Petition for Writ of Certiorari — Hotel & Motel Ass'n v. City of Oakland

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1) Supreme Court,U.8. °

- FILE®

03 1405 APR 01 2004

No. 03-

IN THE

Supreme Court of the Gnited States

HOTEL & MOTEL ASSOCIATION OF OAKLAND, et al.,

Petitioners,

CITY OF OAKLAND, et al.,

Respondents.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

FRANK A. WEISER CARTER G. PHILLIPS*

ATTORNEY AT LAW PAUL J. ZIDLICKY

3460 Wilshire Boulevard CASSIDY KESLER PINEGAR

Suite 903 - SIDLEY AUSTIN BROWN &

Los Angeles, California 90010 WOOD LLP

(213) 384-6964 1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

Counsel for Petitioners

April 1, 2004 * Counsel of Record

SO RRO ERR EE NNEC ERRATA RN

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001

QUESTION PRESENTED

Whether the court of appeals properly refused to apply this

Court’s decision in City of Chicago v. Morales, 527 U.S. 41

(1999), to address a facial constitutional challenge to a city

ordinance and instead applied a conflicting standard reflected

in United States v. Salerno, 481 U.S. 739 (1987).

(1)

- on

LIST OF PARTIES AND AFFILIATES

The parties to the proceedings in the Ninth Circuit are listed

in Appendix A at Pet. App. la.

Pursuant to Rule 29.6 of the Rules of this Court, petitioner

Hotel and Motel Association of Oakland states that it has no

parent corporation and it has issued no publicly held stock.

TABLE OF CONTENTS

STATEMENT OF THE CASE ..uuw..cccccscscscececsssscsceseees

A. City Of Oakland Ordinances No. 12136 And

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B. Petitioner’s Vagueness Challenge ................6060-.

C. The District Court’s Decision.............................

THE DECISION BELOW WARRANTS FURTHER

REVIEW BY THIS COURT BECAUSE IT IMPLI-

CATES AN ISSUE OF RECURRING NATIONAL

IMPORTANCE CONCERNING THE APPROPRI-

ATE STANDARDS THAT APPLY TO A FACIAL

CHALLENGE TO THE CONSTITUTIONALITY OF

A GOVERNMENT ENACTMENT ..........ccccccccscececcessees

A. This Court’s Decisions Reflect Competing

Standards That Have Been Applied To

Resolve Facial Challenges To Government

Ordinances That Are Claimed To Be

I sien satasirivestssnsctiiscnsesseveniocercontases

co NN WN

TABLE OF CONTENTS —continued

Page

B. The Appropriate Standard For Resolving

Facial Challenges Has Been A Source Of

Significant Confusion Among The Courts Of

PIE icsicuuiasssioladccusctindvanccdnddabenanniiencingstianoitionats 17

C. The Decision Betow Is An _ Appropriate

Vehicle For Resolving The Conflict And

Confusion Reflected In This Court’s Decisions

~ And In The Decisions Of Lower Courts............. 22

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TABLE OF AUTHORITIES

CASES Page

Amfac Resorts, L.L.C. v. United States Dep't of

Interior, 282 F.3d 818 (D.C. Cir. 2002),

vacated on other grounds, Nat’l Park

Hospitality Ass'n v. Dep't of Interior, 538 U.S.

a RI icsninschsstihervscsmanuicecentoniniact ota 14

A Women’s Choice-East Side Clinic v. Newman,

305 F.3d 684 (7th Cir. 2002), cert. denied, 537

Ed | | A ees eens 4, 10, 19, 20

Anderson v. Edwards, 514 U.S. 143 (1995)....c..06... 14

Bd. of Regents v. Roth, 408 U.S. 564 (1972) .......... 25

Caterpillar, Inc. v. Comm’r of Revenue, 568

IN. We OPS (ia, TGF) os eesssssasnsisniisiaccccsvatians, 21

Caterpillar inc. v. N.H. Dep't of Revenue Admin.,

FRE PAG FG UT. TODO) visser serssibtindisceicctiasticvicel, 21

City of Chicago v. Morales, 527 U.S. 41 (1999)... passim

Conoco, Inc. v. Taxation & Revenue Dep't, 931

Fe FI TIN I, COD sins ssstvesanssaisveasiinincibincibcsess 21

Fla. League of Prof. Lobbyists, Inc. v. Meggs, 87

FW OF CEPT, FOOD cscs csesvscecerspervesuadseecce, 14

Horton v. City of St. Augustine, Fla., 272 F.3d

BOED CE FG Ce, DOTY a isisscnceccssccinccrevonsenusonnces 3,10, 19

Janklow v. Planned Parenthood, Sioux Falls

Clinic, 5317 U.S. 1174 (1996)..........c0cccsecccsccseseess 14

Kolender v. Lawson, 461 U.S. 352 (1983) ....ccccec0e:. 13

Mineral Policy Ctr. v. Norton, 292 F. Supp. 2d 30

Ec SY Sint ininensineincanab ili tees enn 20

New York State Club Ass’n v. City of New York,

OT Ci FE octiisvscciasitinciacieacee 14

Planned Parenthood v. Casey, 505 U.S. 833

Pe iiicchvacesunliaclghabucatianattoninianne Seg aaitaeniie ae 16

Reno v. Flores, 507 U.S. 292 (1993)...ccccccccccscccesece. 14

Romer v. Evans, 517 U.S. 620 (1996)......cccccccceseees 16

S.D. Myers, Inc. v..City & County of S.F., 253

F Sle OS COU OW, BEY nissiivsvcsncncusisoninswosnrnnannes 20

TABLE OF AUTHORITIES-—continued

Page

United States v. Frandsen, 212 F.3d 1231 (11th

Rai sD sndeneasrivetcceeniiaiaeannlieaenemamaamnaae 19

United States v. Rybicki, 354 F.3d 124 (2d Cir.

EE scisascomnuninamnniemaamammaandl 3, 10, 18

United States v. Salerno, 481 U.S. 739 (1987) ..... passim

United States v. Sampson, 275 F. Supp. 2d 49 (D.

Bs, Bea censelancrichidekans seevdecceshdughinasiaaner anaes 20

Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489 (1982)... eee iz, $3

Washington v. Glucksberg, 521 U.S. 702 (1997)..... 14

CONSTITUTION AND STATUTES

ee eR. IEE, FEE WN iistenncsicscesiecereteneiee 2

Oe er ise IM aasiscinnscdcemedenovesniasenmuenennenaaenns 2

Oakland, Cal., Ordinance 12136 C.M.S. (May 11,

PIE 5 ns cuveseinsdnvicch i cedeiacdiosticaniesaiameiaaemaaiaain etal passim

Oakland, Cal., Ordinance 12137 C.M.S. (May 11,

PTT cise'svinviscecossicajeubsabocbiceeettaale needs 2, 5, 24

RULE

A RA Gn. BP ckcdversetsiccteceieecanniaannonaaian 3, 4, 17

SCHOLARLY AUTHORITIES

Matthew D. Adler, Rights, Rules, and the

Structure of Constitutional Adjudication, 113

Seney. 1. BOW. EST Ce esiscistidvcnsenceen 21

Michael C. Dorf, Facial Challenges to State and

Federal Statutes, 46 Stan. L. Rev. 235 (1994)..... 15

Richard H. Fallon, Jr., As-Applied and Facial

Challenges and Third-Party Standing, 113

Boar. 1. Bev. FICE Ce iekish addceesares 21

Vii

TABLE OF AUTHORITIES—continued

Page

Michael C. Steel, Constitutional Law—The

Vagueness Doctrine: Two-Part Test, or Two

Conflicting Tests? City of Chicago v. Morales,

119 S. Ct. 1849 (1999), 35 Land & Water L.

Rev. 255 (2000)

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' PETITION FOR WRIT OF CERTIORARI

Petitioners Hotel and Motel Association of Oakland and its

members respectfully request that this Court grant their

petition for a writ of certiorari to review the decision of the

United States Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The opinion of the court of appeals is published at 344 F.3d

959 (9th Cir. 2003) and is reproduced in the Appendix to this

Petition (“Pet. App.”) at la to 21a. The court of appeals’

order denying the petition for rehearing and rehearing en banc

is unpublished and is reproduced at Pet. App. 50a to 5la. The

relevant orders of the United States District Court for the

Northern District of California are unpublished. That court’s

order granting in part, denying in part, defendants’ motion to

dismiss plaintiffs’ first amended complaint is reproduced at

Pet. App. 25a to 49a. The district court’s stipulation and

judgment of dismissal is reproduced at Pet. App. 22a to 24a.

JURISDICTION

The court of appeals entered judgment on September 17,

2003, and denied timely petitions for rehearing and rehearing

en banc on November 13, 2003. On February 4, 2004, Justice

O’Connor granted an extension of time within which to file a

petition for a writ of certiorari, up to and including March 12,

2004. On March 4, 2004, Justice O’Connor granted a second

extension of time, up to and including April 1, 2004. This

Court has jurisdiction over this petition under 28 U.S.C.

§ 1254(1).

RELEVANT STATUTORY PROVISIONS

Title 42 U.S.C. § 1983 provides, in pertinent part,

aes ae

Every person who, under color of. any statute,

ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or causes

to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper

proceeding for redress... .

42 U.S.C. § 1983.

The Fourteenth Amendment provides, in pertinent part, that

no State shall “deprive any person of life, liberty, or property,

without due process of law.”

The complete texts of Oakland Municipal Ordinances No.

12136 and No. 12137 are reproduced at Pet. App. 52a to 82a.

STATEMENT OF THE CASE

This case presents the issue of what is the appropriate

standard for addressing a facial challenge to a government

ordinance that is impermissibly vague and that imposes

expansive and open-ended law enforcement responsibilities

upon private individuals.

Applying this Court’s standard in United States v. Salerno,

481 U.S. 739 (1987), the court of appeals upheld the city

ordinances against a facial attack based upon unconstitutional

vagueness because “‘the challenger must establish that no set

of circumstances exists under which the [statute] would be

valid.” Pet. App. 17a (alteration in original) (quoting

Salerno, 481 U.S. at 745). In doing so, the court of appeals

recognized—as have other courts of appeals—that this

Court’s “most recent discussion of facial vagueness

challenges has cast some doubt on the ‘no set of

circumstances’ requirement” set forth in Salerno. Id.

Specifically, the court below explained that in City of

Chicago v. Morales, 527 U.S. 41 (1999), “the Court did not

apply the Salerno test in reviewing, and ultimately upholding,

a facial challenge to an ordinance banning gang members

from loitering in public places after being ordered to

disperse.” Pet. App. 17a-18a. Nevertheless, the court of

appeals refused to apply Morales and instead held that until

“a majority of the Supreme Court directs otherwise, a party

challenging the facial validity of an ordinance on vagueness

grounds outside the domain of the First Amendment must

demonstrate that ‘the enactment is impermissibly vague in all

of its applications.’” /d. at 19a (quoting Village of Hoffman

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495

(1982)).

The court of appeals’ refusal to apply the standards set forth

in this Court’s Morales decision warrants further review.

This Court-has acknowledged its competing lines of precedent

and the seemingly inconsistent application of these varied

approaches in a host of contexts. Morales, however, is this

Court’s most-recent decision setting forth the standards for

assessing a vagueness challenge to a criminal ordinance that

contains no mens rea requirement. The court of appeals

refusal to apply this Court’s decision in Morales—which the

court below justified based upon its confusion whether

Morales or Salerno reflected the binding standard for

resolving a facial challenge to the constitutionality of a

government enactment, Pet. App. 19a—itself warrants further

review by this Court because this is the only Court that can

clarify the inconsistency between its decisions. See Sup. Ct.

R. 10(c).

Moreover, confusion over what standard applies to the

resolution of facial challenges has permeated the federal

courts of appeals, which have struggled to reconcile this

Court’s competing commands. See United States v. Rybicki,

354 F.3d 124, 131 (2d Cir. 2003) (en banc) (holding that court

was “not required to apply /Morales]”); Horton v. City of St.

Augustine, Fla., 272 F.3d 1318, 1330 (11th Cir. 2001) (noting

Leen eee

“inroads into Salerno’s rule have developed”); cf. A Women's

Choice-East Side Clinic vy. Newman, 305 F.3d 684, 687 (7th

Cir. 2002) (rejecting Salerno as dicta), cert denied, 537 U.S.

1192 (2003). Legal commentators as well have highlighted

the competing threads in this Court’s precedent and

underscored the importance of providing necessary guidance

to the lower courts. Absent a uniform standard, similarly

situated cases will result in different outcomes based solely

on the happenstance of geography, rather than on the merits

of their underlying claims. Simply put, resolution of the

proper standard to apply in addressing a facial challenge to

- the constitutionality of a government enactment is an

important and recurring issue of federal law that warrants

further review by this Court. See Sup. Ct. R. 10(a), (c).

What is more, this case presents an appropriate vehicle for

the Court to resolve this confusion because the ordinance at

issue here cannot be upheld under the standard reflected in

Morales. Specifically, a violation of City Ordinance No.

12136 subjects private individuals operating their businesses

to criminal penalties for failing to prevent others from

engaging in a laundry-list of objectionable conduct not only

on their property, but also in “close proximity” thereto. Here,

imposition of criminal penalties is authorized, without any

mens rea requirement, if the “operation of the property .. .

result[s] in repeated nuisance activities on the property or

contribute[s] to nuisance activities in close proximity to the

property.” Pet. App. 62a. “[N]uisance activities” are listed to

include “illegal drug activity,” “prostitution,” and “public

drunkenness,” as well as “harassment of passers by,” “illegal

parking,” “traffic violations, curfew violations, lewd conduct,

or police detentions and arrests.” Jd.

To avoid criminal sanction, owners of hotels or motels

subject to this ordinance must, in effect, prevent any and all

illegal or potentially illegal activity from occurring on or in

close proximity to their property. As a result, Ordinance No.

12136 criminalizes a broad swath of purely innocent

ee ees ae

conduct—e.g., failing to stop nuisance activities about which

a person has no knowledge and/or control—and requires

private individuals to take on a broad range of traditional law

enforcement responsibilities simply to avoid criminal

prosecution and to pursue their chosen livelihood.

A. City Of Oakland Ordinances No. 12136 And No.

12137.

At issue in this case are two ordinances, No. 12136 and No.

12137, which were enacted on May 11, 1999, by the Council

of the City of Oakland to establish “Operating Standards for

Hotels, Motel and Rooming Houses.” Pet. App. 52a

(capitalization omitted).' Taken together, they provide

“minimum standards related to room furnishings, linens,

housekeeping services and security.” /d. In particular,

Ordinance No. 12136 creates minimum standards applicable

to hotels and motels on such diverse topics as “management

practices,” “inspection of records and facilities,” “property

security,” “housekeeping conditions in excess of normal

‘Wear and Tear,”’” “room furnishings,” “exterior of property,”

and “common areas.” /d. at 56a-62a (capitalization omitted).

Adoption of these minimum standards was designed to

“promote the health, safety, comfort, convenience, prosperity,

and general welfare by requiring that businesses that offer

shelter to visitors, transient guests, and other residents provide

a minimum level of cleanliness, quality, and security.” /d. at

55a. None of those various minimum standards is at issue

here.

99 «#66

99 66

Ordinance No. 12136, however, requires substantially more

from private owners of hotels and motels. In particular,

Ordinance No. 12136 amends the Oakland Municipal Code to

add Section 8.03.120, which is entitled “Criminal and

Nuisance Activity.” Pet. App. 62a. Under Section 8.03.120,

' Specifically, Ordinance No. 12137 creates the “Deemed Approved”

program whereby formerly non-conforming uses are subjected to the

requirements reflected in Ordinance No. 12136. Pet. App. 67a-82a.

to avoid criminal penalties, owners of hotels and motels are

required to ensure that “(t]he operation of the property shall

not result in repeated nuisance activities on the property or

contribute to nuisance activities in close proximity to the

property.” /d.* Section 8.03.120 contains no mens rea

requirement. To avoid criminal prosecution, owners of hotels

and motels are subjected to an almost impossible burden by

requiring them to engage in law enforcement activities not

only on their own property, but also in areas deemed to be in

close proximity to their property. /d. What is more, Section

8.03.120 vests law enforcement officials with virtual carte

blanche in determining whether there has been a violation of

this strict liability provision.

There can be no question that adoption of Section 8.03.120

was motivated by a belief that property owners should be

forced to engage in police-enforcement activities traditionally

undertaken by public police enforcement entities. Indeed, to

justify Ordinance No. 12136, the City Council candidly noted

that “the Oakland Police Department has expended an

inordinate amount of time and resources in policing certain of

these businesses, in order to limit or control widespread use

of the properties for the purpose of narcotics and prostitution

activity,” Pet. App. 52a, and that there was evidence that, in

the City Council’s view, “the operators of problem properties

take minimal action to screen or monitor the activities of their

patrons,” id. at 53a.

? Nuisance activities “includ[e],” but are not “limited to”:

disturbance of the peace, illegal drug activity, prostitution, public

drunkenness, drinking in public other than at a licensed facility,

harassment of passers by, gambling, sales of stolen goods, public

urination, theft, assaults, batteries, acts of vandalism, illegal parking,

excessive loud noises, especially in the late night or early morning

hours, traffic violations, curfew violations, lewd conduct, or police

detentions and arrests.

Pet. App. 62a.

B. Petitioner’s Vagueness Challenge.

In August 1999, petitioner Hotel and Motel Association of

Oakland, which represents the interests of various owners and

operators of hotels and motels in Oakland, California, brought

suit along with its individual members under 42 U.S.C.

§ 1983, and challenged, among other things, the enactment of

the Criminal and Nuisance Activity section of Ordinance No.

12136. Petitioners explained that Ordinance No. 12136

adopted operating standards that imposed “various criminal

and civil penalties and fines for violations” of those standards.

See Complaint for Damages and Injunctive Relief § 7.

