdale, 177

Cal.App.2d 676, 2 Cal.Rptr. 640 (1960).

Ragsdale was decided before Griswold.

It involved acts of oral copulation .

_ between prisoners in a state prison. In

upholding §288a against a claim that .the

‘statute violated due process as applied

to imprisoned persons, the court merely

stated: 7

", . .The making of unnatural

sexual relations a crime is

embedded in the history of —

the common law and finds its

sanction in the broader basis

10.

" of the ‘settled mores or

Western civilization'."

People v. Ragsdale, supra, 2

Cal.Rptr. at page 643.

owing the decisions in Griswold,

e-Suc. _2binson v. California, .370

a

U.8. 6/2, the attack was again raised in.

People v. Roberts, 256 Cal.App.2d 488,

“64 Cal.Rptr. 70 (1967). In Roberts, the

court again upheld the constitutionality

of §288a based on Ragsdale. The court

rejected the applicability of Griswold

and Robinson without argument. |

Finally, in People v. Hurd, 5 Cal.

App.3d 865, 85 Cal.Rptr. 718 (1970), the

court rejected a general attack on the

Constitutionality of the incest, sodomy

and oral copulation statutes in a case

in which the defendant was convicted of

such acts with his minor daughter. The

court relied on the Roberts and Ragsdale

decisions and did not analyze the issues.

In Griswold v. Connecticut, supra,

381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d°

510 (1965), the court overturned a

Statute which made it itlegal to use

iis

contraceptive devices upon the grounds

‘that such a statute invaded the sphere of

marital privacy. Griswold was followed

in People y. Velous, 71 Cal.2d 954, 80

Cal.Rptr.* 354° (1969), which held uncon-

stitutional former §274 of the Penal

Code, the abortion statute. The court's.

decision was based in the first instance

upon a holding that the exception per-

mitting an abortion to be performed ©

where necessary to preserve the- mother's

life was vague and uncertain. In so

holding, the court also held that a

narrow interpretation of the exception

‘sufficient to satisfy due process grounds

would invade the right of a pregnant

woman to determine whether or not she

wished to have children and identified

this as a privacy right. Similarly,

§288a of the Penal Code invades the

rights of all adults \in ‘California to

ascertain the form in which they will

have sexual relations.

A. second reason for the invalidity

of §288a of the Penal Code is that it

exceeds the police power of the state.

In American Motorcycle Association v.

12.

Davids, 158 NW2a-72 (Mich. App. 1968),

the Michigan court.held unconstitutional

a statute which required operators and

passengers of motorcycles to wear an

approved crash helmet. The court held

that the statute served no purpose other

than to protect the safety of those on —

motorcycles and that such a purpose was

“not within-the police power. The court

held that a valid statute was required

to have a substantial relationship with

the public health and safety and that

. the promotion: of. the private safety of

individuals would not justify such.

restrictions. A similar result was

reached by the Court of. Appeal in

Louisiana in Everhardt v. City of New

Orleans, 208 So.2d 423 (La. Appl. 1968).

In. stating the issue before it, the

court said, ;

ss “We think the most serious

issue. . . is whether the exer-

cise. of the police power vested

in a law making body extends to

forcing a citizen to ‘protect _

his own well-being, or whether

it is limited to regulation of

* Ade

individual conduct when that

conduct might effect the

well-being of other persons

in the community." Everhardt

Vv. City of New Orleans, supra,

208 So.2d at pages: 424-425.

In many potential applications,

§288a of the Penal Code does nothing more

_than make criminal the private moral |

choices of individuals, which choices

can have no possible bearing on the

rights, health, well-being or morals of

others. This being the case, the

_ Statute exceeds the boundaries of the

' police powers of the state and is uncon-

stitutional..

-Since the Department's decision is

based ‘in part upon a finding that a

violation of §288a4 occurred, the deci-

sion should be reversed and remanded

' to the Department for further consider-

ation.

14.

