Bell v. City of Mountain View

• Decision Date: 11 January 1977
• Citation: 66 Cal.App.3d 332,136 Cal.Rptr. 8
• Court: California Court of Appeals Court of Appeals
• Parties: M. R. BELL, dba AAA Ambulance Company, Plaintiff and Appellant, v. CITY OF MOUNTAIN VIEW, Defendant and Respondent. Civ. 38896.

Page 8

136 Cal.Rptr. 8

66 Cal.App.3d 332

M. R. BELL, dba AAA Ambulance Company, Plaintiff and Appellant, v. CITY OF MOUNTAIN VIEW, Defendant and Respondent.

Civ. 38896.

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

Jan. 11, 1977.

Hearing Denied March 9, 1977.

Turner & Sullivan, Sacramento, for plaintiff and appellant.

Bruce W. Liedstrand, City Atty., Richard S. Whitmore, Sp. Counsel, Whitmore & Kay, Los Altos, for defendant and respondent.

CHRISTIAN, Associate Justice.

Appellant M. R. Bell, doing business as AAA Ambulance Company, appeals from a judgment denying a writ of mandate to compel respondent City of Mountain View to issue him a permit to conduct an ambulance service within that city. The judgment followed an order sustaining a general demurrer to appellant's second amended petition without leave to amend.

It was alleged that, prior to April 7, 1969, appellant operated the AAA Ambulance Company in Santa Clara County and the surrounding area pursuant to permits issued by the California Highway Patrol as authorized by then Vehicle Code section 2416. Since April 7, 1969, appellant has been licensed by the highway patrol to operate an ambulance service pursuant to Vehicle Code section 2500 et seq.

Appellant applied to the City of Mountain View for a business license to operate his ambulance service within the city's boundaries. The city declined to issue such a permit on the ground that petitioner had failed to additionally apply for a special 'ambulance license' as required by chapter 4 of the Mountain View city code. It is a misdemeanor under the city code for any person to operate an ambulance service within the city without first obtaining this special license. Pursuant to section 4.7 of chapter 4, an ambulance license can only be obtained if the city council finds, after reviewing a report by the chief of police, that the 'public convenience and necessity require the proposed ambulance service . . ..' ¹

Appellant then petitioned for a writ of mandate to compel issuance of a permit to conduct an ambulance service. The superior court ruled that appellant would have to exhaust his administrative remedies by applying for the special ambulance license before he could seek mandamus. Appellant thereupon submitted an application for a license to operate ambulances pursuant to chapter 4 of the city code. The chief of police reported to the city council that appellant had complied in every respect with all state and local laws, ordinances and regulations, but recommended that appellant's application be denied on the ground of lack of public convenience and necessity, because 'It appears that the citizens of Mountain View are being adequately serviced by the existing companies.' After a public hearing on appellant's application, the city council resolved that the public convenience and necessity did not require an additional ambulance service, and denied the application. Appellant then returned to the superior court with a second amended petition, again seeking a writ commanding the city to issue him a permit to operate an ambulance service. It is from the judgment entered after a general demurrer to the second amended petition was sustained, without leave to amend, that appellant now appeals.

Appellant contends that the state preemption of the field of ambulance licensing rendered the City of Mountain View powerless to prohibit his ambulance service from operating within the city's borders. Appellant points to recent additions to the Vehicle Code which he claims resulted in a change from a permit system of state ambulance regulation to a licensing system. He submits that the legislation demonstrates that the state had decided to license ambulance services in the same way that it licenses numerous other occupations and professions. Appellant argues that since no local jurisdiction has the power to issue a license in the first instance to a person to engage in any of those occupations, a local jurisdiction is likewise powerless to issue licenses for the operation of an ambulance service.

The substance of appellant's argument was recently rejected in Sievert v. City of National City (1976) 60 Cal.App.3d 234, 236, 131 Cal.Rptr. 358, where the court held that Vehicle Code section 2512, subdivision (b), demonstrates that the area of ambulance licensing has not been preempted by state law.

