PEOPLE v. GLAZE

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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Wheatly GLAZE, Defendant and Appellant.

Cr. 34025.

Decided: June 12, 1979

W. Michael Mayock, Los Angeles, for defendant and appellant. Burt Pines, City Atty., George Eskin, Chief Asst. City Atty., Wallace J. Wade and Frank L. Orozco, Deputy City Attys., for plaintiff and respondent.

The sole issue raised on this appeal is the constitutionality of the requirement in Los Angeles Municipal Code section 103.101, subdivision (g), that a picture arcade remain closed between the hours of 2:00 a. m. and 9:00 a. m.1

Defendant is appealing from a judgment of the municipal court fining him $100 for a violation of that subdivision. We ordered transfer of the case to this court under rule 62, California Rules of Court, to settle a constitutional issue as to which the lower courts are in disagreement. We have concluded that the closing requirement is constitutional under well-established principles, and affirm the conviction.

It is a matter of common knowledge, well known to the legislative body of the City of Los Angeles, and to the courts, that picture arcades may, and commonly do, present sexually explicit pictures which tend to attract, amuse and excite persons desiring such entertainment. Such business establishments, though lawfully exercising constitutionally protected freedom of expression, are, more than some other places, likely to be the site of patron conduct which is unlawful and dangerous to others. (See People v. Perrine (1975) 47 Cal.App.3d 252, 258, 120 Cal.Rptr. 640.) Business licensing ordinances commonly distinguish between those businesses which create special problems and those which are less a threat to public tranquility. (See 7978 Corporation v. Pitchess (1974) 41 Cal.App.3d 42, 47, 115 Cal.Rptr. 746; Antonello v. City of San Diego (1971) 16 Cal.App.3d 161, 167, 93 Cal.Rptr. 820.)

The theories offered by defendant's counsel will be reviewed.

The closing requirement does not deny equal protection of the law as compared to businesses such as theatres, bookstores, grocery stores and game arcades. The city council reasonably concluded that picture arcades required some additional regulation not needed for the businesses to which defendant looks for comparison. Picture arcades are not the only businesses which may be required to remain closed during the small hours of the morning. (See 7978 Corporation v. Pitchess, supra.) During those hours the fewest persons are present on the streets and in other public places, and law enforcement activity is at its lowest point. The risk of dangerous or unlawful conduct is therefore greater for those having occasion to be about during those hours. The classification thus is not unreasonable; and the type of regulation imposed is not an improper exercise of the police power.

The fact that defendant is engaged in the exercise of constitutionally protected free speech does not immunize him from the kind of regulation involved here. The ordinance does not limit or regulate the content of his pictures; and the limitation on hours does not significantly interfere with his ability to express himself. (See United States v. O'Brien (1968)391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672; People v. Perrine,supra, 47 Cal.App.3d at p. 257, 120 Cal.Rptr. 640; Antonello v. City of San Diego, supra, 16 Cal.App.3d at p. 166, 93 Cal.Rptr. 820.)

The ordinance does not conflict with the state's preemption of the regulation of the criminal aspects of sexual activity. The ordinance does not create any new standard of conduct, nor does it purport to make criminal any sexual activity which is non-criminal under state law. The cases relied upon by defendant are not in point. For example, Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 100 Cal.Rptr. 609, 494 P.2d 681 involved a city ordinance making it a misdemeanor for a person to massage a member of the opposite sex as a commercial business. The court held that this ordinance, prohibiting conduct which was not prohibited by state law, amounted to an invalid attempt to regulate social conduct.

The Los Angeles ordinance challenged here regulates business closing hours, not sexual activity. It is an exercise of the city's police power to reduce the incidence of conduct which is offensive, dangerous or unlawful under state law. This is not an entry into the preempted field. (See Antonello v. City of San Diego, supra, 16 Cal.App.3d at p. 166, 93 Cal.Rptr. 820.)

