SEUNG CHUN LIM v. BOARD OF POLICE COMMISSIONERS OF CITY OF LOS ANGELES (1987)

Plaintiff and appellant Seung Chun Lim (appellant) appeals from the judgment of the superior court denying his petition for writ of mandate by which he sought to set aside the revocation of his permit to conduct a motion picture show.   The revocation was ordered by the Board of Police Commissioners of the City of Los Angeles (the Board).   We affirm.

The facts, viewed in the light most favorable to the judgment below, establish that on September 23, 1980, appellant was licensed by the Board to conduct a motion picture show consistent with the terms of section 103.109 of the Los Angeles Municipal Code.¹  Appellant conducted his business under the name Valley Adult Theater in North Hollywood.   The films shown at the theater depict explicit heterosexual sex acts.²

The theater is entered through a lobby where adult materials like books, videos and sex aids are offered for sale.   Inside the lobby there is a cashier from whom admittance is gained into the theater.   The theater consists of approximately 15 rows of seats with seating capacity for 70 to 90 viewers.   Twenty patrons is considered a sizeable crowd however.

Between April 10, 1984 and August 3, 1985, Los Angeles Police Department undercover vice officers observed 23 separate incidents at the theater involving lewd conduct, masturbation, solicitation, indecent exposure and disorderly conduct by theater patrons.   Appellant was not unaware of these activities.   In April 1983 and in January 1985, appellant was notified by mail that continued arrests at the theater could lead to a hearing before the Board.   The vice officers also spoke to appellant about the illegal activity occurring on the premises.

Appellant took some steps to remedy the problem.   He increased illumination in the theater from five to ten watts.   He put notices on the walls warning patrons that lewd conduct was not allowed and, between movies, he ran a recorded message, in English and Spanish, which also warned against such activity.   Appellant also closed down the last row of the theater since it had been the site of many of the arrests.

Additionally, appellant hired a security guard whose job it was to patrol the theater every five or ten minutes to prevent lewd conduct.   The guard was instructed that if the conduct persisted after a patron was warned, the patron was to be ejected.   The guard punched a time clock to indicate completion of his rounds.   Appellant claimed that five to ten patrons a month were expelled for lewd conduct.

The guard was an older gentleman, 69 or 70, who was described by appellant as “not a formal employee.”   The guard was only on duty for nine hours, though the theater was open for sixteen hours a day.   The guard's only identification was a piece of cardboard stuck into his cap with the word “guard” on it.

Officers observing the guard testified that he only patrolled the theater when one of them was present.   They also testified that the guard sat on a stool at the back of the theater smoking or perhaps sleeping.   It appears that his patrol consisted of shining a flashlight down the aisles of the theater rather than the rows where patrons were actually seated.

On August 20, 1985, the police department filed a 23–count accusation to revoke appellant's permit based on the incidents occurring between April 10, 1984 and August 13, 1985.   Subsequently, another five incidents were observed by undercover officers and these became the basis of a supplemental accusation filed on November 20, 1985.   The accusation was filed under, inter alia, section 103.109, subdivision (e)(2), allowing for revocation of an existing permit if “[t]he permittee, his or her employee, agent, partner, director, officer, stockholder or manager knowingly allowed or permitted any act of sexual intercourse, sodomy, oral copulation, or masturbation, to be committed at or in the premises of the business operation, or knowingly permitted or allowed the subject business operation to be used as a place in which solicitations for sexual intercourse, sodomy, oral copulation or masturbation openly occur.”

On November 11 and December 17, 1985, an administrative hearing was held before a hearing examiner appointed by the Board.   Both appellant and police officers testified at the hearing.   On March 10, 1986, the hearing examiner filed her proposed decision.

The hearing examiner rejected appellant's claim that because his business involved First Amendment rights, higher standards should govern the revocation proceeding.   Instead, she found that the ordinance “is directed solely at the sexually graphic behavior of the patrons viewing the film” rather than the contents of the films themselves.   She also concluded that by failing to prevent the illicit sexual conduct of his patrons, appellant had knowingly allowed or permitted the conduct to occur.   However, she acknowledged appellant's attempts to eliminate the problem, terming them commendable but ineffective.   She recommended suspension of appellant's permit for 180 days, reinstatement to be subject to a number of conditions.

