O'CONNOR v. Village Green Owners Assn.

MOSK, J.—I dissent.

Once again a majority of this court undertake to legislate in a field—age preference—in which the Legislature has deliberately and repeatedly refused to act over the past six or more years. Having recently devised a new edict that there can be no age barriers in the business of rentals (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721 [ 180 Cal.Rptr. 496 , 640 P.2d 115 ]), the majority now extend that rule by holding that a nonprofit association of condominium apartment owners is a “business” and therefore subject to the same prohibition against discrimination that is imposed on true business establishments.

The majority are in error on both issues involved in this case. First, age preference has consistently been recognized as valid rather than invidious discrimination, both by the federal government and by the Legislature of California. Second, an association of homeowners—whether their homes are separate premises, or part of one structure as in a condominium apartment—cannot by any stretch of judicial imagination be held to be a business.

On the first point it bears emphasis that the United States Congress has adopted a number of programs to provide housing exclusively for those over 62. (See generally 12 U.S.C. § 1701 et seq., 42 U.S.C. § 1485 et seq.) If an age restriction is valid at age 62, why cannot an age restriction be placed at age 18? Age preference is age preference, regardless of the precise chronological point at which it is placed.

*801 Meanwhile our state Legislature, with knowledge that age preferences have been established in a number of housing developments, and that each was upheld whenever challenged in court (e.g., Ritchey v. Villa Nueva Condominium Assn. (1978) 81 Cal.App.3d 688 [ 146 Cal.Rptr. 695 , 100 A.L.R.3d 231 ]; Flowers v. John Burnham & Co. (1971) 21 Cal.App.3d 700 [ 98 Cal.Rptr. 644 ]), not only failed to add age to the other categories in Civil Code sections 51 and 53 which prohibit discrimination, but emphatically refused to do so whenever age was proposed as an addition to those sections. I fail to understand how my colleagues can arrogate to themselves the right to legislate in an area in which the Legislature has deliberately refused to do so.

Not only has the Legislature declined to outlaw age preferences, as recently as 1976 it placed its approval once again on Civil Code section 1355 which specifically directs, in the case of condominiums, that restrictions be recorded and they “shall be enforceable equitable servitudes where reasonable, and shall inure to and bind all owners of condominiums in the project. Such servitudes, unless otherwise provided, may be enforced by any owner of a condominium . . . . ” The Legislature put only one limitation on the nature of restrictions that may be enforceable: they may not violate Civil Code section 711, which prohibits restraints on alienation. Indeed, the Legislature has preempted the entire field of condominium regulation in Civil Code section 1350 et seq., by adopting a uniform, comprehensive and pervasive means of creating condominium projects and defining the rights and obligations of owners of such projects.

On the second issue, the majority rely on Marina Point, supra, in which a divided court attempted to justify prohibiting age preference in the business of rental housing. In purporting to distinguish—and to permit—some age preferences, the majority’s reasoning in that case seemed to depend on the “particular appurtenances and exceptional arrangements” ( 30 Cal.3d at p. 742 ) for those housing units which are reserved for the elderly. Apparently my colleagues were primarily contemplating the archetypical homes for the aged and infirm—the “old folks’ home.” But their limited exception for the aged overlooked the numerous housing developments for those not elderly, but merely over 45, or over 55, or “senior citizens”—middle-aged or older persons who, in the words of Justice Richardson, dissenting in Marina Point, “having worked long and hard, having raised their own children, having paid both their taxes and their dues to society retain a right to spend their remaining years in a relatively quiet, peaceful and tranquil environment of their own choice” (id., p. 745).

Despite my misgivings in Marina Point, and those of Justice Richardson, I accept its result under compulsion. But Marina Point involved a business, a rental business. It did not affect the rights of individual owners in a condominium, bound together in a voluntary association operating for no profit, *802 for no business purpose, solely for protection of the owner-members. Village Green owns no property; the transformation of such a loosely knit protective association into a “business” is stretching the concept of an entrepreneurial venture beyond all reason.

The Unruh Act (Civ. Code, § 51) provides, in relevant part: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Italics added.)

