GLANCY v. COUNTY OF SACRAMENTO (1971)

These consolidated appeals arise from proceeding instituted by appellants in superior court to restrain, on constitutional grounds, the enforcement of two Sacramento County ordinances and an ordinance of the City of Sacramento. The ordinances apply to public places other than theaters, concept halls, and similar establishments. They make it a misdemeanor for ‘topless' females and ‘bottomless' persons of either sex to serve food or drink to customers in such places, or to participate in shows there.

Judicial decisions prior to 1969 indicated that, under the preemption doctrine, ‘topless' and ‘bottomless' waitresses and entertainers were subject only to statewide—not local—criminal regulation. (See, In re Moss (1962) 58 Cal.2d 117, 23 Cal.Rptr. 361, 373 P.2d 425; People v. Hansen (1966) 245 Cal.App.2d 689, 54 Cal.Rptr. 311; People v. Kukkanen (1967) 248 Cal.App.2d Supp. 899, 902, 56 Cal.Rptr. 620.) In 1969 the Legislature added sections 318.5 and 318.6 to Penal Code. In relevant part, section 318.5 provides as follows:

‘Nothing in this code shall invalidate an ordinance of, or be construed to prohibit the adoption of an ordinance by, a county or city, if such ordinance directly regulates the exposure of the genitals or buttocks of or the breasts of any person who acts as a waiter, waitress, or entertainer, whether or not the owner of the establishment in which the activity is performed employs or pays any compensation to such person to perform such activity, in an establishment which serves food, beverages, or food and beverages, including, but not limited to, alcoholic beverages, for consumption on the premises of such establishment.

‘The provisions of this section shall not apply to a theater, concert hall, or similar establishment which is primarily devoted to theatrical performances.’ (Emphasis ours.)

Preemption was likewise declined by the Legislature in section 318.6, which states as follows:

‘Nothing in this code shall invalidate an ordinance of, or be construed to prohibit the adoption of an ordinance by, a city or county, if such ordinance relates to any live acts, demonstrations, or exhibitions which occur in public places, places open to the public, or places open to public view and involve the exposure of the private parts of buttocks of any participant or the breasts of any female participant, and if such ordinance prohibits an act or acts which are not expressly authorized or prohibited by this code.

‘The provisions of this section shall not apply to a theater, concert hall, or similar establishment which is primarily devoted to theatrical performances.’ (Emphasis ours.)

Thus, in sections 318.5 and 318.6, the Legislature expressly evidenced its intent to permit local regulation of the conduct described by those statutes. (Cf., In re Cox (1970) 3 Cal.3d 205, 220, 90 Cal.Rptr. 24, 474 P.2d 992; Pipoly v, Benson (1942) 20 Cal.2d 366, 371, 125 P.2d 482.) We turn then to the determination of whether the county and city exercised that authority within constitutional limits.

THE COUNTY ORDINANCES: THE GLANCY-HAINES APPEALS

In October 1969, the Sacramento County Board of Supervisors enacted ordinances No. 1054 and No. 1055.¹ Ordinance No. 1054 (herein, ‘the ‘bottomless' ordinance’) declares in pertinent part as follows:

‘Section 1. Legislative Authorization. This ordinance is adopted pursuant to Sections 318.5 and 318.6 of the Penal Code. All words used in this ordinance which also are used in the said Sections 318.5 and 318.6, are used in the same sense and mean the same as the same respective words used in the said Sections 318.5 and 318.6 of the Penal Code.

‘Section 2. Theater—Definition. As used in this ordinance and in Sections 318.5 and 318.6, ‘theater’ means a building, play house, room, hall or other place having a permanent stage upon which movable scenery and theatrical or vaudeville or similar performances are given and permanently affixed seats so arranged that a body of spectators can have an unobstructed view of the stage, and for which a county license for a theater is in full force and effect. This definition does not supersede the provisions of Section 1 of this ordinance.

Section 3. Prohibition. Every person is guilty of a misdemeanor who:

‘(a) Exposes his or her private parts or buttocks or employs any device or covering which is intended to simulate the private parts or pubic hair while participating in any live act, demonstration, or exhibition in any public place, place open to the public, or place open to public view, or while serving food or drink or both to any customer, or

‘(b) Permits, procures or assists any person to so expose himself or herself, or to employ any such device.

‘Section 4. Accessories. Every person is guilty of a misdemeanor who permits, counsels, or assists any person to violate any provision of this ordinance.

‘Section 5. Exceptions. This ordinance does not apply to:

‘(a) A theater, concert hall, or similar establishment which is primarily devoted to theatrical performance.

‘(b) Any act authorized or prohibited by any state statute.

‘Section 6. Constitutionality. If any provision or clause of this ordinance or application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are declared to be severable.’ (Emphasis ours.)

Ordinance No. 1055 (herein, ‘the ‘topless' ordinance’) duplicates sections 1, 2, 4, 5, and 6 of the ‘bottomless' ordinance, and otherwise provides in relevant part as follows:

‘Section 3. Prohibition. Every female is guilty of a misdemeanor who while participating in any live act, demonstration, or exhibition in any public place, place open to the public, or place open to public view, or while serving food or drink or both to any customer:

‘(a) Exposes any portion of either breast below a straight line so drawn that both nipples and all portions of both breasts which have a different pigmentation than that of the main portion of the breasts are below such straight line, or

‘(b) Employs any device or covering, which is intended to simulate such portions of the breast, or

‘(c) Wears any type of clothing so that any portion of such part of the breast may be observed.’ (Emphasis ours.)

On November 12, 1969, appellants Glancy and Haines filed in superior court a complaint for declaratory relief, by which they sought a determination that—as applied to them—the two county ordinances violated their First Amendment rights of free speech and expression and denied them equal protection of the laws. It was also alleged that, under the same constitutional provisions, each ordinance was invalid on its face.

The complaint stated that Glancy was the owner of a Sacramento County tavern where the adult public was entertained by ‘topless' and ‘bottomless' dancing by Haines, and where Haines served food and beverages ‘topless.’ In addition to requesting a declaratory judgment, the complaint prayed for an injunction restraining the county, its sheriff, and its district attorney from enforcing the ordinances.

The first appeal at bench is by Glancy and Haines from an order entered December 2, 1969, in which the superior court denied their request for a preliminary injunction and dissolved a temporary restraining order which had theretofore issued in the declaratory relief action.

On December 4, 1969, in the municipal court, criminal complaints were filed charging Glancy and Haines with having violated both county ordinances the day before. Glancy was named as an accessory. On the same day that the misdemeanor complaints were filed, Glancy and Haines petitioned the superior court for a writ of prohibition to halt those criminal proceedings. Their petition renewed the attack which the declaratory relief action had launched against the constitutionality of each ordinance, as applied to them. Additionally, the petition for the writ alleged that the two enabling statutes—Penal Code sections 318.5 and 318.6, supra—unconstitutionally discriminated ‘between theaters and all other public places. * * * ’

The second appeal at bench is by Glancy and Haines from an order made December 12, 1969, by which the superior court denied the petition for the writ.

