Burton v. Municipal Court of Los Angeles Judicial Dist.of Los Angeles County

Decision Date06 June 1968
Citation68 Cal.2d 684,441 P.2d 281,68 Cal.Rptr. 721
Parties, 441 P.2d 281 Stewart David BURTON et al., Petitioners, v. MUNICIPAL COURT OF the LOS ANGELES JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 29524.
CourtCalifornia Supreme Court

Stanley Fleishman and Martha Goldin, Hollywood, for petitioners.

No appearance for respondent.

Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., Richard G. Kolostian and Michael T. Sauer, Deputy City Attys., for real party in interest.

MOSK, Justice.

Stewart Burton, manager of the Vista Theater in Los Angeles, and Gregory Giglioli, assistant manager (hereinafter petitioners), are charged with violating section 103.109 of the Los Angeles Municipal Code a misdemeanor. 1 The ordinance provides that no person shall engage in the business of exhibiting motion picture films to the public in any theater for compensation without a written permit from the Board of Police Commissioners. The permit must be renewed yearly. (Los Angeles Mun.Code, § 103.06(a).) Section 103.29(b) states that after an investigation the board may deny a permit if it finds that 'the said operation will not comport with the peace, health, safety, convenience, good morals, and general welfare of the public.' Section 103.31(b) provides that the board shall not issue a permit for a business which has been or is a public nuisance, and section 103.31(c) 1 states that the board may deny a permit if the applicant is 'unfit to be trusted with the privileges granted by such permit, or has a bad moral character, intemperate habits or a bad reputation for truth, honesty, or integrity.'

Petitioners filed demurrers to the complaints on the ground that these ordinances unconstitutionally violate their rights of free speech and press (U.S.Const., 1st and 14th Amends.; Cal.Const., art. I, § 9) as well as their rights to due process and equal protection of the laws (U.S.Const., 14th Amend.; Cal.Const., art. I, § 13). The demurrers were overruled, and petitioners pleaded not guilty to the charges. They seek by this writ of prohibition to restrain respondent court from proceeding with the trial.

The principal issues to be determined are, first, whether a municipality is prohibited from requiring that a permit be obtained for the operation of a motion picture theater; and second, if no constitutional inhibition exists in this regard, whether sections 103.29(b), 103.31(b) and 103.31(c) 1 set forth standards for the issuance of a permit so vague and broad as to improperly abridge petitioners' rights of free speech and press. As will appear, we conclude the initial question must be answered in the negative, but there is merit in petitioners' alternative contention.


We are met at the threshold with a query as to petitioners' standing to challenge these ordinances. The board contends that petitioners lack standing in the absence of a rejected application and that their appropriate remedy is to challenge the refusal to grant a permit rather than to operate the theater without authorization and thus invite arrest. It is urged that if the requirement to obtain a permit is valid (§ 103.109), then petitioners' only recourse is to compel the board to issue a license. In other words, the board contends, we must view the four corners of the section in a vacuum and if the city may properly require petitioners to obtain a permit to operate a theater, we must refuse to grant the writ regardless of the constitutionality of the companion ordinances that set forth the standards under which the board must issue or deny the permit.

We hold that the suggested antecedental procedure is not essential. It is settled that a person has the standing to challenge a statute on the ground that it delegates overly broad licensing authority to an administrative officer whether or not his conduct could be proscribed by a properly drawn enactment and whether or not he has applied for a license. One who could have obtained a license for the asking may call into question the whole scheme of licensing when he is prosecuted for failure to procure it. Standing is recognized in such a situation because of the dangers inherent in tolerating, in the realm of the First Amendment, the existence of a penal statute susceptible of sweeping and improper application. (Freedman v. State of Maryland (1965) 380 U.S. 51, 56, 85 S.Ct. 734, 13 L.Ed.2d 649; Staub v. City of Baxley (1958) 355 U.S. 313, 319, 78 S.Ct. 277, 2 L.Ed.2d 302; Thornhill v. State v. Alabama (1940) 310 U.S. 88, 97, 60 S.Ct. 736, 84 L.Ed. 1093.)

