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District Court of Appeal, Second District, Division 3, California.

Jimmie FLORES, Plaintiff and Appellant, v. LOS ANGELES TURF CLUB, INC., a California corporation, et al., Defendants and Respondents.*

Civ. 24515.

Decided: November 30, 1960

Julius Weled, Los Angeles, for appellant. O'Melveny & Myers, by Sidney H. Wall, Allyn O. Kreps, and Veatch, Thomas & Carlson, by Robert C. Carlson, Los Angeles, for respondents.

The plaintiff, removed against his will, in January 1959, from the grandstand at Santa Anita Race Track, by agents of the defendant Los Angeles Turf Club, unsuccessfully sought: (a) an injunction that would prevent a repetition of that treatment, and (b) a judgment for the damages suffered because of his forceful removal. We have concluded that the evidence was sufficient to warrant the trial court's finding that no greater force was used, in ousting the plaintiff, than his reluctance to go made necessary, and that he was premature in seeking an injunction, but we are nevertheless reversing the judgment because the statute relied upon to justify the eviction, was invalidly broad.

Orloff v. Los Angeles Turf Club, 1951, 36 Cal.2d 734, 227 P.2d 449, 451, is a case with facts closely paralleling ours. The plaintiff had been twice ejected from the Santa Anita race course, and, being refused further admission, sought an injunction that would put an end to the defendant's lack of hospitality. In support of its attitude the defendant established that the plaintiff had been convicted of seven misdemeanors between 1929 and 1939. Four of these, it appeared, were for possessing form charts in contravention of an ordinance subsequently held to be unconstitutional. One, in 1929, was for gambling; in 1935 ‘he was convicted of bookmaking, Penal Code, § 337a’; and in 1939 he pleaded guilty to a charge of placing a wager outside of the course. These convictions, the defendant argued, brought the plaintiff within the rules adopted by the Horse Racing Board, to be found in Title 4 of the California Administrative Code. A good example of the rules was No. 319 (the rules have been renumbered several times since Orloff's day), which provided that persons guilty of ‘conduct detrimental to racing shall be ruled off all racing enclosures.’

We shall not venture to detail the reason given why the trial court's judgment, refusing the plaintiff an injunction, was reversed. Section 51 of the Civil Code, which declared that ‘All citizens * * * are entitled to the full and equal * * * privileges of inns * * * and all other places of public accommodation or amusement * * *.’ and the companion section 53, which made it ‘* * * unlawful for any * * * proprietor * * * of any * * * race course * * * to refuse admittance to any person * * *.’ save those who are under the influence of liquor, guilty of boisterous conduct or are persons of lewd or immoral conduct, were considered and held to embody rights which could not be denied for the reasons advanced by the defendant. The plaintiff in that case had offended more grievously than had the plaintiff in this case, yet without forfeiture of his right to go to the races.

Possibly to overcome the decision in the Orloff case, which was rendered in February of 1951, the legislature that same year added section 19561.5 to the Business and Professions Code. As in effect in January of 1959, it contained these, among other, provisions: ‘The [California Horse Racing Board] may, by rule, provide for the exclusion or ejection from the enclosure where horse races are licensed by the board, or from specified portions of such enclosure, of * * * persons who have been convicted of violations of * * * the laws prohibiting bookmaking or other illegal forms of wagering on horse races * * *. Any person who is excluded or ejected from such enclosure in conformity with such rules may apply to the board for a hearing on the question of whether such rule is applicable to him * * *. If, upon the hearing, the board determines that the rule does not or should not apply to the applicant it shall notify all racing associations * * *.’ (These provisions are now contained in sections 19572 and 19573 of the Business and Professions Code.)

Pursuant to the authority thus extended to it, the board promulgated what appeared in January 1959, as sections 2103, 2104 and 2105 of Title IV of the California Administrative Code, in which we find: ‘2103. The following classes of persons are prohibited from participating in any pari-mutuel wagering conducted under the jurisdiction of the California Horse Racing Board: * * * (g) Persons who have been convicted of violating any of the provisions of Sections 337a, 337al to 337a.6, inclusive, the Bookmaking Act, Penal Code.

