*1 24873. No. Oct. [S.F. 1985.] al.,
BRUCE COHEN et Plaintiffs and Appellants, BOARD OF OF THE AND COUNTY OF SUPERVISORS CITY al., SAN et and Respondents. FRANCISCO Defendants *6 Counsel Ross, Sakamoto, Ross, N.
Friedman, Lynne S. Sheila L. Jeffrey Sloan & Appellants. and Lawrence A. Gibbs for Plaintiffs and Henderson and Amitai Cone, Alan L. Schlosser Crosby, E. C. Stephen Margaret and Appellants. Schwartz as Amici Curiae on behalf of Plaintiffs Delventhal, E. Judith A. Boyajian, Burk Attorney, George Agnost, City Owen, J. Attorneys, Mara Deputy City E. Rosales and Thomas and Defendants Respondents. Netzer, R.
Gary (Los City Lewis N. Assistant Attorney Angeles), Unger, City Victorine, Attorney, City Attorney, Pamela as Amici Deputy Curiae on behalf of Defendants and Respondents.
Opinion BIRD, ordinance, C. J. a San Francisco requires operators Is of escort services and their an annual license fee and employees pay business, acquire permit from the chief before police engaging by state law? preempted
I. 15, 1981, On June the Board of for the Supervisors County San Francisco enacted Police sections Municipal Code 1074.1 through 1074.30, which regulate escort services within located operating city.1 According Feinstein, Dianne Mayor the ordinance was deemed necessary “reduce the needed to monitor and il- manpower investigate escort legal services” which “often serve as front for individuals engaged in serious criminal . . . .”2 activity The escort service ordinance became effective July but due to an administrative and a grace period subsequent stipulation in this the ordinance was not parties litigation, enforced until September 1981. 17, 1981,
On August a San Francisco and an appellants, taxpayer attorney Francisco, San practicing filed this action declarative and seeking injunc- tive relief based on the claim that the ordinance was under unconstitutional *7 First, Fourth, Sixth, and Fourteenth to the Amendments federal Consti- tution and several of the state The court provisions Constitution. trial issued an order to show cause on for a appellants’ injunc- application preliminary tion and a hearing was held on September 1981. statutory 1All Municipal references are to the San Francisco Police Code unless otherwise
indicated. 2Members of the San Department Francisco in communi- Police echoed these sentiments cations with the proposed board about the ordinance. a 11, 1981, for pre- denied the application the trial court
On September the Court mandate from liminary unsuccessfully seeking After injunction. trial court’s order.3 from the of filed a notice of appeal Appeal, appellants engaged any person The a upon ordinance imposes permit requirement in, service.” of “escort on the an operation or conducting, carrying business, or agency (§ 1074.2.) is defined as “[a]ny An “escort service” who, commission, or fee, hire, furnishes reward or profit, for a person introduces, or arranges who furnishes offers to furnish names of or persons, affairs, social for who other to or about may persons, accompany persons amusement, with others consort may or of or who entertainments places 1074.1.) (§ about or within any any private quarters.” resort place public fee, who, a commis an “escort” is defined as Similarly, “[a]ny person sion, hire, or about social to reward or other accompanies persons profit, affairs, with others about entertainments or of amusement or consorts places (Ibid.) resort or within any place public any private quarters.” fill out an must In order to obtain an escort service applicant permit, two pre- current and which calls for a personal description, application Also, three record. employment vious addresses and a business prior furnished, criminal convictions of all must be portrait photographs listing majority minor traffic violations must be written proof except provided, shown, necessary and information must be other identification “[s]uch 1074.4.) The (§ to must be submitted. discover the matters” [foregoing] and additional chief of take the fingerprints to police permitted ápplicant’s “confirm, the truth and investigation, photographs by independent {Ibid.) The . . . information in application].” accuracy [provided $500 be fee of used fee and an additional filing must applicant pay upon fee is refunded of the latter investigation. portion unused (§ 1074.3.) the investigation. conclusion of in who works or other employee The ordinance also escort requires any in the city service any such escort service in San Francisco performs filed, summary judgment parties brought motions for appeal was both 3After the notice of summary in defendants’ granted judgment February the court the trial court. On right privacy except as all and state constitutional favor issues the Fourth Amendment claims. summary judgment extraordinary relief from the trial court’s Appellants failed to seek However, appeal. As this bar review of the issues raised order. that omission does not writ failure to seek explained Appeal, Court of appellants’ counsel a letter would such action summary the belief that judgment review of the order resulted from Moreover, during time at no merely duplicate already appeal. the court on issues before court’s sum- of the trial appeal judicata effect present respondents have claimed the res *8 valid, Therefore, it has been assuming were mary judgment such a claim order. even 209, 387, 11 A.L.R.2d (See P.2d McKnight Dillard v. 34 Cal.2d 219 [209 waived. to secure a The information permit. requires employee permit application 1074.5, 1074.7.) similar (§§ to that required for a service permit. filed,
After the a application is the chief of schedules hear- public police a notice of ing, “in a on the is posted conspicuous place” premises in which the escort A (§ 1074.11.) service is to be must operated. permit be issued within 14 the unless: the days following hearing operation laws, “would not have with all not complied but lim- applicable including to, ited the of Building, City and Fire Codes the Planning, Housing . . . and the rules and of regulations by the Chief Police adopted pursuant Article;” to this (2) the has had a license revoked the applicant prior by state, city, Commission; the or the Alcoholic Control or Beverage has applicant been (i) convicted of offense which any requires sex offender registration (Pen. Code, 290), (ii) force and involves “use of violence § children, of upon person another” (iii) or sexual misconduct with or 647a, described in Penal Code sections (a), subdivision (b), 315, 316, subdivision (§ 318 or 266 1074.12.) 267. A license through fee is charged annually (§ for the 1074.24.) permit.
