Loska v. Superior Court

• Decision Date: 31 December 1986
• Citation: 188 Cal.App.3d 569,233 Cal.Rptr. 213
• Court: California Court of Appeals Court of Appeals
• Parties: William LOSKA, Petitioner, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent. The PEOPLE of the State of California, Real Party in Interest. B019388.

Page 213

233 Cal.Rptr. 213

188 Cal.App.3d 569

William LOSKA, Petitioner, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent The PEOPLE of the State of California, Real Party in Interest.

B019388.

Court of Appeal, Second District, Division 7, California.

Dec. 31, 1986.

Review Denied March 17, 1987.

William Loska, in pro. per.

No appearance by respondent.

James K. Hahn, City Atty., and Greg Wolff, Deputy City Atty., for real party in interest.

THOMPSON, Associate Justice.

The issue before us is the constitutionality of Los Angeles Municipal Code ¹ section 42.03, subdivision (a), prohibiting the sale of, or offer to sell, tickets of admission to a public assemblage in any public place. ²

Petitioner William Loska was charged with violating the ordinance in that he "did willfully and unlawfully upon a public street, sidewalk, park and other public place, sell and resell and offer to sell and resell a ticket of admission to a place of public assemblage." Petitioner was on Stadium Way in Elysian Park Drive, approximately one-quarter mile north of Dodger Stadium, when he was arrested. Petitioner, who was proceeding in pro per, challenged the constitutionality of the law in a motion to suppress. The Municipal Court held that the ordinance was unconstitutional, granted the motion to suppress and dismissed the case. The People appealed. The Appellate Department of the Superior Court reversed on procedural grounds ³ and also held the ordinance was valid. Petitioner sought a writ of habeas corpus in this court. We exercised our discretion to grant a writ of review. ⁴

DISCUSSION

I Police Power

Under the police power granted by the California Constitution, cities have plenary authority to govern, subject only to the limitation they exercise this power within their territorial limits and subordinate to state law. (Cal. Const., art. XI, § 7.) Apart from this limitation, the police power of a city is as broad as the police power exercised by the Legislature itself. (Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 885, 218 Cal.Rptr. 303, 705 P.2d 876.) Municipal police power extends to objectives in furtherance of the public peace, safety, morals, health and welfare. It is not a circumscribed prerogative but rather is elastic. (Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 676, 209 Cal.Rptr. 682, 693 P.2d 261.) In exercising its police power, a city has broad discretion to determine what is reasonable in endeavoring to protect public safety, health, morals, and general welfare. (Carlin v. City of Palm Springs (1971) 14 Cal.App.3d 706, 711, 92 Cal.Rptr. 535.) So long as a city ordinance is within the power of the City Council to enact, and so long as the ordinance does not offend constitutional rights, the ordinance is valid. (Park & Shop Markets, Inc. v. City of Berkeley (1981) 116 Cal.App.3d 78, 93, 172 Cal.Rptr. 515.)

It is not the function of the appellate court nor within that court's province to sit as a super-Legislature, passing on the wisdom or lack thereof of legislative enactments. (Ibid.) Thus, the court is not concerned with the wisdom or policy of the law; it cannot substitute its judgment for that of the legislative body if there is reasonable justification for the latter's action. (Amezcua v. City of Pomona (1985) 170 Cal.App.3d 305, 310, 216 Cal.Rptr. 37.)

Section 42.03 provides in pertinent part: "(a) Except as otherwise provided in this section, no person in or upon any public street, sidewalk, park or other public place shall sell or resell or offer to sell or resell any ticket of admission to a place of public assemblage.... (c) The provisions ... of this section shall not include or apply to the sale of such tickets at or from any ticket office, booth or other similar place regularly and permanently established and maintained therefor with the express permission and authorization of the person or governmental agency in charge, care or control of the property which such office, booth or place is located."

