Petition — Coleman v. Rice

IN THE

SUPREME COURT

OF THE UNITED STA

October Term, 1977

No. 22 = 5 7 4 7

WILLIAM C, COLEMAN and

ELMER O, LOCKER, JR. dba

THE OTHER BALL,

Petitioners,

vs.

BAXTER RICE, Director of the

Department of Alcoholic Beverage

Control of the State of California,

THE DEPARTMENT OF ALCOHOLIC

BEVERAGE CONTROL OF THE STATE

OF CALIFORNIA, and THE ALCOHOLIC

BEVERAGE CONTROL APPEALS BOARD

OF THE STATE OF CALIFORNIA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

STEPHEN WARREN SOLOMON, INC.

STEPHEN WARREN SOLOMON

RALPH B. SALTSMAN

330 Washington Street, Suite 601

Marina del Rey, California 90291

(213) 822-9848

Attorneys for Petitioners

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1977

No,

WILLIAM C, COLEMAN and

ELMER O, LOCKER, JR. dba

THE OTHER BALL,

Petitioners,

Vs.

BAXTER RICE, Director of the

Department of Alcoholic Beverage

Control of the State of California,

THE DEPARTMENT OF ALCOHOLIC

BEVERAGE CONTROL OF THE STATE

OF CALIFORNIA, and THE ALCOHOLIC

BEVERAGE CONTROL APPEALS BOARD

OF THE STATE OF CALIFORNIA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

STEPHEN WARREN SOLOMON, INC.

STEPHEN WARREN SOLOMON

RALPH B. SALTSMAN

330 Washington Street, Suite 601

Marina del Rey, California 90291

(213) 822-9848

Attorneys for Petitioners

TOPICAL INDEX

Table of Authorities

ORDER BELOW

JURISDIC TION

QUESTIONS PRESENTED

CONSTITUTIONAL PROVISIONS

INVOLVED

STATEMENT OF FACTS

REASONS FOR GRANTING WRIT

APPENDICES

TABLE OF AUTHORITIES

Cases

Connally v. General Constr. Co.,

269 U.S. 385

Dasso v. Bradbury,

39 Cal. App. 2d 712

Davis, In re,

242 Cal. App. 2d 645

Ex Parte Virginia,

100 U.S. 339

Giaccio v. State of Pennsylvania,

382 U.S. 399

Hamling, William v. United States,

418 U.S. 87

In re Davis,

242 Cal. App . 2d 645

Markstein Distributing Company v.

Baxter Rice,

65 Cal. App. 3d 33

Miller v. California,

413 U.S. 15

ii.

Pages

11

11

16, 17

11

17

Murgia v. Municipal Court,

15 Cal. 3d 286

Musser v. Utah,

333 U.S. 95

Yick Wo v. Hopkins,

118 U.S. 336

Constitutions

California Constitution,

Article XX, Section 22

United States Constitution:

Fifth Amendment

Fourteenth Amendment

Federal Statutes

28 U.S.C. 1257(3)

California Laws

Administrative Code, Title IV:

Section 143

Section 143, 2

Section 143.3

iii.

13

12

13, 18

4, 14, 16

4, 5, 14, 16

Business and Professions Code:

Section 23085

Section 24200

Code of Civil Procedure Section 1094. 5(d)

Penal Code:

Section 318.5 13, 14, 15,

Section 318.6 13. 36, Bee

Section 650-1/2

San Gabriel Laws

San Gabriel Municipal Code:

Section 5-20.01 - .04

Section 5-20.02 4, 14,

Section 5-20.05

Section 5-20.07 14,

Section 5-20.08 14,

San Gabriel City Ordinances:

Number 29 C.S. 4,

iv.

16

16

16

16

16

16

13

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1977

No.

WILLIAM C, COLEMAN and

ELMER O. LOCKER, JR. dba

THE OTHER BALL,

Petitioners,

vs.

BAXTER RICE, Director of the

Department of Alcoholic Beverage

Control of the State of California,

THE DEPARTMENT OF ALCOHOLIC

BEVERAGE CONTROL OF THE

STATE OF CALIFORNIA, and THE

ALCOHOLIC BEVERAGE CONTROL

APPEALS BOARD OF THE STATE

OF CALIFORNIA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

The Petitioners, William C. Coleman and

Elmer O. Locker, Jr., dba The Other Ball, pray

that a Writ of Certiorari issue to review the order

1,

of the Court of Appeal rendered July 29, 1977.