Beyond the permit process, ordinance that both clients and requires 1074.16, be at employees (§§ least 1074.17) old years that each escort service a keep daily register and hours of containing identity employment each The employee. register contain the “true” name must and address of hours, each with the patron, along the fee and the charged, location where the service was used. This is “at all times register during business hours . . . subject inspection” by health police depart- ments and must be (§ 1074.21.) maintained on the for one premises year. “shall, police department from time to time and at least twice a year,” each inspect escort service “for the that there is purposes determining with compliance (§ provisions 1074.20.) [the ordinance].” Finally, ordinance any escort “in prohibits any type from engaging of criminal conduct with 1074.22, . .” (§ (A).) customer . . No subd. one may “permit, counsel or assist other any in the violation” of the person (§ ordinance. 1074.23.) Any wilful violation of the result criminal $1,000, both, penalties to six months in if up jail, a fine of the violation is as a charged $500 misdemeanor or a fine of if as charged (§ infraction. 1074.26.) issued,
Once be revoked has permit may after if the hearing permittee ordinance, in conduct engaged which violates im- any any provision plementing rules and regulations any the chief adopted by police,4
4We are city attorney informed yet promulgated. that no regulations such have been
286 “in case where the any permittee
state or local law. Revocation result ... to in- officer authorized any duly police licensee refuses to permit ....”(§ 1074.15.) the or the therein spect operations premises II. the trial court abused its
The whether this is question presented by appeal injunction. discretion in the the preliminary denying application evaluate should court has held that trial courts “This traditionally or not to issue a preliminary two interrelated factors when whether deciding on the the prevail the will plaintiff The first is likelihood injunction. likely to at The harm that the plaintiff merits trial. second is the interim that the de- to the harm compared sustain if the were denied as injunction were issued. if the likely injunction [Cita- fendant is suffer preliminary 63, 35 Cal.3d 69-70 (IT (1983) v. Corp. County Imperial [196 tions.]” of (1985) 38 715, Court 121]; Robbins v. Superior 672 P.2d accord Cal.Rptr. the 398, 695].)5 ‘“[By] balancing Cal.3d P.2d 206 695 Cal.Rptr. that, a concludes pending of the trial equities respective parties, [the court] merits, not be restrained that he should trial on the the defendant should or Co. v. (Continental Baking claimed him.’” right from the exercising P.2d (1968) 68 Cal.2d Katz does not constitute injunction The denying preliminary granting (Robbins Superior v. controversy. adjudication rights ultimate Court, 218; supra, County Imperial, v. Corp. 38 Cal. 3d at IT supra, p. on an 75-76.) application Generally, ruling Cal.3d at pp. of the trial court. discretion rests in sound preliminary injunction a showing on absent will not be disturbed appeal exercise of that discretion Katz, 69; Co. (Id., Baking Continental that it has been abused. 68 Cal.2d at injunction, for a preliminary When a trial court denies an application either or both satisfy it have failed determines that the implicitly plaintiffs factors. the merits” on of the “interim harm” and “likelihood of prevailing its discretion trial court abused On becomes whether the appeal, question determining whether to consider 5Respondents actually that there are five factors assert (2) remedy; degree any injunction inadequacy of other preliminary should issue: cause; (3) necessity preserve the injunction irreparable injury the denial of the will parties of third degree interest or interests quo; public status of adverse effect on the cause; merits. prevailing on the granting injunction will the likelihood Califor- indicates, reported compiled list from several respondents this As their trial brief case, however, all five incorporates injunctions. single No involving preliminary nia cases describing the ways of simply different purported requirements factors. Several are of these “interim harm” factor noted above. *10 on ruling both factors. Even court if court finds that the trial appellate factors, abused its discretion as one may of it nevertheless affirm trial court’s order if it finds no abuse of discretion as to the other. however,
Appellants argue, that a different standard applies reviewing a on an ruling for a application injunction validity where preliminary instances, the challenged legislation a In presents only of law. such question assert, they court is not limited whether the appellate to determining trial court abused its discretion in on the “interim harm” and “like- ruling lihood of factors, on the prevailing merits” but may adjudicate instead merits of the challenged legislation as the case had though proceeded trial.
In support of their cite argument, several decisions appellants appellate which have proceeded determine the merits of facial constitutional attacks on legislation without analyzing whether the trial court its discretion abused Estates, under the (Palos traditional test. Verdes two-part Shores Mobile Ltd. v. City 362, Los Angeles (1983) 142 368 Cal.App.3d Cal.Rptr. [190 866]; v. 672, Woods 209]; Ortiz 129 676 Cal.App.3d Cal.Rptr. [181 North 800, Coast Coalition v. Woods 110 804-805 Cal.App.3d 95]; Cal.Rptr. see also implication Santa Barbara v. Adamson (1980) 27 Cal.3d 610 P.2d 12 A.L.R.4th Each of these decisions involved an from an order appeal granting pre- liminary injunction. cases, note, In these no material factual appellants questions had to be resolved to determine the of the constitutionality legis- lation, and the appellate court concluded that it was in as good position as the trial court after decision on the to determine the constitution- appeal ality the challenged legislation.
Since the present appeal involves facial attack and raises no factual questions, they court argue, this resolve the con- merits appellants’ stitutional challenge without resort to the abuse of discretion standard and the traditional two-part test.
