*1 Dist., Jan. G032058. Fourth Div. Three. [No. 2004.] al., et THANH THUY VO Plaintiffs and Respondents, al., CITY OF GARDEN GROVE et Defendants and Appellants.
Counsel Woodruff, Smart, & John R. Shaw and M. Lois Bobak for Defend- Spradlin *5 and ants Appellants.
Ronald Taimo for Plaintiffs and Respondents.
Opinion IKOLA, of Garden Grove enacted an ordinance (city) The City J. (CUP) to obtain a conditional use to continue “CyberCafes” requiring permit business, owners and their Several regulating CyberCafe operations.1 of the ordi- contending (plaintiffs) sought preliminary injunction, portions the First Amend- nance free infringed speech privacy rights protected I, and article sections 1 and 2 of the ment of the United States Constitution from enforc- California Constitution. The court enjoined city preliminarily ordinance, and the We conclude of the ing CyberCafe city appeals. portions discretion enforcement of enjoining the court abused its by preliminarily when it but exercised its discretion regulations, operational appropriately we affirm the Accordingly, enforcement of the CUP enjoined requirement. it order in and reverse in part. part
FACTS AND PROCEDURAL BACKGROUND 31, 2001, Polisar, memorandum of December M. chief city’s By Joseph in the number of manager growth advised police, rapid the number of in the In the of two city. space years, CyberCafes operating memoran- had risen from three to a total of 20. Polisar’s these establishments in or near four dum detailed seven incidents of criminal activity occurring Five of the seven different the last three months 2001. CyberCafes during incident, incidents involved The most recent gang activity. occurring day written, male before the memorandum was was the murder of 20-year-old he in front of a Polisar also CyberCafe. reported while was standing during were children at these establishments finding schoolage officers patrol hours, access he concern about minors able to school expressed Police Web sites. Polisar concluded: dangerous inappropriate “[T]he regulating that it is vital that the enact an ordinance believes Department ” the use of Cafe’s ‘Cyber [Vc].’ an interim emergency by enacting council responded quickly ordinance, new established a moratorium on any CyberCafes which memoran- restrictions on existing CyberCafes. By certain operating imposed 18, 2002, additional incidents of criminal dum dated June Polisar reported *6 and which had occurred while which he associated with CyberCafes activity, ordinance. Also this on the draft of a new working permanent the was city an in the city, apparently date 22 CyberCafes operating Polisar reported July moratorium. On emergency the enactment of the increase of two despite 2573, 9, 2002, ordinance No. its first attempt the council city adopted 1 Internet “CyberCafe” provides an that CyberCafe ordinance defines a establishment The “CyberCafe” synonymous a The ordinance also states that paying access to fee customers. Cafe,” Cafe,” “Cyber and a with a “PC “Internet Center]].”
431 ordinance, an effective date 30 with with a regulate CyberCafes permanent thereafter, 8, 2002. August days 2573, the owners of five the effective date of ordinance No.
Before action, 42 United (1) seeking damages filed this CyberCafes pursuant and Code section for the of rights, privileges States 1983 deprivation Constitutions, and state declaratory immunities secured the federal ordinance, the and a restrain- relief the concerning validity temporary order, enforce- and injunction against ing preliminary injunction permanent order on restraining ment of the ordinance. The court issued temporary 2002, cause, 7, at a and ordered the to show scheduled city hearing August 29, 2002, should not issue restrain- injunction for August why preliminary of the action. enforcement of the ordinance ing during pendency indicate all of the subse- the record on does not Although clearly appeal it no held on the hearing was quent proceedings, appears request 30, time, until that three of the injunction January By 2003. preliminary settlement, had dismissed their action as a result of a and the city plaintiffs 2591, had enacted ordinance No. ordinance No. 2573. substantially amending ordinance, In Chief connection with consideration of new Polisar updated 20, 2002, 23 his memorandum dated November this time report by reporting moratorium, CyberCafes calls city despite police activity “289 since June 2002.” were not Details these calls” “police activity provided in the memorandum.2
Ordinance No. was council on December 2002. passed 30, 2003, The on the but hearing injunction on preliminary began January dissenting opinion referencing interesting us for not parts faults “one of most record, survey problems surrounding which is a of the which . . . have had with cities them, cybercafes.” why problems, While we fail to understand or the lack of in other to address its jurisdictions city’s ability problems, should affect let us set record inherently “[tjhere straight. trumpets survey nothing The dissent this as evidence that ” cybercafes ‘gangs’ gang simply attractive about because “instances of violence are not to many surrounding cities point be found in table.” But the dissent fails to out already adopted regulations had similar to the Garden Grove ordinance. Most of other only CyberCafes jurisdictions, compared to Garden reported cities two or three in their Cerritos, (Anaheim, reported they CyberCafe 23. Eleven had at least one Grove’s cities Beach, Alamitos, Beach, Habra, Monterey Valley, Huntington Long Los Cypress, Fountain La Park, Walnut). (36 Orange, percent) daytime had a curfew for minors Four of Beach, Beach, Alamitos). (18 (Cypress, Huntington Long percent) and Los Two of the 11 (27 (Cerritos, Valley). percent) required the 11 required video surveillance Fountain Three of premises regulated employees required adult the number of supervision otherwise (Cerritos, Walnut). (73 Eight regulated operation the hours of Cypress, percent) Beach, Cerritos, Beach, (Anaheim, Valley, Huntington Long generally Cypress, Fountain Walnut). Orange, council could well have concluded from this evidence that these regulations activity CyberCafes. types operational were deterrent to criminal *7 a to allow the the court called recess parties before it was completed, achieved, and the hearing Settlement was not discuss settlement possibilities. 27, The court took the matter on 2003. eventually February was completed 2003, and, 21, its ruling “striking” on March issued under submission ordinance).3 (the ordinance CyberCafe portions for a CUP no later existing CyberCafes apply The ordinance required finding enforcement of this provision, than 2003.4 The court July enjoined unfettered discre- because it “allows it to be “constitutionally impermissible,” as challenge . . . and does not withstand tion in the issuance permits facially a restraint and is tailored and narrowly prior therefore] operates defective.” a special the ordinance limited hours of operation imposed
Portions of their school hours unless during accompanied parent curfew for minors minors access restricting The court guardian. enjoined provisions of minors found restricting “presence hours. The court during school intent of no to the declared legislative school hours bears basis during public during or guardian parent safety,” requiring presence public . . and not tailored.” narrowly burdensome . overly school hours “is the number of employees for also minimum requirements ordinance imposed licensed, uniformed security and required presence on premises, these The court Saturday evenings. enjoined provisions guards Friday the legitimate governmen- insufficient finding “justification accomplishing . narrowed.” sufficiently . . and safety tal interest CyberCafes of the ordinance requiring the court Finally, enjoined provision “an It found this requirement imposed maintain a video surveillance system. not sufficiently . . . and undue burden without adequate justification [was] narrow.”
DISCUSSION Review Standard of under an abuse of injunction an order granting preliminary
“We review confined, words, to a in other Review is discretion standard. [Citations.] by ordinance No. 2591. No. as amended consists of ordinance The “ordinance” Instead, 21, 2003, injunction. in the form of an March is not entered the court on order terms, Further, not, by limited the order is its of the ordinances. “strikes” certain sections order order as a parties treat this pending. But both period the action remains in duration to Proc., 904.1, (a)(6).) (Code subd. city appeals. Civ. injunction § from which the preliminary greater detail in our discussion challenged portions of the ordinance We describe the validity, post. their
433 ‘ whether the trial court abused its discretion in “evaluating] consideration two interrelated factors when whether or not to issue deciding preliminary The first is the likelihood that the will on the injunction. plaintiff prevail merits at trial. The second is the interim harm that the is plaintiff likely sustain if the were denied as to the harm the defendant injunction compared ’ ” ex (People to suffer were issued.” likely if preliminary injunction the. rel. Gallo v. Acuna 1090, 277, (1997) 14 Cal.4th 929 1109 Cal.Rptr.2d [60 596].) P.2d
But the ‘likelihood of on the merits’ factor prevailing depends “[w]here of law ... the standard of is not abuse of discretion review upon question law, but whether court correctly superior interpreted applied [the] Bank (Efstratis v. First Northern which we de (1997) review novo.” 59 667, 445].) 671-672 Constitutional issues are Cal.App.4th Cal.Rptr.2d [69 (State Ohio v. Barron 62, reviewed de always (1997) novo. 52 Cal.App.4th Here, 342].) 67 the likelihood of on the merits Cal.Rptr.2d prevailing [60 does law, because depend upon we asked to conduct a facial question review of the ordinance to determine whether it is constitutional. We conduct course, that review de novo. Of enforcement of a enjoining constitutional ordinance, ordinance, enforcement of an failing enjoin unconstitutional would also constitute an abuse of discretion within the usual formulation of the standard of review for or denial of a grant injunction.5 preliminary
1. Likelihood
on the Merits
Prevailing
Plaintiffs
the ordinance
challenge
on First Amendment
primarily
grounds. We have no doubt
the ordinance
First Amendment
implicates
activities.
their
CyberCafes
customers with access
to the
provide
Internet,
e-mail,
users
to communicate
allowing
privately
acquire
Web,
vast amounts of
information
from the World Wide
and even
interactive
Commercial
play
games.
book
and distributors
publishers
(Smith
v.
have
been entitled
long
to First Amendment
protection
L.Ed.2d205,
Perrine v.