Il

CONCLUSION

‘Por the reasons stated herein the

Petition for Writ of Certiorari-should

be granted. ~

Respectfully submitted,

McPHERSON BERRIEN E. MOORE

KENNETH SCHOLTZ |

Attorneys for Petitioner

15.

”~

°.

i

STATE OF CALIFORNIA

‘ DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL

IN THE MATTER OF THE

ACCUSATION

Against:

EDWARD GRIMES

The Circle

10809 S. Vermont Avenue.

Los Angeles

On-Sale Beer

Respondent

under the Alcoholic

Beverage Control

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sie

150 Folios

File. 30714

Reg. 11725

Licenses: 40

Time -of Hearing:

4-7-71 9:00 a.m.

Place of Hearing:

314 W. First St.,

L.A.

Reporter:

Bea Taft

OLA 25450

Appearances:

' For Dept:

Doris Jaffe,

Assoc. Counsel

For Resp:

‘Kenneth Scholtz

Attorney.

1515 Redondo

Beach Blvd.

Gardena, Calif.

90247

(Respondent. not

present)

I hereby certify that the following

constitutes my proposed decision in the

above-entitled matter aS a result of the

hearing held be*>re me at the above time

and place, after due notice thereof having

.

A-l.

been given according to law, and I hereby

recommend its adoption as the decision of

the Department of Alcoholic Beverage

Control.

PROPOSED’ DECISION

3

FINDINGS OF FACT:

COUNT I.

. On October 8, 1970, respondent-licensee,

by and through his agents, employees and

Servants, Ruth Ann Richards and Linda

Maxine Ward, did suffer and permit the

above-designated licensed premises to be

used. as a place wherein persons engaged in =

conduct and activity which did, create

conditions then and there contrary to public

welfare and morals, in that:

l. On said date, a female entertainer,

Ruth Ann Richards, while ona

Stage did lie in front of a male

: _ ‘patron, Ronald Edgar Hill, and did

:, permit Said patron to. copulate his

mouth with said entertainer's. |

sexual organ.

2. On Said date, a female entertainer,

Linda Maxine Ward, while on a stage

A-2.

did lie in front of a. male patron,

Ronald Edgar Hill, and did permit |

Said patron to copulate his mouth

with said entertainer's sexual

organ.

FINDINGS RE SPECIAL DEFENSE:

Each and all of the objections

raised by respondent in his special notice

of defense have been considered by the |

Hearing Officer and are hereby each and all

overruled. , |

DETERMINATION OF ISSUES PRESENTED:

Respondent. did permit violations of

“Section 288a of the Penal Code and Section

24200(a) of the Business and Professions

Code to occur on the licensed premises.

Grounds for the suspension or

revocation of respondent's license exist

pursuant to Sections 24200(a) and (b) of the

Business and Professions Code and Article XX,

“Section 22 of the California. Constitution.

| PENALTY OR RECOMMENDATION: |

The license is revoked.

Dated at Los Angeles, California,

April 9, 1971..

‘APPENDIX B

Filed

Dec 3 1971

Alcoholic Beverage

Control Appeals Board

BEFORE THE ALCOHOLIC BEVERAGE CONTROL. -

- APPEALS BOARD OF THE

STATE OF CALIFORNIA

In the Matter of the ) | AB-3681

Accusation against _ )File No. 30714; —

EDWARD GRIMES

dba The Circle oes Scuinhes

10809 S.Vermont Avenue’Time & Place of

Los Angeles ) Hearing: October 29,

)i971,at 10 a.m.”

Respondent & Licensee ) 314 West First Street

) Los Angeles, Calif.

under the Alcoholic )For Department:

Younger

Attorney General

Daniel Weston

Deputy Attorney

General

For Appellant:

Kenneth Scholtz,Esq.

This appeal concerns a decision of the

Department of Alcoholic Beverage Control

Ordering the revocation of appellant's on-

sale beer license for premises located at

10809 South Vermont Avenue, Los Angeles.

The department determined that appellant .

permitted violations of section 288a, Penal

.

