San Francisco Street Artists Guild v. Scott

• Decision Date: 01 March 1974
• Citation: 37 Cal.App.3d 667,112 Cal.Rptr. 502
• Parties: SAN FRANCISCO STREET ARTISTS GUILD, et al., Plaintiffs and Appellants, v. Donald SCOTT, Chief of Police for the City of San Francisco, et al., Defendants and Respondents. Civ. 32355.
• Court: California Court of Appeals Court of Appeals

Page 502

112 Cal.Rptr. 502

37 Cal.App.3d 667

SAN FRANCISCO STREET ARTISTS GUILD, et al., Plaintiffs and Appellants, v. Donald SCOTT, Chief of Police for the City of San Francisco, et al., Defendants and Respondents.

Civ. 32355.

Court of Appeal, First District, Division 4, California.

March 1, 1974.

Hearing Denied May 22, 1974.

Charles C. Marson, American Civil Liberties Union Foundation of Northern Cal., Inc., Paul N. Halvonik, Robert Kantor, San Francisco, for plaintiffs and appellants.

Thomas M. O'Connor, City Atty., Milton H. Mares, Deputy City Atty., San Francisco, for defendants and respondents.

DEVINE, Associate Justice. ^*

The question in this case is whether an ordinance of the City and County of San Francisco, which forbids unlicensed peddling on the sidewalks, is constitutional on its face or in its application. Plaintiffs are individuals who declare in their separate affidavits in support of their complaint for injunction that they are artists, and a guild of craftsmen and musicians of which they are members. The lawsuit does not affect the musicians, however. They perform their art on the sidewalks without the requirement of a permit, but without monetary recompense save that donated at the scene.

The articles which the several individual plaintiffs wish to sell include paintings and sculptural representations of tiny plants, dolls which are representations or caricatures of public figures, paintings and sculptures, crocheted clothing, macrames made of beads, jewels and feathers, and similar objects vaguely described in the affidavits. It is alleged in the complaint, which is for declaratory relief and for injunction, that the individual plaintiffs wish to display and sell their art on the sidewalks where their presence would not interfere with pedestrian or vehicular traffic, but that peddlers' permits have been denied to them despite repeated applications and appeals to the Board of Permit Appeals, the highest source of administrative remedy. It is alleged that appellants are subject to arrest and pretrial incarceration should they proceed, without permit, to display and to sell objects which they have created, and that arrests have been made in such cases. At the trial it appeared that permits to plaintiffs and to others in their class have been denied without exception (although occasionally, by a 'moratorium,' the police have not demanded a permit for the operation).

The contentions of plaintiffs are (1) that the licensing ordinance is violative of plaintiffs' First Amendment rights of free expression of ideas, and (2) that it is unconstitutional in that it sets no standards whatsoever to circumscribe the discretion of public officers. The trial court found that the sale of art goods on the streets is not protected by the First Amendment and that the provisions of the Charter of San Francisco and the Municipal Code do not violate the constitutional protections for adequate standards. ¹ Accordingly, the court ordered judgment for respondents and dissolved a preliminary injunction theretofore issued. Appeal followed.

