164 Cal. App. Supp. 3d 1 | Cal. App. Dep’t Super. Ct. | 1984
Lead Opinion
Opinion
On May 4, 1982, misdemeanor complaints were filed against the defendants alleging a violation of section 103.101(i) of the Los Angeles Municipal Code, which offense was alleged to have occurred on March 15, 1982. Following a hearing the court sustained defendants’ demurrers in which the constitutionality of the ordinance was challenged. The People have appealed.
Section 103.101(i) of the Los Angeles Municipal Code provides: “Visibility of Interior. The permittee shall not maintain any picture arcade unless the entire interior of such premises wherein the pictures are viewed is visible upon entering into such premises. No partially or fully enclosed booths or partially or fully concealed booths shall be maintained.” The trial court sustained the demurrers based upon three grounds: (1) that the ordinance affects an individual’s right to privacy in that a person is foreclosed from viewing sexually explicit movies in the privacy of an enclosed booth and, in addition, no rational basis exists for regulating masturbation in the privacy of an enclosed booth since such conduct is no longer illegal; (2) that the economic impact of the ordinance will be to reduce the number of booths that a given location could operate to an unconstitutional degree; and (3) that the words of the ordinance were vague in that it was uncertain what type of a booth and what place for the booths is required by the ordinance.
On appeal the prosecution contends that the ordinance constitutes a valid exercise of the police power to regulate the interior visibility of arcade booths and that the possibility of some adverse impact upon the economic operation of an arcade or upon the right of privacy does not foreclose exercise of the police power in the manner attempted under section 103.101 (i); and that the ordinance is not unconstitutionally vague. We agree.
In DeMott v. Board of Police Commissioners (1981) 122 Cal.App.3d 296 [175 Cal.Rptr. 879], and EWAP, Inc. v. City of Los Angeles (1979) 97 Cal.App.3d 179, 188 [158 Cal.Rptr. 579], the Courts of Appeal upheld on First Amendment challenges section 103.101(i) as a content-neutral reasonable regulation of the time, place and manner of protected speech. In EWAP, supra, the court observed that the regulation was sufficiently justified if it was within the constitutional power of the state, if it furthered an important
“That governmental interest is unrelated to the suppression of free expression and the requirement that the interior of the booths be visible does not restrict First Amendment freedoms. There is no restriction on either the content of the pictures or their dissemination.” (EWAP, supra, at p. 190.) Thus the court held that the ordinance constituted a reasonable exercise of the city’s police power. (Ibid.) In DeMott, supra, 122 Cal.App.3d 296, while recognizing that operation of a motion picture arcade is an activity protected by the First Amendment, the Court of Appeal stated: “No restriction is imposed upon access to the arcade, nor the content of the film. The ordinance merely requires conformity to its provisions for a visible interi- or.” (Id., at p. 302.) Since EWAP had already approved the ordinance as a legitimate exercise of the police power, the court in DeMott held that the ordinance as applied to respondents’ business was unobjectionable.
The court further observed: “Even if respondents are engaged in activity protected by the First Amendment, they are not ‘immune to regulations which do not impair his exercise of his constitutionally protected rights [citation].’ (People v. Perinne, supra, 47 Cal.App.3d 252, 257 [120 Cal.Rptr. 640].)” (Ibid.)
Relying on Weaver v. Jordan (1966) 64 Cal.2d 235 [49 Cal.Rptr. 537, 411 P.2d 289], in which the California Supreme Court invalidated a law enacted by referendum prohibiting pay television on the basis that the state and federal constitutional guarantees of freedom of speech and press protected the means for their expression, defendants urge that the ordinance “enacts a medium ban without the requisite establishment of a ‘clear and present danger.’ ” They argue that the ordinance’s requirement of visibility from a single entrance to such premises eliminates the availability of many film titles to the viewing audience by reducing the number of display machines, makes arcades “economically infeasible, thus directly impairing dis
Defendants claim that the development of a factual record in the case at bench distinguishes the present case from the Court of Appeal decision in EWAP, supra, 97 Cal.App.3d 179. Defendants overlook the well-established rule that a demurrer lies to challenge only the pleadings on their face; evidentiary matters are therefore not properly presented in support of, or in opposition to, a demurrer. (People v. Williams (1979) 97 Cal.App.3d 382, 387-388, 391 [158 Cal.Rptr. 778].) Accordingly, the trial court erred in considering the evidentiary showing made by the defendants and the People in ruling upon the demurrer, which presented only an issue of law. (Id., at p. 391.)
At. oral argument defendants urged us to construe their demurrer as a motion to dismiss and to consider the evidence presented below as supportive of such motion; the People did not stipulate that their appeal be determined on this basis. In the absence of a stipulation, we believe that it would be inappropriate to regard the order appealed from as one granting a motion to dismiss.