Prior to 1969, the state's role with respect to ambulance regulation was limited to the issuance of permits by the California Highway Patrol to 'authorized emergency vehicles.' (See Veh.Code, § 2416.) During the 1968 session, however, the Legislature enacted sections 2500 to 2512, and 2540 to 2549, of the Vehicle Code, which pertain to the 'licensing' of ambulance operators. (Stats.1968, ch. 1309, § 5, p. 2466.) Sections 2500 to 2512 concern the requirements for obtaining a state ambulance license from the commissioner of the highway patrol, while sections 2540 to 2549 specify the grounds and procedure for denial, suspension, or revocation of a license. The section of the Vehicle Code provisions most closely pertinent to this appeal is section 2512, which provides in part:

'(a) The commissioner (of the California Highway Patrol), after consultation with, and pursuant to the recommendations of, the State Department of Public Health and the Department of Motor Vehicles, shall adopt and enforce such reasonable regulations as he determines are necessary for the public health and safety regarding the operation, equipment, and certification of drivers of all ambulances used for emergency services. . . .

'(b) This section shall not preclude the adoption of more restrictive regulations by local authorities, but it is the intent of the Legislature that regulations adopted by the commissioner pursuant to this section shall be the minimum necessary to protect public health and safety, and shall not be so restrictive as to preclude compliance by ambulances operated in sparsely populated areas. . . .'

The regulations which the commissioner has adopted pursuant to section 2512 are has adopted pursuant to section 2512 are published in title 13 of the California Administrative Code, chapter 2, subchapter 5.

In general, preemption by state law exists if one of three tests is met: '(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality.' (Galvan v. Superior Court (1969) 70 Cal.2d 851, 859--860, 76 Cal.Rptr. 642, 647, 452 P.2d 930, 935; Yuen v. Municipal Court (1975) 52 Cal.App.3d 351, 354, 125 Cal.Rptr. 87; People v. Mueller (1970) 8 Cal.App.3d 949, 953--954, 88 Cal.Rptr. 157.)

Examination of Vehicle Code section 2500 et seq. and the regulations adopted pursuant thereto reveals that the field of ambulance licensing has not been 'fully and completely' covered by state law as is required under the first test for preemption. The state licensing scheme does not include ambulances used for non-emergency purposes, which is apparently the type of service which appellant desires to conduct in the City of Mountain View. In fact, the area of non-emergency ambulance service appears to be completely unregulated by state law. Moreover, the Vehicle Code provisions are limited to the imposition of standards for the 'operation, equipment, and certification of drivers' of ambulances. (Veh.Code, § 2512, subd. (a), (b).) Many additional aspects of ambulance industry regulation, such as rates, advertising, and distribution of services, are not touched by the state licensing design. The primary focus of that design is the adequacy of ambulance equipment and field personnel; there is no pervasive regulation of the 'ambulance business' as such.

The subject matter has not been covered by state law in such terms as to indicate that a paramount state concern will not tolerate additional local action as required under the second test for preemption. Vehicle Code section 2512, subdivision (b), specifically authorizes regulation at the local level, subject to the sole limitation that such regulation not preclude ambulance service to sparsely populated areas. 'Where the statute contains language indicating that the Legislature did not intend its regulations to be exclusive, the general rule permitting additional supplementary local regulations has been applied.' (Abbott v. City of Los Angeles (1960) 53 Cal.2d 674, 683, 3 Cal.Rptr. 158, 164, 349 P.2d 974, 980; Pipoly v. Benson (1942) 20 Cal.2d 366, 371, 125 P.2d 482; Stewart v. County of San Mateo (1966) 246 Cal.App.2d 273, 282, 54 Cal.Rptr. 599.)

The final test--that the adverse effect on transient citizens outweighs any possible benefit to the municipality--has likewise not been met. The city's licensing ordinance avoids any interference with the free flow of inter-city commerce by exempting ambulances operating from a point outside the city to a destination within the city or proceeding through the city while en route to a destination outside the city. (Mountain View City Code, § 4.3; cf. Sievert v. City of National City, supra, 60 Cal.App.3d 234, 237, 131 Cal.Rptr. 358.) The ordinance thus applies only to ambulance firms which pick up patients within the City of Mountain View.

Appellant argues that, even if the state provisions allow regulation of some aspects of an ambulance business by local authorities, total prohibition is not authorized. He argues that Vehicle Code section 2512, subdivision (b), was only intended to allow local entities to impose...