On June 29, 1970, while their appeals were pending, Glancy and Haines entered pleas of nolo contendere to a charge of violating the ‘topless' ordinance (Glancy, as an accessory), and all remaining charges were dismissed on motion of the district attorney. Judgment on the pleas was continued, pending our decision herein. The latter circumstance leaves the validity of the ‘topless' ordinance and enabling statutes as questions still before us for review. (See, 3 Witkin, Cal.Procedure (1954), Extraordinary Writs, § 29(b), p. 2500.) Moreover, even though the ‘bottomless' charges were dismissed, the issue of the constitutionality of the ‘bottomless' ordinance remains pending with us by virtue of the suit by Glancy and Haines for declaratory and injunctive relief, since otherwise they could not obtain a decision on that issue without subjecting themselves to another criminal prosecution. (See, Zeitlin v. Arnebergh (1963) 59 Cal.2d 901, 905–908, 31 Cal.Rptr. 800, 383 P.2d 152; Miller v. State of California (1970) 6 Cal.App.3d 202, 85 Cal.Rptr. 801.)

I

In In re Giannini (1968) 69 Cal.2d 563, 72 Cal.Rptr. 655, 446 P.2d 535, the state Supreme Court held that a ‘topless' dance performance for a nightclub audience of consenting adults was protected by the First Amendment, absent proof of its obscenity, and that such proof required expert testimony that—measured by contemporary statewide standards—the questioned dance appealed predominantly to the prurient interest of the audience and exceeded customary limits of candor.² (Cf., Boreta Enterprises, Inc. v. Department of Alcoholic Beverage Control (1970) 2 Cal.3d 85, 101–103, 84 Cal.Rptr. 113, 465 P.2d 1; People v. Price (1970) 4 Cal.App.3d 941, 945, 84 Cal.Rptr. 585.)

As applied to topless dancing—and tested by the Giannini holding—the unconstitutional overbreadth of ordinance No. 1055 is apparent on its face. Constitutionally permissible restrictions on First Amendment rights must be drawn with narrow specificity. (In re Kay (1970) 1 Cal.3d 930, 941, 83 Cal.Rptr. 686, 464 P.2d 142; Fort v. Civil Service Commission (1964) 61 Cal.2d 331, 337, 38 Cal.Rptr. 625, 392 P.2d 385.)³ Sacramento County's ‘topless' ordinance makes no mention of obscenity but instead broadly bans ‘any [‘topless'] live act, demonstration, or exhibition in any public place [other than theaters, concert halls, etc.] * * *.’ Giannini makes clear, however, that ‘topless' dancing in public is not, under all circumstances, obscene. (69 Cal.2d at pp. 571–572, & fn. 8 on pp. 575–576, 72 Cal.Rptr. 655, 446 P.2d 535.)⁴

The County's prohibition of ‘topless' waitresses is similarly overbroad. “Also encompassed [within the right of freedom of speech] are amusement and entertainment as well as the exposition of ideas.” (In re Giannini, supra, 69 Cal.2d at p. 569, 72 Cal.Rptr. at p. 660, 446 P.2d at p. 540.) Like the ‘topless' dance in Giannini the employment of ‘topless' waitresses is obviously “designed to awaken some emotion [in customers]” (id., p. 568, 72 Cal.Rptr. p. 659, 446 P.2d p. 539) and is therefore ‘a form of entertainment * * * that involves communication of ideas * * * and feelings' (id., p. 570, 72 Cal.Rptr. p. 660, 446 P.2d p. 540). (Cf., Robins v. County of Los Angeles (1966) 248 Cal.App. 2d 1, 8, 56 Cal.Rptr. 853; People v. Kukkanen, supra, 248 Cal.App.2d Supp. at p. 903, 56 Cal.Rptr. 620.) Whether such entertainment is provided by waitresses or dancers (as distinct from any musical accompaniment), the communication involved is visual—just as with a photograph or sculpture. The entertainer's use (as in Giannini) of body motion on a theatrical stage clearly is not determinative of whether visual communication does does not exist; such factors are merely descriptive of the medium by which, and the context in which, a particular communication may occur.

Giannini points out that the fact that ‘improper ideas' may be awakened in patrons merely underscores that the particular form of entertainment involves communication; First Amendment protection is lost only if the entertainment goes further and is obscene. (69 Cal.2d at pp. 570–572, 72 Cal.Rptr. 655, 446 P.2d 535.) Mindful that ‘an appellate court certainly does not in any sense compose a cross-section of the community’ (id., p. 576, 72 Cal.Rptr. p. 664, 446 P.2d p. 544), we cannot say that, in every public setting within the scope of the ordinance, ‘topless' waitresses would be ‘so patently offensive as to violate any conceivable community standard’ (id., p. 576, fn. 8, 72 Cal.Rptr. p. 644, 446 P.2d p. 544)—particularly since ‘the relevant ‘community’ is the [entire] State of California' (id., p. 577, 72 Cal.Rptr. p. 645, 446 P.2d p. 545) (italics deleted). In prohibiting ‘topless' waitresses without requirement that their conduct be obscene, the county in effect presumes to be arbiter of that statewide standard.

II

The appeals of Glancy and Haines were not preceded by any evidentiary hearing in the superior court. Except as encompassed by their pleas of nolo contendere, the nature of their conduct has not been established as a fact. Thus we cannot ascertain whether enforcement of the ‘bottomless' ordinance would affect them. At this juncture, therefore, the issue posed is whether that ordinance is unconstitutional on its face, rather than as applied to those two parties. (Cf., In re Cox, supra, 3 Cal.3d at pp. 223–224, 90 Cal.Rptr. 24, 474 P.2d 992.)

‘[W]here a provision restricting free speech and the free dissemination of ideas is involved, a court in considering the claim of overbreadth * * * may take into account the operation of the provision as to factual situations other than the one at bar.’ (Fort v. Civil Service Commission, supra, 61 Cal.2d at p. 339, 38 Cal.Rptr. at p. 630, 392 P.2d at p. 390.) ‘It is clear that where First Amendment rights are concerned the statute itself and not the evidence in an individual case establishes the boundaries of permissible conduct. Thus an ordinance must be held invalid if it fails to meet required criteria even though the defendant's conduct may have run afoul of a statute which could have been adopted in satisfaction of those criteria.’ (Burton v. Municipal Court (1968) 68 Cal.2d 684, 696, 68 Cal.Rptr. 721, 728, 441 P.2d 281, 288.)

Our foregoing analysis of the ‘topless' ordinance is equally applicable to the ‘bottomless' ordinance and compels its invalidation. As hereinbefore quoted, the latter ordinance purports to ban heterosexual ‘bottomless' shows and waiting on customers in most public places; but it contains no requirement that such conduct be obscene.

In People v. Noroff (1967) 67 Cal.2d 791, 63 Cal.Rptr. 575, 433 P.2d 479, in discussing photographs which revealed male and female genitalia, the court made the following observation: ‘The [United States] Supreme Court has decided that the judiciary cannot engage in the task of placing legal fig leaves upon variegated presentations of the human figure. That court has told us that no matter how ugly or repulsive the presentation, we are not to hold nudity, absent a sexual activity, to be obscene.'⁵ (In., p. 797, 63 Cal.Rptr. p. 579, 433 P.2d p. 483.) (Emphasis ours.) (See also, In re Panchot (1968) 70 Cal.2d 105, 73 Cal.Rptr. 689, 448 P.2d 385; People v. Rosakos (1968) 268 Cal.App.2d 497, 74 Cal.Rptr. 34.) On the present record, we need not determine whether ‘sexual activity’ (simulated or real) defines the forbidden zone of ‘live,’ as well as pictorial, nudity. (See fn. 5, supra.) But if—as in Noroff—‘legal fig leaves' cannot be placed on photographs of genitalia, they cannot rationally be required as a matter of law in every context within the scope of the ‘bottomless' ordinance.

