                 TO BE PUBLISHED IN THE OFFICIAL REPORTS



                      OFFICE OF THE ATTORNEY GENERAL


                                State of California



                              JOHN K. VAN DE KAMP


                                 Attorney General



                            _________________________

                                          :


                OPINION                   :                No. 85-905


                                          :


                    of                    :              APRIL 7, 1987
                                          :


        JOHN K. VAN DE KAMP               :


           Attorney General               :


                                          :


        ANTHONY S. DA VIGO                :


        Deputy Attorney General           :


                                          :



________________________________________________________________________


         THE HONORABLE HERSCHEL ROSENTHAL, MEMBER OF THE
CALIFORNIA SENATE, has requested an opinion on the following question:

               Is the Department of Alcoholic Beverage Control authorized to revoke the
license of a private club on the basis of its discriminatory membership practices?

                                   CONCLUSION

             The Department of Alcoholic Beverage Control is authorized under the
California Constitution to revoke a private club license on the basis of discriminatory
membership practices upon an independent determination for good cause that the
continuance of such license would be contrary to public welfare or morals.




                                          1


                                                                                85-905


                                                     ANALYSIS



               The present inquiry is whether the Department of Alcoholic Beverage
Control ("department", post) is authorized to revoke the license of a private club on the
basis of its discriminatory membership practices. It is established that the issuance of
such a license does not in itself involve the state in such discriminatory practices as to
constitute a violation of the Equal Protection Clause of the Fourteenth Amendment of the
United States Constitution. (Moose Lodge No. 107 v. Irvis (1972) 407 U.S. 163, 171-
177.) Similarly, article I, section 7, subdivision (a) of the California Constitution applies
to state, not private action. (Garfinkle v. Superior Court (1978) 21 Cal.3d 268, 281-282;
and see Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 468-
469.) While the California Supreme Court's interpretation of the reach of the safeguards
of the state equal protection clause is not bound by the federal decisions analyzing the
state action requirement of the Fifth and Fourteenth Amendments, the latter decisions
will be carefully considered insofar as they are persuasive. (Id., at p. 469.) No state
appellate court has held that the issuance of a license per se constitutes such a significant
involvement with private conduct as to fall within the state constitutional proscription.
Hence, we reiterate our prior opinion that revocation of such a license is not compelled
under the state or federal constitutions. (Opn. No. IL 75-70 (1974) unpub.)

              There can be little doubt, however, that the state Legislature may provide
for the denial of a license to sell alcoholic beverages to a private club which engages in
discriminatory membership practices. (B.P.O.E. Lodge No. 2043 of Brunswick v.
Ingraham (Supr. Ct. Maine, 1972) 297 A.2d 607, app. dism. 410 U.S. 903.) The sole
question now presented is whether the state has so authorized the department. We initiate
the examination with article XX, section 22, of the California Constitution:

              ". . . . . . . . . . . . . . . . . . . . . . .

              "All alcoholic beverages may be bought, sold, served, consumed and
       otherwise disposed of in premises which shall be licensed as provided by
       the Legislature. In providing for the licensing of premises, the Legislature
       may provide for the issuance of, among other licenses, licenses for the
       following types of premises where the alcoholic beverages specified in the
       licenses may be sold and served for consumption upon the premises:

              ". . . . . . . . . . . . . . . . . . . . . . .

              "(d) Under such conditions as the Legislature may impose, for . . .
       bona fide clubs after such clubs have been lawfully operated for not less
       than one year.

                                                               2

                                                                                      85-905


                ". . . . . . . . . . . . . . . . . . . . . . .

                 "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, importation and sale
         of alcoholic beverages in this State, and to collect license fees or
         occupation taxes on account thereof. The department shall have the power,
         in its discretion, to deny, suspend or revoke any specific alcoholic beverage
         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 seeking or holding a license has violated any law prohibiting
         conduct involving moral turpitude.

                ". . . . . . . . . . . . . . . . . . . . . ." (Emphasis added.)

Under subdivision (d), the Legislature may provide for the issuance of a license to "bona
fide" clubs under such conditions as it may impose. Further, the department has the
exclusive power in accordance with the laws enacted by the Legislature to license the sale
of alcoholic beverages.

