Glancy v. Sacramento County
| Citation | 17 Cal.App.3d 504,94 Cal.Rptr. 864 |
| Court | California Court of Appeals |
| Decision Date | 13 May 1971 |
| Parties | Leonard L. GLANCY and Susanne Marie Haines, Plaintiffs and Appellants, v. The COUNTY OF SACRAMENTO, Defendant and Respondent. Leonard L. GLANCY and Susanne Marie Haines, Petitioners and Appellants, v. The MUNICIPAL COURT FOR the SACRAMENTO MUNICIPAL COURT DISTRICT OF SACRAMENTO COUNTY, Respondent; The PEOPLE of the State of California, Real Party in Interest and Respondent. Clarence REYNOLDS, Kathleen Rose Gaines, and Marsha Gean McNabb, Plaintiffs and Appellants, v. The CITY OF SACRAMENTO, Defendant and Respondent. Civ. 12529, 12530 and 12605. |
Ronald F. Sypnicki, Sacramento, for Clarence Reynolds and others.
Peter B. Van Gelder and Ronald F. Sypnicki, Sacramento, for Leonard Glancy and Susanne Haines.
Thomas C. Lynch, Atty. Gen., by Daniel J. Kremer, Deputy Atty. Gen., Sacramento, for Municipal Court and City of Sacramento.
John Heinrich, County Counsel, Sacramento, by Robert L. Pleines, Deputy County Counsel for County of Sacramento.
James P. Jackson, City Atty., Sacramento, for City Sacramento.
These consolidated appeals arise from proceeding instituted by appellants in superior court to restrain, on constitutional grounds, the enforcement of two Sacramento County ordinances and an ordinance of the City of Sacramento. The ordinances apply to public places other than theaters, concept halls, and similar establishments. They make it a misdemeanor for 'topless' females and 'bottomless' persons of either sex to serve food or drink to customers in such places, or to participate in shows there.
Judicial decisions prior to 1969 indicated that, under the preemption doctrine, 'topless' and 'bottomless' waitresses and entertainers were subject only to statewide--not local--criminal regulation. (See, In re Moss (1962) 58 Cal.2d 117, 23 Cal.Rptr. 361, 373 P.2d 425; People v. Hansen (1966) 245 Cal.App.2d 689, 54 Cal.Rptr. 311; People v. Kukkanen (1967) 248 Cal.App.2d Supp. 899, 902, 56 Cal.Rptr. 620.) In 1969 the Legislature added sections 318.5 and 318.6 to Penal Code. In relevant part, section 318.5 provides as follows:
'Nothing in this code shall invalidate an ordinance of, or be construed to prohibit the adoption of an ordinance by, a county or city, if such ordinance directly regulates the exposure of the genitals or buttocks of or the breasts of any person who acts as a waiter, waitress, or entertainer, whether or not the owner of the establishment in which the activity is performed employs or pays any compensation to such person to perform such activity, in an establishment which serves food, beverages, or food and beverages, including, but not limited to, alcoholic beverages, for consumption on the premises of such establishment.
'The provisions of this section shall not apply to a theater, concert hall, or similar establishment which is primarily devoted to theatrical performances.' (Emphasis ours.)
Preemption was likewise declined by the Legislature in section 318.6, which states as follows:
'Nothing in this code shall invalidate an ordinance of, or be construed to prohibit the adoption of an ordinance by, a city or county, if such ordinance relates to any live acts, demonstrations, or exhibitions which occur in public places, places open to the public, or places open to public view and involve the exposure of the private parts of buttocks of any participant or the breasts of any female participant, and if such ordinance prohibits an act or acts which are not expressly authorized or prohibited by this code.
'The provisions of this section shall not apply to a theater, concert hall, or similar establishment which is primarily devoted to theatrical performances.' (Emphasis ours.)
Thus, in sections 318.5 and 318.6, the Legislature expressly evidenced its intent to permit local regulation of the conduct described by those statutes. (Cf., In re Cox (1970) 3 Cal.3d 205, 220, 90 Cal.Rptr. 24, 474 P.2d 992; Pipoly v, Benson (1942) 20 Cal.2d 366, 371, 125 P.2d 482.) We turn then to the determination of whether the county and city exercised that authority within constitutional limits.