I. FIRST AMENDMENT

We sustain the conclusion of the trial judge that First Amendment rights are not involved. Let it be noted at the beginning that Police Code section 869, the penal law, does not purport to regulate conduct or expression in any form whatever in places other than public streets. Those cases cited by appellants, involving the police power to control various forms of expression within theaters, stores, and similar places, are not relevant, e.g., Burton v. Municipal Court, 68 Cal.2d 684, 68 Cal.Rptr. 721, 441 P.2d 281; Superior Films v. Dept. of Education, 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329; Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205. Rather, the principle applies that the place for the conduct of a private business is upon private property, for there is no vested right to do business upon the public streets. (In re Mares, 75 Cal.App.2d 798, 801, 171 P.2d 762; Pittsford v. City of Los Angeles, 50 Cal.App.2d 25, 32, 122 P.2d 535; Stephenson v. Binford, 287 U.S. 251, 264, 53 S.Ct. 181, 77 L.Ed. 288.) Of course, if a 'business' is that of disseminating ideas or information, as in Weaver v. Jordan, 64 Cal.2d 235, 49 Cal.Rptr. 537, 411 P.2d 289 (initiative measure undertaking to ban the business of home subscription television held unconstitutional); Follett v. McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938 and Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed 1292 (ordinances imposing license tax on book agents, as applied to evangelist distributing religious tracts and obtaining living from money received therefor, held unconstitutional); New York Times Co. v. Sullivan, 376 U.S. 254, 265, 84 S.Ct. 710, 11 L.Ed.2d 686 (constitutional guaranties of freedom of speech and of the press held applicable to paid advertisement); and Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (no weight ascribed to the fact that petitioners profited from the sale of pornographic publications, although conviction of mailing thereof was affirmed), the fact that there is also a commercial aspect to the affair does not destroy First Amendment guaranties. Likewise, the expression of political, economic, religious or social tenets in a symbolic way, for example by parades (Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162; People v. Duffy, 79 Cal.App.2d Supp. 875, 179 P.2d 876), or by wearing of armbands (Tinker v. Des Moines Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731), is subject to but limited control. But the sale of the described artifacts does not reach this high level of expression, even though the items sold may have about them something of the personality of their creators. A good deal of the merchandise sold in department stores, small shops, art galleries, and other commercial establishments is of artistic value and communicates to the purchaser the maker's concepts over and above whatever utilitarian value the articles may have. To hold that First Amendment rights attach to the kind of merchandising described in the pleadings would be to open large segments of public property to private enterprise, because where First Amendment rights are present controls must by held to a minimum.

The mercantile element of the projected enterprises (although it would be unimportant in cases really involving free press or free speech) is significant here. In Breard v. Alexandria, 341 U.S. 622, 641, 71 S.Ct. 920, 932, 95 L.Ed. 1233, it is said of a contention that an ordinance was an abridgment of freedom of speech and the press: 'Only the press or oral advocates of ideas could urge this point. It was not open to the solicitors for gadgets or brushes.' Even in the dissent by Justices Black and Douglas, it is said of the ordinance (which forbade door-to-door soliciting of subscribers for magazines and periodicals without prior consent of owners or occupants) that the ordinance could constitutionally be applied to a 'merchant' who goes from door to door 'selling pots' (p. 650, 71 S.Ct. 920). Although we do not mean to equate appellants' creations with gadgets, brushes or pots, we do not find them to be so likely to communicate expression of the type of ideas held sacred by the First Amendment as to vest them with such broad rights as are held by pamphleteers or purveyors of newspapers. And although the appellants present before us no doubt are sincerely devoted to their arts, the widening of First Amendment protection to the vending of products of variegated and uncertain character might well invite applicants for licenses who would be possessed of the acumen associated with the followers of Mercury rather than applicants who are true artists illuminated by the aura of Apollo.

Appelllants have cited no authority for the enlargement of freedom of expression, accompanied by commercial advantage, for which they contend.

II. ASSERTED LACK OF STANDARDS

Appellants say that section 869 of the San Francisco Police Code, which reads: 'It shall be unlawful for any person to peddle goods, wares or merchandise, or any article, material or substance, of whatsoever kind on public streets, unless duly licensed so to do,' is unconstitutional on its face and as applied. The challenge to constitutionality on the face of the ordinance is contained in a bare statement in appellants' brief and is unsupported by argument or citation of authorities, except the decisions of Sail'er Inn, Inc. v. Kirby, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529, in which Business and Professions Code section 25656, which prohibits women from tending bar except when they are licensees, wives of licensees, or singly or with their husbands sole shareholders of a corporation holding the license, was held unconstitutional on tis face as arbitrarily foreclosing persons' rights to pursue a lawful occupation; and Purdy & Fitzpatrick v. State of California, 71 Cal.2d 566, 79 Cal.Rptr. 77, 456 P.2d 645, in which Labor Code section 1850, which limited the employment of aliens on public works, was held void on its face as arbitrarily foreclosing the right of employment and denial of the equal protection laws. Section 869 does not on its face purport to enact an outright prohibition against any...