CITY OF LOS ANGELES v. AMBER THEATRES INC (1981)

On August 30, 1978, Appellant City of Los Angeles filed a complaint seeking injunctive relief against respondent alleging unlawful operation of a penny arcade in violation of section 12.16 of the Los Angeles Municipal Code.   Respondent answered on November 7, 1978, and filed a cross-complaint seeking mandamus to compel issuance of a city permit to operate the business.   Months later, after respondent filed the cross-complaint, city police officers commenced arresting employees of respondent for violation of the above ordinance.   Respondent amended the cross-complaint on September 28, 1979, to add a second cause of action seeking an injunction against further arrests and enforcement of the ordinance.   On October 4, 1979, the Superior Court issued an order to show cause and temporary restraining order prohibiting further arrests.   On February 20, 1980, after a hearing, the court refused to enjoin the operation of the business as sought by appellant and issued a preliminary injunction restraining any arrests for violation of the ordinance.   The court also denied mandamus sought by respondent seeking to obtain a permit because respondent had failed to exhaust administrative remedies.   From the order refusing to enjoin operation of the business and the order prohibiting enforcement of the ordinance, the City appeals.

For several years respondent has operated a business under the familiar characterization of an “adult bookstore.”   While the facts are not entirely clear, respondent ¹ operated a motion picture preview booth on the premises which enabled potential customers to determine their film preference before electing to purchase.   Admittance to these preview booths required the customer to deposit money in a coin operated machine.

In 1976, two years before appellant filed this complaint to enjoin the business operation, Los Angeles Police Officers had arrested respondents' predecessor in interest for violation of the identical city ordinance in question here.   The city attorney filed a misdemeanor complaint against the arrestee alleging operation of an arcade without a permit in violation of City Ordinance 12.16.   On April 12, 1976, the municipal court issued a judgment of acquittal pursuant to section 1118 of the Penal Code on all counts.

No further official action was undertaken until appellant city filed the instant complaint to enjoin operation of the business.   Respondent contends, and appellant does not deny, that the operation of the preview business is identical to that in 1976.

Appellant contends the trial court erred by enjoining enforcement of City Ordinance section 12.16, which prohibits operation of a “penny arcade” within the zone occupied by respondents.²  This ordinance has received judicial scrutiny in City of Los Angeles v. Silver (1979) 98 Cal.App.3d 745, 159 Cal.Rptr. 762.³  In construing the words “penny arcade,” the court found no vagueness in the ordinance.   In fact, the court even agreed that a prior city attorney opinion reasonably described the prohibited conduct.⁴  But the facial validity of the ordinance is not the issue here.   Respondent contends his business is not a “penny arcade” within the definition of the term.

In determining whether to enjoin the enforcement of an ordinance by prohibiting arrest of employees, the following rule applies.  “The general purpose of such an injunction is the preservation of the status quo until a final determination of the merits of the action.  [Citations.]  Thus, the court examines all of the material before it in order to consider ‘whether a greater injury will result to the defendant from granting the injunction than to the plaintiff from refusing it;  ․’ [Citations.]  In making that determination the court will consider the probability of the plaintiff's ultimately prevailing in the case and, it has been said, will deny a preliminary injunction unless there is a reasonable probability that plaintiff will be successful in the assertion of his rights.  [Citations.]”  (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528, 67 Cal.Rptr. 761, 439 P.2d 889;  State Bd. of Barber Examiners v. Star (1970) 8 Cal.App.3d 736, 738, 87 Cal.Rptr. 450.)

 In the case at bench, both parties seek injunctive relief against the other.   Appellant City requested the court to order discontinuance of respondent's business;  respondent sought an injunction prohibiting further arrests for violation of the ordinance.   In determining whether to grant or deny either or both of these applications for injunction, the trial court must determine which party will suffer injury by the grant or denial of an injunctive order.  (Continental Baking Co. v. Katz, supra, 68 Cal.2d 528, 67 Cal.Rptr. 761, 439 P.2d 889;  People ex rel. Gow v. Mitchell Bros.' Santa Ana Theater (1981) 118 Cal.App.3d 863, 173 Cal.Rptr. 476.)   That decision “rests in the sound discretion of the trial court, and ․ may not be interferred with on appeal except for an abuse of discretion.”  (Continental Baking Co. v. Katz, supra, 68 Cal.2d at p. 527, 67 Cal.Rptr. 761, 439 P.2d 889.)   Such abuse of discretion must be clearly shown.  (People v. Columbia Research Corp. (1977) 71 Cal.App.3d 607, 609, 139 Cal.Rptr. 517.)

