COHEN v. BOARD OF SUPERVISORS CITY AND COUNTY OF SAN FRANCISCO

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

Bruce COHEN and Keegan G. Low, Appellants, v. BOARD OF SUPERVISORS, CITY AND COUNTY OF SAN FRANCISCO et al., Respondents.

AO15565.

Decided: February 20, 1985

Jeffrey S. Ross, Sheila L. Sakamoto, Lynne N. Henderson, Lawrence A. Gibbs, San Francisco, for appellants. George Agnost, City Atty., Burk E. Delventhal, Judith A. Boyajian, Deputy City Attys., San Francisco, for respondents. Stephen E. Cone, Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, amicus curiae in support of appellants.

Appellants Bruce Cohen and Keegan G. Low appeal from the denial of a motion for preliminary injunction seeking to prevent enforcement of a San Francisco municipal ordinance regulating escort services.

BACKGROUND

On June 15, 1981, the Board of Supervisors for the City and County of San Francisco enacted Municipal Police Code sections 1074.1 through 1074.30, which regulate escort services located or operating within the city.   The escort service ordinance became effective in July 1981, but, due to an administrative grace period and a subsequent stipulation by the parties in this litigation, the ordinance was not enforced until September 12, 1981.

Prior to this enforcement date, on August 17, 1981, appellants Cohen, a San Francisco taxpayer, and Low, an attorney practicing in San Francisco, filed suit requesting both declarative and injunctive relief based on the assertion that the ordinance was unconstitutional and void in its entirety.   On that same day, appellants also filed an application for order to show cause and preliminary injunction, after which the order to show cause was granted.   A hearing on the preliminary injunction was held on September 3, 1981, and on September 11 appellants' application was summarily denied.   Also on September 11 appellants filed a petition for writ of mandamus to the court of appeal.   This petition was denied on October 14 by a divided vote of Division One of this district.   Appellants subsequently filed a timely notice of appeal on October 30, 1981.1

The legislative history of the escort service ordinance is instructive.   According to Mayor Dianne Feinstein, the ordinance was designed to “reduce the manpower needed to monitor and investigate illegal escort services” which “often serve as a front for individuals engaged in serious criminal activity․”  Chief of Police Cornelius Murphy informed the mayor that “[m]ost escort services are fronts for prostitution.”   Captain Diarmuid Philpott of the city police vice squad similarly testified that “escort services in San Francisco are frequently fronts for prostitution and provide an opportunity for theft, extortion and bodily harm against customers ․”

Against this background, the ordinance imposes a permit or license requirement upon any person engaged in or conducting the operation of an “escort service.”  (San Francisco Mun.Code, § 1074.2.)   An “escort service” is “[a]ny business, agency or person who, for a fee, commission, hire, reward or profit, furnishes or offers to furnish names of persons, or who may accompany other persons to or about social affairs, entertainments or places of amusement, or who may consort with others about any place of public resort or within any private quarters.”  (San Francisco Mun.Code, § 1074.1.)   Similarly, an “escort” is defined as “[a]ny person who, for a fee, commission, hire, reward or profit, accompanies other persons to or about social affairs, entertainments or places of amusement or consorts with others about any place of public resort or within any private quarters.”  (Ibid.)

In order to obtain an escort service permit, an applicant must submit a personal description, three portrait photographs, a listing of all criminal convictions except minor traffic violations, and written proof of age over 18 years, as well as his or her address and prior business or employment record.   The applicant is also required to submit “[s]uch other identification and information necessary to discover the truth of the matters hereinbefore specified ․”  (San Francisco Mun.Code, § 1074.4.)

The ordinance also compels any escort or other employee who either works in a service in San Francisco or performs any service in the city to secure a permit.   The employee permit application requires information similar to the requirements for a service permit application listed above.  (San Francisco Mun.Code, §§ 1074.5, 1074.7.)

When the application is filed, the ordinance directs the chief of police to issue a permit after a hearing unless:  (1) the operation would not have complied with “all applicable laws, including but not limited to, the Building, City Planning, Housing and Fire Codes of the City ․ and rules and regulations adopted by the Chief of Police pursuant to this article”;  unless (2) the applicant has had a prior license revoked by the city, the state, or the Alcoholic Beverage Control Commission;  or unless (3) the applicant has been convicted of any of the following:  an offense requiring sex offender registration (Pen.Code, § 290), an offense “involving the use of force and violence upon the person of another,” an offense involving sexual misconduct with children, or violations of Penal Code sections 311, 647, subdivision (a), 647a, 647, subdivision (b), 315, 316, 318 or 266 through 267.  (San Francisco Mun.Code, § 1074.12.)