               We first examine those legislative enactments which pertain to
discriminatory practices of licensees including alcoholic beverage licensees. The
issuance of a license to clubs with discriminatory membership practices is a matter of
special legislative cognizance. Section 125.61 provides generally:

                 "Every person who holds a license under the provisions of this code
         is subject to disciplinary action under the disciplinary provisions of this
         code applicable to such person if, because of the applicant's race, color, sex,
         religion, ancestry, physical handicap, marital status, or national origin, he
         or she refuses to perform the licensed activity or aids or incites the refusal
         to perform such licensed activity by another licensee, or if, because of the
         applicant's race, color, sex, religion, ancestry, physical handicap, marital
         status, or national origin, he or she makes any discrimination, or restriction
         in the performance of the licensed activity. Nothing in this section shall be
         interpreted to apply to discrimination by employers with regard to
         employees or prospective employees, nor shall this section authorize action
         against any club license issued pursuant to Article 4 (commencing with
         Section 23425) of Chapter 3 of Division 9 because of discriminatory
         membership policy."

   1
       Undesignated section references herein are to the Business and Professions Code.

                                                                 3

                                                                                           85-905


             ". . . . . . . . . . . . . . . . . . . . . . .

             "'Applicant,' as used in this section means a person applying for
      licensed services provided by a person licensed under this code.

             ". . . . . . . . . . . . . . . . . . . . . ." (Emphases added.)

Clearly, violation of this section results whether the refusal "to perform the licensed
activity" on an equal basis occurs at the point of or following admission to the premises
(cf. Easebe Enterprises, Inc. v. Alc. Bev. Cont. App. Bd. (1983) 141 Cal.App.3d 981), and
provides a basis for license revocation (id., at p. 986; 60 Ops.Cal.Atty.Gen. 394 (1977)).
Thus, where club membership is restricted on the basis of race, color, sex, religion,
ancestry, physical handicap, marital status or national origin, and the sale of alcoholic
beverages is restricted to members and their guests, the club license is subject to
disciplinary action under section 125.6 unless the club is licensed under article 4.

             Of the numerous types or categories of licenses issued by the department,
many but not all of which are listed in section 23320, five pertain to clubs:

             1)        section 23320(30)(a) - certain nonprofit social or athletic clubs

             2)        section 23320.1 - certain other social or athletic clubs

             3)        section 23320(30)(c) - certain veterans organizations

             4)        section 24042 - public and private bar on same premises

             5)        section 23320(30)(b) - certain national fraternal organizations,
                       and 30 subcategories

              The first four of the five categories of club license are subject to the
antidiscrimination provisions of section 125.6:

Section 23320(30)(a) designates an on-sale general license for bona fide clubs. For
purposes of this license, "club" is defined in section 23037:

             "'Club' means a corporation or association which is the owner,
      lessee, or occupant of an establishment operated solely for objects of a
      social or athletic nature but not for pecuniary gain, having a bona fide
      membership list, and the majority of the members of which pay dues at
      least once in every year, and the property as well as the advantages of

                                                              4

                                                                                          85-905


       which belong to the members, and which sells alcoholic beverages only to
       its members and its bona fide guests. A guest is defined as a person who is
       actually a houseguest, or a person whose presence as a guest is in response
       to a specific invitation for the special occasion."

Section 23320.1 designates a special on-sale general license which is described in section
23399.2:

              "Premises for which a special onsale general license is issued may
       be operated only as a club by an organization which meets all the
       requirements of Section 23037, or by an organization which meets all of
       such requirements except that it is operated for pecuniary gain, or its
       property is not owned by Section 23320(30)(c) designates a veterans' club
       license which may be issued, as specified in section 23451, to:

               "[a]ny post, chapter, camp, or other local unit, composed solely of
       veterans, of an organization composed solely of veterans which has been
       chartered by the Congress of the United States for patriotic, fraternal, or
       benevolent purposes, and which post, chapter, camp, or other local unit has,
       as the owner, lessee, or occupant thereof, operated an establishment for any
       such purpose for Section 24042 designates an on-sale general duplicate
       license for a room reserved for exclusive use of designated patrons, and
       may be issued to "[a]ny licensee under an on-sale general license or an
       onsale general license for seasonal business who maintains upon or within
       the premises for which the license is issued more than one room in which
       there is regularly maintained a fixed counter or service bar at which
       distilled spirits are served to members of the public for consumption within
       the licensed premises . . .", provided that the department shall, in the event
       such license is issued for a room reserved for the exclusive use of
       designated patrons, endorse upon such license the terms and conditions
       under which the privileges conferred by the license may be exercised.

