Gluck v. County of Los Angeles

93 Cal. App. 3d 121, 155 Cal. Rptr. 435, 5 Media L. Rep. (BNA) 1605, 1979 Cal. App. LEXIS 1751

• Court: California Court of Appeal
• Decided: May 17, 1979
• Docket: Civ. 54193
• Status: Published

Opinions

Opinion

THOMPSON, J.

In Carl v. City of Los Angeles (1976) 61 Cal.App.3d 265 [132 Cal.Rptr. 365] the Court of Appeal held a Los Angeles City “news rack” ordinance invalid because its broad provisions violated First Amendment guarantees and intruded upon a state-preempted area of regulation of the distribution of “harmful matter” to minors. The Carl court left open the possibility that a more narrowly drawn ordinance might be valid. (61 Cal.App.3d at pp. 275-276 and fn. 10.) The appeal at bar tests the validity of a Los Angeles County news rack ordinance narrowly drawn.

We conclude that the county ordinance represents time, place and manner regulation of protected speech and press which satisfies constitutional standards because it is specifically drafted to prevent only obstruction of travel, to avoid danger from defective racks, and to protect persons from unwilling exposure to explicit sexual material which is likely to be offensive to the unwilling viewer.

We conclude also that viewed as time, place and manner regulation the ordinance does not intrude upon a state-preempted area. Finally, we note that some of the enforcement provisions of the ordinance violate First Amendment and due process protection. Accordingly, we reverse an order of the trial court enjoining application of the portions of the ordinance dealing with sexually explicit material with directions that the trial court enjoin only application of the offending enforcement provisions.

Substantive Provisions of Ordinance No. 11516

Los Angeles County adopted its Ordinance No. 11516 to control the “placement and maintenance of news racks on the public right-of-way and the proliferation of such devices to display words and pictorial material describing and depicting explicit sexual conduct and nudity, which is thrust indiscriminately on children and unwilling adults [and] unreasonably interferes with and obstructs the public’s use of such rights-of-way. . . .”

The ordinance requires that operators of news racks obtain a permit which issues without a fee and automatically upon application. It requires annual renewal of permits. Two types of restrictions are placed upon the operation of the newspaper racks. Location is limited to places other than those which obstruct the use of roads and sidewalks in fashions specifically defined in sections 1206 and 1207 of the ordinance. The display or exhibition of words or graphics of specific parts of the human anatomy or of explicit sexual conduct which exposes the display to public view from the highway is prohibited by section 1208. “Explicit sexual acts” are defined in the greatest of detail in section 1209. The depictions by word or graphic whether anatomical in nature or of “explicit sexual acts” is proscribed only when the depictions “have as their purpose or effect sexual arousal, gratification, or affront.”

Other provisions of the ordinance discussed in a later segment of this opinion permit impounding of news racks operated in violation of the ordinance. The ordinance contains a “severance clause” to provide for the contingency that some portions of the ordinance may be held invalid.

Proceedings in Trial Court

Contending that the ordinance violates the constitutional guarantees of freedom of speech and press and invades an area preempted by state law, plaintiff sued to enjoin enforcement of the news rack law. The trial court determined that the portion of the ordinance dealing with obstruction of sidewalks and highways was valid but that portions of the ordinance allowing impounding for violation were invalid. It determined that the segments of the ordinance dealing with display invaded an area preempted by the state. Accordingly, the trial court issued a preliminary injunction restraining enforcement of sections 1208 and 1209 of the ordinance (the display restrictions) and of portions allowing impounding.

First Amendment

The constitutional guarantees of freedom of speech and press preclude state regulation of the content of nonobscene material distributed by news rack. (Carl v. City of Los Angeles, supra, 61 Cal.App.3d 265, 273-274, and cases there collected.) The constitutional protection extends to depictions and descriptions of nudity, however crude, so long as the depiction or description does not meet the legal definition of obscenity. (Id.) The constitutional protection is not absolute, however. “Reasonable regulations of the time, place, and manner of protected speech, where those regulations are necessary to further significant governmental interests, are permitted by the First Amendment.” (Young v. American Mini Theatres (1976) 427 U.S. 50, 63, fn. 18 [49 L.Ed.2d 310, 322, 96 S.Ct. 2440].)

