Subriar v. City of Bakersfield

• Decision Date: 16 June 1976
• Citation: 59 Cal.App.3d 175,130 Cal.Rptr. 853
• Court: California Court of Appeals Court of Appeals
• Parties: Frank W. SUBRIAR and Gabriel W. Solomon, Plaintiffs and Respondents, v. CITY OF BAKERSFIELD, Defendants and Appellants. Civ. 2433.

Page 853

130 Cal.Rptr. 853

59 Cal.App.3d 175

Frank W. SUBRIAR and Gabriel W. Solomon, Plaintiffs and Respondents, v. CITY OF BAKERSFIELD, Defendants and Appellants.

Civ. 2433.

Court of Appeal, Fifth District, California.

June 16, 1976.

Kenneth W. Hoagland, City Atty., Bakersfield, for defendants-appellants

Gabriel W. Solomon, Sims & Solomon, Bakersfield, for plaintiffs-respondents.

OPINION

CARKEET, ^* Associate Justice.

This case arose out of the respondent Subriar's operating an ambulance business in the City of Bakersfield without first having obtained a certificate of convenience and necessity as required by Chapter 7.62 of the Bakersfield Municipal Code. Respondent Subriar on two different occasions filed applications for obtaining a certificate. At the time of respondent's first application there was only one ambulance operator in the City. But upon the filing of each application, the respondent, Subriar, refused to provide Any information to show that public convenience and necessity required the issuance of a certificate or license to another ambulance operator in the City.

Between respondent's first and second applications, another ambulance operator (Hall Ambulance) made application and provided information to show that public convenience and necessity required another operator. A certificate was then issued to Hall Ambulance.

Respondent Subriar filed a first amended complaint in Superior Court of Kern County on August 3, 1974, essentially seeking to have the court declare the 'convenience and necessity' clause as invalid and in violation of the United States Constitution and the State Constitution. Respondent Solomon, the attorney for Mr. Subriar, joined himself as a taxpayer party under Code of Civil Procedure section 526a.

Trial was held in the Superior Court of Kern County on December 21, 1973. At the conclusion of the plaintiffs' case, defendants made motions for judgment on the pleadings and motion for judgment. On February 11, 1974, order re judgment (intended decision) was issued by the superior court. Appellants filed objections and proposed counter findings of fact and request for special findings in a timely manner. On April 26, 1974, the trial court signed findings of fact and conclusions of law and on April 29, 1974 entered its judgment. Appellants made a timely motion for new trial which was denied and appellants filed a notice of appeal.

In this appeal appellants (defendants) attack a judgment of the Superior Court of Kern County which adjudged unconstitutional the ordinance of the City of Bakersfield regulating the granting of permits to operate ambulances within the city limits, ¹ and granted a permanent injunction against the enforcement of said ordinance.

As filed, the action embraced two separate causes of action: the first, a cause of action by plaintiff Frank Subriar, the operator of an ambulance service in the County of Kern, who alleged he was denied a permit to operate his ambulance within the City of Bakersfield upon unconstitutional grounds; the second, a cause of action by plaintiff Gabriel W. Solomon (Subriar's Certain basic facts were stipulated to by respondents (plaintiffs) and the stipulations accepted by appellants. These stipulations eliminate the necessity of a discussion by this court of a considerable quantity of evidence received by the court, especially with respect to the constitutional questions involved.

attorney of record herein) in his individual capacity [59 Cal.App.3d 182] as a citizen and taxpayer under Code of Civil Procedure section 526a, attacking the constitutionality of the same municipal statute. ²

It is stipulated as a fact 'that the ambulance business is vitally affected with the public interest. It is a business which not only the city and state have a right and police power right to reasonably regulate it but indeed would be remiss in their duties if they did not strictly and severely and closely regulate it.'

