People v. Library One, Inc.

• Decision Date: 30 April 1991
• Docket Number: No. B053254,B053254
• Citation: 280 Cal.Rptr. 400,229 Cal.App.3d 973
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. LIBRARY ONE, INC., Robert Wayne Bourgeois, et al., Defendants and Respondents. Civ.

Page 400

280 Cal.Rptr. 400

229 Cal.App.3d 973

The PEOPLE, Plaintiff and Appellant, v. LIBRARY ONE, INC., Robert Wayne Bourgeois, et al., Defendants and Respondents.

Civ. No. B053254.

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

April 30, 1991.

[229 Cal.App.3d 976] Ira Reiner, Dist. Atty., Maurice H. Oppenheim and Dirk L. Hudson, Deputies Dist. Atty., for plaintiff and appellant.

Weston & Sarno, G. Randall Garrou, John H. Weston, Robert A. Sarno and Richard G.N. Weston, Brown & DePiano and David M. Brown, Beverly Hills, for defendants and respondents.

KLEIN, Presiding Justice.

The People appeal the judgment entered after the trial court sustained a demurrer in favor of the defendants (Pen.Code, § 1238, subd. (a)(2)) with respect to a criminal complaint alleging numerous violations of the Los Angeles County Code (LACC) in connection with the operation of Library One, an adult bookstore and picture arcade. ¹ The named defendants are Library One, Robert E. Marler (Marler), Kenneth Grant Diffenderfer (Diffenderfer), Ronald E. Dadisman (Dadisman), Robert Wayne Bourgeois (Bourgeois), David L. Brantner (Brantner) and William Kendred (Kendred) (collectively, respondents).

SUMMARY STATEMENT

The trial court found the LACC unconstitutionally failed to state a "specified brief period" within which a business license or conditional use permit had to be granted or denied, and dismissed the action in its entirety following the sustaining of a demurrer to all counts.

The People appealed the trial court's ruling except as to those counts alleging unlicensed operation.

The Appellate Department of the Superior Court (the appellate department) affirmed the trial court. It concluded the provisions of the LACC which regulate the maintenance of picture arcades, as opposed to the licensing requirement, were valid and enforceable as against licensees but not as against managers. The appellate department remanded the case for a determination of the capacity of the charged individuals.

We find the LACC provisions regarding issuance of a conditional use permit to be content neutral time, place, and manner restrictions. However, because the LACC fails to provide any specified time within which an application for a business license or a conditional use permit must be granted or denied, it " 'contains the same vice as a statute delegating excessive administrative discretion,' " (FW/PBS, Inc. v. Dallas (1990) 493 U.S. 215, ---, 110 S.Ct. 596, 605, 107 L.Ed.2d 603, 619) and constitutes an invalid prior restraint.

Because various provisions of the LACC regulating the maintenance of picture arcades define potential offenders in terms of "licensee," they cannot be severed from the invalid licensing provisions and similarly are unenforceable.

FACTUAL AND PROCEDURAL BACKGROUND

1. The complaint.

This matter originally consisted of eight misdemeanor complaints filed in the Whittier Judicial District with respect to the operation of an adult bookstore and picture arcade. The alleged violations occurred on January 8, 15, and 27, 1987, February 12, 20, and 26, 1987, July 20, 1988 and between January 1, 1986 and September 30, 1987. (M870342, M870311, M870587, M871089, M871091, M871090, M8804034 and M8705188.) The trial court consolidated the eight separate complaints under the instant single case number.

Seven of the underlying complaints alleged one count of operating a bookstore without a license (§ 7.90.030) or unlicensed operation of a business (Bus. & Prof.Code, § 16240.)

Each of the seven complaints also alleged failure to post and retain a copy of the operation requirements of the LACC in a conspicuous place inside the licensed premises (§ 7.64.110; the posting provision), failure to maintain a picture arcade in such a manner that "the entire interior of such premises wherein the pictures are viewed is visible immediately upon entrance to such premises; and further, that the entire body of any viewing person is also visible immediately upon entrance to the premises" (§ 7.64.140, the visibility provision), and refusal to comply with section 7.64.170 (the access provision) which states, "The licensee shall not permit any doors on the licensed premises to be locked during business hours and, in addition, the licensee shall be responsible that any room or area on the licensed premises shall be readily accessible at all times and shall be open to view in its entirety for inspection by any law enforcement officer." ²

Two of the seven complaints also alleged one count of operation of a business on an expired license (§ 7.04.020, subd. (b)), and one of the two, as well as one other complaint, additionally alleged one count of failure to have a licensed manager on the premises of a picture arcade (§ 7.64.100).