Petitioners highlighted that these new standards required

property owners and operators to “prevent[] . . . criminal and

nuisance activity on or in the vicinity of the properties,” id.,

and that the Ordinance “places legal burdens on the

hotel/motel owner and operator to correct nuisance activities

that occur both on and off the property with no reasonable

standards for administrative and legal guidance and

enforcement.” Jd. J 8; see also First Amended Complaint for

Damages and Injunctive Relief (“First Am. Compl.”) §§ 16-

17 (same). Petitioners explained that violation of Ordinance

No. 12136 subjects owners and operators of hotels and motels

“to criminal prosecution.” First Am. Compl. 4 28.

Accordingly, petitioners sought injunctive and other relief

because Ordinance No. 12136 was “‘void for vagueness.””

Id. 4 55.

C. The District Court’s Decision.

The district court rejected petitioners’ claim at the pleading

stage pursuant to Federal Rule of Civil Procedure 12(b)(6).

Pet. App. 26a, 40a. The district court explained that

petitioners’ challenge “must be construed as a facial attack

only” because there had been no allegation that the

“challenged ordinances have been applied to anyone yet.” /d.

at 36a n.7. The district court concluded that petitioners’

challenge could succeed only “‘if the enactment is

impermissibly vague in all of its applications.’” Jd. at 37a

(quoting Hoffman Estates, 455 U.S. at 494-95). The district

court noted that the “presence of criminal penalties in the

ordinances raises the level of scrutiny somewhat,” id. at 38a-

39a, but rejected petitioners’ showing that the ordinance

impermissibly subjected them “to criminal sanctions for

‘contributing’ to ‘nuisance activities in close proximity to the

property,’ instead of restricting the ordinances to activities

occurring on the properties,” id. at 37 n.8. According to the

district court, “the ordinances are not impermissibly vague.”

Id. at 40a.

D. The Court of Appeals’ Decision.

The court of appeals affirmed. Pet. App. 2a. At the outset,

the court below noted that petitioners’ facial challenge

“present[ed] a hurdle that is difficult for the Association to

scale.” Jd. at 16a. Applying this Court’s decision in United

States v. Salerno, 481 U.S. 739 (1987), the court of appeals

explained that to prevail in a facial challenge outside the First

Amendment context, “‘the challenger must establish that no

set of circumstances exists under which the [statute] would be

valid.”” Pet. App. 17a (alteration in original) (quoting

Salerno, 481 U.S. at 745). The court of appeals recognized,

however, that this “Court’s most recent discussion of facial

vagueness challenges has cast some doubt on the ‘no set of

circumstances’ requirement” of Salerno. Id. Specifically, the

court of appeals explained that in City of Chicago v. Morales,

527 U.S. 41 (1999), this Court “did not apply the Salerno test

in reviewing, and ultimately upholding, a facial challenge to

an ordinance banning gang members from loitering in public

places after being ordered to disperse.” Pet. App. 17a-}8a.

The court below noted that the Morales plurality “stated that

the Salerno formulation was dictum.” /d. at 18a. Although

Section V of the Morales decision was joined by a majority of

the Court, the court of appeals declined to be bound by

Morales, explaining that “[u]ntil a majority of the Supreme

Court directs otherwise, a party challenging the facial validity

of an ordinance on vagueness grounds outside the domain of

the First Amendment must demonstrate that ‘the enactment is

impermissibly vague in all of its applications.’” /d. at 19a

(quoting Hoffman Estates, 455 U.S. at 495) (emphasis added).

Because it concluded that “[n]o such showing was made

here,” the court of appeals rejected petitioners’ facial

vagueness challenge. Pet. App. 19a. The court below

acknowledged that petitioners took “issue with the

requirement in Ordinance No. 12136 that prohibits hotel

operators from contributing to nuisance activities on or in

‘close proximity to’ the property.” /d. Although the court of

appeals acknowledged that there was no mens rea

requirement, it nevertheless rejected that challenge because

there had been no showing that “every (or any) application of

that provision would qualify as unconstitutionally vague.” /d.

The court of appeals never purported to apply the competing

vagueness standards set forth in Morales, and _ instead,

applying the “all-or-nothing principle” embodied in Salerno,

held that Ordinance No. 12316 was not “unconstitutionally

vague on its face.” Jd. at 21a.

| REASONS FOR GRANTING THE PETITION

This case presents the recurring issue of what standard

should be applied by federal courts addressing a facial

challenge to the constitutionality of a government enactment

that subjects private individuals to criminal sanction for

engaging in wholly innocent conduct. A majority of this

Court in City of Chicago v. Morales ruled that a criminal

Statute that contains no mens rea requirement will be

adjudged unconstitutionally vague if “reach[es] a substantial

amount of innocent conduct” and fails to “‘establish minimal

guidelines to govern law enforcement.’” 527 U.S. 41, 60-61

(1999) (Stevens, J., writing for Court in Section V). The

court of appeals, after discussing the tension between this

Court’s decisions in Salerno and Morales, refused to apply

this Court’s controlling decision in Morales. That ruling by

itself warrants further review by this Court.

Moreover, the cou.t of appeals is not alone in expressing

confusion regarding the applicability of this Court’s

competing decisions in Morales and Salerno. Indeed, the

Second, Eleventh and Seventh Circuits likewise have

highlighted the difficulty of determining which of this Court’s

competing commands should be followed on the threshold

question of the appropriate legal standard to apply in

resolving facial challenges to government enactments. See

United States v. Rybicki, 354 F.3d 124, 131 (2d Cir. 2003) (en

banc) (holding that court “not required to apply /Morales/]’’);

Horton v. City of St. Augustine, Fla., 272 F.3d 1318, 1329-30

(11th Cir. 2001) (applying Salerno but noting that “inroads

into Salerno’s rule have developed”); cf. A Women’s Choice-

East Side Clinic v. Newman, 305 F.3d 684, 687 (7th Cir.

2002) (rejecting Salerno as dicta), cert. denied, 537 U.S. 1192

(2003). In these cases, the Second Circuit (over a vigorous

dissent), Rybicki, 354 F.3d at 131; see also id. at 155-65

(Jacobs, J., joined by Walker, Jr., C.J., and Cabranes and

Parker, J.J., dissenting), and the Eleventh Circuit, Horton, 272

F.3d at 1330, both have concluded that Salerno remains the

governing standard, whereas the Seventh Circuit, in a related

context, has declined to follow Salerno in light of conflicting

and more recent precedent from this Court, Newman, 305

F.3d at 687. There can be no question that the issue presented

is a recurring one that can only be resolved by this Court, and

that it should be decided to provide necessary guidance to

federal and state courts. Absent a uniform, nationwide

standard, litigants from across the country will be subject to

irreconcilable rulings based not on the underlying merits of

their claims but instead on the fortuity of where they brought

suit.

What is more, this case presents an appropriate vehicle for

resolving this conflict because the court of appeals squarely

rejected petitioners’ vagueness challenge under the “all-or-

nothing” standard reflected in Salerno, and made clear that

the Ninth Circuit would continue to apply Salerno (rather

than Morales) until directed to do otherwise by this Court.

Ordinance No. 12136, like the ordinance in Morales, imposes

criminal sanctions on private individuals engaging in wholly

innocent conduct and vests substantial discretion in law

enforcement officials to determine whether a violation of the

ordinance has occurred. Specifically, to avoid a criminal

sanction, private individuals must affirmatively ensure that no

“nuisance” conduct occurs on or in close proximity to their

property. As in Morales, private individuals can be subjected

to criminal sanction, without any finding of mens rea, for

simply standing around and doing nothing. Indeed, to avoid

criminal sanction, owners and operators of hotels and motels

have the impossible affirmative burden of ensuring that no

“nuisance” activity occurs not only on their property, but also

on the property of others deemed to be in “close proximity” to

a hotel or motel.

THE DECISION BELOW WARRANTS FURTHER

REVIEW BY THIS COURT BECAUSE IT IMPLI-

CATES AN ISSUE OF RECURRING NATIONAL

IMPORTANCE CONCERNING THE APPROPRIATE

STANDARDS THAT APPLY TO A_ FACIAL

CHALLENGE TO THE CONSTITUTIONALITY OF A

GOVERNMENT ENACTMENT.

The decision below warrants certiorari because it implicates

an exceedingly important issue of federal law that demands

uniform treatment throughout the country. Specifically,

review of this case is necessary to resolve the dispute that has

emerged as a result of conflicting pronouncements by this

Court as to the standard for assessing a facial chailenge to the

constitutionality of a government enactment. The divergent

rules advanced in Salerno and Morales have resulted in

significant confusion among the federal courts of appeals.

Moreover, this case implicates that conflict because the

ordinance at issue here could not pass muster under Morales.

It criminalizes a broad swath of purely innocent conduct and

vests virtually unlimited discretion in law enforcement

;

officials to determine whether a property owner’s failure to

prevent nuisance activity (of which he or she may have no

knowledge) constitutes a violation of the ordinance.

A. This Court’s Decisions Reflect Competing

Standards That Have Been Applied To Resolve

Facial Challenges To Government Ordinances

That Are Claimed To Be Unconstitutional.

This Court has set forth competing standards to resolve

facial challenges to statutes that are claimed to violate the

United States Constitution. On the one hand, in United States

v. Salerno, 481 U.S. 739, 745 (1987), the Court provided that,

outside of the First Amendment context, a facial challenge

can succeed only when the challenger establishes that “no set

of circumstances” exists under which the ordinance or law

would be valid. On the other hand, the Court in City of

Chicago v. Morales, 527 U.S. 41 (1999), held that a city

ordinance was unconstitutionally vague on its face without

making a determination whether the ordinance was vague in

every application. /d. at 60-61. Moreover, a plurality of the

Court adopted a different standard based on various factors:

whether the challenged law (1) involved criminal penalties,

(2) contained a mens rea requirement, and (3) implicated

constitutionally protected conduct. /d. at 55 (Stevens, J.).

Consequently, Salerno and Morales have left the courts of

appeals to guess which of these competing standards should

be applied to resolve facial challenges to government

enactments.

The question of what standard should be applied to resolve

a facial challenge to a government enactment is a recurring

one that has been treated on a number of occasions by this

Court. For example, prior to Salerno, in Village of Hoffman

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 505

(1982), this Court held that an ordinance regulating the sale of

drug paraphernalia was not unconstitutionally vague on its

face. Reversing the court of appeals, which struck down the

law because it was “unclear in some of its applications,” id. at

495, the Court explained that a successful facial challenge to

a law that does not reach constitutionally protected conduct

requires “the complainant [to] demonstrate that the law is

impermissibly vague in all of its applications.” /d. at 497

(emphasis added). The Court distinguished this inquiry from

an overbreadth challenge, which would apply to a law that

reaches a substantial amount of “constitutionally protected

conduct.” /d.

The Court departed from this standard in Kolender v.

Lawson, 461 U.S. 352 (1983), where the Court held that an

anti-loitering statute was unconstitutionally vague on its face.

Id. at 361. In doing so, the Court rejected the notion that a

statute could not be held “‘unconstitutionally vague on its

face unless it is vague in all of its possible applications.”” /d.

at 358 n.8. Rather, the Court stated that a criminal statute

might be facially invalid even if it conceivably had some

valid application because “the standard of certainty is higher”

where criminal penalties are involved. /d.

In Salerno, the Court reverted back to the approach adopted

in Hoffman Estates by ruling that to prevail in a facial

challenge to a legislative enactment, “the challenger must

establish that no set of circumstances exists under which the

Act would be valid.” 481 U.S. at 745 (citation omitted).

Accordingly, the “fact that [the statute] might operate

unconstitutionally under some conceivable set of

circumstances is insufficient to render it wholly invalid.” /d.

Salerno itself involved a facial challenge to the

constitutionality of the Bail Reform Act, which allowed

courts “to detain an arrestee pending trial if the government

demonstrates by clear and convincing evidence after an

adversary hearing that no release conditions ‘will reasonably

assure . . . the safety of any. other person and the

community.”” /d. at 741 (quoting 18 U.S.C. § 3142(e) (1982

& Supp. III 1985)). The law was challenged as facially

violative of the Due Process Clause of the Fifth Amendment

and the Excessive Bail Clause of the Eighth Amendment. /d.

at 746. The Court held that, on its face, the Bail Reform Act

did not violate the Fifth Amendment because it contained

sufficient procedural safeguards to satisfy due process, and it

did not violate the Eighth Amendment because it was directed

toward a compelling interest different than the concern of the

Excessive Bail Clause. /d. at 751, 754.°

The Salerno standard, however, has been the subject of

much debate within the Court. For example, in Washington

v. Glucksberg, 521 U.S. 702, 740 (1997), Justice Stevens,

concurring in the judgment, argued that the Court has never

actually applied Sa/erno’s strict standard, not even in Salerno

itself. Jd. at 739 (Stevens, J., concurring in judgment) (stating

that application of Salerno standard is “the subject of debate

within this Court’). Conversely, Justice Scalia, joined by

Chief Justice Rehnquist and Justice Thomas, have expressed

their view that the applicability of the Salerno standard for

facial challenges is an issue that “cries out for [the Court’s]

review.” Janklow v. Planned Parenthood, Sioux Falls Clinic,

517 U.S. 1174, 1178 (1996) (Scalia, J., joined by Rehnquist,

C.J., and Thomas, J., dissenting from denial of petition for

certiorari).*

> Salerno’s “no set of circumstances” standard for facial challenges has

been followed in subsequent decisions of this Court. See, e.g., Anderson

v. Edwards, 514 U.S. 143, 155-56 n.6 (1995); Reno v. Flores, 507 U.S.

292, 301 (1993); New York State Club Ass'n v. City of New York, 487 U.S.

1, 11-12 (1988).

* See also Janklow, 517 U.S. at 1175-76 (Stevens, J., respecting the

denial of the petition for certiorari) (calling the Salerno standard

“draconian . . . dictum” that was “unsupported by citation or precedent”

and does not accurately characterize the standard for facial challenges).

Both lower courts and legal scholars have noted the disagreement

regarding the appropriate standards for resolving such claims. E.g., Amfac

Resorts, L.L.C. v. United States Dep't of Interior, 282 F.3d 818, 826 (D.C.

Cir. 2002) (noting debate among Justices regarding whether Salerno is

controlling), vacated on other grounds, Nat'l Park Hospitality Ass'n v.

Dep't of Interior, 538 U.S. 803 (2003); Fla. League of Prof. Lobbyists,

Inc. v. Meggs, 87 F.3d 457, 459 (11th Cir. 1996) (noting “disagreement

The debate about the applicability of Salerno to facial

challenges to government enactments culminated in City of

Chicago v. Morales, 527 U.S. 41 (1999). In Morales, a

municipal ordinance that prohibited “criminal street gang

members from loitering with one another or with other

persons in any public place,” id. at 45-46 (internal quotation

omitted), was challenged as unconstitutionally vague under

the Due Process Clause of the Fourteenth Amendment, id. at

46. A majority of the Court invalidated the anti-loitering

ordinance as unconstitutionally vague on its face even though

the Court did not conclude that the ordinance would be

invalid in every application. /d. at 60-61. Although Morales

generated a number of concurring opinions, a majority of the

Court joined Section V of Justice Stevens’ opinion to strike

down the anti-loitering statute because it “reach[es] a

substantial amount of innocent conduct” but fails to

“‘establish minimal guidelines to govern law enforcement,”

id. at 60 (quoting Kolender, 461 U.S. at 358).

Justice Stevens, writing for the plurality, went further by

both rejecting and distinguishing Salerno:

To the extent we have consistently articulated a clear

standard for facial challenges, it is not the Salerno

formulation, which has never been the decisive factor in

any decision of this Court, including Salerno itself... .

We need not, however, resolve the viability of

Salerno’s dictum because this case comes to us fram a

state—not a federal—court.

Id. at 55 n.22. The plurality characterized the Salerno

standard as a species of third-party standing that state courts

need not apply. Jd. The plurality acknowledged that

has appeared lately among members of the Supreme Court on exactly how

high the threshold for facial invalidation should be set”); Michael C. Dorf,

Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235,

239 (1994) (arguing that the Court has applied the Salerno standard

inconsistently and has failed to articylate why it departs trom Salerno).

Pa ee ee ee

prohibiting certain conduct, like intimidation of residents,

would be constitutional, but stated that “[u]ncertainty about

the scope of that additional coverage” of the ordinance

provided the basis for the vagueness claim. /d. at 52

(emphasis added). Instead of applying Salerno’s “no set of

circumstances” standard, the plurality adopted yet another

standard for assessing facial challenges: a facial challenge

was appropriate because the ordinance was a criminal law

that lacked a mens rea requirement and infringed on

constitutionally protected rights. /d. at 55. Specifically, the

plurality explained that the “right to remove from one place to

another according to inclination” was _ constitutionally

protected. /d. at 53 (internal quotation omitted). The

plurality explained that “[w]hen vagueness permeates the text

of such a law, it is subject to facial attack.” /d. at 55.

Justice O’Connor, concurring in part and concurring in the

judgment, agreed that the statute was unconstitutionally vague

because, as interpreted by the Illinois Supreme Court, it

lacked guidelines to prevent arbitrary and discriminatory

enforcement. /d. at 64-65. Similarly, Justice Kennedy

concurred in the judgment because the ordinance lacked

sufficient guidelines for enforcement. Jd. at 69-70. Justice

Breyer, for his part, concurred in the judgment, explaining

that the ordinance was invalid “because the policeman enjoys

tod much discretion in every case. And if every application of

the ordinance represents an exercise of unlimited discretion,

then the ordinance is invalid in all its applications.” Jd. at 71.

In dissent, Justice Scalia argued that the majority should

have applied the Salerno standard for facial challenges. /d. at

77-81. Justice Scalia admitted that the Court had adopted

exceptions to Salerno, such as in Romer v. Evans, 517 U.S.

620 (1996), and Planned Parenthood v. Casey, 505 U.S. 833

(1992), but he argued that no similar exception should apply

in Morales. 527 U.S. at 81. Justice Scalia explained that,

under Salerno, the challengers would have to prove that the

law is invalid in all of its applications, which could be

_—_— ae

defeated by the existence a single valid application. /d.

Justice Thomas, joined by Chief Justice Rehnquist and Justice

Scalia, also wrote separately in dissent to explain that isolated

instances of arbitrary and discriminatory law enforcement

were insufficient to meet Salerno’s standard for facial

challenges. /d. at 111.

