for improper acts on the premises.

...

At the hearing, the enforcement officials were primarily interested in proving that the bar had a general reputation for being a hangout for homosexuals. This was done under that portion of section 24200(e) providing that "the character of the premises may be proved by the general reputation of the premises in the community as a resort for sexual perverts." There is no doubt that the enforcement officials proved that the licensed premises were used as a meeting place by homosexuals, the Deputy Chief of the Oakland Police Department, the Patrol Captain of the area where the bar is located, the sergeant in charge of that patrol the patrol officer in the area, and the sergeant in charge of the Armed Forces Police all testified that the reputation of the bar was bad in that its patronage consisted almost exclusively of homo sexuals and lesbians. This fact was not in controversy. In fact, Vallerga, 'one of the licensees, testified that the bar was established in 1946 for homosexuals, and that it continued to be such an establishment from that date up to the date of the hearing; that in 1950, when he purchased a one-half interest in the bar, he consulted an attorney and was advised that since his bar was a public place, he was under a duty, and had the right, to serve his customers as long as they behaved themselves. Obviously, this evidence that the bar was largely patronized by homosexuals, is of importance only in showing that the licensee knew or should have known of this fact. Since the licensee admitted this fact, there was no dispute as to it. Contrary to the contention of the enforcement officials, this fact alone, as already pointed out, was not sufficient to justify a revocation of the license.

All of the police officials laid great emphasis upon the fact that the majority of female customers were dressed in mannish attire, and that the patrons of the bar usually paired off men with men, and women with women. These facts, if entitled to any legal significance, merely emphasized the fact that the patrons were homosexuals or lesbians. Of themselves, these acts did not amount to immoral, indecent, disgusting or improper acts. They merely tended to prove that the patrons were homosexuals, a fact the licensee admitted. This fact alone, for reasons already stated, did not justify revoking the license.

During the nine-month period of intensive surveillance the police officers did testify that they did observe a few isolated acts which are relied upon to support the revocation order. Several of the police of ficers testified that, on occasion, women were observed dancing with, and kissing, other women. This is not necessarily offensive, illegal or improper conduct that would justify the revocation of the license.

The most damaging testimony was given by a policewoman who went to the bar as an undercover agent. She testified that she sat at a table and mattachine REVIEW

that a patron dressed in mannish costume sat down and stated to her 'You're a cute little butch.” Later in the evening this patron kissed the witness. A waitress of the establishment, Buddy by name, came by and warned the participants that if they wanted to continue such activity they sholud go into the rest room. Other than through this waitress,.there was no evidence the licensees knew of this activity or that they had been told of it. The officer did not complain to anyone about this conduct. Another police officer (who had been in the bar 10 times) on one occasion observed a display of affection between two men. He observed these two embrace and whisper to each other with their foreheads touching. He heard one of the men state to the bartender 'Arley and I are going steady.' There was no evidence that the acts of affection between these two men were or should have been observed by the licensees or their employees.

This is a fair summary of the alleged misconduct that was observed during the nine-month period. Some of the officers visited the bar during this period almost daily, while others were present several times a week. At most, the conduct observed indicated that the patrons were homosexuals. But that fact alone will not support the revocation. The conduct observed was not similar to the conduct observed in the Kershaw and Nickola cases which was held to support revocation orders. There the conduct was disgusting, immoral and illegal. It clearly demonstrated that the continuance of the licenses would be 'contrary to public welfare or morals.' The same cannot be said of the conduct observed here.

The other contentions of appellants attacking the constitutionality of section 24200(e) on various grounds were all decided adversely to appellants in the Kershaw or Nickola cases, or in both, and are without merit. The judgment is reversed with instructions to the trial court to grant a peremptory writ of mandate directing the Administrative Board to set aside its order of revocation and to take such further action as may be proper.

(SIGNED) Peters, P. J.

We Concur: Bray, J., and Fred B. Wood, J.

AN IMPORTANT NEW BOOK----

THE HOMOSEXUAL IN LITERATURE: a 32-page printed bibliography of over 600 novels, short stories, plays, biographies, etc., dealing exclusively with the male theme. An important study, limited to 1000 copies. Please order at $1.50 per copy from... VILLAGE BOOKS.

116 Christopher Street

New York 14, N. Y. Our special Fiction List No. 10 of recently published books is now available at no charge 21