Ewap, Inc. v. City of Los Angeles

• Decision Date: 25 September 1979
• Citation: 158 Cal.Rptr. 579,97 Cal.App.3d 179
• Court: California Court of Appeals Court of Appeals
• Parties: EWAP, INC., a California Corporation, et al., Plaintiffs and Respondents, v. The CITY OF LOS ANGELES, a Municipal Corporation, et al., Defendants and Appellants. Civ. 55837.

Page 579

158 Cal.Rptr. 579

97 Cal.App.3d 179

EWAP, INC., a California Corporation, et al., Plaintiffs and Respondents, v. The CITY OF LOS ANGELES, a Municipal Corporation, et al., Defendants and Appellants.

Civ. 55837.

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

Sept. 25, 1979.

Hearing Denied Nov. 21, 1979.

Burt Pines, City Atty., Los Angeles, Thomas C. Bonaventura, Senior Asst. City Atty., Sally Disco, Asst. City Atty., and Pedro B. Echeverria, Deputy City Atty., for defendants and appellants.

Abelson, Harris & Brunon, and Elliot J. Abelson, Beverly Hills, for plaintiffs and respondents.

POTTER, Acting Presiding Justice.

This appeal involves the constitutionality of two provisions of Los Angeles Municipal Code section 103.101 (as amended by Ordinance No. 150,184, approved October 5, 1977) governing permission to operate a picture arcade. Defendants City of Los Angeles, Board of Police Commissioners, Police Chief, and City Attorney appeal from the granting of a preliminary injunction to plaintiffs, a group of nine arcade proprietors, restraining the enforcement of subdivisions (c)(4) and (i) of section 103.101.

The ordinance requires that a permit be obtained for the operation of a picture arcade. ¹ Subdivision (c)(4) provides that a permit shall be denied if, within the past two years, "the applicant, his or her employee, agent, partner, director, officer, stockholder or manager has . . . knowingly allowed or permitted any act of sexual intercourse, sodomy, oral copulation, or masturbation, to be committed at or in any arcade or picture arcade, or . . . any arcade or picture arcade to be used as a place in which solicitations for (such acts) openly occur . . . ."

Subdivision (i) requires that "the entire interior of such premises wherein the pictures are viewed (be) visible upon entrance to such premises" and prohibits booths which are "partially or fully enclosed . . . or . . . concealed." ²

Plaintiffs sought declaratory and injunctive relief, claiming that the ordinance was unconstitutional as an invalid infringement on freedom of expression and as an attempt to regulate sexual conduct which was preempted by state law.

On appeal, defendants contend that: (1) no showing of irreparable injury justifying preliminary injunctive relief has been made by plaintiffs, and (2) enforcement of subdivisions (c)(4) and (i) of the ordinance cannot be restrained because they are not unconstitutional, either as (a) restraints upon freedom of expression, or (b) intrusions upon state preempted regulations of sexual conduct.

Discussion

Summary

The order granting the preliminary injunction must be reversed. Though subdivision (c)(4), authorizing denial of a permit on the basis of prior conduct, is an unconstitutional prior restraint in violation of the First Amendment, preliminary injunctive relief with respect thereto was improper because plaintiffs did not show that they would be irreparably injured by enforcement pending trial. Subdivision (i), prohibiting closed or concealed booths, is a valid, reasonable regulation of the manner of arcade operation and is not preempted by state law. The court, therefore, lacked jurisdiction to enjoin its enforcement.

Subdivision (c)(4) Is An Invalid Prior Restraint on First Amendment Rights

Both sides briefed the First Amendment question here presented, and plaintiffs have requested declaratory relief on this issue. Thus, though, as hereinafter demonstrated, plaintiffs have made no showing of irreparable injury pending trial, we deem it appropriate to state our opinion on the merits of plaintiffs' claim. (7978 Corporation v. Pitchess (1974) 41 Cal.App.3d 42, 46, 115 Cal.Rptr. 746.)

The operation of a picture arcade is an activity protected by the First Amendment. (People v. Perrine (1975) 47 Cal.App.3d 252, 257, 120 Cal.Rptr. 640; see Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495, 502, 72 S.Ct. 777, 96 L.Ed. 1098.) While a requirement that a license be obtained before engaging in a business where First Amendment activities are involved has long been recognized as a valid exercise of the police power (Sunset Amusement Co. v. Board of Police Commissioners (1972) 7 Cal.3d 64, 72, 101 Cal.Rptr. 768, 496 P.2d 840; Burton v. Municipal Court (1968) 68 Cal.2d 684, 690, 68 Cal.Rptr. 721, 441 P.2d 281), the standards governing the issuance or denial of such a permit have been subjected to "strict scrutiny." (Sunset Amusement Co. v. Board of Police Commissioners, supra ; see e. g., Perrine v. Municipal Court (1971) 5 Cal.3d 656, 661-665, 97 Cal.Rptr. 320, 488 P.2d 648; Dillon v. Municipal Court (1971) 4 Cal.3d 860, 866, 94 Cal.Rptr. 777, 484 P.2d 945; Burton v. Municipal Court, supra, 68 Cal.2d at pp. 690-697, 68 Cal.Rptr. 721, 441 P.2d 281.)

