People v. Perrine

• Decision Date: 16 April 1975
• Docket Number: Cr. 26146
• Citation: 47 Cal.App.3d 252,120 Cal.Rptr. 640
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. James J. PERRINE, Defendant and Respondent. The PEOPLE, Plaintiff and Appellant, v. Larry Martinez GERARDO, Defendant and Respondent.

Page 640

120 Cal.Rptr. 640

47 Cal.App.3d 252

The PEOPLE, Plaintiff and Appellant, v. James J. PERRINE, Defendant and Respondent.

The PEOPLE, Plaintiff and Appellant, v. Larry Martinez GERARDO, Defendant and Respondent.

Cr. 26146.

Court of Appeal, Second District, Division 4, California.

April 16, 1975.

Rehearings Denied May 6, 1975.

Hearing Denied June 11, 1975.

Joseph P. Busch, Dist. Atty., Donald J. Kaplan and Dirk L. Hudson, Deputy Dist. Attys., for plaintiff and appellant.

Hecht & Diamond and Roger Jon Diamond, Pacific Palisades, for defendant and respondent Perrine.

Richard S. Buckley, Public Defender, Harold E. Shabo, Glenn A. Nolte, and Dennis A. Fischer, Deputy Public Defenders, for defendant and respondent Gerardo.

FILES, Presiding Judge.

In these six appeals which have been consolidated for hearing and decision, the principal question is the constitutionality of the Los Angeles County ordinance which requires the proprietor of a picture arcade to have a licensed manager on the premises at all times during which the arcade is open and the proprietor is absent.

In municipal court cases M 147997, M 148139, M 149540, M 149542 and M 152532 James J. Perrine was charged with the offense of operating a picture arcade without a licensed manager being present, a misdemeanor violation of Los Angeles County Ordinance 5860, section 2732.

In case M 148138 Larry Martinez Gerardo was charged with acting as manager of a picture arcade without a license.

In each of the cases the municipal court granted the defendant's motion to dismiss upon the ground that the ordinance was so vague and uncertain as to be void under both the state and federal Constitutions. No evidence was taken in the trial court. The ruling was based exclusively upon the face of the ordinance and the court's view of the applicable law.

Pursuant to Penal Code section 1466 the People appealed to the appellate department of the superior court, which affirmed the orders of dismissal. Upon certification from the appellate department, we ordered the cases transferred here to settle an important question of law. (Rules 62 and 63, Cal. Rules of Court.)

It is a matter of some importance when any court refuses to enforce an ordinance upon the belief that it is unconstitutional. The issue raised in this case goes far beyond its impact upon picture arcades. The identical requirement of a licensed manager on the premises is in the portion of the ordinance which applies to places of entertainment generally. The procedure for issuing such licenses and the grounds for denial of a license are found in some sections applicable to occupational licenses generally. If the lower courts were correct in this case, there would be no valid requirement for a licensed manager in any of the places of entertainment referred to in the ordinance.

The licensing system applicable to picture arcades is a part of County Ordinance 5860, which provides for the licensing of a variety of occupations and business. Chapter XVI of that ordinance, commencing with section 2701, deals with picture arcades, but must be read with the general provisions appearing elsewhere in the ordinance. ¹

Section 2701 provides:

"Picture Arcade' means any premises where there is maintained one or more machines or contrivances to show still or motion pictures and for which any charge, consideration or payment is required or as an incident to some other type of business or activity, except those establishments for which there has been issued a valid theater or motion picture theater license pursuant to Sections 373 and 374.'

Section 2711 requires the proprietor to obtain a license from the tax collector. In article 4 of chapter XVI, headed 'General Regulations,' is section 2732, which reads as follows:

'All establishments licensed or required to be licensed under this chapter shall have a responsible person on the premises to act as manager at all times during which the picture arcade is open.

Such manager, if not the licensee, shall first procure a license as such manager and pay a license fee of $10.00 per year.

'A person other than the licensee shall not be employed as, or act as, such a manager until he has the license required by this section.'

Other sections of article 4 limit the hours of operation (9:00 a.m. to 2:00 a.m.), regulate lighting and visibility conditions and accessibility for inspection, and prohibit the use of alcohol or drugs on the premises and the presence of persons under the influence and unescorted minors.

