Orloff v. Los Angeles Turf Club, Inc.

227 P.2d 449, 36 Cal. 2d 734, 1951 Cal. LEXIS 222

• Court: California Supreme Court
• Decided: February 14, 1951
• Docket: L. A. 20746
• Status: Published

Opinions

SHENK, J.

The plaintiff sought an injunction to restrain the defendant from refusing to admit him to the racing arena of Santa Anita Park. The complaint shows that on the 31st day of January, 1946, the plaintiff purchased a ticket and was admitted to the park at 1 p. m. At 4 p. m. he was ejected. His ejection under similar circumstances occurred on February 2, 1946. Both occurrences were alleged to have been without cause or provocation on the plaintiff’s part. The plaintiff has been refused admittance to the park since his removal therefrom.

The case was before this court previously on an appeal wherein a judgment of dismissal, entered on an order sustaining the defendant’s demurrer, was reversed. (30 Cal.2d 110 [180 P.2d 321, 171 A.L.R. 913].) Upon the reversal a trial was had, at the close of which the court made findings favorable to the defendant and entered judgment denying injunctive relief. The present appeal is from that judgment.

The issues involve the construction and application of sections 51-54 of the Civil Code. Section 51 provides that all citizens under state jurisdiction are entitled to the full accommodations, advantages, facilities and privileges of hotels, eating places, barbershops, theaters, conveyances, and other places of public accommodation and amusement subject only to the conditions and limitations established by law applicable alike to all citizens.

Section 53 provides that it is unlawful for the proprietor of any 1 ‘ opera-house, theater, melodeon, museum, circus, caravan, race-course, fair or other place of public amusement or entertainment, to refuse admittance to any person over the age of twenty-one years, who presents a ticket of admission acquired by purchase, or who tenders the price thereof for such ticket, and who demands admission to such place. Any person under the influence of liquor, or who is guilty of boisterous conduct, or any person of lewd or immoral character, may be excluded from any such place of amusement.” Sections 52 and 54 prescribe the liability of persons who deny such accommodations and privileges.

In substance the following evidence is relied on by the defendant to support the judgment. Between 1929 and 1939 the plaintiff was convicted in seven cases of various misdemeanors. Four of the convictions, form chart possession, were under an ordinance held to be invalid in In re Page (1931), 19 Cal.App.2d 1 [298 P. 178], In 1929 he paid a $10 fine on a conviction of gambling. In 1935 he was convicted of bookmaking (Pen. Code, § 337a) on a plea of guilty and received a suspended 30-day sentence and paid a $100 fine. In July, 1939, he pleaded guilty to a charge of violation of section 3 of Act 3421, Leering’s General Laws (Regulation and Licencing of Horse Racing) by the placing of a wager outside of the course, and paid a $50 fine. There is no evidence that any of the violations was committed on a racecourse. There was no evidence that the plaintiff was drunk, boisterous, lewd or conducted himself in any but an orderly and proper manner. The track’s arresting officer testified that he observed the plaintiff talking to persons who, by check with police files, were stated to have criminal records. The plaintiff conducts one or more restaurants. The testimony of two police officers was that they “investigated” the plaintiff’s reputation, and that their investigation disclosed that he was reputed to be a bookmaker and doing a bookmaking business; that at the “present time” he was not known as a bookmaker but as a gambler, and that his place of business was known as a congregating place for professional gamblers and bookmakers.

The trial court did not find that the plaintiff was a person of immoral character. The finding is that he had a reputation as a man of immoral character, was a known undesirable, and a person guilty of conduct detrimental to racing and to the public welfare. This finding purported to justify the defendant’s exclusion of the plaintiff from the racecourse pursuant to rules formulated by the horse racing board regulating the application for and granting of licenses, the conduct of races, and other matters pertaining to the operation of racecourses where wagering is permitted. (Cal. Adm. Code, title 4, § 1400 et seq.; § 19561 Bus. & Prof. Code.) The defendant relies on the following rules:

Rule 319 (§ 1936), which provides that persons guilty of dishonest or corrupt practices, fraudulent acts or other conduct detrimental to racing shall be ruled off all racing enclosures, and stewards are required to exclude them; rule 320 (§1937), which extends the exclusion to all recognized courses in the state; rule 354 (§ 2009), which provides that an association shall not permit the making of handbooks on its grounds and if such practice is found to exist, the association shall take immediate steps to eliminate it under penalty of revocation of its license; and rule 355 (§2010), which requires the association properly to police the grounds and to eject therefrom known undesirables, touts, persons under suspension or ruled off, persons of lewd or immoral character, and persons guilty of boisterous or disorderly conduct or other conduct detrimental to racing or the public welfare.

