City of Seattle v. Bittner

505 P.2d 126, 81 Wash. 2d 747, 1973 Wash. LEXIS 849

• Court: Washington Supreme Court
• Decided: January 11, 1973
• Docket: 42080
• Status: Published

Opinions

Rosellini, J.

These are consolidated criminal actions originating in the Municipal Court of the City of Seattle, wherein the respondents were charged and convicted of violating Seattle Ordinance 48022 § 22 as amended (Seattle Code § 10.04.010), in that they operated motion picture theaters without licenses. In cases involving operation of the Mecca Twin Theatre located at 711 Pike Street, the licensee’s application for a renewal of theater license had been denied by the city council on the ground that one of the licensee’s officers had been convicted of exhibiting obscene motion pictures. In cases involving the operation of the Adult Book Store theater, located at 1415-lst Avenue, the application of respondent Kravitz for an initial license was denied upon the ground that the theater had been operated without a license, the application having been suspended pending the justice court prosecution of one of the bookstore employees for sale of obscene material at the premises.

Upon appeal to the superior court, the convictions were reversed, the court holding that the ordinance in question is unconstitutional upon its face. The city has appealed.

Pertinent portions of Seattle Ordinance 48022 § 11 as amended, are as follows:

10.02.100 Licenses granted by council—Application procedure and information required The following licenses may be granted only by the city council:

(6) Theater licenses

Application for any of the above shall be made in the office of the city comptroller on a form prepared by him substantially as follows:

. . . The comptroller shall forward all such license applications to the city council which before acting upon the same shall request the chief of police to investigate the truth of the statements in the application and all other matters which might tend to aid the council in determining whether to grant .the license. The chief shall report to the council as to reasons he may have for objecting to the granting or renewing of the license. If the council is satisfied that the statements in the application are true, that the applicant and all persons connected with the business are of good character and that the premises in which the activity sought to be licensed will be conducted comply with the requirements of all ordinances relating to buildings, fire, health and sanitation, and that such premises are situated in a place where such businesses are not prohibited by the Zoning Ordinance or other law and that all other requirements and conditions of this chapter relating to the business for which the license is sought have been met, it shall by resolution direct the city comptroller to issue such license, otherwise it shall deny the same; Provided, however, that if the applicant (or if a corporation, any of its officers) has within ten years of the date of application been convicted of any felony or any misdemeanor involving moral turpitude or intent to defraud, or has within ten years of the date of application been released from a penal institution or from active supervision on parole as a result of any such conviction, no such license shall be granted; Provided, further, however, that the city council may waive not to exceed five years of such period upon satisfactory showing by the applicant of rehabilitation. The city council may grant any license as a probationary license for such time and under such conditions as it may deem necessary to insure continued adherence to this or other ordinances, but no probationary license shall be granted to anyone not qualified for licensing under this chapter.

It will be observed that this ordinance lodges in the city council discretion to deny a license if it fails to find that an applicant and “all persons connected with the business” are of good character. It also provides that a license may not be granted to any person who has been convicted of a crime “involving moral turpitude or intent to defraud” within 5 years of the date of application. It is these provisions which the respondents contend and which the trial court held constitute an improper use of the licensing power to restrain the exercise of rights guaranteed under the first amendment to the United States Constitution and Const, art. 1, § 5.

As we said in Fine Arts Guild, Inc. v. Seattle, 74 Wn.2d 503, 445 P.2d 602 (1968), it is now well settled that motion pictures and plays are a form of expression entitled to the constitutional guarantees of free speech and press. Also well settled is the proposition that any restraint imposed upon a constitutionally-protected medium of expression comes into court bearing a heavy presumption against its constitutionality.

The ordinance in question denies to certain classes of citizens—those who in the opinion of the city council are not of good character, and those who have been convicted, of a certain type of crime within a specified period—the right to engage in .the business of showing motion pictures.

In seeking to justify these restrictions, the appellant maintains that they constitute a proper exercise of its licensing power. It cites the case of Tarver v. City Comm’n, 72 Wn.2d 726, 731, 435 P.2d 531 (1967). In that case we said of the licensing power when used for regulatory purposes:

The wisdom and propriety of a municipal ordinance establishing certain standards, regulations or controls for a particular business or occupation is not a question for this court to decide; rather, the scope of our review is limited to determining whether the ordinance is within the scope of municipal power and whether the ordinance and the actions taken pursuant thereto are arbitrary, capricious or unlawful.

