Flores v. Los Angeles Turf Club, Inc.

• Decision Date: 08 May 1961
• Citation: 13 Cal.Rptr. 201,361 P.2d 921,55 Cal.2d 736
• Parties: , 361 P.2d 921 Jimmie FLORES, Appellant, v. LOS ANGELES TURF CLUB, INC. (a corporation), et al., Respondents. L. A. 26202.
• Court: California Supreme Court

Page 201

13 Cal.Rptr. 201

55 Cal.2d 736, 361 P.2d 921

Jimmie FLORES, Appellant, v. LOS ANGELES TURF CLUB, INC. (a corporation), et al., Respondents.

L. A. 26202.

Supreme Court of California, In Bank.

May 8, 1961.

Julius Weled and Andrew J. Weisz, Los Angeles, for appellant.

O'Melveny & Myers, Sidney H. Wall, Allyn O. Kreps, Veatch, Thomas & Carlson and Robert C. Carlson, Los Angeles, for respondents.

Stanley Mosk, Atty. Gen., E. G. Funke, Asst. Atty. Gen., Conrad Lee Klein, Deputy

Atty. Gen., Freston & Files, Ralph E. Lewis, Martin & Mamakos and Arthur L. Martin, Los Angeles, as amici curiae on behalf of respondents.

DOOLING, Justice.

Plaintiff appeals from a judgment dismissing his cause of action for an injunction against his future exclusion or forcible ejection by defendants from their race track, and denying recovery on plaintiff's cause of action for statutory, ¹ general, and special damages for alleged wrongful ejection and assault and battery.

It appears from the record that plaintiff, after purchasing a ticket of general admission and a reserved seat in the grandstand at Santa Anita Race Course on January 22, 1959, was requested by defendants to leave the race track, and, upon his refusal to do so, was forcibly ejected. The ejection was carried out by race track personnel pursuant to Business and Professions Code, § 19561.5 and its implementing regulations, promulgated by the California Horse Racing Board. ² Section 19561.5, as in effect in January, 1959, provides that: 'The (Horse Racing) board may, be rule, provide for the exclusion or ejection from the enclosure where horse races are licensed by the board, or from specified portions of such enclosure, of known bookmakers, known touts, persons who have been convicted of violations of * * * this chapter or of the laws prohibiting bookmaking or other illegal forms of wagering on horse races (see Penal Code § 337a), and other persons or classes of persons whose presence in such enclosure would, in the opinion of the board, be inimical to the interests of the State or of legitimate horse racing, or both. No such regulation shall provide for the exclusion or ejection of any person on the ground of race, color, creed, or sex. Any person who is excluded or ejected from such enclosure in conformity with such rules may apply to the board for a hearing on the question whether such rule is applicable to him * * * subject to review by any court of competent jurisdiction.' ³

The trial court, finding that plaintiff had been convicted on June 23, 1953, of violating Penal Code, § 337a (bookmaking) and that he was therefore a person whom defendants were duty-bound under section 19561.5 and the Racing Board's rules to eject, concluded that plaintiff's exclusive remedy respecting future ejection or exclusion was that provided by the statute an administrative hearing before the Racing Board. Since plaintiff had neither pursued nor exhausted this remedy, the court dismissed his injunctive cause of action for lack of jurisdiction. The trial court further found that plaintiff became a trespasser upon his refusal to leave the track when requested by defendants to do so and that defendants had used no more force in ejecting plaintiff than was necessary under the circumstances. It therefore denied plaintiff either statutory damages for wrongful ejection or damages for assault and battery.

Appellant contends, first, that his ejection and exclusion, pursuant to section 19561.5, from race courses where pari-mutuel wagering is conducted, deprives him of rights of equal access to a place of public amusement guaranteed by the California Civil Rights Statutes, Civil Code, §§ 51-54, as in effect at the time of his ejection. ⁴ He also urges that section 19561.5, both on its face and as applied to him, is violative of the equal protection and due process clauses of the Constitutions of the United States and the State of California. U.S. Const. amend. XIV; Calif.Const. art. I, §§ 11 and 13.

In Orloff v. Los Angeles Turf Club, 1951, 36 Cal.2d 734, 227 P.2d 449, 455, a case involving facts similar to those presented here, plaintiff was ejected from Santa Anita Park and sought an injunction to prevent his further exclusion. He had a record of seven convictions for bookmaking and related conduct. This court held that the Racing Board could not validly provide for the exclusion of, nor the race track exclude, solely on the basis of past convictions of bookmaking, persons who had paid or who sought to pay the price of admission. The court reasoned that Civil Code, §§ 51 and 53, as then in effect, granted all persons the right to equal access and accommodation without mentioning past convictions of illegal wagering activity as one of the permissible grounds for exclusion. It was further held that the term 'person(s) of lewd or immoral character' did not set a sufficiently definite standard for the constitutional exclusion of allegedly undesirable persons unless it were restricted in its application to those who presently performed acts of illegal wagering on race course premises. 36 Cal.2d at pages 739-741, 227 P.2d at pages 453-454. The reasoning of the Orloff case was subsequently applied in Pacific Turf Club, Inc. v. Cohn, 1951, 104 Cal.App.2d 371, 231 P.2d 527, where an order granting a temporary injunction to prevent a previously convicted bookmaker from entering a race track was reversed.