               The department is, in our view, authorized under the express provisions of
section 125.6 to revoke a license designated in the first three categories for refusal to
perform the licensed activity, or in the fourth category for participating in the
discrimination or restriction in the performance of the licensed activity, on the basis of
race, color, sex, religion, ancestry, physical handicap, marital status, or national origin.

             The fifth category of club license, designated in section 23320(30)(b), is
governed by article 4 of chapter 3 of division 9 which contains its own special provisions
regarding discrimination. Section 125.6 does not, by its express terms, apply to an

                                             5


                                                                                        85-905


"article 4" club license designated in section 23320(30)(b). The department is authorized
to issue such a license to sell and serve alcoholic beverages for consumption within the
licensed establishment only to bona fide members and their bona fide guests. (§§ 23430
& 23431.) An "article 4" club is defined as follows (§ 23425):

             "For the purposes of this article 'club' means:

             "(a) Any chapter, aerie, parlor, lodge, or other local unit of an
      American national fraternal organization which has as the owner, lessee, or
      occupant thereof operated an establishment for fraternal purposes. An
      American national fraternal organization as used in this subdivision shall
      actively operate in not less than 20 states of the Union and have not less
      than 175 local units in those 20 states, and shall have been in active
      continuous existence for not less than 20 years.


             "(b) Any hall or building association of a local unit mentioned in
      subdivision (a), all of the capital stock of which is owned by the local unit
      or the members thereof, and which operates the clubroom facilities of the
      local unit."

The "article 4" club license is divided into 30 subcategories. (See Chart A.) Four of
these contain the following restriction:

             "It shall be unlawful for any club licensed pursuant to this section to
      make any discrimination, distinction, or restriction against any person on
      account of such person's color, race, religion, ancestry, national origin, sex,
      or age."

They are tennis clubs in existence for not less than 45 years (§ 23426.5), social
organizations fostering pride of national origin (§ 23428.24), the Hidalgo Society
(§ 23428.25), and property owners' associations (§ 23428.26). Another contains similar
language, but excluding reference to sex and age. This category consists of handball and
racquetball clubs (§ 23428.19). Two categories expressly prohibit the issuance of a
license to any club "which makes any discrimination, distinction, or restriction against
any person on account of such person's age, sex, color, race, religion, ancestry, or
national origin." They are labor councils (§ 23428.18) and letter carriers locals
(§ 23428.23). Two categories prohibit the issuance of a license to any club which
restricts membership or the use of its facilities on the basis of race, religion, national
origin, and sex. They are press clubs (§ 23428.5) and corporations for promotion of
international understanding (§ 23428.22). Another category containing similar language,

                                            6


                                                                                        85-905


but also including reference to color and creed, is comprised of condominium
cooperatives and associations (§ 23428.20). Another similar provision, but also including
age, pertains to local dental societies (§ 23428.21). Another similar provision, but also
including color, ancestry and age, applies to certain associations of peace officers and
employees of a law enforcement agency (§ 23428.27).

              No restrictions respecting discriminatory practices appear in the general
definition (§ 23425) or in 18 of the special categories: golf, swimming or tennis club
(§ 23426), yacht club (§ 23427), bar association (§ 23428), county medical association
(§ 23428.1), rod and gun club (§ 23428.2), mobilehome owners social club (§ 23428.4),
stockmen's association (§ 23428.6), horse riding club (§ 23428.7), Native Sons of the
Golden West (§ 23428.8), social club (§ 23428.9), peace officers' association
(§ 23428.10), firemen's association (§ 23428.11), social and religious club (§ 23428.12),
airport terminal club (§ 23428.13), national guard club (§ 23428.14), American Citizens
Club (§ 23428.15), social luncheon club (§ 23428.16), and American GI Forum of the
U.S. (§ 23428.17).2

