ESTEVANOVICH v. CITY OF RIVERSIDE

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Court of Appeal, Fourth District, Division 2, California.

Jim ESTEVANOVICH et al., Plaintiffs and Respondents, v. CITY OF RIVERSIDE et al., Defendants and Appellants.

No. E018016.

Decided: January 25, 1999

Gregory P. Priamos, Supervising Deputy City Attorney, Sharon J. Waters, Riverside and Diane C. Roth, Greines, Martin, Stein & Richland and Timothy T. Coates, Beverly Hills, for Defendants and Appellants. Harry H. Histen, Riverside, for Plaintiffs and Respondents.

OPINION

Following a nonjury trial, the court ruled that Riverside City Ordinance 6012 was unconstitutional as “violative of equal protection insofar as it restricts the hours of operation [of poolrooms].”  The court enjoined and restrained the City of Riverside (“City”) from enforcing restrictions on hours of operation.   At a separate trial for the cause of action for inverse condemnation the parties stipulated that Jim Estevanovich was entitled to damages in the amount of $17,800.   Final judgment on all causes of action was entered on January 3, 1996.

The City appeals, contending that Jim Estevanovich failed to establish that the challenged ordinance is unconstitutional on its face.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Cue's Family Billiards has operated at 9364 Magnolia Avenue, in Riverside, 24 hours a day, 7 days a week from approximately 1970 through approximately March 1, 1993.   Jim Estevanovich owns this poolroom.

The City first regulated the operation of poolrooms in 1909.   Since 1972, there has been a requirement that poolrooms be licensed or permitted.   A few permits were issued in the 1960's and one was issued in 1988.   However, “[the] major poolroom[s] in town includ[ing] the bowling alleys, Lake Alice Trading Company ․ Castle Park, and Big Mama's, and a number of others, including Mr. Cue's did not bother to get permits and nobody seemed to care.”

In 1991, four new poolrooms opened, and these establishments applied for permits from the City Council (“Council”).   At that time, the ordinances required the Council itself to investigate all of the applicants and their background.   The Council found this process to be inefficient;  and consequently, placed a moratorium on permits.   The Council referred the matter to the City's legal department asking for a new ordinance that would delegate the duty of investigating an individual's background to the police department.

In the summer of 1991, the City Attorney's Office asked the police department to draft a poolroom ordinance that would be enforceable by the police department.   Officer Douglas Wilson was placed in charge of drafting this new ordinance.   He did not compile any statistics on the amount of crime occurring at poolrooms, the breakdown of any poolroom crime by time period, or a comparison of poolroom crime to other places of amusement or other establishments open all night.   On his own, Officer Wilson decided to insert a provision in the ordinance requiring poolrooms to close between the hours of 2 a.m. and 6 a.m.1

On May 28, 1992, Wilson presented his draft ordinance to the City land use committee.   The land use committee sought Wilson's advice regarding the draft ordinance, and he told them that the police department should be the controlling enforcement agency behind it.   Wilson also told the committee his personal opinion that “if you allow a particular business to stay open between 2:00 and 6:00 a.m. and no other businesses are open, then we're going to see more crime in those areas due to the fact that that's the only place open.”   The land use committee recommended advancing the draft ordinance to the Council.

On August 18th, Acting City Attorney Barbara Purvis made a report to the Council itemizing the changes the draft ordinance would make to the original ordinance.   She stated that the major change was to remove the responsibility for issuing permits from the Council and place it with the police department.   She went on to add that Wilson's draft ordinance provided for a one-year limit on valid permits, removed the distinction between family poolroom and family billiards, and provided for charging a fee to offset the costs of investigation.   The substantive changes to the original ordinance were not mentioned,2 nor was there any presentation of evidence or crime statistics.

The City passed the draft ordinance on the recommendation of the City Attorney.

The new ordinance became effective in September of 1992.   On January 4, 1993,3 the City Attorney's Office advised the poolrooms of the existence of this new ordinance and directed them to comply beginning March 1, 1993.   The instant action was commenced on February 24, 1993.   In April, a land use committee meeting was held at the direction of the Council to hear evidence from Fats Billiards, another local poolroom, concerning the hours' restriction.   Wilson and another officer presented statistics that appeared to support the four-hour closure period.4  The poolroom owners and their representatives were not allowed to make any presentations or question witnesses called by the police department.   Several of Mr. Cue's neighbors had given statements to the police alleging that, although problems did exist in the neighborhood, these were caused by activities occurring at a house four or five doors down from Mr. Cue's.5 The police officers were not given the opportunity to present this information to the land use committee.   Based on the evidence before it, the land use committee recommended that no changes be made to the ordinance.

On November 16, 1993, the Council unanimously approved Ordinance 6088, amending Municipal Code Chapter 5.28 to change the stated purpose, but otherwise leaving the ordinance intact.   The original statement of purpose, as drafted by Officer Wilson, had read:

“5.28.010 PURPOSE. There are presently problems within the city limits regarding criminal activity involving gambling, drugs, prostitution, alcohol and gang affiliations associated in places of amusement, including poolrooms.   In order to assist law enforcement personnel to deal with these problems, the City Council deems it necessary and appropriate to regulate the operation of poolrooms.”

The newly amended statement of purpose read:

“5.28.010 PURPOSE. The operation of poolrooms as defined in this Chapter, presents an environment with the demonstrated potential for excessive noise generation and disorderly conduct by patrons, with the attendant adverse public safety impact on the surrounding business and residential community, including depreciation in property values, interference with residential neighbors' enjoyment and use of their property due to debris, noise and vandalism, higher crime rates in the vicinity of poolroom businesses involving gang, prostitution and drug activity.   Therefore, it is the purpose of this Chapter that the operation of poolroom businesses be regulated as a matter of public safety through the issuance of a police permit by the Chief of Police.” 6

During trial, the actual author of this ordinance, Officer Wilson, testified extensively as to the purpose he had in mind when he was in the process of drafting.   Some of the relevant testimony is as follows:

“Q. [By plaintiff's counsel] [In] coming to your opinion that ․ there was a higher rate of crime at poolrooms than any other place in Riverside, did you get similar statistics for Fairmont Park[, the Tyler Mall or University Avenue?]

“A. No, I didn't.

“․

“Q. Well, poolrooms have been singled out as required to have permits to operate in the City of Riverside?

“A. Correct.

“․

“Q. What things are ․ you keeping in check?

“A. Mainly prostitution.

“Q. Has there been a lot of prostitution in billiard halls?

“A. Not to my knowledge.

“․

“Q. So it has nothing to do with playing pool, you just want all businesses closed from 2:00 to 6:00 in the morning?

“․

“THE WITNESS:  We're not just singling out pool halls.   I mean, you have bars that have to close at 2:00 and open at 6:00.

“Q․  That is not a city ordinance, is it?

“A. It's a state law.

“Q. What about mini marts?

“A. Some mini marts are open 24 hours.

“Q. What about Denny's?

“A. Oh, I think most Denny's are open 24 hours.

“Q. Why are they allowed to stay open?

“A. To provide service to people.

“Q. And poolrooms do not provide a service to people?

“A. I think you're getting into the different types of clientele that will frequent pool halls versus a Denny's or mini marts.

“Q. What kind of clientele is that?

“A. Clientele that would be more prone to criminal activity during those hours.

“․

“Q․  Were the primary problems with pool halls at that time really problems near Mr. Cue's?

“A. No.

“Q. Where were there other problems?

“A. There were-we had problems at the Cue and Cushion․

“Q. But they were never open between 2:00 and 6:00, were they?

“A. I don't believe so.

“․

“Q. Any other pool halls that caused problems [between 2 and 6 in 1992]?

“A. Not that I can recall.

“․

“Q. Isn't your personal opinion, you just believe that people should be home after 2:00?

“A. That's my personal opinion.

“Q. I believe you made a statement to the effect ․ I would not personally want or allow my children to be playing pool at 4:00 a.m. or later?

“A. Yes.

“․

“A․  Pool halls for years have had a, probably an unjust stigma of being maybe dealing in crime and different things that go on inside․

“․

“Q. Sir, you just testified that one of the reasons for closing the poolrooms [is] they're the only business open at that time in the morning.  [Don't you mean the] only places of amusement open at that time in the morning?

“A. Well, okay.   Amusement or place to gather.