Defendant's brief points out that, in addition to limiting the hours of operation, the ordinance requires certain levels of illumination in a picture arcade and prohibits enclosed or concealed booths. Defendant's brief then states: “In light of all of the above, there can be no doubt but that the purpose of s 103.101(g) was and is to regulate and limit the possibility of lewd conduct occurring on picture arcade premises.”

This argument acknowledges the salutary effect of the ordinance but misstates its legal purpose. Lewd conduct is a crime under state law. (Pen.Code, s 647, subd. (a).) The purpose of the ordinance is not to regulate lewd conduct, but to regulate the operation of a picture arcade business so that its operation does not invite or encourage such violations of state law on its premises. This is a proper exercise of the city's police power. (See 7978 Corporation v. Pitchess, supra, 41 Cal.App.3d at p. 47, 115 Cal.Rptr. 746.)

The judgment is affirmed.

I dissent.

It is my view that the ordinance here in question should be declared invalid on two grounds: (1) that it is in violation of defendant's constitutional right to equal protection of the laws and (2) that it regulates sexual activity a matter preempted by the state of California.

I disagree with the majority's holding that the city council could reasonably conclude that picture arcades required some additional regulation not needed for other business entities. It is clear that, in the case at bench, the city has singled out “picture arcades” for its special “closing hours” treatment. Business entities such as “game arcades” are not subject to the same closing hours as picture arcades which are governed by the ordinance in question.

An analysis of the law set forth in Deese v. City of Lodi (1937) 21 Cal.App.2d 631, 69 P.2d 1005, is especially applicable to the case at bench. In Deese, the court observed: “Thus, if the ordinance in question applies to all persons conducting a business which comes reasonably within the same classification, it will be upheld; but if it excepts any particular business which comes within the same reasonable classification, it must be held discriminatory.” (Id. at pp. 636-637, 69 P.2d at p. 1008.)

I cannot agree with the majority's view that picture arcades, though lawfully exercising constitutionally protected freedom of expression, are more likely than other business establishments such as game arcades, to be the site of patron conduct which is unlawful and dangerous to others.

The majority relies upon the principle that business licensing ordinances are entitled to distinguish between those business enterprises which create special problems and those which are less a threat to business tranquility. This principle is sound as a matter of abstract principle, but I fail to see its applicability to the case at bench. I find no support for the majority's view that the picture arcade is more likely to be the site of patron conduct that is unlawful and dangerous to others than other types of business establishments such as a game arcade.

Nor do I find the argument persuasive that the ordinance in issue does Not invade the area of sexual activity preempted by state law. The majority's conclusion that the ordinance is simply a regulation of business closing hours and not of sexual activity exalts form over substance. I consider the ordinance to constitute an unlawful attempt by the city council to regulate sexual activity through the device and appearance of regulating closing hours under the purported police power of reducing the incidence of conduct which is offensive, dangerous or unlawful. The imposition of “closing hours” is simply a concealed substitute for an outright ban on the business of operating Picture arcades. This substitute should suffer the same fate as an outright ban would suffer, namely, a holding of unconstitutionality.

If the theory of the city's justification for this ordinance that of reducing the incidence of patron conduct which is unlawful and dangerous to others has any validity in fact, the city council should then have imposed the same closing hours on All business establishments which attract patrons during the “closing hours” period imposed upon the picture arcades. To impose early-morning “closing hours” on picture arcades for the ostensible purpose indicated, while not imposing similar “closing hours” on other business enterprises which attract patrons during the same hours of the morning, constitutes an invidious and unreasonable discrimination.

I would thus reverse the judgment of conviction.

FOOTNOTES

1.  Los Angeles Municipal Code section 103.101, subdivision (g): “Each picture arcade must remain closed between the hours of 2:00 A.M. and 9:00 A.M., and all customers, patrons, and visitors must be excluded therefrom between those hours. Where only one coin-operated still or motion picture machine, projector or similar contrivance is maintained and such device is not the primary business, then, if that device remains inoperative between the hours of 2:00 A.M. and 9:00 A.M., customers, patrons and visitors need not be excluded from the premises.”

FILES, Presiding Justice.

KINGSLEY, J., concurs.