Massingill v. Dept. of Food & Agriculture

• Decision Date: 26 September 2002
• Docket Number: No. G028308.,G028308.
• Citation: 102 Cal.App.4th 498,125 Cal.Rptr.2d 561
• Court: California Court of Appeals Court of Appeals
• Parties: James MASSINGILL et al. Plaintiffs and Appellants, v. DEPARTMENT OF FOOD AND AGRICULTURE et al. Defendants and Respondents.

125 Cal.Rptr.2d 561

102 Cal.App.4th 498

James MASSINGILL et al. Plaintiffs and Appellants, v. DEPARTMENT OF FOOD AND AGRICULTURE et al. Defendants and Respondents.

No. G028308.

Court of Appeal, Fourth District, Division 3.

September 26, 2002.

Sterling Scott Winchell, Santa Ana, for Plaintiffs and Appellants.

Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Mary E. Hackenbracht, Assistant Attorney General, and William S. Abbey, Deputy Attorney General, for Defendants and Respondents.

OPINION

FYBEL, J.

In 1999, the Legislature amended Business and Professions Code section 13651 (effective January 1, 2000) to require gasoline service stations to provide water, compressed air, and an air pressure gauge "at no cost to customers who purchase motor vehicle fuel...." (Assem. Bill No. 531 (1999-2000 Reg. Sess.), Stats.1999, ch. 583, § 2, amending Bus. & Prof.Code, § 13651, subd. (a)(1).) Plaintiffs are service station owners, vendors of water and compressed air machines, and persons with interests in those businesses. They assert the Legislature's amendment of section 13651 (referred to as amended section 13651) was an invalid exercise of the state's police power and effectuated, through the power of eminent domain, an unconstitutional regulatory taking of their property for public use without just compensation.

We conclude amended section 13651 is a valid exercise of the state's police power. We also conclude amended section 13651 does not effectuate an unconstitutional taking of plaintiffs' property. Accordingly, we affirm summary judgment in favor of the State of California and the California Department of Food and Agriculture, Division of Measurement Standards (the State).

FACTS AND PROCEEDINGS BELOW

In 1984, the Legislature enacted Business and Professions Code section 13651 (all further code references are to the Business & Professions Code), which required all gasoline service stations in California to provide water, compressed air, and an air pressure gauge during operating hours. The statute was silent on whether fees could be charged for those services. Service stations soon began providing water and compressed air, as section 13651 required, but often for a fee— usually 25 cents for three minutes of compressed air.

The Legislature responded in 1999 by enacting Assembly Bill No. 531, effective January 1, 2000, which amended section 13651 to require service stations to provide water, compressed air, and an air pressure gauge "at no cost to customers who purchase motor vehicle fuel...." (Assem. Bill No 531, supra, ch. 583, § 2, amending Bus. & Prof.Code, § 13651, subd. (a)(1).) Each violation carries a $250 fine. (§ 13651, subd. (d)(2).) Amended section 13651 also requires service stations to post near the water or air dispenser a sign stating: "`CALIFORNIA LAW REQUIRES THIS STATION TO PROVIDE FREE AIR AND WATER FOR AUTOMOTIVE PURPOSES TO ITS CUSTOMERS WHO PURCHASE MOTOR VEHICLE FUEL. IF YOU HAVE A COMPLAINT NOTIFY THE STATION ATTENDANT AND/OR CALL THIS TOLL-FREE TELEPHONE NUMBER ....'" (§ 13651, subd. (a)(2).)

In amending section 13651, the Legislature found and declared that "air and water are essential to the safe operation of motor vehicles, and therefore public safety requires that free air and water be accessible at all service stations." (Assem. Bill No. 531, supra, ch. 583, § 1.)

Plaintiffs consist of three groups: (1) independent service station owners, (2) vendors of water and compressed air machines, and (3) persons with "interests" in those businesses. They sued to enjoin enforcement of amended section 13651 and for a declaration "of the constitutionality, or lack thereof, of the amendments to Business and Professions Code Section 13651...." Plaintiffs moved for summary judgment on the following grounds: (1) amended section 13651 is an unconstitutional exercise of the state's police power and (2) amended section 13651 is an unconstitutional taking of property for public use through eminent domain. The State opposed, and the parties stipulated the State's opposition be deemed a cross-motion for summary judgment.

After a hearing, the trial court denied plaintiffs' motion and granted the State's motion. The order granting summary judgment states: "1. There are no material facts in dispute. [¶] 2. The enactment of the statute at issue was a valid exercise of the police power by the state legislature. [¶] 3. The enactment of the statute was a valid business regulation. [¶] 4. The enactment of the statute did not constitute a violation of due process. [¶] 5. The statute does not effect a taking in eminent domain and is therefore not unconstitutional."

