Board of Police Commissioners v. Superior Court

• Court: California Court of Appeals
• Writing for the Court: KLEIN; DANIELSON; LUI
• Citation: Board of Police Commissioners v. Superior Court, 214 Cal.Rptr. 493, 168 Cal.App.3d 420 (Cal. App. 1985)
• Decision Date: 20 May 1985
• Parties: BOARD OF POLICE COMMISSIONERS and Daryl F. Gates, Petitioners, v. The SUPERIOR COURT of California, County of Los Angeles, Respondent, EASEBE ENTERPRISES, INC., dba Chippendales, Real Party in Interest. Civ. B005936.

Page 493

214 Cal.Rptr. 493

168 Cal.App.3d 420

BOARD OF POLICE COMMISSIONERS and Daryl F. Gates, Petitioners, v. The SUPERIOR COURT of California, County of Los Angeles, Respondent EASEBE ENTERPRISES, INC., dba Chippendales, Real Party in Interest.

Civ. B005936.

Court of Appeal, Second District, Division 3, California.

May 20, 1985.

Ira Reiner, City Atty., Frederick N. Merkin, Sr. Asst. City Atty., Robert Cramer, Asst. City Atty. and Pamela Victorine, Deputy City Atty., for petitioners.

No appearance for respondent.

Solomon, Saltsman & Hart and Ralph B. Saltsman, Marina Del Rey, for real party in interest.

KLEIN, Presiding Justice.

The Board of Police Commissioners of the City of Los Angeles and Daryl F. Gates (Board) petitioned this court for a writ of mandate/prohibition to set aside a preliminary injunction restraining it from conducting an administrative hearing to determine whether certain permits held by Easebe Enterprises, Inc., dba Chippendales, (Easebe) should be revoked or suspended due to numerous alleged violations of the Los Angeles Municipal Code, particularly overcrowding.

Because the Board had jurisdiction to hold its scheduled hearings on the accusations and Easebe did not exhaust its administrative remedies, the superior court was without jurisdiction to act. Therefore, the petition for a writ of prohibition is granted.

PROCEDURAL AND FACTUAL BACKGROUND ¹

In March 1979, the Board granted Easebe a Dance Hall permit pursuant to Los Angeles Municipal Code (Code) section 103.106. In March 1980, Easebe received a Cafe Entertainment and Shows (Cafe Entertainment/Shows) permit pursuant to section 103.102. ²

Between February 1983 and March 1984, a series of accusations were brought before the Board charging Easebe with numerous violations of the Code, including overcrowding. A hearing on these allegations was set by the Board for June 1, 1984. Easebe sought injunctive relief, and on May 9, 1984, the superior court issued an order to show cause why a preliminary injunction enjoining further prosecution should not issue.

Following two days of hearings, the superior court granted a preliminary injunction on the grounds that the Cafe Entertainment/Shows permit, section 103.102, subdivision (f), set forth the sole jurisdictional basis for suspension or revocation of both permits, and that the allegations in the accusation did not constitute a violation of section 103.102(f).

The Board filed a petition for a writ of mandate/prohibition with this court charging the superior court was without jurisdiction to act because Easebe did not exhaust its administrative remedies. On July 17, 1984, this court issued an alternative writ directing the superior court to either vacate its order or to show cause why it should not do so. The superior court declined.

DISCUSSION

1. Applicable statutory scheme re suspension or revocation.

a. Introductory information.

Easebe was required to obtain police permits to operate Chippendales, at which dancing and live entertainment were offered, pursuant to the Code Chapter X, entitled Business Regulations.

Section 103.102 governs Cafe Entertainment/Shows, and Easebe's permit was granted in conformity with subdivision (c) which reads in pertinent part: "No persons shall engage in cafe entertainment and shows business without a written permit from the Board. [p] The provisions of this Section shall govern the power of the Board to issue, deny, suspend or revoke a permit ...." (Italics added.)

Subdivision (f) thereof controls suspension or revocation of any permit issued under section 103.102, subdivision (c) and provides for suspension or revocation when the building of the business constitutes a threat to the public health or safety. ³

The Dance Hall permit was governed by section 103.106, which section does not contain the mandatory language re revocation and suspension found in section 103.102. ⁴ Therefore, other provisions within the statutory scheme must be looked to for grounds of revocation or suspension of said permit. Sections 103.34 "Suspension or Revocation of Permits," and 103.35 "Disciplinary Action--Grounds" so provide.

Section 103.34 allows: "The Board [to], ... temporarily suspend for a period not exceeding one year or revoke the permit of any permittee who commits any one or more of the acts or omissions constituting grounds for disciplinary action under this Article."