Defendants also urge that to be valid under the First Amendment the incidental restriction on free expression must be no greater than that essential to further the important or substantial governmental interest and that the ordinance fails to satisfy this requirement. On this point they urge that the point of visibility need not be at the entrance of the arcade but could be established from any aisle space, or in the center of the room, thereby apparently making many more viewing machines available; they further urge that the purported need for visibility conflicts with the use of multiple
We question whether such alternative procedures would be any less intrusive than that which the city council chose. In any event, these contentions are properly addressed, not to this court, but to the city council which enacted the ordinance in question. Under the police power a municipality may impose regulations upon the construction and maintenance of business premises reasonably necessary to protect the health, safety and general welfare of the business’ patrons and other members of the public. “Every presumption favors the reasonableness of a legislative enactment.” (Brix v. City of San Rafael (1979) 92 Cal.App.3d 47, 50 [154 Cal.Rptr. 647].) Courts should not set aside or disregard the legislative body’s determination of a need for the exercise of a police power regulation and the type of regulation necessary to meet the need “ ‘unless the legislative decision is clearly and palpably wrong and the error appears beyond reasonable doubt from facts or evidence which cannot be controverted, and of which the courts may properly take notice.’” (Antonello v. City of San Diego (1971) 16 Cal.App.3d 161, 167 [93 Cal.Rptr. 820]; see also Brix v. City of San Rafael, supra, at pp. 50-51.)
Unlike section 103.101(g), prohibiting the showing of pictures between 2 a.m. and 9 a.m., held by our Supreme Court to be violative of the free speech provisions of the federal and state Constitutions (People v. Glaze (1980) 27 Cal.3d 841 [166 Cal.Rptr. 859, 614 P.2d 291]), the ordinance before us does not prevent customers and others from exercising the right to view motion pictures in arcades and thus does not involve even the incidental infringement of First Amendment rights. That the ordinance may impose an economic burden upon arcade operators, as defendants argue, does not in itself constitute a basis for finding First Amendment invalidity. (Antonello v. City of San Diego, supra, at p. 167.) Furthermore, defendants have not shown that the means selected were “palpably erroneous” nor the ordinance’s long-term impact, if any, upon those who may wish to view the films. (Cf. People v. Glaze, supra, at p. 847.) Finally, even assuming arguendo that the ordinance does incidentally infringe First Amendment rights, we hold that the ordinance meets the constitutional criteria applicable to regulation of commercial speech: The ordinance implements a substantial governmental interest in deterring offensive and potentially criminal conduct, directly advances that interest, and reaches no further than necessary
Defendants assert that People v. Glaze, supra, 27 Cal.3d 841, EWAP, supra, 97 Cal.App.3d 179, DeMott, supra, 122 Cal.App.3d 296, and People v. Adult World Book Store (1980) 108 Cal.App.3d 404 [166 Cal.Rptr. 519] are not controlling because the ordinance violates the California right of privacy under article I, section 1 of the state Constitution. They argue that if under Pryor v. Municipal Court, supra, 25 Cal.3d 238, a person cannot be prosecuted for conduct which is not offensive to another, then one may with impunity engage in such conduct in an enclosed movie arcade booth and that the government “may not prevent the right from being exercised by prohibiting businesses from establishing and providing enclosed booths for this purpose.”
Defendants argue that the ordinance is unconstitutionally vague. We disagree. Whenever possible courts are to uphold the constitutionality of statutes (In re Kay (1970) 1 Cal.3d 930, 942 [83 Cal.Rptr. 686, 464 P.2d 142]), and are to give statutes a commonsense interpretation. (Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [110 Cal.Rptr. 144, 514 P.2d 1224].) As we have noted, the intent of the city council in enacting section 103.101 (i) was to prohibit the enclosure of booths so as to discourage violations of law and to protect patrons of movie arcade establishments from offensive, dangerous, and unlawful conduct. (See EWAP, supra, 97 Cal.App.3d at p. 191; DeMott v. Board of Police Commissioners, supra, at p. 301.) To this end the section establishes two
Defendants’ contention that the ordinance is preempted by state law is likewise without merit. The statute does not create a new standard of sexual conduct nor does it purport to criminalize sexual activity which is not criminal under state law. (EWAP, supra, 97 Cal.App.3d at p. 191.) Nothing in Brix v. City of San Rafael, supra, 92 Cal.App.3d 47 nor People v. Glaze, supra, 27 Cal.3d 84 prohibits the city council from enforcing by criminal sanctions the licensing provisions with respect to motion picture arcades. As indicated, nothing in the statutory scheme of which section 103.101(i) is a part, creates new violations for sexual conduct not criminal under state law or any new standard for sexual conduct. (EWAP, Inc. v. City of Los Angeles, supra.)