 In the instant case, the court considered the following factors in determining which side would suffer the greater injury and which side would probably prevail on the merits:  (1) The ordinance, while valid on its face, does not prohibit the conduct in question.

That dispute is a factual one and cannot be determined without a hearing in which both sides submit evidence.   Appellant asks us to predetermine the facts without any evidentiary hearing and hold as a matter of law the business in question violated the ordinance.   Both parties argue whether the preview booth business is “separate and apart,” “adjacent to,” “incidental to,” or an “accessory use of” the bookstore business.   This court, like the trial court, cannot determine whether the questioned business practice violates the ordinance until evidence has been presented and resolved by the trial court.   By issuing the injunction, the trial court preserved the status quo until these factual issues are resolved.   If the facts so warrant, the court can vacate its injunction and the city can resume enforcement;  or, in the alternative, the court can enjoin further operation of the business.

Aside from the factual dispute concerning the business relationship between the bookstore and preview booths, and whether such business constitutes a “penny arcade” within the definition of the term, respondent contends he is in fact operating a “picture arcade” within the meaning of Los Angeles Municipal Code section 103.101.⁵  Although construction of that ordinance is not before us, the definition of a “picture arcade” specifically refers to use of motion pictures yet the ordinance regulating “penny arcades” appears to regulate amusement machines such as pinball machines, video machines, and similar devices.   Moreover, penny arcades typically provide temporary amusement with no other option.   According to respondent, viewers of films in the preview booths may purchase a duplicate product which is sold in the bookstore.   Presumably a patron can ignore the purchase option initially, or elect not to purchase after viewing the film, but the choice does exist.   No such choice exists for patrons of amusement machines.   Resolution of these facts ought to await trial.

(2) Irreparable injury to business.   The business in question, which allegedly violates the zoning ordinance, consists of multiple preview booths to facilitate private viewing of motion picture films.   Films, and picture arcades, have received first amendment protection against abridgment as a legitimate expression of free speech.  (Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098;  People v. Perrine, infra.)   The content of the film is not in question here and respondent does not so contend.   Absent an allegation the content of the film is obscene and unprotected by the First Amendment, the arrest and/or citation of respondent employees interferes with the operation of the business and concomitantly impairs the ability to offer the films for sale.   In the absence of the injunction, appellant could successfully impair and destroy the business in question by repeated arrests of employees.   Indirectly suppressing exercise of First Amendment rights cannot be tolerated anymore than direct curtailment of those rights.

In determining whether the trial court abused its discretion, two other factors are relevant.   First, in 1976, the municipal court found respondent not guilty on the identical charge based on evidence of a substantially similar business operation.   Whether that collaterally estops the prosecution in this civil action need not be resolved.   The previous judicial determination in respondent's favor is an equitable factor related to the exercise of discretion.

Second, after respondent was criminally prosecuted and acquitted in 1976, no further changes in business practice had occurred when appellant filed this complaint in 1978.   Expiration of two years before seeking enforcement of this ordinance ought to be an equitable consideration also.   In fact, appellant did not notice the cause for hearing until 1979, a lapse of almost 18 months.   This tardy conduct, for whatever reason, suggests yet another factor relevant to the exercise of judicial discretion.

“We recognize the strong governmental interest in enforcing a zoning ordinance;  yet, if it is still unclear at the preliminary injunction stage whether the activities to be enjoined violate the ordinance, the injunction should not issue in the absence of proof of actual interim harm to the public resulting from the potential violation.”  (People v. Synanon Foundation, Inc. (1979) 88 Cal.App.3d 304, 313, 151 Cal.Rptr. 757.)   In the context of the case at bench, this rule would deny appellant City of Los Angeles their complaint to enjoin the operation of the business.   There is no evidence of actual interim harm which would justify invoking the injunction to enjoin the business, but potential abridgment of respondents' first amendment rights warrants injunctive relief against enforcement of the ordinance.

 Appellant contends respondent should exhaust administrative remedies prior to seeking an injunction.   In some contexts, the courts insist that an administrative hearing precede judicial intervention.  (Roth v. City of Los Angeles, 53 Cal.App.3d 679, 126 Cal.Rptr. 163;  Morton v. Superior Court, 9 Cal.App.3d 977, 88 Cal.Rptr. 533;  Mountain View Chamber of Commerce v. City of Mountain View, 77 Cal.App.3d 82, 143 Cal.Rptr. 441.)   The general rule is stated in Abelleira v. District Court of Appeal, 17 Cal.2d 280, 292, 109 P.2d 942:  “In brief, the rule is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.”   But the cases have created exceptions to this general rule if the parties seeking judicial intervention can establish irreparable injury or demonstrate futility in seeking administrative adjudication of a claim.  (Greenblatt v. Munro, 161 Cal.App.2d 596, 326 P.2d 929;  Sail'er Inn, Inc. v. Kirby, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529.)   In urging that judicial intervention is essential to avoid irreparable injury, respondent ⁶ proved in the trial court that police officers had arrested his employees for conducting business in violation of the questioned ordinance and had threatened further arrests.   Appellant does not dispute these facts.   To require respondent to await completion of the administrative machinery while police arrest his employees exacts an unconscionable price.