On April 4, 1986, appellant filed his objections to the proposed decision.   On April 8, 1986, the police department asked the Board to revoke rather than suspend the permit.   On April 15, there was a hearing before the Board which then voted to revoke the permit.³  On May 6, 1986, appellant filed a petition in superior court for a writ of administrative mandamus seeking to set aside the Board's decision.   On May 16, 1986, the petition was denied as was appellant's subsequent motion for a new trial.

On July 11, 1986, appellant filed a petition for writ of supersedeas in this court.   That petition was denied.   This appeal ensued.

DISCUSSION

I

Appellant asserts that the revocation of his permit violated his state and federal free speech guarantees.   He takes an absolutist position as to his free speech rights, contending, in essence, that any regulation which impinges upon them is unconstitutional.   This argument is untenable.

There is no question, of course, that the exhibition of films is an activity protected by the First Amendment.  (Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41, –––– – ––––, 106 S.Ct. 925, 928–929, 89 L.Ed.2d 29, 37;  Burton v. Municipal Court (1968) 68 Cal.2d 684, 689, 68 Cal.Rptr. 721, 441 P.2d 281.)   Such protected activity is not, however, impervious to regulation.

In United States v. O'Brien (1968) 391 U.S. 367, 376–377, 88 S.Ct. 1673, 20 L.Ed.2d 672, the United States Supreme Court set forth the applicable criteria by which to measure the constitutionality of governmental regulation of nonexpressive conduct which also contains incidental limitations on First Amendment freedoms:  “[W]e think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government;  if it furthers an important or substantial governmental interest;  if the governmental interest is unrelated to the suppression of free expression;  and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”   In O'Brien, a man who burned his draft card to protest the war in Vietnam claimed that the government's prosecution of him for that act impinged upon his First Amendment rights.

In a factual situation more closely paralleling the one presented in the instant case, the United States Supreme Court has recently held that First Amendment analysis does not even apply where the regulation in question is of unlawful sexual activity occurring at premises where books are sold.   (Arcara v. Cloud Books, Inc. (1986) 478 U.S. 697, 106 S.Ct. 3172, 92 L.Ed.2d 568.)

In Arcara, the owners of an adult bookstore were prosecuted under a New York statute that provided for the closure of any building used for prostitution, lewdness and assignation as a public health nuisance.   The bookstore owners sought partial summary judgment asserting that closing the premises would impermissibly interfere with their First Amendment rights to sell books.   New York's highest court agreed.   Applying the O'Brien criteria, the court concluded that the closure remedy was too great a restriction on free speech notwithstanding that the closure remedy furthered a substantial state interest in thwarting prostitution.

The United States Supreme Court reversed.   The court rejected the use of First Amendment scrutiny of a regulation aimed at illegal sexual activity merely because that activity took place at premises where books were sold:  “[U]nlike the symbolic draft card burning in O'Brien, the sexual activity carried on in this case manifests absolutely no element of protected expression.   In Paris Adult Theater I v. Slaton, 413 US 49, 67, 37 L Ed 2d 446, 93 S Ct 2628 [2640] (1973), we underscored the fallacy of seeking to use the First Amendment as a cloak for obviously unlawful public sexual conduct by the diaphanous device of attributing protected expressive attributes to that conduct.   First Amendment values may not be invoked by merely linking the words ‘sex’ and ‘books,’ ”  (Arcara v. Cloud Books, Inc., supra, 478 U.S. at pp. –––– – ––––, 106 S.Ct. at pp. 3176–3177, 92 L.Ed.2d at pp. 576–577.)

Additionally, the court dismissed the notion that the New York law singled out those engaged in First Amendment activities.   The court observed:  “[N]either the press nor booksellers may claim special protection from governmental regulations of general applicability simply by virtue of their First Amendment protected activities.   If the city imposed closure penalties for demonstrated Fire Code violations or health hazards from inadequate sewage treatment, the First Amendment would not aid the owner of premises who had knowingly allowed such violations to persist.”  (Arcara v. Cloud Books, Inc., supra, 478 U.S. at p. ––––, 106 S.Ct. at p. 3177, 92 L.Ed.2d at p. 577.)

