People v. Glaze

• Citation: 27 Cal.3d 841,166 Cal.Rptr. 859,614 P.2d 291
• Decision Date: 07 August 1980
• Docket Number: Cr. 21123
• Court: California Supreme Court
• Parties: , 614 P.2d 291 The PEOPLE, Plaintiff and Respondent, v. Wheatly GLAZE, Defendant and Appellant.

Page 859

166 Cal.Rptr. 859

27 Cal.3d 841, 614 P.2d 291

The PEOPLE, Plaintiff and Respondent, v. Wheatly GLAZE, Defendant and Appellant.

Cr. 21123.

Supreme Court of California, In Bank.

Aug. 7, 1980.

W. Michael Mayock, Los Angeles, for defendant and appellant.

Fleishman, Brown, Weston & Rohde, David M. Brown and G. Randall Garrou, Beverly Hills, as amici curiae on behalf of defendant and appellant.

Burt Pines, City Atty., George C. Eskin, Chief Asst. City Atty., Rand Schrader, Laurie Harris and S. Thomas Todd, Deputy City Attys., for plaintiff and respondent.

BIRD, Chief Justice.

Under the California Constitution, may a city pass an ordinance which requires only picture arcades to close between the hours of 2 a. m. and 9 a. m. in order to prevent the possibility of masturbation by any of their customers?

I

Appellant Glaze was charged in March 1978 with a violation of Los Angeles Municipal Code section 103.101, subdivision (g), ¹ which provides that "(e) ach picture arcade must remain closed between the hours of 2:00 A.M. and 9:00 A.M., and all customers, patrons, and visitors must be excluded therefrom between those hours. Where only one coin operated still or motion picture machine, projector or similar contrivance is maintained and such device is not the primary business, then, if that device remains inoperative between the hours of 2:00 A.M. and 9:00 A.M., customers, patrons and visitors need not be excluded from the premises." Appellant demurred to the complaint on the grounds that section 103.101, subdivision (g) is unconstitutional on its face because (1) it violates freedom of expression as guaranteed by the First Amendment of the United States Constitution and by ARTICLE I, SECTION 2 OF THE CALIFORNIA CONSTITUTION, (2)² it discriminates against picture arcade operators in violation of state and federal constitutional guarantees of equal protection (U.S. Const., 14th Amend.; Cal.Const., art. I, § 7); and (3) it purports to regulate in an area preempted by the state Legislature in violation of article XI, section 7 of the California Constitution. The trial court overruled appellant's demurrer and held the ordinance was not unconstitutional on its face. The matter proceeded to trial and appellant was found guilty and fined $100. This appeal followed. ³

II

This court must determine the facial validity of this ordinance. The law is clear that a municipality has the general power to regulate commercial businesses where the regulation is reasonable and nondiscriminatory. (See Burton v. Municipal Court (1968) 68 Cal.2d 684, 689, 68 Cal.Rptr. 721, 441 P.2d 281; Justesen's F.S., Inc., v. City of Tulare (1938) 12 Cal.2d 324, 328-329, 84 P.2d 140.) For example, it is permissible under a municipality's police powers to reasonably restrict the hours of operation of an economic enterprise. (E.g., In re Sumida (1918) 177 Cal. 388, 170 P. 823; Brix v. City of San Rafael (1979) 92 Cal.App.3d 47, 154 Cal.Rptr. 647.) The reasonableness of such a restrictive ordinance "is dependent upon the nature of the business being regulated and the degree of threat that the operation of such business presents to the tranquility, good order, and well-being of the community at large. So long as a 'patent relationship between the regulations and the protection of the public health, safety, morals, or general welfare' exists, the regulations will be considered reasonable." (7978 Corporation v. Pitchess (1974) 41 Cal.App.3d 42, 47, 115 Cal.Rptr. 746, 749; accord Brix v. City of San Rafael, supra, 92 Cal.App.3d at p. 51, 154 Cal.Rptr. 647.)

A different test is used, however, if the ordinance, not uniformly applicable to all commercial enterprises, ⁴ involves restrictions on activities protected by the First Amendment. (See Sunset Amusement Co. v. Board of Police Commissioners (1972) 7 Cal.3d 64, 72-73, 101 Cal.Rptr. 768, 496 P.2d 840; Saunders v. City of Los Angeles (1969) 273 Cal.App.2d 407, 411-412, 78 Cal.Rptr. 236.) A higher standard of review is required because of the "preferred position" of freedom of speech in our system of ordered liberty. (Kovacs v. Cooper (1949) 336 U.S. 77, 88, 69 S.Ct. 448, 454, 93 L.Ed. 513, see also Burton v. Municipal Court, supra, 68 Cal.2d at pp. 690-691, 68 Cal.Rptr. 721, 441 P.2d 281.) ⁵ Under this test, the government must bear the burden of showing that the regulation is narrowly and explicitly drawn and necessary to further a legitimate government interest. (Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 303, 138 Cal.Rptr. 53, 562 P.2d 1302; Welton v. City of Los Angeles, 18 Cal.3d 497, 504, 134 Cal.Rptr. 668, 556 P.2d 1119; Westfall v. Board of Com'rs of Clayton Cty. (N.D.Ga.1979) 477 F.Supp. 862, 870, 871.)

