Opinion
Inhis case we are asked to review a decision of the Alcoholic Beverage Control Appeals Board (Board) which reversed a decision of the Department of Alcoholic Beverage Control (Department) denying a petition for an off-sale beer and wine license.
*817In February 1980, real party in interest John R. Diez, doing business as El Zorro (Applicant), filed an application for an off-sale beer and wine license for premises located at 4417 Lennox Boulevard in Lennox. The Los Angeles County Sheriff protested issuance of the requested license, asserting, “another license in this area would only add to the oversaturation, and increase the police problems.” The Department thereafter issued a notice denying the application and Applicant filed a petition for an evidentiary hearing on the question of whether the license should be granted.
After the matter was heard on February 27, 1981, a proposed decision was issued in which the administrative law judge made certain findings of fact and recommended the protest be sustained and the petition denied. The Department adopted her decision and Applicant appealed to the Board, which reversed the decision, finding the Department had not established good cause for denial of the license.
“[I]t is the Department, and not the Board or the courts, which must determine whether ‘good cause’ exists for denying a license upon the ground that its issuance would be contrary to the public welfare or morals. [Citations.]” (Kirby v. Alcoholic Bev. etc. Appeals Bd. (1972) 7 Cal.3d 433, 437 [102 Cal.Rptr. 857, 498 P.2d 1105].) The reviewing body determines whether or not the Department acted arbitrarily in making its decision. If the decision is without reason under the evidence, the action of the Department constitutes an abuse of discretion and may be set aside. But where the decision is the subject of a choice within reason, the Department is vested with the discretion of making the selection which it deems proper, its action is within the scope of a valid exercise of the constitutionally conferred discretion (Cal. Const., art. XX, § 22),1 and neither the Board nor the courts may interfere therewith. (Kirby v. Alcoholic Bev. etc. App. Bd. (1968) 261 Cal.App.2d 119, 122 [67 Cal.Rptr. 628]; Torres v. Dept. Alcoholic Bev. Control (1961) 192 Cal.App.2d 541, 544-545 [13 Cal.Rptr. 531].)
*818With respect to the matter currently before us, the Department concluded the issuance of an off-sale license would be contrary to public welfare and morals in that it would add to an undue concentration of licenses (Bus. & Prof. Code, § 239S82; Cal. Admin. Code, tit. 4, § 61.33) and “the premises are located in a crime reporting district which has 20 percent greater number of reported crimes and arrests than the average number of reported crimes and arrests for each crime reporting district within the Los Angeles County Sheriff Department’s jurisdiction for unincorporated area; and the population of census tract no. 6018 [where *819the applicant-premises are located] permits only four (4) off-sale retail licenses.”4
The Department further determined that, “[although applicant-premises sell a unique variety and assortment of Cuban grocery items, it was not established that public convenience and necessity require the issuance of a license to the applicant-premises, in that customers at the applicant-premises may easily avail themselves of alcoholic beverages from licensees in close proximity to the applicant-premises.”5
The foregoing conclusions, which were supported by the Department’s findings and by substantial evidence in the record, constitute good cause for its determination. The Board’s view that the existence of the facts specified in section 61.3, title 4, of the California Administrative Code, does not provide a basis upon which to deny a license is mistaken. While, of course, not mandatory, the Department’s discretionary decision to rely upon such a showing was proper. (See Martin v. Alcoholic Bev. etc. Appeals Bd. (1961) 55 Cal.2d 867, 875 [13 Cal.Rptr. 513, 362 P.2d 337].)
*820Section 61.3, differs markedly from statutory provisions such as Business and Professions Code section 23789 which provides: “The department is specifically authorized to refuse the issuance, other than renewal or ownership transfer, of on-sale retail licenses for premises located within the immediate vicinity of churches and hospitals.
“The department is further specifically authorized to refuse the issuance, other than renewal or ownership transfer, of on-sale retail licenses for premises located within at least 600 feet of schools and public playgrounds. This distance shall be measured pursuant to rules of the department.”
Manifestly, mere propinquity to a church or a school does not in and of itself automatically establish the good cause required to deny a license. (See generally Martin v. Alcoholic Bev. etc. Appeals Bd., supra, 55 Cal.2d 867, 875; Reimel v. Alcoholic Bev. etc. App. Bd. (1967) 255 Cal.App.2d 40, 49 [62 Cal.Rptr. 778]; Koss v. Dept. Alcoholic Beverage Control (1963) 215 Cal.App.2d 489, 495 [30 Cal.Rptr. 219].) By parity of reasoning, it could rationally be urged that a mere concentration of licenses in a given area, without more, would be similarly insufficient. However, when in addition thereto it is established that the area in question is one wherein there is an unusually high number of crimes, and that the affected law enforcement agencies object on this ground, it is not necessary in every instance to introduce specific evidence reestablishing the very fact that presumably led to the adoption of Rule 61.3 in the first instance, i.e., that there is a symbiotic relationship between crime and the increased consumption of alcohol in a given locale that results from an excessive number of competing sources of distribution. (See Torres v. Dept. Alcoholic Bev. Control (1961) 192 Cal.App.2d 541, 548 [13 Cal.Rptr. 531].)
The Board’s assertion that the facts calling Rule 61.3 into play must be supplemented by additional evidence demonstrating that the particular license, if issued, would itself aggravate the existing crime problem, is unpersuasive. Business and Professions Code section 23958 makes the tendency of an applicant “to create a law enforcement problem” a ground for denial quite separate and distinct from that relating to the “undue concentration of licenses.” (See fn. 2.) That is to say, if a showing were made that the individual licensee would create a law enforcement problem, the plenitude or paucity of neighboring licenses would be irrelevant.
*821Furthermore, unlike the situation in Martin v. Alcoholic Bev. etc. Appeals Bd., supra, 55 Cal.2d 867, 873-874, where the Department had concluded that it was required to deny a license merely because of the proximity of a church, even though the church had not protested and a police captain and a school teacher had spoken in favor of the applicant, a restaurant, section 61.3 expressly permits a license to be issued in even an impacted crime district if “public convenience or necessity would be served by such issuance.” (Bus. & Prof. Code, § 23958; Sepatis v. Alcoholic Bev. etc. Appeals Bd. (1980) 110 Cal. App.3d 93, 102 [167 Cal.Rptr. 729].) Here the Department fully exercised its judgment and discretion and determined that neither necessity nor public convenience were shown.
The decision of the Board is reversed and that of the Department reinstated.
Compton, Acting P. J., and Beach, J., concurred.
Respondent’s petition for a hearing by the Supreme Court was denied October 28, 1982.