Lopez v. McMahon

Decision Date22 November 1988
Docket NumberNo. A040750,A040750
Citation253 Cal.Rptr. 321,205 Cal.App.3d 1510
CourtCalifornia Court of Appeals Court of Appeals
PartiesTeresa L. LOPEZ, Plaintiff and Appellant, v. Linda S. McMAHON, as Director, etc., Defendant and Respondent.

Orrick, Herrington & Sutcliffe, James Maidson and Kathryn Doi, San Francisco, for plaintiff and appellant.

Wynne S. Carvill, Jo Ann Woodsum, Nina M. Brooks and Thelen, Marrin, Johnson & Bridges, San Francisco, for amicus curiae on behalf of plaintiff and appellant.

John K. Van de Kamp, Atty. Gen., and Ralph M. Johnson, Deputy Atty. Gen., San Francisco, for defendant and respondent.

RACANELLI, Presiding Justice.

This appeal challenges the constitutionality of Health and Safety Code section 1596.871, an integral provision of the California Child Day Care Facilities Act, insofar as it automatically denies a license to operate a day care facility to an applicant residing with an adult convicted of a violent felony. For the reasons we explain, we find no constitutional infirmity as claimed.

STATEMENT OF THE CASE

In 1984, appellant Teresa Lopez applied for a license to operate a child care facility (a "small family day care home") accommodating no more than six children in her own home. Her application was denied by the Director of the Department of Social Services on the ground that her husband, Robert Lopez, had been convicted of armed robbery in 1977.

Appellant requested an administrative hearing at which she presented substantial evidence of her husband's successful rehabilitation. Although the administrative law judge found that Robert Lopez was of good moral character, he nevertheless ruled that the department had no discretion to grant appellant's application. Thereafter, the department adopted the decision of the administrative law judge denying the application.

Appellant then petitioned the superior court for a writ of mandate seeking to compel the department to issue the requested license. Following the trial court's denial of the petition, this appeal ensued.

FACTS

The facts are undisputed. In 1977, Robert Lopez was convicted of armed robbery and sentenced to a two-year term of imprisonment. Part of his sentence was served at San Quentin and, later, at a minimum security firefighting camp at Fort Bragg, California.

After his release in 1979, Robert met appellant, and they were married in 1981. They are the parents of two young children.

Robert is regularly employed as a firefighter for Marin County and, during off-duty hours, also works as a painting contractor. He is active in church activities and has coached girls' ("Bobby Socks") softball. Since his release from prison, he has had no arrests, no convictions and no disciplinary problems as a firefighter. By everyone's account, Robert is an upstanding citizen and a person of good moral character.

DISCUSSION

The California Child Day Care Facilities Act (Health & Saf.Code, § 1596.70 et seq.) 1 provides that an application for a license or special permit to operate or manage a day care facility "shall be denied" if the applicant, any staff member or administrator, or any adult "residing in the facility" has been convicted of a crime other than a minor traffic violation. ( § 1596.871, subds. (a), (b).)

The statute authorizes the Director of the Department of Social Services to grant an exemption from such disqualification if the director reasonably believes that the applicant and the person convicted of the crime are of sufficient good character. However, no exemption shall be granted if the conviction was for specified sex offenses or any of the violent felonies enumerated under Penal Code section 667.5, subdivision (c). ( § 1596.871, subd. (e).) 2

Robert's conviction of the crime of armed robbery, by definition, falls within the latter category of specified crimes as "any felony in which the defendant uses a firearm...." (Pen.Code, § 667.5, subd. (c)(8).)

The sole question raised by appellant is whether section 1596.871 is constitutional as applied to her. We discuss the several constitutional challenges.

I Equal Protection

Appellant first argues that section 1596.871 irrationally discriminates against a class of applicants: those who reside with certain ex-offenders. Such disparate treatment, she contends, is not rationally related to the state's interest in protecting children. The argument fails to withstand critical analysis.

We agree with appellant that the "rational basis" test is the appropriate standard to apply in evaluating the challenged legislative classification. 3 (See, e.g., Newland v Board of Governors (1977) 19 Cal.3d 705, 711, 139 Cal.Rptr. 620, 566 P.2d 254 [issuance of teaching credential]; D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at pp. 16-18, 112 Cal.Rptr. 786, 520 P.2d 10 [issuance of medical license]; Reece v. Alcoholic Bev. etc. Appeals Bd., supra, 64 Cal.App.3d at pp. 679-681, 134 Cal.Rptr. 698 [issuance of license to sell alcohol].) In discussing an analogous issue, this court aptly observed:

"As described by the California Supreme Court in Westbrook v. Mihaly (1970) 2 Cal.3d 765 [87 Cal.Rptr. 839, 471 P.2d 487], the rational basis test has been applied by the United States Supreme Court in the area of economic and social welfare regulation where "the high court has exercised restraint, investing legislation with a presumption of constitutionality and requiring merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose. [Citations.]" (Id., at p. 784 [87 Cal.Rptr. 839, 471 P.2d 487], see, Dandridge v. Williams (1970) 397 U.S. 471 [90 S.Ct. 1153, 25 L.Ed.2d 491]; Jefferson v. Hackney (1972) 406 U.S. 535 [92 S.Ct. 1724, 32 L.Ed.2d 285].)"