The operation of a picture arcade has been held to be an activity which is protected by the First Amendment. (EWAP, Inc. v. City of Los Angeles, supra, 97 Cal.App.3d at p. 184, 158 Cal.Rptr. 579; People v. Perrine, supra, 47 Cal.App.3d at p. 257, 120 Cal.Rptr. 640.) The fact that a picture arcade is a profit-oriented business (see Welton v. City of Los Angeles, supra, 18 Cal.3d at pp. 503-504, 134 Cal.Rptr. 668, 556 P.2d 1119; Bigelow v. Virginia (1975) 421 U.S. 809, 818, 95 S.Ct. 2222, 2230, 44 L.Ed.2d 600), or that it may exhibit pictures which are offensive or lacking in social worth is not relevant. (See Welton v. City of Los Angeles, supra, 18 Cal.3d at p. 504, 134 Cal.Rptr. 668, 556 P.2d 1119; Cohen v. California (1971) 403 U.S. 15, 24-26, 91 S.Ct. 1780, 1787-1788, 29 L.Ed.2d 284; N.A.A.C.P. v. Button (1963) 371 U.S. 415, 444-445, 83 S.Ct. 328, 343-344, 9 L.Ed.2d 405.) As the Supreme Court stated in Cohen v. California, supra, 403 U.S. at page 25, 91 S.Ct. at page 1788, "We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, (the) fundamental societal values (of the First Amendment) are truly implicated. That is why '(wholly) neutral (statements) . . . come under the protection of free speech as fully as do Keats' poems or Donne's sermons,' . . . ."

The closing hour requirement in the present case prohibits the showing of pictures between 2 a. m. and 9 a. m. Indeed, customers and other visitors cannot be present during those hours even if the machines are not operated. Therefore, this case involves more than the incidental infringement of freedom of expression. (See Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748, 756, 96 S.Ct. 1817, 1822, 48 L.Ed.2d 346; Martin v. Struthers (1943) 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313; Westfall v. Board of Com'rs. of Clayton Cty., supra, 477 F.Supp. at p. 871.) It follows that the ordinance is constitutional only if the city can prove it was narrowly drawn and necessary to a legitimate governmental interest. (Kash Enterprises, Inc. v. City of Los Angeles, supra, 19 Cal.3d at p. 303, 138 Cal.Rptr. 53, 562 P.2d 1302; Welton v. City of Los Angeles, supra, 18 Cal.3d at p. 504, 134 Cal.Rptr. 668, 556 P.2d 1119; see also United States v. O'Brien (1968) 391 U.S. 367, 377, 88 S.Ct. 1673, ----, 20 L.Ed.2d 672; EWAP, Inc. v. City of Los Angeles, supra, 97 Cal.App.3d at p. 189, 158 Cal.Rptr. 579.)

The city contends that the closing of picture arcades between 2 a. m. and 9 a. m. is a constitutional exercise of its police powers because the closing helps prevent masturbation during those hours when law enforcement problems are greatest. While this governmental purpose may be laudable, the means selected for its accomplishment fail to meet the strict standards required by the Constitution. Rather than dealing directly with the objectionable conduct, the ordinance curtails the protected interests of persons engaged in First Amendment activity. (Cf. Schneider v. State (1939) 308 U.S. 147, 162, 60 S.Ct. 146, 151, 84 L.Ed. 155; California v. LaRue (1972) 409 U.S. 109, 131-133, 93 S.Ct. 390, 403-404, 34 L.Ed.2d 342 (dis. opn. of Marshall, J.).) Arguably, crime in the streets could be reduced by prohibiting all persons from going out in public. However, when fundamental liberties are at stake, the test in a free society is whether there are "less drastic means" available to accomplish the government's purpose. (Wollam v. City of Palm Springs (1963) 59 Cal.2d 276, 287, 29 Cal.Rptr. 1, 379 P.2d 481, quoting Shelton v. Tucker (1960) 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231, see also Welton v. City of Los Angeles, supra, 18 Cal.3d at pp. 507-508, 134 Cal.Rptr. 668, 556 P.2d 1119; Police Department of Chicago v. Mosley (1972) 408 U.S. 92, 101, fn. 8, 92 S.Ct. 2286, 2293, fn. 8, 33 L.Ed.2d 212.)

The government may deal directly with masturbation in public picture arcades by persons who know or should know of the presence of others who may be offended by such conduct by arresting and prosecuting them. (Pryor v. Municipal Court (1979) 25 Cal.3d 238, 158 Cal.Rptr. 330, 599 P.2d 636.) Respondent concedes that this alternative would be less restrictive of First Amendment rights, but argues that the closing-hours-requirement is necessary because of the limited number of police available during the early morning hours.

A similar claim was made in Skaggs v. City of Oakland (1936) 6 Cal.2d 222, 57 P.2d 478. The government tried to justify an ordinance restricting deliveries of bakery goods to those times when food and sanitary inspectors might reasonably be expected to be on duty. The court rejected that argument and observed that "it is not a valid exercise of police power to restrict unnecessarily a lawful occupation conducted in a reasonable manner, merely that it may accord with the convenience of inspectors." (Id., at p. 224, 57 P.2d at p. 480; accord Justesen's F.S., Inc., v. City of Tulare, supra, 12 Cal.2d at p. 332, 84 P.2d 140; see also Schneider v. State, supra, 308 U.S. at p. 164, 60 S.Ct. at p. 152; Stanley v. Georgia (1969) 394 U.S. 557, 567-568, 89 S.Ct. 1243, 1249, 22 L.Ed.2d 542.) The same...