People v. B & I News, Inc.

• Citation: 164 Cal.App.3d Supp. 1,211 Cal.Rptr. 346
• Court: California Superior Court
• Decision Date: 21 December 1984
• Parties: 164 Cal.App.3d Supp. 1 PEOPLE of the State of California, Plaintiff and Appellant, v. B & I NEWS, INC., Alfred Rodney; Stirling J. Colby, Defendants and Respondents. * 31225170. Appellate Department, Superior Court, Los Angeles County, California

Page 346

211 Cal.Rptr. 346

164 Cal.App.3d Supp. 1

PEOPLE of the State of California, Plaintiff and Appellant, v. B & I NEWS, INC., Alfred Rodney; Stirling J. Colby, Defendants and Respondents. [And ten other cases.] ^*

31225170.

Appellate Department, Superior Court, Los Angeles County, California.

Dec. 21, 1984.

[164 Cal.App.3d Supp. 4] Gary R. Netzer, Acting City Atty., and Jack L. Brown, Deputy City Atty., for plaintiff and appellant.

[164 Cal.App.3d Supp. 5] Brown, Weston & Sarno, David M. Brown, G. Randall Garrou, Beverly Hills, Abelson & Brunon, Jeffrey J. Douglas, Elliot J. Abelson, Beverly Hills, Hecht, Diamond & Greenfield, Roger Jon Diamond, Pacific Palisades, W. Michael Maycock, Los Angeles, for defendants and respondents.

OPINION AND JUDGMENT

REESE, Presiding Judge.

On May 4, 1982 misdemeanor complaints were filed against the defendants alleging a violation of section 103.101(i) of the Los Angeles Municipal Code, which offense was alleged to have occurred on March 15, 1982. Following a hearing the court sustained defendants' demurrers in which the constitutionality of the ordinance was challenged. The People have appealed.

Section 103.101(i) of the Los Angeles Municipal Code provides: "Visibility of Interior. The permittee shall not maintain any picture arcade unless the entire interior of such premises wherein the pictures are viewed is visible upon entering into such premises. No partially or fully enclosed booths or partially or fully concealed booths shall be maintained." The trial court sustained the demurrers based upon three grounds: (1) that the ordinance affects an individual's right to privacy in that a person is foreclosed from viewing sexually explicit movies in the privacy of an enclosed booth and, in addition, no rational basis exists for regulating masturbation in the privacy of an enclosed booth since such conduct is no longer illegal; (2) that the economic impact of the ordinance will be to reduce the number of booths that a given location could operate to an unconstitutional degree; and (3) that the words of the ordinance were vague in that it was uncertain what type of a booth and what place for the booths is required by the ordinance.

On appeal the prosecution contends that the ordinance constitutes a valid exercise of the police power to regulate the interior visibility of arcade booths and that the possibility of some adverse impact upon the economic operation of an arcade or upon the right of privacy does not foreclose exercise of the police power in the manner attempted under section 103.101(i); and that the ordinance is not unconstitutionally vague. We agree.

In DeMott v. Board of Police Commissioners (1981) 122 Cal.App.3d 296, 175 Cal.Rptr 879, and EWAP, Inc. v. City of Los Angeles (1979) 97 Cal.App.3d 179, 188, 158 Cal.Rptr. 579, the Courts of Appeal upheld on First Amendment challenges section 103.101(i) as a content-neutral reasonable regulation of the time, place and manner of protected speech. In EWAP, supra, the court observed that the regulation was sufficiently justified if it was within the constitutional power of the state, if it furthered an important or substantial governmental interest, if the governmental interest was unrelated to the suppression of free expression, and if the incidental restriction on alleged First Amendment freedoms was no greater than was essential to the furtherance of that interest. The court held: "The prohibition of enclosed or concealed booths in picture arcades easily passes this test. The city has the constitutional power to reasonably regulate and license arcades for purposes of health, safety and public welfare." (Id., at p. 189, 158 Cal.Rptr. 579.) The court further observed: "The city has a substantial interest in preventing the kind of dangerous or unlawful conduct, as well as the health and safety problems, which may be anticipated in a picture arcade where the booths are concealed or enclosed. The prohibition of such booths furthers the city's interest in deterring and detecting the use of the premises for such unlawful activity.