Finally, the court rejected the bookstore owners' argument that the closure remedy impermissibly burdened their protected bookselling activity;  “․ every civil and criminal remedy imposes some conceivable burden on First Amendment protected activities․  Yet, we have not traditionally subjected every criminal and civil sanction imposed through legal process to ‘least restrictive means' scrutiny simply because each particular remedy will have some effect on the First Amendment activities of those subject to sanction.   Rather, we have subjected such restrictions to scrutiny only where it was conduct with a significant expressive element that drew the legal remedy in the first place, ․ or where a statute based on a nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity․”  (Arcara v. Cloud Books, Inc., supra, 478 U.S. at pp. –––– – ––––, 106 S.Ct. at 3177–3178, 92 L.Ed.2d at pp. 577–578.)

II

 The rationale articulated in Arcara is applicable to appellant's assertion of his First Amendment rights.   Section 103.109, subdivision (e)(2), the revocation provision, is not directed at any First Amendment activity, e.g., the exhibition of films, but goes to unlawful public sexual conduct.   Moreover, the proscription of such unlawful conduct does not inevitably single out those engaged in First Amendment activity.   Public masturbation, for example, is unlawful whether it occurs in a movie house, or any other public place.  (See, e.g., Pen. Code, § 647, subds. (a) and (e).)

Appellant would distinguish Arcara from his own situation because the statute in Arcara called for abatement of the premises rather than revocation of a license and the bookstore owners were presumably free to start up their business elsewhere.   Appellant, by contrast, claims that revocation of his license will curtail his First Amendment rights for at least two years.⁴  We disagree.

 Since, under Arcara, laws proscribing unlawful sexual conduct in public places do not involve First Amendment rights, neither do the penalties for violations of such laws.   Therefore, whether the penalty of closure of premises or revocation of a license lasts two weeks or two years is irrelevant.⁵

If section 103.109 implicated First Amendment rights, then the revocation penalty would be scrutinized to determine whether it was the “least restrictive means” by which the city could achieve an otherwise proper objective.   But Arcara specifically rejected “least restrictive means” scrutiny where an ordinance like section 103.109 is directed at unlawful public sexual conduct.   (Arcara v. Cloud Books, Inc., supra, 478 U.S. at p. ––––, 106 S.Ct. at p. 3178, 92 L.Ed.2d at p. 578.)

Accordingly, under Arcara, we need not apply First Amendment analysis to the challenged ordinance.

III

Appellant maintains that California's free speech guarantee (Cal. Const., art. I, § 2) provides him additional protection.   We agree, of course, that the state's free speech guarantee is more inclusive than its federal counterpart.  (Wilson v. Superior Court (1975) 13 Cal.3d 652, 658, 119 Cal.Rptr. 468, 532 P.2d 116 [“A protective provision more definitive and inclusive than the First Amendment is contained in our state constitutional guarantee of the right of free speech and press.”].)  Even so, the protections afforded by the state constitutional provision will not go as far as appellant would extend them.

It has long been recognized by our state courts that, free speech activity notwithstanding, the state has an interest in regulating theaters to meet proper public purposes.   As the State Supreme Court said in Burton v. Municipal Court, supra, 68 Cal.2d at page 696, 68 Cal.Rptr. 721, 441 P.2d 281:  “We are not unmindful that the operation of a public motion picture theater poses problems which necessitate regulation by appropriate public bodies.   We do not doubt that such supervision may be accomplished by the licensing of theaters.   Where the regulations are specifically drawn to meet a proper public purpose, such as compelling the theater building to satisfy health, fire and safety laws, or requiring the operation of the business to comply with the law in other specific respects, there is little likelihood that the standards under which the licensing authority acts may be used directly or indirectly as an instrument to suppress an applicant's rights to free speech and press.” ⁶

The prevention of unlawful sexual conduct is one such permissible public purpose.  (Deluxe Theater & Bookstore, Inc. v. City of San Diego (1985) 175 Cal.App.3d 980, 985, 221 Cal.Rptr. 100 [“We know of no case which has extended constitutional privacy rights to prevent government from regulating profitmaking businesses which seek to provide facilities for their customers' sexual frolics.”].)  Though it struck down a public nuisance ordinance under which the city officials revoked a bookstore's license to operate arcade booths as unconstitutionally vague, the court in Barry v. City of Oceanside (1980) 107 Cal.App.3d 257, 264, 165 Cal.Rptr. 697, stated:  “This is not to say that illegal sexual acts, indecent exposure, or other criminal acts by the customers must be condoned;  we only assert that in these cases the governing board must spell out with reasonableness and definiteness what constitutes a ‘public nuisance’ justifying the denial of a license.”

