Orloff v. Los Angeles Turf Club
| Decision Date | 14 February 1951 |
| Citation | 227 P.2d 449,36 Cal.2d 734 |
| Court | California Supreme Court |
| Parties | ORLOFF v. LOS ANGELES TURF CLUB, Inc., et al. L. A. 20746. |
William Katz, Los Angeles, for appellant.
Victor Ford Collins and Arnold M. Cannan, Los Angeles, for respondents.
Freston & Files, Los Angeles, amicus curiae on behalf of respondents.
The plaintiff sought an injunction to restrain the defendant from refusing to admit him to the racing arena of Santa Anita Park. The complaint shows that on the 31st day of January, 1946, the plaintiff purchased a ticket and was admitted to the Park at $1:00 p. m. At 4:00 p. m. he was ejected. His ejection under similar circumstances occurred on February 2, 1946. Both occurrences were alleged to have been without cause or provocation on the plaintiff's part. The plaintiff has been refused admittance to the Park since his removal therefrom.
The case was before this court previously on an appeal wherein a judgment of dismissal, entered on an order sustaining the defendant's demurrer, was reversed. 30 Cal.2d 110, 180 P.2d 321, 171 A.L.R. 913. Upon the reversal a trial was had at the close of which the court made findings favorable to the defendant and entered judgment denying injunctive relief. The present appeal is from that judgment.
The issues involve the construction and application of sections 51-54 of the Civil Code. Section 51 provides that all citizens under state jurisdiction are entitled to the full accommodations, advantages, facilities and privileges of hotels, eating places, barber shops, theaters, conveyances, and other places of public accommodation and amusement subject only to the conditions and limitations established by law applicable alike to all citizens.
Section 53 provides that it is unlawful for the proprietor of any Sections 52 and 54 prescribe the liability of persons who deny such accommodations and privileges.
In substance the following evidence is relied on by the defendant to support the judgment. Between 1929 and 1939 the plaintiff was convicted in seven cases of various misdemeanors. Four of the convictions, form chart possession, were under an ordinances held to be invalid in Re Page, 1931, 19 Cal.App.2d 1, 298 P. 178. In 1929 he paid a $10 fine on a conviction of gambling. In 1935 he was convicted of bookmaking, Penal Code, § 337a, on a plea of guilty and received a suspended thirty day sentence and paid a $100 fine. In July 1939 he pleaded guilty to a charge of violation of section 3 of Act 3421, Deering's General Laws (Regulation and Licensing of Horse Racing) by the placing of a wager outside of the course, and paid a $50 fine. There is no evidence that any of the violations was committed on a race-course. There was no evidence that the plaintiff was drunk, boisterous, lewd or conducted himself in any but an orderly and proper manner. The track's arresting officer testified that he observed the plaintiff talking to persons who, by check with police files, were stated to have criminal records. The plaintiff conducts one or more restaurants. The testimony of two police officers was that they 'investigated' the plaintiff's reputation, and that their investigation disclosed that he was reputed to be a bookmaker and doing a bookmaking business; that at the 'present time' he was not known as a bookmaker but as a gambler, and that his place of business was known as a congregating place for professional gamblers and bookmakers.
The trial court did not find that the plaintiff was a person of immoral character. The finding is that he had a reputation as a man of immoral character, was a known undesirable, and a person guilty of conduct detrimental to racing and to the public welfare. This finding purported to justify the defendant's exclusion of the plaintiff from the race-course pursuant to rules formulated by the horse racing board regulating the application for and granting of licenses, the conduct of races, and other matters pertaining to the operation of race-courses where wagering is permitted. Calif.Adm.Code, Title 4, section 1400 et seq.; section 19561, Bus. & Prof. Code. The defendant relies on the following rules:
Rule 319 (sec. 1936), which provides that persons guilty of dishonest or corrupt practices, fraudulent acts or other conduct detrimental to racing shall be ruled off all racing enclosures, and stewards are required to exclude them; rule 320 (sec. 1937), which extends the exclusion to all recognized courses in the state; rule 354 (sec. 2009), which provides that an association shall not permit the making of hand-books on its grounds and if such practice is found to exist, the association shall take immediate steps to eliminate it under penalty of revocation of its license; and rule 355 (sec. 2010), which requires the association properly to police the grounds and to eject therefrom known undesirables, touts, persons under suspension or ruled off, persons of lewd or immoral character, and persons guilty of boisterous or disorderly conduct or other conduct detrimintal to racing or the public welfare.