B-l.

. Code (perversion, oral copulation), and

section 24200(a), Business and Professions

Code, to occur on the licensed premises.

Appellant's appeal is based upon the

following:

“(a) The Department has proceeded

without, and in excess of, its juris-

diction;

’

¢

"(b) The decision is not Sinninaceee

by the findings;

~"(c) That errors of law were made

by the Hearing Officer, as reflected by

the transcript of the proceedings;

"(d) The findings are not supported

by substantial evidence in the light of

the whole record.”

; The department's decision contains the

following:

“FINDINGS OF FACT:

“COUNT I

“On October 8, 1970, respondent-

licensee, by and through his agents,

employees and servants Ruth Ann Richards

and Linda Maxine Ward, did suffer and

B-2.

permit the above-designated licensed

premisés to be used as a place wherein

persons engaged in conduct and activity

which did, create conditions then and

there contrary to public weifare and

morals, in that:

"1. On said date, a female

entertainer, Ruth Ann Richards,

while on a stage die ‘lie in

front of a male patron, Ronald

Edgar Hill, and did permit

said patron to copulate his

mouth with said entertainer's

"2.

sexual organ.

On said date, a female

entertainer, Linda Maxine

Ward, while on a stage did

lie in front of a male patron,

Ronald Edgar Hill, and did

permit said patron to copulate

his mouth with said entér-

- tainer's ‘sexual organ.

"FINDINGS RE SPECIAL DEFFNSE:

"Each and all of the objections

raised by respondent in his special

‘motice of defense have been considered

*

B=31

by the Hearing Officer and are hereby

each and all overruled.

_ “Grounds for the suspension or

revocation of respondent's license

exist pursuant to Sections 24200 (a)

and (5B) of the Business and Professions

Code and Article XX, Section 22 of the

California Constitution."

At. the department ‘hearing held on April

'7, 1971, Deputy Sheriff Richard Zimbel

testified as to the following conversetion ~~

he had with two males:

"A I was talking to two Negro

men I met on Imperial Boulevard near

Central. We had a conversation about

the goings-on in. the area, and one of

the men said, ‘If you guys want to

eat some pussy on stage, come with

us." And Deputy Ward, who was with

me, stated, 'Where is it at?' He

said, ‘Follow us, if you're not chicken

shit." So we followed them to the

Circle Bar." : ,

(R.T. 2222-27.)

The deputy testified that he entered appel-

lant's premises at approximately 11:25 p.m.

B-4.

“ _ “

with the two male Negroes and Deputies Ward

and Holland. He described the premises

and the interior lighting; that the five

males paid $3 each to enter the premises;

that the payment was made to a doorman who

was subsequently identified as Mr. Winkie,

the manager of the premises; and that the

ticket given to them at the time they paid

the $3 was good for one beer. Deputy

Zimbel testified that there were approxim-

- ately seven male patrons in the premises

at the’ time he entered; he testified as

follows with respect to his observations

of the two entertainers named in the depart-

ment's accusation:

"Q Would you relate your observa-

tions of Ruth Ann Richards?

.

“A When I first came into the

location, she was seated on a chair

that was against what appeared to be

a wall with the stage. The music

started to play, and she started to

dance. She was wearing a pair of

white boots and a belt around her

middle. That was all she was wearing.

She started to bump and gyrate her

hips. The music played for approximately

. B-5.

a minute, and a patron, later identified

as Edgar Hill, put a dollar down in

front of him on the bar. “Miss Richards

picked up the dollar, put her legs down

- on the serving bar and started to gyrate

in front of Mr. Hill.

“She opened her legs onli he put

his head forward towards her vaginal

lips. He stuck his tongue out and put

his face forward and put his tongue |

in her vaginal area. Then he leaned

forward and put his face inside her

vaginal area for the coinpletion of

the record, at which time when the

record was completed, she got up.

There was a roll of towels on the

stage and she took a towel and wiped

her vaginal area and sat down again.