The cited cases are not In here. Santa Barbara v. Ad apposite City of amson, court, supra, Cal.3d the trial under an example, acting the number of restricting unrelated adults who could live in the household, same enjoined a of adults from On group living together. appeal, court unconstitutional, this held the ordinance the order reversed granting the preliminary injunction, (Id., and remanded for further proceedings. 132-134, pp. however, There is no indication in the that opinion, either party argued this court was limited to a review trial court’s the trial terms of whether
discretion or that either framed the issues in party “interim harm” and on the finding city court had erred implicitly on the factors. “likelihood of merits” prevailing Woods, 800 is similar. North Coast Coalition There, enforcement of certain court trial had preliminarily enjoined *11 welfare grants. of recipients’ welfare reduction regulations required court’s no took issue with the trial There is indication that on the state appeal factor. “interim harm” that the had satisfied the finding implicit plaintiff ruling court had erred in was whether the trial only remaining question Since the factor. for the on the “likelihood of on merits” plaintiff prevailing involved, finally could de- no factual were the Court of questions Appeal a good it was “in as termine the actions because validity challenged be after determi- to resolve the issue now as the trial court would position the injunction].” nation of the order appeal granting preliminary [the] [from Estates, (Id., 805; Ltd. v. City at accord Palos Verdes Shores Mobile p. of 368; 51 (1975) v. Davis Los 142 at Eckl Angeles, supra, Cal.App.3d p. under- have not parties 835 Cal.App.3d Cal.Rptr. [124 685] [“The the trial court abused taken to discuss the of whether specifically question .”]; . also District discretion in a . . see injunction its denying preliminary 261 (1978) Election Committee v. 78 Cal.App.3d etc. O’Connor [144 442],6) Cal.Rptr. relief to injunctive plain-
In some cases the of involving grant preliminary have tiffs facial on the Courts of Appeal attacks local bringing regulations, limited court correctly applied two-part their review to whether the trial EWAP, (1979) 97 Angeles test. For Inc. v. Los example, City of an Court of held that 579], 179 Cal.Rptr. Appeal Cal.App.3d [158 was a par- a arcade to obtain permit requiring picture proprietor on freedom of tially expression. invalid as unconstitutional restraint prior a (Id., 184-188.) court’s order granting at The court reversed the trial pp. had arcade proprietors since the preliminary injunction against city harmed by and be they failed to show that would be denied such a permit (Id., at p. the enforcement of the unconstitutional provision. 42 v. 41 Cal.App.3d Pitchess
Similarly, 7978 Corporation [115 enforce- 746], an order enjoining the Court of reversed Cal.Rptr. Appeal Woods, no similarly presented Cal.App.3d appellants, cited 6Ortiz 129 finding harm.” The implicit of “interim question propriety as to the of the trial court’s proof irreparable Appeal “plaintiffs’ had of Court of noted that defendant conceded that finding irreparable harm injury implied was irrebuttable and that the court’s factual trial 676.) Thus, the trial court (Id., only remaining was whether was correct.” at issue question properly plaintiffs prevail on the merits. Since found a likelihood that the would issues, constitutionality the Court regulations presented no factual of certain welfare they were before the Appeal though as proper found it to resolve the merits of the case (Ibid.) injunction. following preliminary on appeal ruling trial court from the
289 ment of an ordinance which ballroom between dancing prohibited public a.m. and 6 a.m. The “failed to show any court held that the had plaintiffs . . (Id., that would result from relief . .” pressing injury delay obtaining 46;7 accord Santa Monica v. Court Superior 226-227 Cal.App.2d Cal.Rptr. At one least Court of review has adhered the abuse discretion Appeal standard where the trial court had denied an application preliminary injunction unconstitutional. In by plaintiff facially statute as challenging Assn., American Booksellers Inc. v. Court Superior 33], court found two ordinances the dis- regulating of certain
play material Amend- explicit unconstitutional on First and Fifth ment grounds. The court on to went determine whether the had plaintiffs *12 “demonstrated the of type which would necessitate the irreparable injury issuance of a (Id., preliminary 206.) at The court concluded injunction.” that the plaintiffs had met their burden in view of the chilling “pervasive effect which the ordinances on the exercise free a harm speech,” ha[d] “not limited Hence, to the the petitioners (Ibid.) before court.” application of the traditional analysis trial two-part mandated reversal of the court’s order denying preliminary injunction.
It is to appropriate follow the American Booksellers in this example case. Unlike cites, the parties the decisions have appellant respondents explicitly the urged of the propriety trial court’s on the implicit finding “interim noted, harm” factor as a ground for affirmance. As already the trial court’s summary denial of the for a request preliminary injunction could have been based on a that failed to finding satisfy either appellants both of the two Even if prerequisites relief. the preliminary injunctive trial court had found for on the “likelihood of success on the appellants factor, merits” it nevertheless could have refused to issue a preliminary if it injunction found the that interim did harm to not appellants outweigh the interim harm to If this latter did not con- respondents. finding implied discretion, stitute an abuse of the order must be affirmed. present Here, the Court of failed the of discretion anal- Appeal abuse employ Instead, ysis. issue, it held that since no material of fact were questions the merits appellants’ constitutional reached in the could be challenges present issue, It on went appeal. consider only finding preemption the escort service ordinance totally by state law. preempted
In view of this court disposition, this addresses issue. only preemption The case will then be retransferred to the Court for an of Appeal opinion 7The Court of Appeal constitutionality nevertheless of the ordinance since addressed both sides had plaintiffs “declaratory briefed it and the requested had relief on issue appears . relatively (41 . . narrow . ...”
290 for the finding in implicitly
on whether the trial court abused its discretion on the merits” of prevailing on the “interim harm” and “likelihood city and sub- Such a to assure complex factors. disposition “appropriate the Court Ap- considered initially stantial issues raised on are appeal a more us, thereby parties their providing before peal presentation Corp. Pac. R.R. v. Union (Taylor form of review.” complete appellate 23, 855]; also Arnel 893, see (1976) 16 Cal.3d 549 P.2d Cal.Rptr. 895 [130 511, 514, 525 Cal.3d v. 28 Development Co. Costa Mesa 20 904, v. Cal.3d 565]; Nork 620 P.2d Cal.Rptr. Gonzales [169 500, (1977) 20 240, Hudgins 458]; 573 P.2d Vella Cal.Rptr. [143 414, B. 28]; In re Joseph P.2d cf. Cal.3d Cal.Rptr. 671 P.2d (1983) 34 Cal.3d on “interim If it is determined that the trial court abused its discretion factor, abused be whether court harm” will remaining only question Since on on merits” factor. its discretion the “likelihood of prevailing ordinance service claim on the escort constitutes facial attack appellant’s law, then determine the Court of presents only questions Appeal the case had pro- as though constitutionality present ceeded to trial.