(1959)
215];
The fact that First Amendment rights Amendment are utilized on rights premises “That First analysis. reasonable from with a commercial entrepreneur compliance does exempt Court, (Burton supra, v. Municipal 68 under the regulations police power.” 684, or 690.) symbolized whether oral or written Cal.2d “Expression, time, conduct, . . . . or manner restrictions to reasonable subject place, that are without they justified of this kind are valid provided [Restrictions are narrowly that they reference to the content of regulated speech, interest, and that leave a significant governmental open tailored to serve (Clark v. the information.” channels for communication of alternative ample 288, Non-Violence (1984) U.S. L.Ed.2d Community Creative 468 293 [82 221, unrelated to 3065].) “A serves regulation purposes 104 S.Ct. neutral, effect on even if it has an incidental content of is deemed expression Racism (Ward v. Rock Against not others.” or but messages some speakers 661, 2746].) 781, L.Ed.2d 109 S.Ct. U.S. 791 “[T]he [105 . . . regulation ‘so as the long narrow is satisfied tailoring of requirement achieved less that would be interest government substantial promotes ” (Id. does not 799.) at standard the regulation.’ p. absent effectively “[T]his more time, burden may substantially or manner regulation mean that a place, interests.” legitimate to further the necessary government’s than is speech than broader (Ibid.) means chosen are not substantially But “the provided interest, not be ... will regulation to achieve the government’s necessary could that the interest government’s a court concludes invalid because simply (Id. alternative.” some less-speech-restrictive be served adequately p.
When, however, or regulation requires permission an ordinance license, First before engaging protected such as a or government, permit “ ‘ must be regulation activity, “precision Amendment however, unsupported adopt the dissent’s unnecessary analysis, to the wholly find it We cannot afford poor people “who the means which CyberCafes assumption connections)” often, gain freedom (or, very high speed internet who cannot afford computers library.” Our private printing press man’s CyberCafes poor “are the press, or that wealth. assumption about customer’s analysis independent ’ touchstone” and the therein standards set forth must be ‘susceptible [citation] ” Court, (Burton supra, 68 Cal.2d Municipal measurement.’ objective 684, 691.) of licenses fail to survive Ordinances issuance governing constitutional where administrative officials are excessive “granted scrutiny (Ibid.; see discretion whether to license.” determining grant deny Lakewood v. Plain Dealer Pub. Co. also 486 U.S. L.Ed.2d 108 S.Ct. the area of free a licensing expression 2138] [“in statute unbridled in the discretion hands of official or placing government constitutes a restraint and result in agency may prior censorship”].)
2. Balance Hardships *10 An evaluation of the relative harm the to the or parties upon granting denial of a “(1) consideration of: the inad preliminary injunction requires (2) of other the equacy remedy; of the denial of degree injury irreparable cause; the will the the injunction status necessity preserve quo; [and] (4) the of degree adverse effect on the interest or interests of third (Cohen the v. Board of the will parties granting cause.” injunction of 277, 286, Supervisors 40 Cal.3d fn. 5 P.2d 707 Cal.Rptr. connection, 840].) In this another division of this court has held that of regulation business activities the incidentally affecting exercise of First Amendment rights does not automatically trigger finding irreparable Saloon, (Sundance Inc. v. City harm. San Diego, supra, Cal.App.3d 807, 814—818.) harm from enforcement will Irreparable not be recognized time, where the and manner restrictions on Amendment activities place First reasons, drawn and narrowly for adopted legitimate governmental (Id. where the restrictions are not otherwise at infirm. constitutionally p. The Challenged Provisions the Ordinance
We the above the to determine whether court abused its apply principles discretion when it found had established a likelihood of impliedly plaintiffs on the merits and the balance of in prevailing favor hardships tipped plaintiffs.
1. The Conditional Use Permit Is Invalid Requirement
Under the Ordinance Existing Zoning Section 5 of ordinance No. 25737 existing CyberCafes to for requires apply 31, 2003, a CUP no later than and waives the usual fee July city’s processing for such a Ordinance No. added 8.82 to the Garden permit. chapter Grove Code. 8.82 established Municipal Chapter regulations operation by Section 5 of ordinance No. 2573 was not amended ordinance No. 2591. described, post. some which are As relevant CyberCafes, CUP, however, of a the new section 8.82.030 of 8.82 requirement chapter that conditions the CUP can override the provides general imposed regulations established 8.82. the new section Specifically, Chapter in 8.82.030 states “In the event that use has been issued for a part: permit and the use conditions differ estab- CyberCafe permit regulations from thereto, lished under 8.82 or are in addition then the use permit Chapter over govern regulations.” conditions shall 8.82 In supercede Chapter short, established 8.82 do not bind regulations by chapter zoning attach to the administrator conditions to CUP. determining appropriate Thus, observe, net correctly as effect of plaintiffs “[t]he [section 8.82.030] to the regulations listed change [chapter suggestions zoning 8.82] he administrator which or she can use or not use.” issued, a CUP one turns To find the standards under which be may Code, which land governs section 9.24.030 Garden Grove Municipal use a CUP. including actions issuance of Section permits generally, 9.24.030, (D)(4)(b), subdivision “The shall part: hearing body provides use an for a conditional when information approve application permit substantiates submitted and/or applicant presented public hearing (ii.) That the at the findings: use location following requested [][]... [f] health, will not: affect comfort welfare Adversely proposed peace, [f] *11 area, of or the residing surrounding or working Unreasonably persons [][] use, with the or valuation of of other persons interfere enjoyment property site, of or vicinity located in the the or otherwise Jeopardize, endanger [f] health, welfare; a menace to or safety general constitute [f] [][]... when the submitted deny shall the information hearing body application and/or the to substantiate at fails such presented public hearing applicant findings.”8 likelihood their established a on the merits in facial
Plaintiffs
prevailing
to the CUP
of the ordinance. As our California
challenge
requirements
Court
“A
line of decisions has held
long ago
long
concluded:
Supreme
licenses to conduct
unconstitutional
ordinances
issuance of
governing
granted
First Amendment activities where administrative officials were
exces-
(Burton
to
or
the license.”
grant
sive discretion
whether
determining
deny
Court,
Burton,
691.)
In
the court reviewed a
Municipal
supra,
Cal.2d
to
licensing
operators
ordinance that
motion
required
picture
municipal
alia,
Inter
from the Board of Police Commissioners.
obtain a license
that ‘the
allowed the board to
a
if it finds
said
“deny
permit
ordinance
health,
convenience, good
not
safety,
will
with
operation
comport
peace,
hearing body” for conditional
zoning administrator
is identified as the
use
“[f]inal
(Garden
body”
permits,
“[ajppeal
planning
identified as the
commission.
Grove
and the
is
Code,
9.24.030,
(B).)
subd.
Mun.
§
”
morals,
(Id.
687.)
at
The Burton court
welfare of
general
public.’
p.
ordinance,
“that it does not
standards
finding
precise
invalidated this
provide
sensitive tools to be
when-
measurement—the
capable
objective
employed
692.)
(Id.
ever
Amendment
are involved.”
at
First
rights
p.
In
Plain Dealer Pub. Co.
L.Ed.2d 108 S.Ct. court high explained why that in a challenge govern- statute “vests unbridled discretion licensing (Id. 755) ment official. . . whether to at permit deny activity” p. expressive is allowed without the of first for and denied a necessity applying discretion, “First, license. the mere existence of the licensor’s unfettered restraint, with the intimidates into censoring coupled power prior parties their own even if the discretion and are never speech, actually power “Second, (Id. 757.) abused.” the absence of standards makes it p. express difficult to ‘as between a licensor’s denial of distinguish, legitimate applied,’ and its abuse of censorial Standards permit illegitimate power. provide that check the licensor allow courts guideposts quickly easily determine whether the licensor discriminating against disfavored speech.” (Id. at p.
