Askew v. Parker
| Decision Date | 18 June 1957 |
| Citation | 151 Cal.App.2d 759,312 P.2d 342 |
| Court | California Court of Appeals Court of Appeals |
| Parties | J. B. ASKEW, as Director of Public Health of the County of San Diego, and County of San Diego, Plaintiffs and Respondents. v. Merle E. PARKER, The Foundation For Divine Meditation, Inc., a California corporation, The Foundation for Divine Meditation, an unincorporated association, National Institute of Christian Healing, Academy of Self Attainment, of al., Defendants and Appellants. Civ. 5444. |
M. L. Campbell, National City, for appellants.
James Don Keller, Dist. Atty. and County Counsel, by Joseph B. Harvey, Deputy County Atty., San Diego, for respondents.
This is an action by plaintiffs and respondents J. B. Askew, as Director of Public Health of the County of San Diego, and County of San Diego against defendants and appellants Merle E. Parker, The Foundation for Divine Meditation, Inc., et al., enjoining the defendants from preventing plaintiffs from inspecting the swimming pool on defendants' premises, pursuant to section 24104 of the Health and Safety Code.
Defendants defended their right to prevent the county sanitarians from such inspection on the ground that the pool is private and therefore not within the scope of the cited section. It is further claimed that the water in the pool was frequently changed; that it appeared clear and clean and that defendant Parker, before the pool was placed in use, had taken a sample of the water to a private laboratory for test purposes and it was found free from harmful bacteria.
Defendant Parker is the chief executive officer of the corporation named. It owns the real property upon which the swimming pool was constructed. It was 50 X75 feet in dimension and built during the 1954 summer season. On June 11, 1955, defendants sent out about 300 to 400 general written invitations, by mail, to all post-office box holders and R.F.D. box holders, through the U. S. Post Office at Valley Center, to all the teen-age children in that community, to use the pool free of charge. Over 100 of these children registered to use the pool. During the summer season of 1955 it was used by 40 to 60 of these children every day except Saturdays and Sundays. The pool was fenced and no persons were admitted except those who could qualify under the general invitations sent out. Two life guards or instructors were employed and paid by the church. On June 16, 1955, two sanitarians of plaintiffs attempted to obtain information concerning the nature of the swimming pool operation. Defendants refused to cooperate. A notice was posted on the property by defendants reciting:
'I personally, and the organization I head, refuse to recognize any so-called 'health department' which does not have upon its board representatives of ALL of the licensed healing arts * * * viz: Chiropractors, Naturopaths, Osteopaths, and Christian Science Practitioners, as well as the M.D.'s whose aim it is to 'outlaw' all branches of healing not dealing in drugs.' Such representatives were directed to remain away until some court directed such an entry.
On September 1, 1956, while defendants were again operating the pool, as before, plaintiffs' agents entered the premises and asked permission of defendants to take a sample of the swimming pool water to make a bacterial analysis. The request was refused, although the pool was then being used pursuant to the public invitation above mentioned. After a hearing the court found that under the conditions existing the defendants were operating a public swimming pool within the meaning of the Health and Safety Code, and granted the injunction for which plaintiffs prayed.
The principal question is the sufficiency of the evidence to support this finding. Section 24100 of the Health and Safety Code provides that: 'Public swimming pool,' as used in this article, means any public swimming pool, bathhouse, public swimming and bathing place and all related appurtenances.' Section 24101 provides that 'The State Department of Public Health has supervision of sanitation, healthfulness, and safety of public swimming pools.' Defendants quote Black's Law Dictionary defining 'Public' as 'Open to all; * * * Common to all or many; * * * open to common use.' They also cite section 51 of the Civil Code. They claim that before a swimming pool can be classified as public it must be open to all, and is not a public swimming pool unless a monetary consideration is exacted; that the courts and the legislature are gradually...
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