On September 29, 2000, the State served a "Notice Of Entry Of Judgment," attaching the order granting summary judgment. No "judgment" appears in the record. On November 22, plaintiffs filed a "Notice of Appeal of Order Granting Defendants' Cross-motion for Summary Judgment." (Italics added.) To preserve appellate jurisdiction, we will construe the order granting summary judgment as a judgment and plaintiffs' notice of appeal as being from that judgment. We review summary judgment de novo. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65, 67-68, 99 Cal.Rptr.2d 316, 5 P.3d 874; Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1001, 67 Cal. Rptr.2d 483.)

DISCUSSION

I. Amended Section 13651 Is a Valid Exercise of the States Police Power

Plaintiffs contend amended section 13651 constitutes an unconstitutional exercise of the state's police power. The police power is "the power of sovereignty or power to govern—the inherent reserved power of the state to subject individual rights to reasonable regulation for the general welfare." (8 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 784, p. 311.) The police power extends to legislative objectives in furtherance of public peace, safety, morals, health and welfare. (Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 160, 130 Cal.Rptr. 465, 550 P.2d 1001.)

Whether a law is a constitutional exercise of the police power is a judicial question. (McKay Jewelers, Inc. v. Bowron (1942) 19 Cal.2d 595, 600, 122 P.2d 543.) A law is a valid exercise of the police power unless the law is manifestly unreasonable, arbitrary or capricious, and has no real or substantial relation to the public health, safety, morals or general welfare. (Amezcua v. City of Pomona (1985) 170 Cal.App.3d 305, 309-310, 216 Cal.Rptr. 37; see also Birkenfeld v. City of Berkeley, supra, 17 Cal.3d at p. 159, 130 Cal.Rptr. 465, 550 P.2d 1001; McKay Jewelers, Inc. v. Bowron, supra, 19 Cal.2d at pp. 600-601, 122 P.2d 543; Advanced Delivery Service, Inc. v. Gates (1986) 183 Cal.App.3d 967, 976, 228 Cal.Rptr. 557.)

A law is presumed to be a valid exercise of police power. The party challenging the law has the burden of establishing it does not reasonably relate to a legitimate government concern. (Hesperia Land Development Co. v. Superior Court (1960) 184 Cal.App.2d 865, 870, 7 Cal.Rptr. 815.)

Amended section 13651 is a valid exercise of the Legislature's police power. There can be no doubt in the truth of the Legislature's declaration that "air and water are essential to the safe operation of motor vehicles." Plaintiffs conceded that proposition at oral argument. It is a reasonable deduction that motorists are more likely to keep their automobile tires properly inflated and coolant systems filled with water if water and compressed air are offered at all service stations free of charge, however slight that charge might have been. The means chosen by the Legislature—free water and compressed air— are reasonably designed to achieve the desired end—safe operation of motor vehicles. (See Hesperia Land Development Co. v. Superior Court, supra, 184 Cal. App.2d at p. 870, 7 Cal.Rptr. 815.) Amended section 13651 is therefore substantially reasonably related to the goal of public health and safety, and is not unreasonable, arbitrary or capricious.

II.

Amended Section 13651 Does Not Effectuate an Unconstitutional Taking of Plaintiffs' Property

A.

Plaintiffs contend amended section 13651 is an unconstitutional regulatory taking through eminent domain. They argue that by amending section 13651, the Legislature "took, for the public use and benefit, the ... pre-existing property right of the Appellants to charge a fee for the use of their [compressed air and water] vending machines." Although plaintiffs did not plead a cause of action for eminent domain, the complaint does seek "[a] judicial determination of the constitutionality, or lack thereof, of the amendments to Business and Professions Code Section 13651 ...," and this request is broad enough to include an unconstitutional taking claim. Further, a party challenging a regulation as a taking may bring an action to set aside or void the regulation without joining a claim for damages. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 14, 32 Cal.Rptr.2d 244, 876 P.2d 1043.)

The takings clauses of the federal and state Constitutions guarantee property owners "just compensation" when their property is taken for public use. (U.S. Const., 5th Amend; Cal. Const, art. I, § 19.) "The purpose of forbidding uncompensated takings of private property for public use is `to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.'" (Connolly v. Pension Benefit Guaranty Corp. (1986) 475 U.S. 211, 227, 106 S.Ct. 1018, 89 L.Ed.2d 166 (Connolly).)

A regulation of economic interests which "`goes too far'" may become a "taking" even though the property remains in private hands. (Kavanau v. Santa Monica Rent Control Bd. (1997) 16 Cal.4th 761, 773, 66 Cal.Rptr.2d 672, 941 P.2d 851 (Kavanau); Blue Jeans Equities West v. City and County of San Francisco (1992) 3 Cal.App.4th 164, 168, 4 Cal. Rptr.2d 114; see generally Pennsylvania Coal Co. v. Mahon (1922) 260...