ORDER BELOW

The order of the Court of Appeal appears at

Appendix A, infra, p. 19. The Court of Appeal

order was a denial of a petition for writ of review

of the Alcoholic Beverage Control Appeals Board

administrative decision over which the Court of

Appeal had original jurisdiction,

JURISDICTION

The order of the Court of Appeal of

California was entered July 29, 1977. See

Appendix A, p. 19, infra. On August 26, 1977,

the California Supreme Court refused filing of

the matter without written order. This Petition

for Certiorari was filed less than 90 days from

the date aforesaid. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1257(3).

QUESTIONS PRESENTED

1. Whether Article XX, Section 22, of

the California Constitution which prevides for

the denial, suspension or revocation of alcoholic

beverage licenses ‘for good cause that the

granting or continuance of such license would be

contrary to public welfare or morals ...'' is so

2.

vague and overbroad as to deny Petitioners Due

Process of Law.

2. Whether Respondents violated

Petitioners' right to Due Process and the Equal

Protection clause of the Fourteenth Amendment

in denying Petitioners the opportunity to present

evidence on selective and discriminatory enforce-

ment of administrative rules.

3. Whether the conflict between the local

San Gabriel City ordinance (See Appendix B, infra,

p. 20) specifically allowing precisely the enter-

tainment Petitioners provided in their establish-

ment and the statewide administrative rule which

purports to disallow this entertainment constitutes

a deniai of Due Process as Petitioners are

required to speculate as to what the law allows or

disallows in this regard.

CONSTITUTIONAL PROVISIONS

INVOLVED

This Petition presents issues concerning

the Due Process clauses of the Fifth and Four-

teenth Amendments to the United States Constitu-

tion and the Equal Protection clause of the

Fourteenth Amendment to the United States

Constitution.

STATEMENT OF FACTS

The Department of Alcoholic Beverage

Control (hereinafter referred to as the "Dept.

of ABC") filed two separate accusations against

the Petitioners, co-licensees of The Other Ball.

The accusations were based on alleged

violations of parts of Rules 143.2 and

143.3 of Title IV of the California Administrative

Code. The accusations essentially charged

Petitioners in this case with employing topless

waitresses and a topless hostess in the sale of

alcoholic beverages and with permitting female

entertainers to dance while nude.

Petitioners were and are now operating

under a Class I Show License issued by the City

of San Gabriel pursuant to Ordinance No. 29C.S.

Section 5-20.02 of the San Gabriel

Municipal Code requires a person to secure a

Class I Show License if he permits semi-nude

or nude receptionists, waitresses and

dancing girls in any place where alcoholic

beverages are sold.

On March 18, 1976, the Administrative

Law Judge issued a proposed decision finding

the allegations as to each count (violations of

parts of Rules 143.2 and 143.3) in each of the

consolidated cases to be true. He further

determined that, because of the findings of fact

based solely on violations of parts of Rules

143.2 and 143.3, the Petitioners had violated

4.

Article XX, Section 22, and the California Busi-

ness and Professions Code which established

grounds to suspend Petitioners’ license.

On April 22, 1976, the Dept. of ABC

adopted the Proposed Decisions of the hearing

officer dated March 18, 1976.

A timely Notice of Appeal was filed with the

Alcoholic Beverage Control Appeals Board

(hereinafter referred to as the "ABC Appeals

Board"),

Thereafter, a supplementary notice of

appeal and/or motion for remand was filed on

August 12, 1976, based upon newly discovered

evidence which in the exercise of reasonable

diligence could not have been produced at the

hearing before the Department and was essential

to the resolution of the appeal. The newly dis-

covered evidence indicated that the provisions

of Rule 143.3 of the Dept. of ABC were being

discriminatorily or selectively enforced by the

Department against the licensed establishments

in which Mr. Locker held an ownership interest.

The ABC Appeals Board denied the motion

for remand for further hearing (Appeals Board

Decision in File No. 22216; Reg. No. 17969, on

pages 5-8) and affirmed the Dept. of ABC's

decision. Petitioners petitioned the Court of

Appeal for the State of California for a Writ of

Review on July 21, 1977, and on July 29, 1977,

the aforementioned Petition was summarily

denied without a review of the record or the

exhibits.

5.

On August 26, 1977, the Chief Justice of

the California Supreme Court directed the Clerk

not to accept filing of Petitioners' Petition for

Hearing in the California Supreme Court.

REASONS FOR GRANTING THE WRIT

1. Article XX, Section 22, of the

California Constitution is the State's source of

the exclusive right and power of licensing and

regulation of intoxicating liquor by state agencies

and provides in pertinent part that the State:

',.. shall have the power, in its

discretion, to deny or revoke any

specific liquor license if it shall

determine for good cause that the

granting or continuance of such

license would be contrary to public

welfare or morals. "'

The language ''contrary to public welfare

or morals" fails to give adequate notice of what

the law prohibits.

