Vo v. City of Garden Grove

• Decision Date: 29 January 2004
• Docket Number: No. G032058.,G032058.
• Citation: 9 Cal.Rptr.3d 257,115 Cal.App.4th 425
• Court: California Court of Appeals
• Parties: Thanh Thuy VO, et al., Plaintiffs and Respondents, v. CITY OF GARDEN GROVE, et al., Defendants and Appellants.

9 Cal.Rptr.3d 257

115 Cal.App.4th 425

Thanh Thuy VO, et al., Plaintiffs and Respondents, v. CITY OF GARDEN GROVE, et al., Defendants and Appellants.

No. G032058.

Court of Appeal, Fourth District, Division 3.

January 29, 2004.

Woodruff, Spradlin & Smart, John R. Shaw and M. Lois Bobak, Orange, for Defendants and Appellants.

Ronald Talmo for Plaintiffs and Respondents.

OPINION

IKOLA, J.

The City of Garden Grove (city) enacted an ordinance (1) requiring "CyberCafes" to obtain a conditional use permit (CUP) to continue in business, and (2) regulating their operations.¹ Several CyberCafe owners (plaintiffs) sought a preliminary injunction, contending portions of the ordinance infringed free speech and privacy rights protected by the First Amendment of the United States Constitution and article I, sections 1 and 2 of the California Constitution. The court preliminarily enjoined the city from enforcing portions of the CyberCafe ordinance, and the city appeals. We conclude the court abused its discretion by preliminarily enjoining enforcement of the operational regulations, but appropriately exercised its discretion when it enjoined enforcement of the CUP requirement. Accordingly, we affirm the order in part and reverse it in part.

FACTS AND PROCEDURAL BACKGROUND

By memorandum of December 31, 2001, Joseph M. Polisar, the city's chief of police, advised the city manager of the rapid growth in the number of CyberCafes operating in the city. In the space of two years, the number of these establishments had risen from three to a total of 20. Polisar's memorandum detailed seven incidents of criminal activity occurring in or near four different CyberCafes during the last three months of 2001. Five of the seven incidents involved gang activity. The most recent incident, occurring the day before the memorandum was written, was the murder of a 20-year-old male while he was standing in front of a CyberCafe. Polisar also reported that patrol officers were finding school-age children at these establishments during school hours, and he expressed concern about minors being able to access inappropriate and dangerous Web sites. Polisar concluded: "[T]he Police Department believes that it is vital that the City enact an ordinance regulating the use of `Cyber Cafe's [sic].'"

The city council responded quickly by enacting an emergency interim ordinance, which established a moratorium on any new CyberCafes and imposed certain operating restrictions on existing CyberCafes. By memorandum dated June 18, 2002, Polisar reported 10 additional incidents of criminal activity, which he associated with CyberCafes and which had occurred while the city was working on the draft of a new permanent ordinance. Also by this date Polisar reported 22 CyberCafes operating in the city, apparently an increase of two despite the enactment of the emergency moratorium. On July 9, 2002, the city council adopted ordinance No. 2573, its first attempt to regulate CyberCafes with a permanent ordinance, with an effective date 30 days thereafter, August 8, 2002.

Before the effective date of ordinance No. 2573, the owners of five CyberCafes filed this action, seeking (1) damages pursuant to 42 United States Code section 1983 for the deprivation of rights, privileges and immunities secured by the federal and state Constitutions, (2) declaratory relief concerning the validity of the ordinance, and (3) a temporary restraining order, preliminary injunction and permanent injunction against enforcement of the ordinance. The court issued a temporary restraining order on August 7, 2002, and ordered the city to show cause, at a hearing scheduled for August 29, 2002, why a preliminary injunction should not issue restraining enforcement of the ordinance during the pendency of the action.

Although the record on appeal does not clearly indicate all of the subsequent proceedings, it appears no hearing was held on the request for preliminary injunction until January 30, 2003. By that time, three of the plaintiffs had dismissed their action as a result of a settlement, and the city had enacted ordinance No. 2591, substantially amending ordinance No. 2 — 573. In connection with consideration of the new ordinance, Chief Polisar updated his report by memorandum dated November 20, 2002, this time reporting 23 CyberCafes in the city despite the moratorium, and "289 police activity calls since June 1, 2002." Details of these "police activity calls" were not provided in the memorandum.²

Ordinance No. 2591 was passed by the city council on December 10, 2002. The hearing on the preliminary injunction began on January 30, 2003, but before it was completed, the court called a recess to allow the parties to discuss settlement possibilities. Settlement was not achieved, and the hearing was eventually completed on February 27, 2003. The court took the matter under submission and, on March 21, 2003, issued its ruling "striking" portions of the CyberCafe ordinance (the ordinance).³

The ordinance required existing CyberCafes to apply for a CUP no later than July 31, 2003.⁴ The court enjoined enforcement of this provision, finding it to be "constitutionally impermissible," because it "allows unfettered discretion in the issuance of permits ... and does not withstand challenge as being narrowly tailored and operates as a prior restraint and is therefor[e] facially defective."