Defendant the ordinance threat to either argues significant “does pose risks identified Lakewood Court.” The makes the dixit assertion no risk that an for a CUP will ipse simply applicant “[t]here somehow limit or otherwise censor internet access of its ... patrons order to make it more will be a CUP.” But the likely granted plain of the ordinance language does not assertion. The ordinance support city’s administrator, the issuance of a CUP authorizes the inter governing zoning alia, to if the deny fails substantiate issuance application applicant of the CUP will not welfare.” this “jeopardize general Surely type [the] “unbridled discretion” to a CUP intimidate the deny could well applicant, software filters to limit full access to the Internet to example, propose better administrator the would not persuade zoning CyberCafe proposed *12 the general welfare. jeopardize
The city also asserts it “has no control whatsoever over the websites ordinance, accessed cafes.” But it Under the by cyber does. patrons to zoning administrator has unfettered discretion in what conditions deciding when a CUP. The does not how or in what impose issuing city identify limited, standards, manner that discretion is and without objective zoning to restricting administrator retains the to software filters access power require Web site. any designated the CUP it has a construction to
Finally, city argues given narrowing to abide standards a to owners “who by granting agreed permit time, no evidence to manner But the record contains regulations.” place with agreements this assertion. The to settlement city points support actions, these are not agreements part who dismissed their but plaintiffs Also, to three in settlement the record. the conditions granted plaintiffs a facially construction” of “narrowing do not establish litigation reasonably unconstitutional permit requirement. a likelihood of on established prevailing
We conclude plaintiffs “The [zoning of the ordinance. merits with to the CUP requirement respect criteria decisions based on such ambiguous to make ability administrator’s] adminis [zoning of the community effectively gives welfare’ ‘general all, an on basis at including to make decisions any power trator] basis, (Dease v. regulation speech.” such as content-based impermissible 336, 344.) conclude (C.D.Cal. 1993) We also Anaheim F.Supp. that would be caused denial the interim harm to plaintiffs defendant if the injunction the harm to outweighs preliminary injunction as a to a unconstitutional facially requirement granted. Subjecting plaintiffs a far more serious the continued of their business is condition to operation to defendant of not than is the consequence consequence plaintiffs did The court businesses. existing able to a new CUP impose requirement of this portion enforcement enjoining not abuse its discretion preliminarily of the ordinance. to the CUP Is
2. Facial Challenge Requirement Plaintiffs’ TimeBarred Not the CUP facial challenge requirement contends city plaintiffs’ 65009, Code (c)(1)(B) of the Government section subdivision time barred review, aside, void, attack, annul the set or action any which requires “[t]o be amend a ordinance” zoning body decision of legislative adopt after the within 90 body days and served on legislative commenced 15, 2003, January it was not until argues decision. The body’s legislative of their application and authorities in support when filed points plaintiffs the issue of for the first time raised injunction, “[p]laintiffs preliminary valid,” “was not and the complaint was whether the CUP requirement the CUP challenge against requirement a constitutional amended to assert 25, 2573 became effec- that ordinance No. 2003.” Observing until February 2002, time mount a facial challenge asserts the on August tive barred Plaintiffs are not time We disagree. on November 2002. expired of the ordinance. from challenging portion *13 30, 2002, before days nine July filed on In the original complaint, face of the “the alleged No. plaintiffs date of ordinance effective unconstitutional, both are 2573], as well as its application, Ordinance [No. federal, reasons, to the fact state and for several but not limited including, face, that it is and overbroad on its that it is vague, ambiguous being applied that in its it restricts the of free right speech unequally, application communicate and disseminate ideas and information.” assembly designed to relief, In “the Ordinance is seeking alleged, declaratory plaintiffs 2573] [No. unenforceable, invalid and both on its face and as construed and applied restraining Defendants.” Plaintiffs for “an order imposing temporary prayed order, a and a Defendants injunction injunction against preliminary permanent manner,” . . enforcing . Ordinance and for a declaration [No. 2573] unconstitutional, “that the Ordinance and void its invalid on [No. 2573] face and or as to Plaintiffs.” applied
Thus, the did not limit to original challenge complaint plaintiffs’ of the ordinance. The entire ordinance was when specified parts challenged was filed. Under these are not complaint allegations, plaintiffs required seek relief from of the ordinance every part by way preliminary injunction pain time barred as to other when the case is tried on the parts merits. Plaintiffs choose those of the ordinance most may likely parts relief and reserve their on other to the qualify preliminary challenge parts time of trial on the merits. or contract Similarly, may surely plaintiffs expand seek, relief so preliminary relief is within long encompassed made in the allegations cites no that would complaint. authority forever limit to the made plaintiffs arguments in their first memorandum of and authorities filed with points their for a application restraining temporary order. The contention that are time barred from the CUP plaintiffs contesting is without merit. requirement
3. The Daytime Minors is Valid Curfewfor 8.82.020, Ordinance No. added (1) (2) section subdivisions to the Code, Garden Grove which establish restrictions on the hours of Municipal and the minors hours which on the operation during permitted premises minors, 8.82.020, With to the CyberCafe. hours for section subdivi- respect sion “Minors not enter or remain in a establish- provides: may CyberCafe ment on after 10 or between the of 8 a.m. and 3 any day hours p.m.; p.m. those during when the school within the weekdays system time and classes are jurisdiction being conducted. This open ['}[]... [][] restriction shall not when a minor is apply accompanied parent (with the guardian able to authenticate With guardian being guardianship).” 8.82.020, overall hours of respect section subdivision operation, a.m., “The hours of shall be limited a.m. provides: daily; to 7 operation wherein hours of shall be excepting Friday Saturday nights operation limited to 7 a.m. 2to a.m.”
440 minors of section 8.82.020 only prohibits
The court enjoined part hours on school- school CyberCafe during entering remaining from of the curfew curfew), and this is the (the only portion days daytime to the we limit our review Accordingly, on this argued appeal. provisions curfew. daytime to communicate curfew restricts the of minors ability
Because the daytime hours each locations seven consecutive during on the Internet at CyberCafe it is a reasonable to determine whether school we review this day, regulation noted, time, Amendment activities. As and manner restriction on First place, ante, time, on First Amendment and manner restriction a reasonable place, neutral, is narrowly if it is content activities is constitutionally permissible interest, alternative and governmental ample tailored to serve significant Community (See Clark v. channels for communication remain open. for Non-Violence, 293.) The court found the U.S. supra, Creative neutral, their Plaintiffs confine and we agree. to be content restriction i.e., daytime the restriction on assert to the second argument prong, tailored to serve a significant governmental minors is not narrowly access by interest. well concern for the and safety safety generally,
The city urges public interests served as the significant governmental of minors specifically, made recites earlier findings Ordinance No. 2573 the ordinance.9 “a ordinance that with the interim urgency council in connection city were occurring related activities gang number of crime significant ” “rea- and that known as commonly ‘CyberCafes,’ about certain businesses because time, were regulations” and manner “necessitated]” sonable place, by gang visited systematically continuously have been “CyberCafes when it Ordi- findings adopted made additional council members.” CyberCafes] number of patrons “A including: significant [at nance No. minors”; in and about of violence has occurred “A consistent pattern the Police locations”; has been documented activity “Gang CyberCafe businesses”; incidents “In two separate at a number of these Department connection with Cyber- were murdered in (12/30/01 6/08/02), & two minors at CyberCafe assaults have occurred “Numerous Cafe physical operations”; documented”; and have been shootings cases of . . . and two other locations herein time, and manner restrictions provided enactment of place, “The these crime activity measures to reduce potential will provide locations.” enforcing the any interest argue daytime curfew serves does Code, argue the Law, plaintiffs et Nor do seq. section 48200 Education Education Compulsory Monrovia (See Harrahill by state law. daytime preempted curfew is during minors school [citywide daytime curfew for
Cal.App.4th Cal.Rptr.2d 761 [128 552] respect to state law].) opinion no with Accordingly, express we by state preempted hours not preemption. *15 the stated need for recognize
We “courts should not too discount readily bodies in of laws even justifications by legislative expressed support (Sundance when incidentally those laws affect First Amendment rights.” Saloon, Inc. v. Diego, supra, San 807, Still, 213 we Cal.App.3d are cautioned “the deference a ordinary court owes to action any legislative vanishes when are threatened. ‘The rational constitutionally rights protected curbed, be connection between the and the evil to which remedy provided other contexts attack on due might legislation against support process ” Science Church v. (Spiritual Psychic City of grounds, will not suffice.’ 501, 225, 1119].) Azusa 39 Cal.3d 514 703 P.2d Cal.Rptr. [217 Without has a city substantial interest and in question, public safety, Sable Communications (See and well safety minors specifically. California, Inc. v. F.C.C. 115, 93, U.S. L.Ed.2d 109 Thus, 2829].) S.Ct. the issue we decide is whether curfew is daytime tailored narrowly to advance that interest. We conclude the daytime curfew constitutional muster as a passes tailored restriction that advances narrowly minors. city’s interest in safety well-being 20, 2002, Chief Polisar’s memorandum of November which was provided to the council in connection with city its consideration of ordinance 2591, No. “attract reported CyberCafes members and as gang juveniles and had patrons,” generated “289 calls since June 2002.” police activity The memorandum also told the council: “The Cafes have Cyber become a business of choice for non-territorial type members to gang congregate. chosen become an establishments informal turf for the gang members of communication, gang formal and by using informal methods of these establishments become known in the quickly gang community gang hangouts. members know which Gang businesses have been chosen rival members gang frequent. Unfortunately, members in presence gang Minors an environment where minors can have effects. present unsettling can be recruited into the be as witnesses to gangs, may exposed gang violence, or most severely, may become innocent victims violence. gang crimes has several documented where police department members gang have shot from the outside of Cafes into the business. . . . weapons Cyber Since the non-territorial members have chosen to use Cafes as gang Cyber their chosen business to violence is increased frequent, potential gang (Italics added.) these establishments.”