The fact that (as in Noroff) one communicative medium is pictorial, and that (as here) another communicative medium is animate, may indeed produce differences in the visual impact of nude entertainment. (See, Landau v. Fording (1966) 245 Cal.App.2d 820, 827, 54 Cal.Rptr. 177, aff'd per curiam (1967), 388 U.S. 456, 87 S.Ct. 2109, 18 L.Ed.2d 1317; United States v. A Motion Picture Film (2d Cir. 1968) 404 F.2d 196, 198; P.B.I.C., Inc. v. Byrne (D.Mass.1970) 313 F.Supp. 757, 763 (three-judge court); Raphael v. Hogan (S.D.N.Y.1969) 305 F.Supp. 749, 755–756; People v. Bloss (1969) 18 Mich. App. 410, 171 N.W.2d 455, 458; People v. Bercowitz (Crim.Ct.1970) 61 Misc.2d 974, 308 N.Y.S.2d 1, 9–10; cf., Pitchess v. Superior Court (1969) 2 Cal.App.3d 644, 650, 83 Cal.Rptr. 35.) The concept of obscenity, however, may vary depending upon whether the visual communication is restricted to consenting adults or whether a danger exists that it might be seen by children or unwilling viewers. (See, Stanley v. Georgia (1969) 394 U.S. 557, 567, 89 S.Ct. 1243, 22 L.Ed.2d 542, 551; Redrup v. New York (1967) 386 U.S. 767, 769, 87 S.Ct. 1414, 18 L.Ed.2d 515, 517; People v. Luros (1971) 4 Cal.3d 84, 91–92, 92 Cal.Rptr. 833, 480 P.2d 633; In re Giannini, supra, 69 Cal.2d at pp. 575–576, fn. 8, 72 Cal.Rptr. 655, 446 P.2d 535; Carolina Lanes, Inc. v. City of Los Angeles (1967) 253 Cal.App.2d 831, 61 Cal.Rptr. 630; United States v. 35 MM. Motion Picture Film (2d Cir.1970) 432 F.2d 705, 712; Hunt v. Keriakos (1st Cir.1970) 428 F.2d 606; Bookcase, Inc. v. Broderick (1966) 18 N.Y.2d 71, 271 N.Y.S.2d 947, 218 N.E.2d 668, 671; Keuper v. Wilson (1970) 111 N.J.Super. 489, 268 A.2d 753.) The Giannini case makes clear that, apart from other constitutional prerequisites, entertainment cannot be held to be obscene unless, applying contemporary statewide standards, the questioned conduct ‘appealed to the prurient interests of the audience * * * .’ (69, Cal.2d at pp. 565, 567, 577, 72 Cal.Rptr. at p. 665, 446 P.2d at p. 545.) (Emphasis ours.)

Were the issue is subject to such variables, neither we nor the county board of supervisors can presume to reflect the sensibilities of the statewide community by decreeing that ‘bottomless' entertainment, regardless of its context, presents such ‘an extreme and umquestionable situation’ that it violates ‘any conceivable community standard’ (In re Giannini, supra, 69 Cal.2d at p. 576, fn. 8, 72 Cal.Rptr. 655, 446 P.2d 535). Yet, in its sweeping ban of ‘bottomless' shows and food or drink service, that is exactly what ordinance No. 1054 purports to do.

III

The county's blanket prohibition of all ‘topless' and ‘bottomless' service of food or beverages in the places specified, as well as shows, does not purport to regulate such nudity for purposes of health, safety, of sanitation. (See, Robins v. County of Los Angeles, supra, 248 Cal.App.2d at pp. 5–6, 12, 56 Cal.Rptr. 853; People v. Hansen, supra, 245 Cal.App.2d 689, 54 Cal.Rptr. 311.) Unquestionably, government has the right to enact appropriate measures for such purposes. However, “the right to regulate [a means of communication] does not necessarily sanction the outright prohibition.” (Weaver v. Jordan (1966) 64 Cal.2d 235, 245, 49 Cal.Rptr. 537, 544, 411 P.2d 289, 296.)

The Attorney General and County Counsel have expressed their forebodings about the ‘exploitation’ of females in places which feature nude entertainment, and their concern over the potentially provocative effect of such entertainment where liquor is served, but these are unsubstantiated assumptions that women are involuntarily conscripted into such employment and that present Penal Code provisions are inadequate to deter customers from creating disturbances. (Cf., Stanley v. Georgia, supra, 394 U.S. at pp. 566–567, 89 S.Ct. at pp. 1248–1249, 22 L.Ed.2d at pp. 550–551.) ‘On the contrary, neither we, nor the County and its agents, may presume from the mere existence of such business activities that criminally prohibited sexual conduct will be encouraged * * *.’ (Robins v. County of Los Angeles, supra, 248 Cal.App.2d at p. 5, 56 Cal.Rptr. at p. 856 (‘topless' waitresses in bars).) Respondent county may not presume ‘that the display of bare breasts [or bottoms] will be conducted in a manner calculated to deliberately emphasize sexual provocation. In the absence of contrary evidence, it must be assumed that such publication will be addressed only to those who freely and voluntarily elect the so-called pleasure and will not be imposed upon those whose of propriety might be injured or their annoyance or disgust be aroused, since they are equally free to avoid exposure.’ (Id., p. 12, 56 Cal.Rptr. p. 860 (emphasis ours); see also, In re Giannini, supra, 69 Cal.2d at pp. 575–576, fn. 8, 72 Cal.Rptr. at p. 664, 446 P.2d at p. 544, involving ‘a ‘topless' dance shown only to adults * * * who knew exactly what they were going to see’; cf., Boreta Enterprises, Inc. v. Department of Alcoholic Beverage Control, supra, 2 Cal.3d at pp. 103–106, 84 Cal.Rptr. 113, 465 P.2d 1.)

THE CITY ORDINANCE: THE REYNOLDS—GAINES—McNABB APPEAL

On November 17, 1969, the Sacramento City Council enacted an ordinance which added sections 26.59 through 26.64 to the city code. The city ordinance is substantially word-for-word the same as Sacramento County's ‘topless' and ‘bottomless' ordinances, viewed collectively.⁶

On November 19, 1969, appellants Reynolds, Gaines, and McNabb filed in superior court a complaint for declaratory relief, in which they sought a determination that—as applied to them—the city ordinance violated their First Amendment rights of free speech and expression and denied them equal protection of the laws. It was also alleged that, under the same constitutional provisions, the city ordinance was invalid upon its face. In written argument before the superior court, those three appellants further contended that the two enabling statutes—Penal Code sections 318.5 and 318.6, supra—unconstitutionally discriminated ‘between theaters, etc., and places which serve food or beverages or other places available to the public.’