There is here no quarrel with these rules insofar as they relate to the regulation of the licensee and its employees in the conduct of the races and of wagering on the results thereof. However, insofar as they govern the licensee in exercising the power of exclusion of persons from participation in the public entertainment afforded, they may not be deemed to narrow the established right of participation by all persons on an equal basis. The rule-making power of the board was upheld in Sandstrom v. California Horse Racing Board, 31 Cal.2d 401, 189 P.2d 17, 3 A.L.R.2d 90; but in exercising that power the board may not enlarge the instances when the proprietor of a public race-course may lawfully place restraints on the rights of members of the public to attend the races and participate in the wagering on the results thereof. Rules for proper policing of the course are required in the public interest; but the exercise of the power may not be made an occasion to extend discriminatory exclusion beyond that reasonably provided by the legislature in the exercise of the police power. The board may make only such exceptions in the public's right of equal participation as are validly included in the Civil Code. Boone v. Kingsbury, 206 Cal. 148, 161 et seq., 173 P. 797; California Drive-In Restaurant Ass'n v. Clark, 22 Cal.2d 287, 302-303, 140 P.2d 657, 147 A.L.R. 1028; Whitcomb Hotel, Inc., v. California Employment Comm., 24 Cal.2d 753, 757, 151 P.2d 233, 155 A.L.R. 405 and additional cases cited.
We may assume that the defendant would have been justified in ejecting and refusing admittance to the plaintiff had there been evidence of his making book on the race-course. It would not be questioned that such violation of law would constitute conduct justifying the action and would be within the compass of the power to police the premises under the Code and the rules. But there is no such evidence here, and its absence has compelled the defendant to rely on the asserted sufficiency of the evidence to support a conclusion that the plaintiff was a person of immoral character justifying the action in excluding him from the course.
There is thus brought into focus the question of what immorality will warrant the action taken. In this connection the plaintiff contends that section 53 of the Civil Code is unconstitutional in providing for exclusion on the basis of 'immoral character' because that phrase provides no defintie standard; that the term 'immoral character' is too vague and uncertain to apply as a standard or guide; that in any event the evidence of specific acts committed outside the course more than six years previously and the purported evidence of reputation are too remote as proof of immoal character.
It is unnecessary here to determine when evidence of specific acts or when evidence of reputation may be received as tending to prove character. See Wigmore on Evidence, 3rd Ed., Vol. 1, p. 689 et seq.; see also Cosgrove v. Pitman, 103 Cal. 268, 275, 37 P. 232; People v. Ridgeway, 89 Cal.App. 615, 618, 265 P. 349. The trial court admitted both types of evidence, namely that of past convictions of offenses pertaining to gambling and bookmaking, and purported evidence of the plaintiff's reputation. For reasons hereinafter appearing we conclude that the evidence of conduct was not relevant to any proper ground for the defendant's refusal to admit him to the arena. For similar reasons the evidence of the plaintiff's reputation had no relation to a proper ground for his exclusion from the course. Furthermore, the evidence received as bearing on the question of reputation was incompetent as hearsay and the court should have sustained the plaintiff's objection on that ground. The testimony was not given by persons who knew the defendant's reputation, but by witnesses who inquired of others as to the defendant's reputation. The rule is that evidence of reputation when relevant may not be shown by witnesses conducting an inquiry, but must be given by persons having knowledge thereof. Tingley v. Times-Mirror Co., 151 Cal. 1, 26-27, 89 P. 1097 and cases cited.
The so-called civil rights statutes, sections 51-54 Civil Code, do not necessarily grant theretofore non-existent rights or freedoms. The enactments are declaratory of existing equal rights and provide the means for...
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