This Court in Musser v. Utah, 333 U.S.

95, 97, 68 S.Ct. 397 (1948), in determining

whether the Utah statute on conspiracy was

unconstitutionally vague in the language ''any

act injurious to the public health, to public

morals ..."' stated:

"Legislation may run afoul of the Due

Process Clause because it fails to

6.

give adequate guidance to those who

would be law abiding, to advise

defendants of the nature of the offense

with which they are charged, or to

guide courts in trying those who are

accused, "

The words "'public welfare and morals" are

no more illuminating in their context in this case

than they were in Musser, supra, and leave the

same serious doubts in the minds of citizens of

California as to what is prohibited by law and

what is allowed.

The rule on constitutional specificity of

statutory language was stated by the Court in

Connally v. General Constr. Co., 269 U.S. 385,

391, 46 S.Ct. 126 (1926):

",.. terms of a penal statute creating

a new offense must be sufficiently

explicit to inform those who are

subject to it what conduct on their

part will render them liable to its

penalties... Anda statute which

either forbids or requires the doing

of an act in terms so vague that men

of common intelligence must neces-

sarily guess at its meaning and differ

as to its application, violates the first

essential of due process of law. "

The California State Supreme Court in

In re Davis, 242 Cal. App. 2d 645, 51 Cal. Rptr.

702 (1966), in striking down Penal Code §650-1/2

as being unconstitutionally vague, discussed the

To

phrase ‘injurious to public morals" as being a

model for statutory language that was uncon-

stitutionally vague.

The Supreme Court in Giaccio v. State of

Pennsylvania, 382 U.S. 399, 404, 86 S.Ct. 518

(1966) dealt with such terms as ‘'misconduct”

and "reprehensible conduct" as a basis for

collection of costs, civil in nature. The Court

noted that it would be ‘‘difficult if not impossible

to prepare a defense against such general abstract

charges.'' The language was found to be void for

vagueness and therefore violative of Due Process.

The State constitutional language is reflected

verbatim inthe statutory scheme as set forth in

Business and Professions Code § 24200:

"Grounds: The following are the

grounds which constitute a basis for

the suspension or the revocation of

licenses:

'(a) When the continuance of a

license would be contrary to public

welfare or morals; but proceedings

under this section upon this ground

are not a limitation upon the depart-

ment's authority to proceed under

Article XX, Section 22, of the

Constitution. "

Neither the California Constitution, nor the

Business and Professions Code provide the

necessary guidelines upon which Petitioners

herein could conform the activity within their

establishment. For this reason, the suspension

8.

of the license in question pursuant to this statute

and state constitutional provisions violates the

Due Process Clause of the United States

Constitution.

2. Respondents violated Petitioners'

right to Due Process and the Equal Protection

Clause of the Fourteenth Amendment to the United

States Constitution in denying Petitioners the

opportunity to present evidence on selective and

discriminatory enforcement of administrative

rules.

The Appeals Board of the Department of

Alcoholic Beverage Control has authority to re-

mand a case pending appeal where the Board

determines that there was relevant evidence

which in the exercise of reasonable diligence

could not be presented at the administrative

hearing.

Business and Professions Code § 23085

provides the statutory procedure and authority

for the Appeals Board to remand cases to the

administrative hearing level to hear newly

discovered evidence as specified above.

Further, in 1945, Code of Civil Procedure

§ 1094.5 was adopted. Subdivision (d) reads,

in pertinent part:

"Where the court finds that there is

relevant evidence which, in the

exercise of reasonable diligence,

could not have been produced or

which was improperly excluded at the

9.

hearing before respondent, it may

enter judgment ... remanding the

case to be reconsidered in the light

of such evidence ..."'

These two code sections demonstrate the

concept that relevant evidence must be heard,

whether the Alcoholic Beverage Control Appeals

Board or the court makes the order of remand.

More importantly, both sections anticipate pre-

cisely the type of events which are at issue

herein.

The Board concluded that Petitioners did

not exercise reasonable diligence in ascertaining

facts to support the allegation of discriminatory

enforcement. The Board noted that Petitioner

Locker received information in March, 1976, and

concluded that filing a Motion for Remand on

August 8, 1976 was not timely.

In the case before the Court, Petitioners

were actively and as diligently as possible pur-

suing the hint of the possibility of discriminatory

enforcement, until such time as sufficient

admissible evidence was adduced to bring the

issue before the Department.

