People v. Katrinak

• Decision Date: 27 September 1982
• Docket Number: Cr. 42420
• Citation: 185 Cal.Rptr. 869,136 Cal.App.3d 145
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Dorothy Carol KATRINAK, Defendant and Respondent. The PEOPLE of the State of California, Plaintiff and Appellant, v. Sharon Lynn LEE, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 869

185 Cal.Rptr. 869

136 Cal.App.3d 145

The PEOPLE of the State of California, Plaintiff and Appellant, v. Dorothy Carol KATRINAK, Defendant and Respondent.

The PEOPLE of the State of California, Plaintiff and Appellant, v. Sharon Lynn LEE, Defendant and Respondent.

Cr. 42420.

Court of Appeal, Second District, Division 3, California.

Sept. 27, 1982.

John K. Van De Kamp, Dist. Atty., Donald J. Kaplan and Dirk L. Hudson, Deputy Dist. Attys., for plaintiff and appellant

Hecht, Diamond & Greenfield and Roger Jon Diamond, Pacific Palisades, for defendants and respondents.

KLEIN, Presiding Justice.

The People appeal adverse rulings relating to the constitutionality of certain provisions of Los Angeles County Ordinance No. 5860 (Ordinance).

The provisions of the Ordinance at issue here relate to licensing of escort bureaus. Section 533 ¹ mandates that "[e]very person conducting, managing or carrying on any escort bureau shall first procure a license and pay an annual license fee ...."

Section 532 defines "escort bureau" as meaning "any business or agency which for a fee, commission, hire, reward or profit, furnishes or offers to furnish escorts."

Section 531, subdivisions (a) and (b), defines an "escort" as: "(a) Any person who, for hire or reward accompanies others to or about social affairs, entertainment or places of amusement. [p] (b) Any person who, for hire or reward consorts with others about any place of public resort or within any private quarters."

The central issue in this case is whether the operation of an escort bureau is protected under the First Amendment to the United States Constitution or pursuant to the California Constitution as a proper exercise of the freedom of association, an integral aspect of freedom of speech.

We conclude that such activity is not constitutionally protected and that the Ordinance does not offend either the free speech or due process guarantees of the United States and California Constitutions.

We also determine that the Ordinance is a valid exercise of the police power, and so reverse the rulings below.

PROCEDURAL AND FACTUAL BACKGROUND

In September 1980, the People filed misdemeanor complaints against Dorothy Carol Katrinak (Katrinak) and Sharon Lynn Lee (Lee). Katrinak was charged with violating section 533 by engaging in the business of an escort bureau without first obtaining a license. ² Lee was charged with violating Business and Professions Code section 16240 by failing to comply with section 533 of the Ordinance. ³ Katrinak and Lee filed motions to dismiss and demurrers to their respective complaints on the grounds that section 533 and the related licensing sections were unconstitutional on their face. The trial court dismissed the cases after ruling the Ordinance was unconstitutionally broad and vague and that the court was therefore without jurisdiction to proceed. ⁴ The People appealed to the Appellate Department of the Superior Court. ⁵

The superior court ordered the two cases consolidated on appeal, and affirmed the trial court in an unpublished opinion. The court held that "... the associational purposes of an escort bureau more closely parallel those [allegedly protected activities] of a social club ...," and cited its opinion in People v. Stephenson (1978) 83 Cal.App.3d Supp. 8, 148 Cal.Rptr. 575. ⁶ The People's motion to transfer the appeal to this court was granted, pursuant to California Rules of Court, rule 63, subdivisions (a), (b) and (c).

CONTENTIONS

On appeal, the People contend that the Ordinance is constitutional and a valid application of the county's police power.

Katrinak and Lee assert that: (1) The operation of an escort bureau is a protected activity under the First Amendment and we must therefore use a strict scrutiny standard of review; (2) The Ordinance is unconstitutionally vague and violates fundamental due process guarantees in several respects.

DISCUSSION

Under the California Constitution, a county has broad authority to "make and enforce within its limits all local, police Katrinak and Lee, however, assert that an escort bureau involves the First Amendment right of association as that right relates to free speech, which would require us to review the Ordinance under a strict scrutiny standard. (People v. Glaze (1980) 27 Cal.3d 841, 845, 166 Cal.Rptr. 859, 614 P.2d 291; Sunset Amusement Co. v. Bd. of Police Commrs., supra, 7 Cal.3d at p. 72, 101 Cal.Rptr. 768, 496 P.2d 840.) We therefore review the First Amendment claims before reaching the due process issues.

