Camara v. Municipal Court of City and County of San Francisco

• Decision Date: 22 September 1965
• Citation: 46 Cal.Rptr. 585,237 Cal.App.2d 128
• Parties: Roland CAMARA, Plaintiff and Appellant, v. The MUNICIPAL COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent. Civ. 22128.
• Court: California Court of Appeals Court of Appeals

Page 585

46 Cal.Rptr. 585

237 Cal.App.2d 128

Roland CAMARA, Plaintiff and Appellant, v. The MUNICIPAL COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.

Civ. 22128.

District Court of Appeal, First District, Division 2, California.

Sept. 22, 1965.

Hearing Denied Nov. 16, 1965.

Marshall W. Krause, Staff Counsel, American Civil Loberties Union of Northern Cal., Roger H. Bernhardt, San Francisco, for appellant.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Charles W. Rumph, Deputy Attys. Gen., San Francisco, for respondent.

SHOEMAKER, Presiding Justice.

This is an appeal from an order denying a writ of prohibition.

The Division of Housing Inspection of the Department of Public Health is required, under part III, section 86, of the San Francisco Municipal Code, to make an annual inspection of all SanFrancisco apartment houses for the purpose of licensing such apartment houses and issuing permits of occupancy.

On November 6, 1963, Inspector Nall visited the premises at 225 Jones Street for the purpose of making such an inspection, and was informed by the manager of said apartment building that the lessee of a ground floor rental unit (223 Jones), which was restricted to commercial use under an existing permit of occupancy, was using the leased premises as a residence and was living in the rear of his store. Nall then called on plaintiff, who admitted that he was living in the rear of his store, but refused to allow Nall to enter and inspect the premises. Two days later Nall returned and was again refused permission to inspect the premises. Plaintiff failed to appear on a citation issued by the district attorney, after which an inspector again went to plaintiff, informed him of the health department's duty to make an annual inspection of all San Francisco apartment houses, and further informed him that the existing permit of occupancy authorized commercial and not residential use of the ground floor unit leased by plaintiff. Plaintiff again refused to allow said premises to be inspected.

Plaintiff was subsequently arrested and charged with violating section 507 of the Housing Code of the City and County of San Francisco (hereinafter referred to as 'Housing Code').

Plaintiff expressly concedes that he committed the offense proscribed by section 507 of the Housing Code and that his defense to prosecution for said charge is predicated solely upon the alleged unconstitutionality of section 503 of said code. Plaintiff asserts that section 503 authorizes an unreasonable search and seizure, in violation of article I, section 19, of the California Constitution and the Fourth Amendment to the federal Constitution, as applied to the states through the Fourteenth Amendment. ¹ Plaintiff also relies upon the privileges and immunities clauses of the Fourteenth Amendment.

Section 503 of the Housing Code provides as follows: 'Authorized employees of the City departments or City agencies, so far as may be necessary for the performance of their duties, shall, upon presentation of proper credentials, have the right to enter, at reasonable times, any building, structure, or premises in the City to perform any duty imposed upon them by the Municipal Code.'

Section 507 of the Housing Code provides in pertinent part that '[a]ny person, the owner or his authorized agent who violates, disobeys, omits, neglects, or refuses to comply with, or who resists or opposes the execution of any of the provisions of this Code * * * shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding five hundred dollars ($500.00), or by imprisonment, not exceeding six (6) months or by both such fine and imprisonment, unless otherwise provided in this Code * * *.'

The question whether an ordinance such as section 503 of the Housing Code is vulnerable to attack upon the constitutional grounds raised by plaintiff is one of first impression in this state. However, the constitutionality of similar regulations enacted in other jurisdictions has been challenged on several occasions and, in all but one instance, has been upheld.