Further delaying the ultimate compilation

of admissible evidence was the fact the Depart-

ment itself held records necessary to the produc-

tion of the evidence of discriminatory or selective

enforcement. It was the Department that held

records of investigation of enterprises similar

to Petitioners' business, and it was not until

July 20, 1976 that the Department allowed counsel

10.

for the Petitioners to review the pertinent files.

Had the Department allowed earlier discovery,

an earlier motion re discriminatory enforcement

would have been made.

The Department had the information in

question in its files.

The evidence in question would establish

a scheme of discriminatory or selective enforce-

ment, which, if proved, would be a total defense.

[See Markstein Distributing Company v. Baxter

Rice, 65 Cal. App. 3d 33, 135 Cal. Rptr. 255

(1976), wherein the Court found no selective

enforcement in the facts, but impliedly recognized

the validity of such a defense if proved. |]

As the Court held in Dasso v. Bradbury,

39 Cal. App. 2d 712 (1940), newly discovered

evidence is admissible if material and if a

different verdict could be reached therefrom.

Such is the case presently before the Court.

In the case before the Court presently, however,

the Department refused to hear such evidence.

The Fourteenth Amendment to the United States

Constitution guarantees equal protection of the

law and prohibits discriminatory enforcement

of the law.

Disallowing the presentation of an accepted

and complete defense to the Department's prosecu-

tion of the accusation is a denial of Due Process.

In 1880, the United States Supreme Court

stated in Ex Parte Virginia, 100 U.S. 339 (1880),

that:

11.

"No agency of the State or of the

officers or agents by whom its

powers are exerted, shall deny to

any person within its jurisdiction

the equal protection of the law."

In Yick Wo v. Hopkins, 118 U.S. 336, 6

S.Ct. 1064 (1886), the Court was concerned with

a San Francisco ordinance which, although fair

on its face, was enforced in a selective, dis-

criminatory fashion. The Court was dealing

with racial discrimination therein, but the

decision stands for the proposition that the law

cannot be administered unfairly and ina dis-

criminatory fashion.

Yick Wo, supra, involved an administrative

entity. When the Court in Yick Wo, supra,

stated:

"Though the law itself be fair on its

face and impartial in appearance, yet

if it is applied and administered by

public authority with an evil eye and

an unequal hand, so as practically to

make unjust and illegal discriminations

between persons in similar circum-

stances, material to their rights, the

denial of equal justice is still within

the prohibition of the Constitution. "

(At page 373.),

it was directing its comments to the administra-

tive agency inthat case. The holding can apply

no less to the administrative agency in the case

herein,

12.

Concerned primarily with the availability

of discovery on the issue of selective enforce-

ment in a criminal matter, the Court in Murgia

v. Municipal Court, 15 Cal.3d 286, 124 Cal.

Rptr. 204 (1975) had to first determine whether

selective enforcement was a valid defense. The

Court stated in no uncertain terms that it was:

"We conclude that such allegations of

a conscious policy of selective enforce-

ment ... are clearly sufficient to

support a claim of invidious discrimi-

nation which is prima facie invalid

under the equal protection clause. "'

Strong evidence of discriminatory and

selective enforcement of Department rules exists.

The trier of fact should have heard and considered

the facts. Denial of this opportunity was a denial

of Due Process of Law and Equal Protection.

3. There is a conflict between the local

San Gabriel City ordinance which allows the very

conduct that the Department of Alcoholic Beverage

Control prohibited and the administrative rules

which prohibit that conduct. Such conflict leaves

petitioners to speculate as to what the law allows

or disaliows.

Rule 143 is in direct conflict with ordinance

29 C.S. of the City of San Gabriel which imple-

ments what is delegated to cities and counties to

regulate under Penal Code § 318.5 and § 318.6.

13.

Rules 143.2 and 143.3 adopted by the .

Dept. of ABC in relevant part prohibit the use

or employment of topless waitresses and

hostesses and nude dancers in establishments :

serving or selling alcoholic beverages and in

effect declare that such conduct is per se

contrary to public welfare or morals and thus

amounts to grounds for the suspension of an

alcoholic beverage license.

by, a county or city, if such ordinance

directly regulates the exposure of the

genitals or buttock of or the breast of

any person who acts as a waiter,

waitress, or entertainer, whether or

not the owner of the establishment in

which the activity is performed employs

or pays any compensation to such

person to perform such activity, in an

establishment which serves food,

beverages or food and beverages

including but not limited to, alcoholic

beverages for consumption on the

premises of such establishment. ...

(Penal Code § 318.5.)