Simply put, the appropriate standard for resolving a facial

challenge to the constitutionality of a government enactment

is “an important question of federal law that has not been, but

should be, settled by this Court.” See Sup. Ct. R. 10(c). On

the one hand, under Salerno, a facial challenge cannot

succeed unless the challenger shows that “no set of

circumstances exists under which the [statute] would be

valid.” Salerno, 481 U.S. at 745. Under Morales, however,

where a criminal statute with no mens rea requirement

infringes on constitutionally protected conduct, broadly

described, the statute may be ruled facially invalid if it

“reach[es] a substantial amount of innocent conduct.” 527

U.S. at 60 (opinion of Court).

Based on the decision in Morales, the continued

applicability of the Salerno standard to facial challenges is in

question, especially in the context of criminal statutes that

lack a mens rea _ requirement and that implicate

constitutionally protected conduct. This case presents the

doctrinal split clearly and directly and therefore the Court

should grant the petition for certiorari.

B. The Appropriate Standard For Resolving Facial

Challenges Has Been A Source Of Significant

Confusion Among The Courts Of Appeals.

Because of this Court’s conflicting decisions in Salerno and

Morales, the federal courts of appeals have lacked dispositive

guidance as to the proper standard for facial challenges to the

constitutionality of government ordinances, and as a result,

widespread confusion has resulted. The varying approaches

taken by the federal courts of appeals and other lower courts

underscore the need for further review by this Court.

For example, in United States v. Rybicki, 354 F.3d 124 (2d

Cir. 2003) (en banc), the Second Circuit openly struggled in

determining which standard to apply to a facial challenge of a

statute. At issue in Rybicki was a statute that extended the

coverage of the wire and mail fraud statutes to include

deprivation of the “intangible right of honest services.” /d. at

126 (internal quotation omitted). The en banc court

highlighted that “there is disagreement as to the nature” of

review of “facial vagueness challenges outside the First

Amendment context.” /d. at 131. Specifically, the Second

Circuit explained that in Morales, the “Court struck down an

anti-loitering statute as facially unconstitutional without first

considering whether the statute was unconstitutionally vague

as applied to the facts of the case or whether any set of

circumstances existed in which the statute would be valid.”

Id. The en banc court acknowledged that “[a]lthough panels

of [the Second Circuit] have noted that Morales may have

rejected the Salerno dicta, we have not concluded that a

majority of the Supreme Court has done so.” /d. Ultimately,

the en banc court ruled that the statute in question was

“sufficiently clear to survive a facial challenge under either

Morales or Salerno.” Id. at 131-32; see also id. at 150

(Raggi, J., concurring in the judgment) (describing the factors

considered in Morales and concluding that the statute at issue

is not “‘such a law’”’).

Judge Jacobs, joined by Chief Judge Walker, and Judges

Cabranes and Parker, dissented because “[t]he test for facial

invalidity of a criminal statute was articulated by the Supreme

Court in 1999: ‘Vagueness may invalidate a criminal law for

either of two independent reasons. First, it may fail to

provide the kind of notice that will enable ordinary people to

understand what conduct it prohibits; second, it may authorize

and even encourage arbitrary and _ discriminatory

enforcement.’” Jd. at 156 (Jacobs, J., dissenting) (quoting

Morales, 527 U.S. at 56 (opinion of Court)). After

concluding that the Second Circuit was “required to apply

Morales,” Judge Jacobs and the other dissenters explained

that, under Morales, “it is quite clear that the statute” was

unconstitutional because it “imposes insufficient constraint on

prosecutors, gives insufficient guidance to judges, and gives

insufficient notice to defendants.” /d. at 157.

Similarly, the Eleventh Circuit has grappled with the

conflicting standards in Salerno and Morales. After Morales,

the Eleventh Circuit described the Salerno rule as “subject to

a heated debate in the Supreme Court, where it has not been

consistently followed.” United States v. Frandsen, 212 F.3d

1231, 1235 n.3 (11th Cir. 2000) (citing Morales, 527 U.S. at

55 n.2 (Stevens, J.)). More recently, in Horton, 272 F.3d at

1329-30, the Eleventh Circuit addressed a facial challenge to

a municipal ordinance prohibiting street performances in a

four-block area of the city’s historic district. /d. at 1321. The

court held that the ordinance was not facially invalid under

Salerno because “circumstances exist under which it clearly

would not be unconstitutionally vague.” /d. at 1330. In doing

so, the Eleventh Circuit recognized that “inroads into

Salerno’s rule have developed.” Jd. As a result, the Horton

court felt compelled to analyze the challenged ordinance

under both the Salerno and Morales standards. /d. at 1330-

31.

In contrast, in a related context, the Seventh Circuit has

declined to follow Salerno because it is inconsistent with

subsequent precedent from this Court. See Newman, 305

F.3d at 687. There, the court of appeals upheld a state statute

regulating abortion against a facial challenge. /d. at 693. In

doing so, the court of appeals, through Judge Easterbrook,

noted that it was presented “with irreconcilable directives

from the Supreme Court” regarding the appropriate standard

to apply to a facial challenge to state regulation. /d. at 687.

The court of appeals highlighted its dilemma: “We cannot

follow Salerno without departing from the approach taken [in

more recent decisions]; yet we cannot disregard Salerno

without departing from the principle that only an express

overruling relieves an inferior court to follow decisions on the

books.” /d. In the end, the Seventh Circuit concluded that

Salerno’s discussion of the standards for a facial challenge

was “not essential to Salerno’s judgment” and therefore the

court of appeals would follow the more recent holding of this

Court. /d.

The Ninth Circuit likewise has discussed the confusion

resulting from the differing standards set forth in Salerno and

the more recent decision in Morales. See Pet. App. 16a-19a.

In this case, the court recognized that Morales has “cast some

doubt on the ‘no set of circumstances’ requirement.” Jd. at

17a. However, the court of appeals refused to depart from the

Salerno standard, stating: “Until a majority of the Supreme

Court directs otherwise, a party challenging the facial validity

of an ordinance on vagueness grounds outside the domain of

the First Amendment must demonstrate that ‘the enactment is

impermissibly vague in all of its applications.’” /d. at 19a

(quoting Hoffman Estates, 455 U.S. at 495). See also S.D.

Myers, Inc. v. City & County of S.F., 253 F.3d 461, 467-68

(9th Cir. 2001). Consequently, the court held that the

ordinances at issue were facially valid because the challengers

failed to allege or show that the ordinances were

impermissibly vague in all applications. Pet. App. 19a-21a.°

* Federal district courts and state courts have also struggled with this

issue. In Mineral Policy Center v. Norton, 292 F. Supp. 2d 30, 40

(D.D.C. 2003), the court declined to apply Salerno to a claim that a

federal mining regulation was, on its face, contrary to the Federal Land

Policy and Management Act. The court stated that “confusion in this

Circuit remains” regarding the applicability of Salerno and that “other

courts have also wrestled with the Salerno standard.” /d. at 39.

Describing “the Supreme Court’s application of Salerno [as] spotty, at

best,” the court was “left with little to guide it.” /d. See also United

States v. Sampson, 275 F. Supp. 2d 49, 58 (D. Mass. 2003) (finding that

the “dicta from Salerno” did not provide the proper test for deciding

whether the Federal Death Penalty Act was facially unconstitutional).

This confusion has generated significant discussion from

legal commentators, who have underscored the conflict

among the decisions of this Court. Scholars have debated

whether or not Salerno actually provides the standard for

addressing facial challenges. Professor Matthew D. Adler, in

Rights, Rules, and the Structure of Constitutional

Adjudication, 113 Harv. L. Rev. 1371, 1390 (2000), identified

and analyzed the tension between the Salerno standard and

the Court’s actual pattern of facial invalidation, and argued

that this tension reflects a “continuing and vigorous

disagreement” on the Court about the meaning and

correctness of the Salerno standard. See also Richard H.

Fallon, Jr., As-Applied and Facial Challenges and Third-

Party Standing, 113 Harv. L. Rev. 1321, 1322 (2000) (noting

the development of a debate in the Court about the necessary

conditions for facial challenges to prevail). Similarly,

Professor Michael C. Steel argued that the Salerno standard

cannot be reconciled with either the Kolender or the Morales

decision. See Constitutional Law—The Vagueness Doctrine:

Two-Part Test, or Two Conflicting Tests? City of Chicago v.

Morales, 119 S. Ct. 1849 (1999), 35 Land & Water L. Rev.

255, 271 (2000).

In the end, there can be no question that there is substantial

confusion among the lower courts regarding the appropriate

standard that should be applied in resolving a claim that a

government enactment is facially invalid. The confusion

engendered by this Court’s decisions in Salerno and Morales

can only be corrected this Court and thus cries out for a clear

ruling on this issue.

Similarly, state courts of highest resort have rejected the Salerno standard

for facial challenges to certain categories of state enactments. See, e.g.,

Caterpillar Inc. v. N.H. Dep't Revenue Admin., 741 A.2d 56 (N.H. 1999)

(declining to apply the Salerno standard to a facial challenge to a state tax

statute); Caterpillar, Inc. v. Comm’r of Revenue, 568 N.W.2d 695 ( Minn.

1997) (same); Conoco, Inc. v. Taxation & Revenue Dep't, 931 P.2d 730

(N.M. 1996) (same).

C. This Case Is An Appropriate Vehicle For

Resolving The Conflict And Confusion Reflected

In This Court’s Decisions And In The Decisions

Of Lower Courts.

This case presents an appropriate vehicle for resolving the

confusion and conflict that have resulted from this Court’s

competing pronouncements as to the standards applicable to

facial challenges to government enactments. In this case, the

court below recognized that there were two competing

standards for a facial challenge to a government ordinance:

“{Morales| has cast some doubt on the ‘no set of

circumstances’ requirement.” Pet. App. 17a. The court then

expressly applied Salerno to the case at hand. /d. at 19a. The

court confirmed that “[uJntil a majority of the Supreme Court

directs otherwise” it will apply the Salerno standard to facial

challenges outside of the First Amendment context. /d.

What is more, the court below never purported to apply

fully the standards adopted by the majority in Morales,

because, if it had, the outcome surely would have been

different. With regard to Ordinance No. 12136, the court

found that the Association “fails to allege that every (or any)

application of that provision would qualify as

unconstitutionally vague.” Pet. App. 19a. Similarly, the

court found that the Association did not allege that Ordinance

No. 12137 “is impermissibly vague in all of its applications.”

Id. at 21a.

The court did state that “even if the all-or-nothing principle

were inapplicable, the Association’s challenge cannot

succeed.” /d. at 19a. However, the court of appeals did not

actually apply the Morales standard in full. In its discussion

of Ordinance No. 12126, the court suggested that the

ordinance provides sufficient notice of the prohibited conduct

and gives law enforcement sufficient guidance to avoid

discriminatory and arbitrary enforcement. Pet. App. 19a-20a.

But this discussion was limited to the court’s analysis of the

phrase “close proximity.” Jd. Likewise, in its discussion of

Ordinance No. 12137, the court dismissed the idea that the

absence of a mens rea requirement in a criminal statute could

be a determinative factor in determining facial vagueness. /d.

at 20a-2 1a.

Under Morales, the governing inquiry is whether the

ordinance -“reach{es] a substantial amount of innocent

conduct” but fails to “‘establish minimal guidelines to govern

law enforcement,” 527 U.S. at 60 (quoting Kolender, 461

U.S. at 358). Here, there can be no question that the first

prong is satisfied. In effect, the owners and operators of

hotels and motels in the city of Oakland are conscripted by

the ordinance to police “nuisances” not only on their own

property, but in areas deemed by law enforcement officials to

be in close proximity to their property. Accordingly, hotel

and motel owners are subject to criminal penalties if conduct

by third persons that qualifies as a “nuisance” occurs on or in

“close proximity” to their property. In other words, if

nuisance activity occurs on or in close proximity to their

property, property owners or operators may be held

criminally liable even if they are wholly unaware of that

conduct. Just as the ordinance in Morales was defective

because it subjected broad swaths of innocent conduct to

criminal sanction, here too the challenged ordinances subject

property owners to criminal prosecution for failing to

eliminate nuisance conduct of which they may be unaware

and over which they may have absolutely no control.

Second, the ordinance gives law enforcement officials

unbridled discretion to interpret whether the operation of a

hotel “results in” or “contributes to” nuisance activity.

Presumably, an officer will not be able to make this

determination based on any personal knowledge or

observation of the internal workings of the hotel, which are

not necessarily visible to the public. Instead, the officer will

infer a violation based on the existence of a nuisance activity.

As was the case in Morales, the ordinance provides “absolute

discretion” to decide what activities constitute a violation. Id.

at 61 (internal quotation omitted). This type of standardless

discretion permits and even encourages arbitrary and

discriminatory enforcement of the ordinance. Thus, in effect,

the owners and operators of hotels and motels will be held

criminally responsible for all nuisance activity on or near

their property, whether or not the operation of their property

has caused or contributed to such activity.

Taken together, the ordinances at issue, and specifically

Section 8.03.120(A) of Ordinance No. 12136, are

unconstitutionally vague. First, a virtually impossible burden

is imposed on individuals seeking to conform their conduct to

the requirements of the ordinance. Although the ordinance

lists examples of nuisance activity, it expressly states that the

list is not comprehensive. More importantly, the ordinance

requires that the operation of a hotel property not “result in”

or “contribute to” nuisance activity on or in close proximity to

the property. Like the ordinance in Morales, this ordinance is

vague because “‘no standard of conduct is specified at all.’”

527 U.S. at 60 (quoting Coates v. Cincinnati, 402 U.S. 611,

614 (1971)). :

In addition, the formulation by the Morales plurality further

makes clear that a law may be unconstitutionally vague on its

face if it (1) involves criminal penalties, (2) lacks a mens rea

requirement, and (3) implicates constitutionally protected

conduct. /d. at 55 (Stevens, J.). “When vagueness permeates

the text of such a law, it is subject to facial attack.” Jd. The

ordinances at issue here suffer from the same defects as the

ordinance struck down in Morales. First, Ordinances No.

12136 and No. 12137 establish criminal penalties for

violations of the operating standards for hotels and motels as

amended by Ordinance No. 12136. See Pet. App. 63a, 81a.

Second, neither ordinance includes a mens rea requirement.

Specifically, Section 8.03.120(A) of Ordinance No. 12136,

which requires that “[t]he operation of the property shall not

result in repeated nuisance activities on the property or

contribute to nuisance activities in close proximity to the

property,” lacks any scienter requirement. /d. at 62a. Third,

the ordinance implicates the constitutionally protected right to

earn a living. See Bd. of Regents v. Roth, 408 U.S. 564, 572

(1972) (the liberty guaranteed by the Fourteenth Amendment

includes “‘the right of the individual . . . to engage in any of

the common occupations of life’”’) (quoting Meyer v.

Nebraska, 262 U.S. 390, 399 (1923)). Because the

ordinances satisfy these three elements from Morales, the

court should have inquired whether vagueness “permeates”

the text of the ordinances.

In sum, had the court below applied the Morales standard

instead of the Salerno standard, it could not have upheld the

dismissal of petitioners’ facial vagueness claim.

CONCLUSION

For these reasons, the petition for writ of certiorari should

be granted.

Respectfully submitted,

FRANK A. WEISER CARTER G. PHILLIPS*

ATTORNEY AT LAW PAUL J. ZIDLICKY

3460 Wilshire Boulevard CASSIDY KESLER PINEGAR

Suite 903 SIDLEY AUSTIN BROWN &

Los Angeles, California 90010 WOOD LLP

(213) 384-6964 1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

Counsel for Petitioners

April 1, 2004 * Counsel of Record

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

No. 02-15220

HOTEL & MOTEL ASSOCIATION OF OAKLAND; Balu K. Patel;

Usha B. Patel; Navin Patel; Tara N. Patel; Bharat Patel;

Niketa Patel, Parsottam B. Patel; Gita Patel; Vinod P.

Patel; Madhuben V. Patel; Jagdish Patel; Bharti J. Patel;

Ramesh D. Patel; Thakorbhai G. Patel; Manjuben T. Patel;

Kirit S. Patel; Ranjan K. Patel; Manubhai L. Patel;

Shardaben M. Patel; Pravin Patel; Sima Patel; Natwarbhai

Patel; Jagdishkumar B. Patel; Jayeshkumar D. Patel;

Hasmukh B. Patel; Bhisma Patel; Babubhai K. Patel;

Kalaben B. Patel; Vallabh H. Patel; Jamanaben V. Patel;

Ranchodbhai D. Patel; Parbhubhai V. Patel; Kamuben P.

Patel; Govindbhai Z. Patel; Madhuben G. Patel; Jotindra

Patel; Rekha J. Patel; Dilip P. Patel; Kalpana D. Patel: Anil

P. Kumar; Sunita A. Kumar; Rajendra K. Kalyan; Pushpa

R. Kalyan; Bhupendra K. Kalyan; Bhartiben B. Kalyan;

Narbada Kalyan Kalyan; Harish Sharma; Naresh Patel;

Bobby Newman,

Plaintiffs-Appellants,

CITY OF OAKLAND, a municipal corporation; City of Oakland

Police Department; City of Oakland Police Officer D.

Martinez Sued As Doe 1; City of Oakland Police Officer T.

Martin Sued as Doe 2; Oakland Housing Inspector Ronald

Abab sued as Doe 3; City Housing Inspector Gerald

Donahue Sued as Doe 4,

Defendants-Appellees.

Argued and Submitted April 10, 2003.

Filed Sept. 17, 2003.

Appeal from the United States District Court for the

Northern District of California; Thelton E. Henderson,

District Judge, Presiding. D.C. No. CV-99-03758-THE/JCS.

Before NOONAN, McKEOWN, and RAWLINSON,

Circuit Judges.

OPINION

McKEOWN, Circuit Judge.