 Appellant makes no claim that the revocation ordinance in the instant case is unconstitutionally vague.   Rather, he makes the broad argument that the revocation of his permit is unconstitutional because it impinges his free speech rights.   Even under the more protective state constitutional free speech guarantee, this broad assertion is unsupportable, as a close examination of the cases upon which appellant relies reveals.

Appellant relies primarily upon Perrine v. Municipal Court (1971) 5 Cal.3d 656, 97 Cal.Rptr. 320, 488 P.2d 648, and EWAP, Inc. v. City of Los Angeles (1979) 97 Cal.App.3d 179, 158 Cal.Rptr. 579.   In Perrine, the Supreme Court struck down an ordinance that permitted denial of a bookstore license to an applicant who had suffered a prior criminal conviction.   Similarly, in EWAP, the court struck down an ordinance that allowed denial of a permit to operate a picture arcade on the basis of prior conduct.

In Perrine, the court explained its holding in these terms:  “[S]ince a denial of a license would prohibit petitioner from engaging in an activity protected by the First Amendment, it could only be justified, even under a narrowly drawn ordinance, if permitting a person who had been convicted of a crime involving obscenity to operate a bookstore constituted a clear and present danger of a serious, substantive evil.  [Citations.]  No such clear and present danger appears.   We cannot assume that because petitioner was once convicted of violating Penal Code section 311.2, he will violate it again, or that if he does so, criminal sanctions will not afford an adequate remedy.”  (Perrine v. Municipal Court, supra, 5 Cal.3d at pp. 664–665, 97 Cal.Rptr. 320, 488 P.2d 648;  emphasis added.)

The EWAP court also observed that where “an ordinance mandates denial of a license to conduct a First Amendment related business on the basis of prior misconduct, such a disqualification provision can only be sustained if there is a clear and present danger that serious substantive evil would result from granting that license.”  (EWAP, Inc. v. City of Los Angeles, supra, 97 Cal.App.3d at p. 185, 158 Cal.Rptr. 579.)

 Clearly, these cases are distinguishable from the case at bar.   In the first place, appellant reads both cases, but particularly EWAP, far too broadly.   They do not stand for the proposition that, as he puts it, “even if an applicant has knowingly permitted such [unlawful sexual] conduct to occur, the remedy of a denial of a permit is inconsistent with freedom of speech guarantees.”   All these cases say is that an ordinance permitting denial of a license to engage in a protected activity can only be sustained where it is shown there is a clear and present danger that serious substantive evil would result from granting it.  (Cf. County of Sacramento v. Superior Court (1982) 137 Cal.App.3d 448, 454, 187 Cal.Rptr. 154 [“As we read EWAP ․ the existence of closed booths (in a picture arcade) and the foreseeability of dangerous and unlawful conduct therein provides the required factual support for the ordinance (requiring open booths) in constitutional terms.”].)  That condition is satisfied here.

 The revocation of an existing permit for the reasons specified in section 103.109, subdivision (e)(2), is not based on the prior misconduct of the permit holder nor does it involve a speculative, unproven evil.   Rather, that subdivision is directed at an existing evil—unlawful sexual activity—which the permit holder has knowingly permitted to occur.   This is an entirely different situation than those addressed in Perrine and EWAP.   Those cases are, therefore, inapplicable.   We are of the opinion that revocation of a permit under the circumstances set forth under section 103.109, subdivision (e)(2), does not offend the state's free speech provision.

IV

Appellant next contends that substantial evidence does not support the hearing examiner's conclusion that he knowingly allowed and permitted the unlawful sexual conduct by the patrons of his theater which is the basis of the revocation.   In applying the substantial evidence rule, “our function on appellate review is solely to decide whether credible, competent evidence supports [the trial] court's judgment.”  (Yakov v. Bd. of Medical Examiners (1968) 68 Cal.2d 67, 69, 64 Cal.Rptr. 785, 435 P.2d 553.)   Further, we are required to resolve all conflicts in favor of the judgment and to indulge all legitimate and reasonable inferences to sustain it.  (Id., at p. 72, 64 Cal.Rptr. 785, 435 P.2d 553.)   Bearing this standard of review in mind, we turn to appellant's argument.