This case involves more than avoidance of conventional administrative proceedings.   Respondent seeks to avoid not the direct result of an administrative decision, but the collateral result of multiple arrests and subsequent prosecution of his employees.   The property rights and economic interest of respondent are substantial enough to warrant interlocutory determination of conflicting claims involved in this case.

Abelleira also recognized the right of the court to intervene to protect constitutional rights.  (Abelleira v. District Court of Appeal, 17 Cal.2d p. 296, 109 P.2d 942.) ⁷  Respondent does not deny that appellant conducts a business which involves first amendment issues.   Regardless of the label “Penny Arcade” or “Picture Arcade,” the principal function of the business is motion pictures protected by the first amendment from abridgment.  (People v. Perrine, 47 Cal.App.3d 252, 257, 120 Cal.Rptr. 640.)   Respondent has already been denied a permit administratively but the ultimate resolution of the zoning issue will result from a trial in the instant case.   The precise issue in dispute will be litigated at trial.   Appeal is available in the event of an adverse ruling.

The United States Supreme Court has also cautioned that exhaustion of administrative remedies is not required if the party is a criminal defendant:

“5. The dissenting opinion of THE CHIEF JUSTICE suggests that Mrs. Moore should be denied a hearing in this Court because she failed to seek discretionary administrative relief in the from of a variance, relief that is no longer available.   There are sound reasons for requiring exhaustion of administrative remedies in some situations, but such a requirement is wholly inappropriate where the party is a criminal defendant in circumstances like those present here.  (See generally, McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969).   Mrs. Moore defends against the State's prosecution on the ground that the ordinance is facially invalid, an issue that the zoning review board lacks competency to resolve.   In any event, this Court has never held that a general principle of exhaustion could foreclose a criminal defendant from asserting constitutional invalidity of the statute under which she is being prosecuted.  (See, e.g., Yakus v. United States, 321 U.S. 414, 446–447 [64 S.Ct. 660, 678, 88 L.Ed. 834] (1944).”  (Moore v. City of East Cleveland, Ohio, (1977) 431 U.S. 494, 497, 97 S.Ct. 1932, 1934, 52 L.Ed.2d 531.)

 Respondent is not a criminal defendant in the sense an individual must answer a criminal charge, but is a corporate employer whose employees have been arrested and presumably charged with alleged commission of a criminal offense.   Since the corporation cannot act except through its employees, it is the proper legal entity to invoke judicial protection.

Indeed this is a civil action brought by appellant city to enjoin operation of respondent's business.   Respondent must obviously defend this civil action in the appropriate court.   But appellant also has elected to enforce the ordinance by arresting employees of respondent.   Respondent has initiated no action unilaterally against appellant.   Appellant initially sought a complaint to enjoin operation of the business to which respondent answered.   Thereafter, appellant commenced arresting respondent's employees in response to which the respondent sought judicial protection.   Respondent has apparently abandoned the cross-complaint seeking mandamus which it sought but only after appellant filed the instant complaint.⁸

Because respondent found itself inextricably snared in a criminal prosecution of employees, and is not likely to be successful in the zoning appeal,⁹ any requirement that it exhaust administrative remedies would severely impinge alleged exercise of constitutional rights and substantially impair property rights.

Based upon this record, and in the absence of evidence that the contents of the motion pictures viewed are obscene, the orders of the trial court are affirmed.

I would reverse the preliminary injunction on the ground the trial court lacked jurisdiction to grant defendants' application therefor and the order denying plaintiffs' application for preliminary injunction for abuse of judicial discretion.   I cannot accept the notion of the lead opinion that defendants need not exhaust their administrative remedies before seeking judicial intervention.   It is my view in the context of this case that merely alleging that a zoning ordinance is unconstitutional on its face and as applied to them as violating their free speech rights does not excuse defendants' failure to exhaust their administrative remedies before seeking judicial relief;  and that defendants have not “establish[ed] irreparable injury or demonstrat[ed] futility in seeking administrative adjudication of [their] claim” which might warrant judicial intervention in the absence of exhaustion of administrative remedies.