Although the term “business establishments” is not defined in the foregoing code section, Chief Justice Gibson writing for a unanimous court in Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 468 [ 20 Cal.Rptr. 609 , 370 P.2d 313 ], defined the word “business” as: “ [Everything about which one can be employed and it is often synonymous with ‘calling, occupation, or trade, engaged in for the purpose of making a livelihood or gain. ’ ” (Italics added.) Again in Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 500 [ 86 Cal.Rptr. 88 , 468 P.2d 216 ], this court, in discussing the 1959 amendments to section 51, stated in a unanimous opinion, “there is no indication that the Legislature intended to broaden the scope of section 51 to include discrimination other than those made by a ‘business establishment’ in the course of furnishing goods, services or facilities to its clients, patrons or customers.'' (Italics added.) The foregoing clearly demonstrate that the term “business establishments,” as used in the Civil Code, is intended to apply only to commercial enterprises which serve customers, clients or patrons, and not to organizations which are in no way commercial or profit-seeking, such as a homeowners association.

Marina Point is not inconsistent with the foregoing. The majority opinion therein used the terms “business enterprise,” “business establishment,” or “entrepreneur” in referring to Civil Code section 51 on no less than 22 separate occasions, including the following quotes which clearly reveal the inapplicability of the section to a homeowners association: “As our prior decisions teach, the Unruh Act preserved the, traditional broad authority of owners and proprietors of business establishments to adopt reasonable rules regulating the conduct of patrons or tenants . . . .” ( 30 Cal.3d at p. 725 , italics added.) “As we stated in Cox: ‘In holding that the Civil Rights Act forbids a business establishment generally open to the public from arbitrarily excluding a prospective customer, we do not imply that the establishment may never insist that a patron leave the premises. Clearly, an entrepreneur need not tolerate customers who damage property, injure others or otherwise disrupt his business. ” (Id., p. 737, italics added.) “As these examples demonstrate, the exclusion of individuals from places of public accommodation or other business enterprises covered by *803 the Unruh Act on the basis of class or group affiliation basically conflicts with the individual nature of the right afforded by the act of access to such enterprises. ...[!] As our decisions in Cox, Orloff and Stouman teach, although entrepreneurs unquestionably possess broad authority to protect their enterprises from improper and disruptive behavior, under the Unruh Act entrepreneurs must generally exercise this legitimate interest directly by excluding those persons who are in fact disruptive. Entrepreneurs cannot pursue á broad status-based exclusionary policy that operates to deprive innocent individuals of the services of the business enterprise to which section 51 grants ‘all persons’ access.” (Id., p. 740, italics added.)

A homeowners association, the principal function of which is to perform or arrange for the services an owner of a single family dwelling would normally perform or arrange—such as mowing lawns, fixing defective plumbing, repairing roofs, cutting trees and watering gardens—does not come within the definition of the term “business establishment” as it is used throughout the decision in Marina Point. The association has no patrons, tenants or customers, only dues-paying members; it is in no way entrepreneurial in nature; and it is not open for public patronage. To consider the association a “business enterprise” under the Unruh Act would require the ludicrous holding that the owner-resident of a single family dwelling is engaged in a “business enterprise” when he or she hires a gardener or a plumber.

Again in Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 490 [ 156 Cal.Rptr. 14 , 595 P.2d 592 ], this court emphasized that the Unruh Act represented a codification of the common law barring discrimination “by public accommodations in the provision of services" (italics added) and that other statutes on this subject “are in no sense declaratory of preexisting common law doctrine but rather include areas and subject matters of legislative innovation, creating new limitations.” It followed that the statutory provisions were to be strictly construed, not merely deemed illustrative. There the court was concerned with employment practices, which would seem to be at least a first cousin to housing practices.

It is strange that the concurring opinion relies heavily upon a letter from one legislator to the Governor. That the quotation is from Marina Point is slim rebuttal to the rule this court recently declared in California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 701 [ 170 Cal.Rptr. 817 , 621 P.2d 856 ]: “There are sound reasons underlying the rule against admitting statements of personal belief or intent by individual legislators on the issue of legislative intent . . . there is concern that letters such as those sent to the Governor on the question of signing the bill may never have been exposed to public view so that those with differing opinions as to the bill’s meaning and scope had an opportunity to present their views also. . . . The statement reveals *804 only the author’s personal opinion and understanding and accordingly, is not a proper subject for consideration in determining the Legislature’s intent. . . .” The legislator, of course, was merely 1/120 of the Legislature, which as a body has consistently refused to add age restrictions to either Civil Code sections 51 or 53.

The result in this case is disastrous for the many well-conceived, constructively operated developments in this state limited to persons over a prescribed age. They may not be a major factor in other jurisdictions, but they are particularly significant in California, which has the enticing environment and equable climate to attract many persons of middle and older age. These men and women, many of them having earned their right to retirement in other parts of the country, now make a major contribution to the economy of our state. Their comfort and peace of mind should not be deemed expendable on the altar of judicial creativity.

I would affirm the judgment.

Richardson, J., concurred.