This case arises from a constitutional challenge to a pair of

city ordinances that place maintenance and _habitability

restrictions on hotels, motels, and rooming houses (“hotels”)

located in Oakland, California. One ordinance requires all

hotels to comply with certain maintenance, habitability,

security and record-keeping standards. The other ordinance

reclassifies those hotels with so-called “non-conforming use”

status to “Deemed Approved” status, and requires Deemed

Approved hotels to comply with the new standards in order to

retain that status. Appellants, the owners and operators of

various Oakland hotels as well as their trade association,

challenge the ordinances as an unconstitutional taking under

the Fifth Amendment. They also claim that the ordinances

violate their Fourteenth Amendment rights to procedural due

process and equal protection and are unconstitutionally

vague. We conclude that the ordinances pass constitu-

tional muster and thus affirm the district court’s dismissal of

the action.

BACKGROUND

In spring of 1999, the Oakland City Council enacted two

ordinances for the express purpose of improving the physical

conditions in and around hotels within Oakland. The Council

had found over the preceding several years a continuing

pattern of illegal activity, including prostitution and drug use,

associated with many -hotels that were poorly maintained.

Steps to control the problem activities, including increased

policing and the filing of civil abatement actions by the City

Attorney, resulted in little success. The Council concluded

that regular maintenance and adequate property management

would lead to better outcomes.

The first of these ordinances, Ordinance No. 12136,

amends the Oakland Municipal Code (“OMC”) to add

Chapter 8.03 (“Operating Standards for Hotels, Motel[sic]

and Rooming Houses”),' which sets forth in detail various

regulations with respect to housekeeping conditions, prop-

erty security, and prevention of criminal and nuisance ~

activity.” The ordinance also amends Chapter 5.34 of the

OMC to add specific record-keeping requirements relating to

guest receipts.

The companion measure, Ordinance No. 12137, amends

the Oakland Planning Code (“OPC”) to create a “Deemed

Approved Hotel Program” at Chapter 17.157. The ordinance

reclassifies as “Deemed Approved Hotel Activities” all of

' The terms “hotel” and “rooming house” are defined by statute. See

OMC § 8.03.040. A “hotel” is “any public or private space or structure for

living therein, including but not limited to any: inn, hostelry, tourist home

or house, motel rooming house, mobile home or other living place within

the city, offering the right to use such space for sleeping or overnight

accommodations. . . .” OMC § 4.24.020. The term “rooming house” is

defined by the Oakland Planning Code (“OPC”) to include certain

buildings accommodating guests on a weekly or longer basis as well as

those accommodating “partly on a weekly or longer basis and partly for a

shorter time period. . . .” OPC §§ 17.10.690, 17.10.110, 17.10.120.

: Specifically, Chapter 8.03 contains individual subsections covering:

management practices, inspection of records and facilities, property

security, housekeeping conditions in excess of normal “wear and tear,”

room furnishings, exterior of property, common areas, and criminal and

nuisance activity.

those hotels that previously had “legal nonconforming use”

status’ and requires that Deemed Approved hotels comply

with the new performance standards established by Ordinance

No. 12136. Failure to abide by the new performance

standards constitutes an infraction, and may result in

misdemeanor prosecution, fines, and enforcement actions.

OPC § 17.157.180. Violations may ultimately lead, after a

public hearing and administrative review, to revocation of a

hotel’s Deemed Approved status. OPC § 17.157.120.

The-Hotel & Motel Association of Oakland and a number

of individual hotel owners and operators (collectively the

“Association”) brought this action challenging the ordinances

under both the United States and California Constitutions.

After various interim rulings in which the district court

dismissed certain of the Association’s claims, the parties

agreed to a Stipulation and Judgment of Dismissal, which was

entered by the district court. Under the Stipulation and

Judgment of Dismissal, certain claims were “dismissed with

prejudice with no right of appeal,” while the remaining claims

were “preserved for appeal.”

As a result of these proceedings, the only claims remaining

on appeal are: a claim alleging an unconstitutional taking of

property under the Fifth Amendment, claims alleging

violations of the procedural Due Process and Equal Protec-

tion clauses of the Fourteenth Amendment, and a facial

challenge alleging that the Oakland ordinances are uncon-

stitutionally vague.

3 Under California law, “{a] legal nonconforming use is one that

existed lawfully before a zoning restriction became effective and that iS

not in conformity with the ordinance when it continues thereafter.”

Hansen Bros. Enters., Inc. v. Board of Supervisors, 12 Cal.4th 533, 540 n.

1, 48 Cal.Rptr.2d 778, 907 P.2d 1324 (Cal.1996).

DISCUSSION

I. JURISDICTION

Although the parties did not question appellate jurisdiction,

we raised the issue sua sponte and requested supplemental

briefing. See WMX Techs., Inc. v. Miller, 104 F.3d 1133,

1135 (9th Cir.1997) (en banc) (“[W]e have raised [the ques-

tion of jurisdiction] sua sponte, as we must.”). Our concern

arose because of the posture of the district court’s initial order

granting in part the City’s Rule 12(b)(6) motion to dismiss.

Some of the claims addressed by the order were dismissed

“without prejudice,” and it was not clear from the parties’

initial briefing whether the court had entered a final judgment

dismissing the action in its entirety.

“A ruling is final for purposes of [28 U.S.C.] § 1291 if it

(1) is a full adjudication of the issues, and (2) clearly

evidences the judge’s intention that it be the court’s final act

in the matter.” Nat’! Distrib. Agency v. Nationwide Mut. Ins.

Co., 117 F.3d 432, 433 (9th Cir.1997) (internal quotation

marks omitted). The record before us demonstrates that the

district court intended to dismiss the action in its entirety after

an adjudication of all the issues, despite the fact that some

claims were originally dismissed without prejudice. By its

terms, the Stipulation and Judgment of Dismissal signed by

the district court served as an “entry of dismissal of the. . .

action.” The procedural history leading up to that order

documents the court’s intent. After several of the claims in

the First Amended Complaint were dismissed without

prejudice, the Association reincorporated those claims in a

Second Amended Complaint. Following the court’s sub-

sequent order granting judgment on the pleadings as to the

Second Amended Complaint, the only claims that remained

were a Fourth Amendment claim brought by individual

plaintiffs against the City and an Equal Protection claim

based on discriminatory intent. Both claims were dismissed

with prejudice with no right of appeal in the Stipulation and

Judgment of Dismissal. Accordingly, the district court’s

dismissal of the action constituted a reviewable final decision

and we have jurisdiction pursuant to 28 U.S.C. § 1291. See

De Tie v. Orange County, 152 F.3d 1109, 1111 (9th Cir.1998)

(“[D]ismissal of an action, even when it is without prejudice,

is a final order.” (emphasis added)).

If. FIFTH AMENDMENT TAKINGS CHALLENGE

We first address the facial takings claim brought under the

Takings Clause of the Fifth Amendment. “A facial challenge

involves a claim that the mere enactment of a statute con-

stitutes a taking,” and is to be distinguished from an “as

applied” challenge, which “involves a claim that the

particular impact of a government action on a specific piece

of property requires the payment of just compensation.”

Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 686 (9th

Cir.1993) (citation and internal quotation marks omitted). The

Association, which faces an “uphill battle” in bringing this

facial attack, Keystone Bituminous Coal Ass’n v. DeBene-

dictis, 480 U.S. 470, 495, 107 S.Ct. 1232, 94 L.Ed.2d 472

(1987), urges that the mere enactment of Ordinance

No. 12137 constituted a “regulatory taking” of property by

the City.

As we have explained previously, “[a] regulatory taking

occurs when the value or usefulness of private property is

diminished by a regulatory action that does not involve a

physical occupation of the property.” Levald, 998 F.2d at

684. In contrast to condemnations and physical takings,

which find their origin in the plain language of the Fifth

Amendment, regulatory takings are “of more recent vintage”

in the Supreme Court’s jurisprudence and do not easily lend

themselves to the straightforward application of set formulas

and categorical rules. Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Planning Agency, 535 U.S. 302, 322, 122 S.Ct.

1465, 152 L.Ed.2d 517 (2002). Nevertheless, “the contours

have been established: a land use regulation does not con-

stitute a taking if the regulation does not deny a landowner all

economically viable use of the property and if the regulation

substantially advances a legitimate government interest.”

Buckles v. King County, 191 F.3d 1127, 1140 (9th Cir.1999).

The district court appropriately rejected as “unripe” the

Association’s contention that its members are being denied

economically viable use of their land. “Under our precedents,

a facial takings claim alleging the denial of the economically

viable use of one’s property is unripe until the owner has

sought, and been denied, just compensation by the state.”

San Remo Hotel v. City and County of San Francisco, 145

F.3d 1095, 1101 (9th Cir.1998). This jurisdictional predicate

is grounded in the text of the Fifth Amendment and in the

Supreme Court’s admonition that “no constitutional violation

occurs until just compensation has been denied.” Williamson

County Reg’! Planning Comm'n v. Hamilton Bank, 473 U.S.

172, 194 n. 13, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). As

the district court correctly pointed out, nowhere in its

pleadings does the Association aver that it has pursued state

administrative or judicial remedies to seek just compensation.

Accordingly, the takings claim, insofar as it alleges a denial

of economically viable use, is unripe for review.*

The Association also pursues an alternative facial taking

theory, namely that Ordinance No. 12137 does not sub-

stantially advance a legitimate state interest. The just

compensation ripeness requirement does not apply to this

claim, as it does not depend on the extent to which the

* As we noted in San Remo Hotel, this ripeness requirement does not

apply “where the state does not have a ‘reasonable, certain, and adequate

provision for obtaining compensation’ at the time of the taking, in which

case the facial takings claim is instantly ripe.” 145 F.3d at 1101-02

(quoting Williamson County, 473 U.S. at 194, 105 S.Ct. 3108). But the

Association cannot avail itself of this exception as “we have expressly

held that, post-1987, California’s inverse condemnation procedures are

adequate to address a regulatory takings claim.” /d. at 1102.

Association was compensated. See Sinclair Oil Corp. v.

County of Santa Barbara, 96 F.3d 401, 406 (9th Cir.1996)

(citing Yee v. City of Escondido, 503 U.S. 519, 533-34, 112

S.Ct. 1522, 118 L.Ed.2d 153 (1992)). Rather, the claim is

based on the assertion that the municipality never had

constitutional authority to adopt the ordinance, regardless of

any compensation that might be offered. See Daniel v.

County of Santa Barbara, 288 F.3d 375, 385 (9th Cir.2002),

cert. denied, 537 U.S. 973, 123 S.Ct. 466, 154 L.Ed.2d 329

(2002). We therefore address this claim on the merits.

The Association’s central contention is that whether the

challenged ordinances substantially advance a legitimate state

interest presents a factual question incapable of resolution on

a motion to dismiss prior to discovery. The Association relies

heavily on language by the Supreme Court in Penn Central

Transportation Co. v. New York City, 438 U.S. 104, 124, 98

S.Ct. 2646, 57 L.Ed.2d 631 (1978), where the Court

characterized regulatory takings cases as “essentially ad hoc,

factual inquiries.” The Association argues that because it has

alleged that there is neither specific evidence of a legitimate

government purpose nor any evidence that the regulation is

reasonably related to such a purpose, the district court was

premature in dismissing its claim.

The Association’s reading of the regulatory takings juris-

prudence, as well as the record in this case, is unduly

restrictive. The Supreme Court phraseology seized upon by

the Association does not stand for the position that every

inquiry into the appropriateness of a regulation’s purpose or

adopted means of implementation requires the development

of a sophisticated factual record or, as the argument implies,

resolution by a jury. Far from it. As.the Court recently

explained in 7ahoe-Sierra, “ad hoc, factual” determinations

frequently arise in regulatory takings cases because these

cases, unlike those involving physical appropriation or

condemnation (where the fact of a taking is typically obvious

or undisputed), do not easily lend themselves to broad

categorical rules. 535 U.S. at 321-326 & n: 17, 122 S.Ct.

1465. Regulatory takings claims, in short, do not easily fit

into a pre-ordained construct or little box; individualized

scrutiny of such claims does not foreclose resolution on a

motion to dismiss or a motion for summary judgment.

Our decision in Buckles is instructive. In that case, land-

Owners whose property was redesignated for residential use

argued that whether the decision substantially advanced a

legitimate government interest was a jury question incapable

of resolution on summary judgment. 191 F.3d at 1140.

Following the district court’s dismissal of the case, the

Supreme Court decided City of Monterey v. Del Monte Dunes

at Monterey, Ltd., 526 U.S. 687, 721, 119 S.Ct. 1624, 143

L.Ed.2d 882 (1999), in which the Court approved of a trial

court’s decision to let a jury decide whether, in light of the

context and history of the development application process, a

city’s decision to reject a particular development plan

substantially advanced a legitimate state purpose. We

rejected the broad reading of Del Monte Dunes urged by the

landowners and concluded that the Supreme Court did not

intend to “swallow long-standing summary judgment prin-

ciples and always require a jury trial to determine whether the

government’s interests were legitimate and substantial.”

Buckles, 191 F.3d at 1140.

We decline to adopt the remarkable position that deter-

mining whether an ordinance, on its face, substantially

advances a legitimate state interest can never be decided on a

motion to dismiss. We also reject the Association’s position

that the record before us is not sufficiently developed to

warrant disposition at this stage. See Agins v. City of ~

Tiburon, 447 U.S. 255, 261, 100 S.Ct. 2138, 65 L.Ed.2d 106

(1980) (looking to the state’s justifications provided in the

Statute to conclude zoning ordinances substantially advanced

legitimate interests).

10a

Although the Association’s takings challenge is directed to

Ordinance No. 12137 and whether it advances a legitimate

state interest, it is useful to discuss the ordinances in tandem.

Both ordinances are supported by the same legislative find-

ings and are intended to dovetail one another in enforcement.

The ordinances, on their face, are directed toward protecting

the health and welfare of citizens and visitors in Oakland.

Based on legislative findings, the ordinances target an

increasing concentration of illegal activity, unsanitary and

dangerous conditions, and a variety of nuisances associated

with problem hotels. The purpose is undeniably legitimate,

see Keystone Bituminous Coal, 480 U.S. at 492, 107 S.Ct.

1232 (explaining that the “public interest in preventing

activities similar to public nuisances is a substantial one” that

rarely results in a taking), and the means chosen substantially

advance that purpose.

A review of the ordinances and the extensive legislative

findings reveals that the City documented the problems,

undertook various approaches and efforts to abate the illegal

activity and unsanitary conditions, and ultimately concluded

that Ordinance Nos. 12136 and 12137 were in the “best

interest” of the community. For example, the City Council

found that the existing housing code did not address the

problems and that the police spent inordinate time and

resources policing certain businesses. Further, the problem

businesses allowed open use of their property for drug and

prostitution activity and took minimal action to curb this

activity. The City also documented safety, security, health,

and other hazards and, notably, concluded that “there is a

correlation between high levels of drugs and prostitution

activity and the existence of substandard and public nuisance

conditions at the problem properties.”

Ordinance No. 12136 institutes basic maintenance, house-

keeping, and security regulations applicable to all hotels.

Recognizing that civil abatement actions and other attempts

il oie i ee

ba)

;

lla

to improve conditions were unsuccessful in the past, and that

few legal nonconforming businesses have revocable land use

permits, Ordinance No. 12137 takes the further step of

refashioning nonconforming use status such that continued

operation is conditioned on a business’s compliance with the

new regulations. A reasonable relationship exists between

this regulatory action and the public purpose it is meant

to serve. Thus, the ordinance substantially advances a

legitimate government interest. See Chevron U.S.A., Inc. v.

Cayetano, 224 F.3d 1030, 1041 (9th Cir.2000) (discussing

Del Monte Dunes and explaining that a “challenged regu-

latory action ‘substantially advances’ its interest if it bears a

reasonable relationship to that interest.”).

The Association also raises the concern that Oakland’s

new ordinances were enacted against the backdrop of exist-

ing statutory protection for nonconforming uses. OPC

§ 17.114.040, in effect at the time the ordinances were

enacted, generally allows a nonconforming use to be

continued and maintained indefinitely and the rights to such

use run with the land. According to the Association,

Ordinance No. 12137 effectively extinguishes the non-

conforming use guarantees of that provision.

But Oakland’s new regulation does nothing of the sort.

Nothing in Ordinance No. 12137 suggests that the redesig-

nation of properties from “non-conforming” to “Deemed

Approved” status has any effect on the conditional guarantees

in Ordinance No. 12137 or any other Statutory provisions

applying to what were formerly known as legal noncon-

* Section 17.114.40 provides, in relevant part: A nonconforming use

which is in existence on the effective date of the zoning regulations or of

any subsequent rezoning or other amendment thereto which makes such

use nonconforming, and which existed lawfully under the previous zoning

controls . . . may thereafter be continued and maintained indefinitely, and

the rights to such use shall run with the land, except as otherwise specified

in the nonconforming use regulations.

12a

forming businesses.° Rather, the text of Ordinance No. 12137

mandates precisely the opposite. See OPC § 17.157.030(C)

(“The Nonconforming Use provisions of the zoning regu-

lations . . . shall apply to the Deemed Approved Hotel

regulations.”). Even if we were to accept the Association’s

contention that a conflict exists between Ordinance No.

12137 and § 17.114.040, there is no substantive change with

respect to the Association’s use of its property other than

compliance with basic health and safety regulations

applicable to all other hotels. See City of Oakland v. Superior

Court, 45 Cal.App.4th 740, 757, 53 Cal.Rptr.2d 120 (1996)

(upholding a similar “Deemed Approved” program for liquor

stores on the ground that “[a] municipality retains the right to

abate nuisances and enforce its criminal laws even in the face

of grandfather rights”); see also Bauer v. City of San Diego,

75 Cal.App.4th 1281, 1292-95, 89 Cal.Rptr.2d 795 (1999)

(discussing grandfather rights of nonconforming businesses in

context of deemed approved program). -

In sum, because Ordinance No. 12137 substantially ad-

vances a legitimate state interest and no other takings claim

was ripe for review, we conclude that the Association’s

takings claims were properly dismissed.

III. PROCEDURAL DUE PROCESS CLAIM

The Association’s procedural due process claim stems

from a complaint that it did not receive an individualized

hearing prior to the enactment of the ordinances. Whether the

Association was accorded procedural due process when the

new hotel regulations were enacted depends on the nature of

the decision leading to the City’s newly enacted regulations.

