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Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Board

6/30/1981

COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT


Civ. No. 20086


1981.CA.40527 ; 175 Cal. Rptr. 342; 122 Cal. App. 3d 549


June 30, 1981


DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, PETITIONER,
v.
ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD, RESPONDENT; ROBERT E. HUTCHINS ET AL., REAL PARTIES IN INTEREST


George Deukmejian, Attorney General, Richard D. Martland, Assistant Attorney General, and Susan P. Underwood, Deputy Attorney General, for Petitioner.


William B. Eley for Respondent.


John M. Fredenburg and Peter J. Sailors for Real Parties in Interest.


Opinion by Blease, J., with Paras, Acting P. J., and Perluss, J., concurring.


Blease


The Department of Alcoholic Beverage Control (department) seeks review of an order of respondent Alcoholic Beverage Control Appeals Board (board) reversing a decision of the department which denied an application by real parties for issuance of an on-sale beer and wine license. (Bus. & Prof. Code, § 23090.)


In 1979 real parties applied for an on sale beer and wine license for the Marmalade Max Disco, in Roseville, California. The department denied the license on the ground that it "would create a law enforcement problem for the Police Department of Roseville." (Bus. & Prof. Code, § 23958.) The board rejected the department's determination as unsupported by the findings and the findings as unsupported by substantial evidence (Cal. Const., art. XX, § 22, para. 7; Bus. & Prof. Code, § 23084, subds. (c), (d)), but affirmed the denial on an alternative ground (zoning restrictions). The department petitioned this court for a writ of review, which we granted. Real parties have since obtained zoning approval and (upon our rejection of the department's motion for a stay) have been granted an on-sale beer and wine license for their establishment. We affirm the decision of the board.


Facts


The Marmalade Max Disco is located near the city limits of Roseville in an area described by police witnesses as remote. Its remoteness, coupled with an increase in city population without a corresponding increase in police officers, they said, resulted in infrequency of police patroling and a longer response time to calls for help.


Sergeant Richard Fancher, supervisor of the late-night patrol shift, estimated that the average response time to the establishment was 10 to


15 minutes, though it depended on where the patrol car was when it received a call, and it might be as long as 20 minutes. Officer Frederick Rockholm testified that, on the three occasions he was called to the Marmalade Max Disco, his response time had varied (according to where he was when he received the call) from 5 or 10 minutes to 10 or 15 minutes. Officer William Hughes of the police department's administrative division testified that, during a recent period, the average police response time, city-wide, was 13.92 minutes.


The department found on the basis of this evidence that real parties' establishment was "remote" and the police department's manpower "limited," and that, as a result, response time to the establishment was "slow."


It was not seriously disputed, and the department accordingly found, that "some police problems" had occurred at the M

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