State v. Bowman

• Decision Date: 22 December 1982
• Docket Number: No. 14022,14022
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Linus BOWMAN, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 933

655 P.2d 933

104 Idaho 39

STATE of Idaho, Plaintiff-Respondent, v. Linus BOWMAN, Defendant-Appellant.

No. 14022.

Supreme Court of Idaho.

Dec. 22, 1982.

D. Frederick Hoopes, Idaho Falls, for defendant-appellant.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Myrna A. I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-respondent.

WALTERS, Justice Pro Tem.

Linus Bowman, a bar owner, was cited for violation of a provision of the Idaho Falls City Code which made it unlawful for a retailer of alcoholic beverages to operate a "dance hall" or to permit dancing at his establishment without a valid "dance hall" license. He was tried in the magistrate division of the district court, was found guilty of failure to possess the required license, and was fined $100. On appeal to the district court, the conviction was affirmed. Bowman now appeals to this Court, challenging the validity of the dance hall licensing ordinance. We uphold the validity of the ordinance, and affirm the conviction.

Bowman attacks § 5-10-1, Idaho Falls City Code, ¹ on three grounds. He contends (1) that the ordinance is unconstitutional as a denial of the equal protection guarantees of the Idaho and United States constitutions, (2) that the ordinance has been discriminatorily applied in violation of those same guarantees, and (3) that the ordinance is not a regulatory measure but rather is an unauthorized revenue measure, and is therefore invalid.

Preliminarily, we note that because this is a criminal action, the burden was upon the state to prove Bowman guilty of the substantive charge. However, because Bowman challenges the validity of the ordinance under which he was convicted, the burden is upon him to establish the unconstitutionality of the ordinance. State v. Clark, 88 Idaho 365, 399 P.2d 955 (1965). See also Western Beverage, Inc. v. State, 96 Idaho 588, 532 P.2d 930 (1974) and cases cited therein.

I.

Bowman first contends that requiring bars and taverns where dancing takes place to be licensed, while other bars and taverns with no dancing facilities need not be licensed, creates an unreasonable and arbitrary classification. He maintains the proper test, for determining whether the ordinance creates an unreasonable and arbitrary classification, is whether the classification is based upon material and substantial differences having a reasonable relation to the purpose of the statute or ordinance. We disagree with Bowman's contention.

This Court has defined and adhered to a "new," intermediate equal protection standard which is stricter than the traditional "rational basis" standard but which falls short of the more severe "strict scrutiny" test. This intermediate standard of equal protection review has been described as "means-focus" because it tests whether the legislative "means" substantially furthers some specifically identifiable legislative end. See Jones v. State Board of Medicine, 97 Idaho 859, 867, 555 P.2d 399, 407 (1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977). In Jones, this Court noted, however, that the stricter "means-focus" test which had been applied in cases involving "statutes of a blatantly discriminatory nature" was not intended to replace the traditional, restrained-view standard of equal protection tests, "except in those special cases involving invidiously discriminatory classifications." Id. The restrained-view standard remains applicable where classification statutes deal with economic matters or matters of social welfare. See, e.g., Leliefeld v. Johnson, 82-139174 103 Idaho ---, (1982); Jones v. State Board of Medicine, supra.

The ordinance here under attack is an exercise of a municipality's police power in the interest of social welfare. It provides for a degree of municipal control over establishments that sell alcoholic beverages and allow dancing. Where invidious discrimination has not been shown, as is the case here, the proper standard for review is the restrained view of the rational basis test. Under this test, a classification will withstand an equal protection challenge if there is any conceivable state of facts which will support it. School Dist. No. 25, Bannock County v. State Tax Commission, 101 Idaho 283, 288, 612 P.2d 126, 131 (1980). The burden is on the one attacking the ordinance to negative every conceivable basis which might support it. Id.