"That governmental interest is unrelated to the suppression of free expression and the requirement that the interior of the booths be visible does not restrict First Amendment freedoms. There is no restriction on either the content of the pictures or their dissemination." (EWAP, supra, at p. 190, 158 Cal.Rptr. 579.) Thus the court held that the ordinance constituted a reasonable exercise of the city's police power. (Ibid.) In DeMott, supra, 122 Cal.App.3d 296, 175 Cal.Rptr. 879, while recognizing that operation of a motion picture arcade is an activity protected by the First Amendment, the Court of Appeal stated: "No restriction is imposed upon access to the arcade, nor the content of the film. The ordinance merely requires conformity to its provisions for a visible interior." (Id., at p. 302, 175 Cal.Rptr. 879.) Since EWAP had already approved the ordinance as a legitimate exercise of the police power, the court in DeMott held that the ordinance as applied to respondents' business was unobjectionable.

The court further observed: "Even if respondents are engaged in activity protected by the First Amendment, they are not 'immune to regulations which do not impair his exercise of his constitutionally protected rights (citations).' (People v. Perrine, supra, 47 Cal.App.3d 252, 257, 120 Cal.Rptr. 640.)" (Ibid.)

Relying on Weaver v. Jordan (1966) 64 Cal.2d 235, 49 Cal.Rptr. 537, 411 P.2d 289, in which the California Supreme Court invalidated a law enacted by referendum prohibiting pay television on the basis that the state and federal constitutional guarantees of freedom of speech and press protected the means for their expression, defendants urge that the ordinance "enacts a medium ban without the requisite establishment of a 'clear and present danger.' " They argue that the ordinance's requirement of visibility from a single entrance to such premises eliminates the availability of many film titles to the viewing audience by reducing the number of display machines, makes arcades "economically infeasible, thus directly impairing distribution of materials protected by the First Amendment" because of the necessity of installing fewer arcades with fewer titles and because "far fewer persons will patronize arcades if the privacy of the customers is made illegal." Defendants argue that not only is there absent a compelling state interest but that the ordinance furthers no "important or substantial governmental interest." In this connection, relying upon Pryor v. Municipal Court (1979) 25 Cal.3d 238, 158 Cal.Rptr. 330, 599 P.2d 636, they argue that no lewd or offensive conduct could occur in enclosed booths because "there could be no one to be offended." We deem these arguments to be foreclosed by the decisions in EWAP, supra, 97 Cal.App.3d 179, 158 Cal.Rptr. 579, and DeMott, supra, 122 Cal.App.3d 296, 175 Cal.Rptr. 879 which are binding upon us. (auto equity sales, inc. v. superior court (1962) 57 cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.) We further note that the ordinance on its face does not ban movie arcades. Thus, Jordan, supra, does not require us to disregard as binding EWAP or DeMott. Finally, on its face the ordinance does not require the use of fewer display machines, limit the number of persons viewing the films, nor reduce the number of film titles that may be shown.

Defendants claim that the development of a factual record in the case at bench distinguishes the present case from the Court of Appeal decision in EWAP, supra, 97 Cal.App.3d 179, 158 Cal.Rptr. 579. Defendants overlook the well-established rule that a demurrer lies to challenge only the pleadings on their face; evidentiary matters are therefore not properly presented in support of, or in opposition to, a demurrer. (People v. Williams (1979) 97 Cal.App.3d 382, 387-388, 391, 158 Cal.Rptr. 778.) Accordingly, the trial court erred in considering the evidentiary showing made by the defendants and the People in ruling upon the demurrer, which presented only an issue of law. (Id., at p. 391, 158 Cal.Rptr. 778.)

At oral argument defendants urged us to construe their demurrer as a motion to dismiss and to consider the evidence presented below as supportive of such motion; the People did not stipulate that their appeal be determined on this basis. In the absence of a stipulation, we believe that it would be inappropriate to regard the order appealed from as one granting of a motion to dismiss.

Defendants also urge that to be valid under the First Amendment the incidental restriction on free expression must be no greater than that essential to further the important or substantial governmental interest and that the ordinance fails to satisfy this requirement. On this point they urge that the point of visibility need not be at the entrance of the arcade but could be established from any aisle space, or in the center of the room, thereby apparently making many more viewing machines available; they further urge that the purported need for visibility conflicts with the use of multiple viewing rooms on the same or different floors so that an arcade could maximize the number of titles available to the viewing public in the available space, and that visibility could be maintained by means of a surveillance system of mirrors or cameras which would reveal the interior of booths without exposing customers to the unwanted scrutiny of other customers or passersby.

We question whether such alternative procedures would be any less intrusive than that which the city council chose. In any event, these contentions are properly addressed, not to this court, but to the city council which enacted the ordinance in question. Under the police power a municipality may impose regulations upon the construction and maintenance of business premises reasonably necessary to protect the health, safety and general welfare of the business' patrons and...