1 Corp. v. Business License Com.

• Decision Date: 28 October 1982
• Citation: 186 Cal.Rptr. 726,137 Cal.App.3d 54
• Court: California Court of Appeals Court of Appeals
• Parties: 12319 CORPORATION, dba Starwood, Petitioner and Appellant, v. The BUSINESS LICENSE COMMISSION OF the COUNTY OF LOS ANGELES and Bethel Smith and Stanley Rothman, as Commissioners of the Business License Commission of the County of Los Angeles; The License Appeals Board of the County of Los Angeles, and Charles V. Tackett, Mary Hegle and Alma Fitch, as Commissioners of the License Appeals Board of the County of Los Angeles; Peter J. Pitchess, Sheriff of the County of Los Angeles; and The County of Los Angeles, Defendants and Respondents. Civ. 63226.

Page 726

186 Cal.Rptr. 726

137 Cal.App.3d 54

12319 CORPORATION, dba Starwood, Petitioner and Appellant, v. The BUSINESS LICENSE COMMISSION OF the COUNTY OF LOS ANGELES and Bethel Smith and Stanley Rothman, as Commissioners of the Business License Commission of the County of Los Angeles; The License Appeals Board of the County of Los Angeles, and Charles V. Tackett, Mary Hegle and Alma Fitch, as Commissioners of the License Appeals Board of the County of Los Angeles; Peter J. Pitchess, Sheriff of the County of Los Angeles; and The County of Los Angeles, Defendants and Respondents.

Civ. 63226.

Court of Appeal, Second District, Division 1, California.

Oct. 28, 1982.

Kaplan & Novodor and Joshua Kaplan, Los Angeles, for petitioner and appellant

John Larsen, Los Angeles County Counsel, Lester J. Tolnai, Deputy County Counsel, Los Angeles, for defendants and respondents.

SPENCER, Presiding Justice.

INTRODUCTION

Petitioner appeals from a judgment denying a petition for writ of mandamus and/or prohibition and/or administrative mandamus.

STATEMENT OF FACTS

Petitioners are the owners and operators of the Starwood nightclub, located within the County of Los Angeles, operating and maintaining a building and premises in which food, beverages and entertainment are provided for the incidental comfort of its patrons. The average monthly attendance at the Starwood approximates 15,000 patrons, many of whom are minors.

Since the Starwood began operations in 1972, the petitioners have taken measures to soundproof the Starwood's premises, posted warnings and issued announcements requesting patrons and staff to demonstrate concern for the peace and welfare of the surrounding community, and retained employees for the purpose of addressing the community's litter problem. Petitioners also employed a private security staff to patrol the surrounding neighborhood; however, this effort was curtailed by the Los Angeles County Sheriff's Department due to its interference with that department's services.

Despite these efforts, since 1978, residents in the vicinity of the Starwood have incurred damage to their homes and vehicles and have been subject to disturbances created by individuals observed going to and leaving the Starwood. Neighbors reported loud noise and boisterous conduct, litter, unruly crowds, and trespass in the form of patrons of the Starwood urinating, defecating, fornicating, and partaking of illegal and dangerous drugs on their property Surveys, logs, and arrest reports kept by the Los Angeles County Sheriff's Department indicate that the number of incidents which required a police response was significantly higher than that required by similar types of nightclubs. Recorded incidents included arrests for possession of drugs, assault with a deadly weapon, attempted rape, and loitering. Results of a survey taken during the seven month period between January 1, 1978 and July 31, 1978, for the purpose of determining the validity of citizen's complaints, revealed 389 complaints and patrol deputy observations and 134 arrests. During the course of two days in July 1978, 1,311 police hours were consumed in connection with unruly mobs at the Starwood.

as well as thefts, fights, and illegal parking. Residents have observed patrons of the Starwood consuming illegal drugs in the Starwood parking lot and employees of the Starwood cautioning patrons to conceal drugs. In 1978, 148 residents of the immediate neighborhood signed petitions requesting that official action be taken against the Starwood.

In 1975, petitioner pled guilty to an accusation of operating the Starwood after hours. On other occasions, guilty pleas were entered and fines assessed for sales of alcoholic beverages to minors.

On two occasions, the Department of Building and Safety of the County of Los Angeles issued stop orders to petitioner after discovering construction projects in progress on the premises absent valid building permits.

In July of 1978, petitioner sold approximately 700 tickets for a concert to be held in the Starwood facilities having a posted occupancy limit of 399 persons. Due to overcrowding on the night of the concert, petitioner was cited by the Los Angeles County Fire Department and subsequently pled guilty to a violation of the Los Angeles Fire Code, section 26-112 A and B.

