KASH ENTERPRISES INC v. CITY OF LOS ANGELES

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

KASH ENTERPRISES, INC., a California Corporation, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.

Civ. 47681.

Decided: August 02, 1976

Karl Manheim, Long Beach, for appellant. Burt Pines, City Atty., Ward G. McConnell, Deputy City Atty., Chief, Appellate Div., Sherman W. Smith, Jr., Deputy City Atty., for respondent.

Plaintiff Kash Enterprises, Inc., appeals an order denying a preliminary injunction to bar enforcement of an ordinance regulating the size, condition, and placement of newsracks on the streets and sidewalks of defendant City of Los Angeles. The sole issue on appeal from these preliminary proceedings is whether the ordinance, Municipal Code section 42.00, subsection (f),1 is unconstitutional on its face.

If this were a matter of first impression, we would be inclined to view this ordinance as a simple exercise of the city's police power to maintain safe and clean streets and sidewalks by reasonable regulation of the size, condition, and placement thereon of large mechanical contraptions. It has been held, however, that ‘[n]ewspaper vending boxes along public streets and sidewalks are a constitutionally protected means of distribution.’ (Remer v. City of El Cajon, 52 Cal.App.3d 441, 443, 125 Cal.Rptr. 116, 117; California Newspaper Publishers Ass'n, Inc. v. City of Burbank, 51 Cal.App.3d 50, 52–54, 123 Cal.Rptr. 880.)

Because it seems clear to us that the city's interest in regulation for safe and clean streets and sidewalks weighs substantially against the asserted First Amendment rights to be impaired by that regulation (Dillon v. Municipal Court, 4 Cal.3d 860, 869, 94 Cal.Rptr. 777, 484 P.2d 945), we direct our inquiry to whether the city's ordinance adopts sufficiently narrow, objective, and definite standards to guide its enforcement. (Dulaney v. Municipal Court, 11 Cal.3d 77, 84, 112 Cal.Rptr. 777, 520 P.2d 1.)

Plaintiff first contends the ordinance is overbroad since it prefers clean sidewalks (subd. (2)) and greenery (subd. (3)(F)(8)) to plaintiff's right of free speech. We find no infirmity in these regulations. These are not ‘broad brush’ solutions to problems of cleanliness and aesthetics. (Cf. Van Nuys Pub. Co. v. City of Thousand Oaks, 5 Cal.3d 817, 821, 97 Cal.Rptr. 777, 489 P.2d 809.) Both interests coexist, and we are told some 8,000 newsracks are presently operating on public sidewalks in the City of Los Angeles. Newsracks may still be placed on sidewalks, so long as they do not interfere with mechanical cleaning devices or rest so close to greenery as to endanger it. It seems apparent that both objectives, free speech and clean, attractive streets, have been obtained without undue restriction on either.

Plaintiff also contends the size and weight regulations (subd. (3)(A)–(E)) are overbroad because they apply to all newsracks, regardless of whether a particular rack in a particular location poses a threat to any legitimate city interest. These regulations are entirely reasonable. The statute could not possibly have set size limitations for every newsrack location in the city. Limitation on size, moreover, is related to the legitimate interest of the city in the portability of the racks by city enforcement officers in case other ordinance violations compel removal of the racks.

Plaintiff's second contention is that the ordinance is so vague as to permit enforcement officials to ‘run amuck favoring some while holding others in disfavor.’ (Gannett v. City of Rochester, 69 Misc.2d 619, 626, 330 N.Y.S.2d 648, 657.) Plaintiff points particularly to the requirement that a newsrack be ‘clean, neat and attractive’ (subd. (3)(H)) and to the prohibition against rack placement that ‘unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic.’ (Subd. (2).) Again we find no constitutional infirmity. These words are directed to the protection of legitimate city interests and are, in the circumstances, as reasonably precise as they could be. They have a common and well-established meaning, and, consequently, enforcement officials are not vested with unbounded discretion.

Plaintiff argues that the authority given under the ordinance to enforcement officers to correct certain violations rather than remove the racks (subd. (6)) gives uncontrolled and unreviewable discretion to enforcement officials. See, for example, Dulaney v. Municipal Court, supra, 11 Cal.3d 77, 112 Cal.Rptr. 777, 520 P.2d 1, which struck down a statute that, without any guidelines, gave a city agency the power to grant or deny permission to post notices on utility poles. Here, however, the guidelines are clear, the violations explicitly enumerated. Subdivision (6) states nothing more than what is obviously true of every violation of law which may be simply remedied by the enforcement officer, i. e., the officer may correct the violation or cite the violator. This is a discretion inherent in every enforcement officer's duties and not a constitutional invalidity to the statute.