               It may be argued that the legislative election to condition the issuance of a
license upon the absence of discriminatory practices by certain "article 4" clubs, but not
others (see Chart B), is indicative of a legislative intent not to impose such a condition
with respect to those clubs for which such a limitation is not expressly provided. This
interpretation is consistent with the rule that where a statute on a particular subject omits
a particular provision, the inclusion of such a provision in another statute concerning a
related matter indicates an intent that the provision is not applicable to the statute from
which it was omitted. (Marsh v. Edwards Theatres Circuit, Inc. (1976) 64 Cal.App.3d
881, 891.)

                The existence of that general rule of construction, however, does not dictate
the result in this situation. Where the Legislature has actively inserted anti-discrimination
provisions with respect to 12 categories (the bulk of which involve categories created in
the last two decades) and has said nothing respecting discrimination with respect to the
remaining 18 categories (most of which were created in earlier years, prior to the
legislative assumption of a highly active stance in enacting non-discrimination measures),
it is at least as plausible to conclude that the Legislature intended to take no position on
the issue in those particular situations.



   2
     The term "club" as hereinabove defined is a bona fide club within the meaning of California
Constitution, article XX, section 22, supra. (§ 23429.) Additional specifications as to such clubs
are contained in sections 23434 and 23435.

                                                7

                                                                                          85-905


              Given the strength of the social policy against discrimination expressed in
the sweeping language of the Unruh Civil Rights Act (Civ. Code, § 51) and other
provisions aimed at combatting invidious discrimination, it is difficult to read into the
omission of an anti- discrimination clause in 18 categories of social clubs not connected
by any apparent theme or motif a deliberate legislative endorsement of acts of
discrimination for those groups.3

              We therefore conclude that the Legislature has neither prohibited nor
endorsed discrimination in the case of 18 categories of article 4 clubs. We turn next to
the question of whether the Department of Alcoholic Beverage Control has independent
power to act.

              Article XX, section 22, of the California Constitution, set forth at the
outset, provides in part that "The department shall have the power, in its discretion, to
deny, suspend or revoke any specific alcoholic beverage license if it shall determine for
good cause that the granting or continuance of such license would be contrary to public
welfare or morals . . . ." This provision is self-executing, and revocation against a license
may be based on that ground alone if the licensee is otherwise accorded due process of
law. (Vallerga v. Department of Alc. Bev. Cont. (1959) 53 Cal.2d 313, 318.) In Moore v.
State Bd. of Equal. (1946) 76 Cal.App.2d 758, 765, the court stated:

              "The attorney general's third and fourth points, i.e., that the
       Constitution confers power independently on the board and that the board is
       not restricted in the revocation of a license to the grounds stated in the act,
       but may take disciplinary action on other grounds within the constitutional
       provision are amply sustained by the authorities. . . ."

               Clearly, the department may act pursuant to and consistent with the
preexisting state or federal legislative or constitutional indications of public policy. In
Easebe Enterprises, Inc. v. Alc. Bev. Cont. App. Bd., supra, 141 Cal.App.3d 981, it was
held that the department was authorized to revoke the license of a business establishment
engaged in a sexually discriminatory admittance policy, based upon the apposite public
policy set forth in the Unruh Civil Rights Act, Civil Code section 51. (Id., at pp. 985-
986.)4 The question now presented is whether the department has the power, in its

   3
      Reinforcement of that concept is found by noting that one of the categories of clubs
exempted -- airport terminal clubs—is almost certainly barred from discrimination under the
Unruh Civil Rights Act as a business establishment. It would be difficult to find that silence in
the code section regarding liquor licenses was intended to exempt such clubs from the operations
of the general provisions of Civil Code section 51.
    4
      Easebe involved a place of public business to which the Unruh Act clearly applied. For

                                               8


                                                                                         85-905


discretion, to deny, suspend or revoke a license upon a cause or event which the
Legislature has not prescribed as a condition to its issuance or continuation.

