People Ex Rel. Van De Kamp v. American Art Enterprises, Inc.

75 Cal. App. 3d 523, 142 Cal. Rptr. 338, 1977 Cal. App. LEXIS 2032

• Court: California Court of Appeal
• Decided: November 30, 1977
• Docket: Civ. 48235
• Status: Published

Opinions

Opinion

THOMPSON, J.

This appeal presents issues of apparent first impression. We are called upon to determine: (1) the applicability of California’s Red Light Abatement Law (Pen. Code, §§ 11225-11235) to premises occupied by a publisher and used for the storage and distribution of printed matter conceded to be not obscene; and (2) the scope of injunctive relief permissible if the law is applicable. Based upon a record which establishes that the premises used for publication are also “a nerve center” for prostitution related to publication, we conclude that the Red Light Abatement Law applies. We conclude further that injunctive relief pursuant to the law must be limited in scope so that infringement upon First Amendment protection is no greater than that which government proves essential to prevention of the use of the premises to promote prostitution.

Because the trial court determined that despite its finding that the premises were a prostitution “nerve center” the Red Light Abatement Law did not apply and did not make findings on the factual predicate for extent of applicability despite evidence that conclusively supports an injunction limited in scope, we reverse a judgment for defendants in the case at bench.

Facts¹

A building on Lassen Street in Chatsworth, California, is used as the headquarters of various entities constituting a corporate empire engaged in the publication and distribution of pornographic materials. The editorial, publication, administration, art, and photographic development activity of the entities are housed in 20,000 square feet of the 120,000-square foot building with the remainder devoted to storage of books, magazines, and photographs. One-third of the stored material consists of photographs of explicit sexual activity, one-third photographs of simulated sex, and one-third printed material without photographs. At least 100 people are employed on the premises.

American Art Enterprises, the umbrella entity, employs staff photographers. Working from the Lassen Street headquarters, those photographers, through model agencies, engage the services of men and women who perform sexual intercourse in every conceivable variant, and who are photographed in their activity. The photographed activity does not occur in the Lassen Street building. Male models are paid an average of $35 for .their services, and female models $50. The photographs are taken for use in publications of American Art and its associated companies. A typical example of the use and payment of models is described in People v. Fixler (1976) 56 Cal.App.3d 321 [128 Cal.Rptr. 363], The Fixler situation has been repeated hundreds of times at the instance of photographers operating from the Lassen Street building.

Proceedings in Trial Court

Acting pursuant to Penal Code sections 11225 and 11230, the District Attorney of Los Angeles County filed a complaint seeking closure of the Lassen Street building to abate a statutory nuisance as defined in those sections. The trial court found that the building is used as a “nerve center” for prostitution, amplifying that finding with others concerning the detail of the use of the building to secure the performance of sexual activity for hire. The court concluded, however, that the premises are not “used for the purpose of prostitution,” as that term is employed in Penal Code section 11225, and that a building used for publication and distribution of books and magazines is not subject to the Red Light Abatement Law.

Nature of Appeal

This appeal by the district attorney followed. The district attorney emphasizes at the outset that the case at bench does not involve obscenity. We are required, therefore, to consider it in the context that the publishing activity at the Lassen Street building is constitutionally protected.

Red Light A batement Law

Penal Code section 11225 states: “Every building or place used for the purpose of. . . lewdness, assignation, or prostitution, and every building or place in . ¡ . which acts of . . . lewdness, assignation, or prostitution, are held to occur, is a nuisance which shall be enjoined, abated and prevented, whether it is a public or private nuisance.” The section is worded to define as a nuisance places “used for the purpose of prostitution” as well as places where “acts of prostitution” occur. Hence, premises where acts of prostitution are arranged to be consummated elsewhere are subject to abatement under the law. (People v. Barbiere (1917) 33 Cal.App. 770 [166 P. 812]; People v. McGonigle (1942) 56 Cal.App.2d 17 [132 P.2d 7].)

Penal Code section 11230 provides: “If the existence of a nuisance is established in an action as provided in this article, an order of abatement shall be entered as a part of the judgment in the case, directing the removal from the building or place of all fixtures . . . and movable property used in conducting, maintaining, aiding or abetting the nuisance, and directing the sale thereof. . . and the effectual closing of the building or place against its use for any purpose, and that it be kept closed for a period of one year, unless sooner released.” While worded in mandatoiy terms, section 11230 is construed as not requiring the closure of a building found to be a statutory nuisance or the removal and sale of property located in it. Rather, the trial court adjudicating the complaint to establish the existence of the statutory nuisance is treated as vested with a broad discretion to fashion an appropriate remedy for abatement. (Selowsky v. Superior Court of Napa Co. (1919) 180 Cal. 404 [181 P. 652].)

The sexual intercourse for hire by the models whose activity is photographed for the publications of the American Art empire is prostitution. (People v. Fixler, supra, 56 Cal.App.3d 321.) The findings of the trial court to the effect that the Lassen Street building is the “nerve center” for arranging the hundreds of acts of prostitution establishes that the building is a place used for the purpose of prostitution.

Thus, absent a constitutional restriction, the Lassen Street building is subject to the provisions of the Red Light Abatement Law. The provisions permit a broad scope of injunctive relief designed to abate the use of the building for the proscribed purpose.

Constitutional Restriction

There is a necessary tension in application of the Red Light Abatement Law to premises used for constitutionally protected publication. Resolution of that tension depends upon the extent to which the application restrains speech or press itself as contrasted with restraining conduct related to speech.