A brief resume of procedural facts, as to which there is no dispute, places the issue in its proper perspective.   Defendant E. W. A. P. operates an adult bookstore on Hollywood Boulevard known as “Le Sex Shoppe”;  a part of the premises adjacent but in the same building is leased to defendant Footlik who since January 3, 1977, has operated therein a picture arcade where adult films which are for sale in the bookstore are shown in preview booths containing coin activated movie projectors.   For some years the premises have been and now are located in a C4 zone, a commercial zone.   Section 12.16, Municipal Code, describes the uses and businesses permitted in a C4 zone, and prohibits the use of property for the maintenance and operation of ten enumerated amusement enterprises including a “penny arcade.” ¹ The Department of Building and Safety of the City of Los Angeles is vested with responsibility of administering the city's zoning code.

In February 1977 Footlik attempted to apply for a police permit to operate a picture arcade at the Hollywood Boulevard address (§ 103.101, subd. (b), Mun. Code), but it was rejected because of a preliminary determination by the Department of Building and Safety that a picture arcade was not permitted in the C4 zone.   On January 4, 1978, Footlik made a second application to plaintiff Board of Police Commissioners for a police permit to operate a picture arcade.   Subsequently the Commanding Officer of the Commission Investigation Division of plaintiff Board sent Footlik a Notice of Intention to Deny Permit wherein it is stated that the proposed business will not be carried on in a location that complies with city zoning ordinances “in that this business is prohibited in a ‘C4’ commercial zone by Section 12.16 of the Los Angeles Municipal Code,” and that “Section 103.101(c)(1) of the Los Angeles Municipal Code provides the authority for the Board to deny a permit for such reasons.”   At Footlik's request a hearing was had before a hearing examiner of plaintiff Board who recommended to the Board that the picture arcade permit be denied.   Footlik took no further administrative steps to test the propriety of the determination of the Department of Building and Safety, and the decision of the Board denying permit became final on August 10, 1978.

Footlik continued to operate the picture arcade without a police permit thus, on August 30, 1978, plaintiffs filed the within action to enjoin defendants' operation of a picture arcade because it is a penny arcade within the meaning and in violation of section 12.16, Municipal Code.   On November 7, 1978, defendants filed an answer and cross-complaint for a peremptory writ of mandate to direct the Board of Police Commissioners to issue a police permit authorizing them to operate a picture arcade at the location in question.   Following several arrests of defendants' employees for violation of section 12.16, Municipal Code, defendants amended their cross-complaint to add a second cause of action for injunctive relief against further arrest and enforcement of section 12.16.

After a hearing on February 20, 1980, the superior court (1) denied plaintiffs' application for preliminary injunction to enjoin the continued operation of the picture arcade business in violation of section 12.16;  (2) denied writ of mandate sought by defendants to direct plaintiff Board of Police Commissioners to issue to them a permit to operate a picture arcade;  and (3) issued a preliminary injunction restraining plaintiffs from arresting defendants or their employees for operating a “picture arcade” or “penny arcade” at the Hollywood Boulevard address without a police permit therefor or for operating a “picture arcade” or “penny arcade” in an improper zone.

Section 103.101, subdivision (b), Municipal Code, requires a permit from the Board of Police Commissioners to operate a “picture arcade.”  “Picture arcade” is defined by section 103.101, subdivision (a) as “any place to which the public is admitted wherein one or more coin or slug-operated ․ motion picture machines or projectors are maintained to show ․ motion pictures to five or fewer persons per machines at any one time.”   Section 103.101, subdivision (c) authorizes the Board to issue police permits for operation of picture arcades, but the Board cannot issue such permit unless it finds that the business for which the permit is sought will be carried on in a location which complies with the requirements and meets the standards of the applicable city zoning ordinance.   For such finding the Board refers the matter to the Department of Building and Safety for its determination as to whether or not the proposed business is a permitted use in the zone in which it is to be located.   Here the Department of Building and Safety determined that defendants' picture arcade business was not permitted in the C4 zone in which it is located because it violates section 12.16, Municipal Code.   Implied in this determination is the finding that defendants' picture arcade is a penny arcade for zoning purposes.   To challenge this adverse zoning determination the zoning code provides for two administrative remedies:  (1) appeal to the Zoning Administrator for errors or abuse of discretion in any determination made by the Department of Building and Safety in zoning matters (§ 12.27(A));  and (2) request for variance from the requirements of the zoning code.  (§ 12.27(B)).