"9 Did you see Mr. Hill insert

his tongue in her vagina?

"A Yes, I did.

"9 How long did you see him in

that position?

‘"A Approximately two minutes.

"9 Did you hear any comments

B-6.

from other persons in the premises

during CRGS. ULEVESY?.

"2B ‘There was a man. seated to.

his left who was laughing and slapping ©

the bar, and he got up -- Mr. Hill

was wearing a little short-billed _

cap, and he walked over and he turned -

the cap around on the back of Mr. _

Hill's head... ."_ ea

cae | |

“A Miss Richards got up and

said, ‘Baby, eat it again." Mr. Hill

threw another dollar down on the bar,

and Miss Richards assumed the same

_ position in front of Mr. Hill, at

which time he had oral copulation

with her again to the complete record.

—"Q > About how long was that?

"A Almost three minutes. |

"Q Did you see where he put his

tongue during the second --

"A Yes. He placed it in between:

her -- in her vaginal area and he

inserted it into her vagina.

B-7.

"9 Then what did he do with his —

face?

"RK His face came forward, and

I couldn't see the front portion of

it. It was buried in her vaginal area."

(R.T. 5:14-28; 6:1-12; 7:6-17.)

As to the second incident involving Linda

Maxine Ward, he testified:

"A After the record, the second,

had completed, Miss Richards wiped .

herself again and left the stage and

Miss Ward tame up.

\Y " ‘

Q. What was she wearing?

"A She was wearing a belt around

the middle and a pair of black boots.

"“Q What did she-do?

. f

"A She started to dance and gyrate

to a record, and she gyrated her hips,

pushed her pelvic area forward, turned

over on her back, and her anus area

was moving to and fro, and she gyrated

that to a point where it opened.

Mr. Hill placed a dollar down and she

assumed the same position in front of

him as Miss Richards did.-

B-8.

"Q What happened when she

assumed that position?

"A He placed his tongue in her

vagina! area, pushed his face forward,

and he orally copulated her.

: "Q How long did you see him

doing this?

"A For the jest of the portion —

of that record; that would probably

be a minute and a half."

(R.T. 924-22.)

A rough sketch o& the premises showing

the location of the parties involved was

introduced into evidence. (Department

exhibit 1.)

In argument to this board, appellant

states that the question presented is whether

the department may premise revocation of the

license upon a violation of section 288a of

the Penal Code. It is appellant's contention

that such may not be done as section 288a,

Penal Code, is unconstitutional and may not

be the basis for revocation of an alcoholic

beverage license. We find no merit in

appellant's argument.

B-9.

In our opinion, the department's findings

‘are supported by substantial evidence and

the findings support the department's deci--

sion. (Boreta Enterprises, Inc. v. Dept. -

of Alcoholic Bev. Control (1970), 2 Cal.3d

85.)

In view of the foregoing, the decision

of the Department of Alcoholic Beverage

Control in the present proceeding is hereby

affirmed.

HUGH M. BURNS, CHAIRMAN

ALCOHOLIC BEVERAGE CONTROL

APPEALS BOARD

We Concur:

Eugene V. .Lipp

Kay Valory

Sacramento, California

November 26, 1971

B-10 .

2

STATE OF CALIFORNIA

DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL

CERTIFICATE OF DECISION

File 30714

Reg. 11725 -

It is hereby certified that a Hearing

- Officer of the Office of Administrative Pro-

cedure having submitted the attached proposed

deciSion, and the Department of Alcoholic

Beverage Control, having reviewed the find-

ings of fact, determination of issues and

recommended penalty, adopted said proposed_

decision as its decision in the case therein

described on April 22, 1971.

A representative of the Department will

call on you on or after June 10, 1971 to -

pick up the license certificate,

>

Sacramento, California |

‘Dated: April 22, 1971 ~—

/s/ Dorothy Pierson

Hearing and) Legal Unit

-ABC-132 (1-67) ~ :

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