A permit once issued may be revoked after a hearing if the permitee has “engaged in conduct which violates” the ordinance provisions, “any” state or local law, or any rules and regulations adopted by the chief of police.  (San Francisco Mun.Code, § 1074.15.)

Beyond this permit process, the ordinance also requires, in pertinent part, that both clients and employees be at least 18 years old (San Francisco Mun.Code, §§ 1074.16, 1074.17) and that the police department “from time to time and at least twice a year” inspect each escort service.  (San Francisco Mun.Code, § 1074.20.)   Moreover, each escort service must keep a daily register containing the identity of all employees and the “true” identity, address, hours of employment, including location and place, of each patron.   This register is then “subject to inspection” by the police and health departments.  (San Francisco Mun.Code, § 1074.21.)

The ordinance also prohibits any escort from engaging “in any type of criminal conduct with a customer․”  (San Francisco Mun.Code, § 1074.22.)   Moreover, no one can “permit, counsel or assist ․ in the violation” of the ordinance.   (San Francisco Mun.Code, § 1074.23.)   Any violation of the ordinance may result in criminal penalties either as a misdemeanor—requiring a jail term not exceeding six months or fine not exceeding $1,000—or as an infraction—requiring a fine not exceeding $500.  (San Francisco Mun.Code, § 1074.26.)

APPEAL

Appellants raise numerous contentions on appeal:  whether the ordinance violates the First, Fourth, Sixth and Fourteenth Amendments of the United States Constitution;  whether it violates the right to privacy guaranteed under article I, section 1, of the California Constitution;  and whether the ordinance is preempted by state law.

I

As a preliminary matter, respondents point to the procedural posture of this case—an appeal from the denial of a request for a preliminary injunction—and assert that appellate review is limited to a determination whether the trial court abused its discretion in denying the application for the preliminary injunction.

 Generally, the granting or denial of a preliminary injunction rests in the sound discretion of the trial court.   An order may not be disturbed on appeal absent a showing of abuse of that discretion.   (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 527, 67 Cal.Rptr. 761, 439 P.2d 889;  People v. Black's Food Store (1940) 16 Cal.2d 59, 61, 105 P.2d 361.)   The determination granting or denying a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy.   (Continental Baking Co. v. Katz, supra, 68 Cal.2d at p. 528, 67 Cal.Rptr. 761, 439 P.2d 889.)

 Recent cases, however, have carved an exception to this rule where the validity of challenged regulations presents only a question of law.   (Palos Verdes Shores Mobile Estates, Ltd. v. City of Los Angeles (1983) 142 Cal.App.3d 362, 368, 190 Cal.Rptr. 866;  Ortiz v. Woods (1982) 129 Cal.App.3d 672, 676, 181 Cal.Rptr. 209;  North Coast Coalition v. Woods (1980) 110 Cal.App.3d 800, 804–805, 168 Cal.Rptr. 95;  by implication see also City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 164 Cal.Rptr. 539, 610 P.2d 436.)   In such instance, no material facts are in dispute, and the appellate court is in as good a position to resolve the case on its merits as the trial court would be after determination of the appeal.  (North Coast Coalition v. Woods, supra, 110 Cal.App.3d at p. 805, 168 Cal.Rptr. 95.) 2  In the present case, the question regarding the facial validity of the escort services ordinance is solely a question of law.   It is therefore appropriate that the merits of appellant's action be determined now.

 Respondents, also as a preliminary matter, assert that appellants have failed to meet their burden in establishing the five prerequisites to an entitlement to a preliminary injunction because appellants have solely addressed the question whether the ordinance was constitutional.3  Because we are determining the merits of the present action—as to whether or not a permanent injunction should be issued—we need not address respondents' argument here.   The present suit was brought as a taxpayer action under Code of Civil Procedure section 526a.   This form of action seeks “to obtain a judgment, restraining and preventing any illegal expenditure of ․ the estate, funds or other property of a ․ city and county of the state․”  It is well-established that the “mere ‘expending [of] the time of the paid police officers of the city ․ in performing illegal and unauthorized acts' constitute[s] an unlawful use of funds which could be enjoined under section 526a.”  (Blair v. Pitchess (1971) 5 Cal.3d 258, 268, 96 Cal.Rptr. 42, 486 P.2d 1242, quoting Wirin v. Horrall (1948) 85 Cal.App.2d 497, 504–505, 193 P.2d 470.)   Thus, if on the merits the escort service ordinance is found to be unconstitutional, it logically follows that the enforcement of its illegal and unauthorized acts must be enjoined.

