Daniel v. Board of Police Com'rs of City of Los Angeles

• Decision Date: 28 March 1961
• Citation: 12 Cal.Rptr. 226,190 Cal.App.2d 566
• Court: California Court of Appeals Court of Appeals
• Parties: Ellot DANIEL, Individually, and John Tranchitella, as President of Musicians Mutual Protective Association, etc., taxpayers of the City of Los Angeles, Plaintiffs and Appellants, v. BOARD OF POLICE COMMISSIONERS OF the CITY OF LOS ANGELES; Emmett C. McGaughey et al., as members of the Board of Police Commissioners, Defendants and Respondents. MIRAMAR ENTERPRISES, INC., Plaintiff and Appellant, v. CITY OF LOS ANGELES, and Board of Police Commissioners of the City of Los Angeles, Defendants, Board of Police Commissioners of the City of Los Angeles, Respondent. Civ. 24763, 24707.

Page 226

12 Cal.Rptr. 226

190 Cal.App.2d 566

Ellot DANIEL, Individually, and John Tranchitella, as President of Musicians Mutual Protective Association, etc., taxpayers of the City of Los Angeles, Plaintiffs and Appellants, v. BOARD OF POLICE COMMISSIONERS OF the CITY OF LOS ANGELES; Emmett C. McGaughey et al., as members of the Board of Police Commissioners, Defendants and Respondents.

MIRAMAR ENTERPRISES, INC., Plaintiff and Appellant, v. CITY OF LOS ANGELES, and Board of Police Commissioners of the City of Los Angeles, Defendants, Board of Police Commissioners of the City of Los Angeles, Respondent.

Civ. 24763, 24707.

District Court of Appeal, Second District, Division 1, California.

March 28, 1961.

Rehearing Denied April 14, 1961.

Hearing Denied May 24, 1961.

Wirin, Rissman, Okrand & Posner, Fred Okrand and Paul M. Posner, Los Angeles, for appellants Eliot Daniel and John Tranchitella.

Carl B. Sturzenacker and Walter Monarch, Los Angeles, for appellant Miramar Enterprises, Inc.

Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., and Arthur Karma Deputy City Atty., Los Angeles, for respondents.

WOOD, Presiding Justice.

By stipulation the above entitled actions were consolidated for trial. The plaintiffs in those actions, as taxpayers, sought to enjoin the defendants from using public funds to administer or execute the provisions of section 103.102 of the Los Angeles Municipal Code. The alleged basis for seeking the injunction was that the section, on its face, is unconstitutional. In the Daniel Case, the plaintiffs also alleged that sections 103.29 and 103.31, as applied to said section 103.102, are unconstitutional, and that the unconstitutionality appears on the face of each section. In each action the judge decided that the sections are constitutional; and in each action judgment was in favor of defendants.

The plaintiffs (or plaintiff) in each action appeal from the judgment. By stipulation the two actions were consolidated for purposes of appeal.

The sections of the Muncipal Code above referred to are in Ordinance No. 111,348, and a copy of that ordinance was received in evidence. No oral evidence was presented at the trial. The records on these appeals consist of the clerk's transcripts.

Section 103.102 of said code provides, in part: 'Cafe Entertainment. (a) Permit Required. No person shall operate, conduct, or manage any public place where food or beverages are sold, offered for sale or given away, and where any form of live entertainment is provided or furnished without a written permit from the Board [Board of Police Commissioners].

'(b) Exemptions. No permit hereunder shall be required of any bona fide charitable, religious, benevolent, educational organization, United Service Organization, or of persons holding permits required by Sections 103.106 and 103.114 of this Code.'

Subsection '(c)' of said section 103.102, entitled 'Public Hearings,' provides for a public hearing relative to issuing such a permit, and for notice of such hearing, and for making protests.

Section 103.29 of said code provides, in part: Board Action on Application. After an investigation the Board may either: (a) Issue or Renew Permit. Issue or renew permit if the Board finds that the operation of the trade, occupation, or business by the applicant will comport with the peace, health, safety, convenience, good morals, and general welfare of the public; or

'(b) Deny Permit. Deny the permit or refuse to renew the permit if the Board finds that the said operation will not comport with the peace, health, safety, convenience, good morals, and general welfare of the public or that facts exist upon which a denial of such permit would be authorized pursuant to this Article.'

