Saunders v. City of Los Angeles

• Decision Date: 27 May 1969
• Citation: 78 Cal.Rptr. 236,273 Cal.App.2d 407
• Court: California Court of Appeals Court of Appeals
• Parties: Paris M. SAUNDERS, Petitioner and Appellant, v. CITY OF LOS ANGELES, Board of Police Commissioners for the City of Los Angeles, Police Department of the City of Los Angeles, Defendants and Respondents. Civ. 32731.

Page 236

78 Cal.Rptr. 236

273 Cal.App.2d 407

Paris M. SAUNDERS, Petitioner and Appellant, v. CITY OF LOS ANGELES, Board of Police Commissioners for the City of Los Angeles, Police Department of the City of Los Angeles, Defendants and Respondents.

Civ. 32731.

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

May 27, 1969.

Hearing Denied July 23, 1969.

Burton Marks and Richard Kolostian, Los Angeles, for petitioner and appellant.

Roger Arnebergh, City Atty., Los Angeles, John A. Daly, Asst. City Atty., and Lowell M. Ramseyer, Deputy City Atty., for defendants and respondents.

KINGSLEY, Associate Justice.

Petitioner appeals from a judgment denying petitioner's petition for a peremptory writ of mandamus.

On November 1, 1966, petitioner applied under section 103.201 of the Los Angeles Municipal Code, for renewal of his license to operate an automobile repair business. Petitioner was notified that the Board of Police Commissioners intended to deny petitioner's application for renewal because of his criminal record. A hearing was held, evidence was submitted, and the hearing officer recommended that petitioner's application for renewal of a permit for an automobile repair shop should be denied. The hearing examiner found that petitioner was not a fit and proper person to be trusted with the privilege and permission to operate a repair shop in that:

'1. Applicant has been convicted of Conspiracy, Bookmaking and Interference with Telephone Lines.

'2. Applicant's record of arrests and conviction (1961, 1966) constitutes proof of bad moral character and lack of integrity.

'3. Applicant did violate the trust shown him by the Board at two previous hearings (May 2, 1962 and April 30, 1964) when permission to operate an auto repair shop was granted.

'4. Applicant offered no conclusive evidence at current hearing that might have indicated a moral reformation.'

On June 21, 1967, the Board of Police Commissioners of the City of Los Angeles read and considered the hearing examiner's report and all the evidence submitted by both sides and, after hearing oral presentations, adopted the findings of the hearing examiner and denied the application for renewal. The board based its denials on the adverse findings submitted by the hearing examiner, finding that the applicant is not a fit and proper person to be trusted with an automobile repair police permit, and on the further grounds that issuance of the permit would not 'comport with the peace, health, safety, convenience, good morals and general welfare of the public.'

Petitioner filed a petition for a writ of mandamus, and a judgment denying the peremptory writ was filed. Petitioner appeals.

I

Defendant asserts that the procedure used by the Board of Police Commissioners was improper and in excess of the board's authority. Petitioner argues that, although the board in the instant case appeared to act by way of a procedure which it called 'denial of renewal,' the board in fact acted by way of a procedure for the denial of an application for a New license. Petitioner argues that the case at bench is not properly one involving the denial of an application for a new license, but one involving the revocation of an existing license; that there is a clear distinction between proceedings involving the revocation of an existing license and proceedings involving denial of a new license, and that the board therefore acted in excess of its authority by proceeding under the wrong code section.

We need not here discuss the asserted difference between the constitutional rights of a person applying in the first instance for a license to start the operation of a business and the rights of a person who, already established in a regulated business, faces a denial of his right to continue in that operation. The Los Angeles Municipal Code contains two groups of sections dealing with the denial or suspension of permits to operate regulated businesses. Section 103.31(c), 1 L.A.M.C. and section 103.31(c), 3 L.A.M.C. deal with 'Denial of Permit,' while section 103.34, 1 L.A.M.C. and section 103.35, 3 L.A.M.C. deal with 'Suspension or Revocation of Permits.' The board purported to act under the 103.31 group. In this we think they were correct. We construe that group of sections as intended to set up the procedure and grounds for denying an original permit and for denying a renewal of a permit, whereas we construe the 103.34--103.35 group as intended to cover the suspension or revocation of a permit, previously issued and in force, prior to its normal expiration.

But, even if we are wrong in that construction, petitioner has suffered no prejudice, since the grounds for adverse action are the same under either group of sections.

Section 103.31(c), 1 L.A.M.C. reads:

'(The board may deny a permit if) the applicant is unfit to be trusted with the privileges granted by such permit, or has a bad moral character, intemperate habits or a bad reputation for truth, honesty, or integrity.'

Section 103.31(c), 3 L.A.M.C reads:

'(The board may deny a permit if) the applicant, his agent or employee, or any person connected or associated with the applicant, as partner, director, officer, stockholder, associate, or manager has committed or aided or abetted in the commission of any act or act of omission which, if committed by a permittee, would be a ground for disciplinary action.'

The language in sections 103.34 and 103.35 is almost identical.

Section 103.34 reads as follows:

'SUSPENSION OR REVOCATION OF PERMITS:

'The Board may, upon its own motion or upon the verified complaint in writing of any person, investigate the actions of any permittee and may temporarily suspend for a period not exceeding one year or revoke the permit of any permittee who commits any one or more of the acts or omissions constituting grounds for disciplinary action under this Article. The procedure on suspension or revocation shall comply with the provisions of Article 2, Chapter 10.'

And section 103.35 reads, in part, as follows:

'DISCIPLINARY ACTION--GROUNDS:

'* * *

'(c) Been convicted of a felony or any crime involving theft, embezzlement or moral turpitude; or

'* * *

'(e) A bad moral character, intemperate habits or a bad reputation for truth, honesty or integrity; or

'* * *

'(k) Demonstrated that he is unfit to be trusted with the privileges granted by such permit.'

It follows that, whichever section or sections the board invoked, the standards were the same and the same result would follow.

II

As his second ground of attack on the judgment below, petitioner asserts that the standards provided by the ordinance for the refusal to renew an existing permit are so indefinite and vague as to vest the board with uncontrolled discretion. Petitioner relies heavily on the case of Burton v. Municipal Court of Los Angeles Judicial District of Los Angeles County (1968) 68 Cal.2d 684, 68 Cal.Rptr. 721, 441 P.2d 281. In Burton the ordinance allowed the board to deny a permit to show motion pictures if it found that...