Renba Lil v. Kortz

• Decision Date: 29 December 1976
• Citation: 65 Cal.App.3d 467,135 Cal.Rptr. 287
• Court: California Court of Appeals Court of Appeals
• Parties: RENBA LIL, a California Corporation, Plaintiff and Respondent, v. Ralph KORTZ, Chief of Police, and Robert Parkin, City Prosecutor, et al., Defendants and Appellants. Civ. 47846.

Page 287

135 Cal.Rptr. 287

65 Cal.App.3d 467

RENBA LIL, a California Corporation, Plaintiff and Respondent, v. Ralph KORTZ, Chief of Police, and Robert Parkin, City Prosecutor, et al., Defendants and Appellants.

Civ. 47846.

Court of Appeal, Second District, Division 5, California.

Dec. 29, 1976.

Leonard Putnam, City Atty., and David M. Schacter, Deputy City Atty., Long Beach, for defendants and appellants.

Frank H. Whitehead, Jr., and Phillip F. Lanzafame, Los Angeles, for plaintiff and respondent.

ASHBY, Associate Justice.

Plaintiff Renba Lil, a corporation, brought this action for an injunction against the Chief of Police and the City Prosecutor of the City of Long Beach to restrain enforcement of Long Beach Municipal Code sections 4195 to 4195.4 relating to nudity of waiters, waitresses, and entertainers in establishments which serve food or beverages. The trial court granted a temporary restraining order and a preliminary injunction against enforcement of the ordinance. Defendants appeal from the order granting a preliminary injunction. (Code Civ.Proc., § 904.1, subd. (f).)

In Penal Code sections 318.5 ¹ and 318.6 ² the Legislature made clear its intent to permit cities and counties to regulate 'topless' and bottomless' exposure of waiters, waitresses, and entertainers in establishments serving food and drink, except theaters and similar establishments, and to regulate such exposure in relation to 'live acts, demonstrations, or exhibitions in public places,' except theaters and similar establishments, insofar as any such regulation might otherwise have invaded a field previously held to have been preempted by the state. (Crownover v. Musick, 9 Cal.3d 405, 416, 107 Cal.Rptr. 681, 688, 509 P.2d 497, 504.) However, the Legislature expressly excepted 'a theater, concert hall, or similar establishment which is primarily devoted to theatrical performances.'

In the Crownover case our Supreme Court had before it several consolidated appeals involving ordinances of Orange County, Sacramento County, and the City of Sacramento enacted as authorized by Penal Code sections 318.5 and 318.6. The Supreme Court held 'that the ordinances deny neither freedom of speech and expression nor the equal protection of the laws but are in all respects valid and constitutional regulations of conduct.' (Id. at p. 431, 107 Cal.Rptr. at p. 698, 509 P.2d at p. 514.)

The court pointed out' the various ordinances involved in the cases at bench . . . follow closely the essential wording of the statutes and by their language conform in scope to the designated regulatory area over which the state has yielded its preemptive claims. Thus the ordinances directly regulate conduct within the delineated statutory limits.' (Id. at. p. 418, 107 Cal.Rptr. at p. 689, 509 P.2d at p. 504.)

In Crownover it was also argued that the ordinances unconstitutionally denied equal protection because 'they arbitrarily discriminate between theater-type establishments and other public places.' The basis of this complaint, said the court, was 'the exemptive provisions stating that the ordinances 'shall not apply to a theater, concert hall, or similar establishment which is primarily devoted to theatrical performances.' This statutory phrase repeats verbatim the language of the exception identically contained in Penal Code sections 318.5 and 318.6' (9 Cal.3d at p. 429, 107 Cal.Rptr. at p. 697, 509 P.2d at p. 513; citations & fns. omitted.) The court rejected the equal protection argument, finding a rational relationship in the distinction. The court pointed out 'that theater entertainers usually perform on a stage removed from the audience, while waiters and waitresses must by virtue of their calling mingle constantly with the patrons. Similarly, if entertainers perform on a stage in a bar, that stage is likely to be much smaller and closer to the patrons than is a stage located in a theater. As noted Supra in our discussion of the police power, there are conceivable and legitimate state purposes involved in regulating the exposure of the public area, genitals or breasts by waiters, waitresses and entertainers. Such purposes conceivably include the furtherance of the public order, morals and welfare. But the same considerations are arguably not involved in a theater where nude persons are generally separated from the customers by a stage of large dimensions. Situations provide a rational basis to treat differently nude performers in theaters, on the one hand, and nude performers, waiters and waitresses in establishments such as plaintiffs' on the other.' (Id. at pp. 430--431, 107 Cal.Rptr. at p. 698, 509 P.2d at p. 514.)