In denying writ of mandate the trial court found, among other things, that the Department of Building and Safety has consistently interpreted section 12.16 as prohibiting picture arcades in C4 zones, that defendants' noncompliance with the applicable zoning laws is the sole reason for denial of the permit application, that the zoning code provides two administrative channels of relief from adverse zoning determinations made by the Department of Building and Safety—appeal to the Zoning Administrator and a variance—and that defendants have failed to exhaust these administrative remedies;  and concluded that defendants have “failed to exhaust their administrative remedies for review of the zoning determination that picture arcades are not permitted use in the C4 zone” and because of their failure to exhaust their administrative remedies the petition for writ of mandate is denied.   Defendants have not appealed from this order and it is now final.   Thus the ruling that defendants are not entitled to challenge the correctness of the administrative zoning determination that a picture arcade is not a permitted use in the C4 zone left intact the denial of a police permit to defendants on the ground that “this business [picture arcade] is prohibited in a ‘C–4’ commercial zone by section 12.16 of the Los Angeles Municipal Code” implied in which is the finding that the picture arcade is a penny arcade for zoning purposes.

Given the foregoing circumstances viewed in the light of the doctrine of exhaustion of administrative remedies, the conclusion that the superior court lacked jurisdiction to enjoin plaintiffs' enforcement of sections 12.16 and 103.101, Municipal Code is inescapable.   It is well settled that if an administrative remedy is provided by statute, relief must be sought from the administrative body and such remedy must be exhausted before judicial review of the administrative action is available.  (Ralph's Chrysler-Plymouth v. New Car Dealers Policy & Appeals Bd., 8 Cal.3d 792, 794, 106 Cal.Rptr. 169, 505 P.2d 1009, and cases therein cited.)   This rule is not a matter of judicial discretion.   The “exhaustion of an administrative remedy, where one is available, is a condition precedent to obtaining judicial relief, and ․ ‘a court violating the rule acts in excess of jurisdiction’ [citations].)”  (Morton v. Superior Court, 9 Cal.App.3d 977, 981, 88 Cal.Rptr. 533;  Abelleira v. District Court of Appeal, 17 Cal.2d 280, 293, 109 P.2d 942;  Mountain View Chamber of Commerce v. City of Mountain View, 77 Cal.App.3d 82, 88, 143 Cal.Rptr. 441;  Roth v. City of Los Angeles, 53 Cal.App.3d 679, 686, 126 Cal.Rptr. 163.)   This doctrine also applies to preclude defenses to injunctive relief.  (South Coast Regional Com. v. Gordon, 18 Cal.3d 832, 834, 135 Cal.Rptr. 781, 558 P.2d 867; People v. Coit Ranch, Inc., 204 Cal.App.2d 52, 58, 21 Cal.Rptr. 875;  City of Chico v. First Ave. Baptist Church, 108 Cal.App.2d 297, 302, 238 P.2d 587;  City of San Mateo v. Hardy, 64 Cal.App.2d 794, 797, 149 P.2d 307.)

Asserting that Abelleira v. District Court of Appeal, 17 Cal.2d 280, 296, 109 P.2d 942 also recognized the right of the court to intervene to protect constitutional rights even in the absence of exhaustion of administrative remedies, the lead opinion points up the “First Amendment issues” herein.   But the context in which Abelleira made reference to this “right” involved those cases dealing with rate orders of regulatory commissions where the administrative body imposed a confiscatory rate on a public utility in which equitable relief was available to protect the property rights of petitioner from “irreparable injury”;  the court found this did not apply in that (Abelleira) case.  (Pp. 296–297, 109 P.2d 942.)   The rule in this jurisdiction is that a claim of unconstitutionality of a zoning ordinance on its face and as applied to a party as an abridgement of his rights of free speech does not excuse his failure to exhaust the administrative remedies provided in the ordinance before seeking judicial intervention.  (Mountain View Chamber of Commerce v. City of Mountain View, 77 Cal.App.3d 82, 93–95, 143 Cal.Rptr. 441;  see also City of San Mateo v. Hardy, 64 Cal.App.2d 794, 797, 149 P.2d 307 [asserted denial of due process does not excuse failure to exhaust administrative remedies provided in zoning ordinance];  Roth v. City of Los Angeles, 53 Cal.App.3d 679, 687, 126 Cal.Rptr. 163 [even where statute is challenged on constitutional grounds completion of administrative remedies is prerequisite to equitable relief] and Morton v. Superior Court, 9 Cal.App.3d 977, 984, 88 Cal.Rptr. 533 [inapplicability of exhaustion doctrine when constitutional issue raised not followed in California].)   In Mountain View Chamber of Commerce v. City of Mountain View, 77 Cal.App.3d 82, 143 Cal.Rptr. 441, plaintiffs sought to enjoin enforcement of zoning ordinances relating to sign regulations and for declaratory relief.   On appeal from order denying preliminary injunction on ground of lack of jurisdiction for their failure to exhaust their administrative remedies by applying for a variance, appellant, as defendants here, asserted that they were excused from complying with the requirement of exhaustion of administrative remedies because they alleged the zoning ordinance is unconstitutional on its face and unenforceable as applied to them as an abridgement of their right of free speech.   Rejecting their contention this court said at page 93, 143 Cal.Rptr. 441:  “No case is cited by appellants which excuses compliance with the doctrine of exhaustion of administrative remedies because of claimed unconstitutionality of a zoning ordinance.  [¶] It is well settled law in California that the doctrine of exhaustion of administrative remedies applies to constitutional challenges of zoning ordinances.”   After citation of various zoning cases in which constitutional challenges were precluded because of failure to exhaust administrative remedies, this court held that appellants were required to first exhaust the administrative remedies set out in the ordinance before seeking judicial relief (p. 94, 143 Cal.Rptr. 441), and concluded that if appellants exhaust their administrative remedy and are denied relief they then in a judicial proceeding can challenge the constitutionality of the entire ordinance or a particular provision therein as it affected their property and/or business (p. 95, 143 Cal.Rptr. 441).