“Q. Okay. So if other places of amusement, theaters, Castle Park, city parks, whatever, stayed open, you wouldn't have any problem with the poolroom being open?

“A. I haven't given that thought.

“․

“Q. [Do poolrooms have any other games?]

“A. They may have darts there, and I think they have some pinball machines.

“Q. Are those subject to regulation, darts and pinball machine?

“A. No.

“Q. Why not, if you know?

“A. I don't know.   We don't have an ordinance that governs that.

“․

“Q. From your experience, what is it about playing pool that causes people to be criminally prone?

“A. I believe, I don't think I can answer that.   I can answer that if you have a business open, whether people are there to play pool, and that's it and have a good time, versus just the people that it attracts in and near the area in the neighborhood, what-that's what I'm trying to get across.   We want to try to prevent things from happening versus acting after they've already happened.”

The trial court found that the classification of poolrooms was not founded on a distinction that bore a rational relationship to the purpose that the ordinance was intended to serve.

DISCUSSION

The City contends that the trial court erred in finding this ordinance unconstitutional under the Equal Protection clause of the Fourteenth Amendment and under article I, section 7, subdivision (b) and article IV, section 16, subdivision (a) of the California Constitution.

I. Equal Protection

 The Equal Protection clause of the Fourteenth Amendment provides that “[n]o state shall ․ deny to any person within its jurisdiction the equal protection of the laws.”   Article IV, section 16, subdivision (a) and article I, section 7, subdivision (b) of the California Constitution guarantee to every person that “ ‘[a]ll laws of a general nature shall have a uniform operation’ and that ‘[no] citizen, or class of citizens, [shall] be granted privileges or immunities ․ not ․ granted [on the same terms] to all citizens'․   This principle of ‘equal protection’ preserved by both state and federal Constitutions, of course, ‘does not preclude the state from drawing any distinctions between different groups of individuals' [citation], but it does require that, at a minimum, ‘persons similarly situated with respect to the legitimate purpose of the law receive like treatment.’  [Citations.]”   (Brown v. Merlo (1973) 8 Cal.3d 855, 861, 106 Cal.Rptr. 388, 506 P.2d 212.)

 The federal constitutional standard has been phrased as follows:  “The Equal Protection Clause ․ den[ies] to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute.   A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ ”  (Reed v. Reed (1971) 404 U.S. 71, 75-76, 92 S.Ct. 251, 30 L.Ed.2d 225, quoting Royster Guano Co. v. Virginia (1920) 253 U.S. 412, 425, 40 S.Ct. 560, 64 L.Ed. 989;  see also Eisenstadt v. Baird (1972) 405 U.S. 438, 446-447, 92 S.Ct. 1029, 31 L.Ed.2d 349;  Weber v. Aetna Casualty & Surety Co. (1972) 406 U.S. 164, 173, 92 S.Ct. 1400, 31 L.Ed.2d 768;  Brown v. Merlo, supra, 8 Cal.3d 855, 861, 106 Cal.Rptr. 388, 506 P.2d 212.)

 Therefore, when a legislative body provides that one group of people shall receive different treatment from another, the provisions of our constitution demand more “than nondiscriminatory application within the class ․ establish[ed]․  [They] also [impose] a requirement of some rationality in the nature of the class singled out.”  (Rinaldi v. Yeager (1966) 384 U.S. 305, 308-309, 86 S.Ct. 1497, 16 L.Ed.2d 577;  Hayes v. Superior Court (1971) 6 Cal.3d 216, 223, 98 Cal.Rptr. 449, 490 P.2d 1137.)

 As such, a “State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.  [Citations.]   Furthermore, some objectives-such as ‘a bare ․ desire to harm a politically unpopular group,’ [citation]-are not legitimate state interests.”  (City of Cleburne v. Cleburne Living Center (1985) 473 U.S. 432, 446-447, 105 S.Ct. 3249, 87 L.Ed.2d 313.)

II. The Rational Basis Test

Thus, we must determine if the distinction created by the City, in Ordinance 6012, is “reasonable, not arbitrary,” and rests “upon some ground of difference having a fair and substantial relation to the object of the legislation.”   (Reed v. Reed, supra, 404 U.S. 71, 76, 92 S.Ct. 251, 30 L.Ed.2d 225;  Brown v. Merlo, supra, 8 Cal.3d 855, 861, 106 Cal.Rptr. 388, 506 P.2d 212.)   To determine this, we must ask two questions:  (1) what is the object of the legislation;  and, (2) whether the distinction between poolrooms and other establishments has a fair and substantial relation to this object.

III. The Legitimate Governmental Purpose

 In addressing the first prong of the rational basis test, a governmental action will be upheld if the court can “conceive” of a legitimate governmental purpose.  (See United States R.R. Retirement Bd. v. Fritz (1980) 449 U.S. 166, 179, 101 S.Ct. 453, 66 L.Ed.2d 368.)   Although usually the Legislature's stated purpose is accepted, the court “need not in equal protection cases accept at face value assertions of legislative purposes, when an examination of the legislative scheme and its history demonstrates that the asserted purpose could not have been a goal of the legislation.  [Citations.]”  (Weinberger v. Wiesenfeld (1975) 420 U.S. 636, 648, fn. 16, 95 S.Ct. 1225, 43 L.Ed.2d 514.)   When the record and legislative history establish that the stated purpose actually could not have been the legislative goal, a court can then look to alternative purposes underlying the governmental action.  (In re Boehme (1936) 12 Cal.App.2d 424, 428-429, 55 P.2d 559.)   This alternative purpose can then serve as the basis for holding a legislative “distinction” unconstitutional.  (Ibid.) If a review of the legislative history reveals no reasonable basis for believing that the legislative distinction is substantially related to the alternate purpose, the ordinance will be held invalid.  (Brown v. Merlo, supra, 8 Cal.3d 855, 861, 106 Cal.Rptr. 388, 506 P.2d 212;  see also City of Cleburne v. Cleburne Living Center, supra, 473 U.S. 432, 448, 105 S.Ct. 3249, 87 L.Ed.2d 313.) 7

A. The Second Articulated Purpose

 In the instant case we are presented with a stated purpose that the City feels is an appropriate statutory goal.   While we agree that public safety and stopping the depreciation of property values are valid legislative purposes,8 it is clear from the legislative history surrounding this ordinance's enactment that the City intended nothing of the sort.  (See e.g. In re Boehme, supra, 12 Cal.App.2d 424, 428-429, 55 P.2d 559.)

The ordinance was rewritten in response to a rash of new applications for poolroom permits.   The Council did not want to investigate the backgrounds of applicants.   It asked the City Attorney's Office to prepare an ordinance delegating these investigations to the police department.   The City Attorney returned with an ordinance that purported to do just that.   Consequently, the Council unanimously passed this ordinance.   At no time did the Council receive information, testimony, or statistics regarding poolroom crime.   Further, the council could not have been aware of the change in hours at issue here.

Of course, this lack of inquiry makes good sense considering the goal the Council had in requesting the new ordinance.   The purpose of this legislation was a transfer of investigatory power to the police department, nothing more.

The City urges us that we must accept its ex post facto second amended statement of purpose as legitimate and proceed with the second prong of the rational basis test.   In support it argues that, even if it had been shown that the City enacted this regulation based upon erroneous information, it has long been held that this would not provide a basis for declaring the ordinance invalid or unconstitutional.  (See Hadacheck v. Alexander (1915) 169 Cal. 616, 147 P. 259.)   However, we are not declaring the ordinance invalid simply because the City acted on erroneous, or no, information.   Rather, we are moving beyond the City's stated purpose after an examination of the legislative history forced us to conclude that the stated purpose could not have been the actual goal of the City.9 (In re Boehme, supra, 12 Cal.App.2d 424, 428-429, 55 P.2d 559;  see also Weinberger v. Wiesenfeld, supra, 420 U.S. 636, 648, fn. 16, 95 S.Ct. 1225, 43 L.Ed.2d 514.)

It is incontestable that a limitation on poolroom hours bears no logical connection to the delegation of authority that was the purpose of this ordinance as revealed in the legislative history.   Thus, we turn to the ordinance's original stated purpose.