However, immediately subsequent to the decision in the Orloff and Pacific Turf cases, the Legislature enacted Business and Professions Code § 19561.5, vesting increased and more specific rule-making power in the Racing Board. This development, as conceded by appellant, gives rise to considerations not present in Orloff. Although it is no longer open to question that the Legislature (in Business and Professions Code, §§ 19420, 19561) and the state Constitution (art. IV, § 25a) have, in the exercise of the state's conceded police power to regulate race tracks, validly delegated plenary rule-making power to the Racing Board (Sandstrom v. California Horse Racing Board, 31 Cal.2d 401, 407-408, 189 P.2d 17, 3 A.L.R.2d 90; Pacific Turf Club, Inc. v. Cohn, supra, 104 Cal.App.2d 371, 373, 231 P.2d 527), appellant appears to contend that the Legislature was not competent to restrict through section 19561.5 what he conceives to be his constitutional or common law rights to equal access to race tracks. It is true that this court in Orloff stated: 'The so-called civil rights statutes, sections 51-54 Civil Code, do not necessarily grant theretofore nonexistent rights or freedoms. The enactments are declaratory of existing equal rights and provide the means for their preservation by placing restrictions upon the power of proprietors to deny the exercise of the right and by providing penalties for violation.' 36 Cal.2d at page 739, 227 P.2d at page 453. However, it is clear from the discussion which ensued that the court was referring to a declaration of pre-existing statutory, rather than constitutional or common law, rights to equal access. To the extent that the foregoing statement implied more than that, it would have been dictum. See concurring opinion of Justices Spence and Edmonds, 36 Cal.2d at page 743, 227 P.2d at page 454.

Moreover, it appears to be the almost universal rule in the United States that in the absence of statute there exists no constitutional or common law right of access to race tracks or other places of public amusement comparable to the right to accommodation at inns. On the contrary, the common law right appears to have been one of exclusion on the part of the race track proprietor. Marrone v. Washington Jockey Club, 227 U.S. 633, 635-636, 33 S.Ct. 401, 57 L.Ed. 679; Greenfeld v. Maryland Jockey Club, 190 Md. 96, 57 A.2d 335, 337; Tamelleo v. New Hampshire Jockey Club, Inc., 102 N.H. 547, 163 A.2d 10, 11-13; Garifine v. Monmouth Park Jockey Club, 29 N.J. 47, 50-57, 148 A.2d 1; Madden v. Queens County Jockey Club, 296 N.Y. 249, 253-254, 72 N.E.2d 697, certiorari denied 332 U.S. 761, 68 S.Ct. 63, 92 L.Ed. 346, cf. Greenberg v. Western Turf Ass'n, 140 Cal. 357, 360-361, 73 P. 1050. Accordingly, the rights declared by Civil Code, §§ 51-54 are statutory and, as such, are subject to such constitutional change as the Legislature may choose to make. The question, then, is whether the change made by the pertinent provisions of section 19561.5 and its implementing regulations is one which is based upon a reasonable (i. e., not arbitrary) classification of persons having a substantial relation to a legitimate legislative objective (Lelande v. Lowery, 26 Cal.2d 224, 232, 157 P.2d 639, 175 A.L.R. 1109; Sibert v. Dept. of Alcoholic Bev. Control, 169 Cal.App.2d 563, 567, 337 P.2d 882; People v. Sullivan, 60 Cal.App.2d 539, 541, 141 P.2d 230) and one which supplies a sufficiently definite standard of application. See Orloff v. Los Angeles Turf Club, supra, 36 Cal.2d 734, 740, 227 P.2d 449.

Appellant, relying on Vallerga v. Dept. of Alcoholic Bev. Control, 53 Cal.2d 313, 1 Cal.Rptr. 494, Stoumen v. Reilly, 37 Cal.2d 713, 234 P.2d 969, and Tarbox v. Board of Supervisors, 163 Cal.App.2d 373, 329 P.2d 553, contends that section 19561.5 and the regulations thereunder, in providing for the exclusion of persons previously convicted of illegal wagering activity, provides unconstitutionally for a deprivation of rights on the basis of conduct committed at other times and places. In Vallerga, the proprietor of a tavern petitioned to set aside the revocation of his liquor license, which had been revoked under Business and Professions Code, § 24200, subdivision (e), providing for revocation when the licensee's premises, or a portion thereof, 'are a resort for illegal possessors or users of narcotics, prostitutes, pimps, panderers, or sexual perverts.' It had been alleged that petitioner's bar was a resort for homosexuals, and this was proved, as permitted under the statute, in part by...