The complaint stated that Reynolds was the owner and operator of a tavern located in the City of Sacramento, where the adult public was entertained by ‘topless' and ‘bottomless' dancing by Gaines and McNabb, and where Gaines and McNabb served food and beverages ‘topless.’ In addition to requesting a declaratory judgment, the complaint prayed for an injunction restraining the city and its chief of police from enforcing the ordinance.

Reynolds, Gaines, and McNabb appeal from an order entered December 2, 1969, wherein the superior court denied their request for a preliminary injunction and dissolved a temporary restraining order which had theretofore issued in their declaratory relief action.

As hereinbefore stated, there is substantial identity between the two county ordinances and the city ordinance. There is also substantial identity between the constitutional attack made by Glancy and Haines on the county ordinances and that made by Reynolds, Gaines, and McNabb on the city ordinance. Consequently, the city ordinance is unconstitutional under the First Amendment for the same reasons as the county ordinances.

The city ordinance is not saved by the ‘Legislative Findings' recited in section 26.59 thereof. (See fn. 6, supra.) Because obscenity is not protected by the First Amendment, the council's findings are surplusage if the conduct proscribed by the ordinance is obscene. (Cf., Roth v. United States (1957) 354 U.S. 476, 485–487, 77 S.Ct. 1304, 1 L.Ed.2d 1498, 1507–1508.) If that conduct is not obscene, it is constitutionally protected, and it can be prohibited only to avert a clear and present danger of a grave substantive evil which government is empowered to prevent. (See, Los Angeles Teachers Union v. Los Angeles City Bd. of Ed. (1969) 71 Cal.2d 551, 557, fn. 8, 78 Cal.Rptr. 723, 455 P.2d 827; Weaver v. Jordan, supra, 64 Cal.2d at pp. 243–244, 49 Cal.Rptr. 537, 411 P.2d 289.) Before such danger can be termed ‘clear and present,’ however, ‘the substantive evil must be extremely serious and the degree of imminence extremely high * * *.’ (Bridges v. California (1941) 314 U.S. 252, 263, 62 S.Ct. 190, 194, 86 L.Ed. 192, 203; see also, Crosswhite v. Municipal Court (1968) 260 Cal.App.2d 428, 432, 67 Cal.Rptr. 216.)

Where legislation impairs First Amendment rights, a reviewing court must make an independent evaluation of the evidence, and the court is not bound by the legislative body's finding that a clear and present danger exists. (Los Angeles Teachers Union v. Los Angeles City Bd. of Ed., supra, 71 Cal.2d at p. 557, 78 Cal.Rptr. 723, 455 P.2d 827; Katzev v. County of Los Angeles (1959) 52 Cal.2d 360, 363–367, 341 P.2d 310.) No evidence was received by the superior court before it denied the preliminary injunction requested by Reynolds, Gaines, and McNabb. Consequently, the record on their appeal does not show the evidentiary basis (if any) for the city council's findings that ‘nude and seminude acts * * * and * * * undress by female employees of food, drink and like establishments' are ‘adverse to the public peace, morals and good order,’ and that ‘it is in the best interest of the public safety and convenience of this city to restrict such nudity, and the commercial promotion and exploitation thereof. * * *’ (§ 26.59 in fn. 6, supra.) (Emphasis ours.)

The lack of such evidentiary record, however, cannot impart a curative quality to findings such as these. The words ‘adverse’ and ‘in the best interest’ are far too general to suggest a clear and present danger to the public interest. (Cf., Weaver v. Jordan, supra, 64 Cal.2d at pp. 244–245, 49 Cal.Rptr. 537, 411 P.2d 289.) Nor do those findings reveal a close, causal connection between nude entertainment and such substantive evil. (See, Katzev v. County of Los Angeles, supra, 52 Cal.2d at p. 367, 341 P.2d 310.)⁷

THE COUNTY AND CITY ORDINANCES: THEIR OVERBREADTH PRECLUDES VALIDATION BY JUDICIAL CONSTRUCTION

The county and city ordinances do not contain language which can be so construed as to preserve their constitutionality. (See, e. g., In re Kay, supra, 1 Cal.3d at pp. 941–943, 83 Cal.Rptr. 686, 464 P.2d 142.) Their broad scope conflicts with a construction limiting their application to cases of obscenity; and the only way such limitation could be added would be by reading language into the ordinances which is not there—a technique which would transgress both the lawmakers' intent and the judicial function. (In re King (1970) 3 Cal.3d 226, 237, 90 Cal.Rptr. 15, 474 P.2d 983; Vogel v. County of Los Angeles (1967) 68 Cal.2d 18, 24–26, 64 Cal.Rptr. 409, 434 P.2d 961; Kinnear v. City etc. of San Francisco (1964) 61 Cal.2d 341, 343, 38 Cal.Rptr. 631, 392 P.2d 391; Fort v. Civil Service Commission, supra, 61 Cal.2d at p. 340, 38 Cal.Rptr. 625, 392 P.2d 385; County of Los Angeles v. Jessup (1938) 11 Cal.2d 273, 278–280, 78 P.2d 1131; City of Los Angeles v. Lewis (1971) 175 Cal. 777, 781, 167 P. 390.) Those same omissions—pervading all operative terms of the ordinances—preclude application of the doctrine of severability.

Our foregoing conclusions render it unnecessary to discuss appellants' further contentions that the county and city ordinances, as well as Penal Code sections 318.5 and 318.6, deny them equal protection of the laws (U.S.Const., Amend. XIV).

Finally, we emphasize that our decision is made upon the record before us. By this opinion, we do not legalize all ‘topless' and ‘bottomless' public conduct. Nothing said herein prevents the county and city from enacting valid ordinances which adhere to the constitutional standard (U.S.Const., Amend I). We simply hold that—contrary to the theory of these three ordinances—‘topless' and ‘bottomless' entertainment (including service of food or drink), of the type which the ordinances prohibit, is not obscene in every conceivable public setting within their scope. It undoubtedly is in some. In so holding, we follow the teaching of the Giannini case, supra, 69 Cal.2d 563, 72 Cal.Rptr. 655, 446 P.2d 535, that ‘live’ nude entertainment cannot be characterized as obscene by isolating it from the context in which (including the viewers to whom) it is presented.⁸

First Amendment rights ‘have a paramount and preferred place in our democratic system, and the “rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice.” [Citations.]’ (Weaver v. Jordan, supra, 64 Cal.2d at p. 241, 49 Cal.Rptr. at p. 541, 411 P.2d at p. 293.) ‘The Supreme Court of the United States has * * * reiterated the principle that an unnecessarily wide embrace of a statute, entailing the curtailment of constitutional freedoms, cannot be justified by the sanctity of its purposes.’ (Wollam v. City of Palm Springs (1963) 59 Cal.2d 276, 286, 29 Cal.Rptr. 1, 7, 379 P.2d 481, 487.)⁹

On the Glancy-Haines appeals, the orders of December 2, 1969, and December 12, 1969, are reversed with directions to the superior court to issue a peremptory writ of prohibition restraining the municipal court from further proceedings on the misdemeanor charges to which Glancy and Haines entered pleas of nolo contendere. The writ should also direct that those pleas be vacated and those charges be dismissed. On the Reynolds-Gaines-McNabb appeal, the order of December 2, 1969, is reversed.