B. The Original Articulated Purpose 10

 When Officer Wilson wrote the original ordinance, he included a statement of purpose.11  Former section 5.28.010 of the Riverside Municipal Code recognized the existence of crime associated with places of amusement.   Consequently, he deemed it necessary specifically to regulate poolrooms so as to rectify the general problem.   This statement is in step with Officer Wilson's presentations to the land use committee and is supported by much of his testimony during trial.   It is clear that the regulation of crime is a legitimate use of the police power.12  Further, since places of amusement and poolrooms are not suspect classes, a city can regulate either places of amusement or poolrooms for public safety reasons.  (See Shapiro v. Thompson (1969) 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600;  Sherbert v. Verner (1963) 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965;  Skinner v. Oklahoma (1942) 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655.)   On the other hand, it is an entirely different question whether a law that separates poolrooms from all other places of amusement, and all other places open late at night, creates a rational classification - and not an arbitrary distinction.13

IV. The Classification Scheme

The City contends that when it singled out poolrooms from all other places of amusement to be shut down from 2 to 6 a.m., it was merely trying to fight criminal activity.   Further, the City argues that historically it has been allowed to regulate poolrooms separately from other places of amusement.   Finally, the City contends that even if the law is underinclusive, it is not so to the point of irrationality.   We hold that the distinction between poolrooms and other places of amusement is irrational on the face of the statute and particularly in light of the legislative history.

 It is “well settled that a statute makes an improper and unlawful discrimination if it confers particular privileges upon a class arbitrarily selected from a larger number of persons all of whom stand in the same relation to the privileges granted and between whom and the persons not so favored no reasonable distinction or substantial difference can be found justifying the inclusion of the one and the exclusion of the other.  [Citation.]  [¶] The classification by the Legislature ‘must not be arbitrarily made for the mere purpose of classification, but must be based upon some distinction, natural, intrinsic, or constitutional, which suggests a reason for and justifies the particular legislation.   That is to say, not only must the class itself be germane to the purpose of the law but the individual components of the class must be characterized by some substantial qualities or attributes which suggest the need for and the propriety of the legislation.’ ”  (Looff v. City of Long Beach (1957) 153 Cal.App.2d 174, 181-182, 314 P.2d 518.)   It is clear that “[a] classification which rests upon no reasonable basis and which bears no substantial relation to a legitimate purpose to be accomplished is purely arbitrary and patently discriminatory.”  (Id., at pp. 183-184, 314 P.2d 518;  see also Cossack v. City of Los Angeles (1974) 11 Cal.3d 726, 735, 114 Cal.Rptr. 460, 523 P.2d 260.) 14

 Here we have a statute that purports to discourage “criminal activity involving gambling, drugs, prostitution, alcohol and gang affiliations associated in places of amusement” 15 by closing down poolrooms from 2 to 6 a.m. However, when we turn to the record and legislative history we see that the drafter of the ordinance had no statistics regarding a higher rate of crime at poolrooms compared to other places of amusement, or at poolrooms compared to other places that are open all night.   Officer Wilson claimed that he wrote the ordinance to keep prostitution in check;  but he also stated that to his knowledge there has not been much prostitution in poolrooms.   In fact, Officer Wilson stated that it was his belief that people should be home after 2 a.m. When asked how he could differentiate the clientele of poolrooms from the clientele of other places of amusement or other places that are open all night, Officer Wilson stated that “Pool halls for years have had a, probably an unjust stigma of being maybe dealing in crime and different things that go on inside.”   Further, Officer Wilson was unable to differentiate between the playing of pool and the playing of any other type of game.   In the end, all he could point to was some sort of “gut feeling” that if you have a business open all night, whether people are there to play pool or not, it will attract “criminally prone” clientele.

When we look at Officer Wilson's testimony in its totality, it becomes clear that this classification scheme serves no rational purpose.   It can be said that to single out poolrooms from other places of amusement and other places open all night is “purely arbitrary and patently discriminatory.”  (Looff v. City of Long Beach, supra, 153 Cal.App.2d 174, 184, 314 P.2d 518.)   There is simply no rational reason to treat poolrooms differently than other places of amusement or other establishments that are open all night.   This business has been irrationally singled out for disparate treatment.   A darts parlor or bowling alley would be allowed to remain open all night, but a poolroom would not.   It is irrational to believe that the closing of the poolroom in a bowling alley at 2 a.m. will discourage criminal activity when the persons playing pool can remain in the bowling alley.   Ironically, closing poolrooms to prevent crime may actually be counterproductive in that it forces persons, including criminally prone persons, to find another activity upon closing.   Like a midnight basketball league, it can be argued that the providing of a recreational activity late at night actually distracts persons from criminal activities.

In addition, it is not even clear that there is any significant crime to regulate at poolrooms.   The statistics given to the City by the police did not compare crime statistics from poolrooms to other places of amusement, nor did they compare poolrooms to other places that are open all night.   They merely stated the total number of crimes reported at poolrooms and broke them down into time slots.   Moreover, it is uncontested that of the 38 calls for police service that occurred at poolrooms between midnight and 6 a.m. in 1992, 35 of these calls came from only one poolroom.   Most of those calls related to activity at the nearby drug house.   This leaves only three total calls divided among four other poolrooms for an entire year.   As Officer McGill said, this is “not much of a problem.”

In the absence of any reason to associate crime with poolrooms as opposed to other places of amusement, it is irrational for the City to single them out from other establishments and shut them down during certain hours.   This classification scheme is arbitrary, discriminatory, and unconstitutional.

California courts have a long history of striking down similarly discriminatory ordinances.   In In re Boehme, supra, 12 Cal.App.2d 424, 55 P.2d 559, the Legislature passed a law requiring that barber shops close one day of the week for the purpose of standardizing the competency of barbers.   The court held that “placing an arbitrary limitation on the number of days ․ shops shall be kept open for the accommodation of the public has not the remotest connection with a law enacted for the purpose of standardizing competency of barbers.”  (Id., at p. 428, 55 P.2d 559.)   In addition, the court rejected the city's argument that the closing period would promote sanitation, stating that “the general cleaning of the premises ․ such as sweeping or scrubbing could hardly be left to be done on one day a week, any more than it could with respect to other places of business patronized by the public.”  (Id., at p. 429, 55 P.2d 559.)

In In re Scaranino (1936) 7 Cal.2d 309, 60 P.2d 288, the California Supreme Court examined the same barber shop law.   It noted that laws providing for closing periods were generally permissible within the police power.  (Id., at pp. 311-312, 60 P.2d 288.)   However, the Court concluded that, although “long hours of labor are no longer necessary and are not desirable, nevertheless, we cannot escape the conclusion that a law which singles out a single profession or calling for regulation of such matters is ․ repugnant to the federal and state Constitutions.”  (Id., at p. 312, 60 P.2d 288.)

The court in Deese v. City of Lodi (1937) 21 Cal.App.2d 631, 633-634, 69 P.2d 1005, analyzed a city ordinance requiring certain businesses to close between 7 p.m. and 6 a.m. for the purpose of insuring “adequate inspection, cleanliness and orderliness of such places of business and of the articles sold therein and for the purpose of promoting the public health of said city.”   The court noted that when an ordinance excepts particular businesses that come within the same reasonable classification, the ordinance is discriminatory.   (Id., at p. 637, 69 P.2d 1005.)   Finding no rationale basis for distinguishing between the businesses covered by the ordinance and the businesses excepted, that court held that “While the exercise of the police power is inherent in government and essential to its existence, it cannot be so used as to arbitrarily limit the rights of one class of people, and allow those same rights and privileges to a different class, where the public welfare does not demand or justify such a classification.”  (Id., at p. 640, 69 P.2d 1005.)   Thus, the statute was “arbitrary in its classifications and discriminatory in its attempted application, and ․ therefore void.”  (Id., at p. 641, 69 P.2d 1005;  see also Justesen's F. S., Inc. v. City of Tulare (1938) 12 Cal.2d 324, 84 P.2d 140.)