From the information concluded that minors provided, excluding from school hours would advance CyberCafes during its significant public interest in their That conclusion is reasonable. protection safety. Although believe their minor children are in school it parents presumably while session, are not in a direct to assert and control position supervision allow chief of if CyberCafes As noted police, school hours. during hours, that gang school during potential children on the premises minor increased, that minors as well as potential members will recruit minors is Thus, the “regulation violence. gang witnesses or victims of will become be achieved less interest that would government substantial promotes Racism, (Ward Against supra, v. Rock absent the effectively regulation.” tailoring” to meet the “narrow 799.) This is all that is required U.S. {Ibid.) requirement. *16 are not substan
Further, the interest city’s the means chosen to advance that to minors existed danger The city broader than necessary. perceived tially curfew is limited to The daytime environment of the CyberCafes. in the risky environment, when the and to those times their risky with CyberCafes their of direct control supervision are not under the presumed students to the guardian present made where parent An exception parents. if we could conceive less speech-restrictive Even supervision. provide interest, curfew would not be the daytime alternative to achieve the city’s the to select the least city “Narrow does tailoring” require invalidated. 781, Racism, U.S. (Ward supra, Rock Against alternative. v. restrictive 799-800.) the lack of “open no evidence to establish
Finally, presented plaintiffs (Clark Community v. for communication.” alternative channels ample for Non-violence, 293.) knowledge It is common 468 U.S. supra, Creative the Internet are abundant. communication over that alternative channels for be in (where the minors should at home. Schools have Internet access Many And, access, libraries. as do event) public Internet commonly provide minors, without course, parental to even themselves CyberCafes open the each day. for seven hours supervision, invalid, court the constitutionally the curfew daytime
In finding need for regula whether the the evidence to determine to reweigh appeared it found “the restriction The court stated factually. tion was supported to hours bears no basis school during of minors public the presence cafe’ ... No ‘cyber safety. intent legislative the declared so, hours.” In doing school during to the police crimes have been reported “ ‘It is not factfinding. legislative court engaged impermissible the underlying the facts” “legislative to reweigh function ... the judiciary’s must review judicial The scope enactment.’ a legislative [Citation.] the necessary performance determinations that the factual be cognizant (Alfaro character.” legislative are of a peculiarly function legislative 197].) Cal.Rptr.2d 510-511 Cal.App.4th Terhune “ court, as trier in a trial at which not . . . engage courts will ‘[T]he act.’ may which the fact, Legislature basis upon the factual determines words, Legislature in enacting legislation ‘In other [Citation.] determined the facts has in the exercise of the already, legislative power, as a The courts cannot revisit issue necessary legislation. support fact, but defer determination unless it is Legislature’s must question . . . we arbitrary. challenged legisla- must palpably Consequently, uphold tion so as the could have determined a set of facts long Legislature rationally ” Here, it.’ council could rationally support p. {Id. determined from the facts before it that the curfew was a needed daytime measure deter recruited minors from or victimized prophylactic should, law, when under be in school. So as the gangs long daytime Amendment, curfew under the it is not the courts to scrutiny First passes determined reweigh facts considered council when it ordinance was needed.10 court, on the evidence to the
Accordingly, presented daytime curfew constitutional muster. The failed passes to demonstrate plaintiffs likelihood of on the merits. We conclude the curfew is a prevailing daytime *17 content-neutral, tailored restriction that advances a narrowly significant gov interest, communication, ernmental leaving alternative means of open ample and that the restriction does not restrict more than is necessary speech advance the interest. city’s legitimate The court abused its discretion when it enforcement of the preliminarily enjoined curfew. daytime dissenting The opinion unduly takes an the permissible scope narrow view of and, so, police power, doing mischaracterizes our discussion. The dissent asserts the trial judge right hours,” finding any was place during “no evidence that of the crimes took school prevents city acting as if this somehow prophylactically from to reduce the risk of minors by gangs. recruited reasoning or victimized The dissent also mischaracterizes our as depending assumption on an play hooky likely gang that “kids who are more to be members this, conclude, however, say than kids who don’t.” We do not nor we do believe it. We do city justification gang evidence before the council was it to conclude that the risk of they recruitment or victimization is reduced prohibited if minors are at these locations when should be at school. Disneyland, Berry The dissent then warns Knott’s Farm and other parks amusement they out”—they might daytime “had better look face a curfew. We find no need to address the legitimacy daytime a imposed curfew under other circumstances to address an unidentified 8, ante, problem hypothetical at But as at locations. noted in footnote least one court has (an upheld daytime against challenge preemption wide curfew based on state issue not Monrovia, And, case). (Harrahill briefed in the supra, Cal.App.4th instant abstract, wrong in the we can’t help requiring school-age but wonder what’s so about children during days, be in Why any school school no matter what the rationale. should business “better required by Compulsory look out” because kids are in school as the state’s Education so, appropriate, unwilling say charged by Law. If we are not dissent. We however, unwilling, opinion justification to base our on a for the ordinance not advanced and parties. not briefed Guard Security Requirements Employee
4. 8.82.020, (3) to the Garden subdivision added section Ordinance No. 2591 Code, for a Cyber- staffing requirements which established Grove Municipal “a minimum of one to have (3)(a) CyberCafe requires Cafe. Subdivision all hours of operation.” during of 18 on age premises over employee on premises, more than 30 computers CyberCafes having For those years, of 18 age over 3(a) an additional employee subdivision requires (3)(b) Subdivision a.m. to 3:00 p.m. hours of 8:00 the school during except on security guard a licensed uniformed also requires presence to 2:00 a.m. between 8:00 p.m. Friday Saturday nights premises for CyberCafes as the additional employee can be counted guard security the owner of the establishment but more than 30 having computers, security guard. from as the acting required prohibited staffing activities of these on First Amendment The impact there is no Some would say is tenuous best. security guard requirements restrict the manner in which does somewhat at all. But the ordinance impact Thus, over the communication be conducted. may Amendment activities First having conducted on premises unless Internet in a CyberCafe prohibited hours, and, a security during specified number of employees the required are content- determine whether We review these guard. requirements restrictions, leave alternative tailored manner neutral, which open narrowly for communications. channels court, reference to make no the staffing the trial requirements
As found And, neutral. as with are thus content communication the content are avail- curfew, communication channels for alternative the daytime *18 ample are nar- staffing is whether the requirements remaining able. The question safety. interest public to advance the substantial city’s tailored rowly gang the for potential the Council City pointed Polisar’s Chief report loca- had chosen these gangs because nonterritorial at CyberCafes violence It cannot congregate. choice” at which to as the “business type tions adult on a responsible suggested presence be seriously deterring and safety interest city’s public not does promote premises be owners would CyberCafe this regulation, It does. Absent violence. gang a less minors, would agree an most with option their businesses free to staff safety. interest in public advancing city’s means of effective adults at CyberCafes of two the presence also concluded The city for effective necessary supervi- reasonably more than 30 computers having on Friday limited hours sion, during of security guards and that the presence Thus, staffing safety. interest public would advance its Saturday nights and are increased where the number requirements greater exists for potential customers and during hours to have the demand for the expected greatest services of the an CyberCafe. Absent extra requirements employee hours, establishments and a larger security volume guard during high interest in violence be city’s safety would less deterring gang Further, served. are not effectively staffing substantially requirements broader than is not to select the least restrictive necessary. required alternative (Ward means for its interest. advancing legitimate v. Rock Against Racism, concerned, 799-800.) supra, 491 U.S. “Where ordinances are it is not the business of the court to write the statute.” (City San Jose v. Court Superior 205].) Cal.App.4th Cal.Rptr.2d
Given the well-demonstrated criminal observed at activity CyberCa fes, members, and their to attract tendency the court should not have gang second-guessed the council’s and discretion. The judgment staffing are content requirements neutral and are tailored to serve a narrowly significant governmental interest. alternative means of Ample communica tion remain and the open, broader than requirements substantially necessary. Accordingly, court abused its discretion en by enjoining forcement of the employee security guard requirements.
