Cristmat, Inc. v. County of Los Angeles

• Decision Date: 24 February 1971
• Citation: 15 Cal.App.3d 590,93 Cal.Rptr. 325
• Court: California Court of Appeals Court of Appeals
• Parties: CRISTMAT, INC., etc. et al., Plaintiffs and Appellants, v. The COUNTY OF LOS ANGELES et al., Defendants and Respondents. Civ. 37107.

Page 325

93 Cal.Rptr. 325

15 Cal.App.3d 590

CRISTMAT, INC., etc. et al., Plaintiffs and Appellants, v. The COUNTY OF LOS ANGELES et al., Defendants and Respondents.

Civ. 37107.

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

Feb. 24, 1971.

Rehearing Denied March 9, 1971.

Hearing Denied April 22, 1971.

Marks, Sherman & London, and Robert London, Beverly Hills, for plaintiffs and appellants.

John D. Maharg, County Counsel, and Edward H. Gaylord, Asst. County Counsel, for defendants and respondents.

SCHWEITZER, Associate Justice.

This case presents the question of the constitutionality of section 2648 of Los Angeles County Ordinance No. 5860. Ordinance No. 5860 provides for the licensing of model studios and specifies certain conditions under which such studios must operate. A model studio is described generally as an establishment that provides human models, often nude, for professional and amateur photographers. For an admission fee the photographer is allowed to take pictures of a professional model in a room provides for that purpose.

Section 2648 provides: 'A person shall not enter, be or remain in any part of a model studio or premises licensed as such while in the possession or (sic), consuming, using, or under the influence of, any alcoholic beverage or drugs. The licensee shall not permit any such person to enter or remain upon the licensed premises.' The ordinance provides that a violation of any section thereof is a misdemeanor.

Plaintiffs filed a complaint for declaratory and injunctive relief, alleging that they owned and operated a cocktail lounge, known as 'PUSS AND BOOTS,' licensed by the state, and also were licensed by the county to operate a model studio on the same premises 'for the entertainment, amusement, and/or education of the patrons of the 'PUSS AND BOOTS' and members of the adult public in general.' They further alleged that section 2648 has been and apparently will continue to be applied against plaintiffs by defendant sheriff who has on several occasions issued citations against and taken into custody employees of the model studio. Plaintiffs asked in their complaint that section 2648 be declared unconstitutional and that the county be enjoined from enforcing the ordinance.

After filing an answer defendants moved for judgment on the pleadings. Plaintiffs moved for a preliminary injunction. The two motions were heard together. The motion for preliminary injunction was denied; the motion for judgment on the pleadings was granted, the court ruling that the complaint did not state facts sufficient to constitute a cause of action, thus in effect holding that section 2648, both on its face and as applied to plaintiffs, was constitutional.

Plaintiffs appeal from the judgment thereafter entered and on appeal raise the following questions:

(1) Is section 2648 invalid because it is in conflict with, or operates in an area preempted by state law?

(2) Does section 2648 deprive plaintiffs of the equal protection of the laws?

(3) Will the continued enforcement of section 2648 deprive plaintiffs, other model studio owners, and the public of the right to provide and view a form of expression protected by the First Amendment to the United States Constitution?

Preemption by State

Express Preemption. Article XX, section 22 of the California Constitution provides in part: 'The State of California * * * shall have the Exclusive right and power to license and regulate the manufacture, sale, purchase, possession and transportation of alcoholic beverages within the state.' (Italics added.) Plaintiffs argue that this constitutional provision constitutes a pronouncement that the sale, use and possession of alcoholic beverages is exclusively a matter of state concern and that the state will not tolerate local action with respect thereto. (In re Hubbard, 62 Cal.2d 119, 123, 41 Cal.Rptr. 393, 396 P.2d 809.)

Although we agree generally with this contention, it has no application to this case. Section 2648 does not attempt to invade the exclusive power given to the state by article XX, section 22 of the Constitution to license, regulate or prohibit the manufacture, sale, purchase, possession or transportation of alcoholic beverages; it merely prohibits certain persons from entering or remaining in a model studio and prohibits the model studio licensee from permitting any such person to enter or remain in the model studio.

As stated in Daniel v. Board of Police Commissioners, 190 Cal.App.2d 566, 571, 12 Cal.Rptr. 226, 229: 'It does not appear that the Legislature intended that a person who is licensed to sell liquor should be immune from supervision, by local government, of any other activity the licensee might pursue in conjunction with the sale of liquor.'

