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Court of Appeal, Second District, Division 1, California.

Douglas MARTIN, Yvonne Bagstad, Stanley Fleischman and Doris Fleischman, Plaintiffs and Appellants, v. The CITY OF BEVERLY HILLS, etc., et al., Defendants and Respondents.

Civ. B006080.

Decided: February 28, 1985

Stanley Fleischman, pro se, for plaintiffs and appellants. Charles D. Haughton, City Atty., and Seth Weisbord, Deputy City Atty., for defendants and respondents.


Plaintiffs Douglas Martin, Yvonne Bagstad, Stanley Fleischman and Doris Fleischman, individually and on behalf of all other similarly situated persons, appeal from a summary judgment in favor of defendant City of Beverly Hills (City) in an action by which plaintiffs sought to compel the City to refrain from issuing permits to restaurants to operate within buildings which are not accessible to the physically handicapped.


Some time prior to 1978, the City's department of building and safety issued a permit to the Golestan Restaurant which sanctioned the renovation of the second story of an existing building on Wilshire Boulevard for operation as a restaurant.   The two-story building was not equipped with elevators or ramps;  the sole public access to the second story was provided by a stairway which plaintiffs characterize as long and steep.

Three of the plaintiffs suffer from physical impairments which either confine them to wheelchairs or make walking difficult and painful.   Their physical impairments make it impossible or impracticable for these plaintiffs to gain access to the second story of a building via such a flight of stairs.

 The general policy of California law, embodied in Health and Safety Code sections 19955 and 19956, is to provide the physically handicapped with access to public accommodations, including restaurants, constructed with private funds.   Such access is mandatory and local governments are charged with the enforcement of state policy.   The City's issuance of a permit to an establishment like the Golestan Restaurant, located on the second story of a building lacking access by elevator or ramp, assertedly is in contravention of applicable state law and impairs the rights of the physically handicapped to their damage.


Plaintiffs contend the trial court erred as a matter of law in granting summary judgment, in that Health and Safety Code section 19955.5 provides no exemption from the physically handicapped access requirement to public accommodations located in multistory buildings lacking public access by elevator or ramp.   For the reasons set forth below, we disagree.


 Preliminarily, we address the City's argument that the instant appeal is moot, inasmuch as the Golestan Restaurant ceased operation in 1982.   Generally, an appeal will be deemed moot when the relief sought no longer is available (Long v. Hultberg (1972) 27 Cal.App.3d 606, 608, 103 Cal.Rptr. 19;  Rees v. Gardner (1960) 185 Cal.App.2d 630, 632, 8 Cal.Rptr. 505) or there is no possibility the conflict will arise again (see Environmental Coalition of Orange County, Inc. v. Local Agency Formation Com. (1980) 110 Cal.App.3d 164, 167 Cal.Rptr. 735).   It is conceded that the restaurant is no longer in operation.   The City also argues that the related case of Bagstad v. City of Beverly Hills (2d Civ. No. B002270, July 12, 1984) establishes on principles of collateral estoppel that there is no possibility the conflict will arise again.   The argument must fail due to considerable factual differences in the two cases.

In Bagstad, the City represented that it no longer intended to license restaurants which were located on the upper floor of an office building which had no elevator or ramp, thereby making the restaurant inaccessible to the handicapped.   In contrast, the City's position throughout the instant matter has been the converse.   At all times, the City has maintained it has the right to issue permits to such restaurants, in that they are not public accommodations within the meaning of Health and Safety Code section 19955, but operate within buildings governed by section 19955.5 and which come within the exception enumerated therein.   Hence, unlike Bagstad, the instant matter presents a very real possibility the conflict will arise again in the City of Beverly Hills.   Accordingly, the action is not moot.

We turn now to the merits of the appeal.   As originally written, section 19955 read:  “The purpose of this part is to insure that public accommodations constructed in this state with private funds adhere to the provisions [requiring access by the physically handicapped].   For the purposes of this part ‘public accommodation’ means a building, structure, or improved area which is used primarily by the general public as a place of gathering or amusement, including theaters, restaurants, hotels and stadiums.”  (Stats.1969, ch. 1560, § 1, p. 3166.)   The section was amended in 1971 to read:  “The purpose of this part is to ensure that public accommodations and facilities ․ adhere to the provisions ․   For the purposes of this part ‘public accommodation or facilities' means a building, structure, facility, complex, or improved area ․ and shall include auditoriums, theaters, restaurants, hotels, motels, stadiums, and convention centers.”  (Stats.1971, ch. 821, § 1, p. 1623;  emphasis denotes additions.)   At the same time, section 19955.5 was added.  (Stats.1971, ch. 821, § 2, p. 1624.) 1  In granting summary judgment to the City, the trial court relied on the exemption set forth in the last paragraph of section 19955.5.