Because the parties agree that the ordinance does not deal with obscenity,¹ the enactment at bar must thus be tested against the delineation of permissible time, place and manner regulation. We draw the delineation from an analysis of what seem to us to be the two controlling decisions of the United States Supreme Court in Erznoznik v. City of Jacksonville (1975) 422 U.S. 205 [45 L.Ed.2d 125, 95 S.Ct. 2268] and Young v. American Mini Theatres, supra, 427 U.S. 50.

In Erznoznik, the high court invalidated a city ordinance which declared to be a public nuisance the exhibition of a motion picture, slide, or other depiction of bare buttocks and other forms of nudity “if such motion picture, slide, or other exhibit is visible from any public street or public place.” (422 U.S. at p. 207 [45 L.Ed.2d at p. 129].)

The city sought to apply its ordinance to a drive-in theatre. Noting that the ordinance deterred drive-in theatres “from showing movies containing any nudity, however innocent or even educational” (422 U.S. at p. 211, fn. omitted [45 L.Ed.2d at p. 132]) and was not directed at “sexually explicit nudity” (422 U.S. at p. 213 [45 L.Ed.2d at p. 133]), the court held that “the limited privacy interest of persons on the public streets cannot justify this censorship of otherwise protected speech on the basis of its content.” (422 U.S. at p. 212, fn. omitted [45 L.Ed.2d at p. 132].) Nor, said the high court, could the broad restriction “be justified by any other governmental interest pertaining to minors.” (422 U.S. at p. 213 [45 L.Ed.2d at p. 133].)

In Young, the United States Supreme Court considered the validity of “[z]oning ordinances adopted by the city of Detroit [which differentiated] between motion picture theatres which exhibit sexually explicit ‘adult’ movies and those which do not.” (427 U.S. at p. 52 [49 L.Ed.2d at p. 315].) Although the Detroit ordinance required dispersal of “adult” theatres in a fashion not required of others, the high court held that the ordinance satisfied constitutional standards.

The precise scope of the Young rule is not expressed directly in the opinion; it must be divined from the separate opinions of the court.

Speaking through Mr. Justice Stevens, four justices find that the Detroit ordinance satisfies the First Amendment both because it is an exercise of a traditional power over zoning vested in municipal government (427 U.S. at pp. 62-63 [49 L.Ed.2d at p. 321]) and because “[E]ven though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society’s interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate that inspired Voltaire’s immortal comment.[²]. . . Even though the First Amendment protects communication in this area from total suppression, we hold that the State may legitimately use the content of these materials as the basis for placing them in a different classification from other motion pictures.” (427 U.S. at pp. 70-71 [49 L.Ed.2d at p. 326].) Four justices of the high court speaking through dissenting opinions of Justices Stewart and Blackmun find that the Detroit ordinance violates the First Amendment because although the zoning is time, place and manner oriented it is not “content neutral.” (427 U.S. at pp. 86-87 [49 L.Ed.2d at pp. 335-336].)

The majority in Young is created by a separate concurring opinion of Mr. Justice Powell. While holding that in general content-related regulation of speech and press violates First Amendment guarantees, the concurring opinion distinguishes Erznoznik because of the failure of the Jacksonville ordinance there involved to achieve within constitutional bounds its objectives of protecting “citizens from unwilling exposure to possibly offensive materials,” protecting “children from such materials,” and prevention of “the slowing of passing traffic and the likelihood of resulting accidents.” (427 U.S. at p. 83 [49 L.Ed.2d at p. 333].) The concurring opinion continues: “As to the first purpose, the [Erznoznik] ordinance was overbroad because it proscribed the showing of any nudity, however innocent or educational. Moreover, potential viewers who deemed particular nudity to be offensive were not captives; they had only to look elsewhere. [Citations.] As to minors the Jacksonville ordinance was overbroad because it ‘might prohibit newsreel scenes of the opening of an art exhibit as well as shots of bathers on a beach.’ [Citation.] Finally, the ordinance was not rationally tailored to support its asserted purpose as a traffic regulation.” (427 U.S. at p. 83 [49 L.Ed.2d at p. 334].)