              The department's constitutional power and discretion must, of course, be
considered in the context of article XX, section 22, as a whole. Such authority must be
construed in such a manner as not to conflict with the power expressly conferred by that
section upon the Legislature to ". . . provide for the issuance of . . . licenses . . . (d)
[u]nder such conditions as the Legislature may impose, for . . . bona fide clubs . . . ."
Thus, while the discretion to be exercised in a specific case is broad (Jacques, Inc. v.
State Bd. of Equalization (1957) 155 Cal.App.2d 448, 458), it "is not absolute but must
be exercised in accordance with the law, and the provision that it may revoke a license
'for good cause' necessarily implies that its decisions should be based on sufficient
evidence and that it should not act arbitrarily in determining what is contrary to public
welfare or morals." (Boreta Enterprises, Inc. v. Department of Alc. Bev. Cont. (1970) 2
Cal.3d 85, 95; Vallerga v. Department of Alc. Bev. Cont., supra, 53 Cal.2d at pp. 318-
319; Covert v. State Bd. of Equal. (1946) 29 Cal.2d 125, 131-132.)

              Boreta Enterprises, Inc. v. Department of Alc. Bev. Cont., supra, 2 Cal.3d
85, involved an attempt by the department to revoke the license of a "bona fide eating
place" because it employed "topless" waitresses. The California Supreme Court, having
reversed the department's action on carefully circumscribed grounds relating to the
sufficiency of the evidence, observed (id., at p. 106):

               "[A]lthough it appears unnecessary, we point out that our
       conclusions have been reached on the record before us. We are not
       unaware of the public concern for proper regulation of premises licensed to
       sell alcoholic beverages. Our holding confers on them neither a general
       sanction to employ topless or other similarly undressed waitresses nor a
       general immunity from the Department's disciplinary action in the event
       they do. If such purveying of liquor is in fact attended by the deleterious
       consequences which the Department claims, it should have no difficulty, in
       appropriate disciplinary proceedings, in proving them. In a word it should
       establish 'good cause' and make out its case. Alternatively, the Department



purposes of this analysis, we assume without deciding that the term "private club" does not
include any organization which may properly be deemed a "business establishment." (Cf.
§§ 23037, 23399.2, 23431; 35 Ops.Cal.Atty.Gen. 93, 99-100 (1960); cf. generally Isbister v.
Boys' Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72, 76-77; Rotary Club of Duarte v. Board of
Directors of Rotary International (1986) 178 Cal.App.3d 1035, hearing den. June 18, 1986;
App.Pendg. 93 L.Ed.2d 350, 107 S.Ct. 396 (Nov. 3, 1986).)

                                             9

                                                                                     85-905


      could draw upon its expertise and the empirical data available to it and
      adopt regulations covering the situation. (§ 25750.)"

               Thus, Boreta reaffirms the department's authority to revoke or suspend an
alcoholic beverage license upon grounds supported by sufficient evidence. That the
holding was based solely upon the department's failure to produce evidence is
underscored by the decision only three years later in Locker v. Kirby (1973) 31
Cal.App.3d 520, in which the court upheld a department regulation prohibiting licensees
from employing "topless" waitresses on premises where alcoholic beverages were sold,
stating in part (id., at p. 526, n. 4):

             "Section 25750 of the Business and Professions Code authorizes
      respondent to make and prescribe reasonable rules. When respondent tried
      to take disciplinary action against licensees employing topless waitresses
      simply on the ground that such employment was contrary to public welfare
      or morals, without a factual showing of the point our Supreme Court
      suggested the adoption of factually grounded regulations as a reliable
      alternative. [Citing Boreta.]"

Hence, Boreta does not require a statutory basis for the department's regulatory
determinations.

              Thus, we do not view the comprehensive statutory provisions respecting the
licensure of "article 4" clubs, or the omission of such clubs from the anti-discrimination
provisions of section 125.6, as an intended limitation of the department's constitutional
authority to act upon its independent determination based on "good cause" that the
continuance of a license of a private club with circumscribed admission policies would be
contrary to public welfare or morals. This view is supported by the Supreme Court's
observation in Boreta (2 Cal.3d at 99, n. 22):

             "We do not mean to intimate that the Department is confined to
      considering violations of criminal statutes or departmental directives as
      grounds for suspension or revocation under section 24200, subdivision (a).
      It is not disputed that while the Department may properly look to and
      consider a licensee's violation of the Alcoholic Beverage Control Act, the
      Penal Code, other state and federal statutes, or Department rules as
      constituting activities contrary to public welfare or morals, it may also act
      on situations contrary to the public welfare or morals in the sale or serving
      of alcoholic beverages regardless of legislative expressions of policy on the
      subject or prior departmental announcements." (Emphasis added.)


