Tarbox v. Board of Sup'rs of Los Angeles County
| Decision Date | 08 September 1958 |
| Citation | 329 P.2d 553,163 Cal.App.2d 373 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Charles H. TARBOX, Plaintiff and Appellant, v. BOARD OF SUPERVISORS OF THE COUNTY OF LOS ANGELES and H. L. Byram, Defendants and Respondents. Civ. 22881. |
S. V. O. Prichard, Hollywood, for appellant.
Harold W. Kennedy, County Counsel and Edward H. Gaylord, Deputy County Counsel, Los Angeles, for respondents.
Appellant here, petitioner below, appeals from the judgment denying his petition for a writ of mandate addressed to the respondent board of supervisors and the county tax collector and dismissing said petition. While the judgment appealed from purports to be based upon an order sustaining a demurrer to the petition without leave to amend, inasmuch as the petition set forth the entire record before the board of supervisors and as the return to the alternative writ issued by the superior court incorporated that record and as the superior court was not entitled to receive any other evidence than that which was before the board (Fascination, Inc. v. Hoover, 39 Cal.2d 260, 246 P.2d 656), we treat the judgment as one upon the merits.
The petitioner is the owner of and since October, 1955 has operated a motion picture theater know as the Carmel Museum Theater in the county of Los Angeles. Each year he was issued a license by the county of Los Angeles to conduct the operation of that theater. In March of 1957 petitioner applied for a renewal of his license and, objection thereto having been made by the sheriff of the county a hearing was held before a referee appointed by respondent board of supervisors; and after that hearing, the referee made a written report to the board of supervisors recommending that petitioner's application be denied. The board, without hearing further evidence, adopted the report of the referee and denied the petitioner's application.
The question for decision here is: Did the evidence before the referee, giving that evidence every intendment in favor of the action of the board, justify the board's action denying petitioner a renewal of his license?
The facts as shown by the evidence, viewing that evidence in the light most favorable to the respondent board, are:
The petitioner purchased the theater in question in October, 1955 and from that time until the theater was closed by the police in March of 1957 operated it as a motion picture theater; the theater was operated in the same manner as similar theaters in the county were operated. In the theater he showed only films of high quality and there is no contention that any of them were of a lewd or immoral character or which might induce lewdness on the part of any patrons. From October 25, 1956, until March 17, 1957, 19 men were placed under arrest in the theater during the showing of pictures on charges of violation of section 647, subdivision 5, of the Penal Code (vagrancy, lewd). These arrests were all based upon attempts by the persons arrested to place their hands upon the private parts of members of the sheriff's vice squad (plain clothesmen) who had seated themselves as decoys in the theater. All arrests of the alleged offenders occurred when the theater was dark for the purpose of exhibiting the picture. During the period in which the arrests were made from two to five members of the vice squad attended each performance in the theater. In this period a minimum of 20,000 patrons attended the theater.
'When petitioner first learned of the arrests in the theater, on about the 19th of January 1957, he immediately contacted the office of the sheriff and learned the cause of the arrests and he then learned of other arrests that had been made and of the fact that persons of homosexual propensities were among his patrons and that they had attempted lewd acts within the premises. He then attempted to retain deputy sheriffs in uniform to work in the theater during their off hours but after this was first arranged he was advised that it was against the policy of the sheriff's department to permit the sheriff's deputies to take outside employment and that he should get a private detective to do that work. This he did and from that time on a private detective was at all times on duty in the theater. On several occasions this detective requested persons who were believed to be of undesirable character to leave the theater although no lewd acts were observed. Finally, the defendant engaged the services of a uniformed private patrolman to assist the plain clothes private detective whom he had employed but on the following day the theater was closed by the sheriff on the grounds that it was a public nuisance.
The officer in charge of the sheriff's vice squad testified that 10 of the 19 arrests were made after the employment of the private detective by the petitioner; a darkened theater was 'a pretty poor place to make observations of criminal acts'; and that the theater therefore constituted a serious police problem and that the sheriff's office could not properly police it so as to prevent the commission of lewd acts, such as we have heretofore described, by the patrons.
No evidence was offered against the character of petitioner or that the petitioner had knowingly allowed into the theater any person known by him to have committed or attempted to commit any lewd act therein or that he had failed to eject from the premises any such person.
The referee found and reported to the board that 19 arrests for violation of Penal Code, section 647, subdivision 5, had been made during the period of October 25, 1956, to March 17, 1957; that the number of arrests at the theater indicated that a number of individuals with homosexual tendencies frequented 'the area'; the semidarkened theater provided an ideal place for the promotion of such activities and that 'the surreptitious actions of such persons could well go unobserved by patrons' unless they were personally contacted. He concluded that the activities of the homosexually inclined patrons of the theater clearly established that the continued...
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