Next, in Looff v. City of Long Beach, supra, 153 Cal.App.2d 174, 314 P.2d 518, the court held unconstitutional a city ordinance that heavily regulated some amusement games while leaving others unregulated.   The court stated that “there is no question but that the city in the exercise of its police power may enact legislation regulating amusement enterprises.”  (Id., at p. 181, 314 P.2d 518.)   However, the court continued stating “ ‘․ It is equally well settled that a statute makes an improper and unlawful discrimination if it confers particular privileges upon a class arbitrarily selected from a larger number of persons all of whom stand in the same relation to the privileges granted and between whom and the persons not so favored no reasonable distinction or substantial difference can be found justifying the inclusion of the one and the exclusion of the other [citation].’ ”  (Ibid.) Finding itself unable to distinguish between one type of amusement and another, the court held the ordinance unconstitutional.  (Id., at pp. 184-185, 314 P.2d 518.)

Most recently, in Cossack v. City of Los Angeles (1974) 11 Cal.3d 726, 114 Cal.Rptr. 460, 523 P.2d 260, a court once again found itself unable to distinguish between various games played at places of amusement.   Citing both Looff and Brown v. Merlo, the California Supreme Court overturned a city ordinance that purported to distinguish between various games for public health and safety reasons.  (Id., at pp. 734-735, 114 Cal.Rptr. 460, 523 P.2d 260.)

Clearly, the instant case is directly in line with this long chain of opinions.   We are faced with a city ordinance - passed for appropriate purpose - that attempts to distinguish between businesses that allow pool, and other businesses such as dart parlors and bowling alleys, in order to fight crime.   This classification is arbitrary and capricious, particularly so in light of the City's original purpose to fight crime found at all “places of amusement.”

 Lastly, the City argues that it has historical authority to regulate poolrooms separately from other places of amusement.   In support it cites the original 1909 City ordinance, as well as Murphy v. California (1912) 225 U.S. 623, 32 S.Ct. 697, 56 L.Ed. 1229 and Ex parte Murphy (1908) 8 Cal.App. 440, 97 P. 199.   The City perhaps forgets, however, that when a court examines legislation or precedent “ ‘[a] court should take into account matters such as context, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction.’ ”  (Cossack v. City of Los Angeles, supra, 11 Cal.3d 726, 733, 114 Cal.Rptr. 460, 523 P.2d 260, emphasis added.)

If we look simply to the opinion in Ex parte Murphy, supra, 8 Cal.App. 440, 97 P. 199, the disparity in eras will manifest itself.   The court in Ex parte Murphy stated that although a poolroom was not a nuisance per se, “ ‘[t]hat it may become such by the presence of the professional billiardist and gambler ready to fleece the unwary and to inculcate the gambling habit in the youth of the city․’   In the case of Tarkio v. Cook [120 Mo. 1, 25 S.W. 202 (1894)] .. ., it is said:  ‘Public billiard halls are regarded by many as vicious in their tendencies, leading to idleness, gambling and other vices.’  ․ ‘Nor can it be said that as ordinarily, if not invariably, conducted such business might not within the limits of reasonable probability be attended with uses injurious to the public peace and morals.’  ‘Any practice or business the tendency of which as shown by experience is to weaken or corrupt the morals of those who follow it, or to encourage idleness instead of habits of industry, is a legitimate subject for regulation or prohibition.’  [Citations.]  [Thus a poolroom] constitute[s] a menace and danger to the morals and well-being of the citizens ․ and it is, therefore, a subject for regulation or absolute prohibition․”  (Ex parte Murphy, supra, at pp. 444-445, 97 P. 199.)

We do not doubt that in 1909, there was “Trouble, right here in River City-that starts with ‘T,’ and that rhymes with ‘P,’ and that stands for Pool.” 16 Unfortunately, times are different today, and there are many establishments that cater to idleness and are open all night.17  The City cannot rationally claim that it is fighting crime by merely closing down poolrooms for four hours each morning.

V. Conclusion

Thus, Chapter 5.28 of the Riverside Municipal Code, specifically section 5.28.100 regulating hours of operation, arbitrarily and irrationally singles out poolrooms for invidious discrimination, thereby denying poolrooms equal protection of the law under our state and federal Constitutions.

DISPOSITION

The judgment is affirmed.

I respectfully dissent.   I do not believe this, or any, court should usurp the legislative prerogative.   The majority's opinion essentially takes the City of Riverside to task for passing an ordinance without a rational basis.   There was a rational basis for the City's decision and it is not for us to second guess the legislative body.   I would therefore reverse the trial court's determination that a portion of the statute is unconstitutional.

PROCEDURAL BACKGROUND

I will not repeat the facts and procedural background except to note the limited basis upon which the matter has come before us.   The challenged ordinance regulated poolrooms and specifically mandated closure between 2 a.m. and 6 a.m. The trial court adjudged that the ordinance was “unconstitutional as violative of equal protection as it restricts the hours of operation.”   There was no determination that the ordinance was otherwise unconstitutional.   The parties stipulated in the trial court that the matter should be submitted to this court for the purpose of determining the constitutionality of the ordinance.   Our focus, therefore, is on the constitutionality of the restriction as to hours.

DISCUSSION

I. The Ordinance Was a Proper Exercise of the City's Police PowerA. The City Had the Right to Regulate the Plaintiffs' Business

“It is elementary, 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 patrons of the business and other members of the public.  [Citations.]”   (Antonello v. City of San Diego (1971) 16 Cal.App.3d 161, 167, 93 Cal.Rptr. 820.)

“The law is clear that a municipality has the general power to regulate commercial businesses where the regulation is reasonable and nondiscriminatory.  [Citations.]   For example, it is permissible under a municipality's police powers to reasonably restrict the hours of operation of an economic enterprise.  (E.g., In re Sumida (1918) 177 Cal. 388 [170 P. 823];  Brix v. City of San Rafael (1979) 92 Cal.App.3d 47 [154 Cal.Rptr. 647].)”  (People v. Glaze (1980) 27 Cal.3d 841, 845, 166 Cal.Rptr. 859, 614 P.2d 291.)  (Glaze involved a criminal act and the court found the ordinance unconstitutional on First Amendment grounds.)

There is a broad authority to regulate and “[p]ublic places of amusement and entertainment furnish an appropriate sphere for the exercise of this police power, ․” (7978 Corporation v. Pitchess (1974) 41 Cal.App.3d 42, 46, 115 Cal.Rptr. 746.)

There is a long history of regulation of pool halls, even the total prohibition of them in certain circumstances.   In 1912, the United States Supreme Court upheld a city ordinance against pool halls.  (Murphy v. California (1912) 225 U.S. 623, 628,[32 S.Ct. 697, 698, 56 L.Ed. 1229, 1232].)  Any reference to that case conjures up visions of Robert Preston and the “Music Man.” Indeed, the majority in its opinion and the plaintiffs in the trial court evoked those images.1  A valid point is made.   Times and attitudes have changed and the image of pool halls and pool rooms is different today.   But this change in attitude does not change the basic right of a city council to pass appropriate ordinances.   We may no longer believe, as the Murphy court did, that the mere operation of a pool hall is harmful, but a city still has the right to exercise its police powers, within constitutional limits, as they pertain to businesses, including pool halls/poolrooms.

B. The City is Entitled to a Presumption of Constitutionality

“As a general rule, ‘legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality.’  McGowan v. Maryland, 366 U.S. 420, 425-426, 6 L.Ed.2d 393 81 S.Ct. 1101, 1105 (1961).”  (Nordlinger v. Hahn (1992) 505 U.S. 1, 10, 112 S.Ct. 2326, 2331, 120 L.Ed.2d 1, 12.)

“It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.”  (Usery v. Turner Elkhorn Mining Co. (1976) 428 U.S. 1, 15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752, 766.)   This court has applied this presumption of constitutionality in dealing with a statute where the challenger asserted substantive due process and equal protection arguments.   (Stubblefield Construction Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687, 38 Cal.Rptr.2d 413.)

To attack the ordinance facially plaintiffs must “ ‘ “demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.” ’ ”  (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084, 40 Cal.Rptr.2d 402, 892 P.2d 1145.)   The Supreme Court in Tobe reiterated the presumption of constitutionality:  “All presumptions favor the validity of a statute.   The court may not declare it invalid unless it is clearly so.”  (Id. at p. 1102, 40 Cal.Rptr.2d 402, 892 P.2d 1145.)

In a facial challenge to the constitutional validity of an ordinance, the court only considers the text of the measure itself, not its application to particular persons.   In a facial challenge there is no need for the taking of evidence regarding the enforcement of the ordinance, since the issue is a matter of law as to the ordinance itself.  (Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1084, 40 Cal.Rptr.2d 402, 892 P.2d 1145.)   In the light of the clear authority permitting the defendant's exercise of its police powers, plaintiffs cannot establish any unconstitutionality on the face of this ordinance.