Plaintiff's third contention takes a different tack, urging that the ordinance lacks due process requirement of notice and hearing on seizure of newsracks for violation of the ordinance and payment of a $25 charge to reclaim each rack. The cases relied on by plaintiff, Randone v. Appellate Department, 5 Cal.3d 536, 96 Cal.Rptr. 709, 488 P.2d 13, and Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349, hold that, except in extraordinary circumstances, a person must be afforded notice and an opportunity for a hearing before he is deprived of any significant property interest. (5 Cal.3d at 536, 96 Cal.Rptr. 709, 488 P.2d 13.) In our view, however, Randone and Sniadach have no application. This is not a battle between two competing private claimants over an interest in personal property. Rather it involves the governmental function of policing the streets. In carrying out these duties the governmental entity is presumptively entitled to temporary possession of property which was illegally located on the public streets and has been removed from the public streets pursuant to law. This temporary but paramount interest in possession distinguishes this case from the provisions relating to ownership of property held invalid in Randone-Sniadach. (See Adams v. Department of Motor Vehicles, 11 Cal.3d 146, 154–155, 113 Cal.Rptr. 145, 520 P.2d 961.) The procedures here are analogous to the removal, storage, and charge for storage, of automobiles illegally parked or abandoned on the public streets and highways. (Veh.Code, § 22650 et seq.)

In sum, section 42.00, subsection (f), appears constitutional on its face. Plaintiff has shown no abuse of discretion in the denial of a preliminary injunction to bar enforcement of the ordinance. (City of Santa Monica v. Superior Court, 231 Cal.App.2d 223, 226, 41 Cal.Rptr. 824.)

Other issues such as discriminatory enforcement, confiscatory removal and storage charges, and the validity of specific rack removals, are reserved for trial on the merits of the complaint.

The order is affirmed.

I dissent.

Subsection (f) of section 42.00 of the Municipal Code set forth in footnote 1 of the majority opinion (Opinion) is incorporated by reference and referred to as Ordinance.

The Opinion concedes that the placement of news racks (racks) on the sidewalks of City are embraced within the free speech mandate of the First Amendment to the United States Constitution and entitled to the full protection thereof. (Remer v. City of El Cajon (1975) 52 Cal.App.3d 441, 443, 125 Cal.Rptr. 116; California Newspaper Publishers Ass'n, Inc. v. City of Burbank (1975) 51 Cal.App.3d 50, 52, 54, 123 Cal.Rptr. 880.) It also concedes that any regulation of racks by City predicated upon City's ‘interest’ and responsibility for maintenance of ‘safe and clean streets' must be ‘narrow, objective, and definite.’

It is clear from the Ordinance (subdivision (5)) that when an officer determines in his uncontrolled discretion that a rack is in violation of the Ordinance, he may remove and impound it. It is to be noted too that under subdivision (5) the officer must seize and impound but under subdivision (6) the enforcing officer has the option to seize and impound or to correct if the rack is attached to property other than that owned by the owner of the rack.

The Ordinance further provides that if within a limited number of days after such seizure, the owner of the rack does not appear and redeem it for a fixed price, the rack will be treated as unclaimed or abandoned property and will be disposed of at public auction.

It is also clear from the undisputed facts in the record that numerous racks of appellant and others were removed and impounded without prior or past notice of a hearing and were recovered only upon payment of a retrieval fee fixed at $25 per rack.

There is nothing in City's declaration or the record which shows even remotely what specific regulations of the Ordinance other than those complained of by appellant were violated. It is fair to assume therefore especially since nothing in the record or the briefs indicate to the contrary that the violations charged to appellant are those which appellant emphasizes in its complaint:

‘No person shall install, use or maintain any news rack * * * when such news rack interferes with the cleaning of any sidewalk by the use of mechanical sidewalk cleaning machinery.’ (Emphasis added.) (Subdivision (2).)

‘Each news rack shall be maintained in a clean, neat and attractive condition and in good repair at all times.’ (Emphasis added.) (Subdivision (3)(H).)

There are no guidelines in the Ordinance to appellant or the enforcing officer to indicate when a rack is not clean, neat, and attractive, or when it is not in good repair nor are there any to indicate to appellant, other than those which regulate size, weight, and places of installation, when an installation on a sidewalk will interfere with mechanical sidewalk cleaning machinery. There is nothing in the one declaration filed by City or in the record which avers that the racks of appellant seized and impounded violated size, weight, or places of installation or in what respect they were unclean, not neat, unattractive, or out of repair.