II

Appellants raise numerous constitutional questions, but the argument regarding preemption is dispositive.

Appellants assert that the escort service ordinance is invalid because it is in “conflict with general laws” in violation of article XI, section 7, of the California Constitution.   Pointing to the legislative history and requirements of the ordinance, they contend that it impermissibly seeks to regulate the criminal aspects of sexual conduct, an area of legislation preempted by state law through the California Penal Code.

Article XI, section 7, of the state Constitution provides that “[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”   Local legislation in conflict with the general laws is void.  “Conflicts exist if the ordinance duplicates [citations], contradicts [citations], or enters an area fully occupied by general law, either expressly or by legislative implication.  [Citations.]  If the subject matter or field of the legislation has been fully occupied by the state, there is no room for supplementary or complementary local legislation, even if the subject [was] otherwise one properly characterized as a ‘municipal affair.’ ”  (Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 807–808, 100 Cal.Rptr. 609, 494 P.2d 681;  In re Hubbard (1964) 62 Cal.2d 119, 125, 41 Cal.Rptr. 393, 396 P.2d 809, overruled on another point in Bishop v. City of San Jose (1969) 1 Cal.3d 56, 63 & fn. 6, 81 Cal.Rptr. 465, 460 P.2d 137;  In re Zorn (1963) 59 Cal.2d 650, 651, 30 Cal.Rptr. 811, 381 P.2d 635;  In re Lane (1962) 58 Cal.2d 99, 102, 22 Cal.Rptr. 857, 372 P.2d 897;  and Abbott v. City of Los Angeles (1960) 53 Cal.2d 674, 681–684, 3 Cal.Rptr. 158, 349 P.2d 974.)

 It is also well-settled that this state has adopted a general scheme for the regulation of the criminal aspects of sexual conduct, and thus, the state has occupied that field to the exclusion of all local regulation.   (Lancaster v. Municipal Court, supra, 6 Cal.3d at p. 808, 100 Cal.Rptr. 609, 494 P.2d 681;  In re Lane, supra, 58 Cal.2d at p. 102 et seq., 22 Cal.Rptr. 857, 372 P.2d 897.)

We note that in Lancaster the California Supreme Court reviewed a Los Angeles ordinance prohibiting commercial businesses from providing massages by a member of the opposite sex.   Finding that the ordinance was preempted by the California Penal Code, Justice Peters stated that “[t]here has been no suggestion of any reasonable purpose to the ordinance before us other than to limit sexual activity.   Although it has been urged that the ordinance should be viewed as a regulation of the business of administering massages and not a sexual regulation, the only specification of any actual or potential evil is the sexual activity which may follow the wake of the massage.”  (Lancaster v. Municipal Court, supra, 6 Cal.3d at p. 809, 100 Cal.Rptr. 609, 494 P.2d 681.)   Pointing to the comments of city officials that the purpose of the ordinance “ ‘is to regulate a source of licentiousness,’ ” the court concluded that “[t]his admission clearly indicates that the purpose of the ordinance in question was not to regulate the operation of massage parlors but was aimed at making the task of the police department and sheriff's office easier in their fight against prostitution and lewd conduct.   We are satisfied that the ordinance is a regulation of the criminal aspects of sexual conduct.”   (Ibid., fn. omitted;  emphasis added.)

Similarly, in a concurring opinion in In re Lane, supra, 58 Cal.2d 99, 22 Cal.Rptr. 857, 372 P.2d 897, then Chief Justice Gibson commented that “[i]t has been suggested that the ordinance [at issue] was not intended to create a crime in addition to that punishable by state law but was designed and is enforced as a law against prostitution where prostitution is difficult to prove.   This view of the ordinance, however, makes it even clearer that the local regulation is invalid.”  (Id., at pp. 111–112, 22 Cal.Rptr. 857, 372 P.2d 897.)