Miramar Enterprises, Inc., the plaintiff in one of the actions, had applied for a permit under the provisions of said section 103.102; and the application was denied on the ground that the operation of the applicant's business does not and will not comport with the peace, health, safety, convenience, good morals, and general welfare of the public.

As shown by the pre-trial 'Agreed Facts,' the plaintiff Miramar Enterprises has been and now is duly licensed by the State of California to sell alcoholic beverages at its place of business in Los Angeles.

In the Daniel action, the plaintiffs alleged that they were taxpayers; that the plaintiff Tranchitella is president of the Musicians Mutual Protective Association, Local (Union) 47, which association has many members who make their living as entertainers by playing musical instruments in public places in Los Angeles where food and beverages are sold; that plaintiffs are informed and believe that the defendants, pursuant to said section 103.102, have granted, denied, revoked, and suspended permits of 'places' in Los Angeles where food or beverages are sold and where live entertainment is provided, and that defendants 'seek to continue to so do.'; that in so acting the defendants have expended public funds in various ways (specified in the complaint); that unless restrained the defendants will continue to expend public funds illegally (by reason of the unconstitutionality of said sections) to the irreparable damage of the taxpayers.

The merits of the decisions of the Board of Police Commissioners with respect to permits are not involved on these appeals. The sole question here is whether the sections are constitutional.

Appellants' principal contentions are: (1) By those sections the city council attempted to legislate in a field that has been preempted by the State of California. (2) The enforcement of those sections is an unreasonable exercise of the police power. (3) The sections violate the equal protection clause of the 14th Amendment of the United States Constitution; and violate provisions of the California Constitution which require uniformity of treatment (Art. I, secs. 11 and 21; Art. IV, sec. 25, paragraphs 19 and 33). (4) The sections violate the due process of law clauses of the United States Constitution and the California Constitution.

The California Constitution provides that 'the State of California * * * shall have the exclusive right and power to license and regulate the * * * sale * * * of intoxicating liquor * * *.' Art. XX, sec. 22. The Alcoholic Beverage Control Act (Bus. & Prof.Code, § 23000 et seq.) contains detailed provisions or rules relative to issuing liquor licenses and regulating the operation of liquor establishments and disciplining licensees. 'Any * * * city * * * may make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with general laws.' Cal.Const. Art. XI, sec. 11. 'The mere fact that a state law contains datailed and comprehensive regulations of a subject does not, of itself, establish the intent of the legislature to occupy the entire field to the exclusion of local legislation.' People v. Commons, 64 Cal.App.2d Supp. 925, 931, 148 P.2d 724, 728. Said section 103.102 of the Los Angeles Municipal Code provides in substance that no person shall operate any public place where food or beverages are sold and where any form of live entertainment is provided, without a written permit from the Board of Police Commissioners. It is apparent that the state has preempted the area of regulating the sale of liquor. The Constitution and the Alcoholic Beverage Control Act do not mention the matter of issuance of a liquor license in conjunction with restaurant entertainment. 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. Section 103.102 is directed toward any and all business establishments which sell or give away food or beverages and have 'live' entertainment. It applies to any such establishment regardless of whether it is in the liquor business. A denial of a liquor licensee's application for a permit to have 'live' entertainment in his liquor establishment would not affect his right under his liquor license to sell liquor. In People v. Commons, supra, 64 Cal.App.2d Supp. 925, at page 932, 148 P.2d 724, at page 728, it was said (in quoting from In re Hoffman, 155 Cal. 114, 118, 99 P. 517): "The state in its law deals with all the territory and all of its people. The exactions which it prescribes operate (except in municipal affairs) upon the people of the state, urban and rural, but it may often, and does often happen that the requirements which the state sees fit to impose may not be adequate to meet the demands of densely populated municipalities, so that it becomes proper, and even necessary, for municipalities to add to state regulations provisions adapted to their special requirements." It is apparent that the purpose of the sections is not to regulate the liquor business but is to regulate the kind of 'live' entertainment that is furnished in such public places as restaurants and liquor establishments. The state has not preempted the field or area covered by said section 103.102 and said other section of the Municipal Code.

The ordinance is a valid exercise of the police power. As stated in Justesen's Food Stores v. City of Tulare, 43 Cal.App.2d 616, at page 621, 111 P.2d 424, at page 427: 'A legislative body, in the exercise of its police power, has a broad discretion to determine both what public...