Viale v. Foley
| Decision Date | 31 March 1960 |
| Docket Number | No. 4235,4235 |
| Citation | 350 P.2d 721,76 Nev. 149 |
| Parties | Charles VIALE, doing business as Las Gables Motel; Western Motels, Inc., a Nevada corporation, doing business as Mirage Motel; William Hopkinson, doing business as Turf Motel; Motel Management, Inc., a Texas corporation, doing business as Desert Isle Motel; Donald H. Gilbert, doing business as Orinda Motel; Abraham Schnider and Marjorie Schnider, doing business as Mater-Mea-Inn; Louis G. Mangelson, doing business as Cardinal Motel; J. Julius Rapp, doing business as Fiesta Motel; Stephen C. Daniels, doing business as Midway Motel; George L. Wright, doing business as Wright's Motel & Apartments; Donald H. Gilbert, and Robert Rosoff, Appellants, v. George FOLEY, District Attorney of Clark County, State of Nevada; W. E. Leypoldt, Sheriff of Clark County, State of Nevada; Ray K. Sheffer, Chief of Police of the City of Las Vegas, State of Nevada, Respondents. |
| Court | Nevada Supreme Court |
Murray Posin, Las Vegas, for appellants.
George Foley, Dist. Atty., Clark County, Calvin Cory, City Atty., Las Vegas, for respondents.
George M. Dickerson, Las Vegas, amicus curiae.
This appeal involves the validity of subsection 2 of NRS 651.040 which prohibits outdoor or outside advertising of rates by hotels and motels for accommodations. 1
Appeal is taken from the denial of relief in three separate cases, one a suit to enjoin the enforcement of the statute, and the other two being petitions for writ of habeas corpus brought by two persons convicted of violating the prohibitory provisions of the statute.
It is conceded by all appellants that motels and hotels are affected with a public interest and are subject to reasonable regulation by the legislature under its police power in order to promote the health, safety, morals, and general welfare of the public. It is also conceded that the advertisement of motel and hotel rates are subject to legislative regulation. Alper v. Las Vegas Motel Ass'n, 74 Nev. 135, 325 P.2d 767.
The only question for determination is whether NRS 651.040 is a reasonable regulation in so far as it prohibits outside advertising of such rates.
Statutes come to a court clothed with the presumption of validity, Caton v. Frank, 56 Nev. 56, 44 P.2d 521, and if enacted in the exercise of police powers it is presumed that the legislature intended to promote the public welfare. Semler v. Oregon State Board of Dental Examiners, 148 Or. 50, 34 P.2d 311, affirmed 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086. The burden is upon those attacking the statute to make a showing that the statute is unconstitutional. Weaver v. Palmer Bros. Co., 270 U.S. 402, 46 S.Ct. 320, 70 L.Ed. 654; Serve Yourself Gasoline Stations Ass'n v. Brock, 39 Cal.2d 813, 249 P.2d 545.
The general rule is that the legislature in the exercise of its police power may regulate commercial business advertising, but it cannot absolutely prohibit such advertising when it is not malum in se, because such prohibition would deprive a person of a property right without due process of law. 2 Serve Yourself Gasoline Stations Ass'n v. Brock, supra; People v. Osborne, 17 Cal.App.Supp.2d 771, 59 P.2d 1083. See City of Reno v. Second Judicial District Court, 59 Nev. 416, 95 P.2d 994, 125 A.L.R. 948; Hart v. City of Beverly Hills, 11 Cal.2d 343, 79 P.2d 1080.
It is to be noted that the restrictive legislation found in said subsection 2 pertains to advertising only; that the advertising which is regulated relates only to room rates; and that the advertising of room rates is prohibited only with respect to outdoor or outside signs. Under these circumstances it cannot be said that there is a prohibition against all forms of advertising nor is there a total prohibition of advertising of room rates. The statute does not prohibit all outdoor signs or all advertising. Outdoor advertising of the type of accommodations, services, and accessories afforded is not restricted. Advertising of rates by newspaper, television, radio broadcasting, handbills, etc. is not prohibited. In other words, the statute must be construed as restrictive and regulatory of the manner and means of advertising rates rather than an absolute prohibition against any kind of advertising and thus involves no absolute denial of a property right without due process of law.
In the case of City of Daytona Beach v. Abdo, Fla.App., 112 So.2d 398, 401, the District Court of Appeal of Florida had before it a city ordinance which totally prohibited outdoor advertising of hotel and motel rates, and in addition thereto the ordinance prohibited outdoor advertising of free accessories and free services. The court held that such an ordinance was not unconstitutional on its face.
The opinion recites:
The Florida appellate court held in effect that even the total prohibition is not fatal to constitutionality if the general welfare will be protected, and went on to say that whether the general welfare would be protected was a factual matter which should not be determined on a motion for summary judgment. The decree of the lower court was reversed. Certiorari was denied by the Supreme Court of Florida on March 2, 1960. Abdo v. City of Daytona Beach, Fla., 118 So.2d 540.
Even in cases where there is no total prohibition of advertising, the regulation will not be sustained if it is arbitrary or unreasonable, and is not reasonably related to the end sought to be achieved which in this case is the protection of the traveling public. It was because of this rule that legislation limiting outside price advertising of gasoline to small placards posted on gas pumps has been held invalid. Gambone v. Commonwealth, 375 Pa. 547, 101 A.2d 634. The purpose of the regulation in that case was to prevent fraud and deception, and it is apparent that the public could be better protected by signs in excess of a certain prescribed size. Accord, State v. Guyette, 81 R.I. 281, 102 A.2d 446. The contention of appellants that an analogy may be drawn from such cases is without merit.
True it is that there is no evidence in the record herein which would tend to show the need for this particular legislation to protect the traveling public. That the protection of the traveling public is necessary to promote the general welfare is pointed out, however, in the case of Adams v. Miami Beach Hotel Ass'n, Fla., 77 So.2d 465, 467. In that case without any determination of facts the Florida Supreme Court said: ...
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... ... This Court has not had occasion to decide a "pure" First Amendment question since our holding in Viale v. Foley, 76 Nev. 149, 350 P.2d 721 (1960). In light of the many recent United States Supreme Court holdings bearing on this vital question, it is ... ...
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... ... Respondents ... Supreme Court of Nevada ... April 5, 1961 ... Roger D. Foley, Atty. Gen., and John A. Porter, Deputy Atty. Gen., John F. Mendoza, Dist. Atty., and Charles L. Garner, Deputy Dist. Atty., Las Vegas, for ... the Fourteenth Amendment (advertising one's busines being conceded to be a property right), we refer to the position taken by this court in Viale v. Foley, 76 Nev. 149, 350 P.2d 721, 723. There we upheld our statute prohibiting outdoor advertising of motel rates. In this regard it is ... ...
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