In Staub a city ordinance provided that it was a misdemeanor to solicit per sons to become members of an organization which assessed dues unless a license was first obtained from the city. In passing upon an application for a permit, city officials were to 'consider the character of the applicant, the nature of the business of the organization for which members are desired to be solicited, and its effects upon the general welfare * * *.' The appellant was convicted of soliciting memberships without a permit. It was held that the several sections of the challenged ordinance constituted one complete act for the purpose of licensing those in the appellant's position and that she had standing to challenge the ordinance on the ground that it constituted a prior restraint upon speech even though she had not applied for a license. Numerous other decisions make it clear that a person has standing to challenge a licensing statute invalid on its face without first applying for a license. (See, e.g., Kunz v. People of State of New York (1951) 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280; Lovell v. City of Griffin (1938) 303 U.S. 444, 452--453, 58 S.Ct. 666, 82 L.Ed. 949; Smith v. Cahoon (1931) 283 U.S. 553, 562, 51 S.Ct. 582, 75 L.Ed. 1264.) Poulos v. State of New Hampshire (1953) 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105, is distinguishable since there the licensing ordinance had previously been found valid.


We come, then, to petitioners' claim that section 103.109 is unconstitutional because the requirement that a license be obtained and a fee paid therefor inhibits their rights of free speech and press.

It can no longer be questioned that expression by means of motion pictures is included within the free speech and press guarantees of the First and Fourteenth Amendments (Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495, 502, 72 S.Ct. 777, 96 L.Ed. 1098; Flack v. Municipal Court (1967) 66 Cal.2d 981, 988, 59 Cal.Rptr. 872, 429 P.2d 192; Weaver v. Jordan (1966) 64 Cal.2d 235, 242, 49 Cal.Rptr. 537, 411 P.2d 289), and the fact that petitioners are conducting their business for profit in no way dilutes protection of these rights (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 266, 84 S.Ct. 710, 11 L.Ed.2d 686; Wirta v. Alameda-Contra Costa Transit Dist. (1967) 68 A.C. 46, 49, 64 Cal.Rptr. 430, 434 P.2d 982). However, this basic principle does not bestow upon one engaged in the business of exhibiting motion pictures a gratuitous immunity from all restraint in the pursuit of his occupation. A municipality may impose reasonable regulations upon the conduct of an economic enterprise (In re Porterfield (1946) 28 Cal.2d 91, 101, 168 P.2d 706, 167 A.L.R. 675), including the business of operating a motion picture theater (Tarbox v. Board of Supervisors (1958) 163 Cal.App.2d 373, 377, 329 P.2d 553).

No creditable authority supports an exemption for motion picture theaters from the requirement of obtaining a license pursuant to a city's police power to regulate theaters, and a substantial number of decisions have upheld such authority and the exaction of a license fee. (See, e.g., Chemline, Inc. v. City of Grand Prairie (1966) 5 Cir., 364 F.2d 721, 728; City of Morrilton v. Malco Theaters (1941) 202 Ark. 100, 149 S.W.2d 55, 57; City of Metropolis v. Gibbons (1929) 334 Ill. 431, 166 N.E. 115, 117--118; People v. Steele (1907) 231 Ill. 340, 83 N.E. 236, 237, 14 L.R.A.,N.S., 361; Kirtley v. State (1949) 227 Ind. 175, 84 N.E.2d 712, 714; Central States Theater Corporation v. Sar (1954) 245 Iowa 1254, 66 N.W.2d 450, 456; see 58 A.L.R. 1340; 111 A.L.R. 778; 4 Am.Jur.2d 150.)

Petitioners rely upon Thomas v. Collins (1945) 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430, in which the United States Supreme Court declared unconstitutional a state statute requiring labor organizers to register with and procure a card from a designated public official before soliciting membership in a labor union. It was held that since the exercise of the rights of free speech and assembly cannot be proscribed, the same result could not be accomplished indirectly by the device of requiring previous registration as a qualification for exercising these rights and making such a condition the foundation for imposition of a penalty. Petitioners maintain that the ordinance under consideration here also requires prior registration in order to exercise lawful First Amendment prerogatives and thereby places an unconstitutional restraint on the exercise of those rights. This contention, while emotionally appealing, overlooks the circumstance that petitioners operate a commercial establishment to which the public is invited for a fee. That First Amendment rights are being utilized on the premises does not exempt a commercial entrepreneur from compliance with reasonable regulations under the police power. The requirement that a license be obtained as a condition of engaging in the motion picture business is a reasonable means of assuring compliance with police power regulations.

Petitioners' final point with regard to the validity of section 103.109 is that the city is legislating in an area exclusively occupied by state law. However, section 16000 of the Business and Professions Code specifically provides that the legislative bodies of incorporated cities, such as Los Angeles, may license 'any kind of...

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