Robins v. Los Angeles County

• Decision Date: 21 December 1966
• Citation: 56 Cal.Rptr. 853,248 Cal.App.2d 1
• Court: California Court of Appeals Court of Appeals
• Parties: Tom ROBINS, Sally Robins, Amin Asroul, Verneil Caskey, Gary Grant, Robert Klahm, Robert La Rue, Kenneth Phillips, Dennis Churchill, John Weltz, Richard Weltz and Walt Robson, Plaintiffs and Respondents, v. The COUNTY OF LOS ANGELES and Sheriff Peter Pitchess, Defendants and Appellants. Civ. 30622.

Page 853

56 Cal.Rptr. 853

248 Cal.App.2d 1

Tom ROBINS, Sally Robins, Amin Asroul, Verneil Caskey, Gary Grant, Robert Klahm, Robert La Rue, Kenneth Phillips, Dennis Churchill, John Weltz, Richard Weltz and Walt Robson, Plaintiffs and Respondents, v. The COUNTY OF LOS ANGELES and Sheriff Peter Pitchess, Defendants and Appellants.

Civ. 30622.

Court of Appeal, Second District, Division 1, California.

Dec. 21, 1966.

Rehearing Denied Jan. 5, 1967.

Hearing Denied Feb. 15, 1967.

Harold W. Kennedy, County Counsel, and Martin E. Weekes, Deputy County Counsel, for appellants.

Kurlander, Shettler & Solomon, and Stephen Warren Solomon, Santa Monica, for respondents.

FOURT, Associate Justice.

The County of Los Angeles and Sheriff Peter Pitchess (hereinafter called the County) appeal from an order of the superior court enjoining them from the enforcement of section 2017 of the Los Angeles County Ordinance 5860 which requires that any restaurant or bar employing females in 'topless' attire shall obtain a license from the county tax collector. We reverse the order, not because we find the licensing requirement per se either an unreasonable exercise of the county's police power or an infringement upon the sovereign powers of the State, but because we consider the action of respondents in seeking such a remedy to be premature.

Complainants, hereinafter referred to collectively as the Robins group because their positions are allegedly similar, operate a number of bars in the unincorporated territory of Los Angeles County where they employ as waitresses females who expose their breasts fully to the view of customers.

Section 1 of License Ordinance section 2017 follows:

'Sec. 2017. Exhibition of Human Body. 'Entertainment' also includes the act of any waitress or other female employee, while visible to any customer, exposing any portion of either breast below a straight line so drawn that both nipples and all portions of both breasts which have a different pigmentation than the main portion of the breast is below such straight line, or wearing any type of clothing so that such may be observed.'

Section 2 was subsequently passed to amend section 2017 to provide in addition the following controversial paragraph:

'To a greater and greater extent waitresses in restaurants and other public eating places in the unincorporated territory of the County of Los Angeles have been serving food and drinks with the upper part of their body either entirely unclothed or with one or both of the nipples or that portion of the breast below exposed to the disgust and annoyance of patrons and others in such restaurant or public eating place, and to the annoyance and disgust of the community. By reason thereof this ordinance is urgently required for the immediate preservation of the public peace, health and safety and shall take effect upon the adoption thereof.'

These sections are both found as part of Ordinance 5860 entitled 'An Ordinance Regulating and Licensing Businesses in the Unincorporated Area of the County of Los Angeles' in Chapter X defining those establishments which shall be subject to dance and entertainment licensing requirements, and setting various modest fees for procuring such licenses.

We are not at liberty to presume under the circumstances herein present that the subject ordinance will be either interpreted or applied by the County in a manner contrary and detrimental to complainants' constitutional rights. It is clear from the pleadings that no member of the Robins group has ever applied for, or been denied, an appropriate entertainment license, nor has any member either alleged or disclosed facts from which it reasonably may be inferred that the County intends to refuse any member a license, or that the fees imposed therefor are so high as to constitute a business hardship. On the contrary, neither we, nor the County and its agents, may presume from the mere existence of such business activities that criminally prohibited sexual conduct will be encouraged and respondents are equally inhibited from assuming that an application would be futile.

Complaints have, of course, a right to conduct within the County area, free from governmental interference, any legitimate business for profit. We find no threat of irreparable damage in the enforcement of an ordinance which purports only to charge a license fee for the conduct of such a business and, were the County to impose as an additional condition of granting such a license, compliance with regulations reasonably calculated to control the conduct of such a business with regard to the public welfare and without impinging upon the area of criminal sexual activity preempted by the State's penal statutes, surety this could not be deemed unconstitutional. (Bus. & Prof.Code § 16100.) Indeed, it is a matter of common knowledge that local governments are constrained to utilize every available source of revenue to support essential services, and the entertainment license would appear to be valid, legitimate and even desirable to finance the expenses of regulating any unanticipated problems in the conduct of establishments offering such entertainment. (In re Hennigan on Behalf of Gritton, 46 Cal.2d 856, 859, 300 P.2d 7.)