The section was amended to its current form in 1961 by Ordinance No. 120,444. The preamble set forth the following explanation of the problems justifying the passage of the ordinance: ⁵ "WHEREAS, the practice of selling and attempting to sell tickets of admission to places of public assemblage other than from regularly established ticket offices in public places and places open to the public continues with increasing frequency throughout the City, and [p] WHEREAS, such practice has resulted and continues to result in the sale of counterfeit tickets thereby defrauding the public, and [p] WHEREAS, such practice has resulted and continues to result in assault upon and injury to members of the public in such places, and [p] WHEREAS, such practice has resulted and continues to result in purse snatching and other assorted robberies, and [p] WHEREAS, such practice has resulted and continues to result in the interference with the normal and lawful flow of vehicular and pedestrian traffic in and around such places, and [p] WHEREAS, such practice has resulted and continues to result in the harassment and annoyance of the public in its lawful and regular use of such places, and [p] WHEREAS, the continuance of such practice is contrary to and adversely affects the peace, safety and welfare of the citizens of this community and the lawful conduct and operation of places of public assemblage[.]"

The People contend that the ordinance is a valid exercise of police power "to limit the use of public streets and sidewalks for commercial purposes." ⁶ The People argue it properly regulates the location of any ticket sale by preventing the use of public property for such private commercial purposes.

"A business may be inherently lawful and still subject to police regulation, but when such lawful business is regulated, it is a judicial question whether the law or ordinance is a lawful exercise of the police power. [Citations.] If, in the opinion of the court, a statute or ordinance purporting to be enacted to protect the public health, safety, morals, comfort, convenience or general welfare has no real or substantial relation to any of those objects, it is the duty of the court to so declare. A legislative body may not, under the guise of the police power, impose restrictions that are unnecessary and unreasonable upon the use of private property or the pursuit of useful activities. [Citations.]" (McKay Jewelers, Inc. v. Bowron (1942) 19 Cal.2d 595, 600, 601, 122 P.2d 543.)

Petitioner in essence contends the ordinance violates his rights to equal protection of the law, due process and "liberty" of speech. ⁷ The People, however, assert that the previously cited preamble of the ordinance reflects growing problems of counterfeit tickets, assaultive offenses and traffic congestion which justify the decision to prohibit ticket sales on public property.

II Equal Protection and Due Process

We first turn to petitioner's claim of denial of equal protection. Petitioner argues the ordinance invalidly discriminates between ticket vendors and all other vendors and between ambulant ticket vendors and ticket vendors in booths. (See § 42.03, subd. (c).) In order to evaluate this equal protection challenge, we must determine whether petitioner is "similarly situated" to other vendors receiving different treatment. "The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." (In re Eric J. (1979) 25 Cal.3d 522, 530, 159 Cal.Rptr. 317, 601 P.2d 549; italics in original.) The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same. (People v. Jacobs (1984) 157 Cal.App.3d 797, 801, 204 Cal.Rptr. 234.)

Ticket vendors are similarly situated to all other types of ambulatory vendors with respect to the legitimate purposes of the ordinance to alleviate the problems of traffic congestion and assaultive crimes. There is no lesser impact on vehicular or pedestrian traffic throughout the city streets if a vendor is selling or offering to sell oranges, souvenirs or flowers rather than tickets. Nor is there any intrinsic relationship between the type of item sold or offered for sale and the likelihood of purse snatching. If these were the only objectives of the ordinance, it would seem to be "patently discriminatory" to have an ordinance that "[p]eanuts, popcorn, [or] chewing gum y(3)27 could be sold but a ticket cannot." (People v. Van Wong (1958) 165 Cal.App.2d Supp. 821, 824, 332 P.2d 872.)

The People claim there is no discrimination between vendors of tickets and other items because section 42.03 is part of a comprehensive scheme regulating soliciting and sales on public property. Section 42.00 generally prohibits the sale or offer to sell of "any goods, wares, or merchandise" upon any "roadways, parkways, alleys, and sidewalks." Petitioner validly points out, however, that the proscription in section 42.03 encompasses a greater area. Section 42.03, subdivision (a), also extends the prohibition to solicitations or sales in parks or any "public place." ⁸ Such distinction could not withstand a rational basis test. Indeed if there were no other justification, this unequal treatment would not pass muster on equal protection or due process grounds.

In Portnoy v. Hohmann (1942) 50 Cal.App.2d 22, 122 P.2d 533, the Court of Appeal, in an analogous situation, held that a Municipal Code section (then § 4216) which merely prohibited distribution of handbills or other advertising matter relating to photographs was unconstitutional. The court pointed out that "there appears to be no substantial distinction between respondent's type of business and any other type of business which employs or which might employ such solicitation and distribution on...