Cohen v. Board of Supervisors, S.F. 24873

• Court: United States State Supreme Court (California)
• Writing for the Court: BIRD; MOSK
• Citation: 40 Cal.3d 277,707 P.2d 840,219 Cal.Rptr. 467
• Parties: , 707 P.2d 840 Bruce COHEN et al., Plaintiffs and Appellants, v. BOARD OF SUPERVISORS OF the CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.
• Docket Number: S.F. 24873
• Decision Date: 31 October 1985

Page 467

219 Cal.Rptr. 467 40 Cal.3d 277, 707 P.2d 840 Bruce COHEN et al., Plaintiffs and Appellants,
v.
BOARD OF SUPERVISORS OF the CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents. S.F. 24873. Supreme Court of California,
In Bank. Oct. 31, 1985.
As Corrected Oct. 31, 1985.
Rehearing Denied Nov. 27, 1985.

[40 Cal.3d 282]

Page 469

[707 P.2d 842] Friedman, Sloan & Ross, Jeffrey S. Ross, Sheila L. Sakamoto, San Francisco, Lynne N. Henderson, San Jose, and Lawrence A. Gibbs, San Francisco, for plaintiffs and appellants.

Stephen E. Cone, Margaret C. Crosby, Alan L. Schlosser and Amitai Schwartz, San Francisco, as amici curiae for plaintiffs and appellants.

George Agnost, City Atty., Burk E. Delventhal, Judith A. Boyajian, Mara E. Rosales and Thomas J. Owen, Deputy City Attys., for defendants and respondents.

[40 Cal.3d 283] Gary R. Netzer, City Atty. (Los Angeles), Lewis N. Unger, Asst. City Atty., and Pamela Victorine, Deputy City Atty., as amici curiae for defendants and respondents.

BIRD, Chief Justice.

Is a San Francisco ordinance, which requires the operators of escort services and their employees to pay an annual license fee and acquire a permit from the chief of police before engaging in business, preempted by state law?

I.

On June 15, 1981, the Board of Supervisors for the City and County of San Francisco enacted Municipal Police Code sections 1074.1 through 1074.30, which regulate escort services located or operating within the city. ¹ According to Mayor Dianne Feinstein, the ordinance was deemed necessary to "reduce the manpower needed to monitor and investigate illegal escort services" which "often serve as a front for individuals engaged in serious criminal activity...." ² The escort service ordinance became effective in July of 1981, but due to an administrative grace period and a subsequent stipulation by the parties in this litigation, the ordinance was not enforced until September 12, 1981.

On August 17, 1981, appellants, a San Francisco taxpayer and an attorney practicing in San Francisco, filed this action seeking declarative and injunctive relief based on the claim that the ordinance was unconstitutional under the First, Fourth, Sixth, and Fourteenth Amendments to the federal Constitution and several provisions of the state Constitution. The trial court issued an order to show cause on appellants' application for a preliminary injunction and a hearing was held on September 3, 1981.

[40 Cal.3d 284] [707 P.2d 843] On September 11, 1981, the trial court denied the application for a preliminary injunction.

Page 470

After unsuccessfully seeking mandate from the Court of Appeal, appellants filed a notice of appeal from the trial court's order. ³

The ordinance imposes a permit requirement upon any person engaged in, conducting, or carrying on the operation of an "escort service." ( § 1074.2.) An "escort service" is defined as "[a]ny business, agency or person who, for a fee, commission, hire, reward or profit, furnishes or offers to furnish names of persons, or who introduces, furnishes or arranges for persons, who may accompany other persons to or about social affairs, entertainments or places of amusement, or who may consort with others about any place of public resort or within any private quarters." ( § 1074.1.) Similarly, an "escort" is defined as "[a]ny person who, for a fee, commission, hire, reward or profit, accompanies other persons to or about social affairs, entertainments or places of amusement or consorts with others about any place of public resort or within any private quarters." (Ibid.)

In order to obtain an escort service permit, the applicant must fill out an application which calls for a personal description, a current and two previous addresses and a prior business or employment record. Also, three portrait photographs must be furnished, a listing of all criminal convictions except minor traffic violations must be provided, written proof of majority must be shown, and "[s]uch other identification and information necessary to discover the [foregoing] matters" must be submitted. ( § 1074.4.) The chief of police is permitted to take the applicant's fingerprints and additional photographs and may "confirm, by independent investigation, the truth and accuracy of the ... information [provided in the application]." (Ibid.) The applicant must pay a filing fee and an additional fee of $500 to be used for the investigation. The unused portion of the latter fee is refunded upon conclusion of the investigation. ( § 1074.3.)