As we construe the concurring opinion in Young, speech which exploits sexually explicit content is subject to some regulation although the speech stops short of obscenity. Included within the scope of permissible regulation are narrowly and specifically drawn restrictions upon the time, place and manner of distribution designed to avoid display to a public which is not free to look elsewhere. The specificity of the restriction must prevent its being applied to depictions of nudity and the like which are “innocent or educational.”

The portions of the Los Angeles County ordinance restricting the display of sexually explicit materials in news racks meets that test. The news racks displaying the sexually oriented material do not exist in isolation. They are commonly placed in public locations adjoining news racks from which other forms of periodicals are displayed and sold. Conceivably, a member of the public might, while passing, avert his gaze from the sexually explicit display if he believes it offensive to him, but he cannot do so if he wishes to purchase a copy of the Wall Street Journal, Los Angeles Times, Tidings, or Christian Science Monitor from a rack. Finding the appropriate rack from which the member of the public is to exercise his First Amendment right to be informed makes him a captive exposed to the display of the explicit sexual graphics of the other news racks with which the rack he seeks is intermingled. The Los Angeles County ordinance defines “sexually explicit material” in exquisite detail and in a form that prevents application of the restriction to educational or “innocent” matter. The ordinance definition of proscribed anatomical display must also be read in context to refer only to that which is designed to exploit the sexually explicit. The ordinance does not prohibit dissemination of the sexually explicit material; it merely precludes display of the material in news racks in a form which exploits its content. The material may be sold through news racks on public streets and sidewalks so long as the display does not exploit the explicit sexual material itself. The material can be sold with exploitation by graphic display from places other than the streets and sidewalks.

We note at this juncture that plaintiff mounts two attacks upon the ordinance more narrow in scope than a general assertion that it invades an area protected by the First Amendment. Plaintiff claims: (1) the ordinance is overly broad; and (2) is fatally deficient for lack of a requirement of intentional violation of the display restriction. The first argument focuses on ordinance language which, after specifically describing the anatomical depiction of the proscribed display, limits the restriction by the requirement that to violate the ordinance the display must be with the “purpose or effect [of] sexual arousal, gratification, or affront.” From that language, plaintiff argues that the possibility of “affront” is so uncertain in light of the spectrum of human sensibilities that persons desiring to exercise First Amendment rights will be deterred by an inability to predict what will “affront” the viewer. The second argument is related. It contends that, because of the language of the ordinance, a news rack operator could be in violation if he accidentally caused “sexual arousal, gratification or affront.”

Plaintiff’s arguments misconstrue the ordinance. Rather than being indefinite, the enactment is extremely specific. Read in context, the phrase which modifies the very detailed description of the human anatomy must be construed as requiring that the display exploit explicit sexual material. Nor can the language to which plaintiff refers be reasonably construed as proscribing accidental incursions into what the overly sensitive might find either abnormally arousing or distasteful. Read in its entirety, the display sections of the ordinance go only to material that is used intentionally to exploit the sexually explicit to a captive public.

While attacking the enforcement provisions of the ordinance related to impounding of news racks which are placed so as to obstruct access or passage, plaintiff does not assert that the substantive portion of the ordinance related to those items is invalid.

We hence conclude that as construed in this opinion the ordinance at bar does not offend the First Amendment.

State Preemption

Plaintiff argues that if the Los Angeles County ordinance is construed to avoid the impact of the First Amendment it then runs afoul of California’s statewide comprehensive regulation of obscenity and proscribed sexual behavior.