The general provisions of Ordinance 5860 list the grounds for refusing licenses for 'activities which may involve free speech' (§ 82.7) separately from 'activities not involving free speech' (§ 83). A picture arcade is listed in the former category. The only grounds given for refusing a license for such an activity are (a) that the building, structure, equipment or location fails to meet legal standards, or (b) that the applicant, his employee, agent or manager has made a false statement in an application or report.

The grounds for denial of a license for other activities are more extensive.

The ordinance also prescribes two procedures for the issuance of licenses. Certain listed licenses, of which the picture arcade license is one, may be issued in the first instance only after a public hearing (§ 39).

For other licenses, no hearing is required unless the tax collector, after referring the application to other agencies for investigation and report, proposes to deny the license or grant it only on conditions. In such instances the applicant is entitled to demand a hearing after receiving notice of the tax collector's intentions (§ 82).

For some kinds of licenses, after the application has been filed and the fee paid, the collector's receipt for the fee operates as a temporary license while that application is under investigation (§ 44.5).

For other kinds of license, of which the manager's license is one, ² the activity may not be carried on until a license other than the receipt has been issued (§ 44.6).

Before discussing constitutional principles it is helpful to examine the nature of Perrine's activity in relation to the legitimate objectives of police power regulations.

Beyond doubt, a picture arcade is engaged in a business protected by the First Anendment to the federal Constitution. (See Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098.) The county ordinance recognizes this by providing in section 2721, 'A license for a picture arcade shall be granted or denied as provided in section 82.7.'

The fact that Perrine is engaged in an activity protected by the First Amendment does not make him immune to regulations which do not impair his exercise of his constitutionally protected rights. (See, E.g., Pittsburgh Press Co. v. Human Relations Comm. (1973) 413 U.S. 376, 382--383, 93 S.Ct. 2553, 37 L.Ed.2d 669; United States v. O'Brien (1968) 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672; Prince v. Massachusetts (1944) 321 U.S. 158, 167--169, 64 S.Ct. 438, 88 L.Ed. 645; Crownover v. Musick (1973) 9 Cal.3d 405, 107 Cal.Rptr. 681, 509 P.2d 497.)

A picture arcade is a business, carried on in a place which the public generally is invited to enter and use. Since it is a place of entertainment, its patrons are not expected to enter with the solemnity of a business visitor at a mercantile establishment. Ordinarily those entering a picture arcade are seeking amusement, relaxation or excitement, possibly sexual stimulation or gratification depending on the taste or mood of the individual and the kind of pictures exhibited. Among such visitors it is foreseeable that some will be predisposed to conduct which is offensive, dangerous to others and even unlawful. The potential for misuse of the premises, for law violations, and for bodily harm to law-abiding patrons, is obvious, as is the concomitant need for continuous supervision.

As an occupier of real property the proprietor of a picture arcade owes a duty both to the public at large and to his patrons as individuals to take steps necessary to prevent civil wrongs and the use of the premises for criminal activities. The existence of such duties, independent of any licensing ordinance, is exemplified by rules imposing both criminal ³ and civil ⁴ liability for occurrences upon the premises.

The 'General Regulations' in the ordinance covering the operation of a picture arcade impose some additional specific responsibilities upon the proprietor of such premises: He must exclude persons possessing or under the influence of any alcoholic beverage or drugs (§ 2741); he may not permit persons under 18 years of age to visit the premises unless accompanied by a parent, guardian or spouse over 21 years of age (§ 2743). These rules would be ineffective unless there were present a person responsible for enforcing them.

Another relevant circumstance is that machines which show pictures can be coin-operated, so that it is physically possible (and perhaps economically feasible) to operate the business without the presence of any representative of the proprietor. All of these circumstances demonstrate the reasonableness of requiring that there be some responsible person on the premises a all times during which the business is open to the public.

The reason given by the municipal court judge for voiding section 2732 was that 'the word 'responsible', as used in the ordinance is so void of definition that the statute as a whole is vague and uncertain.'

The requirement of section 2732 is that the establishment 'shall have a responsible person on the premises to act as manager.' This clause is a description of a job function rather than an attempt to define the qualifications of the individual who performs it. The word 'responsible' describes the relationship of the manager to the proprietor, and to the patrons and the public. The manager is a 'responsible' person in the sense that he is given...