                                           10

                                                                                      85-905


The independent constitutional authority of the department was again demonstrated in
Kirby v. Alc. Bev. Cont. App. Bd. (1975) 47 Cal.App.3d 360, in which it was contended
that the department rule regulating "topless" exposure on licensed premises conflicted
with Penal Code sections 318.5 and 318.6 permitting cities and counties to regulate such
activity. The court held in part that "[s]ince the rule was promulgated pursuant to the
department's constitutional authority to regulate the sale of drinks in premises it licenses,
no issue of preemption is involved." (Id., at p. 366.)

              It is emphasized that we are not presented here with conflicting
determinations of the department and the Legislature. In certain respects, as we have
seen, the Legislature has remained silent with respect to discrimination. It has also
expressly recognized and restated, however, the department's preexisting constitutional
authority to exercise its independent judgment on questions of public welfare and morals.
Section 24200 provides in part:

             "The following are the grounds which constitute a basis for the
       suspension or revocation of licenses:

              "(a) When the continuance of a license would be contrary to public
       welfare or morals; but proceedings under this section upon this ground are
       not a limitation upon the department's authority to proceed under Section
       22 of Article XX of the California Constitution."

              We are not called upon to examine what might constitute "good cause" for
the department's determination in any given case. Clearly, the subjective moral notions
of the department itself do not necessarily express or reflect actual public morality.
Rather, the modifying adjective "public" necessarily indicates the obligation to apply an
objective standard. (Id., at p. 103.) In Boreta, the court quoted Gossman v. Gossman
(1942) 52 Cal.App.2d 184, 194-195, in part as follows:

              "Courts have often asserted that such power is broad and inclusive.
       That assertion is true, but it is true only within the limits of fixed legal
       principles [citation]. Such power cannot enlarge its own boundaries or
       support acts requiring other legal bases. Even within its legal limits the
       power is not unbridled. The mere fact that a court may have jurisdiction to
       make an order does not equip it to exercise judicial discretion. Its acts
       must not only be confined within the field of discretion but must also be of
       a character within the bounds of the limiting adjective 'judicial.' . . . The
       term 'judicial discretion' was defined in Bailey v. Taaffe (1866) 29 Cal. 422,
       424, as follows: 'The discretion intended, however, is not a capricious or


                                             11

                                                                                        85-905


       arbitrary discretion, but an impartial discretion, guided and controlled in its
       exercise by fixed legal principles.'" (Id., at p. 96.)

               It is assumed for purposes of this analysis that such authority would be
exercised within the bounds of constitutional constraints, that the sale of alcoholic
beverages being essentially outside the sphere of privacy or private entitlements, is a
distinctly separate and independent activity not inherent in or essential to the
associational structure of a specific club (B.P.O.E. Lodge No. 2043 of Brunswick v.
Ingraham, supra, 297 A.2d at p. 611), that such discrimination is arbitrary and devoid of
any rational relationship to the legitimate purposes for which the club was created (id., at
p. 616; cf. Isbister v. Boys' Club of Santa Cruz, Inc., supra, 40 Cal.3d at 76-77, 85, 88),
and that such enforcement does not aim at the suppression of speech, distinguish between
prohibited and permitted activity on the basis of viewpoint, or lie upon the basis of any
constitutionally impermissible criteria (see Roberts v. United States Jaycees (1984) 468
U.S. 609, 623).

              Within these parameters, however, the department may examine the
universe of state and federal statutes and regulations, as well as common law and judicial
pronouncements where applicable, governing discriminatory practices to guide its
determinations as to the relationship between such practices and the public welfare or
morals. It may determine upon its own factual investigation the impact upon society as a
whole and upon designated groups of various forms of discrimination.