II. Plaintiffs Have Failed to Show That the Ordinance Violated Their Right to Equal Protection Under the Law

Plaintiffs alleged that the ordinance violated their constitutional right to equal protection.   Plaintiffs bore the burden of showing that the challenged ordinance was unconstitutional.   However, the trial court and the majority seem to have shifted the burden to the City to show that the ordinance was constitutional.

A. Rational Basis Scrutiny Applies to the Challenged Ordinance

The standards governing our review of equal protection challenges are well established:  Unless a statutory distinction “burdens a suspect group or a fundamental interest” (Vance v. Bradley (1979) 440 U.S. 93, 96-97, 99 S.Ct. 939, 942-943, 59 L.Ed.2d 171, 175-176), “courts are quite reluctant to overturn governmental action on the ground that it denies equal protection of the laws.   The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.   Thus, we will not overturn such a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational.”  (Id. at pp. 96-97, fn. omitted, 99 S.Ct. at pp. 942-943, 59 L.Ed.2d at p. 176.)   Here, no contention is raised that the ordinance targets a suspect group or a fundamental interest;  rather, the ordinance simply regulates a commercial enterprise, and rational basis scrutiny applies.

One challenging a legislative enactment has the burden to “convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.”  (Vance v. Bradley, supra, 440 U.S. at p. 111, 99 S.Ct. 939, 944-945, 949, 59 L.Ed.2d 171, 184.)   The test has also been stated as follows:  “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”  (McGowan v. Maryland (1961) 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393, 399.)   This rational basis scrutiny has been characterized as “the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause.”   (Dallas v. Stanglin (1989) 490 U.S. 19, 26, 109 S.Ct. 1591, 1596, 104 L.Ed.2d 18, 26 [Dallas upheld an ordinance that regulated dancing establishments for teenagers].)  “In determining whether a challenged classification is rationally related to achievement of a legitimate state purpose, we must answer two questions:  (1) Does the challenged legislation have a legitimate purpose?, and (2) Was it reasonable for the lawmakers to believe that use of the challenged classification would promote that purpose?”  (Western & S.L.I. Co. v. Bd. of Equalization (1981) 451 U.S. 648, 668, 101 S.Ct. 2070, 2083, 68 L.Ed.2d 514, 530-531.)

1. The Challenged Ordinance Has a Legitimate Purpose

In determining whether legislation survives an equal protection challenge, the first inquiry is whether the challenged ordinance has a legitimate purpose.   As we discussed above the regulation of commercial enterprises is a legitimate exercise of the police power.   More specifically, regulation of hours of operation of a commercial enterprise for the purpose of limiting crime has long been recognized as such a legitimate purpose.

a. Regulation of Hours was a Proper Exercise of the City's Police Power

Under its police powers, a municipality may impose reasonable and nondiscriminatory regulations on business enterprises, including public places of amusement and entertainment.  (7978 Corporation v. Pitchess, supra, 41 Cal.App.3d at p. 46, 115 Cal.Rptr. 746.)   Such regulations may include reasonable restrictions on hours of operation.  (People v. Glaze, supra, 27 Cal.3d at p. 845, 166 Cal.Rptr. 859, 614 P.2d 291.)   In 7978 Corporation v. Pitchess, supra, 41 Cal.App.3d 42, 115 Cal.Rptr. 746, the court upheld a licensing ordinance that restricted the operation of dancing and entertainment facilities between 2 and 6 a.m. The court held, “The reasonableness of regulation under the police power is dependent upon the nature of the business being regulated and the degree of threat that the operation of such business presents to the tranquillity, good order, and well-being of the community at large.   So long as a ‘patent relationship between the regulations and the protection of the public health, safety, morals, or general welfare’ exists, the regulations will be considered reasonable.  [Citations.]”  (Id. at p. 47, 115 Cal.Rptr. 746.)

In upholding the restrictions on hours of operation the court said:  “We cannot say that the closing hours imposed on plaintiffs' business are arbitrary or unreasonable.   The county could justifiably conclude that public dancing and public entertainment ‘at such late hours would tend to attract and congregate evilly disposed persons at hours when the [county] would be least prepared with police to guard against the acts of such persons.’   [Citation.]   The county could also conclude that during a portion of the 24-hour day the desires of those who seek to present public entertainment around the clock should yield to the wishes of those who seek peace and quiet in the small hours of the morning.   As further evidence of the reasonableness of the regulated hours, we note that the closing hours correspond precisely with the hours during which alcoholic beverages may not be sold.  (Bus. & Prof.Code, § 25631.)”  (7978 Corporation v. Pitchess, supra, 41 Cal.App.3d at p. 47, 115 Cal.Rptr. 746.)

This District has addressed the issue of hours of operation of a business.   The court considered alternatives to regulating the hours and held, “we do not believe the government is foreclosed from adopting regulatory schemes that not only deal with problems after they exist but also attempt to reasonably remove the potential for such problems.  [Citation.]   That the police can deal with disruptions of the peace or close establishments after the fact is insufficient.   Prevention of disorder is a reasonable goal of the subject ordinance.”  (Sundance Saloon, Inc. v. City of San Diego (1989) 213 Cal.App.3d 807, 821-822, 261 Cal.Rptr. 841 [the court was focusing on injunctive relief but the issue had to do with the reasonableness of the statute mandating the early morning closure].)  Similarly, in the instant case the City was attempting, by a regulatory scheme, to deal with the problem of crime.

The majority is concerned that this ordinance regulates only poolrooms and not other businesses that are open at night.   The majority opinion implies that the City would have to regulate all businesses in order to be consistent with its stated purpose.   The City is not required to undertake an all-or-nothing approach.  “[T]he Legislature may take reasonable measures to eliminate some of the causes of an evil without attacking all of them.”  ( Allied Properties v. Dept. of Alcoholic Beverage Control (1959) 53 Cal.2d 141, 148-149, 346 P.2d 737;  accord Coast-United Advertising, Inc. v. City of Long Beach (1975) 51 Cal.App.3d 766, 770, 124 Cal.Rptr. 487;  McMahan's Furniture Co. v. City of Pacific Grove (1963) 219 Cal.App.2d 732, 736, 33 Cal.Rptr. 476.)

b. The Ordinance Contains a Statement of Purpose

The ordinance, as initially enacted, contained an express statement of purpose:  “5.28.010 PURPOSE.   There are presently problems within the city limits regarding criminal activity involving gambling, drugs, prostitution, alcohol and gang affiliations associated in places of amusement, including poolrooms.   In order to assist law enforcement personnel to deal with these problems, the City Council deems it necessary and appropriate to regulate the operation of poolrooms.”

The statement of purpose was later amended to read, “The operation of poolrooms as defined in this Chapter, presents an environment with the demonstrated potential for excessive noise generation and disorderly conduct by patrons, with the attendant adverse public safety impact of the surrounding business and residential community, including depreciation in property values, interference with residential neighbors' enjoyment and use of their property due to debris, noise and vandalism, higher crime rates in the vicinity of poolroom businesses involving gang, prostitution and drug activity.   Therefore, it is the purpose of this Chapter that the operation of poolroom businesses be regulated as a matter of public safety through the issuance of a police permit by the Chief of Police.”  (Riverside Municipal Code, § 5.28.010, as amended by Ordinance 6088.)

c. The Court May Not Look Beyond the Express Statements of Purpose Included Within the Ordinance

Despite these statements of legislative purpose, the majority opinion discusses at length whether the stated purposes for the ordinance were what in fact prompted the council to pass the ordinance.   The majority posits that the stated purpose was not the true purpose, because the legislative body of the City had initially requested an ordinance to be drafted to delegate licensing authority of pool halls to the police department.   The majority then assumes the City council's purpose in requesting a new ordinance was the same as the City council's purpose in adopting the ordinance that was presented.   Furthermore, the majority states the City council could not have been aware the proposed ordinance went beyond the scope of the City council's original request:  because the City council did not receive “information, testimony, or statistics regarding poolroom crime ․ the council could not have been aware of the change in hours at issue here.”  (Majority opn., ante, p. 692.)

