lesbians and homosexuals, and that he was aware that said premises were a hangout for homosexuals:' For these reasons the Department détermined that 'the continuance of the said license would be contrary to public welfare and morals within the meaning of said words as used in Article XX, Section 22, of the California Constitution.

The licensees appealed. The Appeals Board, without referring to any conduct of patrons on the licensed premises, held that, if the licensees knowingly permitted homosexuals to gather on the licensed premises, it violated section 24200(e) and justified revocation of the license. There is not one word in the decision about illegal, immoral, disgusting or indecent acts having been committed on the premises. The Department prosecuted the case, and the Appeals Board affirmed it, without any refer ence to the conduct of patrons while on the premises. The theory of both boards was that section 24200(e) prohibits the using of the licensed premises as a resort or gathering place for sexual perverts; and that homosexuals are sexual perverts as a matter of law, and that if the licensed premises are so used, a violation justifying revocation of the license has occurred.

¿

This is a misinterpretation of the law. In the leading case of Stoumen v. Riley, 37 Cal. 2d 713, the licnesee was charged with operating a disorderly house to which people, resorted for purposes which were injurious to public morals, health, convenience or safety. The trial Administrative Board found that the licensee maintained such a disorderly house in that he knowingly permitted persons of homosexual tendencies to patronize that bar and to use the bar as a meeting place. The Administrative Board ordered the suspension of the license. This was reversed by the Supreme Court in a unanimous opinion. The court pointed out that there 'was no evidence of any illegal or immoral conduct on the premises or that the patrons resorted to the restaurant for purposes injurious to public morals' (p. 715), and then held that the disorderly house statute there involved did not attempt to regulate mere patronage by any particular class of persons without regard to their conduct on the premises. The court stated (p.716): 'Members of the public of lawful age have a right to patronize a public restaurant and bar so long as they are acting properly and are not committing illegal or immoral acts; the proprietor has no right to exclude or eject a patron 'except for good cause,' and if he does so without good cause he is liable in damages. (See Civ. Code, Sections 51, 52.). In analogous cases it has been held that a liquor license could 'not be revoked on the ground that prostitutes had dined in the licensee's restaurant (In re Farley, 217 N.Y. 105 (111 Ñ.E. 479) and that a conviction of maintaining a bawdy house was not supported by evidence that women of loose or immoral character had obtained lodging in defendant's hotel (Patterson v. State, 9 Okla. Cr. 564 (132 P. 693, 695)). In the Patmattachine REVIEW

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terson case the court pointed out that such women are human beings entitled to shelter and that it is not a crime to give them lodging unless it is done for immoral purposes. The same reasoning applies to the patronage of a public restaurant and bar by homosexuals, and mere proof of pa tronage, without proof of the commission of illegal or immoral acts on the premises, or resort thereto for such purposes, is not sufficient to show a violation of section 58.'

It was then held that from the fact that homosexuals used the licensed premises as a meeting place it could not be inferred that illegal or immoral acts were committed on the premises.

After determining that mere patronage did not violate the maintenance of a disorderly house statute, the court then went on to hold that, because of such patronage, the license could not be revoked under Article XX, section 22 of the Constitution, which provides that a license may be revoked if the administrative agency determines 'for good cause that the granting or continuance of such license would be contrary to pub.... lic welfare or morals. The court said (p. 717): 'The board's discretion under section 22, however, 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... In order to establish 'good cause' for suspension of plaintiff's license, something mœre must be shown than that many of his patrons were homosexuals and that they used his restaurant and bar as a meeting place.

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The Stoumen case was decided in 1951. In 1955 the Legislature added section 24200(e) to the Business and Professions. Code. (Stats. of 1955, p. 2230, Chap. 1217.) As then amended, and as it now reads, that sec tion provides, in part, that it shall be a ground for the suspension or revocation of a license if 'the portion of the premises of the licensee upon which the activities permitted by the license are conducted are a resort for illegal possessors or users of nacrotics, prostitutes, pimps, panderers, or sexual perverts."

Literally, this section seems to make revocation permissible if the licensed premises are simply used as a 'resort' by 'sexual perverts.' But because such a literal interpretation would raise grave doubts as to the constitutionality of the section, it has not been literally construed. It has been held that the section must be interpreted in view of the holding in the Stoumen case as to what constitutes 'good cause' for the revocation of a license. The reason for this interpretation is obvious. The Leg powislature, in enacting section 24200(e), acted under the authority and er granted by Article XX, Section 22 of the state Constitution. As the section read in 1951 when the Stoumen' case was decided, it provided

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