It is undisputed that the building in which the Golestan Restaurant was located is an office building within the meaning of section 19955.5.   The restaurant occupied a portion of the second story of that building only, and the building provides no public access to the upper story by elevator or ramp.   Plaintiffs argue, however, that section 19955.5 has no applicability to a public accommodation located in such an office building.

 Determination of the respective scope of sections 19955 and 19955.5 requires the construction of the statutes involved.   A court must interpret statutes so as to give effect to the intent of the Legislature.  (Landrum v. Superior Court (1981) 30 Cal.3d 1, 12, 177 Cal.Rptr. 325, 634 P.2d 352.)   Toward that end, “[w]ords must be construed in context, and statutes must be harmonized, both internally and with each other, to the extent possible.  [Citations.]”  (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844, 157 Cal.Rptr. 676, 598 P.2d 836.)   The legislative history of a statute is a legitimate and valuable aid to ascertaining the statutory purpose.  (Ibid.)  Further, the contemporaneous administrative construction of a statute is entitled to great weight unless it is palpably erroneous.  (See Allen v. California Toll Bridge Authority (1977) 68 Cal.App.3d 340, 363, 137 Cal.Rptr. 493;  accord, Culligan Water Conditioning v. State Bd. of Equalization (1976) 17 Cal.3d 86, 93, 130 Cal.Rptr. 321, 550 P.2d 593.)

As originally enacted, section 19955 was clear and unambiguous on its face, requiring no interpretation.   It refers to “public accommodations constructed ․ with private funds․”  (Emphasis added;  see also Health & Saf.Code, § 19956 [stats.1969, ch. 1560, § 1, p. 3166];  Gov.Code, §§ 4450, 4451.)   The plain meaning of “construct” is “to make or form by combining parts:  build.”  (Webster's New Collegiate Dict. (8th ed. 1979) p. 241.)   Hence, the definition of a “public accommodation” as “a building, structure, or improved area which is used primarily by the general public ․” clearly contemplates a separate and distinct construction housing the enumerated establishments.   It is the amendment of section 19955 in 1971 to include the term “facility” and the simultaneous enactment of section 19955.5 which introduces confusion into the picture, for a “facility” may be something other than a separate construction.   Indeed, the State Building Code defines “facility” as “a building, structure, room, site, complex, or any portion thereof, that is built, altered, improved or developed to serve a particular purpose.”  (Cal.Admin.Code, tit. 24, § 2–407(a).)

The amendment to section 19955 and the addition of section 19955.5 were proposed by Assembly Bill 2238 (1971 regular session).   The Legislative Counsel's Digest to Assembly Bill 2238 notes that the bill adds auditoriums, motels and convention centers to the types of structures which are public accommodations.   This indicates a legislative intent that section 19955 continue to govern separate and distinct constructions housing the enumerated establishments which comprise public accommodations or facilities.   It is noteworthy also that section 19955 continues to refer to “public accommodations or facilities constructed ․” and related statutes, including section 19955.5, also use the term “constructed.”

Moreover, a closer examination of the State Building Code reveals an administrative interpretation of section 19955 consistent with that contained in the Legislative Counsel's Digest to Assembly Bill 2238.   Chapter 2–6 of title 24, California Administrative Code, pertains to special requirements for access to Group A occupancies.   Group A occupancies generally are places of gathering and assembly, i.e., auditoriums, theaters, dining facilities, stadiums.  (Cal.Admin.Code, tit. 24, § 2–611.)   Chapter 2–7 pertains to special requirements for access to Group B occupancies.   Generally, Group B occupancies are those “used by the public as customers, clients, visitors” and include office buildings, commercial sales or service establishments.  (Cal.Admin.Code, tit. 24, § 2–710(b.1).)

 Section 2–710(d) provides:  “Group B occupancies used for assembly purposes but having an occupancy load of less than 50 shall conform to the requirements as specified in Section 2–611.”   Hence, section 2–710 specifically recognizes that areas of assembly will exist in Group B occupancies.   The special provisions of section 2–710(d) result from the general definition of “place of assembly.”   A place of assembly is “a building or portion of a building used ․ for the gathering together of 50 or more persons for purposes of ․ drinking or dining․”  (Cal.Admin.Code, tit. 24, § 2–402(e.1).)   From the foregoing, it is clear a restaurant may be governed by the requirements of chapter 2–7 rather than 2–6.