The regulations discussed are void of any standards to guide the enforcement officer in the exercise of his discretion to seize and impound racks if they appear to be in technical violation of specific regulations or are in violation because they offend his sense of attractiveness and/or neatness. In this respect it is to be noted that when the officer determines that there is a violation, such determination is not only an exercise of discretion, it is a final decision subject to attack only by an independent action. The owner can recover his rack only upon payment of a retrieval fee of $25 and must forget all inconvenience and financial loss suffered.

An ordinance that fails to circumscribe the discretion of an official charged with its enforcement is unconstitutional. (Cox v. Louisiana (1965) 379 U.S. 536, 558, 85 S.Ct. 453, 13 L.Ed.2d 471; Dillon v. Municipal Court (1971) 4 Cal.3d 860, 869–870, 94 Cal.Rptr. 777, 484 P.2d 945; Burton v. Municipal Court (1968) 68 Cal.2d 684, 690–692, 68 Cal.Rptr. 721, 441 P.2d 281.)

The majority compares and analogizes the enforcement provisions of the Ordinance at bench with the provisions of section 22651 of the Vehicle Code which permits the towing away and impoundment of vehicles. Section 22651 is definitely limited by the caveat in section 22650 and spells out with specificity the particular situations in which a vehicle may be towed and impounded.1 If the Vehicle Code empowered enforcement officers to seize and impound in respect of all its violations as is the clear message of the Ordinance at bench, the analogy would approach accuracy and with much more justification even if racks were not embraced within the protection of the First Amendment.

It seems obvious to me that the unlimited discretion to determine when a rack is in violation and the power vested in an enforcement officer to seize and impound a rack not only has a chilling effect upon appellant's First Amendment rights but constitutes an actual deprivation thereof.

Wholly aside from its violation of the First Amendment rights of appellant, the section in question violates appellant's constitutional rights of due process. The Ordinance nowhere provides for a hearing before or after the removal and impoundment of a rack. City concedes that this is so.

City avers in its declaration:

‘News racks are tagged at least seven days prior to removal. This is a courtesy given the owners of the racks to provide them with an opportunity to correct violations. Racks are subsequently removed if the violations are not corrected. * * *'2

The omission of a provision for any notice in the statute cannot be corrected by a voluntary enforcement procedure which is not mandated in the Ordinance itself.

‘One who is in the Possession of property under a claim of right cannot be deprived of its possession without due process of law. To constitute due process the statute itself must provide for notice of a time and place of hearing, giving to the parties an opportunity to present in a deliberate, regular and orderly manner issues of fact and law. It is essential to the validity of the statute that it furnish the means whereby one may enforce his constitutional rights. It is no answer that the authorities may provide for a notice and hearing, for the right of a person to have his day in court must rest upon something more substantial than favor or discretion. The essential validity of the law is to be tested not by what has been done under it but by what may by its authority be done. * * *’ (H. Moffat Co. v. Hecke (1924) 68 Cal.App. 35, 39, 228 P. 546, 548. See also Merco Constr. Engineers, Inc. v. Los Angeles Unified Sch. Dist. (1969) 274 Cal.App.2d 154, 79 Cal.Rptr. 23; People v. Broad (1932) 216 Cal. 1, 8, 12 P.2d 941.)

Even where summary action is permissible, notice and hearing at some point must follow the government action.

‘There must, however, be notice and opportunity for a hearing at some stage; i. e., the party is entitled to a subsequent hearing to review the determination and obtain redress if it is found improper * * *.’ (5 Witkin, Summary of California Law (8th Ed., pp. 3603, 3604); People v. Lockheed Shipbuilding & Constr. Co. (1973) 35 Cal.App.3d 776, 781, 111 Cal.Rptr. 106.

The fatal defect in subdivisions (5) and (6) is that no opportunity is afforded to owner to be heard prior to or after the confiscation of the rack whether the rack be summarily seized and impounded or seized and impounded after a courtesy tag. It is clear too that even if the policing authority agreed with the owner after seizure that the rack was improperly, inadvertently, or illegally confiscated, the owner cannot as a matter of right recover the rack without paying the retrieval fee. The complete lack of any opportunity for a prior or any hearing absent emergent situations is clearly unconstitutional, the City could act under its police power with or without any ordinance.