Section 5-20.02 of the San Gabriel

Municipal Code makes it a crime to permit the

use Or display of nude or semi-nude reception-

ists, waitresses, or dancing girls in establish-

ments where alcoholic beverages are sold and/or

served unless a Class I Show License is obtained

from the City Council. This type of license is

not automatically granted upon the payment of

any fees, rather § 5-20.07 and .08 expressly

° mandate two steps before it may be granted if

at all. First they require the Chief of Police

to investigate the applicant, his associates, his

° employees, the conduct of the show, and the

proposed location. Based on this investigation,

the Chief is then required to make a recommenda-

tion to the City Council that the application be

granted if there is no finding by the Chief that the

conduct of the show will not comport with the

public welfare, § 5-20.08.

"Nothing in this code shall invalidate

an ordinance of, or be construed to

prohibit the adoption of an ordinance

. by, a city or county, if such ordinance

relates to any live acts, demonstra-

tions or exhibitions which occur in

. public places, places open to the public,

or places open to view and involve the

exposure of the private parts or buttocks

of any participant or the breasts of any

female participant, and if such ordin-

ance prohibits an act or acts which are

not expressly authorized or prohibited

| , by this code ..."' (Penal Code § 318.6.)

Penal Code §§ 318.5 and 318.6 provide as

follows: The relevant conduct covered in the San

Gabriel Ordinance is the same as the specific

type of behavior covered in Penal Code § 318.5

and § 318.6 - topless or bottomless exposure

by waiters, waitresses and entertainers in

"Nothing in this section shall invali-

date an ordinance of, or be construed

to prohibit the adoption of an ordinance

14, 15.

establishments where alcoholic beverages are

sold for consumption on the premises of such

establishments.

Even though the only crime that can be

committed under § 5-20.02 of the San Gabriel

Municipal Code is the failure of a person who

conducts or permits to be conducted the above-

mentioned activity to obtain a Class I Show

License, the City of San Gabriel has specific

statutory authority to deny a Class I Show

[.icense and thus, in effect, not only regulate,

but also prohibit the display of nude or semi-

nude receptionists, waitresses or dancing girls

in licensed premises through the operation of

§ 5-20.95, § 5-20.07 and § 5-20.08 of the

San Gabriel Municipal Code.

The suspension of appellants' alcoholic

beverage license by the Dept. of ABC for sixty

(60) days based solely on the findings of fact

that petitioners violated certain sections of

Rules 143.2 and 143.3 operated to nullify what

has been permitted by ordinance in the City of

San Gabriel as authorized by Penal Code § 318.5

and § 318.6 and directly conflicts with § 5-20.01

- § 5-20.4 of the San Gabriel Municipal Code as

applied to appellants inthis case. The State

Legislature, through Penal Code § 318.5 and

§ 318.6 and the United States Supreme Court

in William Hamling v. United States, 418 U.S.

87, 41 L.Ed.2d 590, 94 S.Ct. 2887 (1974), has

followed the trend toward local determination of

acceptable social conduct or of what comports

with the public welfare or morals. Penal Code

§ 318.5 and § 318.6 reverse previous preemption

16,

of criminal aspects of sexual activity while the

Supreme Court in Hamling extends the contem-

porary community standard test of obscenity as

established in Miller v. California, 413 U.S. 15,

93 S.Ct. 2607, 37 L. Ed. 2d 4197 (1973).

"The result of the Miller cases,

therefore, as a matter of constitu-

tional law and federal statutory

construction, is to permit a juror

setting in obscenity cases to draw on

knowledge of the community or

vicinage from which he comes in

deciding what conclusion 'the average

person, applying contemporary

community standards' would reach

ina givencase. Since this case

was tried in the Southern District of

California and presumably jurors

from throughout that judicial district

were available to serve on the panel

which tried petitioners, it would be

the standards of that 'community' upon

which the jurors would draw. ..."’

(Hamling v. United States, supra,

418 U.S. at 105 and 106; 41 L.Ed.2d

at 613, 614.)

The U.S. Supreme Court has determined

that contemporary community standards will

define obscenity. The community of San

Gabriel has affirmatively so determined what

conduct and entertainment is allowed in that area.

The question then becomes, does petitioner

follow the San Gabriel ordinance as apparently

17.

mandated by the State legislature, as well as the

U.S. Supreme Court, or the Administrative

Rule 143? When faced with this decision,

petitioner is required to speculate at peril of

his liberty and property as to what is prohibited

and what is allowed, in violation of petitioners'

Due Process guarantees,

CONCLUSION

For the above-stated reasons, this Petition

for Writ of Certiorari should be granted.