Portions of the ordinance limited hours of operation and imposed a special curfew for minors during school hours unless accompanied by their parent or guardian. The court enjoined the provisions restricting access by minors during school hours. The court found restricting the "presence of minors during public school hours bears no basis to the declared legislative intent of public safety," and requiring the presence of a parent or guardian during school hours "is overly burdensome ... and not narrowly tailored."

The ordinance also imposed minimum requirements for the number of employees on the premises, and required the presence of licensed, uniformed security guards on Friday and Saturday evenings. The court enjoined these provisions finding insufficient "justification for accomplishing the legitimate governmental interest of public safety ... and not sufficiently narrowed."

Finally, the court enjoined a provision of the ordinance requiring CyberCafes to maintain a video surveillance system. It found this requirement imposed "an undue burden without adequate justification ... and [was] not sufficiently narrow."

DISCUSSION

Standard of Review

"We review an order granting a preliminary injunction under an abuse of discretion standard. [Citations.] Review is confined, in other words, to a consideration whether the trial court abused its discretion in `"evaluat[ing] two interrelated factors when deciding whether or not to issue a preliminary injunction. The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm the defendant is likely to suffer if the preliminary injunction were issued."'" (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1109, 60 Cal.Rptr.2d 277, 929 P.2d 596.)

But "[w]here the `likelihood of prevailing on the merits' factor depends upon a question of law ... the standard of review is not abuse of discretion but whether the superior court correctly interpreted and applied [the] law, which we review de novo." (Efstratis v. First Northern Bank (1997) 59 Cal.App.4th 667, 671-672, 69 Cal.Rptr.2d 445.) Constitutional issues are always reviewed de novo. (State of Ohio v. Barron (1997) 52 Cal.App.4th 62, 67, 60 Cal.Rptr.2d 342.) Here, the likelihood of prevailing on the merits does depend upon a question of law, because we are asked to conduct a facial review of the ordinance to determine whether it is constitutional. We conduct that review de novo. Of course, enjoining enforcement of a constitutional ordinance, or failing to enjoin enforcement of an unconstitutional ordinance, would also constitute an abuse of discretion within the usual formulation of the standard of review for the grant or denial of a preliminary injunction.⁵

1. Likelihood of Prevailing on the Merits

Plaintiffs challenge the ordinance primarily on First Amendment grounds. We have no doubt the ordinance implicates First Amendment activities. CyberCafes provide their customers with access to the Internet, allowing users to communicate privately by e-mail, acquire vast amounts of information from the World Wide Web, and even play interactive games. Commercial book publishers and distributors have long been entitled to First Amendment protection (Smith v. California (1959) 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205; Perrine v. Municipal Court (1971) 5 Cal.3d 656, 97 Cal.Rptr. 320, 488 P.2d 648), as have the proprietors of video arcades (People v. Glaze (1980) 27 Cal.3d 841, 166 Cal.Rptr. 859, 614 P.2d 291), cabarets (Sundance Saloon, Inc. v. City of San Diego (1989) 213 Cal.App.3d 807, 261 Cal.Rptr. 841), and movie theaters (Burton v. Municipal Court (1968) 68 Cal.2d 684, 68 Cal.Rptr. 721, 441 P.2d 281). We perceive no rationale by which CyberCafes should be accorded less protection than any of these older or more traditional businesses. As the court below aptly observed, "The targeted business is a gateway to the information super highway [-] the modern new location for information's dissemination."⁶

The fact that First Amendment rights are affected, however, does not end the analysis. "That First Amendment rights are being utilized on the premises does not exempt a commercial entrepreneur from compliance with reasonable regulations under the police power." (Burton v. Municipal Court, supra, 68 Cal.2d 684, 690, 68 Cal.Rptr. 721, 441 P.2d 281.) "Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions.... [R]...