Where governmental activity designed to prevent a social evil by restraint upon speech or press itself collides with the First Amendment and article I, section 2 of the California Constitution² in a fashion where either freedom of speech and press or the activity of government necessarily must yield, the constitutional guarantees prevail. In the words of the United States Supreme Court: “The First Amendment would ... be a hollow promise if it left government free to destroy or erode its guarantees by indirect restraints so long as ho law is passed that prohibits free . . . press .... We have . . . repeatedly held that laws which actually affect the exercise of [this] vital [right] cannot be sustained merely because they were enacted for the purpose of dealing with some evil within the State’s legislative competence, or even because the laws do in fact provide a helpful means of dealing with such an evil.” (Mine Workers v. Illinois Bar Assn. (1967) 389 U.S. 217, 222 [19 L.Ed.2d 426, 430, 88 S.Ct. 353].)

The rule of primacy of the First Amendment has been applied in California to invalidate an attempt at prior restraint of speech and press disguised as abatement of nuisance in the form of obscenity. (People ex rel. Busch v. Projection Room Theater (1976) 17 Cal.3d 42 [130 Cal.Rptr. 328, 550 P.2d 600], cert, den., 429 U.S. 922 [50 L.Ed.2d 289, 97 S.Ct. 320] sub nom. Van De Kamp, District Attorney of Los Angeles County v. Projection Room Theater.) The principle prohibits the denial of a license to operate a book store because of prior activity in distribution of obscenity. (Perrine v. Municipal Court (1971) 5 Cal.3d 656 [97 Cal.Rptr. 320, 488 P.2d 648], cert, den., 404 U.S. 1038 [30 L.Ed.2d 729, 92 S.Ct. 710] sub nom. Municipal Court of East Los Angeles Judicial District, County of Los Angeles v. Perrine.)

Where, however, application of governmental restriction designed to regulate socially evil conduct rather than speech or press itself creates an indirect tension with the First Amendment and its California equivalent, a different principle applies. Then, “[the] 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.” (United States v. O’Brien (1968) 391 U.S. 367, 377 [20 L.Ed.2d 672, 680, 88 S.Ct. 1673]; see also Crownover v. Musick (1973) 9 Cal.3d 405, 422-423 [107 Cal.Rptr. 681, 509 P.2d 497], cert, den., 415 U.S. 931 [39 L.Ed.2d 489, 94 S.Ct. 1443] sub nom. Owen v. Musick, Sheriff.)

Thus the special interest of the state in controlling the sale of alcoholic beverages (California v. LaRue (1972) 409 U.S. 109 [34 L.Ed.2d 342, 93 S.Ct. 390]) validates action under the Red Light Abatement Law closing a bar for lewd conduct of its dancers, arguably symbolic expression but incidental only to a primary purpose of expanding sales of alcohol. (People ex rel. Hicks v. Sarong Gals (1974) 42 Cal.App.3d 556 [117 Cal.Rptr. 24].)

Application to Case at Bench

The governing constitutional principles distill to two propositions particularly apt here. Because the publishing activity conducted at the Lassen Street building constitutes virtually the sole purpose for which the building is used and it is conceded that obscenity is not involved, closure of the building and removal of property from it is an unconstitutional prior restraint upon protected speech and press itself. (People ex rel. Busch v. Projection Room Theater, supra, 17 Cal.3d 42, 59; cf. Art Theater Guild, Inc. v. Ewing (1975) 421 U.S. 923 [44 L.Ed.2d 82, 95 S.Ct. 1649] dismissing an appeal for want of a substantial federal question rejected by the California Supreme Court in Projection Room Theater.) Nevertheless, conduct connected with the publishing activity may be regulated to the extent regulation furthers an important or substantial governmental interest unrelated to speech or press and if the restriction upon freedom of speech and press incidental to the regulation is no greater than is essential to the furtherance of that interest.

Prostitution and its related commercial endeavor of pandering may be prohibited to further a substantial governmental interest. (People v. Osuna (1967) 251 Cal.App.2d 528, 532 [59. Cal.Rptr. 599].) The governmental interest in preventing that conduct is unrelated to speech or press. Granted that the burden is on the state to prove here that regulation of the prohibited conduct does not create an incidental infringement upon First Amendment rights which is “greater than [that] essential to vindicate its . . . interests” (Bursey v. United States (9th Cir. 1972) 466 F.2d 1059, 1083), the record establishes conclusively that some regulation pursuant to the Red Light Abatement Law is appropriate.

Because of the broad scope of injunctive relief available pursuant to the Red Light Abatement Law, the court could, for example, have enjoined use of the premises to arrange ácts of prostitution. Conceivably broader injunctive relief is appropriate depending upon findings of fact concerning the necessity of the relief and its impact upon publishing activity. Because the trial court concluded that the Red Light Abatement Law was not applicable at all and that the premises were not used for the purpose of prostitution, the necessary findings were not made.

Disposition

The judgment is reversed. Appellant-People also appeal from an order dissolving a preliminary injunction and from a “post judgment order” denying a motion to vacate the judgment and enter a new one. Because the passage of time since the preliminary injunction was dissolved renders further proceedings in the trial court more appropriate than action by this court reinstating the injunction in its original form, the order dissolving the preliminaiy injunction is affirmed. The appeal from the “post judgment order” is dismissed.

Lillie, Acting P. J., concurred.

1 We eschew the appeal to prurient interest contained in the detail of sexual conduct in the fact statement of the concurring and dissenting opinion.

2 The California guarantee is more inclusive than the First Amendment. (Wilson v. Superior Court (1975) 13 Cal.3d 652, 658 [119 Cal.Rptr. 468, 532 P.2d 116].)