We examined prior cases in which we had considered restrictions placed upon various enterprises by municipal authorites and concluded that the authority to regulate varies, depending upon the type of activity or enterprise involved. We said that generally businesses and occupations fall into one of three categories—those which are pursued by private means upon private property; those which involve some social or economic evil, such as gambling or liquor traffic, or which may, under certain circumstances, become a nuisance or hazard to the public health and safety; and those which involve the use of public property such as streets or parks.¹

Tarver v. City Comm’n, supra, was an action in which a taxicab operator challenged the constitutionality of an ordinance which bestowed upon the city commission discretion to deny a license to a person who was not found to be of good moral character and reputation. We observed that the character of a driver of a taxicab is a relevant factor in determining his qualifications for a license, because of the safety hazards involved as well as the temptation to engage in illegal activities such as liquor traffic, and further that the taxicab operator uses the public streets to pursue his business. For these reasons, we said, the power to regulate is broader than it would be in the case of a business carried on upon private property and involving no extraordinary hazards or risks of illegal activities.

We held in that case that the discretion lodged in the city commission was not inappropriate to effect the legitimate purposes of the licensing act, noting that the exercise of that discretion would be subject to judicial review for arbitrariness, and that the factors considered must have a reasonable relationship to the licensed occupation.

Another case in which we have recently sustained the right of a licensing authority to inquire into the character of an applicant is State ex rel. Pitkanen v. Zittel, 77 Wn.2d 366, 462 P.2d 944 (1969). In that case, the petitioner was refused a license as a special policeman by the Tacoma chief of police, to whom the duty to pass upon the qualifications of applicants for such licenses had been delegated by the city manager. The petitioner contended that, since his services would be performed entirely on private property, the public had no legitimate interest which required the regulation of his vocation. However, we pointed out that the badge of a special policeman indicates to those persons whom he serves that he has been approved by the city police and can be trusted to guard the client’s property and not abuse his position. In sustaining the denial of the license, we also observed that any abuse of discretion by the licensing authority was subject to judicial review.

On the other hand, we held in State ex rel. Makris v. Superior Court, 113 Wash. 296, 193 P. 845, 12 A.L.R. 1428 (1920), that one engaged in the business of selling soft drinks and candy on private property could not be denied a license at the discretion of the licensing authority. We said in that case that an ordinance which authorizes the issuing or withholding of a license to engage in a business which within itself is ordinarily perfectly lawful, and commits to any officer or set of officers the power to decide according to their notions in each particular case the question of the propriety of issuing or withholding a license therefor, and thus to decide who may and who may not engage in such business, is authorizing the exercise of arbitrary power in violation of the fourteenth amendment to the United States Constitution, which provides that “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

We said further:

We do not in. our present inquiry take note of decisions which have to do with the granting of licenses for the sale of intoxicating liquors, the maintenance of pool rooms, the practice of professions, or entering upon occupations more or less dangerous to others, looking to the personal qualifications of the licensee. As to such licenses there is necessarily involved some measure of discretion to be exercised by the officer or body charged with the duty of deciding who may or may not engage in such businesses, professions, or occupations. Such cases do not deal with constitutional rights so clearly ascertainable as those drawn in question in this case.

113 Wash, at 307.

Also, in Vincent v. Seattle, 115 Wash. 475, 197 P. 618 (1921), we held unconstitutional an ordinance vesting unbridled discretion in the city council to revoke a license for the operation of certain amusement devices on private property. We said that the operation of a place of public amusement, on private property, involves nothing which is necessarily inherently evil, and the limit of legislative power thereover is to regulate only. See also Seattle v. Gibson, 96 Wash. 425, 165 P. 109 (1917).

It will be seen, then, that the extent to which a licensing authority may exercise discretion in the granting or withholding of a license depends upon the type of business or vocation which is involved. But even where the character of an applicant is subject to evaluation by the licensing officer, the matters which he takes into account must be relevant to the particular activity which is to be licensed. This rule is implicit, if not expressed, in all our cases and was made abundantly clear by the United States Supreme Court in Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 1 L. Ed. 2d 796, 77 S. Ct. 752 (1957). Speaking of the authority to license the practice of law, that court said:

A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant’s fitness or capacity to practice law.

Having in mind these principles we turn to Seattle’s ordinance authorizing the city council to license the operation of motion picture theaters. The appellant does not deny that a motion picture theater is a private business carried on upon private property. There is no* suggestion that the respondents use or claim any right in public property for the conduct of their enterprises.

