The Alcoholic Beverage Control Appeals Board (Board) reversed a decision of the Department of Alcoholic Beverage Control (Department) which suspended an on-sale general license for 30 days.
Department filed a petition for writ of mandate seeking
On January 22, 1963, an accusation in three counts was filed before Department, charging Licensee with violating title 4, section 143,
At a hearing held on the accusation, the hearing officer found the charges to be true and recommended that Licensee's license be suspended for 10 days for each count, the suspensions to run consecutively. The Department adopted the hearing officer's decision. The Licensee appealed the decision to the Board.
On October 26, 1962, another special investigator went to Licensee's bar. He asked the same waitress if she cared for a drink. She ordered her drink from the bartender; said "he's paying for it"; and pointed to the investigator. The investigator then told her that any time she wanted a drink to let him know, whereupon she immediately held up her empty glass for the bartender to see. The bartender served her another drink.
LICENSEE'S RIGHT TO APPEAL
It was the choice of Department that the alternative writ of mandate was not directed to Licensee as well as to Board.
Code of Civil Procedure, section 938, provides in part: "Any party aggrieved may appeal in the cases prescribed in this title." Licensee is an aggrieved party seeking a remedy under Code of Civil Procedure, section 963, subdivision (1) and entitled to bring this appeal.
In Estate of Sloan, 222 Cal.App.2d 283, 292 [35 Cal.Rptr. 167], the court distinguishes all the cases cited in respondent's brief by saying: "These cases hold that in addition to
The test in this regard is whether the party seeking to appeal has an interest which appears on the record. (Estate of Levy, 4 Cal.2d 223 [48 P.2d 675].)
Licensee is named in the body of the petition for writ of mandate as a real party in interest. No doubt he would have been permitted to intervene. His right of appeal should not be cut off because he did not do voluntarily that which Department could have compelled him to do; that is, to show cause why the peremptory writ should not issue.
DID THE INVESTIGATORS ENTRAP LICENSEE'S EMPLOYEES?
Department contends that Board made a finding of fact when it determined that Department had instigated the offense which Board, an appellate body, is not entitled to do.
Department contends additionally that the issue of "instigation" or entrapment was not raised before Department and cannot be raised for the first time before Board. (Harris v. Alcoholic Beverage Control Appeals Board, 197 Cal.App.2d 182, 187 [17 Cal.Rptr. 167].) Had that issue been raised before Department, Department's findings would be construed to resolve the issue against Licensee. If based upon substantial
The language quoted from Board's decision makes it clear that Board considered the undisputed facts to show entrapment as a matter of law. On that theory Board could have considered the matter even though an affirmative defense on that ground had not been pleaded.
There is no evidence here of "tempting innocent persons into violations," or of an "originally well-intended defendant who is seduced into crime by persuasion and artifice" (People v. Benford, 53 Cal.2d 1, 8, 9 [345 P.2d 928]); or that the accused was induced by the officer to commit a crime which he would not otherwise have committed (People v. Sweeney, 55 Cal.2d 27, 49 [9 Cal.Rptr. 793]). The only persuasion apparent is that of appealing to a present inclination to accept an invitation if offered.
A similar claim of entrapment was made by a licensee and rejected by the court in United Liquors v. Department of Alcoholic Beverage Control, supra, 218 Cal.App.2d 450, where an enforcement agent sought and obtained an illegal discount in the purchase of liquor. Department cites also Harris v. Alcoholic Beverage Control Appeals Board, 197 Cal.App.2d 172 [17 Cal.Rptr. 315]; Mercurio v. Department of Alcoholic Beverage Control, 144 Cal.App.2d 626 [301 P.2d 474] (in which agents purchased drinks for waitresses); Endo v. State Board of Equalization, 143 Cal.App.2d 395 [300 P.2d 366]; Macfarlane v. Department of Alcoholic Beverage Control, 51 Cal.2d 84 [330 P.2d 769].
In those cases, actions by peace officers might be said to have cooperated with the unlawful conduct of an employee or licensee that resulted in suspension or revocation; in none of them was the claim made that there had been entrapment; nor was the question discussed.
Board contended in the trial court that there is a public policy against conduct such as that of the investigators in the present case; and in its decision it wrote: "This case presents a serious question of public policy insofar as the enforcement measures utilized are concerned."
The policy of Department as how best to enforce observance of its licensing regulations is for Department to decide. If such enforcement procedures should violate a recognized public policy, no doubt the departmental policy must yield. But public policy in this field will not be more exacting than it is in condemning entrapment as a basis for criminal prosecutions. The evidence before Department fell short of showing entrapment as a matter of law.
The judgment is affirmed.
Brown, P.J., and Coughlin, J., concurred.
"We returned approximately 11:30.... We took seats at the very south end of the bar, next to the wall.... Melba came over.... I asked her if her and Jerry would like a drink and she said that they would. And she ordered the drink from the bartender. The bartender served our drinks and Melba drank a portion of hers ..."
As to the October 26, 1962 incident: "We seated ourselves at the south end of the bar, and at this time I observed two white females standing also at the south end of the bar. I asked one, whom I later identified as Melba, how business was. She replied it was rotten. I asked her would she care for a drink. She called the bartender over immediately, ordered a screwdriver, pointed to me and said `he's paying for it.' I ordered a bourbon and water. The bartender brought the drinks over and took the money from me. She finished her drink quite rapidly. And I said any time you want a drink let me know, so she immediately held her glass up again where the bartender could see it, and at this time I observed the bartender mix the drink, using a bottle labeled vodka, from the well, and orange juice, which he brought over. Again he took money from me.