There is here no quarrel with these rules insofar as they relate to the regulation of the licensee and its employees in the conduct of the races and of wagering on the results thereof. However, insofar as they govern the licensee in exercising the power of exclusion of persons from participation in the public entertainment afforded, they may not be deemed to narrow the established right of participation by all persons on an equal basis. The rule-making power of the board was upheld in Sandstrom v. Cal. Horse Racing Board, 31 Cal.2d 401 [189 P.2d 17]; but in exercising that power the board may not enlarge the instances when the proprietor of a public racecourse may lawfully place restraints on the rights of members of the public to attend the races and participate in the wagering on the results thereof. Rules for proper policing of the course are required in the public interest; but the exercise of the power may not be made an occasion to extend discriminatory exclusion beyond that reasonably provided by the Legislature in the exercise of the police power. The board may make only such exceptions in the public’s right of equal participation as are validly included in the Civil Code. (Boone v. Kingsbury, 206 Cal. 148, 161 et seq. [273 P. 797]; California Drive-In Restaurant Assn. v. Clark, 22 Cal.2d 287, 302-303 [140 P.2d 657, 147 A.L.R. 1028]; Whitcomb Hotel, Inc. v. California Emp. Com., 24 Cal.2d 753, 757 [151 P.2d 233, 155 A.L.R. 405] and additional cases cited.)

We may assume that the defendant would have been justified in ejecting and refusing admittance to the plaintiff had there been evidence of his making book on the racecourse. It would not be questioned that such violation of law would constitute conduct justifying the action and would be within the compass of the power to police the premises under the code and the rules. But there is no such evidence here, and its absence has compelled the defendant to rely on the asserted sufficiency of the evidence to support a conclusion that the plaintiff was a person of immoral character justifying the action in excluding him from the course.

There is thus brought into focus the question of what immorality will warrant the action taken. In this connection the plaintiff contends that section 53 of the Civil Code is unconstitutional in providing for exclusion on the basis of “immoral character” because that phrase provides no definite standard; that the term “immoral character” is too vague and uncertain to apply as a standard or guide; that in any event the evidence of specific acts committed outside the course more than six years previously and the purported evidence of reputation are too remote as proof of immoral character.

It is unnecessary here to determine when evidence of specific acts or when evidence of reputation may be received as tending to prove character. (See Wigmore on Evidence, 3d ed., vol. 1, p. 689 et seq.; see also Cosgrove v. Pitman, 103 Cal. 268, 275 [37 P. 232]; People v. Ridgeway, 89 Cal.App. 615, 618 [265 P. 349].) The trial court admitted both types of evidence, namely that of past convictions of offenses pertaining to gambling and bookmaking, and purported evidence of the plaintiff’s reputation. For reasons hereinafter appearing we conclude that the evidence of conduct was not relevant to any proper ground for the defendant’s refusal to admit him to the arena. For similar reasons the evidence of the plaintiff’s reputation had no relation to a proper ground for his exclusion from the course. Furthermore, the evidence received as bearing on the question of reputation was incompetent as hearsay and the court should have sustained the plaintiff’s objection on that ground. The testimony was not given by persons who knew the defendant’s reputation, but by witnesses who inquired of others as to the defendant’s reputation. The rule is that evidence of reputation when relevant may not be shown by witnesses conducting an inquiry, but must be given by persons having knowledge thereof. (Tingley v. Times-Mirror Co., 151 Cal. 1, 26-27 [89 P. 1097] and cases cited.)

The so-called civil rights statutes (Civ. Code, §§ 51-54) do not necessarily grant theretofore nonexistent rights or freedoms. The enactments are declaratory of existing equal rights and provide the means for their preservation by placing restrictions upon the power of proprietors to deny the exercise of the right and by providing penalties for violation. In Greenberg v. Western Turf Assn., 140 Cal. 357, 361 [73 P. 1050], 148 Cal. 126, 128. [82 P. 684, 113 Am.St.Rep. 216], (affirmed 204 U.S. 359 [27 S.Ct. 384, 51 L.Ed. 520]), this court spoke of the predecessor of the present statute (Stats. 1893, p. 220) as a regulation of places of amusement in the exercise of the police power. In affirming the determination as to the validity of the statute, the United States Supreme Court (204 U.S. at p. 364) stated that the racecourse, being a place of public entertainment, was so far affected with a public interest that the state might, in the interest of good order and fair dealing, require the proprietor to recognize its own tickets of admission.