Further, on the issue of defendants' failure to exhaust their administrative remedies, I cannot agree with the lead opinion that nevertheless they are entitled to pursue injunctive relief because it is “essential to avoid irreparable harm,” i. e., “police officers had arrested [their] employees for conducting business in violation of the questioned order and had threatened further arrests,” and its conclusion that “To require respondent to await completion of the administrative machinery while police arrest his employees exacts an unconscionable price.” ²

The lead opinion is based on the assumption that defendants are operating a legitimate business, but this simply is not so.   The fact is that defendants are conducting a picture arcade (1) in a C4 zone in violation of section 12.16, Municipal Code, and (2) without a permit in violation of section 103.101, Municipal Code.   My view of the illegality of the business operation defendants seek to protect is predicated on the following:  based upon a determination by the Department of Building and Safety that a picture arcade is a “penny arcade” for zoning purposes and is not a permitted use in a C4 zone, the Board of Police Commissioners denied defendants a permit to operate their picture arcade business at the Hollywood Boulevard address on the ground that “this is prohibited in a ‘C4’ commercial zone by section 12.16 of the Los Angeles Municipal Code”;  because defendants did not exhaust their administrative remedies the superior court is without jurisdiction to afford judicial relief from the administrative determination (see also findings and order denying defendants' petition for writ of mandate) and the same has become final and binding on them;  and defendants' continued operation of their business is in violation of sections 12.16 and 103.101, Municipal Code.   This is a clear case of one who, violating a valid law, is seeking an injunction to prevent further arrests while he continues to violate the law.   Defendants have no enforceable right to violate the zoning ordinance (§ 12.16, Mun.Code) or the police permit regulations (§ 103.101, subd. (b) and § 11.00(m), Mun.Code).   An injunction cannot be granted to prevent the execution of a valid public statute in a lawful manner by public law officers (§ 3423, subd. 4, Civil Code;  § 526, subd. 4, Code Civ.Proc.;  Financial Indem. Co. v. Superior Court, 45 Cal.2d 395, 402, 289 P.2d 233;  City of Santa Monica v. Superior Court, 231 Cal.App.2d 223, 226, 41 Cal.Rptr. 824) and it is not enough for the court to find that an irreparable injury would accrue from enforcement.  (Hirsch v. City & County of San Francisco, 143 Cal.App.2d 313, 318, 300 P.2d 177.)   Merely because “respondent found itself inextricably snared in a criminal prosecution of employees,” the author of the lead opinion would tie the hands of police in enforcing the law.