It was further stipulated as follows: 'November 13, 1961, which was the adoption date of Chapter 7.62 of the City Ordinance, that prior to that time, there were no laws nor regulations in effect which specifically regulated the conduct of ambulance service as such within the City of Bakersfield; that in this wholly unregulated pre-1961 atmosphere, ambulance services available to city residents were often unsafe, unsanitary and otherwise inadequate. The ability of responsible ambulance service operators to operate safe, sanitary, dependable and otherwise adequate ambulance service was unfairly impaired by unprincipled, irresponsible and wholly unregulated competitors. Accordingly, it was apparent that a need existed for enactment of a regulatory ordinance and accordingly, on November 13, 1961, the City enacted an ambulance industry ordinance known as Chapter 7.62 and as to each and every proviso thereof, the plaintiff stipulates that with the sole exception of subsection (f) of 7.62.050 (sic)--that's the public necessity provision--that with the sole exception of that proviso, the plaintiff stipulates that all other provisions of the ordinance were fully valid, were within the police power of the City and indeed were fully justified by compelling public interest and necessity.' (The stipulation was phrased by respondents and was accepted by appellants.)

It will thus be seen that the constitutional issue is narrowed down to whether subsection (f) of Section 7.62.060, the public convenience and necessity requirement, is unconstitutional and invalid.

It was also stipulated that plaintiff Solomon was a member of the Bakersfield City Council when the ordinance was enacted in 1961.

Following the enactment of the 1961 ordinance James Frederick Flinn, an ambulance owner-operator since 1955 made application to the City under the ordinance, and received from the City of Bakersfield a certificate of convenience and necessity and has ever since that date operated an ambulance service in the City. He maintains four ambulances available for service, two of them on full-time operation and two of them 'standby' vehicles.

In July, 1971, a certificate of convenience and necessity was granted by the City of Bakersfield under the ordinance to Harvey Lewis Hall, who has since operated an ambulance service in the City. He also maintains four ambulances available for the ambulance service in the City.

In 1970 respondent Subriar filed an application for a Cartificate of Public Convenience and Necessity to operate an ambulance within the City of Bakersfield. A hearing was held on Tuesday, June 23, 1970 While the record is sketchy, ⁵ certain allegations of the complaint which were admitted by the answer indicate that apparently in late 1972 Subriar again made application to the City Manager for a Certificate of Public Convenience and Necessity to operate an ambulance service in the City of Bakersfield and that a hearing was held and adjourned to a later date in January, 1973, but the adjourned hearing was never held because Subriar's attorney, Mr. Solomon, wrote the city manager indicating that neither he nor Mr. Subriar would attend and requesting that the hearing be cancelled. The City Manager treated this as a voluntary abandonment of the application and cancelled the hearing. ⁶ No appeal was taken by Subriar to the City Council under section 7.62.170 of the ordinance.

                at which hearing Subriar took the position that he need not make a showing of public convenience and necessity.  On July 3, 1970, the City Manager of Bakersfield wrote him advising him that since his position at the hearing was that he need not make such showing, the hearing was terminated on all issues without further consideration. 3  No appeal to the [59 Cal.App.3d 184] City Council was taken by Subriar. 4
                

Appellants made a motion for judgment on the pleadings at the conclusion of plaintiffs' case, and also made a motion for judgment on the state of the record. Both were denied. As to plaintiff Subriar, defendants' motions for judgment were grounded on the claim that the court had no jurisdiction to hear Subriar's complaint because he had failed to exhaust his administrative remedies and both his pleadings and his evidence showed such noncompliance with that well-established principle of law. However, such requirement of exhaustion of administrative remedies was found unnecessary by the trial court.

In view of the stipulations entered into, respondent Subriar's sole attack on the ordinance is that subdivision (f) of Section 7.62.060 is unconstitutional because it provides no standards or criteria for the city to follow in determining when 'public convenience and necessity' would allow the An identical attack on the ordinance is made by respondent Solomon, in his capacity as a taxpayer under his cause of action brought under section 526a of the Code of Civil Procedure.

granting of a permit. Respondent further argues that by allowing the present permit holders to increase the number of ambulances[59 Cal.App.3d 185] they operate, whenever the need arises, the council can effectively exclude other applicants by finding negatively on public convenience and necessity, thereby in effect granting an exclusive right to operate ambulances to the two present permit holders.

It was the position at trial of respondents that they had a Fundamental right as citizens to engage in the business of operating an ambulance service in the City of Bakersfield, and since it was a fundamental right that was being interfered with the strict scrutiny test applied. Under the strict scrutiny standard the burden of establishing the validity of the ordinance is placed upon the city. Under the strict standard rule the city bears the burden of establishing not only that it has a compelling interest which justifies the ordinance, but that the requirements of the ordinance are necessary to further its purpose.

This is apparently the theory upon which the trial court tried the case, since resp...