Under our institutions the freedom to pursue the declared right on an equal basis is just as precious as many other freedoms and rights. The exercise of the power of its denial, being a restraint on a personal right, is circumscribed by the same constitutional safeguards of equal protection and due process as are restraints under penal laws. The requirement that a law be definite and its meaning ascertainable by those whose rights and duties are affected applies not only to penal statutes but to all laws governing fundamental rights and duties. (In re Stewart, 24 Cal.2d 344 [149 P.2d 689], applied to a judgment; In re Leach, 215 Cal. 536, 544 [12 P.2d 3], applied to a statute governing the sale of securities; In re Peppers, 189 Cal. 682 [209 P. 896], applied to a statute governing shipments of oranges. A statute not sufficiently certain is repugnant to the due process clause. (Lanzetta v. New Jersey, 306 U.S. 451 [59 S.Ct. 618, 83 L.Ed. 888].) The plaintiff is thus a person entitled to know by reasonably definite standards when the right here involved may lawfully be withheld.

The term “immoral” has been defined generally as that which is hostile to the welfare of the general public and contrary to good morals. Immorality has not been confined to sexual matters, but includes conduct inconsistent with rectitude, or indicative of corruption, indecency, depravity, dissoluteness ; or as wilful, flagrant, or shameless conduct showing moral indifference to the opinions of respectable members of the community, and as an inconsiderate attitude toward good order and the public welfare. (Words & Phrases, Perm. ed. vol. 20,- pp. 159-160.)

The Legislature did not specify who was to be considered a person of immoral character. Failure of greater specification where restraints on the exercise of fundamental rights are involved, as indicated, may be fatal to the application of the statutory standard or guide. But the omission in the present statute is not fatal to any use of the standard of immorality as a guide. Here it becomes a matter of construction and application conformable to the legislative objective in providing the .various standards. In pursuing the investigation into the legislative objective (Civ. Code, § 4) it is observed that there is no procedure provided for an inquiry into good moral character as a preliminary to the exercise of the declared right. A preliminary inquiry into the general moral character of an applicant for admittance to a public place of amusement, even if feasible, could not have been intended. Cases involving the method of ascertaining the good moral character required of an applicant for a privilege, such as the license to operate the racecourse, are inapplicable.

In providing the standards to guide proprietors in placing restraints on the exercise of the personal right here involved the Legislature was undoubtedly concerned with the safety and welfare of the attending public. The general objective was the protection of others on the premises. As in other matters involving the exercise of the police power, reasonableness is the governing criterion. The statute justifies the denial of the declared right to persons under the influence of liquor and to persons engaging in boisterous conduct. Such conditions ordinarily are obvious. In these respects the standards do not suggest an inquiry beyond visible or readily ascertainable aspects and exclusion on those grounds is reasonable. Similarly reasonable as a ground of exclusion is the commission when applying for or after admittance, of lewd, immoral, or other acts inimical to the public safety or welfare. A determination concerning the then commission of such acts is likewise made from visible and obvious factors. But the private business, the personal relations with others, the past conduct not on the premises, of a person applying for or admitted to the course, whether or not relevant to indicate his character, are immaterial in the application of the statutory standards under the facts of this case.

It may be assumed that the plaintiff might be suspected of illegal gambling activities off the racecourse. The defendant would be justified in taking reasonable precautions to prevent opportunities for the commission of criminal activities on the course. Here, however, there is no evidence whatsoever, and it is not suggested, that the plaintiff while on the course was or ever had engaged in illegal activities or in an attempt to commit a- crime. Under any proper construction and application of the statutory guides, mere suspicion based on past conduct and alleged reputed activities off the course, or on conversations without disclosure of their substance held on the course with persons considered questionable, did not justify the ejection or exclusion of the plaintiff.

Therefore, contrary to the suggestion of amici curiae as to a proper ground for denying injunctive relief, it was not the legislative intent to vest authority in the' proprietor to determine primarily and in every instance what persons or classes of persons should be deemed sufficiently moral to be admitted to the course and thus be permitted to engage in lawful gambling. It could not have been intended that the proprietor should be confronted with the impossible task of determining who among its patrons were sufficiently moral to be permitted to attend and there to engage in lawful on-track gambling and who were sufficiently immoral because of suspected unlawful off-track gambling to justify exclusion from the course. As indicated it is a person’s conduct when entering and attending a public place covered by the sections to which the statutory standards apply. It was neither necessary nor reasonable to go further in order to attain the legislative objective in furnishing the prescribed guides, and it must be concluded that such was the intended extent of their application. A contrary conclusion would be a denial of equal protection and due process. (See also State v. Truby, 211 La. 178 [29 So.2d 758]; State v. Vallery, 212 La. 1095 [34 So.2d 329].)

The foregoing is not intended to foreclose inquiry into the question whether a person justifiably ejected from a racecourse may thereafter be excluded from the same and other courses. Exceptional cases are to be determined on their own facts. On the present record the evidence does not support the findings or the judgment.

The judgment is reversed.

Gibson, C. J., Carter, J., Traynor, J., and Schauer, J., concurred.