The denial of a permit is a total prior restraint upon a person's engaging in a First Amendment protected activity. Though a system of prior restraint is not unconstitutional per se, the United States Supreme Court has consistently held that such a system comes to a court "bearing a heavy presumption against its constitutional validity." (Southeastern Promotions, Ltd. v. Conrad (1975) 420 U.S. 546, 558, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448; New York Times Co. v. United States (1971) 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822; Bantam Books, Inc. v. Sullivan (1963) 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584; see also Near v. Minnesota (1931) 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357.)

Where, as here, an ordinance mandates denial of a license to conduct a First Amendment related business on the basis of prior misconduct, such a disqualification provision can only be sustained if there is a clear and present danger that serious substantive evil would result from granting that license.

In Perrine v. Municipal Court, supra, 5 Cal.3d 656, 97 Cal.Rptr. 320, 488 P.2d 648, our Supreme Court held that "it is constitutionally impermissible to deny an applicant a license to operate a bookstore solely upon the ground that he has suffered a prior criminal conviction." Id., at p. 659, 97 Cal.Rptr. at p. 321, 488 P.2d at p. 649.) The court invalidated a Los Angeles County licensing ordinance that authorized disqualification, among other things, for past criminal convictions of sex crimes, crimes of violence and crimes involving obscenity. In response to the contention that the Commission lawfully denied Perrine's application for a license on the basis of his conviction of an obscenity offense (Pen.Code, § 311.2), which was reasonably related to the operation of a book store, our Supreme Court stated (5 Cal.3d at pp. 664-665, 97 Cal.Rptr. at p. 325, 488 P.2d at p. 653):

"(S)ince a denial of a license would prohibit petitioner from engaging in an activity protected by the First Amendment, it could only be justified, Even under a narrowly drawn ordinance, if permitting a person who had been convicted of a crime involving obscenity to operate a bookstore constituted A clear and present danger of a serious, substantive evil. (wirta v. alameda-contra costa transit district (1968) 68 cal.2d 51, 60, 64 Cal.Rptr. 430, 434 P.2d 982; Thomas v. Collins (1943) 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430, 440; Board of Education v. Barnette (1942) 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628, 1638, 147 A.L.R. 674.) No such clear and present danger appears. We cannot assume that because petitioner was once convicted of violating Penal Code section 311.2, he will violate it again, ³ or that if he does so, criminal sanctions will not afford an adequate remedy. (See, Near v. Minnesota, supra, 283 U.S. 697, 715, 51 S.Ct. 625, 630, 75 L.Ed. 1357, 1367.) . . ..

"To interpret the ordinance in this case to permit denial of a license because of a past conviction of violating Penal Code section 311.2 would do more than create a hazard to protected freedoms; it would suppress them altogether. The penalty for violating section 311.2 does not include a forfeiture of First Amendment rights, and the risk that criminal sanctions will be insufficient to deter future violations of that section cannot justify the county's attempted forfeiture of those rights on the theory that past violators are unfit to operate bookstores." (Italics added.)

The Supreme Courts of Washington (Seattle v. Bittner (1973) 81 Wash.2d 747, 505 P.2d 126) and Minnesota (Alexander v. City of St. Paul (1975) 303 Minn. 201, 227 N.W.2d 370) have followed these principles enunciated in Perrine v. Municipal Court, supra, 5 Cal.3d 656, 97 Cal.Rptr. 320, 488 P.2d 648, and declared movie theatre licensing ordinances unconstitutional as an impermissible prior restraint where denial of a license to operate the business was based upon the grounds that a person had suffered a prior criminal conviction. ⁴

The Minnesota ordinance permitted rescission or denial of a license to operate a theatre if a licensee, owner, manager, lessee, employee or person with financial interest in the theatre had been convicted of an obscenity offense which was relevant to the operation of the theatre. (Alexander v. City of St. Paul, supra, 227 N.W.2d at p. 371.)

1 And in Natco Theatres, Inc. v. Ratner (S.D.N.Y.1979) 463 F.Supp. 1124, a federal district court similarly held that a New York City theatre licensing ordinance ⁵ was unconstitutional. The District Court pointed out that the challenged ordinance suffered from the same infirmities as did the ordinances declared unconstitutional in Perrine, Bittner, and Alexander, stating (463 F.Supp. at pp. 1130-1131):

"This Court is now faced with a new attempt by a municipality to utilize its licensing authority (by creating a standard based upon prior conduct) in order to rid itself of undesirable, though not unsafe, establishments. In so doing, the City of New York has created a system of prior restraint that cannot survive constitutional scrutiny. (Fn. omitted.)

". . . The City may not, as it has tried to do, utilize its licensing power to...