Petitioners, further, request oral argument on

this Petition,

Respectfully submitted,

STEPHEN WARREN SOLOMON, INC,

STEPHEN WARREN SOLOMON

RALPH B. SALTSMAN

Attorneys for Petitioner

18,

APPENDIX A

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

WILLIAM C. COLEMAN and )

ELMER O, LOCKER, JR., ) Civil No. 51587

) (Board No, 22216;

Petitioners, ) Reg. 17969

vs. )

) Court of Appeal-

ALCOHOLIC BEVERAGE ) Second Dist.

CONTROL APPEALS BOARD, ) FILED

) Jul 29 1977

) Clay Robbins, Jr.,

)

Clerk

Respondent.

Deputy Clerk

THE COURT:*

The petition for writ of review, filed July 21,

1977, is denied.

*FPILES, P.J., KINGSLEY, J., DUNN, J.

19,

EXHIBIT B

ORDINANCE NO, 29 C.S.

AN ORDINANCE OF THE CITY COUNCIL OF THE

CITY OF SAN GABRIEL AMENDING CERTAIN

SECTIONS OF CHAPTER 20, TITLE 5, OF THE

MUNICIPAL CODE PERTAINING TO SHOWS AND

ENTERTAINMENT, AND SETTING FORTH SECTIONS

CONSTITUTING ITS URGENCY AND REQUIRING

ITS ADOPTION IMMEDIATELY UPON INTRODUCTION,

The City Council of the City of San Gabriel does

hereby ordain as follows:

Section 1. Section 5-20.01 of Chapter 20,

Title 5, entitled ''Definitions" is hereby amended to

read as follows:

"Sec. 5-20.01. Definitions.

For the purposes of this chapter, unless other -

wise apparent from the context, certain words and

phrases used in this chapter are defined as follows:

(a) ‘Alcoholic beverage' shall mean and

include alcohol, spirits, liquor, wine, beer, and

every liquid or solid containing alcohol, spirits,

wine, or beer, and which contains one-half (4)

of one percent or more of alcohol by volume and

which is fit for beverage purposes either alone or

when diluted, mixed, or combined with other

substances,

(b) 'Class 1 Show License' shall mean a

permit from the Council,

20.

(c) 'Entertainment' means any act, play,

burlesque show, revue, pantomime, fashion show,

participated in by one or more employees, guests,

customers, or any other person or persons.

'Entertainment' also includes the use or display

of nude or semi-nude females whether owners,

proprietors, receptionists, waitresses, dancing

girls, models, barmaids or employees or agents,

amateur or professional performers or models,

where hired, retained or displayed by any owner,

permittee, manager, or employee thereof for the

purpose of inducing customers or other persons

to visit, attend, imbibe, or dine upon the premises.

'Nude' as used herein means a person completely

without clothing and 'semi-nude female' means a female

in such attire, costume, or clothing as to expose

to public view any portion of either breast at or below

the areola thereof, or any part of the pubic region

or anal region, or crease of the buttocks of any

such person,"

Section 2. Section 5-20.02 of Chapter 20,

Title 5, of the Municipal Code entitled "Class 1

Show License required" is hereby amended to

read as follows:

"Sec. 5-20.02. Class 1 Show License required.

It shall be unlawful for any person to conduct

or permit to be conducted, shown, staged, performed,

exhibited, or produced in any restaurant, hotel, cafe,

cabaret, club, barroom, beer hall, beer garden,

or any place where any alcoholic beverage is sold

or offered for sale to patrons of such place for

consumption on the premises, any entertainment

consisting of any floor show, act, play, burlesque

21.

show, fashion show, revue, pantomime, scene,

song, the recitation of poetry or doggerel verse Section 4, Section 5-20.09 of Chapter 20,

or rhyme, dance act, or song and dance act, Title 5, of the Municipal Code is hereby amended

participated in by one or more persons, without to read as follows:

first securing a Class 1 Show License from the

Council so to do and paying the application and "Sec, 5-20.09. Class 1 Show License: Fee.

license fees therefor as provided in this chapter.

The license fee for a Class 1 Show License

Exemptions. Entertainment as used herein shall be Twenty- Five Hundred and no/100ths ($2, 500. 00)

does not include: Dollars per year and shall not be prorated for a part

of a calendar year.

(a) Instrumental or mechanical music only.

