City of Seattle v. Bittner, 42080
| Decision Date | 11 January 1973 |
| Docket Number | No. 42080,42080 |
| Citation | 505 P.2d 126,81 Wn.2d 747 |
| Parties | The CITY OF SEATTLE, Appellant, v. Harold G. BITTNER et al., Respondents. |
| Court | Washington Supreme Court |
A. L. Newbould, Corp. Counsel, Arthur T. Lane, Asst. Corp. Counsel, Seattle, for appellant.
Young & Hoff, Victor V. Hoff, Seattle, for respondents.
These are consolidated criminal actions originating in the Municipal Court of the City of Seattle, wherein the respondents were charged and convicted of violating Seattle Ordinance 48022 § 22 as amended (Seattle Code § 10.04.010), in that they operated motion picture theaters without licenses. In cases involving operation of the Mecca Twin Theatre located at 711 Pike Street, the licensee's application for a renewal of theater license had been denied by the city council on the ground that one of the licensee's officers had been convicted of exhibiting obscene motion pictures. In cases involving the operation of the Adult Book Store theater, located at 1415--1st Avenue, the application of respondent Kravitz for an initial license was denied upon the ground that the theater had been operated without a license, the application having been suspended pending the justice court prosecution of one of the book store employees for sale of obscene material at the premises.
Upon appeal to the superior court, the convictions were reversed, the court holding that the ordinance in question is unconstitutional upon its face. The City has appealed.
Pertinent portions of Seattle Ordinance 48022 § 11 as amended, are as follows:
10.02.100 Licenses granted by council--Application procedure and information required The following licenses may be granted only by the city council:
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(6) Theater licenses
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Application for any of the above shall be made in the office of the city comptroller on a form prepared by him substantially as follows:
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. . . The comptroller shall forward all such license applications to the city council which before acting upon the same shall request the chief of police to investigate the truth of the statements in the application and all other matters which might tend to aid the council in determining whether to grant the license. The chief shall report to the council as to reasons he may have for objecting to the granting or renewing of the license. If the council is satisfied that the statements in the application are true, that the applicant and all persons connected with the business are of good character and that the premises in which the activity sought to be licensed will be conducted comply with the requirements of all ordinances relating to buildings, fire, health and sanitation, and that such premises are situated in a place where such businesses are not prohibited by the Zoning Ordinance or other law and that all other requirements and conditions of this chapter relating to the business for which the license is sought have been met, it shall by resolution direct the city comptroller to issue such license, otherwise it shall deny the same; Provided, however, that if the applicant (or if a corporation, any of its officers) has within ten years of the date of application been convicted of any felony or any misdemeanor involving moral turpitude or intent to defraud, or has within ten years of the date of application been released from a penal institution or from active supervision on parole as a result of any such conviction, no such license shall be granted; Provided, further, however, that the city council may waive not to exceed five years of such period upon satisfactory showing by the applicant of rehabilitation. The city council may grant any license as a probationary license for such time and under such conditions as it may deem necessary to insure continued adherence to this or other ordinances, but no probationary license shall be granted to anyone not qualified for licensing under this chapter.
It will be observed that this ordinance lodges in the city council discretion to deny a license if it fails to find that an applicant and 'all persons connected with the business' are of good character. It also provides that a license may not be granted to any person who has been convicted of a crime 'involving moral turpitude or intent to defraud' within 5 years of the date of application. It is these provisions which the respondents contend and which the trial court held constitute an improper use of the licensing power to restrain the exercise of rights guaranteed under the first amendment to the United States Constitution and Const. art. 1, § 5.
As we said in Fine Arts Guild, Inc. v. Seattle, 74 Wash.2d 503, 445 P.2d 602 (1968), it is now well settled that motion pictures and plays are a form of expression entitled to the constitutional guarantees of free speech and press. Also well settled is the proposition that any restraint imposed upon a constitutionally-protected medium of expression comes into court bearing a heavy presumption Against its constitutionality.
The ordinance in question denies to certain classes of citizens--those who in the opinion of the city council are not of good character, and those who have been convicted of a certain type of crime within a specified period--the right to engage in the business of showing motion pictures.
In seeking to justify these restrictions, the appellant maintains that they constitute a proper exercise of its licensing power. It cites the case of Tarver v. City Comm. of Bremerton, 72 Wash.2d 726, 731, 435 P.2d 531 (1967). In that case we said of the licensing power when used for regulatory purposes:
The wisdom and propriety of a municipal ordinance establishing certain standards, regulations or controls for a particular business or occupation is not a question for this court to decide; rather, the scope of our review is limited to determining whether the ordinance is within the scope of municipal power and whether the ordinance and the actions taken pursuant thereto are arbitrary, capricious or unlawful.
We examined prior cases in which we had considered restrictions placed upon various enterprises by municipal authorities and concluded that the authority to regulate varies, depending upon the type of activity or enterprise involved. We said that generally businesses and occupations fall into one of three categories--those which are pursued by private means upon private property; those which involve some social or economic evil, such as gambling or liquor traffic, or which may, under certain circumstances, become a nuisance or hazard to the public health and safety; and those which involve the use of public property such as streets or parks. 1
Tarver v. City Comm. of Bremerton, Supra, was an action in which a taxicab operator challenged the constitutionality of an ordinance which bestowed upon the city commission discretion to deny a license to a person who was not found to be of good moral character and reputation. We observed that the character of a driver of a taxicab is a relevant factor in determining his qualifications for a license, because of the safety hazards involved as well as the temptation to engage in illegal activities such as liquor traffic, and further that the taxicab operator uses the public streets to pursue his business. For these reasons, we said, the power to regulate is broader than it would be in the case of a business carried on upon private property and involving no extraordinary hazards or risks of illegal activities.
We held in that case that the discretion lodged in the city commission was not inappropriate to effect the legitimate purposes of the licensing act, noting that the exercise of that discretion would be subject to judicial review for arbitrariness, and that the factors considered must have a reasonable relationship to the licensed occupation.
Another case in which we have recently sustained the right of a licensing authority to inquire into the character of an applicant is State ex rel. Pitkanen v. Zittel, 77 Wash.2d 366, 462 P.2d 944 (1969). In that case, the petitioner was refused a license as a special policeman by the Tacoma chief of police, to whom the duty to pass upon the qualifications of applicants for such licenses had been delegated by the city manager. The petitioner contended that, since his services would be performed entirely on private property, the public had no legitimate interest which required the regulation of his vocation. However, we pointed out that the badge of a special policeman indicates to those persons whom he serves that he has been approved by the city police and can be trusted to guard the client's property and not abuse his position. In sustaining the denial of the license, we also observed that any abuse of discretion by the licensing authority was subject to judicial review.
On the other hand, we held in State ex rel. Makris v. Superior Court, 113 Wash. 296, 193 P. 845 (1920), that one engaged in the business of selling soft drinks and candy on private property could not be denied a license at the discretion of the licensing authority. We said in that case that an ordinance which authorizes the issuing or withholding of a license to engage in a business which within itself is ordinarily perfectly lawful, and commits to any officer or set of officers the power to decide according to their notions in each particular case the question on the propriety of issuing or withholding a license therefor, and thus to decide who may and who may not engage in such business, is authorizing the exercise of arbitrary power in violation of the fourteenth amendment to the United States Constitution, which provides that 'No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.'
We said further:
We do not in our present inquiry take note of decisions which have to do with the granting of licenses for the sale of intoxicating liquors, the...
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