                Careful distinctions should be drawn between those forms of discrimination
which are invidious and those rationally founded. Any determination providing grounds
for revocation or suspension must be predicated expressly upon an affirmative finding
that such discrimination is contrary to the public welfare or morals. Finally, such
findings must be supported by sufficient evidence. (Boreta Enterprises, Inc. v.
Department of Alc. Bev. Cont., supra, 2 Cal.3d 85.) In the latter case, the court observed
that there may be cases in which the conduct of a licensee is so extreme, vile or
corruptive that the department could conclude that it is per se contrary to public morals.
(Id., at p. 101.) Such determinations, which may be neither arbitrary nor capricious, must
be made in the first instance by the department. (Cf. Kirby v. Alc. Bev. App. Bd. (1972) 7
Cal.3d 433, 436-437; and see Easebe Enterprises, Inc. v. Alc. Bev. Cont. App. Bd., supra,
141 Cal.App.3d at 987—the court will not substitute its judgment for that of the
department as to whether certain discrimination was "benignly inspired.")

              It is concluded generally, however, that the department is authorized to
revoke the license of any club, including an "article 4" club, on the basis of its
discriminatory membership practices pursuant to statutes prohibiting such practices or
upon its determination for "good cause" that the continuance of such license would be

                                             12


                                                                                         85-905


contrary to public welfare or morals. While the department may do so on a case by case
basis upon an adequate factual showing the adoption of regulations may be the preferred
course. (See, Boreta Enterprises, Inc. v. Department of Alc. Bev. Cont., supra, 106.)




                                          13


                                                                                85-905


                                        CHART A



                    SUMMARY OF ARTICLE 4 SUBCATEGORIES



Article 4 club (§ 23425): national fraternal organization

Article 4 subcategories:

 1)    § 23426              golf, swimming or tennis club

 2)    § 23426.5            tennis club (in existence 45 years)

 3)    § 23427              yacht club 

 4)    § 23428              bar association 

 5)    § 23428.1            county medical association 

 6)    § 23428.2            rod and gun club 

 7)    § 23428.4            mobile home owners social club 

 8)    § 23428.5            press club 

 9)    § 23428.6            stockmen's association 

10)    § 23428.7            horse riding club
11)    § 23428.8            Native Sons of Golden West
12)    § 23428.9            social club
13)    § 23428.10           peace officers' association
14)    § 23428.11           firemen's association
15)    § 23428.12           social and religious club
16)    § 23428.13           airport terminal club
17)    § 23428.14           national guard club
18)    § 23428.15           American Citizens Club
19)    § 23428.16           social luncheon club
20)    § 23428.17           American GI Forum of the U.S.
21)    § 23428.18           labor council
22)    § 23428.19           handball or raquetball club
23)    § 23428.20           condominium coops and associations
24)    § 23428.21           local dental society
25)    § 23428.22           corporations for international understanding
26)    § 23428.23           letter carriers local
27)    § 23428.24           social organizations for pride of national origin
28)    § 23428.25           Hidalgo Society
29)    § 23428.26           property owners' association
30)    § 23428.27           peace officers' and employees' association




                                            14


                                                                                85-905


                               CHART B



          ALCOHOLIC BEVERAGE LICENSE: RESTRICTIONS AS TO


        DISCRIMINATORY CLUB MEMBERSHIP PRACTICES BASED ON



                Race   Color Rel./ Ances- Nat'l   Sex   Age   Phys. Merit.
                             Creed try    Orig.               Hand. Status
Clubs subject
to § 125.6        X     X     X        X    X      X           X      X
Art. 4 club
Subcat. 1
         2        X     X     X        X    X      X     X
         3
         4
         5
         6
         7
         8        X           X             X      X
         9
         10
         11
         12
         13
         14
         15
         16
         17
         18
         19
         20
         21       X     X     X        X    X      X     X
         22       X     X     X        X    X
         23       X     X     X             X      X
         24       X           X             X      X     X
         25       X           X             X      X
         26       X     X     X        X    X      X     X
         27       X     X     X        X    X      X     X
         28       X     X     X        X    X      X     X
         29       X     X     X        X    X      X     X
         30       X     X     X        X    X      X     X

                                  15
                                                                    85-905
*****






  16


          85-905