(b) Public dancing for which a permit has Section 5. The City Council hereby finds

been issued, and declares that it does not intend by this Ordinance

(c) Teenage dances for which a permit has to define or regulate nudity or semi-nudity for the

been issued, purpose of establishing criminal behavior in that

(d) Theaters, but entertainment does include regard, nor to regulate the criminal aspect of

burlesque shows or revues conducted in sexual activity, since the Courts of this State have

halls or theaters as the sole or primary held that the State Legislature has pre-empted this

attraction, "' . field or regulation from cities. The City Council,

however, does declare that it has defined nudity and

Section 3. Section 5-20.05 of Chapter 20, semi-nudity herein for the purpose of defining the

Title 5, of the Municipal Code is hereby amended : degree of nudity requiring a Class 1 Show License.

to read as follows:

Section 6. Statement of Urgency. This

"Sec. 5-20.05. Class 1 Show License: Ordinance is hereby declared to be for the immediate

Application: Fee, preservation of the public peace, health, safety and

welfare and it is hereby enacted as an Urgency

An applicant for a Class 1 Show License shall Ordinance to take effect immediately upon adoption.

pay an application fee in the amount of One Hundred A declaration of the facts constituting this urgency

and no/100ths ($100.00) Dollars. The fee shall be is as follows:

retained by the City whether the license is issued

or denied, If ihe license is granted, the fee shall a. The City Council has heretofore enacted

be applied to the payment of the license fee for the Sec. 5-20.02 of Chapter 20, Title §. of the Municipal

remainder of the calendar year," Code requiring a Class 1 Show License reading as

follows: ‘It shall be unlawful for any person to

° conduct or permit to be conducted, shown, staged,

22.

23.

performed, exhibited, or produced in any restaurant,

hotel, cafe, cabaret, club, barroom, beer hall,

beer garden, or any place where any alcoholic

beverage is sold or offered for sale to patrons of

such place for consumption on the premises, any

floor show, act, play, burlesque show, fashion

show, revue, pantomime, scene, song, the playing

of any musicial instrument, dance act, or song and

dance act participated in by one or more persons with-

out first securing a Class 1 Show License from the

Council so to do and paying the application and license

fees therefor as provided in this chapter.'' However,

no definition of entertainment was heretofore

contained within Sec, 5-20.01 and therefore did

not include the display of the nude or semi-nude

person as a part thereof.

b. That it is becoming increasingly apparent

in surrounding communities that the use of the female

form in a semi-nude state or with breasts bare,

whether as barmaids, waitresses, models, performers,

or receptionists, as a means of entertainment is caus-

ing and requiring all of the permit control that is

legally possible in respect to regulating all types of

entertainment by permit or license,

c. That the establishment of "topless" bars

and restaurants in surrounding communities without

permit regulation has resulted in police enforcement

problems, increase in criminal activity, traffic

congestion, and deteriorated neighborhood communities.

d. That it is necessary, in order to protect

the public peace, health, safety and welfare that

this Ordinance be enacted as an urgency measure

and be adopted immediately following its introduction,

24,

in that i» would be detrimental to the public health,

safety and welfare to have this Ordinance effective

only after two separate readings thereof, at least

five days apart, and thirty days after its adoption.

Section 7. The City Council hereby declares

that it would have passed this Ordinance sentence

by sentence, paragraph by paragraph, and section

by section, and does hereby declare that the provisions

of this Ordinance are severable and if for any reason

any sentence, paragraph, or section of this Ordinance

shall be held invalid, such decision shall not affect

the validity of the remaining parts of this Ordinance.

Section 8. The City Clerk shall certify to the

adoption of this Ordinance and shall cause the same

to be printed and published once in the San Gabriel

Sun, a newspaper of general circulation printed and

published in said City, and shall cause the same to

be posted in three public places in the City as follows:

1. At the entrance to the Council Chamber.

2. On the bulletin board at the Post Office.

3. On the bulletin board at Headquarters

Fire Station.

* * * * *

Passed and adopted by the City Council of the

City of San Gabriel this 21st day of March, 1967.

Helen Achilles, Mayor

City of San Gabriel, California

ATTEST:

Walter A. Wolford, City Clerk

City of San Gabriel, California

25.

Passed and readopted on the 4th day of

April, 1967.

Helen Achilles, Mayor

City of San Gabriel, California

ATTEST:

Walter A, Wolford, City Clerk

City of San Gabriel, California

26.

Ord, No. 29-C.S.

Sec. 5-20.06. Class 1 Show License:

Application: Transmittal to other departments.

The Chief of Police shall transmit every

applicant for a Class 1 Show License to the City

Clerk and to such other City departments as the

Council shall direct.

Sec. 5-20.07. Class 1 Show License:

Application: Investigation.

