Opinion
WADDINGTON, J.
The district attorney filed a complaint against defendant seeking an injunction, restitution and civil penalties for acts of unfair competition. The bulk of the complaint alleged charges of inadequate record keeping and improper wage payments to employees. Most importantly, on this appeal, the complaint alleged defendant had credited or deducted tips of their employees from their minimum wage, thereby engaging in an act of unfair competition. Plaintiff and defendant filed declarations in the trial court. After a hearing, the court enjoined defendant from crediting tips against wages owed. From that order, defendant filed this appeal.
Appellant contends: (1) respondent seized evidence without a warrant in violation of the Fourth Amendment to the United States Constitution and article I, section 13, of the California Constitution; (2) the Labor Code precludes filing a complaint alleging unfair competition; (3) the Labor Code authorizes an employer to deduct tips against the minimum wage.
Facts
On August 7, 1978, Investigator Galindo from the State Department of Industrial Relations, Division of Labor Standards Enforcement (hereafter Division), entered the restaurant premises owned by respondent to determine compliance with Labor Code laws and to inspect
business records.
Galindo encountered the manager, one Neal Meyers.
After Galindo identified himself, a colloquy ensued between them regarding the purpose of the visit. The parties dispute the legal effect of the conversation, to be discussed
infra,
but in any event the manager directed Galindo to contact the bookkeeper for further information in the records. The bookkeeper cooperated with Galindo and furnished him evidence of employee records. Thereafter, Galindo made a second and third trip to the restaurant and obtained additional evidence without objection. From these records information was used in support of the complaint and offered in evidence at the hearing. At no time did Galindo act pursuant to a search warrant, an inspection warrant nor judicial order.
I
Appellant contends the search of the records conducted without prior judicial authority violates the Fourth Amendment of the United States Constitution and its state counterpart, article I, section 13, of the California Constitution. Because the search is essentially administrative in nature, a warrant is arguably required under the doctrines announced by the United States Supreme Court in
Camara
v.
Municipal Court
(1967) 387 U.S. 523 [18 L.Ed.2d 930, 87 S.Ct. 1727], and
See
v.
Seattle
(1967) 387 U.S. 541 [18 L.Ed.2d 943, 87 S.Ct. 1737, 1741]. In each of these cases, the Supreme Court held that governmental agencies must obtain a warrant to search private residences for building code violations or private portions of premises not open to the public to determine fire code violations unless such business is closely regulated.
(Marshall
v.
Barlow’s, Inc.
(1978) 436 U.S. 307 [56 L.Ed.2d 305, 98 S.Ct. 1816].) While a sanitation or health inspection of a restaurant facility might dispose of the need for a warrant on an emergency theory,
entry and search for business records would ordinarily not invoke the emergency exception. Under normal circumstances, therefore, the office of a restaurant does not differ significantly from any other privately owned business open to the public.
' An exception to the warrant requirement exists if an authorized party voluntarily consents to a search without a warrant.
(People
v.
James
(1977) 19 Cal.3d 99 [137 Cal.Rptr. 447, 561 P.2d 1135].) Under settled constitutional principles, a party may waive the warrant requirement and consent to a search if the waiver is voluntary, authorized properly and solicited without threat, coercion or fraud.
(Bumper
v.
North Carolina
(1968) 391 U.S. 543 [20 L.Ed.2d 797, 88 S.Ct. 1788].) No question exists that the manager of the respondent lacked authority to consent. The central issues are: voluntariness of the consent and absence of threats. The burden is on the prosecution to establish each of these prerequisites.
(People
v.
James, supra,
19 Cal. 3d 99.)
Galindo testified he arrived at the location and identified himself. What occurred thereafter is set forth in the margin.
While the record is not altogether clear, the tenor of the testimony supports the voluntariness of the consent. Apparently the manager
was extremely busy with restaurant affairs and disinclined to discuss mundane record keeping matters. This interpretation is corroborated by his direction to Galindo to contact the most obvious person to answer his questions—the bookkeeper. After this directive, Galindo obtained
the necessary information without any objection. Witnesses for appellant testified, denying they consented to the search. Moreover, testimony was offered that Galindo threatened them with criminal penalties if they refused. Galindo denied any threats in a counterdeclaration. The trial court concluded that “in the matter of the search, there is, I believe, credible evidence which persuades me, at least for the purposes of this hearing, that it was a legal search.” While this conclusion is not specifically a finding of fact, the court obviously elected to accept the testimony of Galindo.
This court is bound by the implied factual finding of consent and the evidence supports that conclusion. Although the trial court did not actually observe the witnesses in court because all testimony was offered by deposition and declaration, the factual dispute demanded resolution of the conflict. “‘On appeal, all presumptions favor the exercise of that power, and the trial court’s findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.’”
(People
v.
Rios
(1976) 16 Cal.3d 351, 357 [128 Cal.Rptr. 5, 546 P.2d 293].)
II
Appellant contends that Business and Professions Code section 17200* *****
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Opinion
WADDINGTON, J.