Judicial disagreements in obscenity cases should be characterized by extreme deference, because obscenity law is a constitutional jungle. Mr. Justice Black has suggested, ‘[N]ot even the most learned judge much less a layman, is capable of knowing * * * whether certain material comes within the area of ‘obscenity’ as that term is confused by the Court * * *.' (Ginzburg v. United States (1966) 383 U.S. 463, 480–481, 86 S.Ct. 942, 952–953, 16 L.Ed.2d 31 quoted in Krislov, From Ginzburg to Ginsberg: The Unhurried Children's Hour in Obscenity Litigation, 1968 S.Ct.Rev. 153, 154.) I deferentially disagree with the view that Fist Amendment concepts require this court to invalidate the food service phase of these ordinances. My disagreement rests upon several separate grounds.

The decision turns on First Amendment concepts only on the assumption that the food service phase of these ordinances deals with an exercise of communication. Display of the genitalia and of the female mammary glands of persons serving food and drink is completely outside the range of First Amendment protection. It has no claim upon that protection because it is not communication. It is a commercial exhibition, an exercise in mobile display, nothing more. (See State v. Nelson (Iowa 1970) 178 N.W.2d 434, 441.)

The First Amendment guarantee of free expression was enshrined in the Constitution “to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 269, 84 S.Ct. 710, 720, 11 L.Ed.2d 686, quoting Roth v. United States (1957) 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Chafee, Free Speech in the United States (1941) p. 31; Corwin, Liberty Against Government (1948) pp. 157–159, fn.; Meiklejohn, The First Amendment Is an Absolute, 1961 S.Ct.Rev. 245, 255–257.) We know of course that a free society needs a much wider spectrum of communication—political utterance, philosophical and social inquiry, poetry, the novel, art, drama and even entertainment. But we must not be mesmerized by words. From freedom of speech and of the press we infer a freedom of ‘communication’ and then stuff an infinite range of human conduct into the latter term. The words of the First Amendment are not crystals, transparent and unchanging; neither are they a sausage skin, expanding to encase a polyglot pastiche of activity. However different in libidinous purpose and effect, the moveable displays prohibited here are no more communicative in nature than a naked department store mannequin.

On the assumption that the prohibited conduct is communication of a sort, the prohibition has no ‘chilling’ effect on First Amendment freedom. Some years ago purely commercial advertising was placed outside the pale of the First Amendment. (Valentine v. Chrestensen (1942) 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262: additional cases cited Banzhaf v. F. C. C. (1968) 132 U.S.App.D.C. 14, 405 F.2d 1082, 1101, fn. 81; see also, Emerson, The System of Freedom of Expression (1970) pp. 414–417.) Although the exclusion may not be complete, product abvertising is not entitled to the vigorous protection accorded other forms of communication ‘particularly since the primary purpose of commercial advertising is to advance the economic welfare of business enterprises, over which state and federal governments enjoy wide powers of regulation.’ (Note, Freedom of Expression in a Commercial Context, 78 Harv.L.Rev. 1191, 1195.) The breast and public displays banned by the Sacramento ordinances are designed to increase liquor sales. These displays have no more constitutional sanctity than billboards; at least as little protection as television cigarette ads.

In my view the food service phase of these ordinances does not require an expedition into the complexities of obscenity law, but turns on other constitutional issues. Tested by police power principles, constitutionality depends not on the judges' opinions of the regulation's wisdom or necessity, ‘but solely by the answer to the question is there any reasonable basis in fact to support the legislative determination of the regulation's wisdom and necessity?’ (Consolidated Rock Products Co. v. City of Los Angeles (1956) 57 Cal.2d 515, 522, 20 Cal.Rptr. 638, 642, 370 P.2d 342, 346.) Some of the obscenity decisions intimate that such displays are a private affair of the customers who enter the regulated establishments; that public interference with the customers' tastes injects the public into a matter of strictly private concern. (See, e. g., In re Giannini, supra, 69 Cal.2d at pp. 575–576, fn. 8, 72 Cal.Rptr. 655, 446 P.2d 535; Robins v. County of Los Angeles (1966) 248 Cal.App.2d 1, 12, 56 Cal.Rptr. 853.) Such intimations ignore the sociological and economic impact of topless and bottomless bars upon the neighborhoods in which they exist. The transformation of Broadway in San Francisco, between Sansome and Powell Streets, is a matter of general public notoriety which we may judicially notice. The topless and bottomless establishments have transformed that street from a once attractive, ethnic neighborhood into a tawdry carnival. The shift in the character of the customers and visitors effects a corresponding transformation of business climate and land use, all of it reverberating to the tone set by the calculated eroticism of the topless and bottomless bars.

Municipal police powers may be exercised and businesses regulated to protect community economic and social values, including to some extent aesthetic values.¹ A court may invalidate such a regulation only if it has no rational connection with public interest objectives as the legislative body may have conceived them.² In the absence of an unquestionable contrary showing we should accept the rational relationship discerned by the Legislature in Penal Code sections 318.5 and 318.6 and by the local legislative bodies in the ordinances before us. (Wilke & Holzheiser, Inc. v. Dept. of Alcoholic Bev. Control (1966) 65 Cal.2d 349, 55 Cal.Rptr. 23, 420 P.2d 735.)

At this point we move to the assumption that the First Amendment is involved, that the constitutional issue must be resolved by the standards supplied by the obscenity decisions. Here too I differ from my colleagues. This is a pretrial adjudication of the ordinances' constitutionality on their face. Such an adjudication is a matter of right when the court is competent to give relief. (Zeitlin v. Arnebergh (1970) 59 Cal.2d 901, 908, 31 Cal.Rptr. 800, 383 P.2d 152; cf. Miller v. State (1970) 6 Cal.App.3d 202, 85 Cal.Rptr. 801.) In my opinion the record in this case is an inadequate foundation for a pretrial judgment of nonobscenity. The lawsuits are not ripe for an enlightened constitutional judgment.

Obscenity, in a constitutional sense, exists when three elements coalesce: first, when the dominant theme of the material or conduct taken as a whole appeals to a prurient interest in sex; second, the material or conduct is patently offensive because it offends contemporary community standards relating to the presentation of sexual matters; and third, the material is utterly without redeeming social value. (A Book Named ‘John Cleland's, etc. Memoirs v. Massachusetts (1966) 383 U.S. 413, 418, 86 S.Ct. 976, 16 L.Ed.2d 1; In re Giannini, supra, 69 Cal.2d at p. 573, 72 Cal.Rptr. 655, 446 P.2d 535.) Determinations of obscenity for constitutional purposes are mixed questions of law and fact, i. e., questions of ‘constitutional fact.’ (Zeitlin v. Arnebergh, supra, 59 Cal.2d at p. 910, 31 Cal.Rptr. 800, 383 P.2d 152; see Jaffe, Judicial Review: Constitutional and Jurisdictional Fact, 70 Harv.L.Rev. 953.)

