Cohen v. Board of Supervisors

Citations: 178 Cal. App. 3d 447; 225 Cal. Rptr. 114; 1986 Cal. App. LEXIS 2668Docket: A015565

Court: California Court of Appeal; February 4, 1986; California; State Appellate Court

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The case involves an appeal regarding the denial of a preliminary injunction against an ordinance from the City and County of San Francisco that regulates escort services, specifically Municipal Police Code sections 1074.1 through 1074.30. This is the second time the appellate court is reviewing the case. In the prior decision, the ordinance was deemed invalid as it was entirely preempted by state law. However, the California Supreme Court later ruled that only two severable components of the ordinance were preempted and did not address additional constitutional arguments regarding the remaining provisions. The Supreme Court remanded the case back to the appellate court, instructing it to consider constitutional issues only if it first determined that the superior court had abused its discretion in denying the preliminary injunction due to the plaintiffs' failure to demonstrate "interim harm."

The ordinance requires that any individual or entity operating an escort service must obtain a permit. An "escort service" is defined broadly to include any business or individual that, for compensation, provides or arranges for individuals to accompany others to various social events or places, while an "escort" is defined as any individual who, for a fee, accompanies others to such events or social settings. The appellate court concluded that the superior court did not abuse its discretion in denying the injunction, thereby refraining from addressing the constitutional arguments.

To obtain an escort service permit, applicants must complete an application providing personal details, addresses, employment history, and criminal conviction records (excluding minor traffic violations). They are required to submit three portrait photographs and proof of age, along with any additional necessary identification. The chief of police can fingerprint applicants and verify the information provided. Employees of escort services also need to secure permits with similar application requirements. A permit must be issued within 14 days after a public hearing unless the operation does not comply with relevant laws or if the applicant has a revoked license, specific criminal convictions, or offenses requiring sex offender registration. Furthermore, both clients and employees must be at least 18 years old. Escort services are mandated to maintain a daily register of employees and patrons, including personal details and service records, which must be available for police and health department inspections for one year. Permits can be revoked after a hearing for violations of the ordinance or refusal of inspections.

In legal proceedings, the granting or denial of a preliminary injunction does not resolve the ultimate rights in question. The trial court has discretion in these decisions, which will not be overturned on appeal unless there is evidence of abuse of discretion. Courts consider two factors: the likelihood of the plaintiff prevailing at trial and the interim harm to the plaintiff if the injunction is denied versus the harm to the defendant if it is granted. A denial of the injunction indicates the court found insufficient evidence on one or both factors.

On appeal, the central issue is whether the trial court abused its discretion regarding two key factors. A finding of abuse in one factor does not preclude affirming the trial court's order if the other factor shows no abuse. The appellate court previously chose not to address the "interim harm" factor, based on precedent that did not dispute this issue. However, the Supreme Court in Cohen clarified that assessing interim harm is essential when the issue is contested. Since the respondents raised this point, the appellate court must evaluate the interim harm factor and can only consider the "likelihood of prevailing on the merits" if an abuse of discretion is found.

The appellants challenge the ordinance on multiple constitutional grounds, claiming it infringes on rights to free speech and association, lacks clear definitions, acts as a prior restraint, intrudes on attorney-client relationships, and grants excessive discretion to law enforcement. They also contest the ordinance's requirements for record-keeping and inspections as violations of privacy rights and unreasonable searches. Challenges also include vague criminal sanctions and equal protection violations for allegedly targeting "escort services."

To obtain a preliminary injunction, plaintiffs must demonstrate irreparable injury, which must be either existing or imminent. Generally, injunctions cannot prevent the enforcement of legitimate public statutes unless the constitutionality is in question. Courts should exercise caution before enjoining the enforcement of an ordinance that has been duly adopted for public morality. In this case, plaintiff Bruce Cohen, as a resident taxpayer, seeks to block illegal public fund expenditures without claiming personal injury from the ordinance, relying solely on taxpayer status for standing, which does not meet the stringent requirements for prejudgment injunctive relief.

Section 526a is designed to be interpreted broadly to allow taxpayers to contest illegal government actions without needing to demonstrate specific harm. Appellants argue that this should lead to a presumption of irreparable injury and favor a preliminary injunction if there is evidence of impending unconstitutional or illegal spending. However, two main reasons counter this argument: first, the Cohen decision requires evaluating interim harm separately from the merits of the case, meaning illegality alone is insufficient for an automatic injunction; second, treating interim harm as a conclusive presumption eliminates the necessary balance of interests, potentially resulting in injunctions in all cases of perceived illegality, regardless of the harm caused. 

The court found that appellants failed to establish a legitimate concern for interim harm, as their fears were speculative. There was no evidence of imminent threats from the ordinance, which had not yet been enforced, nor any documented claims of community distress. The ordinance required patrons and employees to register and provide identification, which the trial court presumably weighed against potential First Amendment impacts. 

Appellant Keegan G. Low claimed personal harm due to uncertainties in how the ordinance might affect his legal practice, particularly concerning referrals from the Bar Association. However, the court dismissed this concern, noting that the ordinance does not regulate legal practices and Captain Philpott, responsible for enforcement, indicated it wouldn't apply to legal referral services unless there was concrete evidence of inappropriate operation.

Respondents presented a declaration from Captain Philpott, who, based on his four years of experience in law enforcement, asserted that most escort services in San Francisco function as fronts for prostitution. He noted that employees of these services often engage in criminal activities, including theft, assault, and murder. Captain Philpott had previously testified to the need for regulating these services, indicating they pose risks of theft, extortion, and bodily harm to clients. The trial court determined that, despite the appellants' claims, there was insufficient evidence of harm to them compared to the potential harm to the city and county if the ordinance enforcement were halted. Consequently, the court denied the appellants' request for a preliminary injunction, affirming the order issued on September 18, 1981. 

However, certain provisions of the ordinance, which prohibited escort services from engaging in criminal activities or aiding violations, were deemed preempted and invalid. The Supreme Court's handling of the case raised questions, such as its failure to address the interim harm issue raised by neither party and its review of the preemption merits without establishing an abuse of discretion. Additionally, the nature of attorney-client meetings was discussed, clarifying that such interactions do not equate to an escort-patron relationship as defined by the ordinance, as attorneys are typically compensated for legal advice rather than companionship. Captain Philpott serves as the commanding officer of the vice crimes division, overseeing prostitution, gambling, and narcotics operations.