5. The Video Surveillance Requirement The final challenged of ordinance No. provision 2591 is addition of 8.82.020, Code, section subdivision to Garden Grove which Municipal CyberCafes to install a requires video surveillance system. video system must be “capable delineating ... playback activity physical features of or areas within the persons must “cover all premises,” entrances and exit and all interior points bathroom and spaces, excepting office private areas.” “The shall system be subject inspection during business hours” and shall be maintained for a videotape “[t]he minimum of 72 hours.” period
First, we note what the on this issue is not about. Plaintiffs appeal argue, “Garden Grove has decided that the must collect video records of all plaintiffs its and make patrons those available to the images government whatsoever.” But purpose reasonably that is not what the ordi- interpreted, nance “The shall be requires. system and the “video- subject inspection” *19 shall be maintained for a minimum tape of 72 hours.” The ordinance period does not the owner to allow demand. For require inspection tape upon enforcement the can assure itself the video surveillance purposes, city system is That all the is ordinance operational. requires.
At the on the hearing counsel for the preliminary injunction, city agreed with this and the interpretation, acknowledged could not take city possession
446 as a search warrant. Upon without such legal process
of the video tape for the city, the ordinance counsel this reasonable hearing interpretation said, . . . then that issue understanding the city’s counsel that’s plaintiffs’ “[I]f whether reiterated the interpretation, inquired can be The court resolved.” stated, Plaintiffs’ counsel that would suffice. interpretation stipulation what the “Yes, I can handle that. If that’s that’s fine. if that’s stipulation, to turn a legal tape that are not absent process, we city saying, required, Counsel for the city under the terms of this ordinance.” over to the city record, the court did not further on the to this interpretation stipulated from consideration The issue been withdrawn having address issue. court, the injunction. of the basis for issuance of trial it did not form any part acknowl the commonsense interpretation offer no argument why Plaintiffs and an unreasonable now be ignored, before the court below should edged While injunction. support as a strawman substituted interpretation it is order to be affirmed if an requires rule of appellate practice the normal 100, 110 (Schubert Reynolds Cal.App.4th v. 95 ground, correct on any an erroneous an order based on 285]), we cannot affirm Cal.Rptr.2d [115 our de novo review of before us. of the ordinance Upon interpretation Lockyer ex rel. v. of the ordinance (People video surveillance portion 200, 415, 11 Cal.Rptr.2d Co. 24 Cal.4th Shamrock Foods [101 (1993) 5 (Roberts Palmdale City 956]), meaning P.3d its relying plain 330, Legislature’s 853 P.2d [“The Cal.4th Cal.Rptr.2d 496] [20 their meanings”]), words plain intent is best by giving deciphered the court will are possible that even where two interpretations remembering (Shealor v. the ordinance constitutional rendering choose interpretation 574]), we conclude P.2d (1944) 23 Cal.2d Lodi is correct. While in the court below all acknowledged by parties interpretation to ensure it is the video system inspect the ordinance permits to inspection by not subject videotape the ordinance does operational, on demand. does of the ordinance surveillance portion to what the video Turning First Amend affects system the video surveillance we are not say, persuaded adult and/or of an employee than does the presence ment more activity any of e-mail not video surveillance The ordinance does require security guard.11 screens. on the customer’scomputer the Internet appearing from images connection, stereotypical, unsupported, dissenting opinion’s reject we In this standing looking guy around guards “usually some security characterization pejorative evidence) security (without that all any supporting dissenting colleague believes bored.” If our by a video observe, made distinguish between the observations he guards do how would matter, customers, or, police employees, made other camera and the observations True, how the camera’s we fail to understand camera records. But in. officers who wander memory, would photographic had a 72-hour any greater. employee If an invasion privacy of the customers? invade the presence would because his unemployable we make him *20 ordinance that the be of “the and only system showing activity requires capable features of the no more or areas within This is physical persons premises.”12 indeed, can be other than observed or by security guards, employees, customers. That the video has a 72-hour be better system memory may customer, than the short-term the of or memory average security guard, is not a distinction of on Amend- significance constitutional First employee ante, discussed, ment For the in the grounds. reasons connection with and security video surveillance employee guard requirements, require- restriction, ment is a content-neutral manner tailored to advance narrowly legitimate interest in and deterrence of city’s safety violence. public gang I, for this reason turn to article section 1 of the California Perhaps plaintiffs Constitution, and assert that video surveillance invades the of their privacy customers. an invasion of in violation plaintiff alleging of state privacy
“[A] constitutional right (1) must establish each of the privacy following: interest; legally (2) a reasonable of protected privacy expectation privacy circumstances; conduct defendant a serious constituting invasion of Whether a privacy, legally recognized interest privacy [f] in a case is a present given of law to be decided the court. question Whether has a reasonable in the plaintiff expectation [Citations.] privacy circumstances and whether defendant’s conduct constitutes serious invasion are mixed privacy of law and fact. If the questions material undisputed facts show no reasonable or an insubstantial expectation privacy impact interests, privacy of invasion be as a matter of question may adjudicated (Hill v. National Collegiate Athletic Assn. law.” 7 Cal.4th 39—40 [26 633].) 865 P.2d Cal.Rptr.2d
Plaintiffs do not why in a retail establishment have explain persons a protected interest in either their on the privacy activity their premises features, reasonable physical why any would attach in expectation privacy circumstances, serious, such why asserted invasion can be considered event, invaded, if the why, interest both exists and is interest to be governmental sought advanced does not make the minimal Instead, intrusion make constitutionally permissible.13 plaintiffs only general “ (and inaccurate) dissenting So much for the opinion’s repeated ‘Big references to a telescreen to look over one’s style (Dis. accessing Brother’ while opn., shoulder Internet.” post, p. just It require CyberCafe isn’t so. The ordinance doesn’t it. And if the owners ordinance, their required by install video cameras so as to be more than intrusive only themselves to blame if their business diminishes. dissenting opinion also fails to answer questions, these other than to characterize the saying something ordinance as say, by making comparisons it does not to restrictions Albania, governments. imposed licensing typewriters Bulgaria, totalitarian Constitution, surely scrutiny quite plainly prior Cuba would not survive under our since it a precisely why upheld injunction against restraint. That is we requirement CUP *21 448 A must contain of brief involving right
references to cases privacy. contentions, or the court and to its legal authority support reasoned argument 764, Stanley (1995) 10 Cal.4th (People treat the as waived. argument may 543, 481].) P.2d 897 Cal.Rptr.2d 793 [42 waived, legally we do not find any
Even if the were not argument or the customers in their activity premises of right protected privacy Assn., supra, Hill v. National Athletic 7 Collegiate their features. physical 1, 35, interests: recognized two classes of legally privacy Cal.4th identified sensitive and or misuse of “(1) interests in precluding .dissemination (‘informational mating interests information privacy’); confidential activities without observa decisions or conducting personal intimate personal tion, intrusion, The video surveillance interference (‘autonomy privacy’).” interest. A does not intrude on either of type the ordinance system required “confidential,” on the nor are activities features are not person’s physical informational recognized No legally of a retail establishment. public premises that the can it be understood reasonably can attach to either. Nor right privacy in a involves intrusion CyberCafe using computer observation of persons of a decision or on the conduct of an intimate mating personal either on observation a video Plaintiffs do not explain why activity.14 personal or other more than observation any by employees camera intrudes on privacy patrons. in these system a video surveillance even if observation