The legal effect of municipal police regulations on liquor licensees has been the subject of several opinions of the Attorney General since the adoption of article XX, section 22 of the California Constitution. Opinion No. 10601, dated April 4, 1936, states in part: 'In these opinions it was pointed out that a municipality, under Article XX, Section 22 of the State Constitution, had no power to control, regulate, license or tax the traffic in intoxicating liquors, either directly or indirectly. ( ) But it cannot be doubted that a municipality has the power, under its police power, to regulate places of public entertainment. It would appear that a municipal ordinance prohibiting floor shows and orchestras from the premises of liquor licensees would fall within this legitimate scope of the police power of the municipality. Such regulation is not designed to control the traffic in intoxicating liquors but is for the purpose of regulating places of public entertainment.' (See also Opinion of Attorney General, No. N.S. 1449, dated February 16, 1939, approving and reaffirming the foregoing opinion.)

Opinions of the Attorney General are entitled to great weight as an administrative construction of a statute. (Stribling's Nurseries, Inc. v. County of Merced, 232 Cal.App.2d 759, 763, 43 Cal.Rptr. 211; Meyer v. Board of Trustees, 195 Cal.App.2d 420, 432, 15 Cal.Rptr. 717.) 'It must be presumed that the aforesaid interpretation (of the Attorney General) has come to the attention of the Legislature, and if it were contrary to the legislative intent that some corrective measure would have been adopted in the course of the many enactments on the subject in the meantime.' (Meyer v. Board of Trustees, Supra, 195 Cal.App.2d 420, 432, 15 Cal.Rptr. 717, 724; see also Southwest Explor. Co. v. County of Orange, 44 Cal.2d 549, 554, 283 P.2d 257.)

Article XX, section 22 of the Constitution has been amended twice since the date of the two cited opinions of the Attorney General. A 1954 amendment made no change in the language under discussion. A 1956 amendment substituted the words 'alcoholic beverages' for the words 'intoxicating liquors.' Under these circumstances it is reasonable to conclude that the Attorney General's opinions correctly interpreted the intent of the legislature and that such intent remains unchanged.

In states where the regulation of alcoholic beverages has been placed exclusively with state authorities, we find decisions in accord with the foregoing. Thus in Commonwealth v. Baronas, 285 Mass. 321, 189 N.E. 62, it is stated at page 63: 'The defendant contends that this by-law attempts to legislate with reference to intoxicating liquor and imposes a penalty for mere possession of such liquor, so that it is clearly repugnant to the law. He misapprehends the scope and application of the by-law. It does not deal with intoxicating liquor. Or seek to control its keeping or sale. It deals with the maintenance of the peace and good order in Lunenburg. * * * The defendant here is fined, not merely for having intoxicating liquor in his possession, but because, although lawfully in possession of it, he, unlawfully, had it in his possession in a public place where its presence might well lead to disorder and from which any one possessing it was barred by a reasonable by-law. * * *'

Somewhat similar facts were presented and the same conclusion was reached in Mallach v. City of Mt. Morris, 287 Mich. 666, 284 N.W. 600, 601 (ordinance prohibiting dancing in bar upheld, Mutchall v. City of Kalamazoo, 323 Mich. 215, 35 N.W.2d 245, 249 (ordinance regulating bottle clubs held valid), and City of Coos Bay v. Aerie No. 538, 179 Or. 83, 170 P.2d 389, 397 (city tax on certain businesses conducted in conjunction with licensed liquor establishments upheld).

We conclude that plaintiffs' first contention is without merit, that article XX, section 22 of the Constitution does not deprive the county of a right under its police power, to regulate model studios operated in conjunction with a state licensed cocktail bar.

Implied Preemption. Plaintiffs point to the numerous California statutes dealing with alcoholic beverages as further evidence of the state's intent to fully, completely and exclusively regulate the sale, use and possession of alcoholic beverages, and argue that if there be any doubt about preemption, 'the doubt must be resolved in favor of the legislative authority of the state.' (Abbott v. City of Los Angeles, 53 Cal.2d 674, 678, 681, 3 Cal.Rptr. 158, 163, 349 P.2d 974, 979.) They rely on In re Lane, 58 Cal.2d 99, 103, 22 Cal.Rptr. 857, 859, 372 P.2d 897, 899: 'The Penal Code sections covering the criminal aspects of sexual activity are so extensive in their scope that they clearly show an intention by the Legislature to adopt a general scheme for the regulation of this subject.'

The Supreme Court analyzed this contention in Galvan v. Superior Court, 70 Cal.2d 851, 861, 76 Cal.Rptr. 642, 648--651, 452 P.2d 930, 936--939: 'The fact that there are numerous statutes dealing with (the subject of use and consumption of intoxicating liquors, and of intoxicated persons) does not by itself show that (these subjects have) been completely...