”[A] local municipal ordinance is invalid if it attempts to impose additional requirements in a field that is preempted by general law. [Citations.] Local legislation in conflict with general law is void. Conflicts exist if the ordinance duplicates [citations], contradicts [citation], or enters an area fully occupied by general law, either expressly or by legislative implication [citations]. If the subject matter or field of the legislation has been fully occupied by the state, there is no room for supplementary or complementary local legislation, even if the subject were otherwise one properly characterized as a ‘municipal affair.’ [Citations.]” (Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 807-808 [100 Cal.Rptr. 609, 494 P.2d 681].)

In Carl v. City of Los Angeles, supra, 61 Cal.App.3d 265, a portion of a news rack ordinance dealing with display of “harmful matter” to minors was held preempted by a statewide legislative scheme covering exactly the same area. (61 Cal.App.3d at pp. 269-270.) Here, however, we deal with an ordinance which, while related to state law dealing with obscenity and proscribing some forms of sexual activity, does not cover the same ground as the statewide legislation. The question then is whether the field has been so occupied by the state law that time, place and manner regulation of nonobscene matter of a sexually explicit nature is prohibited to local government.

Decisional law furnishes no precise test of implicit state preemption of a legislative field by the enactment of a comprehensive statutory scheme. Our Supreme Court has stated: “In determining whether the Legislature intended to occupy a particular field to the exclusion of all local regulation, we may look to the ‘whole purpose and scope of the legislative scheme’ and are not required to find such an intent solely in the language used in the statute.” (In re Lane (1962) 58 Cal.2d 99, 102-103 [22 Cal.Rptr. 857, 372 P.2d 897].) The Court of Appeal has applied broader language borrowed from a Supreme Court concurring opinion: “ ‘Whether a particular statute or group of statutes is sufficiently comprehensive to show an intent to occupy the entire field is a matter which cannot properly be decided upon the basis of any single, precise test. Rather, the courts must rely upon broad general principles which are flexible enough to embrace our varied and rapidly expanding body of legislation. Determination of the question depends primarily upon an analysis of the statute and a consideration of the facts and circumstances upon which it was intended to operate, and the intent of the Legislature is not to be measured alone by the language used but by the whole purpose and scope of the legislative scheme. . . . [WJhether the state has fully occupied the field with respect to any given subject depends upon considerations which will necessarily vary and must therefore be determined in every case without prejudging the result as to subjects not before the court.’ ” (Eckl v. Davis (1975) 51 Cal.App.3d 831, 836-837 [124 Cal.Rptr. 685].)

The decisional language is not so much a standard of decision to determine the presence or absence of state preemption as a means of rationalization. The methodology results in conclusions that a local ordinance dealing with “resorting” invades a statewide scheme regulating illicit sexual activity (In re Lane, supra, 58 Cal.2d 99), but that. an ordinance which prohibits nudity in public parks and beaches does not. (Eckl v. Davis, supra, 51 Cal.App.3d 831.) A local ordinance requiring registration of convicted felons is held preempted by a state requirement that convicted sex offenders register (Abbott v. City of Los Angeles (1960) 53 Cal.2d 674 [3 Cal.Rptr. 158, 349 P.2d 974]), but a local ordinance which requires registration of firearms is not despite a much more comprehensive scheme of statewide legislation. (Galvan v. Superior Court (1969) 70 Cal.2d 851 [76 Cal.Rptr. 642, 452 P.2d 930].) Neither does state legislation prohibiting a large number of described games of chance preempt the field to the exclusion of local ordinances prohibiting gambling. (In re Hubbard (1964) 62 Cal.2d 119 [41 Cal.Rptr. 393, 396 P.2d 809], disapproved on another point in Bishop v. City of San Jose (1969) 1 Cal.3d 56, 63, fn. 6 [81 Cal.Rptr. 465, 460 P.2d 137].)

Absent a standard of decision, we must in effect forecast the trend of California Supreme Court decisions while accepting the uncertainty inherent in that process. We construe the trend as pointing to the conclusion that the ordinance at bar is not preempted.