Appellant argues, and I agree, that racks represent a property interest and that subdivisions (5) and (6) in omitting to provide for notice and hearing violate due process. (Goldberg v. Kelly (1970) 397 U.S. 254, 262–263, 90 S.Ct. 1011, 25 L.Ed.2d 287; Sniadach v. Family Finance Corp. (1969) 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349; C.V.C. v. Superior Court (1973) 29 Cal.App.3d 909, 915, 106 Cal.Rptr. 123; Randone v. Appellate Department (1971) 5 Cal.3d 536, 96 Cal.Rptr. 709, 488 P.2d 13.)

Racks are by dictionary definition tangible property requiring a cash outlay. To circulate media is concededly a First Amendment right. Logically a right to recover racks summarily seized should on a constitutional basis receive the same due process notice and hearing protection accorded a welfare recipient on a claim for benefits arbitrarily cut off. (Goldberg, supra.)

C.V.C., supra, cited above 29 Cal.App.3d at page 915, 106 Cal.Rptr. at page 127 states:

‘The Fourteenth Amendment's guarantee of due process of law requires notice and an opportunity to be heard before an individual suffers governmental deprivation of a fundamental interest. * * *’

And at page 916, 106 Cal.Rptr. at page 128 the court says:

‘In determining whether a * * * right is fundamental, the courts consider its effect in human terms and its importance to the individual's life situation. (Bixby v. Pierno (1971) 4 Cal.3d 130, 144, 93 Cal.Rptr. 234, 481 P.2d 242.)’

Wholly aside from the havoc which can be wrought by pressure groups inspiring zealous enforcement and by circulation wars between media and assuming only meticulous and honest enforcement, the complete looseness of the ordinance at bench affords City the unlimited opportunity to summarily seize and impound racks as a fait accompli and the owner thereof may if he acts within the time fixed by City redeem them only at a price. The violation of appellant's property right is not confined to the summary seizure and impoundment of racks. Appellant has in fact been deprived of much more, to wit: his fundamental and vested right to conduct a business for the publication and distribution of a type of media protected by the First Amendment. The seizure of racks comprised within the action in effect deprives appellant of his livelihood.

As heretofore noted subdivision (5) does provide for notice after confiscation has occurred but not for notice of a hearing. The notice is to the effect that the owner may redeem his property for a fee. Due process does in extraordinary circumstances as an exception to prior notice permit notice after confiscation but whether past notice is justified is determined by the individual's interest in avoiding the loss against the governmental interest for summary action. (Goldberg v. Kelly (1970) 397 U.S. 254, 262–263, 90 S.Ct. 1011, 25 L.Ed.2d 287; C.V.C. v. Superior Court (1973) 29 Cal.App.3d 909, 915, 106 Cal.Rptr. 123.) Subdivisions (5) and (6) do not limit summary action to extraordinary or emergency circumstances which significantly threaten public welfare but mandates summary action to any situation which an administrative employee determines to be a violation of the Ordinance. Thus once the enforcement officer decides that: a rack is too close or too far from the curb; it interferes with a mechanical device for cleaning sidewalks; it is too close to a lawn or flowers;3 or it is unclean, unattractive, or out of repair, a final decision has been made from which there is no appeal. Certainly in none of the above situations is there any danger to the public safety, health, or welfare, and it would appear that the principle of due process would require that the owner of the rack would be afforded prior notice and hearing as a matter of right. In Randone, the court summarized circumstances under which summary procedures have been permitted, and among them were, ‘* * * the nature of the risks required immediate action, and any delay occasioned by a prior hearing could potentially have caused serious harm to the public. * * * Finally, the ‘takings' were conducted under narrowly drawn statutes that sanctioned the summary procedure only when great necessity actually arose.’ (Randone, supra, 5 Cal.3d at 554, 96 Cal.Rptr. at 721, 488 P.2d at 25.)

On the record a preliminary injunction should have been granted.

I would reverse the order denying a preliminary injunction and require the trial court to issue a preliminary injunction as prayed.