                sanitary, and other ordinances and regulations not in conflict with general laws."  (Cal.Const., Art.  XI, § 7, Sunset Amusement Co. v. Bd. of Police Commrs.  (1972) 7 Cal.3d 64, 72, 101 Cal.Rptr. 768, 496 P.2d 840.)   Such ordinances and regulations will ordinarily be upheld unless they violate state or federal due process standards.  "In the exercise of its police power [the legislative body] does not violate due process so long as an enactment is procedurally fair and reasonably related to a proper legislative goal.  The wisdom of the Legislature is not at issue in analyzing its constitutionality, and neither the availability of less drastic remedial alternatives nor the legislative failure to solve all related ills at once will invalidate a statute.  [Citations.]"  (Hale v. Morgan (1978) 22 Cal.3d 388, 398, 149 Cal.Rptr. 375, 584 P.2d 512;  see also Perez v. City of San Bruno (1980) 27 Cal.3d 875, 889, 168 Cal.Rptr. 114, 616 P.2d 1287.)
                

1. Since the Ordinance does not involve restrictions on protected First Amendment activities, we need not employ a "higher standard" of review.

Freedom of speech enjoys a "preferred position" under the law, and the courts will exercise a zealous solicitude for rights shielded by the amendment. If the Ordinance in fact involves restrictions on protected First Amendment activities, we agree we must employ a higher standard of review. (Ibid.) This higher standard requires the government to show "that the regulation is narrowly and explicitly drawn and necessary to further a legitimate government interest." (People v. Glaze, supra, 27 Cal.3d at p. 846, 166 Cal.Rptr. 859, 614 P.2d 291; see also Burton v. Mun. Court (1968) 68 Cal.2d 684, 692, 68 Cal.Rptr. 721, 441 P.2d 281.)

The First Amendment embraces freedom of association as an essential aspect of freedom of speech. The United States Supreme Court has emphasized that "abstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental intrusion." (N.A.A.C.P. v. Button (1963) 371 U.S. 415, 429, 83 S.Ct. 328, 336, 9 L.Ed.2d 405, 416.) In order to shelter this vigorous advocacy, certain forms of group activity come within the privilege. Thus, the First and Fourteenth Amendments protect the rights of laymen to "associate together to help one another to preserve and enforce rights granted them under federal laws...." (Brotherhood of Railroad Trainmen v. Virginia (1964) 377 U.S. 1, 7, 84 S.Ct. 1113, 1117, 12 L.Ed.2d 89, 94.) Association for political purposes is also firmly within the scope of the amendment's protection: "There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is ... protected by the First and Fourteenth Amendments." (Kusper v. Pontikes (1973) 414 U.S. 51, 56-57, 94 S.Ct. 303, 307, 38 L.Ed.2d 260, 38 L.Ed.2d 260, 266; see also Democratic Party of U.S. v. Wisconsin (1981) 450 U.S. 107, 121, 101 S.Ct. 1010, 1018, 67 L.Ed.2d 82, 94.)

The Supreme Court has thus recognized freedom of association as necessary to promote the First Amendment's goal of preserving "an uninhibited market place of ideas in which truth will ultimately prevail." (Red Lion Broadcasting Co. v. FCC (1969) 395 U.S. 367, 390, 89 S.Ct. 1794, 1806, 23 L.Ed.2d 371, 389; see also Runyon v. McCrary (1976) 427 U.S. 160, 175, 96 S.Ct. 2586, 2596, 49 L.Ed.2d 415, 427.)

With these principles in mind, we must determine whether operation of an escort bureau is a constitutionally protected activity.

The parties have not submitted and our research has not revealed any California cases or cases from other jurisdictions directly addressing this particular issue. However, we find persuasive our Supreme Court's analysis in Sunset Amusement Co. v. Bd. of Police Commrs., supra, 7 Cal.3d at pages 74-75, 101 S.Ct. 768, 496 P.2d 840, in which petitioners argued that roller skating rink activities include "entertainment" or "amusement" of patrons and that the patron's rights of free speech and assembly would be affected by a licensing ordinance.

Answering the contention, the Supreme Court stated, "... no case has ever held or suggested that simple physical activity falls within the ambit of the First Amendment, at least in the absence of some element of communicating or advancing ideas or beliefs ... The key element is, of course, communication. We have difficulty finding that essential element to exist in the context of a roller skating rink."

The court goes on to observe that "[t]here is no question that petitioners' patrons are assembled together in one building or rink, and in that sense constitute an 'assemblage.' But again, no case has ever suggested that the constitutional freedom of assembly or association extends to a congregation of persons engaged in mere physical activity or self-amusement. 'It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. [Citations.]' ...."

The activities described in the Ordinance at issue are essentially entertainment-oriented, commercial relationships. Escort bureaus, like roller rinks, do not foster assemblages for the advancement of beliefs and ideas. Rather, they provide a...