Defendants argue that the Long Beach ordinance involved in this case is identical in all pertinent respects to the Sacramento ordinances and that it is therefore valid under Crownover. ³ The trial court found to the contrary, that the specific definition of 'theater' contained in section 4195.4 invaded the area reserved to the state in Penal Code sections 318.5 and 318.6 and was therefore invalid. The court accepted plaintiff's argument that the definition of 'theater' rendered the entire ordinance void, and did not determine the merits of the controversy whether plaintiff's establishment was similar to a theater devoted primarily to theatrical performances or, as contended by defendants, was simply a bar with barmaids who occasionally removed their bikini tops and danced to jukebox music. The trial court thereupon issued the preliminary injunction against enforcement of the entire ordinance.

We find that the specific definition of 'theater' in section 4195.4 of the Long Beach ordinance invalides the area expressly excepted in Penal Code sections 318.5 and 318.6 and is therefore invalid. Contrary to defendants' contention, the Long Beach ordinance is not identical to the Sacramento ordinances validated in Crownover. However, section 4195.4 is severable from the remaining portions of the ordinance, which are valid under Crownover, and therefore the order granting the preliminary injunction should be reversed.

Section 4195.3, which provides, '(t)he provisions of Sections 4195, 4195.1 or 4195.2 do not apply to a theatrical performance in a theater, concert hall or similar establishment which is primarily devoted to theatrical performances,' like the Sacramento ordinances, 'follow(s) closely the essential wording of the statutes' and 'conform(s) in scope to the designated regulatory area over which the state has yielded its preemptive claims.' (9 Cal.3d at p. 418, 107 Cal.Rptr. at p. 689, 509 P.2d at p. 504.)

Under the definition in section 4195.4, however, an establishment cannot qualify as a theater unless it has (1) a permanent stage, (2) movable scenery, (3) permanently affixed seats, (4) an unobstructed view of the stage, and (5) a city license for a theater.

As noted in an expert's declaration submitted by plaintiff in support of the injunction, there can be many places which constitute theaters by anyone's definition, which lack one or more of those attributes. In excepting theaters from the operation of Penal Code sections 318.5 and 318.6, the Legislature must be held to have intended the word to be given its ordinary meaning. A local entity may not so narrowly define theater as to prevent the courts from fulfilling their function of interpreting the Legislature's language. This must be done on a case-by-case basis. Undoubtedly there will occur close cases where drawing the line between a theater and some other establishment may be difficult, but that is always the case. The fact that a particular establishment lacks any or all of the attributes mentioned in section 4195.4 may well be persuasive evidence that it is not a theater, but the city may not make it an essential element by definition. ⁴

Defendants' argument that to allow a case-by-case approach would 'cause consternation and uncertainness on behalf of prospective defendants' is simply contrary to the statement of our Supreme Court in Crownover that even without a specific definition the term 'theater' is not 'statutorily vague.' ⁵

Defendants argue that the specific definition in section 4195.4 is taken from the Sacramento ordinances involved in Crownover. What defendants ignore is that the Sacramento ordinances contained two provisos which are not found in the Long Beach ordinance. Those ordinances provided that all words were intended to have the same sense and meaning as those words were used in Penal Code sections 318.5 and 318.6. At the end of the specific definition of 'theater' in the Sacramento ordinances were express declarations that '(t)his definition does not supersede' the provisions declaring the words to be used in the same sense as the Penal Code. (9 Cal.3d at pp. 412--413, fn. 6, and pp. 414--415, fn. 9, 107 Cal.Rptr. 681, 509 P.2d 497.) Thus, under the very terms of the Sacramento ordinances, an establishment is free to argue that it constitutes a theater even though it lacks, E.g., a permanent stage or an unobstructed view of the stage. No such leeway is provided by the Long Beach ordinance.

By imposing...