Lynch v. City of Los Angeles

• Decision Date: 10 November 1952
• Citation: 114 Cal.App.2d 115,249 P.2d 856
• Court: California Court of Appeals Court of Appeals
• Parties: LYNCH v. CITY OF LOS ANGELES et al. Civ. 19013.

Page 856

249 P.2d 856

114 Cal.App.2d 115

LYNCH v. CITY OF LOS ANGELES et al.

Civ. 19013.

District Court of Appeal, Second District, Division 1, California.

Nov. 10, 1952.

Rehearing Denied Dec. 1, 1952.

Hearing Denied Jan. 8, 1953.

Ray L. Chesebro, City Atty., Bourke Jones, Asst. City Atty., James A. Doherty, Deputy City Atty., Los Angeles, for appellants.

Anderson & Anderson, Trent G. Anderson, Los Angeles, for respondent.

PER CURIAM.

This is an appeal by the City and the Chief of the Electrical Division of the Department of Building and Safety, from a judgment granting an injunction against the enforcement of City Ordinance No. 94,073, requiring state-licensed electrical contractors to pay a fee of $100 per year, and to post a surety bond conditioned on compliance with the local law, as a condition precedent to the issuance of permits to do electrical contracting work within the city.

The amended complaint recites that respondent is an electrical contractor licensed under the state Contractor's License Act, Business and Professions Code, § 7000 et seq., and that 'his earnings as a contractor, 90% of which are from work done within the City of Los Angeles, are the sole means of support for himself and his family'. On February 1, 1951, 'respondent was refused the electrical wiring permit for which he applied by reason the fact that he had not paid permit service fees in the sum of $200.00 (for the years 1950 and 1951) and had not posted the bond required'. The complaint alleges that the ordinance in question is regulatory, arbitrary, unreasonable, discriminatory and uncertain, and requires the fee to be paid regardless of whether or not certain inspections, etc. are ever made. It is alleged that the City has no power to impose such restrictions upon contractors licensed by the state. The trial court sustained respondent's contentions and found that the ordinance in question represents an attempt by the City to legislate in a field fully covered by state law.

It is appellants' contention that the ordinances in question are valid under the police power; that the amount of the permit service fee is not unreasonable in view of the number of inspections necessary, information service afforded contractors, etc.; that the $1,000 bond required, conditioned to be 'paid to any person who has suffered damage by reason of the violation of any of the provisions of this Chapter', does not conflict with the general law; that the provision for collection of permit service fees is not void for uncertainty or indefiniteness, and is not regulatory in nature, but 'is purely and simply a charge for services' and reasonable in amount.

Respondent's brief calls attention to the case of Agnew v. City of Los Angeles, 1952, 110 Cal.App.2d 612, 622, 623, 243 P.2d 73, 79, which involves the same issues as those presented in the instant case. In the Agnew case, as here, the lower court granted an injunction against the enforcement of Sections 93.64 and 93.65 of the Electrical Code of Los Angeles, requiring payment of permit service fee of $100 and the posting of a $1,000 bond, the same ordinances involved in the present appeal. The reviewing court affirmed the judgment, holding that these sections 'attempt to impose additional requirements in a field which is fully occupied by the general (state) law, and are unconstitutional since they conflict with the provisions of the Business and Professions Code providing for licensing and regulating contractors, by attempting to legislate upon a subject intended to be fully covered by an act of the Legislature.' A motion for rehearing was denied; a petition for a hearing in the Supreme Court was likewise denied.

In appellants' reply brief, it is contended that the Agnew opinion misconstrues the previous case of City and County of San Francisco v. Boss, 83 Cal.App.2d 445, 189 P.2d 32; that 'The record in this case supplies factual deficiencies noted in the Agnew case', in that the present record shows what services were offered by the City in consideration for payment of the permit service fee, and that the plaintiff herein received such services. It is also argued that the Agnew opinion 'misconstrues the law relating to charges made under the police power', and that 'The requirement of a bond has been inadequately considered'.

The case of City and County of San Francisco v. Boss, 83 Cal.App.2d 445, 189 P.2d 32, just mentioned, held that the city could not recover unpaid city license taxes from a painting contractor who had been licensed by the state but had not obtained a certificate required by the city. Horwith v. City of Fresno, 74 Cal.App.2d 443, 168 P.2d 767, 770, also cited in the Agnew case, likewise held that the licensing of contractors by the state is a matter of general concern and not a municipal affair, and that the general law had fully occupied the filed, saying: 'The state license implies permission to the licensee to conduct his business at any place within the State. This permission should not be circumscribed by local authorities.' In Collins v. Priest, 95 Cal.App.2d 179, 212 P.2d 269, it was similarly held that although a city may regulate sanitary matters, the imposition of additional licensing requirements upon a plumber licensed by the state, is not justified. The Agnew decision, 110 Cal.App.2d 612, 243 P.id 73, correctly followed these cases, and such holding is clearly applicable to the present appeal.

As said in the Agnew opinion, 'Section 93.64 compels a state-licensed contractor to register with the electrical division of the Department of Building and Safety before he may obtain a permit for electrical installations and wiring in the city. * * * An application for a certificate of registration must be made in writing to the Board of Building and Safety Commissioners. §...