The Chief of Police shall consider every

application for a Class 1 Show License and make

such investigation as he deems necessary and

require such further evidence as may be necessary

as to the identity and interest of the applicant and of

persons other than the applicant who may be

associated with him as principals or partners,

or who may be in partial or total control of the

establishment to be operated under the license,

The Chief of Police also may require such further

evidence as may be necessary as to the character,

prior conduct, and general fitness of the applicant

and of persons other than the applicant who may

be associated with him as principals or partners,

or who may be in partial or total control over the

place to be operated under the license.

Section 5-20.08. Class 1 Show License:

Application. Recommendation,

If the Chief of Police finds that the conduct

of such show, or the proposed location, will not

comport with the public welfare, or that it will tend

to create a nuisance, or that the character or

reputation of the applicant, its officers, managers,

27.

or employees as to decency or maintenance of

order is bad, the Chief of Police shall recommend

to the Council that the application be denied. Other-

wise, the Chief of Police shall recommend to the

Council that the application be granted.

Sec. 5-20.03. Class 1 Show License:

Application: Form.

An application for a Class 1 Show License

shall specify:

(a) The location for which the license is

requested;

(b) The name and proposed business address

of the applicant; if the applicant is a corporation,

the name and residence address of each of the

officers, directors, stockholders, and persons having

any financial interest in the applicant; or if the

applicant is a partnership, the name and residence

address of each of the members, including limited

partners;

(c) Whether or not the applicant, or any

officer, director, or member of the applicant, as

the case may be, has ever been arrested or has

ever been convicted in any court for any crime;

(d) The names and addresses of the persons

who have authority or control over the place for

which the license is requested and a brief statement

of the nature and extent of such authority or control;

(e) A statement in detail of the kind of act,

play, show, or other act which will be conducted

on the premises.

28.

(f) The hours of operation;

(g) Such information as to management,

authority, and control as the Chief of Police may

require in order to enforce the provisions of this

chapter relating to such place;

(h) Such other information as the Chief of

Police may require; and

(i) The address to which any notice, when

required, shall be sent or mailed.

Sec. 5-20.4 Class 1 Show License:

Application: Verification.

Every application for a Class 1 Show License

shall be made in writing to the Chief of Police on

forms furnished by the Chief of Police and shall be

verified by the oath of the applicant. If the applicant

is a corporation, verification shall be by a duly

authorized officer thereof; if an association or

partnership, by each member thereof; or if a club,

by the person having charge of such club.

29.

APPENDIX C

Rules 143.2 and 143.3 provide as follows:

143.2, Attire and Conduct. The following

acts or conduct on licensed premises are deemed

contrary to public welfare and morals, and there-

fore no on-sale license shall be held at any premises

where such conduct or acts are permitted:

(1) To employ or use any person in the sale

or service of alcoholic beverages in

or upon the licensed premises while

such person is unclothed or in such

attire, costume or clothing as to

expose to view any portion of the

female breast below the top of the

areola or of any portion of the pubic

hair, anus, cleft of the buttocks,

vulva or genitals.

(2) To employ or use the services of any

hostess or other person to mingle with

the partons while such hostess or other

person is unclothed or in such attire,

costume or clothing as described in

paragraph (1) above.

(3) To encourage or permit any person

on the licensed premises to touch,

caress or fondle the breasts, buttocks,

anus or genitals of any other person.

(4) To permit any employee or person to

wear or use any device or covering,

exposed to view, which simulates the

30.

breast, genitals, anus, pubic hair

or any portion thereof,"

ae we

ad -

"143.3, Entertainers and Conduct. Acts

or conduct on licensed premises in violation of this

rule are deemed contrary to public welfare and

morals, and therefore no on-sale license shall be

held at any premises where such conduct or acts

are permitted,

"Live entertainment is permitted on any

licensed premises, except that:

(1) No licensee shall permit any person to

perform acts of or acts which simulate:

(a) Sexual intercourse, masturbation,

sodomy, bestiality, oral copulation,

flagellation or any sexual acts

which are prohibited by law.

(b) The touching, caressing or fondling

on the breast, buttocks, anus or

genitals.

(c) The displaying of the pubic hair,

anus, vulva or genitals.

(2) Subject to the provisions of subdivision

(1) hereof, entertainers whose breasts

and/or buttocks are exposed to view

shall perform only upon a stage at

least 18 inches above the immediate

floor level and removed at least six

feet from the nearest patron.

31.

No licensee shall permit any person to use

artificial devices or inanimate objects to depict any

of the prohibited activities described above.

No licensee shall permit any person to remain

in or upon the licensed premises who exposes to

public view any portion of his or her genitals or

1

anus.