We discuss first the only case which resulted in a finding of unconstitutionality, to wit: District of Columbia v. Little (1949) 85 U.S.App.D.C. 242, 178 F.2d 13, 13 A.L.R.2d 954. This case was later affirmed on other than constitutional grounds (District of Columbia v. Little (1950) 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599). We do so because the remaining cases to which we shall refer, consider and then decide adversely to the arguments of unconstitutionality supported by the Little decision. In Little, the court undertook to determine the validity of certain regulations of the District of Columbia which required owners and occupiers of premises to maintain then in a clean and wholesome condition, authorized health officials to examine any building supposed or reported to be in an unsanitary condition and denominated as a misdemeanor interference with an inspection. Defendant Little was convicted of hindering, obstructing and interfering with a health inspector in the performance of his duties upon a showing that she had refused to unlock the door of her private residence to a health inspector who was investigating a complaint that there was an accumulation of loose and uncovered garbage and trash in the halls and that certain persons residing in the house had failed to avail themselves of the toilet facilities. The conviction was subsequently reversed, the Federal Circuit Court of Appeals holding that the Fourth Amendment prohibited health officials without a warrant from invading a private home to inspect it, even though there was probable cause to believe that there existed within the dwelling a violation of a law designed to protect the health, safety or welfare of the public. The court expressly rejected the contention that the Fourth Amendment was premised upon and limited by the Fifth Amendment and was therefore inapplicable to regulations which only incidentally involved criminal charges and which were primarily designed to protect the public health.

A dissenting opinion by Judge Holtzoff took the position that the Fourth Amendment was applicable only to proceedings of a criminal character and that the right of inspection in the interest of public safety and health was essentially a civil matter to which any criminal prosecution was only incidental.

Upon appeal to the Supreme Court of the United States, Mr. Justice Black rendered the opinion of the court that respondent Little had not been guilty of 'interference' under the controlling District regulation (District of Columbia v. Little (1950) 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599). Accordingly, it was unnecessary to determine the validity of the ordinance involved.

We now discuss in order the four cases involving the constitutionality of ordinances similar to that involved herein, and in each of which, as we have noted, the Little case was considered at length. However, the reasoning of the Little case did not persuade any of the appellant courts concerned and in each case the ordinance was held a valid exercise of the police power.

The first case if Givner v. State (1956) 210 Md. 484, 124 A.2d 764, wherein the Maryland Court of Appeals upheld three Baltimore ordinances which authorized health, fire and building inspectors to enter upon premises during daylight hours for the purpose of conducting inspections to determine whether such premises complied with the applicable regulations and which imposed a find upon an owner or occupier who refused to allow such inspection. Two of the ordinances, which were substantially identical with section 503 of the Housing Code, contained no requirement of probable cause to suspect the existence of a nuisance and authorized representatives of the Building Inspection Engineer and the Chief Engineer of the Fire Department to enter 'any building, structure or premises' during daylight hours 'for the purpose of performing his duties' under the code.

Defendant Givner, who was convicted of violating these ordinances, contended on appeal that they were prohibited by the due process clause of the federal Constitution and by an article of the state Constitution which the court characterized as being in pari materia with the Fourth Amendment of the federal Constitution. After discussing the Little case at length, the court chose not to follow its reasoning and overruled the constitutional objections to the ordinances on the ground that the inspections or searches authorized by said ordinances were not 'unreasonable.' Although the court expressed doubt that either the federal or state prohibitions against unreasonable searches and seizures could be deemed inapplicable in civil matters, the court nevertheless concluded that different standards of reasonableness applied to a search for evidence to prove guilt of a crime than to an inspection for the purpose of protecting the public health or safety. Since the inspections authorized by the ordinances under attack were of a routine nature, which were to be made at reasonable hours and were primarily for protective and not punitive purposes, they could not be deemed unreasonable and could lawfully be made without search warrant.

In Frank v. State of Maryland (1959) 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877, the United States Supreme Court, in a five-to-four decision, upheld the validity of one of the three Baltimore inspection ordinances involved in the Givner case. However, the ordinance in question was the most narrowly drawn of the three and authorized the Commissioner of Health to demand entry to any house, cellar or enclosure, during daylight hours, only if he 'shall have cause to suspect that a nuisance exists' therein. The ordinance imposed a $20 fine upon any owner or occupier who refused or delayed to allow such entry and submit to the inspection.

Defendant Frank was convicted of violating said ordinance...