No judicial or jury inquiry into the constitutional facts has occurred here. Here we adjudicate the ordinance's validity on its face. The majority opinion points out that Mr. Glancy and Miss Haines have never had an evidentiary hearing; inferentially, that the waitress-waiter phase of the ordinances suffers from unconstitutional overbreadth because no jury has ever measured the conduct by the test of contemporary community standards, that is, the second of the three tests enumerated above. That approach obliterates the ordinance before it gets under way, preventing juries from ever applying the test. It assumes that the courts have a monopoly of the function. Contrary to that assumption, the obscenity decisions fix a standard to be applied to the material or conduct but do not designate the body to apply that standard. (Zeitlin v. Arnedergh, supra, 59 Cal.2d 901, 911, 31 Cal.Rptr. 800, 383 P.2d 152.)

At this juncture the inquiry does not turn on definitions and verbal gropings. At this point the inquiry is: Where is the power? Who, for constitutional purposes, makes the decision? In answering these questions we are in the area of judge-made extrapolations. We deal with constitutional gloss, not constitutional principle.

Here the initial judgment of obscenity was made in the one instance by the five-man elected board of county supervisors and in the other by a nine-man elected city council. Ultimately, should the First Amendment issue be raised in a jury trial, the jury will hear expert testimony and will find the conduct offensive or inoffensive by community standards. There is no foundation, in law or logic, for denying an elective legislative body the power of decision for the preliminary purpose of adjudicating the ordinance's constitutionality on its face.

In the allocation of responsibility for the determination of community acceptability, a one-man or collegial court hardly qualifies as a cross-section of the community. (In re Giannini, supra, 69 Cal.2d at p. 576, 72 Cal.Rptr. 655, 446 P.2d 535.) Although a jury more closely approximates the community, a series of jury verdicts is haphazard and anarchic, providing no guidance for balancing the respective interests of community and citizen. At this late date in the evolution of republican government, a court cannot say that a legislative body—elected from districts of approximately equal population—is not an embodiment of community will and community standards. We should leave the initial, pretrial judgment where tradition has placed it, with the legislative body. (See Dennis v. United States (1951) 341 U.S. 494, 523–525, 71 S.Ct. 857, 95 L.Ed. 1137, Frankfurter, J., concurring; Bickel, The Least Dangerous Branch, pp. 111–198; Black, Structure and Relation in Constitutional Law.) In the absence of an evidentiary record, judges are no more competent than county supervisors or city councilmen to make a judgment of community acceptability. Judicial suppression has no more efficacy than legislative censorship. It simply substitutes moral standards gleaned from judicial writings for those discerned by the democratically-elected, relatively responsive legislative body.³

For the purpose of pretrial adjudication we should follow the admonition of Justice Frankfurter ‘to set aside the judgment of those whose duty it is to legislate only if there is no reasonable basis for it.’ (Dennis v. United States, supra, 341 U.S. at p. 525, 71 S.Ct. at p. 875, 95 L.Ed. 1137; see also People v. Luros, supra, 4 Cal.3d at pp. 87–89, 92 Cal.Rptr. 833, 480 P.2d 633.) We turn, then, to an inquity into the reasonable basis for the prohibition of breast and pubic displays by persons serving food and drink. At this point the court, like the legislative body which enacted the ordinance, can do no more than presage the general sort of activity embraced by the prohibition.

Obscenity adjudications demand crass realism lest the judges find themselves wandering through a never-never land of abstruse doctrine. When a topless waitress bends over the seated drinker, dangling her breasts in his face, her action is deliberately erogenous, designed to arouse his libidinous impulses, intended to stimulate his erectile tissues. The juxtaposition of her pubic area to the seated drinker has like motivation and design. (I confess to personal inability to estimate the carnal impact of a view of a waiter's genitals.) This undebatably sexual activity⁴ is but a means to an end. The end is not the communication of ideas. (The latter, no matter how titillating, get little immediate satisfaction.) The end objective of the process is the bar owner's cash register. The cash register is the ultimate supplicant for First Amendment protection. Here, as in so many areas of human conduct, the end fails to justify the means.

Appellants rely upon Boreta Enterprises, Inc. v. Department of Alcoholic Beverage Control, 2 Cal.3d 85, 84 Cal.Rptr. 113, 465 P.2d 1, which holds that the employment of topless waitresses in a bar is not as a matter of law violative of the constitutional ‘public morals' clause applicable to licensed liquor establishments. In that case the liquor administrator, for reasons not revealed by the decision, had conceded that the activity was not obscene. (2 Cal.3d at p. 99, 84 Cal.Rptr. 113, 465 P.2d 1.) Moreover, the court noted the existence of an ‘extraordinarily sparse’ record, devoid of evidence of the conduct's impact upon public morals. 2 Cal.3d at p. 104, 84 Cal.Rptr. 113, 465 P.2d 1.)

Here we are unfettered by judicial interpretation of the constitutional ‘public morals' clause and untroubled by official concessions relative to the dangling bosoms of the waitress who bends over the seated customer. In Boreta the court recognized ‘the inconclusive and indecisive state of the consensus of society regarding the propriety and morality of public and quasi-public displays of female breasts.’ (2 Cal.3d at p. 101, 84 Cal.Rptr. at p. 124, 465 P.2d at p. 12.) Since, as the court observed, there is no community consensus, a local logislative body preliminarily and a jury ultimately should determine whether the activity—in the context of particular circumstances and not as a matter of law—is offensive to community standards. Appellate judges should not usurp this jury function. The same court which decided Boreta has evinced a belief that appellate judges, like juries, need an evidentiary record to perform this task. (In re Giannini, supra, 69 Cal.2d at p. 576, 72 Cal.Rptr. 655, 446 P.2d 535.)

Appellants also rely on People v. Noroff, supra, 67 Cal.2d 791, 63 Cal.Rptr. 575, 433 P.2d 479, sustaining dismissal of a prosecution for distributing a ‘nudie’ magazine which, among the innocuous photographs of outdoor nudity, contained some pictures of the genitals. There the court held that the ‘dominant theme’ of the publication was not calculated to stimulate sexual response, observing that ‘[the federal Supreme] court has held that the representation of the nude human form in a nonsexual context is not obscene.’ (67 Cal.2d at p. 797, 63 Cal.Rptr. at p. 579, 433 P.2d at p. 483.)

Noroff has bearing here only on the inacceptable assumption that the bosoms hovering near the customer's face, the mons venus hovering near his beer, occur in a nonsexual context. If the context were not sexual, if the conduct were not deliberately aimed at erotic arousal, it would lack commercial value and would not take place. This is not a regulation of nudity in the abstract, but a prohibition of calculated erotic stimulation in public eating and drinking establishments. The regulated conduct is emphatically sexual.

Perhaps, finally, it is necessary to surrender to the inevitable and admit the obvious—that erotic stimulation is not intrinsically evil or, in legal parlance, not obscene per se. Elementary commonsense joins with legal lore in that discernment. My description of the conduct seeking asylum in the First Amendment has been deliberately crude. It is designed to assist in demonstrating that in the context of time, place, and, above all, of purpose, the city and county legislative bodies could reasonably make the preliminary judgments implicit in these ordinances: that the prohibited conduct has a dominant theme appealing to the customers' prurient interest in sex; that it is patently offensive to contemporary community standards; that (aside from the redemptive jangling of the proprietor's cash register) the conduct is utterly without redeeming social value.