III. it because is invalid assert that the escort service ordinance Appellants XI, section 7 of of article “conflict with laws” in violation general and history requirements to the Pointing legislative California Constitution. ordinance, regulate it seeks to of the contend that impermissibly they state conduct, by of legislation criminal of sexual area aspects preempted law our Penal Code. through XI, provides “[a]
Article section 7 the state Constitution local, all police, limits or make and enforce within its county city may with general not in conflict ordinances and sanitary, and other regulations is void. laws Local in conflict with the legislation general laws.”8 contradicts [citations], [cita “Conflicts if the ordinance exist duplicates law, or either tion], expressly or by general enters an area fully occupied or field matter subject If by legislative implication [citations]. state, no room sup there is by has been legislation fully occupied the subject or even if [was] local plementary complementary legislation, 2, that time Prior to was on June 1970. 8Section 7 added to the state Constitution town, XI, county, city, (“Any pertinent provision section 11. was set forth in article local, sanitary other police, and township may and limits all such make enforce within its laws.”) general regulations are not in with as conflict
291 otherwise one affair.’ characterized as properly ‘municipal [Citation.]” 805, (Lancaster v. (1972) Cal.Rptr. Court 6 Cal.3d 807-808 Municipal [100 609, 119, 681]; 125 (1964) Cal.Rptr. 494 P.2d In re Hubbard 62 Cal.2d [41 393, v. San 809], City 396 P.2d overruled on another in Bishop point 56, 465, 137]; Jose P.2d In (1969) 1 Cal.3d & 460 63 fn. 6 Cal.Rptr. [81 811, 635]; In 650, re Zorn 381 P.2d 59 Cal.2d 651 Cal.Rptr. [30 99, 857, 897]; re Lane 58 Cal.2d P.2d Abbott 372 Cal.Rptr. 158, v. 674, Los (1960) 53 Cal.2d Angeles Cal.Rptr. 681-684 [3 974, P.2d 385].) 82 A.L.R.2d The determine first in a whether the local step is to preemption analysis regulation (See Galvan explicitly conflicts with of state law. any provision Superior Court 70 Cal.2d 855-859 P.2d Code, (Welf. Senior Services & Inst. Multipurpose Program 9400 et administered the state Health and Welfare seq.), Agency,
§ Code, speaks terms of (Welf. “escort & Inst. regulating services.” 9403.) This program § coordinates and authorizes the of social delivery services, health services, escort including years age “persons older who are at risk of facility institutionalization in a skilled nursing intermediate (Welf. Code, 9400, 9403.)9 care facility.” & Inst. §§
The San Francisco ordinance excludes such escort services specifically from businesses, its purview. Its definition of escort services excludes “any agencies or de- persons escort services for older as provide persons fined in California Welfare and Institutions Code Section [former] when such services are as of a social welfare and health provided part for such program (§ 1074.1.)10 older persons.”
No other provision state law of escort regulates licensing explicitly *14 Therefore, services. (See no on Galvan this basis can be found. preemption Court, v. Superior supra, 855-859.)11 70 Cal.2d at pp. 9A “Pilot Multipurpose in Projects” program put place Senior Service was first in 1977. 1977, (Stats. 1199, 8, 3986-3989.) ch. pp. by program That was modified amendments § 18, July (Stats. 1983, 306, 30,
effective 1.) by 1983. ch. June repealed It is to be 1986 § established, or when long-term (Welf. a new delivery system care is whichever occurs first. Code, & Inst. The reference in existence § to “escort services” in section 9403 was when the San Francisco ordinance was enacted. 10The 1977 version of person.” Welfare and “older Institutions Code section 9406 defined That repealed statute was legislation. in the 1983 11City 32], County (1948) & San P.2d on Cal.App.2d Francisco v. Boss 83 445 [189 of There, appellants rely, which readily distinguishable. constitutionality is of an ordinance requiring a contractor’s license Appeal was issue. The Court of found Code, conflict with fully (See state law occupied which & Prof. 7000 et field. Bus. § seq.; see also Cal.Rptr. Horwith v. Fresno 74 443 767] [168 Here, regulating explicit [ordinance electrical conflict ex- preempted].) contractors held no otherwise, ists regulates, since no state statute through licensing operation of escort services.
292
The next is whether of the question any local provision regulation state duplicates law.12
At least two of the provisions ordinance suffer from that defect. present 1074.22, Section (A) subdivision an individual “while as prohibits acting an escort in an escort service of criminal engaging] any type [from] conduct with a customer of an escort service.” This provision unquestion ably state duplicates criminal law insofar as it to “escorts.” To that applies extent, Court, the ordinance (Lancaster preempted. Municipal 807-808; 6 Cal.3d at Abbott v. pp. City Los 53 Cal.2d Angeles, supra, 682; at p. 162, v. Sargent (1959) 801]; 52 Cal.2d P.2d In Chavez [339 re Portnoy (1942) 237, 1]; 21 Cal.2d P.2d v. Benson Pipoly [131 366, 20 Cal.2d 515].) P.2d 147 A.L.R.
Section 1074.23
that no
provides
“shall
counsel or assist
person
permit,
other
any
in the
person
violation of
To the extent this
[the ordinance].”
provision is an
attempt
proscribe
and
of a state crim-
aiding
abetting
inal offense—an
obtains
this section
interpretation
readily
by reading
and
1074.22,
section
too,
(A)
subdivision
state law
together—it,
duplicates
Court,
and is
(See
Code,
31;
Pen.
preempted.
Lancaster v. Municipal
§
supra,
The ordinance expressly the event provides severability any provision is held (§ 1074.30.) unconstitutional. The above invalid provi- sions are ordinance, severable easily from the remainder of the which deals primarily with the licensing escort services. the unconsti- Consequently, tutional provisions do not taint these latter whose must validity provisions, be separately determined. (City and San Francisco v. County Cooper 13 Cal.3d 534 P.2d