 Initially, appellant claims that the section 103.109 requirement that revocation is warranted where the permittee has “knowingly permitted or allowed” the proscribed conduct cannot be satisfied where the permittee has merely failed to effectively prevent the conduct.   We disagree.  “The word ‘permit’ requires no affirmative act.   It involves no intent.   It is mere passivity, abstaining from preventative action.”  (Harris v. Alcoholic Bev. Con. Appeals (1963) 212 Cal.App.2d 106, 123, 28 Cal.Rptr. 74.)

But, appellant argues, he has done nothing.   He points to the various measures he took to remedy the problem and, in effect, argues that nothing more can be expected of him.   In support of this position, he cites Tarbox v. Board of Supervisors (1958) 163 Cal.App.2d 373, 329 P.2d 553.

In Tarbox, the owner of a movie theater was denied renewal of his license because of nineteen arrests of patrons for lewd conduct occurring at the theater over a period of approximately two and one-half years.   During this same period a minimum of 20,000 patrons attended the theater.   The theater was not an adult theater.   The theater showed films of high quality.   Once he learned of the arrests, the owner hired a private detective and, later, a uniformed private patrolman to police the theater.   There was no evidence that the petitioner knowingly allowed into the theater anyone who had committed or attempted to commit a lewd act or that he had failed to eject any such person.

On appeal, the denial of the owner's application for renewal was reversed for lack of substantial evidence to sustain the denial.   The court said:  “Respondents argued that the fact that petitioner was unable to prevent the commission of lewd acts within his premises establishes that he is a person unfit to hold a license to operate such a theater.   There is no merit in such a contention.  [I]t is admitted and shown by the evidence to be an impossibility to police in a darkened theater the surreptitious acts of each patron.   The law does not require the impossible.  [It] is unquestioned that petitioner did not countenance but used every endeavor to prevent such acts upon his licensed premises.”  (Tarbox v. Board of Supervisors, supra, 163 Cal.App.2d at p. 378, 329 P.2d 553.)

Tarbox stands for the proposition that theater management is not responsible for the lewd conduct of its patrons where it takes all reasonable steps to prevent such conduct. (People v. Mitchell (1976) 64 Cal.App.3d 336, 340, 134 Cal.Rptr. 358.)

Appellant would apply this proposition to himself.   However, the key word here is reasonable and what was reasonable prevention in Tarbox will not suffice in this case.

 In the first place, as the hearing examiner concluded, in a theater showing pornographic films a higher degree of supervision may be required because of the greater likelihood that the films will induce some patrons to engage in unlawful sexual behavior.  (People v. Perrine (1975) 47 Cal.App.3d 252, 258, 120 Cal.Rptr. 640.)   This conclusion is buttressed by evidence that in appellant's relatively small theater, in which 20 patrons would be a sizeable crowd, there were 23 arrests over approximately a 16–month period.

In her proposed decision, the hearing examiner also referred to evidence that officers made arrests on 50 percent of their visits to the theater, and that one officer had made arrests 20 out of the 25 times he had visited the theater.   There can be no doubt, then, that appellant was well aware of the necessity for strong preventive measures to avoid unlawful conduct.

In view of the severity of the problem, we believe substantial evidence supports the trial court's remark that appellant failed to take vigorous and significant action.   Here, control of the situation was unlikely without adequate supervision of the premises.

 Appellant argues that the guard he hired to patrol the premises satisfied his duty to supervise the conduct of his patrons.   However, as the hearing examiner wrote in her proposed decision:  “The direct testimony of the only witnesses who observed the guard in action indicated that the guard's activities were too casual to curb the problem or catch lawbreaking patrons.”   Substantial evidence supports the hearing examiner's characterization of the ineffectiveness of the guard, and would support the contention of respondent that the guard was employed for cosmetic purposes rather than enforcement.