Library One and Marler were named as defendants in each of the seven complaints. Diffenderfer was named as a co-defendant in two complaints (M871089, M871091). Bourgeois (M871090) and Kindred (M870311) each were named as a codefendant in one complaint. Brantner and Dadisman (M8804034) were named as co-defendants in one complaint.

The eighth complaint (M8705188) alleged use of premises for an adult business without a conditional use permit (§ 22.28.210), and impermissible use of a structure (§ 22.60.330, subd. (A)) against Marler only. ³

2. The trial court's ruling.

The trial court sustained the respondents' demurrer and dismissed each count as to each defendant because "the challenged ordinances rested on unbridled discretion ... concerning the issuance of the licenses and conditional use permits. [p] Secondly, ... each of the ordinances challenged [failed to] ... provide for a specified brief period of time for issuance of the permit and licenses."

3. The ruling of the Appellate Department.

With respect to the provisions controlling the issuance of conditional use permits, the appellate department held the First Amendment time limit requirements applicable to issuance of a business license for an adult enterprise (FW/PBS, Inc. v. Dallas, supra, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603; Freedman v. Maryland (1965) 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649), apply by analogy to issuance of a conditional use permit for such a business. It concluded its prior published opinion, People v. Nadeau (1986) 182 Cal.App.3d Supp. 1, 10-13, 227 Cal.Rptr. 644, which had upheld the of the validity of the LACC licensing and zoning provisions, no longer correctly stated the law because, in part, the LACC presently "has no time limits at all for granting or denying this [conditional use] permit."

The appellate department found the posting, visibility, and access provisions of the LACC (§§ 7.64.110, 7.64.140, and 7.64.170), severable from the invalid licensing provisions but concluded they could be enforced only against a licensee.

The appellate department affirmed the dismissal of all zoning and licensing counts.

Both sides filed petitions for rehearing or certification and, by order filed October 3, 1990, the appellate department certified to this court that transfer of the cause appeared necessary to settle an important question of law. (Cal.Rules of Court, rule 63(a).)

This court accepted transfer of the case for hearing and decision. (Cal.Rules of Court, rule 62(a).)

CONTENTIONS

Upon review of the respective petitions for rehearing or certification, the following contentions emerge:

The People contend the zoning provisions of the LACC respecting issuance of a conditional use permit are content neutral time, place, and manner restrictions which the lower courts improperly tested as prior restraints. They argue the First Amendment limitations applicable to issuance of a business license addressed in FW/PBS, Inc. do not apply to zoning matters.

Next, although they concede the invalidity of the licensing requirements of the LACC, the People maintain the posting, visibility, and access provisions are severable from the licensing regulations and enforceable against managers as well as licensees.

DISCUSSION

1. The provisions of the LACC respecting the granting of a conditional use permit are content neutral time, place, and manner restrictions of adult businesses.

a. LACC sections in issue.

Section 22.28.210 allows premises zoned as C-3 to be used for adult businesses "provided a conditional use permit has first been obtained...."

Section 22.56.090, subdivisions A1, A3 and A4 require a hearing officer to approve an application for a conditional use permit upon finding the proposed use will be consistent with the general plan for the area, and that the proposed site is adequate in size and shape and is sufficiently served by streets and other public facilities.

Where the applicant is an adult business, section 22.56.190 states that in addition to the above findings, "the hearing officer shall approve and the commission shall approve an application for a conditional use permit for an adult business where the information submitted by the applicant ... substantiates the following findings: [p] 1. The requested use at the proposed location will not adversely affect the use of a ... place used exclusively for religious worship, school, park, playground or similar use within a 500 foot radius; and [p] 2. The requested use at the proposed location is sufficiently buffered in relation to residentially zoned areas within the immediate vicinity so as not to adversely affect said areas; and [p] 3. The exterior appearance of [the] structure will not be inconsistent with the external appearance of commercial structures already constructed or under construction within the immediate neighborhood so as to cause blight, deterioration, or substantially diminish or impair property values within the neighborhood."

b. Standing.

Initially, the People argue respondents have no standing to attack the zoning provisions. They also urge the "party who seeks the exercise of jurisdiction in his [or her] favor' " bears the burden of...