The district attorney filed a complaint against defendant seeking an injunction, restitution and civil penalties for acts of unfair competition. The bulk of the complaint alleged charges of inadequate record keeping and improper wage payments to employees. Most importantly, on this appeal, the complaint alleged defendant had credited or deducted tips of their employees from their minimum wage, thereby engaging in an act of unfair competition. Plaintiff and defendant filed declarations in the trial court. After a hearing, the court enjoined defendant from crediting tips against wages owed. From that order, defendant filed this appeal.
Appellant contends: (1) respondent seized evidence without a warrant in violation of the Fourth Amendment to the United States Constitution and article I, section 13, of the California Constitution; (2) the Labor Code precludes filing a complaint alleging unfair competition; (3) the Labor Code authorizes an employer to deduct tips against the minimum wage.
Facts
On August 7, 1978, Investigator Galindo from the State Department of Industrial Relations, Division of Labor Standards Enforcement (hereafter Division), entered the restaurant premises owned by respondent to determine compliance with Labor Code laws and to inspect
business records.
Galindo encountered the manager, one Neal Meyers.
After Galindo identified himself, a colloquy ensued between them regarding the purpose of the visit. The parties dispute the legal effect of the conversation, to be discussed
infra,
but in any event the manager directed Galindo to contact the bookkeeper for further information in the records. The bookkeeper cooperated with Galindo and furnished him evidence of employee records. Thereafter, Galindo made a second and third trip to the restaurant and obtained additional evidence without objection. From these records information was used in support of the complaint and offered in evidence at the hearing. At no time did Galindo act pursuant to a search warrant, an inspection warrant nor judicial order.
I
Appellant contends the search of the records conducted without prior judicial authority violates the Fourth Amendment of the United States Constitution and its state counterpart, article I, section 13, of the California Constitution. Because the search is essentially administrative in nature, a warrant is arguably required under the doctrines announced by the United States Supreme Court in
Camara
v.
Municipal Court
(1967) 387 U.S. 523 [18 L.Ed.2d 930, 87 S.Ct. 1727], and
See
v.
Seattle
(1967) 387 U.S. 541 [18 L.Ed.2d 943, 87 S.Ct. 1737, 1741]. In each of these cases, the Supreme Court held that governmental agencies must obtain a warrant to search private residences for building code violations or private portions of premises not open to the public to determine fire code violations unless such business is closely regulated.
(Marshall
v.
Barlow’s, Inc.
(1978) 436 U.S. 307 [56 L.Ed.2d 305, 98 S.Ct. 1816].) While a sanitation or health inspection of a restaurant facility might dispose of the need for a warrant on an emergency theory,
entry and search for business records would ordinarily not invoke the emergency exception. Under normal circumstances, therefore, the office of a restaurant does not differ significantly from any other privately owned business open to the public.
' An exception to the warrant requirement exists if an authorized party voluntarily consents to a search without a warrant.
(People
v.
James
(1977) 19 Cal.3d 99 [137 Cal.Rptr. 447, 561 P.2d 1135].) Under settled constitutional principles, a party may waive the warrant requirement and consent to a search if the waiver is voluntary, authorized properly and solicited without threat, coercion or fraud.
(Bumper
v.
North Carolina
(1968) 391 U.S. 543 [20 L.Ed.2d 797, 88 S.Ct. 1788].) No question exists that the manager of the respondent lacked authority to consent. The central issues are: voluntariness of the consent and absence of threats. The burden is on the prosecution to establish each of these prerequisites.
(People
v.
James, supra,
19 Cal. 3d 99.)
Galindo testified he arrived at the location and identified himself. What occurred thereafter is set forth in the margin.
While the record is not altogether clear, the tenor of the testimony supports the voluntariness of the consent. Apparently the manager
was extremely busy with restaurant affairs and disinclined to discuss mundane record keeping matters. This interpretation is corroborated by his direction to Galindo to contact the most obvious person to answer his questions—the bookkeeper. After this directive, Galindo obtained
the necessary information without any objection. Witnesses for appellant testified, denying they consented to the search. Moreover, testimony was offered that Galindo threatened them with criminal penalties if they refused. Galindo denied any threats in a counterdeclaration. The trial court concluded that “in the matter of the search, there is, I believe, credible evidence which persuades me, at least for the purposes of this hearing, that it was a legal search.” While this conclusion is not specifically a finding of fact, the court obviously elected to accept the testimony of Galindo.
This court is bound by the implied factual finding of consent and the evidence supports that conclusion. Although the trial court did not actually observe the witnesses in court because all testimony was offered by deposition and declaration, the factual dispute demanded resolution of the conflict. “‘On appeal, all presumptions favor the exercise of that power, and the trial court’s findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.’”
(People
v.
Rios
(1976) 16 Cal.3d 351, 357 [128 Cal.Rptr. 5, 546 P.2d 293].)
