Sunset Amusement Co. v. Board of Police Commissioners

• Citation: 496 P.2d 840,7 Cal.3d 64,101 Cal.Rptr. 768
• Court: United States State Supreme Court (California)
• Decision Date: 10 May 1972
• Parties: , 496 P.2d 840 SUNSET AMUSEMENT CO. et al., Plaintiffs and Appellants, v. BOARD OF POLICE COMMISSIONERS OF the CITY OF LOS ANGELES, Defendant and Respondent. L.A. 29882. In Bank

Page 768

101 Cal.Rptr. 768

7 Cal.3d 64, 496 P.2d 840

SUNSET AMUSEMENT CO. et al., Plaintiffs and Appellants, v. BOARD OF POLICE COMMISSIONERS OF the CITY OF LOS ANGELES, Defendant and Respondent.

L.A. 29882.

Supreme Court of California,

In Bank.

May 10, 1972.

Rehearing Denied June 29, 1972.

Arnold H. Gold, Beverly Hills, for plaintiffs and appellants.

Roger Arnebergh, City Atty., George J. Franscell, Asst. City Atty., Thomas M. Dempsey and Kurt S. Seifert, Deputy City Attys., for defendant and respondent.

BURKE, Justice.

Petitioners are the owners and operators of the Hollywood Rollerbowl, a roller skating rink operating within the City of Los Angeles since 1955. At issue is the question whether respondent Board properly denied petitioners' application for renewal of their operating permit for the years 1968 and 1969. We have concluded that the Board's decision was based upon substantial evidence, was within its powers, and should be sustained.

In November 1967 petitioners sought to renew their skating rink permit for the year 1968 by filing the requisite application for renewal with the Board, designated by municipal ordinance as the appropriate licensing agency. In October 1968, Board issued to petitioners a 'notice of intention to deny permit,' specifying four separate grounds therefor, including petitioners' failure to provide adequate parking facilities for their patrons and their failure to control or prevent disturbances in or near the premises. Hearings were held on the matter at various times from December 1968 to January 1969; during the pendency of these hearings petitioners applied for renewal of their permit for the year 1969. At the termination of the hearings, the examiner issued his findings and conclusions, ¹ recommending that petitioners' renewal application be denied.

Thereafter, petitioners requested a transcript of the foregoing hearings and it was discovered that a portion of the transcriber's notes had been lost. Accordingly, the Board ordered new hearings limited to the testimony of those witnesses whose prior testimony had been lost, together with any additional evidence which petitioners wanted to present. The additional hearings were held in June 1969; at their conclusion, the hearing examiner reaffirmed his previous recommendation that petitioners' renewal application be denied. ² The record of the hearings in this case comprises 15 volumes of testimony.

On September 10, 1969, the Board adopted the findings and conclusions of its hearing examiner. Petitioners' petition for reconsideration was granted and subsequently the Board adopted additional findings supporting further grounds ³ for denial of petitioners' 1968 renewal application. Petitioners filed a second petition for reconsideration which the Board granted; thereafter on October 15, 1969, the Board readopted its prior, expanded findings and denied both the 1968 and 1969 renewal applications.

Petitioners thereupon filed a mandamus action with the Los Angeles Superior Court to compel Board to renew their operating license. The court denied mandate ⁴ and petitioners appeal from that denial, asserting numerous errors.

1. Constitutionality of License Ordinance

At the time when petitioners submitted their original renewal application in 1967, section 103.29, subdivision (c), of the Los Angeles Municipal Code empowered the Board, after an investigation, to deny an operating permit 'if the Board finds that the said operation will not comport with the peace, health, safety, convenience, good morals, ⁵ and general welfare of the public or that facts exist upon which a denial of such permit would be authorized pursuant to this Article.' Under section 103.31, a denial of permit is authorized if the business involved is prohibited by local or state law (subd. (a)) if the business is or has become a public nuisance (subd. (b)), or if the applicant is 'unfit,' has a bad moral character, intemperate habits or a bad reputation for truth, honesty or integrity, is under the age of 18, has committed an act which would be ground for discipline under the article, or has been refused a permit or had a permit revoked (subd. (c)).

As noted above, the Board and its hearing officer made a specific finding that petitioners' application should be denied, among other reasons, because the granting of the permit would not comport with the 'peace, health, safety, convenience, good morals, and general welfare of the public.' Although this general finding was supplemented by further specific findings regarding petitioners' operations, petitioners contend that the broad language of section 103.29 renders the ordinance unconstitutionally vague, furnishing insufficient standards to guide the Board's discretion in exercising its permit powers.