Finally, a legally recognized privacy right, did somehow intrude on circumstances “A ‘reasonable’ expecta- is wholly lacking. reasonable of expectation privacy based and broadly entitlement founded on is an objective tion of privacy Athletic (Hill Collegiate v. National norms.” community widely accepted government Vietnam’s “layered firewalls conservative elements of ordinance. And the post, at (Dis. opn., fail as a content-based restriction. placed on Internet access” would likewise of ideas curbing Vietnam the freedom Similarly the of Communist China and p. reports sites, the Web sites visited and by requiring policing of by banning access to certain country. The scrutiny in our are sent would fail constitutional persons to whom e-mails CyberCafes register tried to customers of dissenting reports Malaysia force opinion also numbers, complaints. response but backed down in identity card their names course, here, this nothing topper But to all of does of the sort. at issue ordinance infringements on “willing to countenance charge majority that the argument is the dissent’s Malaysia is too ashamed to government cybercafe users which even rights (Ibid.) on the prefer We to debate issues respond will not in kind. Wow! We enforce!” merits. announces, he “Even dissenting colleague’s footnote in which passing our We note in in the putting a video camera no one would think of retail establishment the most mundane B., Newport Tily Inc. v. fn.2.) opn., post, (Dis. But in p. at public restrooms.” alia, 6], analyzed, inter an a case which Beach Cal.Rptr.2d Cal.App.4th restroom, dissenting colleague public in a our an attendant to be stationed requiring ordinance sensibilities, there is no individual which held that concurred opinion “[w]hatever in the . .” In accommodation . . place of a right privacy in the restrooms constitutional restrooms. case, video surveillance of require case does not the ordinance in the instant Assn., supra, 1, 37.) the near use of video 7 Cal.4th With ubiquitous establishments, machines, surveillance in retail at automated bank teller intersections, it difficult at the imagine, certainly road preliminary the customer’s is reasonable stage, injunction expectation no evidence was Further, under the circumstances. trial court presented *22 be of the claim. Nor could such evidence support privacy easily presented. Each of the declarations owners in of the by CyberCafe submitted support order and disclosed restraining injunction they already temporary preliminary had installed video surveillance on their own. issue systems Although law, whether a interest is a legally recognized privacy present question the issues of whether a reasonable expectation privacy present whether the conduct is a serious invasion of are mixed question privacy (Id. of law and fact. at Without evidence on these questions p. any merits, could not establish a likelihood of success on the questions, plaintiffs either on First Amendment or on and the grounds, privacy preliminary should injunction have been denied. the court abused its discre- Accordingly, tion when it the video surveillance preliminarily enjoined requirements ordinance.15 respond briefly dissenting We opinion’s suggesting to the discussion the ordinance must subjected
be scrutiny, balancing to strict and that even pass under test it does not First, constitutional plaintiffs suggest scrutiny muster. not even the as the appropriate strict test. good And dissenting opinion’s reason. The support view on this issue cites no law in of its analysis. it comparisons regimes Instead offers to totalitarian imposing prior restraints and content-based on speech, implicated by restrictions neither of which is the video surveillance requirements. fully recognized We types have these would restrictions cross constitutional boundary and agreed for that reason have with the requirements may trial court that the CUP But, mixing privacy analysis not be enforced. speech analysis, dissenting with the free Assn, opinion quotes incomplete an passage Collegiate supra, from Hill v. National Athletic context, i.e., Cal.4th 34. Let complete passage. particular us “The the specific kind of privacy any countervailing interest involved and the nature and seriousness of invasion and interests, analysis. remains the critical factor in the Where the case involves an obvious personal autonomy, e.g., involuntary invasion of an interest fundamental to freedom from sterilization or the pursue relationships, ‘compelling freedom to consensual familial interest’ If, present must be privacy privacy to overcome the vital interest. in contrast the interest is less central, (Ibid.) dispute, general balancing or in bona fide employed.” tests are dissenting failure opinion’s privacy supposedly to discuss the nature of the interest suspect scrutiny invaded the ordinance renders its about the strict standard. conclusion is, surely personal autonomy.” People Whatever that interest it is not “fundamental to don’t do things autonomy” personal “fundamental to in a retail establishment. The dissent throws issue, by confusing privacy speech asserting the reader off track issue with the free CyberCafes library.” “are poor printing press private pointed man’s As we have out majority opinion, expectations setting CyberCafe in the of a reasonable simply present. dissenting opinion urges only CyberCafes experienced have us consider three gang-related only CyberCafes experienced activity type. violence and five criminal Thus, activity the dissent believes that criminal at 22 is not percent of establishments justify problems sufficient to if the had requirement. video surveillance What occurred percent, percent, percent or 40 or 50 of the establishments? Is the court to decide where
DISPOSITION the enforcement of the CUP enjoining The court’s order preliminarily affirmed. The court’s 5 of Ordinance 2573 is contained in section requirement (1) that of section the enforcement of: enjoining portion order preliminarily Code, 8.82.020, (1) restricting of the Garden Grove Municipal subdivision 8.82.020, (2) section minors between 8:00 a.m. and 3:00 p.m.; access Code, the number (3) regulating of the Garden Grove Municipal subdivision hours; certain security guards during of employees requiring Code, 8.82.020, Grove subdivision of the Garden Municipal section of justice, are reversed. In interests systems, video surveillance requiring shall bear their own costs appeal. parties Bedsworth, J., concurred. *23 to the most dissent
SILLS, J., dissenting. I respectfully P. and Concurring it holds that Garden Grove in which majority opinion, of the important part in the every city, regardless cybercafe video surveillance may require indeed, violence, or, any gang-related whether that has cybercafe experienced minor nature. even of the most any problems by of a injunction an from grant preliminary This is appeal court, in the there is a conflict or inference the trial which means where evidence, the trial court’s decision. Yet there was it must be drawn in favor of of a the trial court’s grant preliminary substantial evidence support video surveillance re- the intrusive city, injunction against particularly (and only response grudgingly acknowledges The majority only quirement. three of 22 city, only submitted dissent) that under the evidence to this violence, two more have only “gang-related” cybercafes experienced deal), a nor (one drug of the two was crime of kind serious experienced concerning cybercafes own evidence do tell the reader that city’s Garden outside of crimes gang-related cybercafes other cities showed no Or, leeway’ the kind of ‘administrative suggest, we is the court to draw this line? “accordQ city’s with ‘increased central to the necessary accomplish [legally purposes function] valid ” Assn., 1, 50, supra, (Hill Collegiate Athletic fn. As v. National 7 Cal.4th efficiency.’ weighing earlier, legislative facts. analysis is the flaw in the dissent’s noted the fundamental against facts adoption of the ordinance supporting the facts The dissent wants to balance should, governmental to balance the attempt, It makes no as it supporting the ordinance. not supposedly invaded. Without against privacy interest sought to be advanced interest stake, autonomy interest or an whether an informational identifying the interest at privacy interest, can not be struck. the balance concerns, majority parties, all and speech press respect to First Amendment With under well- regulation is reviewed standard which apply an intermediate opinion, time, and manner restriction appropriate place, it is an law to determine whether established time, manner place, or is a valid may disagree whether ordinance speech. While we restriction, speech issues are resolved. analysis by which the free proper this is the Grove. That leaves 17 which have no serious cybercafes prob- experienced lems, a fact which this court to affirm the trial enough should be to require court’s not overturn it. injunction, issue,
It is the video surveillance is most though, problematic, the one with the most obvious Do my colleagues privacy implications. realize the—there is no other word for it—Orwellian of their implications a ruling an ordinance which forces today? They literally “Big approve Brother” style telescreen to look over one’s shoulder while accessing Internet.1 I can’t with this of our state
Sorry, go along emasculation Constitutional right and with the concomitant on the infringement rights freedom of speech press. below,
As I show deserve the of a strict cybercafes scrutiny protection standard when regulations and freedom of implicating privacy speech them. But even if strict standard is not imposed upon scrutiny appropriate, standard balancing certainly is. The have not even majority attempted Rather, balancing interests. the essence of their respective opinion less than almost slavish deference nothing to an unsupported illogical conclusion of the chief and city’s council. police
Granted, the do service majority (See to “narrow Ward v. pay lip tailoring.” Rock Against Racism U.S. L.Ed.2d 109 S.Ct. *24 2746].) But never an ordinance which a they why video explain requires camera over looking your shoulder as access the Internet is “narrow you under tailoring” Ward.
It isn’t. There are clearly any number of substantial means which the interest in city’s violence could be realized without protecting against gang video surveillance. Police could be increased. Owners could be patrols with a list of who could be refused service. supplied gang-members Security could be guards those which have posted cybercafes already experienced violence. Yet the gang-related refuse to confront such majority steadfastly all in the name of deference to facts” found possibilities, “legislative is, council. Whatever that it isn’t to minimize burden on trying or to what is privacy speech reasonably necessary.