The text of the ordinance itself makes clear the change in hours of operation.   We are required to presume the City council read and understood the ordinance it was adopting and was fully cognizant of all its provisions.  (Evid.Code, § 664;  see also Amvest Mortgage Corp. v. Antt (1997) 58 Cal.App.4th 1239, 1245, 68 Cal.Rptr.2d 457 [courts must presume Legislature was fully aware of clear meaning of language it uses in enacting a statute].)

Moreover, the majority notes the original stated purpose was to deter criminal activity associated with places of amusement, and the ordinance sought to accomplish this goal by closing only pool rooms between 2 and 6 a.m. The majority then notes that the drafter of the ordinance had no statistics showing a higher rate of crime at pool rooms than at other places of amusement and other businesses that are open at night.   The majority looks to Officer Wilson's testimony at trial to conclude that the classification scheme serves no rational basis and is purely arbitrary and discriminatory.   However, Officer Wilson's testimony was irrelevant;  no showing was made that the matters about which he testified were presented to the City council, and such evidence at trial was not part of the legislative history of the ordinance.

In City of Los Angeles v. Superior Court (1985) 170 Cal.App.3d 744, 216 Cal.Rptr. 311, a person challenging the enforcement of a city's rent stabilization ordinance (RSO) sought discovery as to what an assistant city attorney, the principal drafter of the ordinance, had considered in doing so.   The court held that such discovery was irrelevant:  “By attempting to delve into the mind of the RSO's principal drafter, [the challenger] is trying to discover what the individual members of the city council interpreted the RSO to mean at the time they passed the ordinance.   This violates one of the long-established rules of statutory construction:  that the testimony of an individual legislator as to his intention, motive or opinion with regard to a particular piece of legislation is inadmissible.  [Citation.]   Legislative intent must be ascertained from the language of the statute itself[.]”  (Id. at p. 752, 216 Cal.Rptr. 311;  see also City and County of San Francisco v. Superior Court (1982) 130 Cal.App.3d 481, 485-486, 181 Cal.Rptr. 775 [holding that memo from a city attorney concerning the legality of a proposed ordinance was irrelevant because the purpose of the ordinance was unambiguous, and there was therefore no need to delve into the underlying legislative intent].)

In C-Y Development Co. v. City of Redlands (1982) 137 Cal.App.3d 926, 187 Cal.Rptr. 370, this court stated, “The general rule is that, in determining legislative intent, the views of individual drafters are not considered as grounds upon which to construe a statute.   There is no necessary correlation between what the drafter understood the text to mean and what the voters enacting the measure understood it to mean.  (2A Sutherland, Statutory Construction (4th ed.   1973) § 48.12, pp. 214, 215.)   An exception has sometimes been made where the drafters' views were clearly and prominently communicated to the legislators at the time the measure was considered for enactment, on the theory that there was reason to believe that the other legislators were influenced in their view of the bill by the drafters' communicated views, but the exception has been largely confined to a setting in the Legislature where a limited number of legislators may clearly be expected to be so influenced.  (Ibid.) The exception is also clearly confined to views expressed while the measure was being considered, and does not concern expressions of individual motivation made after the fact.  (2A Sutherland, supra, §§ 48.12, 48.17, pp. 214-216, 223-223.)   The declarations [of two of the drafters of a proposed proposition measure concerning their intentions] are thus inadmissible as aids in ascertaining legislative intent.”  (Id. at pp. 932-933, 187 Cal.Rptr. 370.)

The majority has unwittingly run afoul of a basic principles by which we evaluate legislation.   It is not our job to challenge the motives of legislators.   Indeed, we are prohibited from doing so.  “It is, however, the general, if not the universal, rule that the motive of the legislator may not be inquired into.   His conduct is to be judged by the expression which it takes in the enactment adopted, ․” (Hadacheck v. Alexander (1915) 169 Cal. 616, 617, 147 P. 259.)

The power to make laws is vested in the legislative body and the courts should not interfere with that power.  “Ancillary to this separation of powers deference is the proposition that a court may not inquire into the motives of the Legislature in making its laws.”  (City of Santa Cruz v. Superior Court (1995) 40 Cal.App.4th 1146, 1151, 48 Cal.Rptr.2d 216 [City of Santa Cruz was concerned with City officials being required to respond to discovery proceedings and necessarily discussed separation of powers and legislative motive].)

I accept the defendant City's stated purpose.   I am not troubled by the fact that the City amended the statement of purpose in the ordinance.   I find nothing remarkable (or sinister) in that.   Legislation is routinely amended as it progresses through its tortuous process.   I believe that we must accept the words of the Riverside City Council as to its purpose in passing this ordinance as a sincere expression of its intentions.

The majority cites Weinberger v. Wiesenfeld (1975) 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 in support of its inquiry into the City's motives.   In Weinberger the court found gender based discrimination in provisions of the social security laws.   The court said that it was not bound, in equal protection cases, to accept at face value assertions of legislative purposes.   (Id. at p. 648, fn. 16, 95 S.Ct. 1225.)   I do not disagree with that conclusion.   Where I disagree with the majority in this case is its conclusion from the limited record before us that we cannot accept at face value the City's stated purpose.   There is a troubling interpretation that could be given to the majority's characterization of the City's motives.   Stated in the most unflattering way, the majority is saying either that the City had a secret agenda not revealed to us or that it was duped by its police department.   The opinion suggests that the police simply wanted to control one drug house.   The opinion also could be read to imply that to accomplish these inappropriate goals, the City used inappropriate legislative procedures.   I am not convinced the majority actually takes that strong a position but the opinion can be read that way.   While I may be critical of the thoroughness of the City's process, I am unwilling to attribute these motives to the elected officials and the law enforcement officers of the City. I am willing to accept their statement of purpose.

The majority also cites Bravo Vending v. City of Rancho Mirage (1993) 16 Cal.App.4th 383, 405-409, 20 Cal.Rptr.2d 164, a decision of this court, for the proposition that inquiry into the origins and wherewithal of a statute is appropriate.  Bravo is distinguishable.   In that case this court was determining a single issue:  whether a Penal Code section prohibiting the sale of cigarettes to minors preempted a portion of the city ordinances which were being challenged in the case.  “In neither ordinance did the City include an express statement of purpose or finding of necessity.”   (Id. at p. 408, 20 Cal.Rptr.2d 164.)   Under those circumstances this court had to examine the legislative history to establish the legislative purpose.   Here, the City of Riverside has given an express statement of purpose.

In further support of its inquiry the majority cites In re Boehme (1936) 12 Cal.App.2d 424, 55 P.2d 559.   In that case Boehme had been convicted of violating a Penal Code section prohibiting barbershops from operating seven days a week.   The court found that the law violated his constitutional right to pursue his trade.   In essence, the court was balancing the right of the defendant to work and the alleged benefit to the community of the regulation being challenged.   Parenthetically, the court also had to discuss Sunday closure laws in effect at that time, which presented something of the same question.   In the present case the City has an acceptable purpose for this law and that is balanced against an alleged right of a business to remain open between 2 a.m. and 6 a.m. Using the Boehme approach, I believe that the claimed right to stay open during those hours must give way to the City's stated purpose.