A municipality has broad power to enact 'all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.' (Cal.Const., art. XI, § 7.) An ordinance so enacted will ordinarily be upheld if 'it is reasonably related to promoting the public health, safety, comfort, and welfare, and if the means adopted to accomplish that promotion are reasonably appropriate to the purpose. (Citations.)' (Higgins v. City of Santa Monica, 62 Cal.2d 24, 30, 41 Cal.Rptr. 9, 13, 396 P.2d 41, 45.) The requirement that a license first be obtained before conducting a business or activity has long been recognized as a valid exercise of the police power. (Burton v. Municipal Court, 68 Cal.2d 684, 690, 68 Cal.Rptr. 721, 441 P.2d 281; In re Fuller, 15 Cal.2d 425, 431, 102 P.2d 321.)

Nevertheless, where First Amendment activities are involved, this court has subjected licensing ordinances to strict scrutiny. (See Perrine v. Municipal Court, 5 Cal.3d 656, 661--663, 97 Cal.Rptr. 320, 488 P.2d 648; Dillon v. Municipal Court, 4 Cal.3d 860, 866, 94 Cal.Rptr. 777, 484 P.2d 945; Burton v. Municipal Court, Supra, 68 Cal.2d 684, 690--697, 68 Cal.Rptr. 721, 441 P.2d 281.) In Burton, we were faced with the validity of the same subdivision of section 103.29 (then subd. (b)) involved herein, as applied to an exhibitor of motion picture films to the public. In our analysis of the constitutionality of that subdivision we noted that 'The crucial factor here is our zealous solicitude for rights falling within the protection of the First Amendment,' since in that category of cases, "precision of regulation must be the touchstone' (citations) and the standards set forth (in the ordinance) must be 'susceptible of objective measurement' (citations)' (Pp. 690--691, 68 Cal.Rptr. p. 725, 441 P.2d p. 285.) We concluded that the subdivision in question here contained 'overly broad standards (which) are fraught with the hazard that an applicant will be denied his rights to free speech and press through exercise of the power of the board, in its discretion, to refuse a permit because of the content of the films which the applicant exhibits in his theater.' (P. 692, 68 Cal.Rptr. p. 726, 441 P.2d p. 286.)

It is apparent that the rule announced in Burton applies only to those situations in which the operation of a licensing ordinance impinges upon the exercise of First Amendment activities, rather than ordinary commercial enterprises. (Saunders v. City of Los Angeles, 273 Cal.App.2d 407, 411, 78 Cal.Rptr. 236.) Thus, in Daniel v. Board of Police Commissioners, 190 Cal.App.2d 556, 573, 12 Cal.Rptr. 226, the court upheld section 103.29 against a claim of vagueness and lack of standards in the context of the denial of a license for premises upon which food and beverages were sold and live entertainment provided. In Burton v. Municipal Court, Supra, 68 Cal.2d 684, 693, 68 Cal.Rptr. 721, 727, 441 P.2d 281, 287, we noted that the holding in Daniel was 'not necessarily in conflict with the views we express' since the Daniel opinion 'does not discuss the question of licensing activities within the ambit of the First Amendment . . ..' Nevertheless, presumably because the Daniel case did involve the licensing of 'live entertainment' possibly protected by the First Amendment (see In re Giannini, 69 Cal.2d 563, 568--570, 72 Cal.Rptr. 655, 446 P.2d 535), we disapproved Daniel, but only 'insofar as its language may be deemed inconsistent with the results . . . announced' in Burton. (68 Cal.2d at p. 693, 68 Cal.Rptr. at p. 727, 441 P.2d at p. 287.)

Therefore, we conclude that insofar as Daniel involved activities not falling within the ambit of the First Amendment, that case correctly held that the language of section 103.29 furnishes adequate standards to guide the Board in licensing matters and is not unconstitutionally vague. (See also Saunders v. City of Los Angeles, Supra, 273 Cal.App.2d 407, 411--412, 78 Cal.Rptr. 236; Carolina Lanes, Inc. v. City of Los Angeles, 253 Cal.App.2d 831, 835--836, 61 Cal.Rptr. 630; Sultan Turkish Bath v. Board of Police Comrs., 169 Cal.App.2d 188, 199--201, 337 P.2d 203.) It should be kept in mind that there are an infinite variety of activities or conduct which could result in potential or actual danger to the 'peace, health, safety, convenience, good morals, and general welfare' of the public. A municipality cannot reasonably be expected to isolate and specify those precise activities or conduct which are intended to be proscribed. As stated in Daniel, quoting from an earlier case, 'To make a statute sufficiently certain to comply with constitutional requirements (of due process of law) it is not necessary that it furnishes detailed plans and specifications of the acts or conduct prohibited.' (190 Cal.App.2d 566, 574, 12 Cal.Rptr. 226, 231; see Louis Stores, Inc. v. Department of Alcoholic Beverage Control, 57 Cal.2d 749, 760, 22 Cal.Rptr. 14, 371 P.2d 758. ⁶ ) The fact that an ordinance seems to vest unlimited discretion in the licensing agency does not necessarily invalidate the ordinance, for 'the same might be said of almost any licensing board established under the laws of this state;...