The commit the majority logical also error of Rather than generalization. confront fact that a small only minority cybercafe venues have 1 175, 866, (See State v. Costin metaphor? Inaccurate 168 Vt. A.2d [720 871] Johnson, (dis. J.).) opn. contemplate governmentally required Readers who installation they operate of video cameras behind them while a can computer decide for themselves today’s already “Big whether decision doesn’t take us much closer than we are to a Brother” society. to the idea that there is a
experienced problems, (illogically) leap “well-demonstrated” connection vio- cybercafes gang-related between say lence. as well there is a “well-demonstrated” connec- Sigh. They might least, or, tion between homes and residential Garden Grove at burglary, between restaurants violence. To it out: gang-related Vietnamese spell all The make the error of to members of a class majority logical ascribing a characteristics which to of members. only minority apply that not take a today’s majority additionally And is all. With opinion, to in land use alarming serious but unexamined an trend step approve to which off onto citizens the private governmental duty is to fob regulation, that, The best can on this not say one issue is provide police protection. it, (and leave it for another seriously majority examining day hopefully briefing). better
Finally, advance weak and rationale majority unpersuasive uphold is no that the absence a daytime curfew. There evidence daytime minors, curfew is in a threat to or that curfew will any way prevent Moreover, the violence. gang-related majority willing say, simply, the curfew But ought could be because the kids to be school. justified think about that a little and realize that a could you impose rationale soon (think curfew on minors at Mountain daytime Magic gang problems Farm, back), a few Studios years Disneyland, Berry it had Knott’s Universal even the And since neither I nor daytime Angels’ baseball games. far, I conclude basis to am forced to there is no majority willing go the trial that issue overturn court on as well.
I. Is Strict Scrutiny Standard Appropriate of California. the state Constitution right guaranteed by Const., 1, (1997) 14 art. (Cal. As in Loder Glendale explained § 846, 696, P.2d and Hill v. Cal.4th Cal.Rptr.2d 891-892 [59 1200] (1994) 7 Collegiate National Athletic Association Cal.4th (Hill), the time *25 865 P.2d most of invasions privacy Cal.Rptr.2d 633] Sometimes, however, test. restrictions such analyzed balancing using state be the more strict analyzed using rigorous scrutiny compelling must context, i.e., it, kind of test. As “The particular specific interest Hill put invasion and interest and the nature and seriousness of the involved privacy interests, com- remains critical factor” as to whether any countervailing 34.) (Hill, 7 at supra, p. state Cal.4th balancing applies. interest pelling of and association” Government action freedom “impacting expression at (Hill, 7 Cal.4th supra, receives the state interest standard. compelling 757, 50; 34, (1975) Cal.Rptr. v. Davis 13 Cal.3d 776 see also White [120 pp.
453 94, 533 P.2d state interest surveil government [compelling required 222] Beach v. City discussion]; Association lance of classroom Long Employees of 90, Beach 937, Long (1986) Cal.3d 41 719 P.2d Cal.Rptr. 948 [227 660] state interest of [compelling required examination justify polygraph Myers (1981) Committee to Reproductive Rights employees]; Defend 252, 866, Cal.3d 273-282 625 P.2d state Cal.Rptr. [compelling [172 779] interest required overcome woman’s interest in indigent privacy reproduc tive rights].) are not “retail
Cybercafes your ordinary establishment.”2 just Cybercafes often, (or, allow who afford who cannot cannot afford people very computers press. high connections) Internet the freedom of the can speed They post world, and, (if “hits”) whole in messages theory get can enough reach more read the than hard of the New York people copy every Times law, It is thus that in morning. telling defamation a statement to the posting Internet Web site is considered sense a real “publication”—in very bit publication every large as much as As presses major newspaper. Judge Kozinski has noted about the freedom of the inherent in access to press instance, the Internet: “For look at Matt He sits his little Drudge. apartment with a and trawls the computer Internet becomes a overnight reputable Richards, news (Calvert source—at least a to-be-feared news source.” & the First in Defending the Ninth: Alex and the Judge Freedoms Kozinski Speech Press 23 Loyola L.A. Ent. L. Rev. With the Internet, has, effect, his or average computer blogger her own printing ibid. [Judge (Cf. to reach the press world. noting, Kozinski the rise of given that “I think blogging, the division between press has all ordinary speech but disappeared”].)
Cybercafes thus allow cannot people (or who afford computers high Internet, connections) i.e., to access the speed global bulletin board to receive ability what others have is an of free on exercise posted. Logging speech. that
Consider totalitarian governments always cracked down unrestricted access to the means When the communication. Communists were in control of countries such typewriter Albania and each Bulgaria, do, reason, It majority say nothing will not as the that this case has to do with images because the video has necessarily cameras will record screen and no one visiting privacy interest whilst a retail Even the most retail establishment. mundane putting no one public establishment would think a video camera in the restrooms. To B., Tily City Newport Inc. v. Beach degree Cal.App.4th Cal.Rptr.2d overbroad, it, blanket, you is taken out of context and read for the when about 6] think restroom, all in a frightening privacy right is no in the proposition there even *26 stalls, myself toilet disassociate from And the of the opinion. I I doubt that other member Tily B. Crosby, go along the late either. panel, proposition Justice Thomas would with
454 (See in Communist Cuba.
was licensed. are still licensed Today typewriters the First in the Ninth: Alex Richards, Judge & Defending Kozinski Calvert Press, at L. Rev. supra, and the Freedoms and Loyola L.A. Ent. Speech of Kozinski, Cuba, heard, were still the last I they “In [quoting Judge p. registering typewriters”].) Vietnam, of the free that in Communist hunger expression
Consider to the American ambassador has to a As “cybercafe ideas led phenomenon.” accessing of Vietnamese are young Vietnam has noted: “Thousands They are country. obtaining at scores of across cybercafes internet information, innovative ways are so many doing finding exchanging Vietnam’s elements of to circumvent firewalls conservative layered of on access. This reflects the thirst story have internet government placed to their the world beyond Vietnam’s for a connection tangible young people Another Bilateral Trade Agreement: The U.S./Vietnam (Pearson, . borders. . .” 431, 448.) Bus. L. Right in the Direction (2002) 10 U. Miami Rev. Step of China and Vietnam consider that the both Communist governments And of in an effort to curb freedom cybercafes cracked down on recently of learning identity effort has entailed they ideas promote—an and the Persistence Law Internet (See users. cybercafe Hughes, on cybercafes L. 2002 Chinese crackdown 44 Boston C. Rev. 369 [“the cafe users attempts by of software that records has included installation the First in the Ninth: Richards, sites”]; Defending Calvert & access banned Press, supra, and the Freedoms Speech Alex Loyola Judge Kozinski concern, in fn. 64 that “There [noting great L.A. Ent. L. Rev. p. Vietnam, China, on their fact, the influence of the Internet well as about ‘are one those countries report, to at least According political systems. Recent “cybercafes.” regulations on the cracking proliferation down their customers what web sites police cafe these countries owners require ”].) and incarceration’ face arrest e-mailing—or are and who are visiting I nature of very cybercafes, Given the constitutional ramifications even as to one’s an so as to that there is say expectation will far go that in it is ironic regard, highly In that identity using cybercafe. when of cybercafes to force all customers recently tried government Malaysia, then backed down And it card numbers. identity their names register Feature: Hang, Special (See from investors. foreign to complaints response J. and Response Singapore in Asia: Crisis The Financial Meltdown 1, 17, willing fn. colleagues my Apparently Inti. & L. Comp. even users which cybercafe rights infringements countenance to enforce! is too ashamed Malaysia government *27 that I that Assuming infringements cybercafe am correct on the privacy customers strict it is clear that the video require scrutiny, surveillance cannot is condition stand. But what if the standard proper balancing? Errs Even Under a Majority Opinion Balancing
II.
Test least, us, as Loder and Hill teach At very the infringements privacy Valley Bank Nevada v. (See must muster under also pass balancing test. 652, Superior Court 553, 15 Cal.3d 656-658 542 P.2d Cal.Rptr. [125 Santa customers]; test City [balancing used of bank weigh 977] Barbara v. Adamson 27 Cal.3d 131-134 Cal.Rptr. P.2d [privacy interest with unrelated living city persons outweighed 436] zoning regulations].)
But is balancing not deference to councils. A unqualified court cannot city turn to the just over the under the that it city balancing does not want to guise Beach (See Long Employees Association “reweigh” evidence. Beach, Long Cal.3d supra, at 943-949 interest pp. [city’s preventing did not theft because was money missing a blanket justify requirement all take a employees test].) polygraph to balance makes no majority opinion serious right attempt
privacy with interest city’s violence. That would preventing gang at actually require looking why facts of 22 asking only three cybercafes It violence. would experienced gang-related also require asking—which the never majority do—why governmental interests stake here cannot be realized with much less than intrusiveness the blunder- buss taken council. approach
At this a little point deconstruction the majority opinion necessary. Readers of opinion will note that the rationale with majority regard video surveillance of cybercafes camouflaged. The doesn’t address majority Rather, the video surveillance directly.3 question majority first avoids of video confronting problem surveillance straw by erecting figure it down. kicking Some considerable is devoted to idea that space refuting has video cameras be at the required screens. pointed Well, thankfully, even this that understands be too would majority much. But then the go on to that there be majority requirement approve video cameras at the with the dixit that video surveillance is cybercafes ipse “narrow Note that at that in the tailoring.” why do explain point Rather, the opinion. refers the reader to what majority merely was previously said about security guards.