The ordinance also requires any escort or other employee who works in an escort service in San Francisco or performs any such service in the city [40 Cal.3d 285] to secure a permit. The employee permit application requires information similar to that required for a service permit. ( §§ 1074.5, 1074.7.)

After the application is filed, the chief of police schedules a public hearing, a notice of which is posted "in a conspicuous place" on the premises in which the escort service is to be operated. ( § 1074.11.) A permit must be issued within 14 days following the hearing unless: (1) the operation "would not have complied with all applicable laws, including but not limited to, the Building, City Planning, Housing and Fire Codes of the City ... and the rules and regulations adopted by the Chief of Police pursuant to this Article;" (2) the applicant has had a prior license revoked by the city, the state, or the Alcoholic Beverage Control Commission; or (3) the applicant has been convicted of any offense which (i) requires sex offender registration (Pen.Code, § 290), (ii) involves the "use of force and violence upon the person of another" or sexual misconduct with children, or (iii) is described in Penal Code sections 311, 647, subdivision (a), 647a, 647, subdivision (b), 315, 316, 318 or 266 through 267. ( § 1074.12.) A license fee is charged annually for the permit. ( § 1074.24.)

Page 471

[707 P.2d 844] Beyond the permit process, the ordinance requires that both clients and employees be at least 18 years old ( §§ 1074.16, 1074.17) and that each escort service keep a daily register containing the identity and hours of employment of each employee. The register must contain the "true" name and address of each patron, along with the hours, the fee charged, and the location where the service was used. This register is "at all times during business hours ... subject to inspection" by the police and health departments and must be maintained on the premises for one year. ( § 1074.21.) The police department "shall, from time to time and at least twice a year," inspect each escort service "for the purposes of determining that there is compliance with the provisions of [the ordinance]." ( § 1074.20.)

Finally, the ordinance prohibits any escort from engaging "in any type of criminal conduct with a customer...." ( § 1074.22, subd. (A).) No one may "permit, counsel or assist any other person in the violation" of the ordinance. ( § 1074.23.) Any wilful violation of the ordinance may result in criminal penalties of up to six months in jail, a fine of $1,000, or both, if the violation is charged as a misdemeanor or a fine of $500 if charged as an infraction. ( § 1074.26.)

Once issued, a permit may be revoked after a hearing if the permittee has engaged in conduct which violates any provision of the ordinance, any implementing rules and regulations adopted by the chief of police, ⁴ or any [40 Cal.3d 286] state or local law. Revocation may result "in any case where the permittee or licensee refuses to permit any duly authorized police officer ... to inspect the premises or the operations therein...." ( § 1074.15.)

II.

The question presented by this appeal is whether the trial court abused its discretion in denying the application for the preliminary injunction.

"This court has traditionally held that trial courts should evaluate two interrelated factors when deciding whether or not to issue a preliminary injunction. The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued. [Citations.]" (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69-70, 196 Cal.Rptr. 715, 672 P.2d 121; accord Robbins v. Superior Court (1985) 38 Cal.3d 199, 206, 211 Cal.Rptr. 398, 695 P.2d 695.) ⁵ " '[B]y balancing the respective equities of the parties, [the trial court] concludes that, pending a trial on the merits, the defendant should or that he should not be restrained from exercising the right claimed by him.' " (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528, 67 Cal.Rptr. 761, 439 P.2d 889.)

The granting or denying of a preliminary injunction does not constitute an adjudication of the ultimate rights in controversy. (Robbins v. Superior Court, supra, 38 Cal.3d at p. 218, 211 Cal.Rptr. 398, 695 P.2d 695; IT Corp. v. County of Imperial, supra, 35 Cal.3d at pp. 75-76, 196 Cal.Rptr. 715, 672 P.2d 121.) Generally, the ruling on an application for a preliminary injunction rests in the sound discretion of the trial court. The exercise of that discretion will not be disturbed on appeal absent a [707 P.2d 845] showing that it has been abused. (Id., at p. 69, 196 Cal.Rptr. 715, 672 P.2d 121; Continental Baking Co. v. Katz, supra, 68

Page 472

Cal.2d at p. 527, 67 Cal.Rptr. 761, 439 P.2d 889.)

When a trial court denies an application for a preliminary injunction, it implicitly determines that the plaintiffs have failed to satisfy either or both of the "interim harm" and "likelihood of prevailing on the merits" factors. On appeal, the question becomes whether the trial court abused its discretion [40 Cal.3d 287] in ruling on both factors. Even if the appellate court finds that the trial court abused its discretion as to one of the...