While chapter 2–6 requires that such occupancies as auditoriums, theaters and dining facilities be accessible to the physically handicapped at all primary entrances as well as have internal accessibility, chapter 2–7 requires that the internal portions used by the public in office buildings and other commercial and professional sales and service activities be accessible.   In other words, the emphasis in chapter 2–6 is on the establishment as a whole, while the emphasis in chapter 2–7 is on each area of Group B occupancy use.   Therefore, it is apparent that this contemporaneous administrative interpretation of the relevant statutory provisions considers Health and Safety Code section 19955 to apply to separate, distinct constructions which house certain types of public accommodations and section 19955.5 to apply to buildings, such as office buildings and shopping centers, which house many activities including some which come within the definition of “public accommodation.”   This is consistent with the expressed legislative intent and the continued use of the term “constructed” in these code sections.   Once a building exists, a portion of its interior may be altered, improved or developed to serve a particular purpose coming within the definition of a “public accommodation or facility,” but it is not “constructed” to do so.

It is further evident from the language of Health and Safety Code section 19959 and Government Code section 4456 that the Legislature considers the term “constructed” to carry its plain ordinary meaning.   Each section refers to previously-constructed “public accommodation[s]” or “building[s] or facilit [ies]” and requires the compliance of such structures with the code provisions governing access by the physically handicapped “when any alterations, structural repairs or additions are made․”   By their language, these sections recognize that “construction” refers to the initial erection or building of an edifice, not the subsequent adaptation or alteration of its internal premises.

 The language of the statutes at issue and of related statutes, the indicia of legislative intent and the contemporaneous administrative interpretation of the pertinent statutes compel the conclusion that the Golestan Restaurant was not a public accommodation within the meaning of Health and Safety Code section 19955, but was a place of assembly which occupied a portion of an office building as defined by section 19955.5 and within the exemption provided therein.   It follows that access to the restaurant by the physically handicapped was not governed by Health and Safety Code section 19956, but by section 19955.5 and chapter 2–7 of title 24 of the California Administrative Code.   It follows further that no applicable standard of access required the City to deny the restaurant a permit or require the installation of an elevator.   It was necessary only that the facilities of the restaurant be accessible to any physically handicapped person who managed to reach the second story of the building.  (Cal.Admin.Code, tit. 24, § 2–710.)

Certain language in Marsh v. Edwards Theatres Circuit, Inc. (1976) 64 Cal.App.3d 881, 134 Cal.Rptr. 844 is pertinent at this juncture.  “This court is not insensitive to the hardships suffered by persons who are afflicted with the wide range of physical disabilities that exist in our society․   Our society's traditional concern for the less fortunate among us requires that we take all appropriate measures to lessen the burden of handicapped persons.

“The varied and distinctive nature of the numerous handicaps from which so many people suffer suggests, however, that the problem is one which the legislative branch of government is uniquely equipped to solve.   It is in the legislative halls where the numerous factors involved can be weighed and where the needs can be properly balanced against the economic burdens which of necessity will have to be borne by the private sector of the economy in providing a proper and equitable solution to the problem.”  (Id., at p. 888, 134 Cal.Rptr. 844.)

Clearly, in enacting Health and Safety Code section 19955.5, the Legislature sought to fill a void perceived to exist in the initial attempt to meet the needs of the physically handicapped.   That is, the Legislature recognized that many activities, services and commercial enterprises necessary or of value to the general public either could not reasonably be included within the definition of “public accommodation” set forth in section 19955 or would occupy a portion only of certain types of structures and hence would be outside the definition of a “public accommodation.”

However, the exemption granted by section 19955.5 to certain multistoried buildings further evinces a legislative judgment that the needs of the physically handicapped must be balanced against the economic burden to be borne by the private sector.   Accordingly, the Legislature concluded in these instances, stories other than the first story—and hence the activities, services or enterprises found thereon—need not be accessible to the physically handicapped.   It is this situation which the parties to the instant litigation faced.   That legislative judgment is not without a rational basis, for relatively few establishments thus will be placed beyond the reach of the physically handicapped.   Since, the City breached no duty in granting a license to the Golestan Restaurant, summary judgment properly was granted.

The judgment is affirmed.


1.   As enacted in 1971, section 19955.5 read in pertinent part:  “All passenger vehicle service stations, shopping centers, and office buildings constructed in this state with private funds shall adhere to the provisions ․ (commencing with Section 4450) ․ of the Government Code.   As used in this section, ‘office building’ means a building or structure of more than 10,000 square feet of gross floor space wherein a commercial activity or service is performed or a profession is practiced, or wherein any combination thereof is performed or practiced in all or the majority of such building or structure.“In multistoried buildings, floors or levels above and below the first floor or ground level are exempt from the requirements of this section if a ramp or elevator is not available to provide public access to such floors or levels.”

SPENCER, Presiding Justice.


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