3 Except response in footnotes in to this dissent. in a analogous are hardly self-evidently
But video cameras security *28 around A is some security guard usually guy standing context. privacy events, of to A camera a record accessible looking bored. video is permanent 447 of the majority the with a search warrant. Thus on page police proper is “a is the that the video surveillance requirement there declaration opinion content-neutral manner restriction, city’s tailored to advance the narrowly and deterrence of violence”—with safety gang interest in legitimate public ante, discussed, in to the reasons only the attempt explain why “[f]or security with the and guard requirements.” connection employee “ante?” discussed, Well, not from that’s clear And what are those reasons which deal with the security guard 444-445 the majority opinion, pages adult that concerning guards issue. Much of discussion security employ- However, the can make of the is video cameras. best I ees not to applicable discussed, the majority is a found on page “reasons ante” statement well- in reference to “Given the security guards: made opinion specific their at activity tendency demonstrated criminal observed CyberCafes, members, city have second-guessed attract court should not gang council’s and discretion.” judgment in below. in this sentence III logic revealing part
I will address error moment, it is the absolute absence of enough For the note though, to balance in interest city’s preventing the interest in with attempt violence, in nor of video surveillance how gang requirement specifically than to achieve necessary is not broader every substantially cybercafe have not video cameras at those which interest. Why only cybercafes require security isn’t a Why guard violence? already gang-related experienced owner himself interest? What could the city’s herself enough protect members that would obviate service to known refusing gang do way None of these questions need the intrusiveness video cameras? for is courts whose premise dealt with in the majority’s opinion, remotely them, council’s decision. they “second-guess” dare not ask lest with confronting problem privacy comes to majority closest 447 of the majority opinion: one statement page regard cybercafes retail have establishment why do not explain persons “Plaintiffs or their their on the activity premises interest either protected privacy are Cybercafes just . I done so above. features ...” physical man’s are the establishments—they printing press retail poor ordinary library. private
III. The In to the Video Analysis Regard Majority’s Irrational,
Surveillance Issue Allows An Overinclusive Presumption one, sentence this made in first key majority opinion connection with a but later reference into the guard security incorporated discussion the video cameras: “Given the well-demonstrated crimi- regarding nal observed activity CyberCafes, at their to attract tendency gang members, court should not have council’s second-guessed judg- ante, ment and (Maj. discretion.” opn., p.
The here of logical error is the Note the indiscrimi- fallacy generalization. nate, generalized term “observed at some Not Not Cybercafes.” cybercafes. most, (or, what the record five) shows—three at of 22 But cybercafes. “CyberCafes,”—a generalized generic over category, sweeping 17 problem- sites, free well as as the five which had have problems. above,
As I mentioned the majority opinion only grudgingly acknowledges record, one of the most interesting which is a of the parts survey problems which cities surrounding (many cities in some Orange County in Los have with Angeles had None County)4 cybercafes. Guess what? Oh, reported gang violence. there loitering were few instances of in Los Alamitos, In Cypress Long Beach. Park there were “Con- Monterey cerns, related,” but instances of are not to police gang violence be simply found in that table. So the to “gang” seems confined Garden Grove. problem I will let some interested student of at graduate ecology social the University Irvine California but the why, the is that evidence explain point empirical from other cities what shows intuitive There is only nothing anyway: reason, inherently attractive about cybercafes to For whatever “gangs.” most one say can here is Grove Garden have an gangs idiosyn- cratic for cybercafes. some And basis of at a penchant yet problems minority venues—and at that—the possibly unpreventable problems major- ity rubber to costs on all stamps city’s heavy attempt impose security venues. illustrate,
California law is to inimical such over-generalized thinking. To concerns, let’s take a case where there are no First Amendment and where the federal Constitution regulate allows states to to their heart’s content. The sale of alcoholic beverages. 779],
In Laube Stroh 367-368 Cal.App.4th Cal.Rptr.2d of Alcoholic Control wanted to the license of Department Beverage yank Pleasanton had managed Hotel because undercover officers upscale pull Monterey For some reason Irvine listed. Park is not For some reason is. off a concealed sale of illegal drugs in its The was that the lounge. theory sale, conceivable measure taking every hotel had “permitted” it, sales, court including, such so appellate brilliantly put prevent of customer surveillance inconsistent with contemporary “Orwellian schemes (Id. that sort of rejected societal values.” The Court of p. Appeal intrusiveness, had no there been differentiation between mandatory noting as the Hotel and bars where crime was indeed such Pleasanton places seedy more of a threat.
It is the same restrictions at three here. evidence only supports incidents, two more for other kinds cybercafes maybe gang-related crime, in the serious but at all for the remaining cybercafes city. none A chief: overgeneralization rubber majority merely stamp police ergo “well-demonstrated criminal cybercafes activity” had minority are on all And the justified intrusive restrictions very cybercafes. exasperating or even logical make show majority attempt any organic, no part nature of the business and what cybercafe between the empirical relationship think, if the crime as if “don’t ask us saying, has occurred. It’s all cybercafes, there to be blanket restrictions on ought chief believes police *30 that’s for us.” good enough Security The With To the Analysis Regard Majority
IV. the Same Guard Issue Sin from Suffers Generalization as much just What I have as to overinclusive just applies said presumptions businesses, on even security guards to the burden of private imposing private do not and adult though security guards employee requirements obviously (and concerns that are the same free speech) implicate perhaps most, evidence, at the video surveillance. by mandatory implicated on five of of a security guard requirement supports imposition of a if that owner business you then assume cybercafes, only government imposition which has crime can direct justify experienced when crimes there been security (Usually, repeated guard requirement. business, owner enough tort lawsuit is to an prompt at a threat of civil measures.) to take extraordinary security
Here, that of the owners of in the to indicate any there is record nothing it. did anything encourage violence which have cybercafes experienced if there were troublemakers Calling police What was their wrongdoing? their business? frequenting can have business owners private
Under the innocent majority opinion class because a member just them security imposed upon requirements has But at I a go businesses crime. this must little experienced point that the record of a deeper, suggest punish is motive susceptible cybercafes qua cybercafes.
Consider: Private are “notorious” and “well-documented” ven- residences ues for it home And is common burglaries. knowledge Orange County Grove, in Garden been Vietnamese restaurants have often the scenes gang violence. It would be very say, of the easy language majority that there is “well-demonstrated criminal which has been opinion, activity” “observed” city’s restaurants and residences. But has not city (yet) required security guards for restaurants or new residential construction. is obvious inference that the No picking cybercafes. council would dare private security guards for residences or require private restaurants, even much reason to though—I repeat—there just impose such if one sticks to the rationale requirements And majority opinion. exists, if yet difference it in the enough, cuts direction of more ironically freedom cybercafes: They freedoms of implicate speech press, while eateries and residences do not.
V. The Majority Analysis With To the Regard Security
Guard Ignores Issue the Problem Delegation This case is an of an trend alarming example municipal government cities and whereby counties have discovered can cash-strapped shift costs of effectively from the police protection private has, however, parties. The delegation issue briefed. been I would there- fore note that the *31 cannot be read majority opinion to endorse this trend. The issue remains in future open exploration a case.
VI. The With Majority Analysis To Regard Curfew Issue Is Not the Evidence Supported trial takes the to task for majority judge fact-finding” “impermissible when he concluded that there was no evidence the curfew bears school-hours worth, any For it on relationship safety. what that narrow point the trial was There court is no evidence that of the crimes took right. any Moreover, (and school place hours. nexus during only inherently logical one not even between attempted majority) patronized one, i.e., students violence is at best a weak that kids playing hooky gang don’t, who hooky are more to be than but play likely members kids who gang that is at given (the best this record difference be speculation slight may indeed). If evidence), right. I the trial court was (lack you
Given this think otherwise, Farm and other amusement Berry then Knott’s Disneyland, believe evidence which majority look The same paucity had better out. parks at be used to one impose the curfew could justify use today are the customer base where sizable part amusement business park minors.
VII. Conclusion of civil liberties. a sad day history opinion represents majority is, camera literally, on when video infringement see no They the Internet. you surfing shoulder while looting your over If a were are most local level. bill Constitutional freedoms fragile would you in cybercafes, introduced in video surveillance Congress require major terms ed most op hear it in no uncertain pages about Grove and most this case is confined Garden But because newspapers. not, access to the Internet already (though affluent have computer people reason, deal?” access), big “what’s majority usually, high speech are lost. Not rights deal. This is Constitutional big way Here’s the edict, of deference. but the soft judicial whispers the thunder of tyrant’s