Moore v. East Cleveland (1977) 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531, cited by the lead opinion as creating an exception to the exhaustion doctrine does not here apply.  Moore was a state criminal prosecution in which the appellant was convicted of a violation of a housing ordinance.   The United States Supreme Court reversed the judgment on constitutional grounds.   The only mention of exhaustion of administrative remedies occurred in footnote 5, 431 U.S. page 497, 97 S.Ct. page 1934 wherein it is stated that the Chief Justice in his dissenting opinion suggested that appellant be denied a hearing because she failed to seek administrative relief in the form of a variance.   Conceding that there are sound reasons for requiring exhaustion of administrative remedies in some situations, the court said:  “but such a requirement is wholly inappropriate where the party is a criminal defendant in circumstances like those present here․  Mrs. Moore defends against the State's prosecution on the ground that the ordinance is facially invalid, an issue that the zoning review board lacks competency to resolve.   In any event, this Court has never held that a general principle of exhaustion could foreclose a criminal defendant from asserting constitutional invalidity of the statute under which she is being prosecuted.”  (Original emphasis.)   The inapplicability of Moore to the instant case is obvious.   Defendants here are parties to a civil action in contrast to the criminal action in which Mrs. Moore was prosecuted and asserted constitutional facial invalidity of the statute under which she was being prosecuted in that very case.   Although their employees have been arrested and their criminal cases are pending in separate proceedings in the Municipal Court, defendants are not before us in a criminal proceeding and are not being criminally prosecuted herein;  they are here only in a civil proceeding in which they seek injunctive relief.   Further, the facial validity of the police permit regulations (EWAP, Inc. v. City of Los Angeles, 97 Cal.App.3d 179, 189, 158 Cal.Rptr. 579 [§ 103.101 does not restrict rights of freedom of speech under First Amendment]) and the zoning ordinance (City of Los Angeles v. Silver, 98 Cal.App.3d 745, 749–750, 159 Cal.Rptr. 762 [constitutionality of 12.16 upheld]) has been previously upheld.   The lead opinion concedes facial validity of the ordinance is not here in issue—only, as defendants assert, that their business is not a “penny arcade.”   Even the trial court said the ordinance was valid on its face.   Here, unlike in Moore, the Zoning Administrator would not have been confronted with the issue of facial invalidity but with the issue whether defendants' conduct was prohibited under the zoning laws, a matter he was competent to resolve.

Finally, the lead opinion concludes that because defendants are “not likely to be successful in the zoning appeal” the principle of exhaustion of administrative remedies should not preclude judicial review, and asserts in footnote 9 that “The record shows an unmistakable intent on the part of the administrative agencies to deny respondent the permit he sought to operate a picture arcade.”   The opinion has not pointed out why defendants are “not likely to be successful” and the most that can be said on the record before this court is that the Department of Building and Safety has determined that defendants' picture arcade is not permitted in a C4 zone, and based thereon the Board denied a permit.   Defendants assume that because of this prior determination it would have been “futile” to proceed on appeal to the Zoning Administrator.   This does not necessarily follow but in any case this is neither the kind of “futility” which excuses failure to exhaust administrative remedies contemplated by the authorities nor the kind of “inadequacy of administrative relief” discussed in Greenblatt v. Munro, 161 Cal.App.2d 596, 605–606, 326 P.2d 929, cited by the lead opinion.   To excuse failure of exhaustion of administrative remedies merely because an applicant has not succeeded in the initial stages of administrative proceedings and thus feels he is not likely to succeed in further pursuing his administrative remedies, our courts would be condoning bypassing administrative procedure provided by statute by going directly to the courts for relief, which could only result in a breakdown of the whole area of law that governs boards and commissions charged with the administration of statutes and protects them from being subjected to judicial review before completion of administrative proceedings (see discussion of this and jurisdiction issue in Abelleira v. District of Court of Appeal, 17 Cal.App.2d 280, 286–296, 109 P.2d 942).

“Finally, it is noted it is within a legitimate province of a city to legislatively declare violation of its zoning ordinances to be a public nuisance subject to abatement by injunction (see City and County of San Francisco v. Padilla (1972) 23 Cal.App.3d 888 [100 Cal.Rptr. 223]) and that the City of Los Angeles has done so.  (L.A.M.C. § 11.00(m).)”  (City of Los Angeles v. Silver, 98 Cal.App.3d 745, 750, 159 Cal.Rptr. 762.)   In the frame of reference here there can be no question but that the operation of the “penny arcade” business by defendants in the C4 zone is a violation of section 12.16, Los Angeles Municipal Code.   It is my conclusion that the superior court abused its discretion in failing to enjoin its continued operation.  (People v. Columbia Research Corp. 71 Cal.App.3d 607, 609, 139 Cal.Rptr. 517.)

FOOTNOTES

FOOTNOTE.  

1.   There are two.   E. W. A. P. and Footlik.   Respondent E. W. A. P. holds a master lease and Footlik is the lessee.

2.   “SEC. 12.16.  ‘C4’ COMMERCIAL ZONE:  The following regulations shall apply in the ‘C4’ Commercial Zone:  [¶] A. USE—No building, structure or land shall be used and no building or structure shall be erected, structurally altered, enlarged, or maintained, except for the following uses, ․:  [¶] 1. (None) [¶] 2. Any use permitted in the ‘C2’ Zone except:  [¶] (a) The following amusement enterprises:  [¶] ․ [¶] (4) penny arcade.”