Generaliy, if the “action complained of is legislative in

nature, due process is satisfied when the legislative body

performs its responsibilities in the normal manner prescribed

° Section 17.114.040’s guarantees are not absolute. They apply “ex-

cept as otherwise specified in the nonconforming use regulations.”

13a

by law.” Halverson v. Skagit County, 42 F.3d 1257, 1260

(9th Cir.1995) (as amended) (internal quotation marks

omitted). This rule of thumb follows from the observation

made by Justice Holmes almost a century ago that, even

though an individual’s property rights may be affected by the

enactment of a general statute, “[w]here a rule of conduct

applies to more than a few people, it is impracticable that

everyone should have a direct voice in its adoption.” Bi-

Metallic Inv. Co. v. State Bd. of Equalization, 239 US. 441,

445, 36 S.Ct. 141, 60 L.Ed. 372 (1915).

Of course, public decision-makers cannot sidestep the

dictates of due process by simply giving their actions a

legislative moniker. Our cases have been careful to focus on

the “character of the action, rather than its label,” avoiding

“formalistic distinctions between ‘legislative’ and ‘adju-

dicatory’ or ‘administrative’ government actions.” Harris vy.

County of Riverside, 904 F.2d 497, 501 (9th Cir.1990). In

Harris, we held that, notwithstanding an action’s outward

appearance as a legislative act, greater procedural rights may

attach where only a few persons are targeted or affected and

the state’s action “exceptionally affect[s]” them “on an

individual basis.” Jd. at 502 (internal quotation marks

omitted). By contrast, “our cases have determined also that

governmental decisions which affect large areas and are not

directed at one or a few individuals do not give rise to the

constitutional procedural due process requirements of

individualized notice and hearing; general notice as provided

by law is sufficient.” Halverson, 42 F.3d at 1261.

The City Council’s actions constituted the purest of

legislative acts. Both ordinances are laws of general applic-

ability affecting a broad geographic area and the complete

range of hostelries, as opposed to one or a few individuals or

establishments. Ordinance No. 12136, which sets forth a

variety of operating standards, states that its provisions apply

to all hotels “which provide shelter, furniture, linens, and

l4a

housekeeping services, etc. within the guest room(s) and

throughout the property.” OMC § 8.03.030. Ordinance No.

12137, aimed at amending the non-conforming use regula-

tions, indicates that “[t]he Deemed Approved Hotel regula-

tions shall apply, to the extent permissible under other laws,

to all Legal Nonconforming Hotels and Rooming Houses

within the City.” OPC § 17.157.030(A) (emphasis added).

The Association seeks refuge in Harris by arguing that, in

adopting Ordinance No. 12137, the City targeted “a relatively

small number of persons” who were “exceptionally affected”

on an “individual basis.” 904 F.2d at 502 (internal quotation

marks omitted). But the mere fact that a subcategory of

hotels motivated the City Council to act does not change the

legislative quality of the ordinance. Unlike in Harris, where

a county specifically targeted a single individual’s property

for a zoning change after notice had been published for an

area-wide plan amendment, Ordinance No. 12137 is a garden

variety statute affecting an entire class of Oakland hotels.

None of the allegations made by the Association, or by the

forty-nine individual plaintiffs who brought this action,

support the claim that one or only a few individuals were

targeted or affected.

Nor were any of the members of the Association “ex-

ceptionally affected . . . on an individual basis.” Harris, 904

F.2d at 502. Unlike in Harris, where the zoning decision

completely altered the permissible uses of the individual’s

land by changing it from commercial to residential use, the

ordinances effect no substantive change in the legal status of

the hotels. The hotels still enjoy their non-conforming use

privileges, only with a different label and with the added

requirement that they abide by the most basic habitability and

nuisance standards. Significantly, in the event of claimed

non-compliance, a comprehensive administrative apparatus

ensures that violators have the right to a noticed public

hearing and an appeal. See OPC §§ 17.157.070-150.

Se hie eee

15a

When the City Council exercised its legislative functions in

a lawful manner, the Association received all the process that

was due. The Association’s constitutional rights were

“protected in the only way that they can be in a complex

society, by their power, immediate or remote, over those who

make the rule.” Bi Metallic, 239 U.S. at 445, 36 S.Ct. 141.

No additional individualized notice or hearing was required.

IV. EQUAL PROTECTION AND VAGUENESS

CHALLENGES

The Association raises two final constitutional challenges

to the Oakland ordinances: an equal protection claim and a

vagueness challenge.

A. EQUAL PROTECTION

The Association’s only equal protection argument on

appeal is that Ordinance No. 12137, unlike its counterpart

Ordinance No. 12136, impermissibly targets nonconforming

hotels. Because there is no allegation that the ordinance

burdens a suspect class or a fundamental interest, the City

must demonstrate only that the classification scheme is

“rationally related to a legitimate state interest.” City of New

Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49

L.Ed.2d 511 (1976).

Ordinance No. 12137 easily passes the “highly deferential”

rational basis standard of review for the reasons we addressed

in our analysis of the “substantially advance” requirement of

the facial takings claim. See S. Pac. Transp. Co. v. City of

Los Angeles, 922 F.2d 498, 507 (9th Cir.1990); see also

Christensen v. Yolo County Bd. of Supervisors, 995 F.2d 161,

165-66 (9th Cir.1993) (concluding, in context of takings and

equal protection challenges, that legislation both substan-

tially advanced and was rationally related to legitimate

State interest).

——

l6a

The direct links between the legislative findings and the

scope of the oidinances serve to distinguish Oakland’s

scheme from City of Cleburne v. Cleburne Living Center,

Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985),

the case relied upon by the Association. In that case, the

Supreme Court concluded that an ordinance requiring a

special use permit for homes for the mentally retarded did not

pass rational basis scrutiny because it was based on irrational

prejudices rather than a showing that the home would pose a

special threat to the city’s interests. Id. at 448-49, 105 S.Ct.

3249. Here, by contrast, Deemed Approved hotels are subject

to the same standards as all other hotels and, to the extent that

those standards are uniquely enforced as a “condition” of

Deemed Approved status, there is a reasonable justification

for doing so. Ordinance No. 12137, on its face, states that

“few or none of the legal nonconforming businesses have

land use permits with associated conditions that can be

revoked for violations of the conditions or public nuisance-

related activities.” This enforcement dilemma underscores

that, unlike the ordinance invalidated in Cleburne, Oakland’s

enforcement scheme stems not from an irrational prejudice

but rather from the unique traits of the target businesses.

Ordinance No. 12137 does not deny the Association equal

protection. See Board of Trustees v. Garrett, 531 U.S. 356,

366-67, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (“Under

rational-basis review, where a group possesses ‘distinguish-

ing characteristics relevant to interests the State has _ the

authority to implement,’ a State’s decision to act on the

basis of those differences does not give rise to a constitu-

tional violation.” (quoting Cleburne, 473 U.S. at 441, 105

S.Ct. 3249)).

B. VAGUENESS

The Association’s vagueness claim comes in the form of a

facial challenge, presenting a hurdle that is difficult for the

Association to scale. To bring a successful facial challenge

Be ent ed ld ad Ae He ls Ra a aR.

17a

outside the context of the First Amendment, “the challenger

must establish that no set of circumstances exists under which

the [statute] would be valid.” United States v. Salerno, 481

U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).

Although Salerno itself was not a void-for-vagueness case,

the principle it articulated was a general one, and the

Supreme Court previously explicitly limited facial vagueness

claims under the same standard:

In a facial challenge to the overbreadth and vagueness of

a law, a court’s first task is to determine whether the

enactment reaches a substantial amount of constitu-

tionally protected conduct. If it does not, then the

overbreadth challenge must fail. The court should then

examine the facial vagueness challenge and, assuming

the enactment implicates no constitutionally protected

conduct, should uphold the challenge only if the

enactment is impermissibly vague in all of its

applications. ’

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

455 U.S. 489, 494-95, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)

(footnotes omitted).

We recognize that, despite the Supreme Court’s directive

in Hoffman Estates and Salerno, the Court’s most recent

discussion of facial vagueness challenges has cast some doubt

on the “no set of circumstances” requirement. In City of

Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144

L.Ed.2d 67 (1999), the Court did not apply the Salerno test in

reviewing, and ultimately upholding, a facial challenge to an

” The Association does not proceed under the overbreadth doctrine,

which “allows a plaintiff to challenge a statute . . . because of a judicial

prediction or assumption that the statute’s very existence may cause others

not before the court to refrain from constitutionally protected speech or

expression.” Nunez v. City of San Diego, 114 F.3d 935, 949 (9th

Cir.1997) (citation and internal quotation marks omitted). It claims only

that the ordinances are unconstitutionally vague on their face.

18a

ordinance banning gang members from loitering in public

places after being ordered to disperse. Rejecting the dissent’s

argument that Salerno’s all-or-nothing test applied to all cases

other than free-speech cases subject to the overbreadth

doctrine, the plurality stated that the Salerno formulation was

dictum. Id. at 55 n. 22, 119 S.Ct. 1849. The plurality further

noted that it did not need to resolve the viability of the

Salerno rule, which it characterized as a species of third-

party standing, because Morales arose from a state, rather

than a federal, court. Jd. (“Whether or not it would be appro-

priate for federal courts to apply the Salerno standard in some

cases—a proposition which is doubtful—state courts need not

apply prudential notions of standing created by this Court.”).

Although we have not had occasion to consider the impact

of Morales on facial challenges under the void-for-vagueness

doctrine, we have done so in another context. In S.D. Myers,

Inc. v. City and County of San Francisco, 253 F.3d 461 (9th

Cir.2001), we reviewed a facial challenge under the

Commerce Clause and rejected the argument that Salerno had

been undermined. Acknowledging the dicta of the Morales

plurality, we observed:

[A]nother plurality of Justices is equally adamant that

Salerno is the correct standard in every context, with the

exception of certain First Amendment cases. See

Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147

L.Ed.2d 743 (2000) (Thomas, J., dissenting, joined by

two justices); Planned Parenthood of S. Arizona v.

Lawall, 180 F.3d 1022, 1026 (9th Cir.1999). While we

have held that [Planned Parenthood v. Casey, 505 US.

833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)] ‘overruled

Salerno in the context of facial challenges to abortion

statutes,’ Lawall, 180 F.3d at 1027, we will not reject

* Sade:

Nace At Deca Kak sitio SS ante be

ss Hecagnts

19a

Salerno in other contexts until a majority of the Supreme

Court clearly directs us to do so.

Id. at 467. We subsequently applied the Salerno rule to

another facial challenge outside the First Amendment context.

See United States v. Bynum, 327 F.3d 986 (9th Cir.2003)

(facial challenge to anti-bribery statute).

We stand by our holding in S.D. Meyers. Until a majority

of the Supreme Court directs otherwise, a party challenging

the facial validity of an ordinance on vagueness grounds

outside the domain of the First Amendment must demonstrate

that “the enactment is impermissibly vague in all of its

applications.” Hoffman Estates, 455 U.S. at 495, 102 S.Ct.

1186.° No such showing was made here, and even if the all-

or-nothing principle were inapplicable, the Association’s

challenge cannot succeed. The ordinances are simply not

vague on their face or in their application.

The Association takes issue with the requirement in

Ordinance No. 12136 that prohibits hotel operators from

contributing to nuisance activities on or in “close proximity

to” the property, OMC § 8.03.120(A), but fails to allege that

every (or any) application of that provision would qualify as

unconstitutionally vague. Indeed, the Association fails even

to identify how the ordinance would be impermissibly vague

as applied to its own members. Without more, we have little

trouble concluding that Ordinance No. 12136 provides suf-

ficient notice to ordinary hotel owners of the conduct that is

* Although we address the Salerno rule in the context of a facial vague-

ness challenge, the rule’s fate may also have implications for Fifth

Amendment takings challenges. See Kittay v. Giuliani, 252 F.3d 645, 647

(2d Cir.2001) (applying Salerno to facial takings challenge); Gulf Power

Co. v. United States, 187 F.3d 1324, 1336 (11th Cir.1999) (same). Our

cases generally have not applied Salerno to facial takings challenges, and

because we uphold dismissal of the Association’s takings claim on other

grounds, see supra Part II, we need not resolve here the precise contours

of the rule’s application in that context.

20a

prohibited and gives law enforcement ample guidance to

enforce it in a non-arbitrary way. Nunez v. City of San Diego,

114 F.3d 935, 940 (9th Cir.1997) (explaining that “an

ordinance must (1) define the offense with sufficient defi-

niteness that ordinary people can understand what conduct is

prohibited; and (2) establish standards to permit police to

enforce the law in a non-arbitrary, non-discriminatory man-

ner.”) (citing Kolender v. Lawson, 461 U.S. 352, 357, 103

S.Ct. 1855, 75 L.Ed.2d 903 (1983)).

The phrase “close proximity” clarifies that hotels may not

contribute to nuisance activities “on” or “very near” the hotel

property. See Merriam-Webster’s Collegiate Dictionary 941

(10th ed.1993) (defining “close” as “being near in time,

space, effect, or degree” and “proximate” as “very near’’).

The provision in question provides no less than nineteen

specific examples of the types of conduct to which this

provision applies, such as harassment of passersby, gambling,

and prostitution. OMC § 8.03.120(A). When read in context

and applied to these forms of conduct, the phrase “close

proximity” identifies a “sufficiently fixed place” to provide

the type of notice and standards required by the Constitution.

Grayned v. City of Rockford, 408 U.S. 104, 111i, 92 S.Ct.

2294, 33 L.Ed.2d 222 (1972) (approving ordinance for-

bidding certain activity “adjacent” to school and citing Cox v.

Louisiana, 379 U.S. 559, 568, 85 S.Ct. 476, 13 L.Ed.2d 487

(1965), for the position that “near” a courthouse is not

impermissibly vague as applied).

The Association also claims that Ordinance No. 12137,

which contemplates criminal penalties, does not contain a

mens rea requirement. This omission, argues the Association,

conflicts with the Supreme Court’s instruction that the

absence of a scienter requirement is an important factor in

evaluating a vagueness challenge. See Colautti v. Franklin,

439 US. 379, 395, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979). The

Court, however, has never suggested that the absence of a

a eee

2la

mens rea requirement, by itself, renders a Statute uncon-

Stitutional. Nor has the Court gone so far as to indicate that

the absence of a scienter requirement trumps Salerno’s

requirement that the complainant establish that the law is

impermissibly vague in all its applications. See Hoffman

Estates, 455 U.S. at 497-99, 102 S.Ct. 1186 (recognizing that

scienter requirement “may mitigate” a statute’s vagueness,

but stating that “[t]o succeed .. . the complainant must

demonstrate that the law is impermissibly vague in all of its

applications”); see also Staley v. Jones, 239 F.3d 769, 790-91

(6th Cir.2001) (observing that the Court has not unequiv-

ocally stated that a statute without a scienter requirement may

| be facially invalidated on vagueness grounds without con-

sidering whether the statute is invalid in all applications).

The Association does not allege that Ordinance No. 12137,

which applies the substantive requirements of Ordinance No.

12136 to Deemed Approved hotels, is impermissibly vague in

all of its applications. The absence of a scienter: requirement

does not alter our conclusion that neither ordinance is

unconstitutionally vague on its face.

CONCLUSION

In sum, we conclude that the ordinances do not result in an

unconstitutional taking of the Association’s property under

the Fifth Amendment. Nor were the Association’s rights to

procedural due process and equal pr ection violated by the

enactment of the challenged ordinar» :s. Finally, the Asso-

ciation has failed to demonstrate that the ordinances are

unconstitutionally vague on their face. Accordingly, we

affirm the district court’s judgment.

AFFIRMED.

22a

APPENDIX B

: UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

[Filed Jan. 15, 2002]

Case No. C-99-3758-THE(JCS)

HOTEL & MOTEL ASSOCIATION OF OAKLAND, et al.,

Plaintiffs,

CITY OF OAKLAND, et al.

Defendants.

STIPULATION AND JUDGMENT OF DISMISSAL

Plaintiffs HOTEL -& MOTEL ASSOCIATION OF

OAKLAND; BALU K. PATEL; USHA B. PATEL, NAVIN

PATEL; TARA N. PATEL; BHARAT PATEL; NIKETA

PATEL; PARSOTTAM V. PATEL; GITA PATEL; VINOD

P. PATEL; MADHUBEN V. PATEL; JAGDISH PATEL;

BHARTI J. PATEL; RAMESH D. PATEL; THAKORBHAIT

G. PATEL; MANJUBEN T. PATEL; KIRIT S. PATEL;

RANJAN K. PATEL; MANUBHAI L._ PATEL;

SHARDABEN M. PATEL; PRAVIN PATEL; SIMA

PATEL; NATWARBHAI PATEL; JAGDISHKUMAR B.

PATEL; JAYESHKUMAR D. PATEL; HASMUKH B.

PATEL; BHISMA PATEL; BABUBHAI K. PATEL;

KALABEN' B. PATEL; VALLABH H._ PATEL;

JAMNABEN V. PATEL; RANCHODBHAI D. PATEL;

PARBHUBHAI V. PATEL; KAMUBEN P. PATEL;

GOVINDBHAI Z. PATEL; MADHUBEN G. PATEL;

JOTINDRA PATEL; REKHA J. PATEL; DILIP P. PATEL;

KALPANA D. PATEL; ANIL P. KUMAR; SUNITA A.

KUMAR; RAJENDRA K. KALYAN; PUSHPA R.

KALYAN; BHUPENDRA K. KALYAN; BHARTIBEN B.

bt OE NN ee IT cette a

dort Darr lar ab adel tae t

23a

KALYAN; NARBADA KALYAN; HARISH SHARMA;

NARESH PATEL; and BOBBY NEWMAN (hereinafter

“PLAINTIFFS”) and Defendants CITY OF OAKLAND;

OFFICER D. MARTINEZ; OFFICER T. MARTIN:

GERALD DONAHUE; and RONALD ABAD (hereinafter

“DEFENDANTS”) hereby stipulate to an entry of dismissal

of the above captioned action, upon the terms and conditions

set forth herein as follows:

DEFENDANTS agree to pay to PLAINTIFFS the sum of

FOUR THOUSAND DOLLARS ($4,000.00), payable in trust

to their attorney, Frank A. Weiser, California State Bar No.