The order of dismissal is reversed. The matter is remanded to the trial court with directions to overrule the demurrers and to proceed according to law.
Cooperman, J., concurred.
In asserting the California constitutional right of privacy defendants correctly concede that the privacy protection of the United States Constitution is less broad. (See City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 130, fn. 3 [164 Cal.Rptr. 539, 610 P.2d 436, 12 A.L.R.4th 219]; People v. Privitera (1979) 23 Cal.3d 697, 702, fn. 2 [153 Cal.Rptr. 431, 591 P.2d 919, 5 A.L.R.4th 178].)
In Privitera, supra, the Supreme Court applied a rational basis test in resolving the privacy versus police power issue before it. The court noted that the United States Supreme Court applied the same test in resolving privacy claims under the federal Constitution and recognized the broad police powers of the states in the area of health and safety regulation.
Concurrence in Part
Although I am in general accord with the majority’s disposition with regard to the issues of freedom of speech and statutory vagueness, I am compelled to dissent from the majority’s holding that Los Angeles Municipal Code section 103.101 (i) does not violate article I, section 1 of the California Constitution.
The court in both White and Adamson, based upon ballot arguments in favor of adoption of article I, section 1, held that an incursion into the right of privacy “must be justified by a compelling interest.” (27 Cal.3d at p. 131; 13 Cal.3d at p. 775.) In light of the expansive interpretation afforded article I, section 1 by the California Supreme Court and that court’s insistence that a compelling interest be established in order to justify any incursion into the right of privacy, one must inquire what the interest of the City of Los Angeles is in requiring that movie arcade booths not be “partially or fully enclosed” nor “partially or fully concealed” and that the interior of arcade premises be “visible upon entering into such premises.” At the hearing on the demurrer the prosecution argued that the ordinance served the following purposes: First, the ordinance discouraged violations
On this point I find persuasive the California Supreme Court’s decision in People v. Glaze (1980) 27 Cal.3d 841 [166 Cal.Rptr. 859, 614 P.2d 291]. In that case the court invalidated another subsection of the ordinance before this court which required the closing of movie arcades between 2 a.m. and 9 a.m. and prohibited customers and other visitors from being present during those hours even if the movie arcade machines were not being operated. The court held that the subsection involved more than the incidental infringement of freedom of expression and could be upheld only if the city were able to prove that the ordinance was “narrowly drawn and necessary to a legitimate governmental interest.” (27 Cal.3d at pp. 846-847.) As in the instant case, the city contended that the closing of picture arcades between the hours specified was a constitutional exercise of the city’s police powers because “the closing helps prevent masturbation during those hours when law enforcement problems are greatest.” The court rejected this argument and noted that, although this governmental purpose may be laudable, the means selected for its accomplishment “fail to meet the strict standards required by the Constitution. Rather than dealing directly with the objectionable conduct, the ordinance curtails the protected interests of persons engaged in First Amendment activity .... Arguably, crime in the streets could be reduced by prohibiting all persons from going out in public. However, when fundamental liberties are at stake, the test in a free society is whether there are ‘less drastic means’ available to accomplish the government’s purpose.” (Id., at p. 847.)
Holding that the closing-hours requirement of the subsection was over-broad, the court rejected the city’s assumption that because “masturbation has occurred at some picture arcades in the past, it is necessary to restrict the hours of all such businesses in the future. ” People v. Glaze, supra, 27 Cal.3d at p. 849.) (Italics in original.) The court noted that the ordinance “fails to regulate only those arcades that have been or are likely to be havens for masturbation” and that “no distinction is made for those picture arcades which provide a manager to supervise and patrol the premises or have well lighted booths open to public view. Such an undifferentiated approach is not sufficient to limit the right of free expression.” Finally, the court observed: “Even if the First Amendment activity which the government seeks to regulate is of little value, the regulation must be necessary and it must focus narrowly on the abuse sought to be remedied.” (Ibid.)
My reading of People v. Glaze, supra, leads me to conclude that, just as the closing-hours requirement deprived all persons of their right to exercise their First Amendment rights without sufficient justification, so the subsection before us curtails every citizen’s right of privacy in exercising their First Amendment right to view motion pictures exhibited in motion picture arcades by means of an ordinance which fails to provide less drastic available means to accomplish the governmental purposes ostensibly underlying section 103.101 (i). By requiring patrons of arcades to be observable from the point of entry of the arcade and to require that patrons view such motion pictures in public, or not at all, the subsection not only chills the exercise of First Amendment rights but provides a means for surveillance and data collection which article I, section 1 was specifically intended to prevent. In
Petitions for a rehearing were denied January 8, 1985. Shabo, J., was of the opinion that the petitions should be granted.