(King v. McMahon (1986) 186 Cal.App.3d 648, 656, 230 Cal.Rptr. 911.)

The purpose of the challenged legislation is manifestly valid. As appellant concedes, the statute is designed to protect the children clientele of home day care facilities from any potential risk of harm. ( § 1596.871.) The statute is rationally related to that legitimate purpose by denying a day care operator's license to applicants who were themselves convicted of certain felonies or who have working or residing on the proposed day care premises someone who was so convicted.

Appellant relies on a line of cases which involved an unconstitutional blanket denial of public employment or occupational licenses to all convicted felons. (See, e.g., Brewer v. Department of Motor Vehicles (1979) 93 Cal.App.3d 358, 368, 155 Cal.Rptr. 643 [denial of license to sell vehicles]; Furst v. New York City Transit Authority (E.D.N.Y.1986) 631 F.Supp. 1331, 1337-1338 [denial of city employment]; Kindem v. City of Alameda (N.D.Cal.1980) 502 F.Supp. 1108, 1111-1113 [same]; Butts v. Nichols (S.D.Iowa 1974) 381 F.Supp. 573, 578-582 [denial of state employment]; see also Newland v. Board of Governors, supra, 19 Cal.3d 705, 139 Cal.Rptr. 620, 566 P.2d 254 [denial of teacher's credential to all misdemeanants]; Thompson v. Gallagher (5th Cir.1973) 489 F.2d 443 [denial of city employment to veterans with less than honorable discharges].)

While the courts reasoned that such an absolute bar was not reasonably related to a legitimate public purpose, some felonies being unrelated to a governmental interest in trustworthiness and qualifications of employees or licensees, in each case the court recognized that a statute suitably tailored to relate the nature of the prior conviction to the qualifications or duties of the employment would not offend the Equal Protection Clause. 4

Appellant overlooks the critical distinction that the statute here involved does not preemptively bar all ex-felons. Rather, the statute is narrowly drawn to prohibit disqualification exemption only to those convicted of certain crimes, namely, crimes against children (Pen.Code, §§ 273a, subd. (1), 273d); sex offenses (Pen.Code, §§ 220, 243.4, 264.1, 288, 289, 667.5, subds. (c)(3), (c)(5), (c)(6)); crimes involving violence (Pen.Code, §§ 220, 667.5, subds. (c)(1), (c)(2), (c)(4), (c)(7), (c)(8)), or the threat of violence (Pen.Code, § 667.5, subds. (c)(8), (c)(9)).

Such narrow classification is rationally related to the legislative purpose to protect day care children against risk of harm. The Legislature could reasonably conclude in the abstract that persons convicted of certain types of crimes--whether involving children, sex offenses or crimes of violence--pose a peculiar threat to the health and safety of children being cared for at the facility.

II Due Process

Appellant next argues that the statute denies her substantive due process. The general principles governing a substantive due process claim have often been stated.

"The cardinal principle of substantive due process is that a law which deprives a person of life, liberty or property must not be the product of arbitrary legislative judgment. Such a law must be reasonably related to the object sought to be obtained by its enactment."

(Loska v. Superior Court (1986) 188 Cal.App.3d 569, 580, 233 Cal.Rptr. 213, citing People v. Armbruster (1985) 163 Cal.App.3d 660, 664, 210 Cal.Rptr. 11.) "[T]he

constitutionality of measures affecting such economic rights under the due process clause does not depend on a judicial assessment of the justifications for the legislation or of the wisdom or fairness of the enactment. So long as the measure is rationally related to a legitimate state interest, policy determinations as to the need for, and desirability of, the enactment are for the Legislature."

(American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 369, 204 Cal.Rptr. 671, 683 P.2d 670.)

Appellant mounts a three pronged attack on the statute claiming there is no rational basis for the Legislature's conclusions that: 1) persons convicted of a felony using a firearm pose a threat to children; 2) persons convicted of a violent felony pose a...

To continue reading

Request your trial
10 cases
  • Hellinger v. Farmers Group, Inc., B138734.
    • United States
    • California Court of Appeals
    • August 24, 2001
    ...... (1997) 57 Cal.App.4th 1334, 1341, fn. 6, 67 Cal.Rptr.2d 726; Lopez v. McMahon (1988) 205 Cal. App.3d 1510, 1520-1521, 253 Cal.Rptr. 321.) . 4. In its letter brief, ......
  • Doe v. Saenz, A105364.
    • United States
    • California Court of Appeals
    • June 22, 2006
    ......( Lopez v. McMahon (1988) 205 Cal.App.3d 1510, 1516, 253 Cal. Rptr. 321 ( Lopez ).) "In areas of social ......
  • People ex rel. Gascon v. Homeadvisor, Inc.
    • United States
    • California Court of Appeals
    • May 14, 2020
    ...... we should address constitutional arguments "rests within the court’s discretion." ( Lopez v. McMahon (1988) 205 Cal.App.3d 1510, 1520–1521, 253 Cal.Rptr. 321 [addressing constitutional ......
  • Adamson v. Department of Social Services, A041273
    • United States
    • California Court of Appeals
    • December 27, 1988
    ...... (Former § 1596.885, subd. (c) [Stats.1984, ch. 1615, § 9, p. 5749]; see Lopez v. McMahon (1988) 205 Cal.App.3d 1510, 1517, 253 Cal.Rptr. 321.) Consistent with this purpose, we ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT