Petition for Writ of Certiorari — Armstrong v. California

Supreme Court, U.S.

96-99. FILED

JUL 3 1996

No.

CLERK

In The

Supreme Court of the United States

October Term, 1995

+

MICHAEL EUGENE ARMSTRONG

AND JERRY JAMGOTCHIAN,

Petitioners,

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondents.

¢

Petition For A Writ Of Certiorari

To The Appellate Department Of The

Superior Court, State Of California,

County Of Los Angeles

¢

PETITION FOR WRIT OF CERTIORARI

¢

JosHUA KAPLAN

Law OFFices OF JOSHUA KAPLAN

9171 Wilshire Boulevard, Suite 430

Beverly Hills, CA 90210

(310) 278-1920

Attorney and Counsel of Record for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Is the 1912 decision of this Court in Murphy v.

California, (1912) 225 U.S. 623, still a constitutionally via-

ble precedent precluding any lower courts from any criti-

cal analysis of the constitutional underpinnings of any

proscriptive regulations of billiard centers notwithstand-

ing modern societal developments since that decision?

2. In an Equal Protection context, does not the ratio-

nal basis test require that the government justify dissimi-

lar treatment of those similarly situated by at least a

showing of a reasonable or sensible conclusion premised

upon cognizable legislative experience?

LIST OF PARTIES

All parties to the proceeding in the Court whose

judgment is sought to be reviewed are listed in the cap-

tion of this petition.

iii

TABLE OF CONTENTS

So Be

yee se Pood so ka 6s evss scone...

1. Murphy v. California, (1912) 225 U.S. 623 should

be overruled by the Court as no longer consti-

tutionally viable ..... “Sake rt ita ere rere 5

2. Hawthorne Municipal Code Section 5.32.070 is

unconstitutional in violation of the Equal Pro-

tection provision of the United States Constitu-

cect OE LE eC res ere oe a 7

INDEX TO APPENDICES

APPENDIX A - Memorandum decision of Appel-

late Department of Superior

Court, State of California, County

of Los Angeles ................. App. 1

APPENDIX B - Denial of discretionary review by

Supreme Court of the State of

oe ayy ENF a ea App. 6

APPENDIX C - Hawthorne Municipal Code Section

IR awe senna ns ake 5 App. 7

APPENDIX D- Comparative Hawthorne Munici-

pal Code Sections 5.32.100;

17.26.020 (30); 5.64.010; 5.34.010 -

5.34.040; 5.34.070; 5.34.080;

9.34.100; 5.34.010; 5.44 ......... App. 12

iv

TABLE OF AUTHORITIES

Page

CASEs:

Aladdin's Castle, Inc. v. City of Mesquite, 630 F.2d

SES COA. Ge BOs oo bss ho pha oe kes eee a 6

Allied Stores af Ohio, Inc. v. Bowers, 358 U.S. 522

§ : SD Fae see pe nearer ererr rer nreren to eanee Eee 8

Federal Communications Commission v. Beach Com-

munications, 508 U.S. __, 113 S. Ct. 2096 (1993) ..... 7

Ferguson v. Skrupa, 372 U.S. 726 (1963) ............... 8

Jacobellis v. Ohio, 378 U.S. 184 (1964) ................. 6

Murphy v. California, 225 U.S. 623 (1912) ...... ‘6 7

Papachristou v. City of Jacksonville, 405 U.S. 156

fy 5 PN ee Pang > Gemma rh a PK Pa Pah eer tr Ar ee 6

Plessy v. Ferguson, 163 U.S. 537 (1896)................ 7

OS O. HOE SL SLD FU CN Oh ak hk scene eee ae 9

Williams v. Field, 416 F.2d 483 (1969) ................. 8

CopeEs:

HAWTHORNE MUNICIPAL CODE Section

RP reer arc ee ere ree ees » a & 7

HAWTHORNE MUNICIPAL CODE Section

DS EPITOPE Te Lee Ce eee Ooo nF Per Pee 2

HAWTHORNE MUNICIPAL CODE Section

EP ES Ge ne Cee ab se 4 kod aCuehe eae en ea eA a pens 2

HAWTHORNE MUNICIPAL CODE Section

WAIN 55 FEA kp CAA aA Sah he OKLA EEO oanaD SESE eee 2

HAWTHORNE MUNICIPAL CODE Section

PE 54s a cas Pha Care aK dae eA ereE reas ya

oe Be

TABLE OF AUTHORITIES - Continued

HAWTHORNE

5.34.020

HAWTHORNE

5.34.030

HAWTHORNE

5.34.040

HAWTHORNE

5.34.070

HAWTHORNE

5.34.080

HAWTHORNE

5.34.100

TREATISES:

MUNICIPAL

MUNICIPAL

MUNICIPAL

CODE Section

CODE Section

CODE Section

Pound, Rosco E., Introduction to the Philosophy of

Law (1922)

PETITION FOR WRIT OF CERTIORARI

Petitioners, Michael Eugene Armstrong and Jerry

Jamgotchian respectfully pray that a writ of certiorari

issue to review the judgment and opinion of the Appel-

late Department of the Superior Court, State of Califor-

nia, County of Los Angeles, entered in the above-entitled

proceeding on December 27, 1995.

¢

OPINIONS BELOW

The opinion of the Appellate Department of the

Superior Court, State of California, County of Los

Angeles, is attached hereto as part of the appendix. Said

decision has not been published in any case reports.

4

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. Section 1257 (a).

The Appellate Department of the Superior Court of

the State of California, County of Los Angeles, is the

highest State Court which addressed the merits of this

matter and its decision was filed on December 27, 1995.

Petitioners thereafter sought discretionary review in

the Court of Appeal of the State of California for the

Second Appellate District which denied that discretion-

ary review on January 23, 1996.

Petitioners thereafter sought discretionary review in

the Supreme Court of the State of California which

denied said discretionary review on April 10, 1996. Said

denial is attached hereto as part of the Appendix.

¢

STATUTES INVOLVED

HAWTHORNE MUNICIPAL CODE Section 5.32.070.

Hours of Business. No person engaging in the business of

operating a billiard or poolroom shall allow the playing

of billiards or pool in his place of business except

between the hours of 7:00 AM and 2:00 AM of the follow-

ing day.

HAWTHORNE MUNICIPAL CODE Section 5.32.100 -

Bowling Alleys - No restriction of hours.

HAWTHORNE MUNICIPAL CODE Section 17.26.020

(30) - Theaters - No Restriction of Hours.

HAWTHORNE MUNICIPAL CODE Section 5.64.010 -

Indoor Restaurants - No Restriction of Hours.

HAWTHORNE MUNICIPAL CODE Section 5.34.010 -

Amusement Arcades - No Restriction of Hours.

HAWTHORNE MUNICIPAL CODE Section 5.34.020 -

Astrology - No Restriction of Hours.

HAWTHORNE MUNICIPAL CODE Section 5.34.030 -

Boxing and Wrestling - No Restriction of Hours.

HAWTHORNE MUNICIPAL CODE Section 5.34.040 -

Carnivals and Fairs - No Restriction of Hours.

HAWTHORNE MUNICIPAL CODE Section 5.34.070 -

Circus - No Restriction of Hours.

HAWTHORNE MUNICIPAL CODE Section 5.34.080 -

Amusement Devices - No Restriction of Hours.

HAWTHORNE MUNICIPAL CODE Section 5.34.100 -

Shooting Gallery - No Restriction of Hours.

HAWTHORNE MUNICIPAL CODE Section 5.34.010 -

Tent Show - No Restriction of Hours.

HAWTHORNE MUNICIPAL CODE Section 5.44 -

Escort Bureaus - No Restriction of Hours.

All Codes are attached hereto as part of the Appen-

dix.

Amendment XIV of the United States Constitu-

tion . . . No State shall . . . deny to any person within its

jurisdiction Equal Protection of the laws.

4

STATEMENT OF THE CASE

On January 17, 1995, the People of the State of Cali-

fornia filed a criminal complaint in the Los Angeles

Municipal Court against Michael Eugene Armstrong and

Jerry Jamgotchian alleging a violation of Hawthorne

Municipal Code Section 5.32.070 by Armstrong and Jam-

gotchian being engaged in the business of operating a

billiard room and allowing the playing of billiards

between the hours of 2:00 AM and 7:00 AM, which that

Code prohibited.

On February 10, 1995, Armstrong and Jamgotchian

filed a demurrer to the complaint and motion to dismiss

claiming that Section 5.32.070 violated the Equal Protec-

tion clauses of the United States and California Constitu-

tions. Armstrong and Jamgotchian claimed that said

section was unconstitutional because, without a rational

basis, it restricted the hours of operation of non-alcohol

dispensing billiard halls without so limiting the hours of

operation of similarly situated amusement businesses

(i.e., bowling alleys, arcades, boxing matches, shooting

galleries and escort bureaus). The People of the State of

California opposed the demurrer and motion to dismiss,

but on March 29, 1995, the Los Angeles Municipal Court

sustained the demurrer and granted the motion to dis-

miss.

On April 14, 1995, the People of the State of Califor-

nia filed a Notice of Appeal from those Municipal Court

orders and brought the matter before the Appellate

Department of the Superior Court of the State of Califor-

nia, County of Los Angeles. That Court reversed the

Municipal Court orders by way of Memorandum Judg-

ment on the Merits filed on December 27, 1995. Speci-

fically believing itself bound by the decision of this Court

in Murphy v. California, 225 U.S. 623 (1912) and speci-

fically relying thereon, the Court below concluded that

there was a reasonably conceivable state of facts thus

providing a rational basis for the differential treatment of

billiard halls and other similarly situated entertainment

business. Thereafter, petitioners sought discretionary

review of that decision in the Court of Appeal of the State

of California, Second Appellate District, but that Court

denied said discretionary review on January 23, 1996.

Thereafter, petitioners sought discretionary review in the

Supreme Court of the State of California, but that Court

denied discretionary review on April 10, 1996.

Petitioners have at all times maintained that there is

no rational basis for the differential treatment mandated

by the Hawthorne Municipal Code restricting the hours of

billiards, while leaving such other potentially more

socially adverse businesses free from such restrictions

and have also consistently maintained that the decision of

this honorable Court in Murphy v. California, 225 U.S. 623

(1912) should not be afforded continuing constitutional

viability in that it is premised upon an archaic, moralistic

viewpoint no longer consistent with prevailing social

values or the realities of non-alcohol dispensing, upscale,

billiard establishments.

¢

REASONS FOR GRANTING THE WRIT

1. Murphy v. California, (1912) 225 U.S. 623 should be

overruled by the Court as no longer constitutionally

viable.

Finding itself perhaps reluctantly bound by the 1912

decision of this Court in Murphy v. California, 225 U.S. 623

(1912), the Court below was compelled to necessarily

adopt the now anachronistic Murphy proposition that

since the mere “keeping of a billiard hall has a harmful

tendency,” municipal authorities may take “legislative

notice of the idleness and other evils which result from

the maintenance of a billiard hall” and thus are constitu-

tionally permitted to proscribe such businesses. Once the

municipality has so acted, the Murphy decision instructs

that courts may not critically analyze the basis for that

proscription to test its rationale. Murphy, supra, at 629.

Petitioners submit that the conclusionary factual

foundation for the Murphy decision has been rejected by

this Court in subsequent decisions and that it has been

imploded by emerging social conditions and modern

mores. Therefore, Murphy simply cannot continue to be

constitutionally viable.

For as the Court recognized in Aladdin's Castle, Inc. v.

City of Mesquite, 630 F.2d 1029, 1049, 1041, fn.16 (5th Cir.

1980):

“Murphy rested its distinction on the theory

that ‘the law does not prevent the municipal

authorities from taking legislative notice of the

idleness and other evils which result from the

maintenance of a resort... ’ This view of

idleness has been rejected by the Supreme

Court:

‘All loitering . . . or idling . . . is not

necessarily detrimental to the public wel-

fare .. . it may often be entirely innocuous.’

Papachristou v. City of Jacksonville, 405 U.S.

156, 157 n2 (1972). Today Murphy stands only for

the proposition that the States have the power to

make a morally neutral judgment that [some

activity] has a tendency to injure a community

as a whole...

Jacobellis v. Ohio, 378 U.S. 184 (1964).”

Petitioners respectfully submit that Murphy, supra, is

thus premised upon a prejudicially archaic mischaracter-

ization of the modern nature of a family oriented sport.

For the dingy “poolhall” populated at the turn of the last

century with unsavory characters has given way toward

the turn of a new century to the upscale, multi-million

dollar, well-lit, clean, neighborhood and family oriented

billiard palace maintained and operated so as to welcome

upstanding members of the community in an atmosphere

which is conducive to a family sport without the presence

of alcohol. Thus, the ancient decision in Murphy, supra,

can be no more viable from a modern constitutional

standpoint than such equally aacient and discredited

Equal Protection decisions as authorized segregation

based on race. (Plessy v. Ferguson, 163 U.S. 537 (1896).)

“The law must be stable, but it must not stand still.”

Introduction to the Philosophy of Law, Rosco E. Pound

(1922).

Additionally, however, the Murphy, supra, decision

enunciates a now completely discredited constitutional

prohibition of judicial analysis as to whether the munici-

pality has indeed posited a rational basis for differential

treatment of those similarly situated. Murphy, supra, at

629. For even the 1993 decision of this Court in Federal

Communications Commission v. Beach Communications, 508

U.S.__, 113 S. Ct. 2096 (1993) recognizes that in an Equal

Protection challenge, the Court must at least analyze

whether there is any “reasonably conceivable state of

facts that could provide a rational basis for the classifica-

tion.” Murphy is thus no longer viable.

2. Hawthorne Municipal Code Section 5.32.070 is

unconstitutional in violation of the Equal Protection

provision of the United States Constitution.

Petitioners respectfully submit that in an Equal Pro-

tection contextual analysis, the “rational basis test” has

not been perverted to the “any basis at all test.” Simply

put, legislatively imposed distinctions between those

similarly situated must still be “rational” or based upon

“reasonable” or “sensible” conclusions premised upon

some “legislative experience.” Differential treatment

based merely upon speculative emotionalism is by its

inherent nature, not “rational.”

Petitioners respectfully submit that there is no ratio-

nal basis upon which the City of Hawthorne can arbi-

trarily and unreasonably create dissimilar classifications

of entertainment businesses when those businesses are

similarly situated. Williams v. Field, 416 F.2d 483, 486

(1969). For the Fourteenth Amendment does not allow

local government to proscribe private business operations

in a manner that exposes entrepreneurs to unreasonable

discrimination by singling them out to bear a singular

burden not so imposed on other businesses profoundly

more likely to cause adverse impact. There is thus a point

beyond which local government cannot proceed without

violating the Equal Protection Clause and where it

imposes classifications that are not reasonably related to

the purpose of its laws, it proceeds arbitrarily and not

rationally. Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522

(1959).

It is axiomatic that distinctions imposed by govern-

ment upon businesses cannot be justified if the discrimi-

nation has no reasonable relation to the differences

between businesses. See, e.g. Ferguson v. Skrupa, 372 U.S.

726 (1963).

What rational justification can there be for the City’s

arbitrary restriction of the hours of a non-alcohol dis-

pensing, family billiard parlor and yet its leaving a bowl-

ing alley, an arcade, a shooting gallery and an escort

bureau, not so regulated at all?

or ORT

As this Court declared in Reed v. Reed, 401 U.S. 71, 75,

76 (1971):

“The Equal Protection clause . . . denies to

states the power to legislate that different treat-

ment to persons placed by statute into different

classes on the basis of criteria wholly unrelated

to the objective of that statute. The classification

‘must be reasonable, not arbitrary, and must rest

upon some ground of difference, having a fair

and substantial relation to the object of the legis-

lation, so that all persons similarly circum-

stanced shall be treated alike.’ ”:

It is respectfully submitted that there is no rationality

for the singular restrictions imposed upon petitioners by

the Hawthorne Municipal Code at issue herein and that it is

thus unconstitutional. Therefore, the Court below clearly

erred and its decision must be reversed.

CONCLUSION

For the foregoing reasons, petitioners request that

this petition for certiorari be granted.

Respectfully submitted,

JOSHUA KAPLAN

Law Orrices Or JosHUA KAPLAN

Attorney for Petitioners

Michael Eugene Armstrong and

Jerry Jamgotchian

APPENDIX A

App. 1

APPELLATE DEPARTMENT OF THE SUPERIOR COURT

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

PEOPLE OF THE STATE OF ) Superior Ct. No.

CALIFORNIA, ) BR 35347

Plaintiff and Appellant, Municipal Court of

‘ the Inglewood

Judicial Dist.

MICHAEL EUGENE

ARMSTRONG, et al., a ee

Defendants and ) mene ada

Respondents. ) J

) (Filed Dec. 27, 1995)

This cause having been submitted for decision, and

fully considered, judgment is ordered as follows:

The orders sustaining defendants’ demurrer to the

misdemeanor complaint and dismissing the charge are

reversed.

Michael Armstrong and Jerry Jamgotchian (hereinaf-

ter “respondents”) were charged by misdemeanor com-

plaint with violating section 5.32.070 of the Hawthorne

Municipal Code (hereinafter “the ordinance”), by operat-

ing a billiard or pool hall between the hours of 2 a.m. and

7 a.m. Prior to entering a plea in this case, respondents

demurred to the criminal complaint on the ground the

ordinance violated the Equal Protection Clause of the

Constitution by unreasonably regulating the operating

hours of pool halls while other “similarly situated” enter-

tainment and amusement establishments had no restric-

tions on their hours of operation. The trial court

App. 2

ultimately sustained the demurrer, and dismissed the

charge. The People timely appealed the court’s orders.

On appeal, the People contend the ordinance passes

constitutional scrutiny, and therefore the trial court erred

in sustaining the demurrer and dismissing the complaint

on the ground the ordinance was unconstitutional. Based

on the following analysis, we agree, and therefore reverse

the lower court’s orders.

In reviewing whether the ordinance is constitutional

in this instance, the appropriate standard of review is the

rational basis test, for the ordinance does not impinge on

a fundamental right, nor does it affect a suspect classifica-

tion.! This test requires that legislative action be ratio-

nally related to the accomplishment of a legitimate state

purpose. First, the challenged legislation must have a

legitimate public purpose based on promotion of the

public welfare, health or safety. (Rinaldi v. Yeager (1966)

384 U.S. 305, 309-310.) Second, the action taken must bear

a rational relation to the end it seeks to further. (Griswold

1 Respondents have not contended that the ordinance

affects their right to freedom of association, and in any event,

the activities engaged in at respondents’ establishment

“qualifies neither as a form of ‘intimate association’ nor as a

form of ‘expressive association,’ as those terms were described

in Roberts.” (City of Dallas v. Stanglin (1989) 490 U.S. 19, 25,

citing Roberts v. United States Jaycees (1984) 468 U.S. 609,

617-618.) In Roberts, the Supreme Court recognized

constitutional associational interest in “choices to enter into and

maintain certain intimate human relationships” and in

associations engaged in “speech, assembly, petition for the

redress of grievances, and the exercises of religion.” (Ibid.)

Respondent’s business establishment does not implicate these

forms of association.

App. 3

v. Connecticut (1965) 381 U.S. 479, 505-507.) The test

requires that the legislation constitute a means that is

reasonable, not arbitrary, and rests “upon some ground of

difference having a fair and substantial relation to the

object of the legislation.” (Reed v. Reed (1971) 404 U.S. 71,

76.) An Equal Protection challenge will fail “if there is

any reasonably conceivable state of facts that could pro-

vide a rational basis for the classification” (FCC v. Beach

Communications, Inc. (1993) 508 U.S. __, __, 124

L.Ed.2d 211) and the legislature is not required to articu-

late the purpose or rationale supporting its classification.

(Ibid.) A statute held up to rational basis scrutiny has a

strong presumption of validity, and such statutes “must

be upheld unless their unconstitutionality clearly, pos-

itively, and unmistakably appears.” (Calfarm Ins. Co. v.

Deukmejian (1989) 48 Cal.3d 805, 815.)

Respondents contend the ordinance is unconstitu-

tional because it separates pool halls from other amuse-

ment centers and subjects them to restrictions on their

operating hours, a restriction to which other establish-

ments are not subjected. Respondents acknowledge that

in other cases a municipality has been allowed “to rea-

sonably restrict the hours of operation of an economic

enterprise.” (People v. Glaze (1980) 27 Cal.3d 841, 845;

see also Brix v. City of San Raphael (1979) 92 Cal.App.3d

47, and 7978 Corp v. Pitchess (1974) 41 Cal.App.3d 42.)

Respondents contend, however, that those cases involved

businesses of less than wholesome character (a massage

parlor and a dance hall).?

2 Respondents continually refer to their establishment as a

“family-oriented, alcohol free” business. Appellant has cited

App. 4

Respondents also acknowledge the existence of Mur-

phy v. California (1912) 225 U.S. 623, in which case the

United States Supreme Court specifically held that a

municipality may enact legislation regulating or even

prohibiting pool halls without violating the Equal Protec-

tion Clause. Respondents challenge the continuing legit-

imacy of this case, contending its reasoning is based on

anachronistic views of both society and pool halls. While

this may be accurate (at least one federal court has sug-

gested that its moralistic viewpoints have been rejected;

see Aladdin’s Castle, Inc. v. City of Mesquite (5th Cir.

1980) 630 F.2d 1029, 1040-1041, fn. 16), the fundamental

reasoning of the court, and the case itself, has never been

reversed or modified, and is still viable and good law. In

such a case, this court is bound to follow the precedent

established in this earlier case. (See, Auto Equity Sales

Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

In Murphy, supra the United States Supreme Court

held that a municipality may regulate the operation of

billiard or pool halls even if other entertainment estab-

lishments are not so regulated, on the general theory that

the municipality has the power to control activities that

endanger or jeopardize the public safety, and to maintain

evidence to the contrary in its reply brief, and requested we take

judicial notice of criminal cases filed as a result of alleged

criminal activity taking place at the business in question. We

need not make, and we do not make, any conclusions as to the

reputation of respondents’ business; the only fact which must

be established is that respondents’ business operates as a pool

or billiard hall. This fact is not in dispute. Appellant’s request

that we take judicial notice of other case files unrelated to this

action is, therefore, denied.

Se

App. 5

a decent society. (See also Paris Adult Theatre I v. Slaton

(1973) 413 U.S. 49, 69.) In the present case, Hawthorne

could have determined that having pool halls open dur-

ing the very early morning hours jeopardized the public

safety by creating an area likely to attract large numbers

of people who have a greater tendency to breach the

public peace, while at the same time determining other

entertainment establishments did not create such a situa-

tion.

We note that under Murphy Hawthorne could per-

haps have taken a more drastic course of action and

completely prohibited pool halls within its city limits;

however, the municipality chose a less restrictive means

and chose only to require pool halls to close for five

hours during the early morning. Such a restriction is not

without reason, and as such is a reasonable exercise of the

municipality’s police powers. The ordinance is therefore

constitutional under the rational basis test. The trial

court’s determination to the contrary was incorrect, and

its orders sustaining the demurrer and dismissing the

complaint must therefore be reversed. The matter is

remanded to the municipal court with orders to reinstate

the complaint and proceed accordingly.

/s/ Roberson

Roberson, P.J.

We concur.

/s/ Johnsor.

Johnson, ,

/s/ Mallano

Mallano, J.

APPENDIX B

App. 6

Second Appellate District, Division Three,

No. B098826, S051516

IN THE SUPREME COURT OF CALIFORNIA

MICHAEL EUGENE ARMSTRONG Et Al., Petitioners

V.

MUNICIPAL COURT L.A. Et Al., Respondents

THE PEOPLE, Real Party In Interest

(Filed April 10, 1996)

Application for stay and petition for review DENIED.

LUCAS

Chief Justice

APPENDIX C

Re ee a er ee

App. 7

Chapter 5.32

BOWLING, BILLIARDS AND POOL HALLS

Sections:

5.32.010 License fee.

5.32.020 Permit required.

5.32.030 Application for permit.

5.32.040 Granting or refusal of permit.

5.32.050 Contents of permit.

5.32.060 Screening of table prohibited.

5.32.070 Hours of business.

5.32.080 Entertainment prohibited.

5.32.090 Minors prohibited — Exceptions.

5.32.100 Bowling.

5.32.010 License fee.

Every person engaging in the business of operating a

billiard or pool room shall pay a license fee of twenty-

four dollars per year. (Prior code § 7-400.)

5.32.020 Permit required.

No person shall establish or operate any billiard

room, pool room or other place in the city where any

billiard table or pool table is kept for hire, for public use

or the use of any member of any club or association,

without first having obtained a permit to do so from the

council: provided, however, that any person may own,

operate or keep for hire not more than two coin-operated

billiard tables or pool tables for public use or for the use

of any member of any club or association without first

having obtained a permit to do so from the city council:

App. 8

and provided further, that nothing herein contained is to

exempt the maintenance, operation or keeping for hire of

any such coin-operated billiard table or pool table from

the license provisions of Section 5.34.080A of this code.

