Miller v. Murphy

• Court: California Court of Appeals
• Writing for the Court: CALDECOTT
• Citation: Miller v. Murphy, 191 Cal.Rptr. 740, 143 Cal.App.3d 337 (Cal. App. 1983)
• Decision Date: 26 May 1983
• Parties: Murray MILLER, individually and dba Ace Jewelry and Loan Company, et al., Plaintiffs and Appellants, v. Cornelius P. MURPHY, et al., Defendants and Respondents. Civ. 54345.

Page 740

191 Cal.Rptr. 740

143 Cal.App.3d 337

Murray MILLER, individually and dba Ace Jewelry and Loan Company, et al., Plaintiffs and Appellants, v. Cornelius P. MURPHY, et al., Defendants and Respondents.

Civ. 54345.

Court of Appeal, First District, Division 4, California.

May 26, 1983.

Hearing Denied July 27, 1983.

Joseph D. O'Sullivan, San Francisco, for plaintiffs and appellants.

George P. Agnost, City Atty., City and County of San Francisco, Paula Jesson, Deputy City Atty., San Francisco, for defendants and respondents.

CALDECOTT, Presiding Justice.

The basic issue presented by this appeal involves the constitutionality of pawnbroker regulations adopted by the City and County of San Francisco.

Appellants are several licensed pawnbrokers operating pawnshops in San Francisco. Respondents are the San Francisco Chief of Police and the San Francisco Police Commission. Appellants filed a petition for writ of mandamus, and a complaint for declaratory and injunctive relief against respondents challenging the constitutionality of pawnbroker regulations established by respondents under authority of section 2815 of Article 28 of the San Francisco Municipal Police Code. Following trial judgment was entered denying petitioners relief in all respects. The appeal is from the judgment.

Under Business and Professions Code section 21628, pawnshop operators throughout the state are required to keep a report of every transaction they make. These reports, or transaction slips, must include the name and address of the customer, a description of the property to be pawned, and a certification by the operator that the information is correct. The San Francisco pawnbroker regulations (hereafter "regulations"), however, add to those requirements. First they provide that the only acceptable identification for a pawnshop transaction is a valid driver's license, an identification card issued by a government agency "which contains a photograph or complete physical description of the issuee." A social security card is acceptable only if the pawnshop operator personally knows the customer. The regulations further require that the pawnbroker obtain an impression of the customer's fingerprint on the transaction slip. Additionally, the regulations require that the pawnbroker post, on his premises, his interest rates charged in letters at least two inches in height. Finally, the regulations provide that pawnbrokers who violate the regulations may be subject to revocation or suspension of their permit.

I

Appellants contend that the Legislature, by enacting laws governing pawnshops, has preempted any local legislation in that area. Accordingly, appellants argue, since the regulations are inconsistent with Business and Professions Code, Chapter 9, Article 4 (§§ 21625 et seq.; hereafter "Article 4"), they are invalid. However, an examination of Article 4, in conjunction with the regulations, reveals that the Legislature has not completely taken over the area of pawnshop operators, and that in any event the regulations are not inconsistent with Article 4.

The law of preemption is discussed in detail in Stewart v. County of San Mateo (1966) 246 Cal.App.2d 273, 54 Cal.Rptr. 599. When local legislation adds requirements to an area which has been preempted by the Legislature, that local legislation is invalid. (Id., at p. 281, 54 Cal.Rptr. 599.) To determine whether the Legislature has preempted a certain field, one must question whether the Legislature "intended to occupy a particular field to the exclusion of all local regulation." (Id., at p. 282, 54 Cal.Rptr. 599.) This intent is determined by "an analysis of the state legislation in terms of its language, purpose, and scope, and the facts and circumstances upon which it was intended to operate." (Id.) Where the intent of the Legislature is to have exclusive control in an area, local authorities may not legislate in the same area. Conversely, when there seems to be no intent to have exclusive control, local authorities may add supplementary regulations. (Id.)

Application of the above standards to this case reveals that the regulations do not invade the area which the Legislature has intended to exclusively control. Article 4, section 21625 of the Business and Professions Code, provides that the statewide regulations were enacted to require uniform statewide reporting of pawnshop transactions in order to control and discover "the dissemination of stolen property." Furthermore, the Legislature intended that the regulations "shall not be superseded or supplanted" by local ordinances. (Id.) This might be indicative of an intent to possess exclusive legislative authority in the pawnshop area, but examination of other provisions reveals otherwise.