The ordinances must be tested by a third constitutional standard, one arising from article XX, section 22, of the California Constitution. That provision invests the state with exclusive power to regulate the sale of intoxicating liquor and the Department of Alcoholic Beverage Control with exclusive power over licensed premises. The contention is available that this constitutional provision is designed to achieve uniformity in the conduct of liquor sales under statewide regulations administered by the state department; that it places liquor service outside the general police power of counties and cities, preventing them from imposing diversified local controls; that it bars the legislature from authorizing such county and city controls. (Cf. Daniel v. Board of Police Com'rs (1961) 190 Cal.App.2d 566, 12 Cal.Rptr. 226.) The contention is lightly touched in the closing briefs of two appellants, but without analysis or research. Since the present opinion does not affect court's disposition of the appeals, I raise the question without attempting to decide it.

Finally, I disagree with the holding of overbreadth. This is not a case where general language simultaneously sweeps up constitutionally protected and unprotected conduct in an indissoluble prohibition. (Cf. In re Hoffman (1967) 67 Cal.2d 845, 64 Cal.Rptr. 97, 434 P.2d 353; Young v. Municipal Court, Cal.App., 94 Cal.Rptr. 331 (3d D.C.A., 4/19/71).) The general presumption of constitutionality is fortified by severability clauses in these ordinances; moreover, the valid portions, covering the service of food and drink, are mechanically severable from the invalid ‘live act’ provisions. Under these circumstances the court should hold the food service provisions valid and enforceable. (In re Blaney (1947) 30 Cal.2d 643, 655, 184 P.2d 892.)

I would reverse the judgments and remand the proceedings to the trial court with a direction to grant relief as to the ‘live act’ provisions of these ordinances and otherwise to deny relief.

FOOTNOTES

1.  The ordinances were codified, with immaterial variation in form, as chapters 9.44 and 9.48, respectively, of the Sacramento County Code.

2.  The constitutional test of obscenity which Giannini applied (69 Cal.2d at pp. 572–574, 72 Cal.Rptr. 655, 446 P.2d 535) is that of Roth v. United States (1957) 354 U.S. 476, 489, 77 S.Ct. 1304, 1 L.Ed.2d 1498, 1509, as modified by A Book Named ‘John Cleland's Memoirs' etc. v. Massachusetts (1966) 383 U.S. 413, 418, 86 S.Ct. 975, 16 L.Ed.2d 1, 5–6, and as incorporated into Penal Code section 311. A third inquiry posed by the Memoirs test is whether the challenged material ‘is utterly without redeeming social value.’ That element was not in issue in Giannini. (69 Cal.2d at p. 573, fn. 5, 72 Cal.Rptr. at p. 662, 446 P.2d at p. 542.) (See also, Redrup v. New York (1967) 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515; Dixon v. Municipal Court (1968) 267 Cal.App.2d 789, 793, 73 Cal.Rptr. 587.) The Giannini case did not hold that its requirement of expert testimony was constitutionally compelled. (69 Cal.2d at p. 574, 72 Cal.Rptr. 655, 446 P.2d 535.) After Giannini was decided, the Legislature rejected any necessity for expert testimony (but not other evidence) concerning ‘the obscene * * * character of * * * live conduct’ in prosecutions under chapter 7.5 of title IX of part 1 of the Penal Code. (Id., § 312.1.) Since Giannini did not involve a chapter 7.5 proceeding, it is unclear whether the Supreme Court's evidentiary rule has been affected by the later legislation—a question which we are not called upon to decide in the appeals at bench.

3.  See also, In re Berry (1968) 68 Cal.2d 137, at page 155, 65 Cal.Rptr. 273, at page 285, 436 P.2d 273, at page 285: ‘We are not persuaded by the County's argument that these sections must be viewed ‘in context’ in order to supply the necessary limitation. * * * When restrictions in the area of free expression are at issue, an appeal to ‘context’ is insufficient to satisfy constitutional requirements of precision.'

4.  ‘The supreme court [in Giannini] found the performance of a dance for an audience to be comparable to other forms of expression or communication—such as books, paintings and movies—which prima facie enjoy protection under the first amendment until shown to be obscene. Since the lower court had made no attempt to test the defendants' conduct by the obscenity standards laid down by the United States Supreme Court in Roth as modified by [A Book Named John Cleland's] Memoirs v. Massachusetts, the supreme court held that the conviction was an invasion of first amendment freedom.’ (The Supreme Court of California 1968–1969, 58 Cal.L.Rev. 80, 175 (1970) (fns. omitted.) (See citations, fn. 2, supra.)

5.  Lest our quotation of Noroff be misconstrued, we emphasize that the state Supreme Court did not say there that, regardless of the context and medium of presentation, the portrayal of sexual activity is obscene. ‘Neither nudity nor sex is obscene per so and under all circumstances [citation].’ (People v. Kukkanen, supra, 248 Cal.App.2d Supp. at p. 904. 56 Cal.Rptr. at p. 624.) ‘[S]ex and obscenity are not synonymous.’ (Roth v. United States (1957) 354 U.S. 476, 487. 77 S.Ct. 1304. 1310. 1 L.Ed.2d 1498. 1508; see. e. g., Dixon v. Municipal Court (1968) 267 Cal.App.2d 789, 73 Cal.Rptr. 587 (theatrical play); People v. Cimber (1969) 271 Cal.App.2d Supp. 867, 76 Cal.Rptr. 382 (films); United States v. 35 MM. Motion Pieture Film (2d Cir. 1970) 432 F.2d 705, 711; United States v. A Motion Pieture Film (2d Cir. 1968) 404 F.2d 196: United States v. One Carton Positive Motion Picture Film (2d Cir. 1966) 367 F.2d 889; P.B.I.C., Inc. v. Byrne (D. Mass.1970) 313 F.Supp. 757 (theatrical performance) (three-judge court); Hermann v. United States (D.C.App.1969) 259 A.2d 347 (film); Cusack v. Teitel Film Corporation (1967) 38 Ill.2d 53, 230 N.E.2d 241, 250 (film), rev's on other grounds, (1968) 390 U.S. 139, 88 S.Ct. 754. 19 L.Ed.2d 966; Keuper v. Wilson (1970) 111 N.J.Super. 489, 268 A.2d 753 (film); Lordi v. UA New Jersey Theaters, Inc. (1969) 108 N.J.Super. 19, 259 A.2d 734 (film); compare, Landau v. Fording (1966) 245 Cal.App.2d 820, 54 Cal.Rptr. 177, aff's per curiam, (1967) 388 U.S. 456, 87 S.Ct. 2109, 18 L.Ed.2d 1317 (film); People v. Newton (1970) 9 Cal.App.3d Supp. 24, 88 Cal.Rptr. 343 (‘bottomless' dances); People v. Bercowitz (Crim.Ct.1970) 61 Misc.2d 974, 308 N.Y.S.2d 1 (theatrical performance).)