In 1960, our Supreme Court declared, in Abbott v. City of Los Angeles, supra, that: “When there is a doubt as to whether an attempted regulation relates to a municipal or to a state matter, or if it be the mixed concern of both, the doubt must be resolved in favor of the legislative authority of the state.” (53 Cal.2d at p. 681.) Decisions after Abbott belie that statement, however. Since Abbott, attacks asserting state preemption have failed as to local ordinances proscribing loitering despite the then broad sweep of Penal Code section 647 (Gleason v. Municipal Court (1964) 226 Cal.App.2d 584 [38 Cal.Rptr. 226]), prohibiting consumption of alcoholic beverages on public streets despite a comprehensive statewide scheme relating to alcohol (People v. Butler (1967) 252 Cal.App.2d Supp. 1053 [59 Cal.Rptr. 924]), requiring firearms registration (Galvan v. Superior Court, supra, 70 Cal.2d 851, in which the Supreme Court cites with approval Gleason and Butler), prohibiting described gambling games (In re Hubbard, supra, 62 Cal.2d 119), and prohibiting nudity in described public places (Eckl v. Davis, supra, 51 Cal.App.3d 831).

The common thread of the cases is that if there is a significant local interest to be served which may differ from one locality to another then the presumption favors the validity of the local ordinance against an attack of state preemption. (See e.g., Galvan v. Superior Court, supra, 70 Cal.2d at pp. 862-864.) Here we deal with an ordinance regulating the use of streets and sidewalks, one both particularly within the realm of local government and one where conditions peculiar to the locality may differ from place to place. The problem of the “captive” viewer may be quite different in Los Angeles County than it is in Mono or in San Francisco.

We hence conclude that the state has not so preempted the area of legislation as to invalidate the ordinance here involved.

Enforcement Procedures

The ordinance contains detailed enforcement procedures. It provides that violations are misdemeanors. In addition, seizure and impounding of offending news racks is permitted. Two separate procedures are specified.

If the news rack obstructs vehicular or pedestrian traffic, designated personnel may “tag” the rack with a notice of the violation and may correct the violation on the spot. If the obstruction violation is not corrected within seven days from notice of the violation which must be sent within two working days of the date the rack is tagged, the rack may be impounded. The rack may be impounded without the preamble of tagging and notice if it is “creating a dangerous or hazardous condition.”

If designated enforcement personnel determine that a news rack violates the display restrictions of the ordinance, the tagging procedure does not apply. Then the enforcement officers are required to “present to any magistrate affidavits or other evidence sufficient to show a prima facie violation . . . and obtain a written order directing the impounding of news racks containing the particular material found to be in violation . . . by the magistrate.” Written notice of the impounding must be sent to the licensee within two working days. The ordinance requires further that if a news rack is impounded for violation of the display restrictions, a complaint for violation of the ordinance must be filed within 14 days. If the complaint is not filed within that time, the rack must be returned.

A licensee whose news rack has been impounded is entitled to its return within 30 days upon payment of $25 plus reasonable costs of impounding and storing the rack in excess of that amount unless the rack is being “held as evidence in a criminal prosecution.” A magistrate may order the return of the rack without payment of the fee upon a showing of good cause as may a judge upon dismissal or acquittal of a criminal charge of a violation of the ordinance. In that event, the judge may also order the return of any impound fees previously paid. If there is no criminal proceeding pending in which the rack is being held as evidence, and if neither the fee has been paid nor a hearing requested within the specified period, the rack may be sold or otherwise disposed of and its contents, including cash, retained by the county.

The ordinance contains provisions for hearing before the road commissioner or his delegate with an appeal to the board of supervisors. The purpose of the hearing is to determine “whether the news rack was rightfully impounded and whether it should be returned to the permittee . . . without payment of impound fees and costs . . . .”

Except for the declaration that violation of the news rack ordinance is a misdemeanor, the enactment’s enforcement mechanisms are fatally defective.