3.   Respondent does not contest the basic power of a city to zone its land, including regulation of entertainment and amusement.  (Sunset Amusement Co. v. Board of Police Commissioners (1972) 7 Cal.3d 64, 101 Cal.Rptr. 768, 496 P.2d 840.)

4.   That opinion reads:  “Section 12.16(A)(2)(a)(4) of the Los Angeles Municipal Code does not permit a ‘penny arcade’ enterprise in a C4 commercial zone.  [¶] While ‘penny arcade’ is not defined for zoning purposes in the Municipal Code, Webster's Third New International Dictionary states that a ‘penny arcade’ is an amusement center where each device for entertainment may be operated for a penny.   The fact that a penny may not be used today to operate these devices has no effect on the basic definition.   We would interpret a ‘penny arcade,’ for zoning purposes, to mean a place of business devoted primarily or in some substantial degree to maintaining coin-operated amusement machines and devices for the purpose of providing public entertainment.”Because no trial has occurred in this case, even that language requires a factual resolution whether the respondents' motion picture preview booths constitute a place of business devoted primarily or in some substantial degree to maintaining coin operated amusement machines and devices for the purpose of providing public entertainment.

5.   Section 103.101(a):  “Picture Arcade Defined.   As used in this article, ‘picture arcade’ shall mean anyplace to which the public is admitted wherein one or more coin or slug operated, or electrically, electronically or mechanically controlled still or motion picture machines or projectives are maintained to show still or motion pictures to five or fewer persons per machine at any one time.”Respondent sought a license to operate a “picture arcade” from the relevant administrative board but was refused.   In his mandamus action here he sought compulsory issuance of a permit.   The trial court denied judicial intervention because respondent failed to exhaust his administrative remedies.

6.   There are three.   Although two are corporate and one an individual, their interests are substantially identical and will be treated interchangeably.

7.   “The employers seek to avoid the operation of the rule, however, by the contention that they would suffer irreparable injury if the administrative hearing were permitted to proceed and its orders made effective without judicial interference at this time.   The cases they cite are those dealing with rate orders of regulatory commissions, where the administrative body imposes a confiscatory rate on a public utility.   Continued operation of the business at the rate imposed pending the appeal may in some instances be so unprofitable as to amount to a destruction of the business, and therefore a taking of property without due process of law.   The courts in these cases issue injunctions to stay the enforcement of the new rate until a final determination of its validity, in order to protect the constitutional rights of the petitioning utilities.   In brief, these decisions establish the right to equitable relief to protect the property rights of a petitioner from irreparable injury immediately threatened by a void administrative act.   The soundness of this proposition cannot be questioned, but it has no relevancy here.”   Although this principle was held inapplicable to the particular facts of the case, the court clearly expressed a conviction that the exhaustion of administrative remedies doctrine cannot always be invoked when constitutional rights are at stake.   Moreover, unlimited arrests of employees “amounts to a destruction of the business, and therefore a taking without due process of law.”  (Abelleira, supra, p. 296, 109 P.2d 942.)

8.   Arguably a cross-complaint is tantamount to initiation action.   But respondent filed a cross-complaint only after the appellant city sought discontinuance of the business and enforcement of the ordinance.

9.   The record shows an unmistakable intent on the party of administrative agencies to deny respondent the permit he sought to operate a picture arcade.

1.   Those amusement enterprises expressly prohibited in a C4 zone in section 12.16 are:  “(1) boxing arena;  (2) games of skill and science;  (3) merry-go-round, ferris wheel or carousel;  (4) penny arcade;  (5) shooting gallery;  (6) skating rink;  (7) taxi dance hall;  (8) strip tease show;  (9) billiard or pool hall;  (10) bowling alley;  and other similar uses.”“Penny arcade” as used in section 12.16 is defined in City of Los Angeles v. Silver, 98 Cal.App.3d 745, 159 Cal.Rptr. 762 as “ ‘an amusement center where coin operated devices for entertainment are made available to members of the public.’ ”  (P. 751, 159 Cal.Rptr. 762.)   The court also quoted from a Los Angeles City Attorney opinion of 1974:  “ ‘We would interpret a “penny arcade” for zoning purposes, to mean a place of business devoted primarily or in some substantial degree to maintaining coin-operated amusement machines and devices for the purpose of providing public entertainment.’ ”  (Fn. 4, pp. 751–752, 159 Cal.Rptr. 762.)

2.   This hardly would occur for the filing of an appeal to the Zoning Administrator “stays all proceedings in furtherance of the action appealed from pending its determination.”  (§ 12.27(A)(1), Mun.Code.)

WADDINGTON, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

SPENCER, P. J., concurs in the judgment.