The classification created by this municipal ordinance--which draws a distinction between establishments that sell liquor and allow dancing, and establishments where liquor is sold but dancing is not allowed, requiring only the former class to obtain a license--is conceivably based on a perceived difference in the likelihood of public disturbances occurring at either type of establishment. A bar or tavern which provides facilities for public dancing might very well be expected to draw larger crowds of people. And it might be expected that where large groups of people are both drinking and dancing, the possibility of incidents requiring a greater exercise of the city's police power pertinent to health and safety exists. A failure of experience to support the assumptions implicit in the classification is not an adequate ground to overturn the ordinance.

Here, we are not concerned with the wisdom of the ordinance. We are concerned only with whether the ordinance, or its application, is unreasonable, arbitrary, capricious or discriminatory; it will not be held to be so where it reflects a reasonably conceivable, legitimate public purpose. State v. Cantrell, 94 Idaho 653, 496 P.2d 276 (1972); Caesar v. Williams, 84 Idaho 254, 371 P.2d 241 (1962); Gartland v. Talbott, 72 Idaho 125, 237 P.2d 1067 (1951); Rowe v. City of Pocatello, 70 Idaho 343, 218 P.2d 695 (1950). Bowman has not made a showing that would undermine every conceivable basis which might support the ordinance. School District No. 25, supra. We hold that § 5-10-1, Idaho Falls City Code, does not create an unreasonable and arbitrary classification in violation of the general constitutional guarantees of equal protection.

II.

Bowman next contends that the subject ordinance has been applied in a discriminatory manner, denying him equal protection of the law. For this contention to be successful, Bowman must show a deliberate and intentional plan of discrimination against him, based upon some unjustifiable or arbitrary classification. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Xerox Corp. v. Ada County Assessor, 101 Idaho 138, 609 P.2d 1129 (1980); Annot., 95 A.L.R.3d 280, 293-99 (1979).

Here, Bowman has shown, at best, selective enforcement. The fact that law enforcement officials may have checked Bowman for compliance with the ordinance more frequently than owners or operators of other establishments, does not constitute unlawful discriminatory application of the ordinance. See State v. Horn, 101 Idaho 192, 610 P.2d 551 (1980). See also Commonwealth v. Winfree, 408 Pa. 128, 182 A.2d 698, 699 (1962) and Annot., 95 A.L.R.3d at 319-21. Nor does the exercise of a prosecutor's discretion as to whom and when to prosecute constitute unlawful discrimination. State v. Horn, supra. We hold that Bowman failed to show a discriminatory application of the ordinance.

III.

Finally, Bowman contends that the ordinance in question is invalid as an unauthorized tax, citing State v. Nelson, 36 Idaho 713, 213 P. 358 (1923). In Nelson this Court affirmed an order dismissing charges against a physician for failure to pay a city license fee, holding that the city ordinance--which required a license fee for certain specified trades, professions and businesses--was an unauthorized tax levy. We concluded the ordinance was not enacted as a police regulation but rather was imposed as a revenue-raising measure, which could only be upheld under the power of taxation. Because municipalities were restricted from levying taxes, the ordinance was held invalid. Id. at 722, 231 P. at 361.

Bowman contends that the dance-hall license requirement is similarly invalid as a revenue-raising measure. In Nelson, we noted two indicators that the city ordinance was an unauthorized tax. First, the ordinance in Nelson had as its expressed purpose " 'the raising of revenue by levying and collecting a license tax....' " Id. at 716, 213 P. at 358. Second, the ordinance had no provisions of regulation. Id. at 722, 213 P. at 361.

The present case is distinguishable from Nelson, in that the first indicator, i.e., acknowledgment of revenue-raising purpose, is completely absent from the ordinance in question, and the second indicator, i.e., the lack of regulatory provisions, is also absent. Section 5-10-4 of the dance-hall licensing ordinance provides for regulation of dance hall operating hours by limiting the time when dancing is allowed, in establishments where alcoholic beverages are sold. The ordinance also...