Section 103.35 states the grounds for discipline and provides that: "It shall be a ground for disciplinary action if any permittee, ... has: [p ] .... [p] (b) Violated any provision of this Article or of any statute relating to his permitted activity; or [p ] .... [p] (f) Committed any unlawful, ... or dangerous act while conducting a permitted business; or [p] .... [p] (j) Conducted the permitted business in a manner contrary to the peace, health, safety, and general welfare of the public; ..."

Section 57.10.30 regulates occupancy so as to prevent overcrowding, and makes the person in charge of the premises responsible for preventing overcrowding.

Section 54.10.34 also places the responsibility on the person in control to limit occupancy to that number allowed as a condition of the permit.

b. Section 103.102 fatally infirm in application here.

When the Board sought to hold a hearing on the allegations in the accusations including overcrowding under these and other sections, Easebe immediately filed a petition to enjoin any such hearing, claiming the Board would be acting in excess of its jurisdiction because any action to revoke or suspend Easebe's permit due to overcrowding would be contrary to its "defined power."

Easebe's theory was that subdivision (f) of section 103.102, which section deals with constitutionally protected activity, refers only to the condition of the building, but not its use, which overcrowding would constitute.

When confronted with Easebe's position, in spite of the mandatory and limiting language of section 103.102 with the use of the word "shall," the Board argued it could rely on other general provisions of the statutory scheme.

The Board's reliance on sections other than 103.102 for the revocation or suspension of the Cafe Entertainment/Shows permit is misplaced. Section 103.102 was expressly drafted to cover the First Amendment protected activity and is controlling. However, section 103.102, subdivision (b)(1) is fatally flawed in its application here in that it does not regulate the use of the building, merely the condition thereof.

A similar statute which withstood judicial scrutiny is found in 12319 Corporation v. Business License Com. (1982) 137 Cal.App.3d 54, 65-66, footnote 4, 186 Cal.Rptr. 726, footnote 4, dealing with a Los Angeles County ordinance affecting "ACTIVITIES WHICH MAY INVOLVE FREE SPEECH" requiring a permit as a condition to offering entertainment of any sort.

The 12319 Corporation court held that the nightclub's entertainment license involved First Amendment protected activities, but could be suspended or revoked for failure to comply with fire and safety requirements of the law. (Id., at p. 65, 186 Cal.Rptr. 726.) The ordinance in 12319 Corporation stated a license could be suspended or revoked if one or more conditions existed, including as in section 103.102, subdivision (f), "[t]he building, structure, equipment or location of such business does not comply with or fails to meet all of the health, zoning, fire and safety requirements or standards of all the laws of the State of California or ordinances of the County of Los Angeles," (Id., at pp. 65-66, fn. 4, 186 Cal.Rptr. 726, fn. 4) and further adding, "applicable to such business operation." (Ibid., italics added.)

Thus, the county ordinance in 12319 Corporation contained the crucial phrase which is glaringly absent in section 103.102, subdivision (f), namely, "applicable to such business operation." (Id., at p. 66, fn. 4, 186 Cal.Rptr. 726, fn. 4, italics added.)

It may seem overly technical to fault 103.102, subdivision (f) for lacking the express language of the county ordinance because obviously the City must have intended to control the business operation as well as the structure in which the business is being conducted. But statutes regulating First Amendment protected activities are subject to strict scrutiny.

Sunset Amusement Co. v. Bd. of Police Commissioners (1972) 7 Cal.3d 64, 101 Cal.Rptr. 768, 496 P.2d 840, cited by the 12319 Corporation court, also dealt with the Board of Police Commissioners of the City of Los Angeles and city ordinances. There, the Board denied an application for a renewal of a permit to operate a roller skating rink. Upholding the denial, the Sunset court found that any First Amendment activities associated with the operation of the Hollywood Rollerbowl would be "negligible and wholly incidental" to its obvious function of providing amusement and exercise. (Sunset Amusement Co. v. Bd. of Police Commissioners, supra, at p. 75, 101 Cal.Rptr. 768, 496 P.2d 840.)

The Sunset court indicated that where First Amendment activities are involved, as here, licensing ordinances are subject to strict scrutiny, citing Burton v. Municipal Court (1968) 68 Cal.2d 684, 68 Cal.Rptr. 721, 441 P.2d 281, among other cases. (Sunset Amusement Co. v. Bd. of Police Commissioners, supra, at p. 72, 101 Cal.Rptr. 768, 496 P.2d 840.) "The crucial factor here is our zealous solicitude for rights falling within the protection of the First Amendment," since in that category of cases, " ' "precision of regulation must be the touchstone." ' " (Burton v. Municipal Court, supra, at pp. 690-691, 68 Cal.Rptr. 721, 441 P.2d 281, italics added.)

Irrespective of the presumed intent of the city, it would be poor precedent to read an entire phrase enabling an entirely different meaning, into a statute which requires "precision of regulation"; therefore, section 103.102, subdivision (f) fails in its application here.

c. Section 103.106 does not cover...