V

At argument, petitioner maintained that the “knowingly allowed or permitted” language of section 103.109, subdivision (e)(2), requires evidence that a permittee had personal knowledge of and permitted each incident specified in the accusation against him.   He cited no authority for this interpretation of the statute.   We reject it.

We are governed by rules of statutory construction that require us to construe statutes so as to effectuate rather than defeat their purposes.  (People v. Centr-O-Mart (1950) 34 Cal.2d 702, 704, 214 P.2d 378.)   The purpose of section 103.109, subdivision (e)(2) is to prevent a movie house permittee who has knowledge that illegal conduct is occurring on the premises from allowing such conduct to continue.   Moreover, the proscription in the statute is directed not only at the permittee alone but also “his or her employee, agent, partner, director, officer, stockholder or manager․”

 Accordingly, as we read the statute, the theater owner need only have knowledge that the proscribed conduct is occurring, he need not physically witness each incident of the conduct.   This is consistent with the inclusion in the ordinance of individuals other than the owner, whose knowledge and permission provides a basis to revoke the owner's permit.  (See Endo v. State Board of Equalization (1956) 143 Cal.App.2d 395, 401–402, 300 P.2d 366 [licensed employer may be disciplined to the extent of revocation of his license for the acts of his employees].)  Their inclusion betokens an intent by the drafters of the ordinance that the owners of movie theaters be responsible for more than what they personally observe.

Here, appellant failed to remedy a situation of which he was well-aware.   It is incredible, therefore, that he should now claim that because he may not have had knowledge of each specific incident he had no knowledge at all for the purposes of the ordinance.

In sum, whereas the theater owner in Tarbox was said not to have “countenanced” the unlawful sexual conduct in his theater, in the instant case the hearing examiner concluded that such activity was knowingly permitted by appellant.   Substantial evidence supports this conclusion.

The judgment is affirmed.   Respondent to recover costs.

FOOTNOTES

1.   Section 103.109 provides in part that:  “(a) As used in this Article, ‘motion picture shows' means the exhibiting or presenting of motion pictures to the public in any theater, show house or other place of public entertainment.“(b) No person shall engage in the business of exhibiting or presenting motion picture shows without a written permit from the Board.“The provisions of this section shall govern the power of the Board to issue, deny, suspend or revoke a permit in connection with the motion picture show business, notwithstanding the provisions of Sections 103.29 and 103.31 of this Code.”The section continues to set forth the terms and conditions for issuing and/or revocating the permit.

2.   Though the movies exhibited by appellant were concededly pornographic, no claim was made that they were legally obscene.  (See Pen. Code, § 311, subd. (2).)

3.   The Board is authorized to disregard the recommendation of its hearing examiner and impose greater penalties by section 102.13, subdivision (e).

4.   Appellant claims that, upon revocation of his permit, he will be unable to apply for a new permit for at least one year following the revocation.   He argues, further, that no new permit would be granted, in any event, for at least two years following the original revocation.   The city attorney disagrees, arguing that appellant's permit could be reinstated earlier.   In view of our analysis of appellant's First Amendment claim, it is unnecessary for us to resolve this issue, even assuming that it is ripe for resolution.

5.   It is true that in Arcara the court expressed doubt that the burden imposed upon booksellers by the statute in that case was as severe as appellants claimed because they could set up their business at another location.  (Arcara v. Cloud Books, Inc., supra, 478 U.S. at p. ––––, 106 S.Ct. at p. 3177, 93 L.Ed.2d at p. 577.)   Appellant in the case at bar makes too much of this observation.   The court's comment was neither the basis of its holding nor even an element of the rationale of the decision.

6.   Appellant argues that abatement of premises or criminal sanctions would be a better manner to regulate unlawful sexual conduct than by revocation of his permit.   Yet, as the passage quoted from Burton recognizes, licensing is an equally legitimate form of regulation providing that the regulations are drawn with specificity.   Accordingly, while reasonable minds may differ as to the best form of regulation of unlawful sexual conduct, a legislative body is free to choose that which it perceives to be most effective.  (See, e.g., Young v. American Mini Theatres (1976) 427 U.S. 50, 71, 96 S.Ct. 2440, 2453, 49 L.Ed.2d 310 (plurality opinion) [“[A] city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.”].)

WOODS, Presiding Justice.

KINGSLEY and McCLOSKY, JJ., concur.