Kirby

The Issue

In this writ of review proceeding the issue squarely presented is whether a bartender is included within the definition of “any person” as set forth in Penal Code section 303, which reads as follows: “It shall be unlawful for any person engaged in the sale of alcoholic beverages, other than in the original package, to employ upon the premises where the alcoholic beverages are sold any person for the purpose of procuring or encouraging the purchase or sale of such beverages, or to pay any person a percentage or commission on the sale of such beverages for procuring or encouraging such purchase or sale. Violation of this section shall be a misdemeanor.” (Italics added.)

The Operative Facts

On March 16, 1972, the Department of Alcoholic Beverage Control. (“Department”) adopted the proposed decision of a hearing officer who found that the licensee (“Militti”) had violated section 25657, subdivision (a), of the Business and Professions Code and section 303 of the Penal Code in that he had permitted his bartender to solicit enforcement officers of the Department to purchase alcoholic beverages for female employees (count I), and that he had violated rule 143, title…