First, section 21638 provides that local ordinances "not inconsistent" with Article 4 are valid. Second, section 21628 provides that a report be made of each transaction the pawnbroker makes, and that each report "shall include, but not be limited to," the name and address of the customer, a description of the property, and a certification by the operator concerning the accuracy of the information. Thus, the Legislature, by the words, "but not be limited to," indicated that it only meant to set forth the minimum requirements for the daily report. It extended an invitation to local governments to add to the information required on the reports, as long as the minimal requirements of section 21628 were followed.

Paragraph III, section 5 of the regulations provides that a customer's identification must consist of a valid driver's license, a California Department of Motor Vehicles identification card, or other governmental identification with a photograph and a "complete physical description of the issuee." This is not inconsistent with section 21638, as it merely provides for the manner in which the customer proves his name and address that is entered on the required report. Section 5(e) requires that the report contain a fingerprint of the customer. This is, again, merely an additional requirement beyond the minimum information which the Legislature requires.

In summary, local governments are free to add requirements, so long as they do not counter legislative intent to aid in the prevention of thefts and the recovery of stolen property. The San Francisco regulations merely add to those minimum requirements as a means to further aid the detection of crimes of theft, and cannot be said to have surpassed local authority to regulate.

II

Appellants allege that the regulations violate several constitutional protections, including the right to privacy, the freedom of occupation and contract, and equal protection. In what follows, each of those alleged violations will be considered separately.

Judicial Review of Legislation

In order to determine the constitutionality of a legislative regulation, courts initially consider the nature of the interest. Depending upon the quality of that interest, one of several standards of review may be used in analyzing the restriction. When " 'fundamental rights' " are involved, the "regulation limiting ... [those] rights may be justified only by a 'compelling state interest.' " (Roe v. Wade (1973) 410 U.S. 113, 155, 93 S.Ct. 705, 728, 35 L.Ed.2d 147; see also: Kramer v. Union School District (1969) 395 U.S. 621, 627, 89 S.Ct. 1886, 1889-1890, 23 L.Ed.2d 583; Shapiro v. Thompson (1969) 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600; United States v. Karnes (9th Cir.1971) 437 F.2d 284, 287; City of Carmel-By-The-Sea v. Young (1970) 2 Cal.3d 259, 269, 85 Cal.Rptr. 1, 466 P.2d 225.) When regulated interests do not rise to a "fundamental" level, however, the regulation is not subjected to such strict review. In that case courts most often use what is termed as the "traditional standard," determining whether a regulation has a reasonable or rational basis. (United States v. Mara (1973) 410 U.S. 19, 22, 93 S.Ct. 774, 776, 35 L.Ed.2d 99; United States v. Karnes, supra, 437 F.2d 284, 288; Keker v. Procunier (E.D.Cal.1975) 398 F.Supp. 756, 762.) Both the traditional standard and the strict scrutiny standard necessitate a balancing of governmental interests on one hand, against the restrictions of constitutional rights on the other. (City of Carmel-By-The-Sea, supra, 2 Cal.3d 259, 269, 85 Cal.Rptr. 1, 466 P.2d 225; Plante v. Gonzalez (5th Cir.1978) 575 F.2d 1119, 1132-1134.) However, the two tests do differ in important ways. With strict scrutiny analysis, "[t]he law must be shown 'necessary, and not merely rationally related to, the accomplishment of a permissible' " and compelling interest. (Carmel-By-The-Sea, supra, 2 Cal.3d 259, 268, 85 Cal.Rptr. 1, 466 P.2d 225, citing Griswold v. Connecticut (1965) 381 U.S. 479, 497, 85 S.Ct. 1678, 1688, 14 L.Ed.2d 510.) However, when the traditional standard is implemented, the balancing favors the constitutionality of the statute. The regulation at issue will be invalidated only if it is "clearly unfounded." (United States v. Karnes, supra, 437 F.2d 284, 288.) There is, in essence, a presumption that the statute is constitutional. (Cooper v. County of Los Angeles (1975) 49 Cal.App.3d 34, 41, 122 Cal.Rptr. 464; Bowker v. Baker (1946) 73 Cal.App.2d 653, 657, 167 P.2d 256.)

The Right To Privacy

The right to privacy protects a person's interest in being free from governmental invasions "of the sanctity of a man's home and the privacies of life." (Boyd v. United States (1886) 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746.) Even more simply, it may be referred to as the "right to be let alone." (Warren & Brandeis: The Right to Privacy (1890) 4 Harv.L.Rev. 193.) The California Constitution specifically secures the right of privacy. (Cal. Const., art. I, § 1.) Meanwhile, the United States Supreme Court has held that the right to privacy is one of those rights which necessarily emanates from other specifically guaranteed rights of the United States Constitution. (Griswold...