Since these latter provisions neither contradict nor expressly duplicate law, state their validity must be evaluated under preemption prin- implied “In ciples. whether the determining has Legislature preempted to the implication exclusion of local we must look to the whole regulation purpose scope ‘(1) are three tests: legislative scheme..There subject matter has been so covered law as fully by generál completely concern; to clearly indicate that it has become exclusively matter state *15 XI, 12“The ‘general reason that a conflict laws’ under article section 7 of the [with state is said to exist where an duplicates ordinance state law is that a conviction Constitution] under the operate ordinance will prosecution to bar under state law for the same offense. Where prosecution ‘the [Citation.] is or should be aware of more than one offense in which the same act or course of plays significant part, prose- conduct a all must be such offenses single cuted in a proceeding joinder good for prohibited permitted unless is or severance 507, 511, (People v. cause.’ Cal.Rptr. fn. 1 Orozco [Citation.]” 452, 32 A.L.R.3d (2) law couched matter has been covered subject by general partially will not such terms as to a state concern indicate that clearly paramount action; been matter has tolerate further or additional local or the subject law, a nature that covered and the is of such partially by general subject of the state adverse effect of a citizens local ordinance on transient ’ ” Deuk- ex rel. (People benefit to the outweighs possible municipality. 476, mejian County Mendocino 36 Cal. 3d 128; 897, Hubbard, at 1150], 683 P.2d In re 62 Cal.2d p. quoting supra, Court, 859-860.) accord Galvan v. Cal.2d at Superior supra, pp. a chief claim that the ordinance13 is in substance
Appellants’ is criminal statute offenses— enacted to curb the commission of sex-related Code, most are notably (Pen. (b))—which subd. often prostitution § associated with and escort service activities. that criminal sexual They argue law, are or activity fully state either regulated by exclusively partially, no additional regulation can be tolerated. by municipality
If the ordinance were in which substance criminal statute attempted prohibit conduct state law either proscribed permitted by explicitly Lane, it would implicitly, be In In re 58 Cal.2d preempted. supra, this example, court invalidated an ordinance which made it a crime for not persons married to each other to resort to numerous specified places purpose sexual intercourse or in a lewd act. engaging participating (Id., at 102.) The had p. court noted that certain of sexual activity types Code, been proscribed the Penal but that “neither fornication nor simple alone nor adultery in a state of and fornication has been living cohabitation ” made a (Id., crime in this 104.) state. at The omission of these activities from state law could intent be construed to indicate a reasonably legislative them, to permit from them thereby rendering preventing municipalities (Id., criminal. 104-105.) at pp. Court,
Similarly, Lancaster v. 6 Cal.3d this Municipal court invalidated a which made it a misdemeanor Los ordinance Angeles for individuals in with their massages connection businesses provide members of The court has been no opposite sex. observed “[t]here suggestion reasonable to the before us other than any purpose to limit sexual it has been that the ordinance should activity. Although urged be viewed not as regulation administering massages business of a sexual evil regulation, the actual or only any potential specification (Id., the sexual activity massage.” follow in the wake of 1 3Subsequent provisions. references to the ordinance are to the unsevered escort service
294 to the
Pointing comments of officials that the of the ordinance city purpose licentiousness,’” was “‘to a regulate source of the court concluded that admission indicates that the of the ordinance in clearly “[t]his purpose ques tion was not to the regulate but was aimed at operation massage parlors the task of the making and office easier in their police sheriff’s department fight against and lewd the ordi prostitution conduct. We are satisfied that (Ibid., nance is a regulation criminal of sexual conduct.” fn. aspects omitted.) In view of constant attention the has Legislature given “[t]he the criminal of sexual the court held that “in the absence aspects activity,” of an express to the the statutory this area of law is provision contrary, intended to be wholly within the control of the and not Legislature subject (Id., to local 808.)14 regulation.” at p. law,
In many subject areas related to state the has Legislature specifically authorized local are In legislation. Massage illustrative. parlor regulations of a “recognizing] existing or a power city county regulate business,” lawful massage local schemes “which Legislature permitted for the provide[] for of the business of . . . .” licensing regulation massage Code, (Gov. 51034, 51030.) certain Although Legislature suggested §§ standards for to follow municipalities in such it was enacting regulations, careful to note that in the be “a nothing should construed as legislation Municipal (1982) 14Gatesv. Spitcauer Court Cal.App.3d Cal.Rptr. 135 309 and [185 330] County v. Angeles (1964) Los 227 Cal.App.2d Cal.Rptr. provide 376 additional [38 710] examples of local regulations criminal preempted held state law. The ordinance in Gates proscribed loitering any public place soliciting prostitution purpose “for the an act of (Id., 1.) or . . . p. lewdness at purpose fn. Since the ordinance had “no other than regulation of sexual merely conduct and . . . a new attempted] to create form of sexual from, yet crime akin to and (id., 320), different vaguer, attempt” and than criminal at it could not be sustained. Similarly, Spitcauer, prohibited operation of “studios” wherein “ pose models would purpose being depicted by persons ‘in the nude semi-nude fee, pay who (227 or other right Cal.App.2d consideration ... do [to so].’” The court held that it was “manifest an admitted that ordinance is invalid as activities,” attempt provide proscription an additional in the area of criminal sexual “very definitely (Ibid.) field preempted entirely by . . . the state.” hand, On the other there regulations are local criminal which have withstood numerous preemption claims they impermissibly sought to curb activities associated with conduct made criminal under Examples nudity public state law. prohibit include ordinances which on Davis, (Eckl tunnels, 831), beaches and in public supra, v. Cal.App.3d loitering areas 51 pedestrian subways (Gleason (1964) general freeway Municipal areas v. Court 226 Orozco, Cal.App.2d 226]), 584 Cal.Rptr. glue sniffing (People v. 266 [38 consumption 507), Cal.App.2d beverages (People playgrounds alcoholic on streets and (1967) 924]), v. Butler Cal.App.2d 252 Supp. Cal.Rptr. trespassing 1053 on school (In grounds 338]), re loitering A. while Cal.App.3d Cal.Rptr. 845 [168 Rudolfo carrying (Yuen weapon Municipal concealed Cal.App.3d Court 351 [125 87]), Cal.Rptr. entry by display unaccompanied places minors into of business Four, (Music paraphernalia sell narcotics Plus Inc. v. Barnet 419]).