 The ordinance in the present case is clearly one that “was designed and is enforced as a law against prostitution where prostitution is difficult to prove.”  (In re Lane, supra, 58 Cal.2d at pp. 111–112, conc. opn. of Gibson, C.J., 22 Cal.Rptr. 857, 372 P.2d 897.)   The San Francisco Police Chief, in urging the enactment of the ordinance, informed the mayor that “[m]ost escort services are fronts for prostitution” but that “passage of the ordinance should reduce the need for police services [in this area], since ․ illegal types of escort services will be greatly reduced.”   To emphasize this last point, he pointed to the license and daily register requirements of the ordinance.   (Ibid.)  Similarly, the mayor, in asking for passage of the ordinance before the Board of Supervisors, stated that “[m]any escort services often serve as a front for individuals engaged in serious criminal activity ․  [¶] We cannot simply ignore the type of criminal activity outlined by Chief Murphy ․ this legislation will reduce the manpower needed to monitor and investigate illegal escort services ․”

In addition to these statements in the ordinance's scant legislative history, respondents have submitted an affidavit by Captain Diarmuid Philpott, head of the Vice Crimes Division of the city's police department, in which Philpott summarizes his testimony as the sole representative of the department before the Finance Committee of the Board of Supervisors.   Opining that “virtually every escort service operating in San Francisco [is] a front for prostitution,” Philpott states that the ordinance will only be enforced against services which advertise in a telephone directory or newspaper unless a criminal complaint is filed alleging that the “escort service” is engaging in “criminal activity.”   Beyond these limitations on the ordinance's enforcement, Philpott further remarks that the provisions requiring photographs, fingerprints and prior criminal records in permit applications “will aid the investigation and prosecution of alleged criminal activities.”   The daily register requirement “will greatly assist in the protection of those who patronize escort services by providing a basis for fast and accurate police investigation ․”  (Ibid.)   Moreover, the age restriction in the ordinance is “necessary to prevent the delinquency of minors who might otherwise be led or coerced into prostitution ․”  In summary, there is no suggestion, in either Philpott's analysis or the legislative history of the ordinance, of a legislative purpose other than to control prostitution and aid in police investigation of that crime.

Despite this fact, respondents contend that the present ordinance is strictly a “municipal affair,” and as such, cannot be preempted by state law, because it merely imposes a license requirement on businesses operating within the city.   They rely primarily on People v. Katrinak (1982) 136 Cal.App.3d 145, 185 Cal.Rptr. 869, a case determined by the Second Appellate District concerning a Los Angeles escort bureau ordinance.

 Clearly, local government may impose a license requirement on business activities operating within its jurisdiction (Sunset Amusement Co. v. Board of Police Commissioners (1972) 7 Cal.3d 64, 72, 101 Cal.Rptr. 768, 496 P.2d 840, app. dism. (1973) 409 U.S. 1121, 93 S.Ct. 940, 35 L.Ed.2d 254), and “[t]he fact that the criminal aspects of sexual activity have been preempted by the state does not mean that counties may not collect license fees for the right to engage in lawful activities relating to sex.”  (Lancaster v. Municipal Court, supra, 6 Cal.3d at p. 809, 100 Cal.Rptr. 609, 494 P.2d 681;  Robins v. County of Los Angeles (1966) 248 Cal.App.2d 1, 10, 56 Cal.Rptr. 853.)   However, the ordinance in the present case does not merely seek to license businesses.   It blatantly attempts to expand police investigative powers in regulating criminal sexual conduct beyond that encompassed in the California Penal Code.

For this reason, we find Katrinak to be distinguishable.   In fact, the only parallel between the Los Angeles ordinance and the San Francisco regulation is a similar definition of an “escort.”   The Los Angeles ordinance did not predicate permit approval upon a lack of a criminal record of sex-related crimes (People v. Katrinak, supra, 136 Cal.App.3d at p. 155, fn. 10, 185 Cal.Rptr. 869), as does its San Francisco counterpart, and there was no evidence presented to the Katrinak court of a legislative history providing that the sole purpose of the ordinance was to control or aid in the investigation of prostitution and prostitution-related crimes.   The court in Katrinak therefore reviewed “a licensing scheme for a lawful business enterprise,” (p. 155, fn. 9, 185 Cal.Rptr. 869) and did not face the issue that is before us now—whether the preemption doctrine applies to a municipal ordinance that is couched in the form of a “licensing scheme” but clearly has the substance of a criminal statute.

We are reminded that “in determining the type of ordinance in question it is the duty of the courts to look at its substance and not merely its form.”   (City & County of San Francisco v. Boss (1948) 83 Cal.App.2d 445, 450, 189 P.2d 32;  In re Dees (1920) 46 Cal.App. 656, 660–661, 189 P. 1050.)  “[A]n ordinance which is intended to impose unlawful regulations in a field preempted by the state may not be upheld merely because it also contains revenue provisions which are supplementary to the regulatory purpose of the ordinance.”  (Verner, Hilby & Dunn v. City of Monte Sereno (1966) 245 Cal.App.2d 29, 34, 53 Cal.Rptr. 592.)

