Carlin v. City of Palm Springs

• Decision Date: 26 January 1971
• Citation: 14 Cal.App.3d 706,92 Cal.Rptr. 535
• Court: California Court of Appeals Court of Appeals
• Parties: Mary CARLIN and James Carlin, doing business under the fictitious name of 650 Hotel, Plaintiffs and Appellants, v. CITY OF PALM SPRINGS, a Municipal Corporation, et al., Defendants and Respondents. Civ. 9833.

Page 535

92 Cal.Rptr. 535

14 Cal.App.3d 706

Mary CARLIN and James Carlin, doing business under the fictitious name of 650 Hotel, Plaintiffs and Appellants, v. CITY OF PALM SPRINGS, a Municipal Corporation, et al., Defendants and Respondents.

Civ. 9833.

Court of Appeal, Fourth District, Division 2, California.

Jan. 26, 1971.

Hearing Denied March 26, 1971.

[14 Cal.App.3d 708] Reid, Babbage & Coil, Enos C. Reid and Donald F. Powell, Riverside, for plaintiffs and appellants.

Fred R. Metheny, Palm Springs, City Atty., for defendants and respondents.

OPINION

KERRIGAN, Associate Justice.

Plaintiffs have owned and operated a small hotel in Palm Springs for many years. They have done business under the fictitious name of '650 Hotel' ¹ since 1956. In 1967 the City Council of Palm Springs adopted a comprehensive sign ordinance. One of the provisions of the ordinance prohibits, in effect, the use of an outside business sign that makes reference to prices or rates. Under the ordinance 'rate signs' are deemed to be public nuisances Per se.

Several years prior to the enactment of the ordinance, the plaintiffs attached to the main entrance of their hotel, fronting on North Palm Canyon Drive, a permanent sign displaying the official name of the business as '650 Hotel.' Subsequent to the adoption of the sign ordinance, the city officials responsible for enforcement of the ordinance determined that plaintiffs' sign was a 'rate sign' and ordered its removal.

Plaintiffs appealed unsuccessfully to the council for relief from the removal order. Following the exhaustion of their administrative remedies, they filed an action for injunction and declaratory relief against the city and several officers and department heads thereof. The purpose of the action was to secure a judicial declaration that the sign ordinance was unconstitutional to the extent that it prohibited rate signs, and to enjoin its enforcement insofar as it applied to plaintiffs' business sign.

During the course of the trial, appraisers, architects, businessmen and planning officials testified on behalf of the city. The substance of their testimony was that aesthetics are of essential importance to a community; that rate signs are detrimental to aesthetics; that aesthetic values cannot be separated from economic factors; that rate signs tend to proliferate, if permitted, and proliferation would adversely affect the quality of the civic environment and the city's attraction to tourists; that rate signs tend to be deceptive and smack of cutthroat competition and overcommercialization.

Plaintiffs called a formidable number of witnesses, including the former Planning Director of Riverside County. The essence of their testimony was that there was no connection between 'rate signs' and the general welfare of the community; that a permanent, attractive rate sign, from an aesthetic viewpoint, is no more detrimental to the general welfare of the community than a non-rate sign; that prior to the enactment of the ordinance, there were only a few businesses which advertised rates or prices; that plaintiffs never misrepresented their rates at any time.

Following a lengthy trial, the court found, in substance, that the city of Palm Springs is a desert resort; that being tourist-oriented, the use of advertising signs has a direct bearing on the economic and aesthetic well-being of the community and, consequently, the general welfare of the community; that rate signs give rise to false advertising and hard-core commercialization which have a detrimental impact on the general welfare of the city; that a separate classification of rate signs is reasonable; that plaintiffs' business sign is a rate sign and is therefore violative of the ordinance. The court concluded the Palm Springs sign ordinance to be constitutional and enforceable against the plaintiffs, and entered judgment accordingly. ²

While plaintiffs' assault on the judgment is stated in varying ways, the crucial issue on appeal is whether the ordinance is unconstitutional as being violative of equal protection and free speech concepts or whether it represents a valid exercise of the police power.

This is a case of first impression in this state. It presents a clear conflict between an individual's right to conduct a business and to advertise his business as opposed to a municipality's right to exercise its police powers. The essence of the sign ordinance, as it relates to this action, is that it prohibits hotels and other business establishments from employing what has been commonly designated as a 'rate sign.'

In order to resolve the case on the merits, it will be necessary to review the ordinance insofar as it pertains to rates or prices, the existing California authorities governing the regulation of signs, and foreign case law on the specific subject of rate signs.