There is also no contention that the respondents’ theaters are in violation of applicable zoning regulations. There are, of course, possible health and safety hazards involved in the operation of a theater, and the respondents do not question the right of the city to regulate such establishments in this regard. But the appellant does not suggest that the character of the applicant is in any respect rele-: vant to the prevention of fire hazards or the maintenance of sanitary conditions. It quite frankly concedes that the purpose of the provisions of the licensing ordinance which relate to the character of the applicant is to reduce the likelihood of obscene movies being shown.

Thus, the ordinance is designed to place a restraint upon the conduct of a lawful business, upon private property, which involves the exercise of one of the fundamental freer doms—the freedom of expression—which is protected under both the federal and state constitutions.

Recognizing that this court has held, in Fine Arts Guild, Inc. v. Seattle, 74 Wn.2d 503, 445 P.2d 602 (1968), that prior restraint of the exhibition of motion pictures can be resorted to only under very limited circumstances, the appellant argues that the ordinance provisions are merely punishment for past offenses involving the showing of obscene movies.

The appellant does not advise us of the source of its authority to use its licensing power as a vehicle for the imposition of criminal penalties, much less to use that power to punish an applicant for a second time for past offenses. Presumably an applicant who has been found guilty of showing an obscene motion picture has paid the penalty provided by law for that offense.

If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. . . .

. . . [0]f what avail is the constitutional protection against more than one trial if there can be any number of sentences pronounced on the same verdict? . . .

. . . [W]e do not doubt that the Constitution was designed as much to prevent the criminal from being twice punished for the same offence as from being twice tried for it.

Ex parte Lange, 85 U.S. (18 Wall.) 163, 168, 21 L. Ed. 872 (1873). See also Davis v Catron, 22 Wash. 183, 60 P. 131 (1900).

But we need not consider the propriety of the use of the licensing power as an instrument of punishment. What the appellant labels “punishment” is in fact an attempted prior restraint upon the exercise of a constitutional freedom.

The appellant has apparently proceeded upon the assumption that a person who has been convicted of the offense of exhibiting an obscene movie, under RCW 9.68.010, is more likely than not to commit this offense again. This must mean that, in its opinion, the imposition of penalties under the criminal law has neither a deterrent nor a rehabilitative effect, and further that the penalties prescribed are not adequate punishment for the offense. Whether or not this assumption has any validity, we are convinced that the constitution does not permit a licensing agency to deny to any citizen the right to exercise one of his fundamental freedoms on the ground that he has abused that freedom in the past. No case is cited which supports such a proposition and our research has revealed none.

In Adams v. Hinkle, 51 Wn.2d 763, 322 P.2d 844 (1958), this court had under consideration a statute, Laws of 1955, ch. 282, which required a license of anyone selling or possessing for sale any book, magazine, or pamphlet of a specified type, and imposed punishment for sale of such material without a license. We said that this device, which imposed punishment not for selling something which might be considered harmful (in that case, crime comic books), but rather for failure to obtain a license, is prior restraint in its most abhorrent form.

We quoted with approval the following from an article by Professor Thomas I. Emerson of the Yale Law School, which appeared in 20 Law and Contemporary Problems 648 (1955):

The concept of prior restraint, roughly speaking, deals with official restrictions imposed upon speech or other forms of expression in advance of actual publication. Prior restraint is thus distinguished from subsequent punishment, which is a penalty imposed after the communication has been made as a punishment for having made it. Again speaking generally, a system of prior restraint would prevent communication from occurring at all; a system of subsequent punishment allows the communication but imposes a penalty after the event. Of course, the deterrent effect of a later penalty may operate to prevent a communication from ever being made.

We also quoted the following from the leading case of Near v. Minnesota, 283 U.S. 697, 713, 716, 75 L. Ed. 1357, 51 S. Ct 625 (1931):

In determining the extent of the constitutional protection, it has been generally, if not universally, considered that it is the chief purpose of the guaranty to prevent previous restraints upon publication. . . .

. . . That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases: . . .

The exceptional nature of its limitations places in a strong light the general conception that liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints or censorship.

Because the licensing act constituted an impermissible prior restraint, and for other flaws in its composition, we held it unconstitutional.