6.  The city ordinance (No. 2856, Fourth Series) contained an emergency clause which described the emergeney as being that ‘the County of Sacramento has adopted a similar ordinance [sic] which shall become effective on November 20, 1969, and it is desireable [sic] that the City and County ordinances on this subject become effective on the same date.’ In relevant part, the city ordinance otherwise provides as follows (with immaterial variation in codified form):‘Sec. 26.59. Legislative Findings and Authorization.‘The City Council does hereby find that there exists in this city an increasing trend toward nude and semi-nude acts, exhibitions and entertainment, and of undress by female employees of food, drink and like establishments serving the public, and that such acts and such competitive commercial exploitation of nudity is [sic] adverse to the public peace, morals and good order; and that it is in the best interest of the public safety and convenience of this city to restrict such nudity, and the commercial promotion and exploitation thereof, as hereinafter set forth.‘All words used in these City Code Sections which are also used in Sections 318.5 and 318.6 of the Penal Code are used in the same sense and mean the same as the same respective words used in Sections 318.5 and 318.6 of the Penal Code.‘Sec. 26.60. Same—Theatre—Definitions.‘As used in Sections 26.61 through 26.64 inclusive and in Sections 318.5 and 318.6 of the Penal Code the phrase ‘theatre, concert hall, or other similar establishment which is primarily devoted to theatrical performances' shall mean a building, playhouse, room, hall or other place having permanently affixed seats so arranged that a body of spectators can have an unobstructed view of the stage, upon which theatrical or vaudeville performances or similar forms of artistic expression are presented, and where such performances are not incidental to the promoting of the sale of food, drink or other merchandise, and for which a city license for theatre is in full force and effect. This definition does not supersede the provisions of Section 26.59 of this code.‘Sec. 26.61. Prohibition Against the Display of Female Breasts.‘Every female is guilty of a misdemeanor who, while participating in any live act, demonstration, or exhibition in any public place, place open to the public, or place to public view, or while serving food or drink or both to any customer;‘a. exposes any portion of either breast below a straight line so drawn that both nipples and all portions of both breasts which have a different pigmentation than that of the main portion of the breasts are below such straight line, or‘b. employs any device of covering, which is intended to simulate such portions of the breast, or‘c. wears any type of clothing so that any portion of such part of the breast may be observed.‘Sec. 26.62. Prohibition Against Display of Private Parts.‘Every person is guilty of a misdemeanor who exposes his or her private parts or buttocks, or employs any device or covering which is intended to simulate the private parts or pubic hair of such person, while participating in any live act, demonstration, or exhibition in any public place, place open to the public, or place open to public view, or while serving food or drink or both to any customer.‘Sec. 26.63. Same—Accessorics.‘Every person is guilty of a misdemeanor who permits, procures, counsels, or assists any person to violate any provision of Sections 26.61 or 26.62 of this Code.‘Sec. 26.64. Same—Exceptions.‘Sections 26.61 through 26.63 inclusive of this Code do not apply to:‘a. A theatre, concert hall, of similar establishment which is primarily devoted to theatrical performances.‘b. Any act authorized or prohibited by any state statute.’

7.  We have discussed ‘clear and present danger’ in the context of the city ordinance because of the highlighting effect of the ‘Legislative Findings' made by the city council. The county ordinances include no express findings. Nevertheless, the authorities we have cited on this point are equally dispositive of any such findings implicit in the county ordinances.

8.  In support of the county ordinances, the Attorney General and County Counsel rely on People v. Lindenbaum (1970) 11 Cal.App.3d Supp. 1, 90 Cal.Rptr. 340, where the Appellate Department upheld a penal ordinance which banned nude performances in places where alcoholic beverages were served. We do not find that case persuasive. Although it cites In re Giannini, supra, 69 Cal.2d 563, 72 Cal.Rptr. 655, 446 P.2d 535, Lindenbaum erroneously states that Giannini ‘did not, nor did it purport to, pass upon a balancing of the freedom of interchange of ideas by nude dancing as against manifestations of the state's police power.’ (11 Cal.App.3d Supp. at p. 5, 90 Cal.Rptr. at p. 343.) (Emphasis ours.) Giannini in fact involved a proceeding in habeas corpus after the petitioners there were ‘found * * * guilty of violating Penal Code section 314, subdivision 1 (wilful and lewd exposure) and section 647, subdivision (a) (lewd or dissolute conduct).’ (69 Cal.2d at p. 565, 72 Cal.Rptr. at p. 657, 446 P.2d at p. 537.) Furthermore, Lindenbaum expressly followed City of Portland v. Derrington (1969) 253 Or. 289, 451 P.2d 111, wherein the Oregon court criticized the Giannini holding. It is clear, therefore, that the Appellate Department in Lindenbaum simply disagreed with Giannini.

9.  ‘If the arousal of sexual appetite is equated with an appeal to ‘prurient interest,’ it might be necessary to hale into court our leading couturiers, perfumers, and manufacturers of soft drinks, soap suds and automobiles. * * * [Par.] * * * [I]n the sensitive area of constitutional adjudication of individual rights we must be careful to distinguish between the arousal of sexual instincts and the perversion of those instincts to morbidity.' (United States v. 35 MM. Motion Picture Film, supra, 432 F.2d at p. 712.)

1.  See Berman v. Parker (1954) 348 U.S. 26, 32–33, 75 S.Ct. 98, 99 L.Ed. 27; Ayres v. City Council of Los Angeles (1949) 34 Cal.2d 31, 42, 207 P.2d 1; County of Santa Barbara v. Purcell, Inc. (1967) 251 Cal.App.2d 169, 173, 59 Cal.Rptr. 345; Redevelopment Agency of San Francisco v. Hayes (1954) 122 Cal.App.2d 777, 801, 266 P.2d 105, see also, Associated Home Builders v. City of Walnut Creek, Cal., 94 Cal.Rptr. 630, 484 P.2d 606 (4/26/71); Note, 21 A.L.R.3d 1222; Rodda, The Accomplishment of Aesthetic Purposes Under the Police Power (1954) 27 So.Cal.L.Rev. 149.

2.  Allied Properties v. Dept. of Alcoholic Bev. Control (1959) 53 Cal.2d 141, 146, 346 P.2d 737. Removal of the problem from the obscenity arena to a police power approach illustrates the extreme contrast between judicial activism in the first area and judicial abnegation in the latter. Inflation of the First Amendment to shield noncommunicative activity is apt to feed some observers' personal belief that society must maintain neutrality or relative neutrality on moral issues. That belief is a philosophical not a constitutional concept. There is considerable parallelism, nevertheless, between the police power approach which envisions protection of community and neighborhood values and an approach more in line with conventional obscenity inquiries. The latter would recognize a distinction “between inducing persons through fear of punishment to abstain from actions which are harmful to others, and inducing them to abstain from actions which deviate from accepted morality but harm no one.” (Clor, Obscenity and Public Morality (1969) p. 178, quoting Hart, Law, Liberty and Morality (1966.) At any rate, the present subject matter is not of the ‘crime without a victim’ variety.

3.  In a related context, it has been observed that the ‘social worth’ of writings alleged to be obscene ‘cannot be reached by resort to precedent or rational principles.’ (People v. Luros (1971) 4 Cal.3d 84, 105, 92 Cal.Rptr. 833, 845, 480 P.2d 633, 649, dissent of Tobriner, J.)

4.  ‘Sexual activity’ is a legally significant phrase, in view of People v. Noroff (1967) 67 Cal.2d 791, 797, 63 Cal.Rptr. 575, 579, 433 P.2d 479, 483, which declares that ‘[the federal Supreme] court has told us that no matter how ugly or repulsive the presentation, we are not to hold nudity, absent a sexual activity, to be obscene.’

JANES, Associate Justice.

REGAN, J., concurs.