In October 1969, the Sacramento County Board of Supervisors enacted ordinances No. 1054 and No. 1055. 1 Ordinance No. 1054 (herein, 'the 'bottomless' ordinance') declares in pertinent part as follows:
'Section 1. Legislative Authorization. This ordinance is adopted pursuant to Sections 318.5 and 318.6 of the Penal Code. All words used in this ordinance which also are used in the said Sections 318.5 and 318.6, are used in the same sense and mean the same as the same respective words used in the said Sections 318.5 and 318.6 of the Penal Code.
'Section 2. Theater--Definition. As used in this ordinance and in Sections 318.5 and 318.6, 'theater' means a building, play house, room, hall or other place having a permanent stage upon which movable scenery and theatrical or vaudeville or similar performances are given and permanently affixed seats so arranged that a body of spectators can have an unobstructed view of the stage, and for which a county license for a theater is in full force and effect. This definition does not supersede the provisions of Section 1 of this ordinance.
Section 3. Prohibition. Every person is guilty of a misdemeanor who:
'(a) Exposes his or her private parts or buttocks or employs any device or covering which is intended to simulate the private parts or pubic hair while participating in any live act, demonstration, or exhibition in any public place, place open to the public, or place open to public view, or while serving food or drink or both to any customer, or
'(b) Permits, procures or assists any person to so expose himself or herself, or to employ any such device.
'Section 4. Accessories. Every person is guilty of a misdemeanor who permits, counsels, or assists any person to violate any provision of this ordinance.
'Section 5. Exceptions. This ordinance does not apply to:
'(a) A theater, concert hall, or similar establishment which is primarily devoted to theatrical performance.
'(b) Any act authorized or prohibited by any state statute.
(Emphasis ours.)
Ordinance No. 1055 (herein, 'the 'topless' ordinance') duplicates sections 1, 2, 4, 5, and 6 of the 'bottomless' ordinance, and otherwise provides in relevant part as follows:
'Section 3. Prohibition. Every female is guilty of a misdemeanor who while participating in any live act, demonstration, or exhibition in any public place, place open to the public, or place open to public view, or while serving food or drink or both to any customer:
'(a) Exposes any portion of either breast below a straight line so drawn that both nipples and all portions of both breasts which have a different pigmentation than that of the main portion of the breasts are below such straight line, or
'(b) Employs any device or covering, which is intended to simulate such portions of the breast, or
'(c) Wears any type of clothing so that any portion of such part of the breast may be observed.' (Emphasis ours.)
On November 12, 1969, appellants Glancy and Haines filed in superior court a complaint for declaratory relief, by which they sought a determination that--as applied to them--the two county ordinances violated their First Amendment rights of free speech and expression and denied them equal protection of the laws. It was also alleged that, under the same constitutional provisions, each ordinance was invalid on its face.
The complaint stated that Glancy was the owner of a Sacramento County tavern where the adult public was entertained by 'topless' and 'bottomless' dancing by Haines, and where Haines served food and beverages 'topless.' In addition to requesting a declaratory judgment, the complaint prayed for an injunction restraining the county, its sheriff, and its district attorney from enforcing the ordinances.
The first appeal at bench is by Glancy and Haines from an order entered December 2, 1969, in which the superior court denied their request for a preliminary injunction and dissolved a temporary restraining order which had theretofore issued in the declaratory relief action.
On December 4, 1969, in the municipal court, criminal complaints were filed charging Glancy and Haines with having violated both county ordinances the day before. Glancy was named as an accessory. On the same day that the misdemeanor complaints were filed, Glancy and Haines petitioned the superior court for a writ of prohibition to halt those criminal proceedings. Their petition renewed the attack which the declaratory relief action had launched against the constitutionality of each ordinance, as applied to them. Additionally, the petition for the writ alleged that the two enabling statutes--Penal Code sections 318.5 and 318.6, supra--unconstitutionally discriminated 'between theaters and all other public places. * * * '
The second appeal at bench is by Glancy and Haines from an order made December 12, 1969, by which the superior court denied the petition for the writ.
On June 29, 1970, while their appeals were pending, Glancy and Haines entered pleas of nolo contendere to a charge of violating the 'topless' ordinance (Glancy, as an accessory), and all remaining charges were dismissed on motion of the district attorney. Judgment on the pleas was continued, pending our decision herein. The latter circumstance leaves the validity of the 'topless' ordinance and enabling statut...
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