FOOTNOTES

1.  The ordinance provides:‘(f) Streets—News Racks.‘(1) No person shall install, use or maintain any news rack which projects onto, into or over any part of the roadway of any public street, or which rests, wholly or in part, upon, along or over any portion of a roadway.‘(2) No person shall install, use or maintain any news rack which in whole or in part rests upon in or over any sidewalk or parkway, when such installation, use of maintenance endangers the safety of persons or property, or when such site or location is used for public utility purposes, public transportation purposes or other governmental use, or when such news rack unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic, the ingress into or egress from any residence, place of business, or any legally parked or stopped vehicle, or the use of poles, posts, traffic signs or signals, hydrants, mailboxes, or other objects permitted at or near said location, or when such news rack interferes with the cleaning of any sidewalk by the use of mechanical sidewalk cleaning machinery.‘(3) Any news rack which in whole or in part rests upon, in or over any sidewalk or parkway, shall comply with the following standards:‘(A) No news rack shall exceed five feet in height, thirty inches in width, or two feet in depth.‘(B) News racks shall only be placed near a curb or adjacent to the wall of a building. News racks placed near the curb shall be placed no less than eighteen inches nor more than twenty-four inches from the edge of the curb. News racks placed adjacent to the wall of a building shall be placed parallel to such wall and not more than six inches from the wall. No news rack shall be placed or maintained on the sidewalk or parkway opposite a news stand or another news rack.‘(C) No news rack shall be chained, bolted or otherwise attached to any property not owned by the owner of the news rack or to any permanently fixed object.‘(D) News racks may be chained or otherwise attached to one another; however, no more than three news racks may be joined together in this manner, and a space of no less than eighteen inches shall separate each group of three news racks so attached.‘(E) No news rack, or group of attached news racks allowed under paragraph (D) hereof, shall weigh, in the aggregate, in excess of 125 pounds when empty.‘(F) No news rack shall be placed, installed, used or maintained;‘1) Within three feet of any marked crosswalk.‘2) Within fifteen feet of the curb return of any unmarked crosswalk.‘3) Within three feet of any fire hydrant, fire call box, police call box or other emergency facility.‘4) Within three feet of any driveway.‘5) Within three feet ahead of, and fifteen feet to the rear of any sign marking a designated bus stop.‘6) Within three feet of any bus bench.‘7) At any location whereby the clear space for the passageway of pedestrians is reduced to less than six feet.‘8) Within three feet of any area improved with lawn, flowers, shrubs or trees or within three feet of any display window of any building abutting the sidewalk or parkway or in such manner as to impede or interfere with the reasonable use of such window for display purposes.‘(G) No news rack shall be used for advertising signs or publicity purposes other than that dealing with the display, sale or purchase of the newspaper or news periodical sold therein.‘(H) Each news rack shall be maintained in a clean, neat and attractive condition and in good repair at all times.‘(4) Every person who places or maintains a news rack on the streets of the City of Los Angeles shall have his name, address telephone number affixed thereto in a place where such information may be easily seen.‘(5) Any news rack installed, used or maintained in violation of the provisions of this subsection may be summarily removed and stored in any convenient place by any public body or officer. Such body or officer shall take reasonable steps to notify the owner thereof. Upon failure of the owner to claim such news rack and pay the expenses of removal and storage within thirty days after such removal, such news rack shall be deemed to be unclaimed property in possession of the Police Department and may be disposed of pursuant to the provisions of Section 52.55 of this Code.‘(6) In the case of violations of this subsection relative to restrictions upon attachments of news racks to property other than that owned by the owner of the news rack, to fixed objects or each other, and upon location of news racks, any public body or officer may, as an alternative to removal under Subdivision (5) hereof, remove such attachment and/or move such rack or racks in order to restore them to a legal condition.’

1.  Section 22651 of the Vehicle Code reads in pertinent part as follows:‘Any member of the California Highway Patrol * * * of a county in which a vehicle is located * * * may remove a vehicle from a highway under the following circumstances:‘(a) When any vehicle is left unattended upon any bridge, viaduct or causeway or in any tube or tunnel where the vehicle constitutes an obstruction to traffic.‘(b) When any vehicle is left standing upon a highway in such a position as to obstruct the normal movement of traffic or in such a condition as to create a hazard to other traffic upon the highway.‘(c) When any vehicle is found upon a highway and report has previously been made that the vehicle has been stolen or complaint has been filed and a warrant thereon issued charging that the vehicle has been embezzled.‘(d) When any vehicle is illegally parked so as to block the entrance to a private driveway and it is impractical to move such vehicle from in front of the driveway to another point on the highway.‘(e) When any vehicle is illegally parked so as to prevent access by firefighting equipment to a fire hydrant and it is impracticable to move such vehicle from in front of the fire hydrant to another point on the highway.‘(f) When any vehicle, except any highway maintenance or construction equipment, is left unattended for more than four hours upon the right-of-way of any freeway which has full control of access and no crossings at grade.‘(g) When the person or persons in charge of a vehicle upon a highway are by reason of physical injuries or illness incapacitated to such an extent as to be unable to provide for its custody or removal.’ (Subsections (h) through (j) are not particularly pertinent.)

2.  Declarations filed by appellant aver numerous seizures without the benefit of being tagged.

3.  See subdivisions 3(B) and 3(F)(8) of footnote 1 of opinion.

FLEMING, Associate Justice.

BEACH, J., concurs.