89780 within thirty (30) days of the date of this stipulation;

PLAINTIFFS allege that the Defendant CITY OF

OAKLAND did not comply with local and state law with

respect to code enforcement, as set forth in the Second

Amended Complaint herein. The CITY OF OAKLAND

denies this assertion, and specifically asserts that it has

complied and will continue to comply with its own

ordinances and with state law with respect to code

any right by PLAINTIFFS, or any of them, to any claim

against the CITY OF OAKLAND for breach of contract

arising out of this settlement agreement.

The claims that are currently remaining, i.e., those arising

under 42 U.S.C. Section 1983 for alleged violations of

PLAINTIFFS’ rights under the Fourth Amendment of the

Constitution, and the claim for intentional discrimination

under the Equal Protection Clause of the Constitution are

hereby dismissed with prejudice with no right of appeal. The

Equal Protection claim based on legislative classification

under rational basis review regarding Ordinance Nos. 12136

and 12137 previously dismissed shall be preserved for appeal.

All other claims, including but not limited to the “facial

takings” and procedural due process claims previously dis-

a ST SMO IEE SLOTS

24a

missed by this Court pursuant to Motions to Dismiss and/or

for Judgment on the Pleadings shall be preserved for appeal.

Any “as applied” takings challenge, if it exists, shall be

preserved for challenge in a court of competent jurisdiction.

DATED: January 14, 2002 LAW OFFICES OF FRANK A. WEISER

By: Frank A. Weiser

FRANK A. WEISER

Attorney for Plaintiffs

DATED: January 14, 2002

JOHN A. RUSSO, City Attorney

RANDOLPH-W. HALL, Chief Assistant

City Attorney

ARLENE ROSEN, Deputy City Attorney

By: Arlene M. Rosen

ARLENE M. ROSEN

Attorney for Defendants, CITY OF

OAKLAND, et al.

ORDER

IT IS SO ORDERED.

DATED: 1/14/02 /s/ Thelton E. Henderson

THELTON E. HENDERSON

United States District Judge

SS a

25a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

[Filed Aug. 10, 2000]

NO. C 99-3758 TEH

HOTEL & MOTEL ASSOCIATION OF OAKLAND, et al.,

Plaintiffs,

CITY OF OAKLAND, a municipal corporation; DOEs |

THROUGH 10 INCLUSIVE,

Defendants.

ORDER GRANTING IN PART, DENYING IN PART

DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’

FIRST AMENDED COMPLAINT

INTRODUCTION

The City of Oakland and Oakland Police Officers D.

Martinez and T. Martin (“Defendants”) move to dismiss this

action brought by the Hotel and Motel Association of

Oakland (“Association”) and its individual members (collec-

tively, “Plaintiffs”) pursuant to Fed.R.Civ.P 12(b)(6). Having

carefully considered the parties’ written arguments, and for

the reasons stated below, the motion is GRANTED in part

and DENIED in part.

BACKGROUND

Plaintiffs are owners of hotels, motels and rooming houses

(“hotels”) within the City of Oakland (“City”) which, until

recently, were nonconforming uses under the Oakland Plan-

ning Code (“OPC”). In May of 1999, the City adopted

Ordinance No. 12136 and Ordinance No. 12137. Ordinance

26a

No. 12136 requires hotel owners to comply with new

maintenance, habitability and record keeping standards.

Ordinance No. 12137 reclassified ali hotels with noncon-

forming use status to “Deemed Approved Hotel Activities”

and requires that Deemed Approved Hotels comply with the

new performance standards in order to retain their Deemed

Approved status.

Plaintiffs filed a lawsuit chailenging the ordinances in

August of 1999. Defendants moved to dismiss on October 8,

1999. In response, on November 4, 1999 plaintiffs filed their

First Amended Complaint, containing a litany of constitu-

tional challenges, along with a challenge to a warrantless

search of one of the individual plaintiff's hotels by two

Oakland police officers. Now before the Court is defendants’

motion to dismiss Plaintiffs’ First Amended Complaint in

its entirety.

LEGAL STANDARD

Dismissal is appropriate under Rule 12(b)(6) when a plain-

tiffs allegations fail to state a claim upon which relief can be

granted. FED. R. Civ. P. 12(b)(6). The Court must accept as

true the factual allegations of the complaint and indulge all

reasonable inferences to be drawn from them, construing the

complaint in the light most favorable to the plaintiff.

Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670

(9th Cir. 1993); NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898

(9th Cir. 1986). However, the Court need not necessarily

assume the truth of legal conclusions merely because they are

cast in the form of factual allegations. Western Mining

Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). The Court

must construe the complaint liberally, and dismissal should

not be granted unless “it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.” Steckman v. Hart

Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir. 1998); Johnson

v. Knowles, 113 F.3d 1114, 1117 (9th Cir. 1997); SA WRIGHT

Ss aceon <eeeemere

27a

& MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 (2d

ed. 1990) (quoting Conley y. Gibson, 355 US. 41, 45-46

(1957)). Dismissal without leave to amend is appropriate only

where a court is satisfied that the deficiencies of the

complaint could not possibly be cured by amendment. Chang

v. Chen, 80 F.3d 1293, 1296 (9th Cir. 1996); Noll v. Carlson,

809 F.2d 1446, 1448 (9th Cir. 1987).

DISCUSSION

I. FIRST CAUSE OF ACTION AGAINST DEFENDANT

CITY OF OAKLAND FOR VIOLATION OF 42 U.S.C.

SEC. 1983

Plaintiffs take a shotgun approach in their first cause

of action under section 1983 by claiming violation of the

First, Fourth, Fifth, and Fourteenth Amendments to the

Constitution.

A. Fifth Amendment Takings Claims

Plaintiffs claim that Ordinance No. 12137 constitutes a

regulatory taking of their property by the City. Takings

claims are divided into “facial” and “as applied” challenges.

Levald v. City of Palm Desert, 998 F.2d 680, 686 (9th Cir.

1993). “A facial challenge involves ‘a claim that the mere

enactment of a statute constitutes a taking,’ while an as-

applied challenge involves “a claim that the particular impact

of a government action on a specific piece of property

requires the payment of just compensation.’” /d. (quoting

Keystone Bituminous Coal Ass'n y. DeBenedictis, 480 U.S.

470, 494, 107 S.Ct. 1232, 1246, 94 L.Ed.2d 472 (1987)).

1. Plaintiffs’ Facial Takings Claims

To prevail on the merits of a facial takings claim, plaintiffs

must show that the regulation either: (1) denies them the

economically viable use of their land, or (2) does not

28a

substantially advance legitimate state interests. See Sinclair

Oil Corporation v. County of Santa Barbara, 96 F.3d 401,

406 (9th Cir. 1996).

a. Denial of Economically Viable Use of Land

With respect to plaintiffs’ claims that they are being denied

the economically viable use of their land, the Court notes that

the Fifth Amendment “does not prohibit all taking, but

merely taking unaccompanied by just compensation.”

Sinclair Oil, 96 F.3d at 405. Consequently, a takings chal-

lenge based on the denial of compensation—whether facial or

‘as applied’—is unripe “unless the plaintiff has sought

‘compensation through the procedures the State has provided

for doing so.’” Jd. at 405-07, quoting Williamson County

Regional Planning Comm’n vy. Hamilton Bank, 473 U.S. 172,

194 (1985). Here, plaintiffs do not aver that they sought state

administrative or judicial remedies to free the property from

the ordinance’s limitations or in an effort to seek just com-

pensation. Accordingly, plaintiffs’ facial challenge, premised

on the denial of economically viable use, is dismissed without

prejudice as unripe.

b. Legitimate State Interest

Plaintiffs also assert a facial takings claim premised on the

theory that the ordinance does not substantially advance

legitimate state interests. The just compensation ripeness

requirement does not apply to “legitimate state interest” facial

taking claims, as such claims do not depend on the amount of

compensation provided to the landowner. /d. at 406-407. The

face of the ordinances reveal that they were enacted for

reasons related to documented long-standing concerns about

crime, prostitution, and general blight traceable to hotels,

motels, and rooming houses throughout the City of Oakland.

See First Amended Complaint, Exhibit 4 at 1-2. The City

clearly has “a legitimate need to address problems generated

by business involvement in activities that may be inimical to

29a

the health, welfare and safety of the community.” City of

Oakland v. Superior Court, 45 Cal.App.4th 740, 767 (1996).

Thus, the Court finds that, as a matter of law, the ordinance

on its face substantially advances legitimate state interests.

Since there is no possibility that plaintiffs could amend

their complaint with additional facts that would change the

plain reading of the face of the ordinances, plaintiffs’

“legitimate state interest” facial takings claim is dismissed

with prejudice. |

2. Plaintiffs’ ‘As Applied’ Takings Claim

Next, the Court considers plaintiffs’ ‘as applied’ takings

claim under the Fifth Amendment. As with the facial takings

claims discussed above, ‘as applied’ takings claims are unripe

unless a landowner has first sought compensation from the

State, which plaintiffs have not alleged. Sinclair Oil Corpo-

ration, 96 F.3d at 405, citing Williamson County Reg’! Plan-

ning Comm’n vy. Hamilton Bank, 473 U.S. 172, 194 (1985).

In the alternative, plaintiffs bring their ‘as applied’ claim

under Article I, Section 19 of the California Constitution,”

which provides: “Private property may be taken or damaged

for public use only when just compensation, ascertained bya

jury unless waived, has first been paid to, or into court for,

the owner.” In California, where the claim is one of a

' Plaintiffs also assert a “private taking” claim. Because a private tak-

ing cannot be constitutional even if compensated, a plaintiff alleging such

a taking need not seek compensation in state proceedings before filing in

federal court. See Armendariz v. Penman, 75 F.3d 1311, 1320 n.5§ (9th

Cir. 1996). However, plaintiffs nowhere allege that the purported takings

here are for private use, nor do they specify any private parties who would

be the beneficiaries of the purported takings. /d. at 1320-21. Conse-

quently, the “private takings” claim must be dismissed without prejudice.

’ Plaintiffs’ claim under the California Constitution is made in the

Third Cause of Action in the First Amended Complaint. The Court ad-

dresses the matter here due to its close relationship to the federal

constitutional takings claims.

30a

“regulatory taking,” as here, the state provides a process for

obtaining just compensation. California law allows an action

for inverse condemnation, which first requires the exhaustion

of administrative remedies and subsequently requires a

judicial determination that just compensation is due. Hensler

v. City of Glendale, 8 Cal.4th 1, 13 (1994), cert. denied, 513

U.S. 1184 (1995). Plaintiffs argue that they have satisfied

these requirements by seeking declaratory relief from this

Court through its exercise of supplemental jurisdiction over

the state constitutional takings claim. However, plaintiffs

have not alleged that they satisfied the initial requirement of

exhausting administrative remedies, which they obviously

cannot do in this Court. Consequently, plaintiffs ‘as applied’

takings claim is dismissed without prejudice.

B. Due Process Claims

Plaintiffs have alleged two procedural due process viola-

tions: (1) failure of the City to provide individualized notice,

and (2) bias in the City’s decision-making process.

1. Individualized Notice

Plaintiffs claim that the City failed to provide some of the

Association members with proper notice of hearings that took

place before the ordinances were adopted. Specifically,

plaintiffs claim that they were entitled to individualized

notice. Individualized notice of legislative hearings, however,

is not required for ordinances of general applicability. See Bi-

Metallic Inv. Co. v. State Bd. of Equalization, 239 USS. 441,

445-46 (1915) (personal notice not required where ordinance

increased valuation of all taxable property in city). A failure

> The parties provide the Court with no guidance as to whether a fed-

eral court can satisfy the requirement that a party subjected to a

governmental taking must seek a judicial determination from the state

court that just compensation is due. Due to the conclusion above, the

Court need not address this issue at this time.

3la

to provide individualized notice violates procedural due

process rights only when a “relatively small number of

persons [are] concerned [and] exceptionally affected, in each

case upon individual grounds... .” /d. at 446 (distinguishing

Londoner v. Denver, 210 U.S. 373 (1908)); see also Harris v.

County of Riverside, 904 F.2d 497, 502-04 (9th Cir. 1990).

The adoption of Ordinance No. 12136 and No. 12137 did not

“exceptionally affect” a “relatively small number of per-

sons.” Indeed, Ordinance No. 12136 is applicable to every

hotel and motel operator in the City, and Ordinance No.

12137 is applicable to every hotel and motel previously

recognized as a nonconforming use. Since plaintiffs could not

possibly amend the complaint in a way that would alter this

conclusion, plaintiffs’ procedural due process claim based on

lack of individualized notice is dismissed with prejudice.

2. Bias

Second, plaintiffs allege that their procedural due process

rights were violated due to bias in the administrative process

that led to the adoption of the ordinances. Specifically,

plaintiffs allege bias on the part of city council members and

planning commission officials stemming from unspecified

“deprecatory remarks made at the hearings by several Plan-

ning Commissioners and City Council members against

plaintiffs as owners and operators of hotels and motels

subject to the ordinance.” See First Amended Complaint,

para. 32. This claim is without merit.

Procedural due process claims stemming from allegations

of a biased decision maker must relate to an adjudicative

proceeding. In particular, due process ensures that all

* In contrast to the instant case, the Londoner ordinance affected a

small number of property owners with land adjacent to the location of a

street improvement. See Londoner, 210 U.S. at 374. In Harris, the

challenged ordinance specifically targeted and affected virtually one

property owner. See Harris, 904 F.2d at 502-03.

32a

“proceedings which adjudicate . . . interests in life, liberty, or

property [shall] be free from bias and partiality... .”

Clements y. Airport Authority of Washoe County, 69 F.3d

321, 333 (9th Cir. 1995). This impartial tribunal requirement

“helps to guarantee that life, liberty, or property will not be

taken on the basis of an erroneous or distorted conception of

the facts or the law.” Marshall v. Jerrico, 446 U.S. 238, 242

(1980) (citing Mathews v. Eldridge, 424 USS. 319, 344

(1976)). The term “adjudication,” as used in this due process

inquiry, has been interpreted to encompass administrative

proceedings that are quasi-judicial in nature. See generally

Gibson y. Berryhill, 411 U.S. 564, 578-579 (1973) (state

administrative board of optometrists hearing charges against

other optometrists is an adjudicative procedure that warrants

protection); Morrissey v. Brewer, 408 U.S. 471, 485-486

(1972) (impartial tribunal requirement extended to deter-

minations made by parol officer), Walker v. City of Berkeley,

951 F.2d 182, 184-85 (9th Cir. 1991) (post-termination

hearing before City Manager is an adjudication requiring

unbiased decision maker).

Plaintiffs allege that the administrative and legislative

process leading to the adoption of the ordinances constituted

such an adjudicative proceeding. However, plaintiffs fail to

cite authority establishing that this is so. It is clear from

plaintiffs’ description of the process that it was not quasi-

judicial in nature. See First Amended Complaint, para. 7-32;

Sierra Lake Reserve v. City of Rocklin, 938 F.2d 951, 957

(9th Cir.1991), vacated on other grounds, 506 U.S. 802

(1992) (due process is satisfied when legislative acts are

performed in the normal manner prescribed by law); /n re

The Park Beyond the Park v. City of Torrance, 157 B.R. 887,

892 (9th Cir. 1993).

Plaintiffs fail to provide any specificity as to the content of

the comments or the identities of the persons who allegedly

made them. In fact, it is difficult to discern the basis upon

33a

which the comments were taken as “deprecatory,” as the only

basis apparent in the complaint is plaintiffs’ status as hotel

owners. As such, the purportedly biased statements would

appear to pertain to plaintiffs’ status as property owners,

where those properties, and others like them, were the very

matter under consideration at the hearings. The Court need

not, and should not, engage in any further speculation or

guesswork. It is patently clear that the allegation of bias is

insufficiently pled.

Since plaintiffs cannot cure the defect in their complaint

regarding the non-adjudicative nature of the proceedings

leading to the adoption of the ordinances, plaintiffs’

procedural due process claim founded on bias is dismissed

with prejudice.°

C. Equal Protection Claim

Plaintiffs challenge Ordinance No. 12137 and Oakland

Planning Code section 17.114, which create the Deemed

Approved program, on the ground that these provisions “are

* With respect to the bias claim, defendants also contend that the city

council members and planning commission officials are protected by

legislative immunity to the extent their alleged comments were made at

legislative hearings. Because these individuals have not been named as

defendants, and because plaintiffs’ bias claim is dismissed on other

grounds, the Court will not address this assertion.

° The complaint references the “liberty component” of the Fifth and

Fourteenth Amendments, in an apparent effort to trigger substantive due

process analysis. However, the analysis required here is not for sub-

stantive due process, but for the more specific constitutional violations

alleged, including improper takings, and due process and equal protection

violations. Where, as here, “a particular amendment provides an explicit

textual source of constitutional protection against a particular sort of

governmental behavior that amendment, not the more generalized notion

of substantive due process must be the guide for analyzing these claims.”

Albright v. Oliver, 510 U.S. 266, 273 (1993). The substantive due process

Claim is therefore dismissed with prejudice.

34a

directed and carried out against plaintiffs and are not directed

and carried out in a similar fashion against, [sic.] as to other

similarly situated hotel and motel operators within the City’s

borders.” See First Amended Complaint, para. 57. In support

of this claim, plaintiffs allege that the classifications

embodied in Ordinance No. 12137 and OPC 17.114 are

“pretextual” and improperly motivated with the intent to

drive out and close down plaintiffs’ businesses for private

developers,” and that the classifications target plaintiffs based

on their “Asian-Indian origin.” Jd. at para. 58-59; see also

Armendariz v. Penman, 75 F.3d 1311, 1326-37 (1996) (a pre-

textual, malicious, irrational, or plainly arbitrary classifica-

tion does not pass constitutional muster under rational

relation test).