The requirements of valid enforcement provisions for restrictions upon news racks are spelled out in Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294 [138 Cal.Rptr. 53, 562 P.2d 1302], Quoting from Carroll v. Princess Anne (1968) 393 U.S. 175, 180 [21 L.Ed.2d 325, 330-331, 89 S.Ct. 347], our Supreme Court said: “ ‘There is a place in our jurisprudence for ex parte issuance, without notice, of temporary restraining orders of short duration; but there is no place within the area of basic freedoms guaranteed by the First Amendment for such orders where no showing is made that it is impossible to serve or to notify the opposing parties and to give them an opportunity to participate.’ ” (19 Cal.3d at p. 311.) Because of its recognition of the specially protected nature of property utilized in communication (19 Cal.3d at p. 309), the Kash court held invalid provisions of the City of Los Angeles news rack ordinance which permitted summary seizure of offending racks. (19 Cal.3d at pp. 312-313.) The court recognized, however, that an ordinance narrowly drawn to permit immediate seizure where the rack presents a danger to pedestrians is permissible as is an ordinance provision which notifies of the imminent seizure of nondangerous racks with opportunity either to cure the violation or to contest the seizure in an informal administrative forum. (19 Cal.3d at p. 313.)

Here the seizure provisions related to violations of the display restrictions of the ordinance violate the Kash proscription upon ex parte orders enjoining the exercise of protected speech. The county concedes that the display restrictions apply equally to protected speech and to obscenity. The ordinance permits the seizure upon an ex parte finding by a magistrate that there is a “prima facie” violation of the display restriction. The news rack operator is not entitled to be heard or to present evidence to the magistrate.

Here the seizure provisions related to the obstruction prohibitions of the ordinance suffer from a different but no less intrusive vice. While the ordinance provides on its face for a hearing to test the validity of a seizure, the provision for hearing is farcical.

The licensee whose news rack is seized has a choice; he may secure return of the rack within 30 days by paying the impound fee or he may request a hearing to be held during an open-end period of time where, if he is successful, he will avoid paying the fee but still be forced to wait up to an additional 30 days for the return of the rack. If the news rack is “tagged” in error, the licensee has no option except to correct the nonexistent violation, an option which will also be nonexistent if the error is egregious, or to suffer a seizure with all that follows.

In sum, the enforcement provision of the ordinance dealing with obstruction violations: (1) permits seizure without an opportunity of the licensee to be heard on the issue of the validity of the claimed violation for which the rack is “tagged”; (2) permits a hearing solely for the purpose of avoiding the payment of an impound fee of about $25; and (3) permits the county to hold racks for up to 30 days at whim. There is thus no proceeding for a practical hearing at all. The scheme is a transparent one to force payment of impound fees irrespective of the propriety of the seizure. The licensee who demands a hearing rather than paying the impound fee may be required to wait until the county determines, in its unlimited discretion, when it should hold the hearing. Even if the fee is paid or if the rack is seized in error, the rack need not be returned for 30 days.

We thus conclude that the impound procedures provided in the ordinance are constitutionally defective. Despite that defect, the county retains its inherent power to remove a dangerous rack from the streets if the danger cannot be otherwise corrected and provided it affords a quick and reasonable opportunity to the licensee or owner to obtain the rack’s return. The county, of course, retains its remedies and methods of enforcement provided by law other than the ordinance. It retains the right to prosecute as misdemeanors ordinance violations.

Disposition

The order of the superior court is reversed. The court is directed to enter a new order denying plaintiff’s motion for preliminary injunction except to the extent that the motion seeks to enjoin application of section 1210, 1211, 1212, and 1213 of Los Angeles County Ordinance No. 11516. The court is further directed to issue its preliminary injunction restraining enforcement of those sections of the ordinance. Each party is to bear its own costs on appeal.

Lillie, Acting P. J., concurred.

1 The county concedes that if the purpose of the ordinance were to preclude distribution of obscenity the ordinance would invade an area preempted by state law.

2 “ ‘I disapprove of what you say, but I will defend to the death your right to say it.’ ” (427 U.S. at p. 63, fn. omitted [49 L.Ed.2d at p. 322].)