"When the right to enact a law depends upon the existence of a fact the passage of the act implies, and the conclusive presumption is, that * * * the Legislature * * * performed (its) duty, and ascertained the existence of the fact before enacting or approving the law--a decision which the courts have no right to question or review." (Galeener v. Honeycutt, 173 Cal. 100, 104, 159 P. 595, 596; Smith v. Matthews, 155 Cal. 752, 756, 103 P. 199.)

The Alcoholic Beverage Control Board (hereinafter referred to as the Board) has promulgated, pursuant to its authority under Business and Professions Code, section 25750, a regulation prohibiting the use of bare breasted female waitresses to attract business to cocktail bars, saloons, and restaurants which serve alcoholic beverages, and the County asserts that since the respondents fail to comply with the Board's regulation they have no property interest herein protectible. It is well established, however, that the State has preempted the regulation of retail alcoholic beverage sales and placed it within the exclusive jurisdiction of the Board. Since neither the Constitution nor the Alcoholic Beverage Control Act prima facie relates the issuance of a liquor license to cabaret entertainment, respondents' failure to comply with allegedly valid Board regulations is relevant only to the extent that they fail to maintain premises acceptable to the Board, such premises may be closed and the proprietors might have no occasion to exercise entertainment license privileges. 'A denial of a liquor licensee's application for a permit to have 'live' entertainment in his liquor establishment would not affect his right under his liquor license to sell liquor.' (Daniel v. Board of Police Commissioners, 190 Cal.App.2d 566, 571, 12 Cal.Rptr. 226, 229.) Conversely, an applicant for an entertainment license might violate Board regulations and yet be legitimately concerned in continuing restaurant service and providing 'live' entertainment with or without a liquor license. Moreover, Business and Professions Code, section 24203, provides that the appropriate law enforcement official or legislative body of any city or county may file an accusation with the Board requesting suspension or revocation of any retail license in the event of an existing violation, and it is not within the present province of this court to determine the existence of a violation or the consequences thereof to the case at bar. The County did not raise this issue earlier and the case does not fall within an exception to the rule that it is now prohibited from so doing. (Damiani v. Albert, 48 Cal.2d 15, 306 P.2d 780; Panopulos v. Maderis, 47 Cal.2d 337, 340--341, 303 P.2d 738; Gibson Properties Co. v. City of Oakland, 12 Cal.2d 291, 298--299, 83 P.2d 942; Tyre v. Aetna Life Ins. Co., 54 Cal.2d 399, 405, 6 Cal.Rptr. 13, 353 P.2d 725; Burdette v. Rollefson Construction Co., 52 Cal.2d 720, 725--726, 344 P.2d 307; Ward v. Taggart, 51 Cal.2d 736, 742, 336 P.2d 534.) Since we reverse on other grounds, we do not herein determine whether respondents have conducted their businesses in such a manner as to forfeit their protection in equity. (Pon v. Wittman, 147 Cal. 280, 81 P. 984, 2 L.R.A.,N.S., 683; McQueen v. Phelan, 4 Cal.App. 695, 88 P. 1099; Varney & Green v. Williams, 155 Cal. 318, 319, 100 P. 867, 21 L.R.A.,N.S., 741.)

However, the mere fact that respondents claim that each is licensed by the Board does not exempt them from the application of the County's entertainment license ordinance, since the denial of one does not affect or prohibit the other. The subject ordinance which purports to regulate entertainment does not attempt to invade the exclusive province of the Board to license and regulate the sale of alcoholic beverages in the state. '(L)ocal and non-discriminatory fire ordinances, electrical plumbing and building restrictions, zoning, limitations, and the like--(are) municipal regulations which manifestly do not invade the field of regulation envisaged in the state's control of the liquor traffic.' (Ainsworth v. Bryant, 34 Cal.2d 465, 476, 211 P.2d 564, 570.) Since respondents allegedly conduct within the County of Los Angeles lawful businesses, they may be subjected to business license requirements which are reasonably calculated to regulate rather than prohibit the entertainment activity. (Bus. & Prof.Code, § 16100.)

We therefore attach no special significance to section 2 of section 2017, the urgency clause, the terms of which constitute a principal source of controversy. Although we do not necessarily approve certain language therein, we particularly note that this language may not be utilized by either party as an aid to the construction of the act ...