Barry v. City of Oceanside

Citations: 107 Cal. App. 3d 257; 165 Cal. Rptr. 697; 1980 Cal. App. LEXIS 1963Docket: Civ. 22322

Court: California Court of Appeal; June 19, 1980; California; State Appellate Court

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Betty Barry and Larry Cohen, operating as Fun House Adult Book Store, appeal a judgment that denied their administrative mandamus petition after the City of Oceanside revoked their business license. The revocation stemmed from multiple arrests for lewd conduct occurring in the store's arcade booths, which were licensed under a peep show ordinance. The City initiated the revocation process due to concerns that the bookstore's operations threatened public health, welfare, and safety as outlined in section 15.3(18) of the Oceanside City Code. Following a hearing, the city manager approved the revocation, which was later upheld by the Oceanside City Council. Petitioners argue that the ordinance is unconstitutional, citing the Perrine v. Municipal Court case that deemed similar regulations unconstitutional for lacking clear guidelines and infringing on First Amendment rights. They emphasize that while their business is subject to regulation, any such regulation must not infringe upon activities protected by the First Amendment and should provide definite standards for enforcement. Since posting warnings to patrons, the number of arrests has decreased, and stays have allowed the business to continue operating.

Censorship risks associated with vague regulatory standards necessitate the voiding of such regulations, even without evidence of actual discrimination. Excessive discretion granted to officials is unconstitutional, particularly when it involves granting or denying permits for First Amendment activities. The city argues it acted within its police powers to close a business due to its status as a public nuisance, relying on precedent involving a roller skating rink where a permit was denied based on public welfare concerns. The court found that, unlike the skating rink case, the bookstore situation involves First Amendment rights, which require stricter scrutiny. While municipalities have broad powers to regulate for public health and safety, licensing ordinances that affect First Amendment activities must withstand intense scrutiny. The presence of discretion in licensing does not automatically invalidate the ordinance if it is guided by the requirement for reasoned judgment. Reasonable regulations on economic enterprises, including theaters, can be imposed by municipalities, provided they do not conflict with general laws.

The constitutionality of an ordinance regulating the licensing of businesses under the First Amendment was analyzed in Burton v. Municipal Court (1968). The case involved the licensing of motion picture exhibitors, with the court emphasizing that regulations must be precise and objectively measurable. The ordinance permitted the licensing agency to deny permits based on vague standards related to public peace, health, safety, and morals, which the court found overly broad. These broad standards risked infringing upon free speech rights by allowing subjective interpretations of what constitutes 'indecent' or 'offensive' content. 

Specifically, section 103.31(b), which allows denial of permits for businesses deemed public nuisances, was criticized for its vagueness, as it did not provide clear criteria for what constitutes a public nuisance, potentially granting excessive discretion to the licensing agency. The definitions of nuisance from the Civil Code highlighted the imprecision, as they could encompass a wide range of subjective opinions that do not align with constitutional standards. 

The court referenced Burton's assertion that information communicated through First Amendment activities cannot be classified as a public nuisance, noting that the activities in question, such as sexual amusement, are not crimes and thus cannot be deemed nuisances under the provided circumstances. The ruling establishes that Burton's principles apply to cases where licensing impacts First Amendment activities, asserting that the ordinance cannot be constitutionally enforced against the businesses involved in this case.

The ordinance in question is deemed unconstitutionally vague, overbroad, and a prior restraint on First Amendment rights. While illegal sexual acts and indecent exposure by customers are not condoned, the governing board is required to clearly define what constitutes a 'public nuisance' to justify denying a license, which the Oceanside City Council has failed to do. Under stare decisis, the court is bound by prior rulings in Burton and Perrine, despite any dissatisfaction with the outcomes. The law provides mechanisms for addressing nuisances through indictment, civil suits, or clearer municipal definitions of public nuisance. Given the ruling that the ordinance violates constitutional rights, further consideration of whether to proceed under a different ordinance or the severity of the remedy is unnecessary. The judgment is reversed, directing the issuance of a peremptory writ of mandate. Additionally, the text notes that there is no legal precedent for closing a bookstore or theater based on obscenity findings, as such actions represent an unconstitutional prior restraint under the First and Fourteenth Amendments.