‘2104. Every person who is prohibited from participating in pari-mutuel wagering under Section 2103 of this code is also prohibited from being present within any enclosure where pari-mutuel wagering is conducted under the jurisdiction of the California Horse Racing Board on any day when such pari-mutuel wagering is being conducted.

‘2105. * * * The racing association shall eject from the racing enclosure any such prohibited person who is found there on a day when racing is being conducted.’

Insofar as plaintiff's right to attend the races is dependent on sections 51 or 53, it is, of course, subject to such impairment as the legislature may make. The substantive change, of interest, as made by the legislature, in 1951, was to remove the protection of the Civil Code from those ‘who have been convicted of violations of * * * the laws prohibiting bookmaking or other illegal forms of wagering on horse races.’ The plaintiff, in 1953, was charged in two counts: the first with violating subdivision 1 of section 337a of the Penal Code; second, with violating subdivision 3 of the section. Subdivision 1 encompasses those who engage, even once, in ‘bookmaking’. Subdivision 3 applies to those who act merely as stakeholders of bets placed on horses which race, and also to those who engage in any of several actions that constitute bookmaking. The whole section seems to be popularly known as the ‘Bookmaking Act’ (note rule 2103, supra), and we read in People v. Coppla, 1950, 100 Cal.App.2d 766, 768, 224 P.2d 828, 830: ‘Section 337a is comprehensive and exhaustive in its denunciation of acts in connection with pool selling and bookmaking.’ We conclude, therefore, that, measured by the statutory law, and the rules made pursuant to it, plaintiff was a person who could be lawfully ejected from defendant's race course. Of course, if we are wrong in this conclusion, then the Orloff case requires a reversal because of its reliance upon sections 51 and 53.

But the Orloff case did not stop with measuring plaintiff's rights by those sections. It stated further (Orloff v. Los Angeles Turf Club, supra, 36 Cal.2d 739, 227 P.2d 453): ‘The so-called civil rights statutes (Civ.Code, §§ 51–54) do not necessarily grant theretofore non-existent rights or freedoms. The enactments are declaratory of existing equal rights * * *.’ The Orloff case is authority for the further conclusion that even without sections 51–54 (sections 52 and 54 encourage observance of the other two), the legislature may not require or authorize licensees to impose limitations upon the exercise of the rights of citizens to attend events to which the public generally is invited, which limitations have no relation to the exercise of the right.

Two other cases that have so much of the same philosophy that they should be cited are Stoumen v. Reilly, 1951, 37 Cal.2d 713, 234 P.2d 969 and Vallerga v. Dept. of Alcoholic Bev. Control, 1959, 53 Cal.2d 313, 1 Cal.Rptr. 494, 347 P.2d 909. We would no minimize the pertinency of these cases by failing to quote from them. If we may, we summarize their position in very general terms. It is, that the legislature may not deny a citizen the privileges generally enjoyed by other citizens, because in some other places, at some other time, he had offended some statute. See, further, Tarbox v. Board of Supervisors, 1958, 163 Cal.App.2d 373, 378, 329 P.2d 553, 556.

We feel compelled to hold, therefore, that the plaintiff in this case could not lawfully be refused admission to defendant's race course in January of 1959, because of his 1953 conviction of violating subdivision 3 of section 337a, and having been admitted, he could not lawfully be evicted because of the earlier conviction. Any force used to make him depart, therefore, gave him a cause of action for damages.

As to his action for an injunction we are of the opinion that the trial court's decision was the correct one; plaintiff has the administrative remedy of a hearing before the California Horse Racing Board that may afford him complete relief. He should first seek that relief before applying to the courts for a stay. That remedy, however, would not serve to award him any damages he may have suffered by the wrongful ejection.

The judgment is reversed.

BISHOP, Justice pro tem.

VALLEE, Acting P. J., concurs. Rehearing denied; FORD, J., dissented. FORD, J., dissents.