II
Appellant contends that Business and Professions Code section 17200* *****
8cannot support the alleged unfair business practices recited in the complaint and that Labor Code sections 1171 through 1179
provide the exclusive remedy to recover unpaid minimum wages. In
People
v.
McKale
(1979) 25 Cal.3d 626 [159 Cal.Rptr. 811, 602 P.2d 731], the district attorney filed complaints alleging unlawful competition against the defendant for claimed violations of the Mobile Home Parks
Act.
In reversing a judgment entered upon a demurrer sustained against the People, the court held: “Unfair competition is defined to include ‘unlawful, unfair or fraudulent business practice and unfair, deceptive, untrue or misleading advertising.’ (Bus. & Prof. Code, § 17200.) California courts have consistently interpreted such language broadly. An ‘unlawful business activity’ includes ‘“anything that can properly be called a business practice and that at the same time is forbidden by law.”’
(Barquis
v.
Merchants Collection Assn.
(1972) 7 Cal.3d 94, 113 [101 Cal.Rptr. 745, 496 P.2d 817].) The Legislature ‘intended ... to permit tribunals to enjoin on-going wrongful business conduct in whatever context such activity might occur.’
(Id.
at p. 111.)”
(People
v.
McKale,
supra, 25 Cal.3d 626, 631-632.)
In responding to a similar contention asserted by appellant here, the court said: “The district attorney is expressly authorized to maintain a civil action for either injunctive relief or civil penalties for acts of unfair competition (Bus. & Prof. Code, §§ 17204, 17206). Business and Professions Code section 17205 also provides that remedies and penalties available in an unfair competition action are cumulative to remedies and penalties available under other state laws, unless otherwise expressly provided.”
(Id.
at p. 633.)
The clear language of the Business and Professions Code prohibiting unfair competition authorizes filing of a complaint for unfair competition supplementary to any other provision of the law. That the Labor Code provides similar relief against unlawful labor practices cannot foreclose cumulative remedies under the Business and Professions Code if the alleged misconduct does indeed constitute an unfair business practice. (See III.)
Ill
Appellant contends that crediting tips against minimum wages does not violate the provision of Labor Code section 351: “No employer or agent shall [1] collect, take, or receive any gratuity or a part thereof, paid, given to or left for an employee by a patron, or [2] deduct any amount from wages due an employee on account of such gratuity, or [3] require an employee to credit the amount, or any part thereof, of such gratuity against and as a part of the wages due the employee from
the employer. Every such gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for”
The identical argument was rejected by the California Supreme Court in
Industrial Welfare Com.
v.
Superior Court
(1980) 27 Cal.3d 690, 729-730 [166 Cal.Rptr. 331, 613 P.2d 579]: “The employers contend that the IWC has misinterpreted the effect of the 1975 amendment to section 351, asserting that while the Legislature intended by such amendment to prohibit the IWC from allowing employers directly to deduct from an employee’s wages tips that an employee actually receives, the Legislature did not intend to prohibit the commission itself from indirectly achieving a somewhat comparable result by establishing a lower minimum wage for tipped employees. Although the tip credit practice sanctioned by the IWC in the past may have engendered particular abuse because individual employers exacted credit from their employees on an individual basis, we think that the legislative history of the 1975 bill supports the IWC’s conclusion that the Legislature contemplated that the enactment would insure that tips received by an employee would not reduce an employer’s minimum wage obligation, either directly or indirectly. [1f] For example, an analysis of the 1975 bill by the Senate Industrial Relations Committee specifically states: ‘The effect of this bill would be to require employers to pay employees at least the minimum wage regardless of the amount of tips the employees receive.’ Similarly, a memorandum on the legislation drafted by the Assembly Labor Relations Committee states in part: ‘The basis for this legislation would appear to be that tips or gratuities are given for individual excellence of service above and beyond the basic duties of employment, and as such, the employer has no vested right to consider tips a part of wages.’ In light of the legislative history, the. IWC could reasonably interpret the amendment of section 351 as a legislative determination that all employees should be guaranteed a minimum wage that is not reduced by virtue of any tips an employee may possibly receive. As already noted, the commission’s interpretation of the statutes which it administers is entitled to great weight, and, in our view, the employers have not demonstrated a sufficient basis for rejecting the commission’s interpretation of this provision.”
Appellant here has cited
Cal. Drive-In Restaurant Assn.
v.
Clark
(1943) 22 Cal.2d 287 [140 P.2d 657, 147 A.L.R. 1028].
McKale
not only cites the
California Drive-In
decision as supportive of its decision but adopts its rationale.
Improperly crediting tips against a minimum wage skews employee benefits such as vacation or sick time; inaccurately reflects income for federal and state income tax purposes; avoids payment of additional wages for overtime and split shifts. That the employees of appellant received better than average tips, according to appellant, which are partially reported, does not alter the above factors. Such a practice clearly violates California law and constitutes an unfair business practice within the meaning of the statute.
Order affirmed.
Lillie, Acting P. J., and Hanson (Thaxton), J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied September 10, 1981.