295 author- existing or on so regulate] limitation on existing power [to th[e] Code, 51034.)15 (Gov. . .” . . § of a to license for revenue ity city purposes area. in this local regulation deferred to The Courts of have since Appeal 47 Cal.App.3d [154 92 For in Brix v. San City example, Rafael ordi- licensing on a attack 647], the court rejected preemption Cal.Rptr. conducted activity and the nance which the hours of operation regulated effect of noted that purpose within The court massage parlors. “[t]he degener- from establishments massage such is to requirements discourage the city’s exercise of power This is a valid into houses of ating prostitution. and the means health, community; of the morals and welfare regulate to be achieved. sought [Ci- bears a rational to the goals used relationship Hill 154 54; (Id., Signal at Owens v. accord tation.]” 123 Cal.Rptr. [201 has the Legislature 318.5 and 318.6 Penal Code sections Similarly, exposure recognized regulate public of local power governments waiters, in eating or entertainers waitresses private bodily parts by have scru- While the courts establishments and other drinking public places. Amendment grounds tinized on First activity ordinances such regulating 553 (see, Cal.Rptr. 32 Cal.3d Morris v. Court e.g., Municipal (1973) Cal.3d 51], v. Musick 652 P.2d Crownover overruling grant not disturbed the 497]), P.2d have they statutes recognize. those municipal power of escort regulation
No of state law provision explicitly permits municipal However, that not a finding preemption. services. fact does necessitate intent to The to indicate an test is whether state law is so formulated as covers i.e., fully local whether state law or partially preclude regulation, can be regulation matter of the ordinance such that no local subject Hubbard, 128.) (In tolerated. re 62 Cal.2d at does not test. State law The not under this present preempted ordi- or conduct regulated or implicitly explicitly prohibit permit activity impose criminal nance. The ordinance does not sexual or prohibit from and escorts services a sanction for in it. It escort engaging prohibits favors sexual without or not the escorts provide whether operating permits, services, not of escort in return for the business money. law regulates their nature. county, city and city, nothing “authorize a legislation provided 15The also should massage person of a
county engaging in the prohibit person of one sex from vitality (Gov. Code, recognition of the apparent provision other sex.” was an This § ante, (See 293-294.) of the Lancaster holding. pp. contrast, statute, By state like other state statutes which prostitution conduct, describe criminal not deal with the of escort does business ser- *18 Instead, vices. it proscribes acts which not occur may may particular while escort services are In to a contrast to the being provided patron. ordinance’s to requirement that an escort obtain a others accompany permit affairs, entertainments, to “social money of amusement or places public resort, or (§ 1074.1), statute private quarters” deals with prostitution act of in particular any lewd conduct soliciting money setting. ordinance of a a prohibits only permit. business without operation
San Francisco’s to its a right utilize as means to licensing power regulate businesses conducted within be its borders can scarcely disputed. “The that a requirement license first be obtained before a busi conducting ness or has activity been long recognized as valid exercise police (Sunset power.” Amusement v. Board Co. Police Commissioners 7 Cal.3d 72 496 P.2d This is Cal.Rptr. [101 principle embodied in Business and Code “The Professions section 16000: legislative bodies of in the incorporated cities exercise of their may, police power, for the otherwise, herein purpose regulation, as and not license provided, any kind of business not law carried by transacted and on within prohibited of their limits . . and rates of jurisdictions, . fix the such license may ,”16 Code, fee . (See . . also Gov. 37101 legislative body § [“The [local] license, may for revenue and and fix tax every the license regulation, upon, kind of lawful .”].) business in the . . city transacted even the
Significantly, Lancaster court validity local recognized licensing to state law. regulation areas related conduct covered That court cited with the Court of in Robins v. approval County decision Appeal 853], Los Angeles 248 1 which had Cal.App.2d Cal.Rptr. of rejected fee for preemption attack on ordinance license requiring establishments that employing distinguishing waitresses. In ordi topless court, nance from the ordinance before the Justice Peters massage parlor noted, fact that have the criminal of sexual been activity aspects “[t]he the state does not not collect license preempted by mean counties fees for the right (Lancaster, to sex.” engage lawful activities relating 809.) 6 Cal.3d at p.
This here. An well reasoning may very escort service applicable involve “lawful activities of state ex- sex.” No relating provision law plicitly limits the of a implicitly ability regulate through municipality its licensing such businesses. power operation (Bus. similarly provision 16A worded recognizes licensing power counties. & Prof. Code, 16100.) § v. Katrinak In People Indeed, has so concluded. one Court of Appeal considered 869], the court Cal.App.3d inwas licensing bureau” whether a “escort Angeles County Los Lancaster on the Relying conduct. conflict with state law sexual regulating ordinances, the licensing statutes court’s distinction between criminal for a lawful scheme “a licensing was Court of held the ordinance Appeal (Katrinak, supra, not business and was preempted. enterprise” 154-155, fn. pp. the ordinance Unlike correct. The Katrinak court’s conclusion appears *19 Lancaster, the sex members of opposite between which made contact bodily individ- criminal, conduct between the ordinance does not proscribe present and es- Rather, operators service by uals. it a escort only requires permit customers. by corts and the of information disclosure are, as the services Moreover, of escort even that the assuming majority in sex- told, engaged a front for individuals board of only was supervisors to city render the powerless fact does not related criminal this activity,17 this A few illustrate point. license such services. cases (1969) 275 Beverly Cal.App.2d Harriman Hills City Consider of consti- There, the 1421], the court upheld 35 A.L.R.3d or operate to advertise of an ordinance a tutionality police permit requiring revealed the council city a before Testimony service. telephone answering confidential to that were often privy individuals such services employed by knowledge and and of subscribers information such as the comings goings it ordinance, found the council the of their affairs. In personal enacting “ hazards of from the citizenry of its necessary well-being ‘protect[] ” of the service the operation a harmful even though potentially enterprise,’ “ 921.) (Id., at p. . . . .’” involved inherently objectionable itself ‘nothing enforcement to enjoin trial court’s refusal The Court of affirmed the Appeal “ ‘in- were ordinance, that there finding of the the trial endorsing judge’s or to illegal purposes be used for herent in that could dangers [the service] 921-922.) (Id., facilitate immoral activities.” pp. EWAP, Angeles, supra, Los Inc. v.
Even closer to home is
of
requir-
There,
a municipal
the court considered
179.
of
Chief
ordinance.
regarding
proposed
17The board heard from three individuals
urging
to the board
letters
Murphy
Mayor Dianne Feinstein submitted
Police Cornelius
and
vice crimes division
head of the
approval
Captain
Philpott,
of the law.
Diarmuid
that
All three stated
committee.
city’s police
the board’s finance
department,
testified before
including prostitution,
activity,
criminal
escort
often serve as a front for serious
services
the ordinance
theft,
emphasized that
Captain Philpott
battery.
Murphy
and
Chief
and
assault
eventually reduce
would
investigation
prosecution
of such activities
would aid
services,
greatly reduced.”
will be
“illegal
types
services
police
the need for
since
of escort
ing permit
arcade
concealed or
operate
picture
and prohibiting
par-
tially enclosed picture booths. The Court of
found that the
Appeal
purpose
of
ordinance was not the
lewd
under the Penal
conduct
regulation
Code, which would
been
“to
clearly
regulate
have
but rather
preempted,
operation
so that
not invite or
picture arcades
their
does
operation
Thus,
encourage violations of state law.
no
more constitutes
provision
regulation
sexual activity than does an ordinance
full
requiring
lighting
(Id.,
streets.”
at p.