As we observed in that case, not all prior restraint of free expression is forbidden. Distribution of obscene material or the showing of an obscene picture may be restrained, but certain safeguards must be observed, including provision for prompt judicial review of the censor’s decision. Fine Arts Guild, Inc. v. Seattle, supra; Freedman v. Maryland, 380 U.S. 51, 13 L. Ed. 2d 649, 85 S. Ct. 734 (1965). The ordinance here in .question does not purport to restrain only the showing of obscene motion pictures, neither does it provide any of the procedural safeguards which we have said must be observed if a particular motion picture is sought to be suppressed. It is not a permissible form of prior restraint.

The appellant acknowledges that a similar licensing statute recently has been declared unconstitutional by our sister court in California, in Perrine v. Municipal Court, 5 Cal. 3d 656, 488 P.2d 648, 97 Cal. Rptr. 320 (1971). However, it attempts to distinguish that case upon the ground that it dealt with the licensing of a bookstore, rather than a motion picture theater. If any distinction has been made in the oases between the quality of freedom guaranteed by the federal and state constitutions in communication through the medium of motion pictures and through the medium of books, the appellant has failed to bring it to our attention.

The distinction which the appellant makes is that a bookstore is a far less “public” type of operation than a motion picture theater. Assuming without agreeing that this is true, we know of no historical or rational basis for the proposition that the wider the public which a communication reaches, the greater the power of the censor to restrict it. The notion that ideas should not be widely disseminated is probably acceptable in a totalitarian society, but it has no place in one which bases its system upon the belief that an informed and enlightened public is necessary if a just and responsive government is to be maintained.

In a very able opinion written by Chief Justice Wright, the California court, in Perrine v. Municipal Court, supra, determined that the licensing act there under consideration was void because it failed to provide objective standards for determining eligibility. The court went further and considered the question which is before us in this case, whether a licensing authority may deny a license to exercise a First Amendment freedom on the ground that the applicant has previously been convicted of a crime. It said:

Moreover, we believe that even if the ordinance limited its disqualification to applicants who had either been convicted of one or more of the enumerated crimes or whose adequately defined coparticipants in the proposed business had been so convicted it would nevertheless be invalid.

Even in the absence of First Amendment considerations, an ordinance regulating the right to engage in a lawful occupation or business must bear a rational relationship to a valid governmental purpose. [Citations omitted.] Accordingly, standards for excluding persons from engaging in such commercial activities must bear some reasonable relation to their qualifications to engage in those activities. [Citations omitted.] In the present case we perceive no reasonable relation between the qualifications of an applicant to operate a bookstore and any past conviction of any of the vast number of crimes listed in section 329.4 he or any of his coparticipants may have suffered.

Participants in the business of selling books require no special expertise. They are not like doctors or lawyers or school teachers whose past criminal convictions are often directly related to their occupational qualifications and may therefore be reasonably invoked to bar them from practicing their professions. [Citations omitted.] . . .

It is contended, however, that at least as to crimes involving obscenity, there is a reasonable relationship between conviction of such crimes and the operation of a bookstore. Accordingly, it is urged that the commission lawfully denied petitioner’s application for a license on the basis of his conviction for violating Penal Code section 311.2. This contention cannot stand in the face of the First Amendment. . . . [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 omitted.] 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. . . .

To interpret the ordinance in this case to permit denial of a license because of a past conviction of violating Penal Code section 311.2 would do more than create a hazard to protected freedoms; it would suppress them altogether. The penalty for violating section 311.2 does not include a forfeiture of First Amendment rights, and the risk that criminal sanctions will be insufficient to deter future violations of that section cannot justify the county’s attempted forfeiture of those rights on the theory that past violators are unfit to operate bookstores.

(Footnote omitted.) 5 Cal. 3d at 663.

The rationale of that opinion is in complete harmony with our cases dealing with the licensing powers of municipalities and their powers of censorship. We adopt it herewith and hold, as did that court, that a municipality may not use its power to license theaters as a tool of blanket censorship, as was done in this case.

The ordinance being unconstitutional upon its face, the respondents committed no crime in operating their motion picture theaters without having first obtained the licenses required under its terms.

The judgments are affirmed.

Finley, Hamilton, Stafford, Wright, and Utter, JJ., concur.

1 We are here concerned only with the power of municipalities to license businesses. Other considerations apply in the licensing of vocations and professions such as teaching, and the practices of medicine and the law. See 16 Am. Jur. 2d Constitutional Law § 323 (1964).