2. It Was Reasonable For the City to Believe That the Classification Would Promote the Purpose

The second inquiry to determine whether legislation survives an equal protection challenge is whether it was reasonable for the legislative body to believe that the classification would promote the stated purpose.   In considering this question, rather than applying the relaxed and tolerant rational basis scrutiny, the majority has reexamined and reweighed the evidence, and found it lacking.   The majority seems to believe the City had to have empirical proof of a crime problem at pool halls to justify the ordinance.   In Vance v. Bradley, supra, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171, which involved an equal protection challenge to Foreign Service mandatory retirement rules, the United States Supreme Court explicitly rejected such an approach.   The court stated, “Appellees seem to believe that appellants had to have current empirical proof that health and energy tend to decline somewhat by age 60 and had to offer such proof for the District Court's perusal before the statute could be sustained.[2 ]  Such evidence of course would argue powerfully for sustaining the statute, see Murgia [Massachussets Board of Retirement v. Murgia (1976) 427 U.S. 307, 314-315, n. 7 [96 S.Ct. 2562, 49 L.Ed.2d 520]].  But this case, as equal protection cases recurringly do, involves a legislative classification contained in a statute.   In ordinary civil litigation, the question frequently is which party has shown that a disputed historical fact is more likely than not to be true.   In an equal protection case of this type, however, those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.  [Citations.]   As we have said in a slightly different context:  [¶] ‘The District Court's responsibility for making “findings of fact” certainly does not authorize it to resolve conflicts in the evidence against the legislature's conclusion or even to reject the legislative judgment on the basis that without convincing statistics in the record to support it, the legislative viewpoint constitutes nothing more than what the District Court in this case said was “pure speculation.” ’  [Citation.]  [¶] Consequently, appellees were required to demonstrate that Congress has no reasonable basis for believing that conditions overseas generally are more demanding than conditions in the United States and that at age 60 or before many persons begin something of a decline in mental and physical reliability.   Appellees have not satisfied these requirements․  [I]t is the very admission that the facts are arguable that immunizes from constitutional attack the congressional judgment represented by this statute:  [¶] ‘It makes no difference that the facts may be disputed or their effect opposed by argument and opinion of serious strength.   It is not within the competency of the courts to arbitrate in such contrariety.’  [Citation.]”  (Vance v. Bradley, supra, 440 U.S. at pp. 110-112, 99 S.Ct. at pp. 949-950, 59 L.Ed.2d at pp. 184-185.)

The record is not clear as to just what evidence was actually presented to the City council.   However, the officers who were charged with doing the investigation for the City were the agents of the legislative body that passed the ordinance and it was on their recommendation that the legislation was passed.   This is typical of the workings of city councils.   Councils do not take evidence like judges do.   They assign the investigative tasks to agents and departments.   When the reports of such investigations are made thereafter, then the council acts.

Plaintiffs take issue with a law being written by a police detective and the majority opinion seems to echo that criticism.   But these criticisms of the procedures used by the legislative body miss the point.   Certainly, it is not the business of this court to inquire as to who was assigned the task of actually writing a law.   It is not our job to dictate legislative procedure.   The old saw about laws and sausages comes to mind;  the legislative process is an imperfect one.   If courts were to regularly indulge in the exercise done by the majority, courts would be busy indeed examining the procedures followed by legislators and inquiring as to who on their staff did the drafting of the law in question.

Reduced to its most basic elements the question is whether it was reasonable for the City council to conclude that closing poolrooms between 2 and 6 a.m. would address the legitimate purpose to control crime.   I believe that the issue is debatable.   Parties challenging legislation under the equal protection clause cannot prevail so long as the issue being considered is at least debatable.  (Minnesota v. Clover Leaf Creamery Co. (1981) 449 U.S. 456, 464, 101 S.Ct. 715, 724, 66 L.Ed.2d 659, 669 [The issue was whether the legislature could outlaw plastic milk containers.   Both sides presented evidence and arguments to the legislature and the United States Supreme Court declined to overturn the decision of the legislature].)

3. The Application of the Ordinance to Poolrooms Did Not Create an Impermissible Distinction

Plaintiffs do not contend that they were denied equal protection within the class of poolroom operators.   Instead they contend that the denial of equal protection came within an amorphous class of businesses which stay open 24 hours a day.   It is in this class where they perceive that they have been discriminated against because the ordinance requires the closure of poolrooms during the early morning hours.

As the majority acknowledges, regulation of crime is a legitimate exercise of police power, and a city can regulate places of amusement, including pool rooms, for public safety reasons.  (Majority opn., ante, p. 693.)   The majority asserts, however, that a law separating pool rooms from all other places of amusement and all other businesses open at night creates an arbitrary distinction, not a rational classification.

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution commands that no State shall “deny to any person within its jurisdiction the equal protection of the laws.”   Most laws do differentiate in some way between classes of persons, and the Equal Protection Clause does not forbid classifications.   Rather, it simply prohibits laws that treat differently persons who are in all relevant respects alike.  (F.S. Royster Guano Co. v. Commonwealth of Virginia (1920) 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989.)  “ ‘When a legislative classification is questioned, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of existence of that state of facts, and the burden of showing arbitrary action rests upon the one who assails the classification.’ ”  (Blumenthal v. Board of Medical Examiners (1962) 57 Cal.2d 228, 233, 18 Cal.Rptr. 501, 368 P.2d 101.)

“[A] statute makes an improper and unlawful discrimination if it confers particular privileges upon a class arbitrarily selected from a larger number of persons all of whom stand in the same relation to the privileges granted and between whom and the persons not so favored no reasonable distinction or substantial difference can be found justifying the inclusion of the one and the exclusion of the other.  [Citation.]  [¶] The classification by the Legislature ‘must not be arbitrarily made for the mere purpose of classification, but must be based upon some distinction, natural, intrinsic, or constitutional, which suggests a reason for and justifies the particular legislation.   That is to say, not only must the class itself be germane to the purpose of the law but the individual components of the class must be characterized by some substantial qualities or attributes which suggest the need for and the propriety of the legislation.’ ”  (Looff v. City of Long Beach (1957) 153 Cal.App.2d 174, 181-182, 314 P.2d 518.)  “A classification which rests upon no reasonable basis and which bears no substantial relation to a legitimate purpose to be accomplished is purely arbitrary and patently discriminatory.”  (Id. at pp. 183-184, 314 P.2d 518;  see also Cossack v. City of Los Angeles (1974) 11 Cal.3d 726, 735, 114 Cal.Rptr. 460, 523 P.2d 260.)

This district has addressed a city's regulation of “peep shows” in a case in which the operators contended they were denied equal protection because other theaters were not similarly regulated.   In upholding the regulation, the court stated, “An ordinance, enacted under the police power, imposing burdens upon a class of persons does not violate the equal protection guarantee providing it applies equally to all persons within the class, and the classification is founded upon some natural, intrinsic or constitutional distinction which bears a rational relationship to the purpose the ordinance is intended to serve.  [Citations.]   In creating such a classification the legislative body ‘is free to recognize degrees of harm and to confine its regulation to those classes of cases in which the need is deemed to be the most evident.’  [Citation.]”   (Antonello v. City of San Diego, supra, 16 Cal.App.3d at pp. 167-168, 93 Cal.Rptr. 820.)

In response to an equal protection challenge to the ordinance under review in 7978 Corporation, v. Pitchess, supra, 41 Cal.App.3d 42, 115 Cal.Rptr. 746, the court observed, “Plaintiffs point to other commercial enterprises whose hours of business are not regulated by the county.   But the county could justifiably conclude that by reason of particular circumstances of noise and public congregation the activities that accompany plaintiffs' type of business present special problems that require special regulation.  [Citation.]   In Cossack v. City of Los Angeles, 11 Cal.3d 726 [114 Cal.Rptr. 460, 523 P.2d 260], the Supreme Court concluded that prohibition of a game of skill (pinball) in public places was arbitrary when that game of skill was singled out from all other games of skill for prohibition.   At bench we are concerned with regulation, not prohibition, and with an entire class of commercial establishments, not an arbitrarily selected group within a class.”  (7978 Corporation, supra, at p. 48, 115 Cal.Rptr. 746.)

The majority points to California cases which have struck down discriminatory ordinances.   In Deese v. City of Lodi (1937) 21 Cal.App.2d 631, 69 P.2d 1005, the court struck down a city ordinance that required certain places of business, such as stores, banks, and markets, to close on one weekend day, and on certain holidays, for the expressed purposes of providing a day of rest to working people, “of insuring adequate inspection, cleanliness and orderliness of such places of business, and of the articles sold therein, and for the purpose of promoting the public health․”  (Id. at p. 635, 69 P.2d 1005.)   The ordinance excepted “dance-halls, billiard-halls, skating rinks, baseball games, sporting contests, theatres, and other places of amusement.”   The court found that the ordinance not only created an arbitrary distinction, but also could not logically be said to promote cleanliness and orderliness.  (Id. at p. 638, 69 P.2d 1005.)   The court noted, “We may add what we know is common knowledge, that such excepted places are the very places where acts of disorderliness do occur, are expected to occur, and are of common occurrence, whereas, practically nothing of the kind ever does occur in a grocery store.”   (Id. at p. 638, 69 P.2d 1005.)   The clear implication of that statement is that a similar ordinance applying to places of amusement would have been upheld.