Dicta in
re
In Holmes
These cases of to recognize need local address legitimate government problems generated be in- may business involvement activities that health, imical to the safety community. Obviously, every and welfare of the is “The municipality state in its law deals with all of its unique. territory and all of its . . . people. exactions which it prescribes operate upon state, rural, often, urban it often people and but and does may that the not be happen which the state sees fit to requirements impose to meet adequate the demands so that of densely populated municipalities; it becomes and even to add to state proper necessary municipalities regulations (In their re provisions to adapted special requirements.” Hoff- man 155 Cal. 118 P. reason,
For this a determine local governmental body may properly fosters, that particular and an environment business from profits provides
299 into not transformed for activities state law. An ordinance is proscribed by licensing a statute uses its city power crime because the prohibiting simply certain businesses. Most with discourage illegitimate activities associated of state laws the enforcement licensing ordinances have a direct on impact health, welfare of state which have been safety enacted to preserve and local municipality power citizens. This fact does not deprive to enact them. addition,
In it seeks to an ordinance not because simply preempted on alleviate the burden that local enforcement of law imposes police state ante, and other is a sound basis (See officials. fn. That city objective for local (See, Miller v. legislation. e.g., Murphy
337, 342 state- Francisco ordinance requiring 740] [San licensed customer’s pawnbrokers finger- transactions verify by taking held valid addition prints or other identification requiring photographic to state add to those requirements, merely since . . . regulations “[t]he minimum detection of crimes requirements as a means to further aid the theft, and cannot be said to have local authority regulate”]; surpassed Butler, People [rejecting Cal.App.2d Supp. attack on preemption intoxicating ordinance prohibiting consumption beverages conduct “could well constitute public places, noting such a . . . police problem, gath- when we consider such particularly public as a mall into the ering place where numbers of the large congregate people Commissioners, cf. evening”]; Sunset Amusement Co. v. Board Police supra, Cal.3d at license fn. 1 the denial of a business [upholding for the rink, of a the reasons operation local roller as one of noting skating *21 the denial numerous that “the has required operation premises disturbances.”].) man-hours and police efforts to and control prevent major It is true infor- that the disclosure of ordinance present requires mation which will no criminal activity, doubt aid in police investigating in the especially may area of conduct that and other sex-related prostitution addition, arise in connection with the In of such services. operation of an con- granting escort service the absence of is permit dependent upon victions for sexual raise offenses. While these of the ordinance aspects other constitutional not resolve at issue this court does questions—an this afford no It time—they basis for is preemption. significant ordinances in disclo- upheld Army and Harriman contained similar Gospel sure and on held unconstitutional disqualification were not provisions, yet (See at preemption grounds. also Miller v. Murphy, supra, 342.) p. reasons,
For these
it
escort service
cannot be said that San Francisco’s
covered
involves a
that is either
subject
partially
completely
ante,
Hubbard,
state
by
(See
293;
law.
re
In
Under test, the third Hubbard it is clear that the not “of is such subject a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs (62 benefit to the possible Cal.2d municipality.” at p. The legislative also some on this history provides guidance ques- tion. As 21, 1981, reveals, Chief letter of Murphy’s May to the there mayor have been several instances where escort committed service have employees Thus, thefts against tourists. the ordinance well have a may very positive on the impact “transient citizens of the state” since it a means for provides identifying in the event criminal suspects to have occurred activity alleged while escort Moreover, services were being provided. any negative impact occasioned by of time period to secure an escort service necessary per- mit before in the engaging business is shared transients and residents of alike. city final
Appellants’ advanced fash- preemption argument, only summary ion, is that the ordinance is because it em- preempted attempts regulate ployment agencies law, and the both of which are matters exclu- practice sively Code, state (Bus. concern. & et Prof. seq. [employment § agencies]; et contention lacks merit. seq. [attorneys].) § This The Employment (Act) Act Agency is contained Business Profes- sions Code section 9900 et The Act seq. requires employment agency *22 Services, procure license from the Bureau of which is under Personnel the jurisdiction (Bus. of the & of Consumer Affairs. Prof. Department Code, 9920, §§
An employment is defined in as a business agency pertinent part “which offers, procures, or to or promises, employment attempts procure engagements for or others for or which employees “provides] employers,” employment or where a fee or other valuable consideration is engagements exacted,” service, bureau, club, or “[a]ny resumé person, organization, service, service, offers, or employment which . . . as one its counseling will who any main for person or to objects purposes, employment procure . . . services, paying main object person its . . . where the pay Code, 9902, (a) (b).)& subds. (Bus. & Prof. is to secure employment.” § em- as also qualify Labor contractors and services employment counseling (d).)18 {Id., (c) at subds. & under the Act. ployment agencies employees The function of an is to agency put prospective employment is The agency’s goal in touch with and vice-versa. prospective employers, will compensate an where the employer foster employment relationship That cannot rea- on a rendered. basis for services employee continuing service, nor can its definition be said to be the of an escort sonably purpose be so construed.
There are three qualifies as to an escort service possible arguments why First, as an service “pa- under the Act. an escort “employment agency” tron” is an for whom the service “employer” attempts pro- procures Code, 9902, (Bus. (a).) cure & Prof. subd. “employees.” § escort, to establish Presumably, an is not seeking seeking patron be The fact that an escort employment might frequently relationship. called does not trans- upon escort services for a perform particular patron form the service into an than a law firm or more employment agency any medical when a satisfied is transformed into an group agency employment customer an extended utilizes the services of a over particular practitioner period.
The second is that an escort service is an argument agency employment virtue of its status as a “labor contractor.” While this argument merit, have technical it by no means compels finding preemption. who,
The Act a fee or defines a “labor contractor” “any as person, to, other services compensation, an individual to render employs personal for, Code, of, or under the (Bus. direction a third & Prof. person.” § However, (c)(1).) who, subd. sala- such a “in addition to wages person ries, taxes, in- federal pays social state and federal security unemployment surance, carries . . and sustains respon- workers’ insurance . compensation to, for, for the sibility acts of his or her while services rendering employees of, or under the definition. direction third from this person” excepted {Id., (c)(4).) subd. (Stats. legislation 18The first enacted in 1913. regulating private employment agencies was 515-521.) agency” was seq., “employment ch. pp. et The definition of § *23 {Id., 515.) amended part legislation. Although
enacted as of that the definition has been at times, original language. several it has retained much of the to, for, Escorts are usually “to render services or employed personal of,” Therefore, under the direction that service. it is patrons possible an escort service would a “labor contractor” under the operator as qualify (c)(1). definition subdivision
Since this appeal arises from the denial of a preliminary injunction, record present contains no evidence as to how the schemes of compensation most escort services are structured. that It is some services possible escort, permit compensation to the extract a fee directly by patron for having arranged and none of the amen- particular outing, provide circumstances, ities noted in the Under such above. those exception quoted a service may technically constitute an under the Act.19 agency employment
Even an escort service would be assuming considered employ Act, ment agency within the be necessarily ordinance would not present Hubbard preempted. teaches that will be found where implied preemption matter subject has been to or covered state law as leave partially fully by Hubbard, no room for local (In re regulation. 62 Cal.2d Clearly is not the case here. The limited purpose Employment is, likelihood, Act Agency in all to job seekers protect prospective ordinance, hand, The employers. escort service to on the other seeks reg ulate businesses some of which have been associated with criminal conduct. The state’s interest ac ensuring legitimate employment agency practices Therefore, commodates fully this distinct local concern. the ordinance is not in conflict with state law.
