Antonello v. City of San Diego

• Decision Date: 19 March 1971
• Citation: 93 Cal.Rptr. 820,16 Cal.App.3d 161
• Court: California Court of Appeals Court of Appeals
• Parties: John ANTONELLO, et al., Plaintiffs and Appellants, v. The CITY OF SAN DIEGO, Defendant and Respondent. Civ. 10200.

Page 820

93 Cal.Rptr. 820

16 Cal.App.3d 161

John ANTONELLO, et al., Plaintiffs and Appellants, v. The CITY OF SAN DIEGO, Defendant and Respondent.

Civ. 10200.

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

March 19, 1971.

Hearing Denied May 13, 1971.

[16 Cal.App.3d 164] William F. Gavin, San Diego, for plaintiffs and appellants.

John W. Witt, City Atty., and William H. Kronberger, Jr., Deputy City Atty., for defendant and respondent.

OPINION

COUGHLIN, Associate Justice.

Plaintiffs appeal from a judgment declaring valid a city ordinance regulating the construction and operation of 'peep show establishments.'

Plaintiffs own and operate arcades in the City of San Diego, known as 'peep show establishments', exhibiting motion pictures observed in a viewing booth, through a small aperture, upon deposit of a coin. The City Council of San Diego, on July 16, 1968, enacted Ordinance No. 9845NS which prescribes standards of construction, maintenance and operation of peep show places of business; declares the intent and purpose of the Council is to regulate the operation of peep shows 'for the protection of the public from the perils of fire, hazards to health, and for the preservation of the peace of the community'; requires the use of 'not less than one hour fire-resistive material' in the construction of all walls or partitions of rooms or booths, the aisles in any room in which a peep show device is located shall be not less than 42 inches in width, the light level in all rooms shall be not 'less than ten (10) foot candles at floor level', and in every room in which a peep show device is located there shall be not less than two lighted exits within the constant and unobstructed view of the occupants; and provides the number of persons in any room or partitioned portion of a room where a peep show device is located shall not exceed one person per 30 square feet.

Plaintiffs contend the ordinance is unconstitutional because it (1) is intended to prevent the operation of peep shows under the guise of requlation providing for the public health, safety and general walfare; (2) is municipal legislation in a field preempted by the State; (3) is an unreasonable exercise of the police power in that its provisions are not intended to effect a valid police power objective and impose unreasonable restraints upon a lawful business; and (4) violates the equal protection of the law guarantee of the Federal and State Constitutions by an unlawful classification of and discrimination against peep show operators.

Plaintiffs' case, as made out by their brief on appeal, is premised upon the implied assertion the motion pictures exhibited in their establishments concern 'sexual activity' or 'sexual matters'; upon the claim the real purpose of the ordinance is to 'close down' their establishments because of the subject matter of the motion pictures exhibited by them; upon the further claim their right to exhibit these motion pictures is protected by the constitutional guarantee of freedom of speech as held in Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 499, 72 S.Ct. 777, 779, 96 L.Ed. 1098; Burton v. Municipal Court, 68 Cal.2d 684, 689, 68 Cal.Rptr. 721, 441 P.2d 281; Flack v. Municipal Court, 66 Cal.2d 981, 988, 59 Cal.Rptr. 872, 429 P.2d 192; and also upon the claim regulation of 'sexual activity' or 'sexual matters', which assertedly is the purpose of the ordinance, is legislation in a field preempted by the State under the holding in the case of In re Lane, 58 Cal.2d 99, 22 Cal.Rptr. 857, 372 P.2d 897.

It is appropriate to note, in numerous instances the arguments advanced by plaintiffs in support of their contentions are premised on assumed facts; in some instances on facts the court found did not exist; and in other instances on general conclusionary statements premised on conjecture and surmise respecting the effect of the ordinance. By way of example, plaintiffs assert the real purpose of the ordinance and its resulting illegality 'may be readily inferred from the results which would naturally flow from its enforcement', but 'the results' in question are not specified nor is there reference to any evidence upon which to premise the conclusion advocated; argue the ordinance is an attempt to regulate 'sexual matters' under the guise of a health and safety regulation but it is not shown how the ordinance effects this disguised purpose; and assume the affected peep shows are engaged in 'sexual activity' within a field of legislation preempted by the State whereas there is no proof respecting either the type of 'sexual activity' in which they engage, or the subject matter of the pictures displayed.

The overriding issue presented by plaintiffs' contentions is whether the purpose of the ordinance is to prevent the operation of peep shows or to protect the health, safety and general welfare of the public by prescribing conformance to designated standards of construction and operation.

It is fundamental a lawful business may not be destroyed under the guise of regulation. (Ex parte Hayden, 147 Cal. 649, 650, 82 P. 315; gen. see 11 Cal.Jur.2d 343, 345.) On the other hand, the manner of its operation may be subject to regulation reasonably necessary to promote the public health, safety and general welfare, even though burdensome. (Serve Yourself Gas etc. Assn. v. Brock, 39 Cal.2d 813, 819, 249 P.2d 545; Hart v. City of Beverly Hills, 11 Cal.2d 343, 345, 79 P.2d 1080.)

The fact plaintiffs constitutionally may be guaranteed the right to operate peep shows of the type they operate does not constitutionally guarantee the right to operate them in places and under conditions detrimental to the public health, safety and welfare. (Burton v. Municipal Court, Supra, 68 Cal.2d 684, 689, 68 Cal.Rptr. 721, 441 P.2d 281; Serve Yourself Gas etc. Assn. v. Brock, Supra, 39 Cal.2d 813, 819, 249 P.2d 545; In re Porterfield, 28 Cal.2d 91, 101, 168 P.2d 706.) To the contrary, the premises upon which plaintiffs engage in business, even though utilized for the exercise of First Amendment rights, are subject to reasonable regulation under the police power. (Burton v. Municipal Court, Supra, 68 Cal.2d 684, 690, 68 Cal.Rptr. 721, 441 P.2d 281.)

Where the purpose of a statute is relevant to a determination of its constitutional validity a court, to ascertain such purpose, may examine its immediate objective and ultimate effect as well as events leading up to its passage (Parr v. Municipal Court, 3 Cal.3d 861, 863, 866, 92 Cal.Rptr. 153, 479 P.2d 353; Mulkey v. Reitman, 64 Cal.2d 529, 533, 50 Cal.Rptr. 881, 413 P.2d 825), but not the motives influencing legislators in voting its passage. (United States v. O'Brien, 391 U.S. 367, 383, 88 S.Ct. 1673, 1682, 20 L.Ed.2d 672; Serve Yourself Gas etc. Assn. v. Brock, Supra, 39 Cal.2d 813, 819, 249 P.2d 545; Simpson v. City of Los Angeles, 4 Cal.2d 60, 65, 47 P.2d 474.) A statute effecting a valid purpose is valid regardless of the motives actuating its enactment. (United States v. O'Brien, Supra, 391 U.S. 367, 383, 88 S.Ct. 1673, 1682,...