The county fire department issued an additional citation for overcrowding on October 10, 1978, when the total occupancy of the Starwood exceeded its posted limits by approximately 10 percent. Petitioner pled nolo contendere to the charge.

PROCEDURAL FACTS

On January 2, 1979, the Sheriff of the County of Los Angeles filed an accusation against petitioner, Starwood, with respondent Business License Commission of the County of Los Angeles seeking revocation of petitioner's business licenses.

Following hearings held on various dates in 1979 and 1980 before the Business License Commission, petitioner's entertainment, dance, billiard room, public eatery and coin game licenses were revoked by a decision dated February 28, 1980.

Respondent License Appeals Board of the County of Los Angeles affirmed the decision of the Business License Commission on October 1, 1980, and denied petitioner's motion for disqualification of the License Appeals Board on the constitutional grounds of due process and conflict of interest.

A stay of the operative effect of the revocation, denied by the administrative bodies but subsequently granted by the superior court on March 17, 1980, remained effective until January 21, 1981. At that time, the superior court dissolved the stay order and denied petitioner's request for a writ of mandamus and/or prohibition and/or administrative mandamus.

CONTENTIONS

I

For the following reasons, petitioner avers that the administrative and judicial proceedings were infected by political pressure, bias, and a denial of fairness contravening the principle of due process basic to the United States and California Constitutions:

a. Sections 107 and 108 of Los Angeles County Ordinance No. 5860, are unconstitutional both on their face and as applied herein;

b. The appeal before the License Appeals Board, a member of which was appointed c. Legal counsel for the Business License Commission forfeited his role of neutral adviser to the Board when he assisted the prosecution by laying a foundation for the introduction of Supervisor Edelman's letter into evidence.

by Supervisor Edelman, was unfair where the record of the Business License Commission hearing contained a letter written by Supervisor Edelman urging revocation of petitioner's business licenses.

II

Petitioner asserts that the evidence was insufficient to support revocation of his various business licenses, including his entertainment license which falls under the aegis of the First Amendment of the United States Constitution.

DISCUSSION

I

A. Petitioner asserts that Los Angeles County Ordinance No. 5860, sections 107 ¹ and 108 ² are unconstitutional violations of the due process clauses of the United States and California Constitutions, both on their face and as applied herein. We cannot agree.

Sections 107 and 108 provide that the License Appeals Board shall include one member designated by the Office of the Los Angeles County Counsel and one member who is the Supervisor's Chief Deputy of the District within which the principal place of business of the appellant is located. Petitioner argues that the said sections countenance a prima facie case of bias and conflict of interest on the part of the Los Angeles County Counsel's Office.

Petitioner bases his contention on the participation of the County Counsel's Office in three distinct roles during the hearing before the Business License Commission and the License Appeals Board: counsel representing the prosecution before the Business License Commission, legal adviser to the Business License Commission, and designator of a member of the License Appeals Board.

Petitioner fails to offer any facts supporting his assertion of bias and prejudice or his suggestion that the various functions performed by the County Counsel's Office were not properly insulated from one another.

California has recently adopted the federal approach to the issue of combined functions. "The federal position on the issue is that due process is not violated by the combination of investigative and adjudicative functions unless the facts of a case show foreclosure of fairness as a practical or legal matter." (Emphasis added.) (Applebaum v. Board of Directors (1980) 104 Cal.App.3d 648, 658, 163 Cal.Rptr. 831.) Without specific facts to support petitioner's allegations of unfairness, this court is unable to agree with his contentions.

Furthermore, although sections 107 and 108 provide that the County Counsel does have the authority to appoint one member of the License Appeals Board, there is no requirement that the appointee be a member of that office. The record fails to indicate that the County Counsel's appointee to the License Appeals Board was a member of that office or that, if he was, he was insufficiently insulated from the Deputy County Counsel representing the Sheriff's Department, the complaining agency herein.

Petitioner also faults the appearance of Deputy County Counsel Tolnai before the License Appeals Board as an advocate against petitioner when Mr. Tolnai had previously represented the Business License Commission below in a neutral role. Contrary to petitioner's allegation of a conflict of interest, we find no impropriety. Rather, we find consistency in Mr. Tolnai's role. His duty was to render neutral legal assistance to the Business License Commission below and then to seek to uphold their decision before the License Appeals Board, regardless of whether that decision was for or against the petitioner.

B. A letter written by Supervisor Edelman supporting revocation of petitioner's business licenses was read during the revocation hearings before the ...