Appellants’ additional service ordi- contention is that the escort nance impermissibly regulates the of law. practice Appellants’ argument, made in with conjunction their challenges, overbreadth vagueness that the ordinance can who be construed to reasonably attorneys apply result, in the engage practice law. This claim is without merit. As a preemption argument on this fail. must likewise point 19The argument by third is that virtue of employment agency an escort service is an (Bus. procures fact that it attempts procure & Prof. “engagements” for “others.” Code, (a).) argument requires subd. the term § This the court to determine whether “engagements” may reasonably encompass arrangements provide services that escort patrons. escorts and escort service which, only escort services be because interpretation affected such an would those (c)(4), exemption in Business and do not Professions Code section subdivision (c)(1). come within particular the more It definition of “labor contractors” in subdivision services, would require- be anomalous to having hold that such the detailed set of satisfied (c)(4) ments in neverthe- to-qualify exemption coverage, subdivision the Act’s are from reason, (a). reasonably less included under be subdivision For this an escort service cannot said to be in “engagements” the business for “oth- procuring attempting procure ers.” *24 the regulate It is well established that not governments may practice local law, under the State of such a matter of state concern activity since is purely Code, (Bus. Baron v. Los Bar Act. & Prof. 6000 et In seq.) § of (1970) 2 42 A.L.R.3d Cal.3d 535 P.2d Angeles ordinance 1036], this court an requiring reviewed the of constitutionality An advocate was de- the of legislative advocates.” registration “municipal “ fined of to influ- any as who was hired ‘for the person attempting purpose 537.) ence action Baron (Id., the on . . . at was legislation municipal who attorney agencies. clients before local administrative represented of his the law and did not take Many activities were confined to of practice of the form could not be enforced He claimed that the ordinance lobbying. since it interfered of with the exclusive right regulate practice state’s law. court held
This extent that it regulated ordinance was to the preempted of law before The court was care- practice governmental local agencies. ful to note that the State insofar as regulates “only they Bar Act attorneys act—i.e., are law’ in a ‘practicing under the services performing represen- tative in a manner which would the unauthorized capacity constitute practice (Id., of law if performed aby 543.) at Such includes layman.” practice “ ‘ advice “legal and the legal counsel instruments preparation ’ ” secured,” contracts are “the well as resolution legal rights as “ of legal questions” which of a ‘reasonably demand the trained application ” (Id., mind.’ legal pp. No provision escort or implicitly reg- service explicitly who, ulates practice law. An “escort” for any is defined as person consideration, or other money with may others “accompan[y] consort[] [or] 1074.1, about any place (§ or within public any quarters.” resort private (b).) subd. Even a broad of that be reading reasonably definition cannot said attorneys include of law. engaged practice It doubt is no course of the quite lawyer- common for lawyer during client resort” relationship client to a “accompany” “place public such as a restaurant the lawyer or social club. The client also for may pay his or her time such an as well of the meet- during outing, expenses as the However, circumstances, even ing. in such that the is lawyer it is rare paid Rather, it providing client with is far more company. likely social that he she during advice paid providing legal meeting. social
rendering legal services which involve an occasional meeting in a one public place does not into attorney-client relationship transform of “escort” and the ordinance. those terms are “patron” as used
The same if the reasoning “consorting” even applies “accompanying” “within takes office or the place any lawyer’s such as the private quarters” *25 client’s to enable business. The reason for such a is place meeting usually attorney advice. The provide legal attorney paid performing that service doubtful that rather than for with the client. It is socializing most with a client or without lawyers fees accept legal solely socializing services in a advice and performing legal representative capacity, giving counsel, or demand the resolving legal reasonably appli- questions (Baron legal Angeles, supra, cation of a trained mind. v. Los Cal.3d 543.)20 at pp.
IV. San to the Francisco’s escort service ordinance is state law preempted 1074.22, (§ extent it escorts from in criminal conduct prohibits engaging (A)) (§ 1074.23). subd. In all from and such conduct aiding abetting other of this ordinance is not in conflict with the laws respects, general state. whether,
Since it is determine that the Court of first appropriate Appeal issues, on the in remaining the trial court abused its discretion denying the cause is retrans- appellants’ application for preliminary injunction, District, ferred to the Court of Two. (Tay- First Division Appeal, Appellate ante, 895; lor Union Pac. R.R. 16 Cal.3d at see Corp., supra, 290.) Each side shall bear its own costs this portion appeal. * Broussard, J., Lewis, J., Lucas, J., Kaus, J., J.,† and con- Reynoso, curred.
MOSK, J., and in the majority concur Concurring Dissenting. generally but I I opinion, dissent from its order of retransfer to the Court of Appeal. While it have ventilated in might been to have all the issues preferable in the the entire matter is before us prior proceedings Court of Appeal, now. In the unnec- interest of and to economy, litigants judicial spare time essary and we and thus judgment should render definitive expense, terminate this finally case. filed in the same ordinance was lawsuit was this adopted After rather than
year. four are entitled to a final years judgment parties practice 20If it were of law but rather lawyer engaged established that a were not in the she, individual, ordinance, required any in the conduct would be described he or like comply appellants’ other permit requirement, assuming passes with the it muster under claims. * assignment by the Chair- Supreme sitting Retired Associate Justice of the Court under Council, person of the Judicial Assigned by Chairperson † of the Judicial Council. mere in the order that will additional temporizing require proceedings
Court of another for review in this court. Appeal perhaps petition for a was denied November 1985.
Appellants’ petition rehearing Grodin, J., did not therein. participate