In Looff v. City of Long Beach, supra, 153 Cal.App.2d 174, 314 P.2d 518, the court found invalid an ordinance that regulated certain games, but excepted other games that the court found to be indistinguishable with respect to the skills required of the players.  (Accord, Cossack v. City of Los Angeles, supra, 11 Cal.3d 726, 114 Cal.Rptr. 460, 523 P.2d 260.)   In Amusing Sandwich, Inc. v. City of Palm Springs (1985) 165 Cal.App.3d 1116, 211 Cal.Rptr. 911, this court addressed an equal protection challenge to a zoning ordinance that prohibited video games in the city's business district.   The challenger, relying principally on Cossack, supra, argued the ordinance created an impermissible distinction between video games on the one hand and other games, such as billiards, bowling, skating, miniature golf, and tennis, on the other hand, “ ‘without a scintilla of evidence that there [was] a basis for difference in treatment.’ ”  (Id. at p. 1125, 211 Cal.Rptr. 911.)   This court upheld the ordinance, finding it permissible to distinguish between different classes of games, and thus the case was different from Cossack and Looff in which an impermissible distinction was made between particular games within the same class.  (Id. at p. 1125, 211 Cal.Rptr. 911.)   The court also noted that singling out video games for regulation was rationally related to the purpose of limiting noise, traffic and security hazards associated with video games within an area that catered to pedestrians.  (Id. at pp. 1126-1127, 211 Cal.Rptr. 911.)   Finally, the court noted that unlike in Cossack and Looff, the challenged ordinance was regulatory rather than prohibitory.   Thus, the court rejected the equal protection challenge.   The trial court should have done the same in the present case.

The question before this court is not whether we agree with the City's decision to close poolrooms between 2 a.m. and 6 a.m. It is not our job to make that judgment call.   That is a legislative prerogative.   We merely have to find it debatable whether restricting the operating hours of pool halls will accomplish the stated goals of the legislative body.   I find it debatable.   The plaintiffs' burden is to convince us that it was irrational for the City to believe the regulation of hours of operation would achieve its goals.   They have not convinced me.   Under the applicable presumption of constitutionality, I would uphold the ordinance and reverse the trial court.

FOOTNOTES

1.   Section 5.28.100 of the Riverside Municipal Code provides:  “HOURS OF OPERATION.   All poolroom businesses shall be closed between the hours of 2:00 a.m. and 6:00 a.m.”

2.   The City Attorney did not inform the Council of the change in hours of operation, the change in visibility requirements, or the other “new” additions to the original ordinance that were put into the draft ordinance.

3.   After the statutory appeals period had run.

4.   The statistics showed that in all poolrooms from the period 12 midnight to 6 a.m. in the calendar year 1992, there were a total of 38 calls for police service.   The land use committee was not told that 35 of these calls were for service to Mr. Cue's alone, thus leaving 3 total police service calls for the other four poolrooms throughout an entire year.   One of the officers commented on this statistical disparity as follows:“Q. Tell me, in your 27 years of experience, if someone told you that four businesses had combined total of three crimes per year, would you think we must put them out of business?“A. I would feel there was not much of a problem.”

5.   It was not contested at trial that a large number of the Mr. Cue's service calls in 1992 could have been the result of the house five doors down.

6.   When the purpose was changed, the present litigation was already in progress against the City.

7.   The dissent seems to believe that we are accepting “extrinsic” evidence or findings of fact when we examine the legislative history of this ordinance.   Of course, this would be inappropriate for a facial equal protection challenge.   However, an inquiry into the origins and wherewithal of a statute has never been beyond the purview of a judicial body.  (Bravo Vending v. City of Rancho Mirage (1993) 16 Cal.App.4th 383, 405-409, 20 Cal.Rptr.2d 164.)   Further, as stated above, this sort of inquiry is provided for expressly by both California and federal courts.  (See Weinberger v. Wiesenfeld, supra, 420 U.S. 636, 648, fn. 16, 95 S.Ct. 1225, 43 L.Ed.2d 514;  In re Boehme, supra, 12 Cal.App.2d 424, 428-429, 55 P.2d 559.)

8.   See Ordinance 6088, amending section 5.28.010 of the Riverside Municipal Code.

9.   Courts simply cannot abdicate their constitutional responsibility by relying on some vague notion that this business is somehow different.   As we shall see, there very well may be other legitimate purposes that could reasonably support the City's classification scheme.

10.   At oral argument the City proposed yet another possible purpose for the ordinance.   The City alleged that it was trying to regulate the “secondary effects” of poolrooms.   We find application of the “secondary effects” doctrine to the instant case misplaced.  (City of Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41, 47, 54, 106 S.Ct. 925, 89 L.Ed.2d 29;  Arcara v. Cloud Books, Inc. (1986) 478 U.S. 697, 708, 106 S.Ct. 3172, 92 L.Ed.2d 568;  Boos v. Barry (1988) 485 U.S. 312, 320, 108 S.Ct. 1157, 99 L.Ed.2d 333.)   That doctrine was developed to allow cities some discretion in regulating speech that is indecent, but not obscene.   Thus, nude dancing can be regulated through the doctrine of “secondary effects” without regard to any speech content in the dancing.   In the instant case there has never been any allegation that First Amendment rights have been, or will be, violated.   Whether the playing of pool has any speech content is not an issue before this court.

11.   See Ordinance 6012, enacting former section 5.28.010 of the Riverside Municipal Code, quoted above.

12.   The dissent seems to entertain the notion that a valid use of the police power is always valid no matter what discriminatory effects result.   This simply misstates basic constitutional law.   When a legislative body sees fit to utilize its police powers, the statute will not violate substantive due process so long as it is “rationally related to a legitimate government purpose.”  (Buhl v. Hannigan (1993) 16 Cal.App.4th 1612, 1619-1621, 20 Cal.Rptr.2d 740.)   However, this case does not involve a “due process” challenge to the ordinance.   This is an equal protection case.   In equal protection cases, even after a court finds the law “rational,” the court must still examine the classification scheme to see if it has “a fair and substantial relation” to the object of the statute.  (Brown v. Merlo, supra, 8 Cal.3d 855, 861, 106 Cal.Rptr. 388, 506 P.2d 212.)   Thus, a statute can be found unconstitutional even though it passes the due process rational basis test.

13.   Much of the testimony at trial, and large portions of the briefs on appeal, focused on a “drughouse” five doors down from Mr. Cue's. The police department clearly was aware of this house, and the city attorney's office even considered bringing a public nuisance action against the house and/or Mr. Cue's. We find it quite conceivable that one of the primary reasons Officer Wilson included a provision limiting poolroom hours was to aid the police in their efforts to shut down a location that was tossing “syringes [into their neighbors'] front yard.”   The eradication of drug houses is most definitely a legitimate purpose for the promulgation of city ordinances.   However, a classification scheme that closes down all the poolrooms in a town in order to limit activities at a single drughouse near one of the poolrooms is clearly an irrational and arbitrary way for a city to effect its goal.   We will give the city the benefit of the doubt, and instead will analyze the ordinance in light of the distinction drawn in the original stated purpose.

14.   The language of the original stated purpose establishes the category of all places of amusement and states that these places engender crime.   Then, it establishes the subcategory of poolrooms, which will be regulated differently than other places of amusement.   Thus, contrary to the oral argument of the City, this ordinance falls directly in line with the type of legislative schemes overturned by our courts in Looff v. City of Long Beach, supra, 153 Cal.App.2d 174, 314 P.2d 518 and Cossack v. City of Los Angeles, supra, 11 Cal.3d 726, 114 Cal.Rptr. 460, 523 P.2d 260.

15.   Ordinance 6012, enacting former section 5.28.010 of the Riverside Municipal Code.

16.   With due deference to “The Music Man.”

17.   Some examples are bowling alleys, dart parlors, card parlors, truck stops, mini-marts with arcade games, and midnight basketball leagues.

1.   The City took umbrage at this action by plaintiffs and called it “trivialization” of the issues.   I see it differently.   I find it a pleasant change to add a bit of whimsy and humor in an overly tedious business.

2.   In a footnote at this point, the court stated, “ ‘The State is not compelled to verify logical assumptions with statistical evidence.’   Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 812, 96 S.Ct. 2488, 2499, 49 L.Ed.2d 220 (1976).”

HOLLENHORST, Acting P.J.

GAUT, J., concurs.