In evaluating the facial validity of the ordinance, plaintiffs

concede that it is not racially discriminatory on its face. It is

equally clear that the ordinance is directed at a broad class of

hotel and motel owners, and that it does not distinguish

among individuals or groups within that class. Since neither a

suspect class nor a fundamental right is implicated on the face

of the enactments, the Court applies the rational basis test.

See Southern Pacific v. City of Los Angeles, 922 F.2d 498,

507 (9th Cir. 1990), cert. denied, 502 U.S. 943 (1991); Fry v.

City of Hayward, 701 F.Supp. 179, 181 (N.D. Cal. 1988). As:

the Supreme Court has stated:

When local economic regulation is challenged solely as

violating the Equal Protection Clause, this Court con-

sistently defers to legislative determinations as to the

desirability of particular statutory discriminations. Un-

less a classification trammels fundamental personal

rights or is drawn upon inherently suspect distinctions

such as race, religion, or alienage, our decisions presume

the constitutionality of the statutory discriminations

and require only that the classification challenged be

rationally related to a legitimate state interest. . . [I]n the

35a

local economic sphere, it is only the invidious dis-

crimination, the wholly arbitrary act, which cannot stand

consistently with the Fourteenth Amendment.

New Orleans vy. Duke, 427 U.S. 297, 303-04 (1976).

The governmental purpose behind the Oakland ordinance

is to protect the health and welfare of citizens and visitors in

the City of Oakland, as stated in the ordinance itself. The

means chosen by the City, through the enforcement of

standards designed to improve safety and cleanliness in the

areas of these hotels and motels, have an indisputably rational

relationship to that legitimate goal. To borrow from the

language of the Ninth Circuit in Southern Pacific, “the

ordinance displays no outward sign of irrationality.” Southern

Pacific, 922 F.2d at 508.

Plaintiffs’ only way around the rational basis test is to

allege discriminatory intent, which, if well pled, would

trigger strict scrutiny review. See Kawaoka v. City of Arroyo

Grande, 17 F.3d 1227, 1239 (9th Cir. 1994), However, plain-

tiffs allege nothing more than that the City has “maliciously

targeted and threaten[ed]” them with Over-enforcement “on

the basis of racial and national origin.” Plaintiffs provide no

Clue as to how the City has exhibited its alleged discrim-

inatory intent against the plaintiffs in a council meeting,

through an actual application of the ordinance, or by any

other means. Once again, the Court need not, and will not,

make leaps of faith in construing inferences to support

plaintiffs’ claims.

Plaintiffs also argue that the Court should view the equal

protection claim ‘as applied.’ However, the allegations in the

complaint to support an ‘as applied’ challenge are purely

conclusory. There are no allegations that the ordinance and

related code provisions have actually been applied in a

discriminatory manner.

36a

Therefore, plaintiffs’ equal protection claim is dismissed

without prejudice.

D. Fifth Amendment (Void for Vagueness) Claim

Plaintiffs have brought a facial challenge to the ordinances

on the ground that they are “void for vagueness” in viola-

tion of the Fifth and Fourteenth Amendments.’ Plaintiffs

specifically argue that Oakland Municipal Code section

8.03.120, as amended by Ordinance No. 12136, is imper-

missibly vague on its face. That code section siates:

8.03.120 Criminal and nuisance activity.

A. Nuisance Activity. The operation of the property

shall not result in repeated nuisance activities on the

property or contribute to nuisance activities in close

proximity to the property, including but not limited to

disturbance of the peace, illegal drug activity, prosti-

tution, public drunkenness, drinking in public other

than at a licensed facility, harassment of passers by,

gambling, sale of stolen goods, public urination, theft,

assaults, batteries, acts of vandalism, illegal parking, ex-

cessive loud noises, especially in the late night or early

morning hours, traffic violations, curfew violations,

lewd conduct, or police detentions and arrests.

See First Amended Complaint, Exh. 3. The ordinance further

provides that certain violations may be prosecuted as mis-

demeanors. /d. at Exh. 3 [OMC sec. 8.03.120] & Exh. 4

[OMC sec. 17.157.180].

’ Plaintiffs’ complaint confusingly claims that the “ordinances are

‘void for vagueness’ and ‘as applied’ under the liberty component of the

Fifth and Fourteenth amendments.” However, plaintiffs’ claim must be

construed as a facial attack only, as they do not allege that the challenged

ordinances have been applied to anyone yet. The only allegation of a

specific incident is the alleged search at one of the Plaintiffs’ hotels, as

discussed infra. However, plaintiffs do not allege that the search was

conducted pursuant to either of the challenged ordinances.

37a

It is nearly impossible to glean from the First Amended

Complaint just which provisions of the ordinances plaintiffs

allege are impermissibly vague. The complaint makes minor

reference to the lack of definition of the terms “transient” or

“occupancy.” In their opposition brief, Plaintiffs provide

some further specificity, arguing that the ordinances fail to

define what “close proximity to the property” means, what

constitutes “lewd conduct,” and how far from their properties

is an “adjacent public sidewalk.”® Plaintiffs also incorporate

into their argument the “additional vagueness claims which

“have been specifically delineated in the complaint,” and they

chastise defendants for failing to “specifically address” these

allegations. Plaintiffs are living in a glass house. The

complaint is anything but specific, and it must be at least as

challenging for defendants to decipher plaintiffs’ disor-

ganized and disjointed claims as it is for the Court.

Nonetheless, the Court will continue to view the allegations

in the light most favorable to plaintiffs, and will endeavor to

find legitimate claims wherever and however they exist in

the complaint.

The Supreme Court has expressly directed that the iswer

courts view requests to strike down statutes as facially vague

with extreme caution. As the Court has stated, “under our

constitutional system courts are not roving commissions

assigned to pass judgment on the validity of the Nation’s

laws.” Broadrick vy. Oklahoma, 413 U.S. 601, 610-11 (1973).

Thus, when examining a facial vagueness challenge, a court

“should uphold the challenge only if the enactment is

impermissibly vague in all of its applications.” Village of

Hoffman Estates vy. Flipside, 455 U.S. 489, 494-95 (1982). In

* Plaintiffs also argue that they should not be subjected to criminal

sanctions for “contributing” to “nuisance activities in Close proximity to

the property,” instead of restricting the ordinances to activities occurring

on the properties. However, this is a challenge to the substance of the

ordinance, not a vagueness argument.

38a

other words, the challenger must show that the law is “invalid

in toto—and therefore incapable of any valid application. . .”

Stoianoff v. State of Montana, 695 F.2d 1214, 1219 (1983),

quoting Steffel v. Thompson, 415 U.S. 452, 474 (1974). The

possibility that the ordinance will be enforced arbitrarily or

too broadly “is of no due process significance unless the

possibility ripens into a prosecution,” at which time the

injured party may attack the ordinance as it has been enforced

against him or her. Stoianoff, 695 F.2d at 1222.

To test for vagueness, the Court determines whether the

ordinance “‘fails to give a person of ordinary intelligence fair

notice that his contemplated conduct is forbidden by the

statute.’” Papachristou v. City of Jacksonville, 405 U.S. 156,

162 (1972) [citation omitted]; see also U.S. v. Austin, 902

F.2d 743, 745 (9th Cir. 1990). In particular, the Supreme

Court has stated that “[i]n reviewing a business regulation for

facial vagueness . . . the principal inquiry is whether the law

affords fair warning of what is proscribed [and that] this

emphasis is almost inescapable in reviewing a pre-enforce-

ment challenge to a law.” Flipside, 455 U.S. at 503. The

presence of criminal penalties in the ordinances raises the

® The only exception to this limitation is where the enactment impli-

cates constitutionally protected conduct, in which case “a more stringent

vagueness test should apply.” Flipside, 455 U.S. at 498-99. Here, plain-

tiffs do not contend that the activity prohibited in the ordinances is

constitutionally protected. Nonetheless, plaintiffs’ complaint about the

prohibition on “lewd” activity raises the Court’s attention to the possi-

bility of a First Amendment concern. However, the Supreme Court and

the Ninth Circuit have reviewed statutes in a number of instances where

“lewd” conduct is proscribed, and the clear teaching of those cases is that

the term is not unconstitutionally vague. See Kovacs v. Cooper, 336 U.S.

77, 80 (1949) (the term “lewd” is “well understood through long use in

the criminal law” and is not unconstitutionally vague); Winters v. State of

New York, 333 U.S. 507, 518 (1948); US. v. Hamling, 481 F.2d 307, 312

(1973), aff'd, 418 U.S. 87 (1974) (statute proscribing knowingly mailing

“lewd” material is not unconstitutionally vague).

39a

level of scrutiny somewhat, although the Court notes that the

criminal sanctions apply only to part of the enactments and

the maximum conviction is for a misdemeanor.

In Village of Hoffman Estates vy. Flipside, the Supreme

Court held that a village ordinance licensing and regulating

the sale of items displayed “with” or “within proximity of”

“literature encouraging illegal use of cannabis or illegal

drugs” did not violate the First Amendment rights of a retailer

which sold smoking accessories. The Court emphasized that

‘it was not willing to hold that a possibility of uncertainty or

confusion should “jeopardize[] the entire ordinance,” and

proceeded to explain by example that the “theoretical

possibility that the village will enforce its ordinance against a

paper clip placed next to Rolling Stone magazine... is of no

due process significance unless the possibility ripens into a

prosecution.” /d. at 503 n.21.

In Grayned v. City of Rockford, 408 U.S. 104 (1972), the

Supreme Court upheld a local anti-noise ordinance designed

to curb disturbances on properties near school buildings. The

Court observed: “Condemned to the use of words, we can

never-expect mathematical certainty from our language.” /d.

at 110. In that case, the Court determined that the geographic

restriction to activities “adjacent” to the school described a

“sufficiently fixed place.” /d. at 111. The Court also held that

while the “quantum of disturbance” was not specified in the

ordinance, it was distinguishable from an impermissible

““breach of the peace’” enactment, in that the former was

written for a specific context.

By analogy to both Flipside and Grayned, in the instant

case “close proximity” and “adjacent sidewalk” are suffic-

iently fixed places, and the nature of the disturbances is quite

plainly described. The Court also finds the terms “transient”

and “occupancy” to be sufficiently precise to pass muster

under a facial vagueness test, as they are sufficiently clear to

provide a person of ordinary intelligence fair notice that his

40a

or her contemplated conduct is forbidden by the statute. See

Papachristou, 405 U.S. at 162. Thus, the Court finds that the

ordinances are not impermissibly vague. Since the basis of

plaintiffs’ vagueness argument, i.e. the language of the

ordinances themselves, is fully before the Court, it is apparent

that plaintiffs cannot conceivably amend their complaint in a

manner that would support a finding of a constitutional

violation. The Fifth Amendment “void for vagueness” claim

therefore is dismissed with prejudice. '°

E. Fourth Amendment Claim

Plaintiffs assert a Fourth Amendment claim based on one

past warrantless search of a motel and on anticipated future

illegal searches. With respect to the Association, “no indi-

vidual can assert a ‘derivative’ Fourth Amendment violation

on the basis of an intrusion of another’s privacy or property.”

Wilkinson v. Federal Bureau of Investigation, 99 F.R.D. 148,

153-154 (C.D. Cal. 1983). Consequently, the Association

cannot bring a Fourth Amendment claim that is premised

upon a violation executed against one of its members. The

Association’s Fourth Amendment claim against the City is

therefore dismissed with prejudice.

'° Defendants also argue that certain of these provisions must be dis-

missed on the ground that they are time barred. Given the conclusion

above, this issue is moot. Nonetheless, the Court notes that, indeed, many

of the sections identified in the complaint were not added or amended by

the ordinances. These include OMC Sections 5.34.041, 5.34.050, and

4.24.040, which were not altered by the adoption of the ordinances.

Pursuant to California Civil Code Section 340(3), the applicable statute of

limitations period for plaintiffs’ section 1983 claims is one-year. See

Wilson v. Garcia, 471 U.S. 261, 276 (1998) (state limitation period for

personal injury actions appropriate for section 1983 claims). Accordingly,

plaintiffs’ facial attack must fail on the additional ground of the statute of

limitations to the extent that they challenge the validity of OMC sections

adopted or amended before the one year limitations period.

———E—eeeeaeaaL aE

4la

The individual plaintiffs contend that their Fourth Amend-

ment claim relates to threatened violations of their rights. “In

the exceptional case where there is a serious threat of future

Fourth Amendment violations, an injunction may lie to

prohibit further police misconduct.” Sullivan vy. Murphy, 478

F.2d 938, 965 (1973), cert. denied, 414 U.S. 880 (1973). For

example, in Lankford v. Gelston, 364 F.2d 197 (4th Cir.

1966), the court enjoined officers from continuing a practice

in which, on three hundred occasions Over-nineteen days, the

officers had searched third persons’ homes, without search

warrants and on uninvestigated and anonymous tips, for

Suspects, in accordance with routine practice and plan

conceived by high ranking officials. Here, the only basis for

plaintiffs’ alleged fear of future violations is their claim that

“the City has already taken action against some of the

associaion: [sic.] members in violation of said rights, as

evidenced by the actions taken by defendants Martinez and

Martin against plaintiff Jayeshkumar Patel.” See First

Amended Complaint, para. 62. Plaintiffs’ attempt to convert

the single alleged Fourth Amendment violation against Patel

into an example of a larger scheme of violations against other

members is transparent. No such violations are described in

the complaint, nor are they provided in the opposition brief.

Without further factual allegations to show that this is an

exceptional case with a “serious threat” of future viola-

tions, plaintiffs cannot succeed on this claim. Therefore, the

Court dismisses the Fourth Amendment claim on behalf of

the individual plaintiffs, other -than Jayeshkumar Patel,

without prejudice.

F. First Amendment Claim

Plaintiffs have brought a First Amendment claim against |

the City stemming from alleged threats that the ordinances

will be enforced in retaliation for instituting this lawsuit.

There is no allegation that the City has a policy or practice of

retaliating against litigants, and it is axiomatic that the City

42a

cannot be held vicariously liable under section 1983. See

Rizzo v. Goode, 423 U.S. 362 (1976) (respondeat superior is

not a proper basis for liability under section 1983). Even if

the complaint could be interpreted to include a claim for

violation of a city policy, such policy certainly is nowhere

described with even a modicum of specificity. As noted

above, the Court need not necessarily assume the truth of

legal conclusions merely because they are cast in the form of

factual allegations. Western Mining Council, 643 F.2d at 624.

Therefore, the First Amendment claim with respect to the

City is dismissed without prejudice. '!

II. SECOND CAUSE OF ACTION BY PLAINTIFF PATEL

AGAINST ALL DEFENDANTS FOR VIOLATION OF

42 U.S.C. SECTION 1983

In the second claim for relief, plaintiff Jayeshkumar Patel,

as an individual, alleges that Defendants violated his First,

Fourth, and Fourteenth Amendment rights under 42 U.S.C.

section 1983. In order to state a claim under 42 U.S.C.

§ 1983, Patel must allege (1) that Defendants acted under

color of state law and (2) that they violated a right secured by

the Constitution. West v. Atkins, 487 U.S. 42, 48 (1988). It is

undisputed that Defendants acted under color of state law.

Thus, plaintiff's claim turns on whether defendants violated

his constitutional rights, as discussed below.

A. The Fourth Amendment Claim

Plaintiff Patel alleges that on September 30, 1999, Oakland

Police Officers Martinez and Martin searched his motel

without a warrant, in the absence of exigent circumstances.

Plaintiff does not allege that the police officers conducted the

search pursuant to Ordinance No. 12136 or No. 12137; rather,

'' The First Amendment claim is more fully discussed in section II.,

infra, with respect to the individual claim of plaintiff Patel.

43a

he merely alleges that the search was conducted after the

ordinances went into effect. See First Amended Complaint,

- para. 33.

The Fourth Amendment, applicable to the states through

the Fourteenth Amendment, proscribes all unreasonable

searches. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct.

507, 514, 19 L.Ed.2d 576 (1967); Monroe v. Pape, 365 U.S.

167 (1961). It is a cardinal principle that warrantless searches

are per se unreasonable, subject only to a few specifically

established and well delineated exceptions. /d. The inquiry

focuses on whether the conduct was objectively reasonable

from the perspective of the defendant at the time of the

occurrence. See Tennessee v. Garner, 471 U.S. 1 (1985).

1. The Individual Defendants

Defendants argue that the individual officers must be

dismissed because they are named in the complaint as Doe

defendants. '” Actually, the caption to the First Amended

Complaint identifies the two individuals as “City of Oakland

Police Officer D. Martinez Sued as Doe 1; City of Oakland

Police Officer T. Martin Sued as Doe 2.” In the body of the

complaint, plaintiffs allege on information and belief that

“Defendant Doe | is a City of Oakland Police Officer with

the name of D. Martinez . . . and Badge No. 433 and

Defendant Doe 2 is a City of Oakland Police Officer with the

name of T. Martin . . . and Badge No. 555 and without

knowledge of their exact names sues them in said Capacity.”

See First Amended Complaint, para. 6. Here the Court is

faced with a situation where plaintiff's pleading is, at best,

? The complaint alleges that the individual defendants are not entitled

to qualified immunity, and defendants curiously do not dispute the point.

While the Court does not address the qualified immunity question, the

Court notes that the complaint meets the heightened pleading standard of

alleging sufficient non-conclusory allegations. See Branch v. Tunnell, 14

F.3d at 449.

44a

unartful, and defendants’ argument is, at best, hypertechnical.

However, it is clear to the Court that the individual

defendants were plainly identified in the complaint, and that

they should not escape liability on this ground.'° Therefore,

defendants’ motion to dismiss with respect to the Fourth

Amendment claim against the individual officers is denied.

2. Defendant City of Oakland

Plaintiff also alleges that the search was performed

“according to official policy, custom and practice of the

City.” Id. para. 68. However, plaintiff fails to identify what

that policy is. Since there is no allegation that the search was

conducted pursuant to the ordinances, and there is no

allegation that the City fosters a custom of warrantless police

searches, the Court is at a loss to decipher the source of the

“policy, custom and practice of the City.” As noted above, the

Court need not necessarily assume the truth of legal

conclusions merely because they are cast in the form of

factual allegations. Western Mining Council, 643 F.2d at 624.