The relevant sections of the Palm Springs Sign Ordinance provide as follows: ³

'8110. PURPOSE. The purpose of this Ordinance is to alleviate a growth of sign usage which is detrimental to Palm Springs. Recognizing that Palm Springs is one of the country's foremost desert resorts, this Council finds that the improper control of signs causes a particular problem here * * * The visitor's and investor's impression of Palm Springs determines the success or failure of our economic future * * * (W)e are of the opinion that economic and aesthetic factors are inseparable * * * In analyzing the effect of sign use in Palm Springs, we find and conclude that, first, many existing signs are visually incompatible with their surroundings, landscaping and architecture * * * Second, we find and conclude that a clutter and disarray of signs have sprung up in Palm Springs * * * It gives rise to a weed patch appearance completely out of line with our recognized and desired image * * * Third, keeping in mind the right of an individual to commercially advertise by a sign, we seek a better balance between the right to so advertise and the right of visitors and residents to be protected against a visual and public trumpeting of prices and other such overbearing commercialism * * * Degrading signs can downgrade a community, depreciate economic and social values, and turn away investors and visitors * * * Although it may, at first, seem hard to conclude that rate signs are more pernicious, either individually or as a class, than other kinds of signs, we find they are for a number of valid reasons. Therefore, rate signs must be separately classified and are hereby declared to be public nuisances Per se.

'* * * a

'8140.03. SIGNS NOT ADVERTISING THE USE, NAME OF THE OWNER, PRODUCTS OR SERVICE AVAILABLE ON THE PREMISES PROHIBITED. Any sign which does not advertise, without reference to prices, a use being made on the premises, the name of the owner, or user, or which does not advertise a product, an interest, service or entertainment available on the premises shall be prohibited * * *.'

A removal and amortization period is provided by the ordinance, dependent upon the permit value of the sign. (Section 8180.04.) For example, a $10 sign is to be removed or corrected immediately; a sign valued at more than $5,000 is removable or must be brought up to code requirements within 10 years. Enforcement powers are granted the Director of Planning and Development. (Section 8180.01.) Signs in violation of the ordinance are declared to be public nuisances and may be abated. (Section 8180.03.) Any person determined to be in willful violation of the ordinance may be found guilty of a misdemeanor, punishable by a $500 fine or by imprisonment for a period of six months, or both. (Section 8180.06.)

The ordinance does not absolutely proscribe the posting or advertising of hotel and motel rates. While it prohibits outside rate signs, it permits a limited posting of rates of accommodations in the interior of hotels; such rates may be indicated by a single sign or attraction board not to exceed 18 inches by 24 inches located no closer than one foot to the inside of a window when facing public view, in letters and numbers not to exceed 3/4 inches in height. (Section 8152.09.)

The constitution expressly confers on cities and towns the power to make and enforce within their limits all such 'local, police, sanitary and other regulations as are not in conflict with general laws.' (Calif.Const., art. XI, § 11.) The power thus delegated to municipalities is as broad as that of the Legislature itself, providing the power is exercised within the confines of the city and is not in conflict with the state's general laws. (People v. Taylor, 33 Cal.App.2d Supp. 760, 761, 85 P.2d 978.)

In the exercise of its police power, the city has broad discretion in determining what is reasonable in endeavoring to protect the public health, safety, morals, and general welfare. (McKay Jewelers, Inc. v. Bowron, 19 Cal.2d 595, 600, 122 P.2d 543.) The test as to whether a law enacted pursuant to the police power is arbitrary and discriminatory in its conception and application is whether it has any reasonable tendency to promote the public health, morals, safety or general welfare of the community. (Miller v. Board of Public Works, 195 Cal. 477, 484, 234 P. 381.) Stated in another fashion, the ordinance must be reasonable in object and not arbitrary in operation. (See McCarthy v. City of Manhattan Beach, 41 Cal.2d 879, 885, 264 P.2d 932.)

The reasonable regulation of signs and billboards constitutes a valid exercise of the police power. (National Advertising Co. v. County of Monterey, 211 Cal.App.2d 375, 27 Cal.Rptr. 136; Metromedia, Inc. v. City of Pasadena, 216 Cal.App.2d 270, 30 Cal.Rptr. 731; Burk v. Municipal Court, 229 Cal.App.2d 696, 40 Cal.Rptr. 425; City of Los Angeles v. Barrett, 153 Cal.App.2d 776, 315 P.2d 503; see Gov't Code, § 38774.) The size, location, and other physical attributes of signs may be regulated in the interest of public safety. (See McQuillan, Municipal Corporations, vol. 7 (1968 rev....