There has been no suggestion of any purpose for the San Francisco ordinance other than to limit prostitution and prostitution-related crimes.   The actual provisions within the ordinance are intricately linked to controlling or investigating prostitution.   The approval of a business license is dependent upon whether the applicant has been convicted of sex-related crimes.  (San Francisco Mun.Code, §§ 1074.12, 1074.14.)   Minors are barred from employment or patronizing escort services in order to prevent delinquency and the coercion of youths into prostitution.   The daily register requirement and the provisions compelling disclosure of fingerprints, photographs and prior criminal records are information-gathering devices to aid in the investigation and prosecution of alleged criminal activities.   Further, the daily register provision even anticipates a certain level of criminality in its required disclosure of the “true” identity of patrons.  (San Francisco Mun.Code, § 1074.21.)   The ordinance, in one provision, echoes the entire Penal Code by prohibiting “any type of criminal conduct with a customer,” and no person can “permit, counsel or assist any other person in the violation of any provision.”  (San Francisco Mun.Code, §§ 1074.22, subd. (a), 1074.23.)   Any violation of the provisions of the ordinance compel criminal sanctions.  (San Francisco Mun.Code, § 1074.26.)

 The ordinance clearly has the substance of a penal statute and impermissibly attempts to expand police investigative powers beyond that encompassed in the California Penal Code.  “ ‘Whenever the Legislature has seen fit to adopt a general scheme for the regulation of a particular subject, the entire control over whatever phases of the subject are covered by the state legislation ceases as far as local legislation is concerned.’ ”  (Spitcauer v. County of Los Angeles (1964) 227 Cal.App.2d 376, 378–379, 38 Cal.Rptr. 710, quoting the majority opinion in In re Lane, supra, 58 Cal.2d at pp. 102–103, 22 Cal.Rptr. 857, 372 P.2d 897.)   The investigation and regulation of the criminal aspects of sexual conduct is a matter of statewide concern and beyond the exclusive control of the city.   It is not a municipal affair and not subject to local control.  (Lancaster v. Municipal Court, supra, 6 Cal.3d 805, 807–808, 809, 100 Cal.Rptr. 609, 494 P.2d 681;  Spitcauer v. County of Los Angeles, supra, 227 Cal.App.2d 376, 378–379, 38 Cal.Rptr. 710.)

The clear purpose of this San Francisco escort service ordinance is to regulate sexual conduct, particularily prostitution.   However, the Legislature has unambiguously occupied this field by adopting a general and extensive scheme of regulation.   This local ordinance undermines the statewide uniformity of the statutory regulation of sexual conduct.   Such action at the local level leads to uncertainty and confusion.   We therefore hold the ordinance void.

Since the preemption argument is dispositive, it is not necessary to consider the other arguments raised by appellants.

DISPOSITION

The cause is reversed and remanded with directions to vacate the order of September 18, 1981, denying a preliminary injunction and to enter an order granting a permanent injunction and to enter judgment in favor of plaintiffs and appellants.

FOOTNOTES

1.   Subsequent to the filing of this appeal but before argument, both parties brought motions for summary judgment in the lower court.   On February 18, 1983, the lower court denied plaintiffs' motion and partially granted defendants' motion.   Summary judgment was thus granted in defendants' favor as to all issues except the right to privacy and Fourth Amendment questions.Because the summary judgment order was only a partial determination and not a final judgment, it does not render the instant appeal moot.  (See 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 465, pp. 4420–4421.)

2.   Respondents seek to distinguish the North Coast case because that case involved an appeal from an order granting a preliminary injunction.   The determinative factor, however, in the analysis of North Coast and its fellow cases is whether the appeal involves solely a question of law.   If it does, whether the case is an appeal from a granting or denial of a preliminary injunction is irrelevant.

3.   Those five prerequisites are purported to be:  (1) the inadequacy of any other remedy;  (2) a showing of irreparable injury in the event the preliminary injunction is denied;  (3) the necessity to preserve the status quo;  (4) a lack of an adverse effect on the public interest or interests of third parties;  and (5) the likelihood of prevailing on the merits.

SMITH, Associate Justice.

KLINE, P.J., and ROUSE, J., concur.

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