Therefore, with respect to the Fourth Amendment claim

against the City, the Court grants the motion to dismiss

without prejudice.

B. The First Amendment Claim

Plaintiff Patel alleges that the search of his motel on

September 30, 1999, as described supra, was in retaliation for

plaintiffs’ filing of the initial complaint in August of 1999.

The right of access to the courts is subsumed under the First

Amendment right to petition the government for redress of

'3 Even if there were any merit to defendants’ position, the relation

back provisions of California law would allow plaintiff three years from

commencement of the action to amend the complaint by adding the true

names of the officers. See Casparian v. Allstate Ins. Co., 689 F.Supp.

1009, 1010 (N.D. Cal. 1988); Merritt v. County of Los Angeles, 875 F.2d

765, 768 (1989).

ee en ot ee

45a

grievances. See Soranno’s Gasco, Inc. v. Morgan, 874 F.2d

1310, 1314 (9th Cir. 1989). Deliberate retaliation by state

actors against an individual’s exercise of this right is

actionable under section 1983. /d.

Because of the subjective intent element of this claim,

| plaintiff has a heightened pleading obligation to “state in [the]

) ' |

complaint nonconclusory allegations setting forth evidence of

unlawful intent.” See Branch v. Tunnell, 14 F.3d 449 (9th Cir.

1994), cert. denied, 114 S.Ct. 2704 (1994).'* Even under

traditional pleading standards, the Court need not give plain-

tiff the benefit of every conceivable doubt; “rather, a court is

required only to draw every reasonable or warranted factual

inference in the plaintiffs’ favor.” McKinney v. DeBord, 507

F.2d 501, 503 (9th Cir. 1974).

Here, plaintiff asks the Court to go beyond the realm of

reasonable inference, and into the realm of unsupported

speculation. The incident that forms the basis for the alleged —

retaliatory action, i.e. the search of plaintiff Patel’s motel,

occurred prior to the naming of the individual plaintiffs in

this suit. Plaintiff argues that “it is a reasonable inference that

the police officers based upon the City’s knowledge did know

who the members of the assocition [sic.] were when the initial

complaint was filed. It is also reasonable to assume that that

[sic.] the City knew who was subject to the legislation when

'* An exception to the traditional pleading rules exists for claims

brought pursuant to 42 U.S.C. section 1983, where a heightened pleading

standard applies whenever subjective intent is an element of the claim.

Branch, 14 F.3d 449. The Ninth Circuit has explained that “[t]he

allegations of facts must be specific and concrete enough to enable the

defendants to prepare a response, and where appropriate, a motion for

summary judgment based on qualified immunity.” /d., 14 F.3d at 1386,

quoting Whitacre v. Davey, 890 F.2d. 1168, 1171 (D.C. Cir. 1989), cert.

denied, 497 U.S. 1038 (1990). Where subjective intent it not an element

of the claim, however, the traditional pleading standard applies. See

Housley v. United States, 35 F.3d 400, 401 (9th Cir. 1994).

46a

they adopted the ordinances since these are matters of public

records [sic.] within the City’s control.” Plaintiffs’ Opposi-

tion at 21 [footnote omitted]. The Court does not find

these inferences and assumptions nearly as reasonable as

plaintiffs contend.

The complaint contains no specific and concrete allega-

tions providing a link between plaintiffs’ filing of the

complaint and the officers’ allegedly retaliatory conduct.

Plaintiffs do not allege that the officers knew which hotel and

motel owners were in the Association, nor do they allege that

the officers even knew of the lawsuit. Plaintiffs’ strained

argument that “the City’s knowledge” (whatever that means

exactly) of the Association members involved in the suit

could be imputed to the officers cannot withstand scrutiny.

Even the traditional pleading requirement demands a finer

brush than that which was used in crafting plaintiffs’ com-

plaint. Therefore, plaintiff Patel’s First Amendment claim is

dismissed without prejudice."

Ill. The Parties’ Requests for Judicial Notice

Plaintiffs request judicial notice of a reported Ninth Circuit

decision. This is an improper and frivolous attempt to argue

beyond the scope of their brief, and is hereby denied.

Defendants meet plaintiffs’ frivolity by requesting judicial

notice of the First Amended Complaint, which of course is

already in the Court’s possession. Defendants also seek

judicial notice of Oakland Ordinance No. 12061 and related

portions of Chapter 5.34 of the Municipal Code. Since these

provisions are referenced in the Complaint and are relevant to

the statute of limitations issue presented in the motion to

dismiss, the Court grants judicial notice of this document. See

Branch, 14 F.3d at 454 (“documents whose contents are

'S To the extent that plaintiff Patel also claims a First Amendment vio-

lation against the City, the Court’s ruling is the same as discussed in

section I., supra.

47a

alleged in a complaint and whose authenticity no party ques-

tions, but which are not physically attached to the pleading,

may be considered in ruling on a Rule 12(b)(6) motion to

dismiss” without converting it into one for summary

judgment). Lastly, defendants seek judicial notice of minutes

of meetings between Oakland City staff and members of the

Hotel & Motel Association. Defendants do not explain why

the Court should grant judicial notice, and the Court finds that

the contents of the documents are not alleged in the

complaint. /d. Therefore, the request regarding the minutes

is denied.

CONCLUSION

In light of the above, and good cause appearing, it is

HEREBY ORDERED that defendants’ motion to dismiss is

GRANTED in part and DENIED in part, as follows:

A. With respect to Plaintiffs’ First Cause of Action for

Violation of 42 U.S.C. sec. 1983 against Defendant City

of Oakland:

1. Plaintiffs’ Fifth Amendment takings claim prem-

ised on the denial of economically viable use is

dismissed without prejudice as unripe;

2. Plaintiffs’ Fifth Amendment takings claim prem-

ised on the failure of the ordinances to substantially

advance legitimate state interests is dismissed with

prejudice;

3. Plaintiffs’ Fifth Amendment “private takings”

claim is dismissed without prejudice;

4. Plaintiffs’ Fifth Amendment ‘as applied’ takings

claim is dismissed without prejudice as unripe;

5. Plaintiffs’ procedural due process claim is dis-

missed with prejudice;

48a

6. Plaintiffs’ substantive due process claim is dis-

missed with prejudice;

7. Plaintiffs’ equal protection claim is dismissed

without prejudice;

8. Plaintiffs’ Fifth Amendment “void for vagueness”

claim is dismissed with prejudice;

9. Plaintiffs’ Fourth Amendment claim on behalf of

the Association is dismissed with prejudice;

10. Plaintiffs’ Fourth Amendment claim on behalf of

the individual plaintiffs other than Jayeshkumar Patel

is dismissed without prejudice;

11. Plaintiffs’ First Amendment claim is dismissed

without prejudice.

B. With respect to Plaintiff Jayeshkumar Patel’s Second

Cause of Action for Violation of 42 U.S.C. sec. 1983

against Defendants City of Oakland, the Police Depart-

ment, and the individual officers:

1. Defendants’ motion with respect to the Fourth

Amendment claim against the individual defendants is

denied;

2. Plaintiff's Fourth Amendment claim against defen-

dant City of Oakland is dismissed without prejudice;

3. Plaintiff's First Amendment claim against all de-

fendants is dismissed without prejudice.

C. With respect to Plaintiffs’ Third Cause of Action for

Violation Article I, Section 19 of the California Con-

stitution against Defendant City of Oakland, Plaintiffs’

takings claim is dismissed without prejudice.

49a

D. Plaintiffs’ Request for Judicial Notice of a reported

Ninth Circuit decision is DENIED. Defendants Request

for Judicial Notice is GRANTED in part with respect to

Ordinance No. 12061 and Oakland Municipal Code

Chapter 5.34, and is DENIED in all other regards."

IT IS SO ORDERED.

DATED 8/9/00

/s/ Thelton E. Henderson

THELTON E. HENDERSON

UNITED STATES DISTRICT JUDGE

ot inally, plaintiffs are admonished that a continued failure to present

their factual and legal allegations in a clear and coherent manner will

inure to their detriment in any future proceedings before the Court.

50a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[Filed Nov. 13, 2003]

No. 02-15220

D.C. No. CV-99-03758-TEH/JCS

Northern District of California,

San Francisco

HOTEL & MOTEL ASSOCIATION OF OAKLAND; BALU K.

PATEL; USHA B. PATEL; NAVIN PATEL; TARA N. PATEL;

BHARAT PATEL; NIKETA PATEL, PARSOTTAM B. PATEL;

GITA PATEL; VINOD P. PATEL; MADHUBEN V. PATEL;

JAGDISH PATEL: BHARTI J. PATEL; RAMESH D. PATEL;

THAKORBHAI G. PATEL; MANJUBEN T. PATEL; KIRIT S.

PATEL; RANJAN K. PATEL; MANUBHAI L. PATEL;

SHARDABEN M. PATEL; PRAVIN PATEL; SIMA PATEL;

NATWARBHAI PATEL; JAGDISHKUMAR- B._ PATEL;

JAYESHKUMAR D. PATEL; HASMUKH B. PATEL; BHISMA

PATEL; BABUBHAI K. PATEL, KALABEN B. PATEL;

VALLABH H. PATEL; JAMANABEN V. PATEL; RANCHODBHAI

D. PATEL; PARBHUBHAI V. PATEL; KAMUBEN P. PATEL;

GOVINDBHAI Z. PATEL; MADHUBEN G. PATEL; JOTINDRA

PATEL; REKHA J. PATEL; DILIP P. PATEL; KALPANA D.

PATEL; ANIL P. KUMAR; SUNITA A. KUMAR; RAJENDRA K.

KALYAN; PUSHPA R. KALYAN; BHUPENDRA K. KALYAN;

BHARTIBEN B. KALYAN; NARBADA KALYAN KALYAN;

HARISH SHARMA; NARESH PATEL; BOBBY NEWMAN,

Plaintiffs - Appellants,

Vv.

Sla

CITY OF OAKLAND, a municipal corporation; CITY OF

OAKLAND POLICE DEPARTMENT; CITY OF OAKLAND POLICE

OFFICER D. MARTINEZ SUED AS DOE 1; CITY OF OAKLAND

POLICE OFFICER T. MARTIN SUED AS DOE 2; OAKLAND

HOUSING INSPECTOR RONALD ABAB SUED AS DOE 3; CITY

HOUSING INSPECTOR GERALD DONAHUE SUED AS DOE 4,

Defendants - Appellees.

Before: NOONAN, McKEOWN, and RAWLINSON,

Circuit Judges.

The majority has voted to deny the petition for panel

rehearing and to deny the petition for rehearing en banc.

Judges McKeown and Rawlinson voted to deny the petition

for rehearing en banc and Judge Noonan so recommends.

The full court has been advised of the petition for rehearing

and rehearing en banc and no judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and the petition for re-

hearing en banc are denied.

52a

APPENDIX E

ORDINANCE NO. 12136 C.M:S.

Revised 4/27/99

AN ORDINANCE AMENDING THE OAKLAND

MUNICIPAL CODE TO CREATE CHAPTER 8.03

“OPERATING STANDARDS FOR HOTELS, MOTEL

AND ROOMING HOUSES” AND ADD SPECIFIC

RECORD KEEPING REQUIREMENTS IN CHAP-

TER 5.34

WHEREAS, tax and revenue records indicate that there are

currently over eighty hotels, motels and rooming houses in

the City of Oakland; and

WHEREAS, individuals who reside in these facilities are

dependent upon the management for the provision of safe and

sanitary lodging conditions; and

WHEREAS, the existing Housing Code does not directly

address the unique aspects of the hospitality industry and the

need to provide for specific minimum standards related

to room furnishings, linens, housekeeping services and

security; and

WHEREAS, a concentration of illegal activity has been

tied to the operation of many of the problem businesses, as

evidenced by a pattern of multiple and continuous arrests at

and within various businesses for prostitution and narcotics

use which has been fully documented by the Oakland Police

Department; and

WHEREAS, the Oakland Police Department has expended

an inordinate amount of time and resources in policing certain

of these businesses, in order to limit or control widespread

use of the properties for the purpose of narcotics and

prostitution activity; and

53a

WHEREAS, the City Attorney has filed ten or more civil

abatement actions against operators of these businesses over

the past seven years, in an attempt to enjoin the illegal

activities at the problem properties; and

WHEREAS, individual actions for injunctive relief and/or

closure are not effective substitutes for proper ongoing and

regular maintenance and adequate property management; and

WHEREAS, evidence provided by the community in

actions filed by the City Attorney strongly support the con-

clusion that the operators of problem properties take minimal

action to screen or to monitor the activities of their patrons,

and allow the open use of the property for drug and

prostitution activity all hours of the day and night; and

WHEREAS, the activities of patrons engaged in illegal

activities at problem properties affect the health and safety of

area residents, create a climate of fear and a-prehension,

and diminish the value of real property in the surrounding

area; and

WHEREAS, police surveillance undertaken over the past

five years shows that prostitution and drug activity at many of

the problem sites takes place openly during all hours of the

day and night, and in full view of the operators, who take no

significant action to curb the unlawful activities; and

WHEREAS, records show the City has determined over

the past five years that a number of problem locations are

poorly maintained and structurally unsound, or contain

unsanitary and dangerous conditions that threaten the health

and safety of lodgers; and

WHEREAS, the City has documented numerous and

frequent complaints from the community regarding the visual

blight associated with certain poorly maintained problem

properties; and

54a

WHEREAS, there is a correlation between high levels of

drug and prostitution activity and the existence of sub-

standard and public nuisance conditions at the problem

properties; and

WHEREAS, in 1986, the Oakland City Council amended

the Planning Code to eliminate the “Travel Accommodation

Combining” zone which made those hotels or motels outside

of the downtown, waterfront and airport areas legal noncon-

forming businesses; and

WHEREAS, it is in the best interest of the Oakland

community and visitors that the City adopt common stand-

ards of maintenance, housekeeping, and security that are

designed to protect the health, safety and welfare of residents

and visitors, reduce crime and nuisances associated with the

operation of hotels, motels and rooming houses; and

WHEREAS, the requirements of the California Environ-

mental Quality Act (CEQA) of 1970, the Guidelines as

prescribed by the California State Secretary for Resources,

and the City’s Environmental Review Regulations have been

satisfied, and that in accordance with Section 15061(b)(3) or

Section 15301 of the California Code of Regulations this

project is exempt from the provisions of the California

Environmental Quality Act; now, therefore, be it

RESOLVED, THAT THE COUNCIL OF THE CITY OF

OAKLAND DOES ORDAIN AS FOLLOWS:

Section 1. The City Council determines that this Ordi-

nance complies with California Environmental Quality Act

and directs the Review Officer to file a Notice of Exemption

with the Alameda County Clerk.

Section 2. Chapter 8.03 of the Oakland Municipal Code is

hereby added to read:

55a

“Chapter 8.03

HOTEL, MOTEL AND ROOMING HOUSE

OPERATING STANDARDS

8.03.010 Title.

These regulations shall be know[n] as Hotel, Motel and

Rooming House Operating Standards.

8.03.020 Purpose.

The general purpose of these regulations are to promote the

health, safety, comfort, convenience, prosperity, and general

welfare by requiring thaf businesses that offer shelter to

visitors, transient guests, and other residents provide a mini-

mum level of cleanliness, quality, and security.

8.03.030 Scope.

These provisions shall apply to businesses such as hotels,

motels, and rooming houses which provide shelter, furniture,

linens, and housekeeping services, etc. within the guest

room(s) and throughout the property. These provisions shall

not apply to permanent residential facilities wherein the

owner is responsible for providing the shelter, but does not

provide furniture, linens, or housekeeping services or with

Residential Care Facilities as defined in Oakland Planning

Code (OPC) Section 17.10.210.

8.03.040 Definitions.

For the purposes of this chapter certain words and phrases are

defined, and certain provisions shall be construed, as herein

set out unless it shall be apparent from the context that they

have a different meaning:

_ “Hotel” means any facility as defined in Oakland

Municipal Code (OMC) Section 4.24.020.

“Rooming House” means any Rooming House Resi-

dential Facility as defined in Section 17.10.690 that houses a

56a

Permanent Residential Activity (OPC Section 17.10.110) or

Semi-Transient Residential Activity (OPC Section 17.10.120)

8.03.050 Management Practices.

Room rates. Room rates shall be posted in a prom-

inent location ##the-reception—area—and in the guest

rooms. Posting room rates in the reception area is

strongly encouraged. Guests shall not be charged in

excess of posted rates. A range of rates is acceptable.

Management Accessibility. A property management

representative shall be accessible, in person or by

telephone, on a 24-hour basis. (Also see OMC Section

5.34.051.)

Guest Complaints. The telephone number and address

for the City of Oakland Building Official shall be

posted in a prominent location in the reeeption—area

and/er guest rooms. Posting in the reception area is

strongly encouraged.

8.030.60 Inspection of Records and Facilities.

Other Records and Hotel Facilities Subject to

Inspection, Review and Audit. Upon a showing of

probable cause therefor by the Director of Finance or

his or her designee, or by any police officer, code

compliance, fire or zoning inspector of the City of

Oakland, the City Attorney shall issue an adminis-

trative subpoena compelling the inspection of rooms

and facilities, and/or the production of guest registers

and other records necessary to determine compliance

with all applicable regulations, including but not

limited to building, fire, health, occupancy, and blight

codes, and to verify collection and payment to the

City of all taxes owed.

57a

Independent Agency Inspections. The City shall con-

duct annual or bi-annual inspections of all businesses

subject to the regulations specified in this Chapter.

The City Manager or designee is authorized to prom-

ulgate administrative regulations to allow the accep-

tance of satisfactory ratings conferred by recognized,

independent agencies in lieu of a City inspection,

provided that the independent inspection is based

upon performance and facility standards equal to or in

excess of the standards commemorated in this chapter.

8.03.070 Property Security.

Guest Room Locks. On or after September 10, 1999,

the following is required:

Install and maintain an operable dead bolt lock on

each main swinging entry door of a dwelling unit. The

dead bolt lock shall be installed in accordance with

the manufacturer’s specifications and shall comply

with applicable state

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