(Prior code § 7-401.)

5.32.030 Application for permit.

Applications for such permit shall be filed with the

business licerise supervisor at least ten days before such

permit is granted. The business license supervisor shall

refer all such applications to the council. Applications

shall state, in addition to the information required by

Section 5.06.020 of this code, the location of the proposed

pool or billiard room, the number and kind of tables

proposed to be used and kept, and what, if any, other

business is to be conducted in conjunction therewith or

under the same management. (Ord. 1284 § 1 (part), 1983

prior code § 7-402.)

5.32.040 Granting or refusal of permit.

No permit hereunder shall be granted to any person

who has had any such permit previously revoked. (Prior

code § 7-403.)

5.32.050 Contents of permit.

The permit shall state the time for which it is to run

and the place where the business is to be carried on.

(Prior code § 7-404.)

5.32.060 Screening of table prohibited.

No person engaging in operating a billiard or pool

room shall keep any billiard or pool table therein hidden

from public view. (Prior code § 7-405.)

PSs me

App. 9

5.32.070 Hours of business.

No person engaging in the business of operating a

billiard or pool room shall allow the playing of billiards

or pool in his place of business except between the hours

of seven a.m. and two a.m. of the following day. (Prior

code § 7-406.)

5.32.080 Entertainment prohibited.

It is unlawful for any person to engage in suffer [sic]

or allow any entertainment or attraction other than bil-

liards or pool in a place of business required to be

licensed under this chapter. (Prior code § 7-407.)

5.32.090 Minors prohibited — Exceptions.

A. No person under the age of eighteen years shall be

in, remain in, enter or visit any billiard or pool room

licensed under this chapter, and no person having

charge or control of any billiard or pool room

licensed under this chapter shall permit or suffer any

person under the age of eighteen years to be in,

remain in, enter or visit any billiard or pool room

licensed under this chapter.

B. Notwithstanding the provisions of subsection A of

this section, a person under the age of eighteen years

but over the age of thirteen years may be in, remain

in, enter or visit any billiard or pool room licensed

under this chapter which also holds a special permit

in writing issued by the chief of police authorizing

persons under the age of eighteen years to be in,

remain in, enter or visit such billiard or pool room.

The chief of police shall issue such permit upon

written application only if all of the following condi-

tions are met:

App. 10

No alcoholic beverages are dispensed, sold, con-

sumed or brought onto the premises on which

said billiard or pool room is located;

Such billiard or pool room shall have posted at

each entrance thereto and at not fewer than three

additional places within said billiard or pool

room, a sign in letters not less than one inch in

height reading as follows: “Possession of Alco-

holic Beverages is Not Permitted on These Prem-

ises. No Person Under 18 Years of Age is

Permitted on These Premises Unless Accom-

panied by One Parent or Unless He or She is

Over the Age of 13 Years and Written Permission

From His or Her Parent Has Been Personally

Filed With The Management”:

No person under the age of eighteen years shall

be permitted to be in, remain in; enter or visit

any billiard or pool room licensed under this

chapter before the hour of nine a.m. nor after the

hour of ten p.m. on any day nor during the hours

of any day when elementary or high school is in

regular session;

No person under the age of eighteen years shall

be permitted in any billiard or pool room

licensed under this chapter except in one of the

following cases:

a. Such person is accompanied by one of his

parents, or

b. Such person is over the age of thirteen years

and one of his parents has personally filed

with the operator of such billiard or pool

room the written consent of such parent to

such person being in, remaining in, entering

or visiting said billiard or pool room, setting

forth the name of such person, the name,

App. 11

address and telephone number of the parent

signing said consent, which said written con-

sent shall be maintained on the premises by

the operator at all times and shall be made

available for inspection by any duly autho-

rized personnel of the police department at

any time during regular business hours.

Any permit issued by the chief of police pur-

suant to the provisions of this subsection may be

suspended or revoked by the chief of police in writ-

ing and such suspension and revocation shall be

effective for all purposes upon the issuance thereof;

provided, however, that any person dissatisfied with

the action of the chief of police in suspending or

revoking any such permit may appeal such suspen-

sion or revocation of such permit to the city council

by filing a written notice of appeal with the business

license supervisor within ten days following the

effective day of any such suspension or revocation.

Upon receipt of notice of appeal of any such suspen-

sion or revocation, the business license supervisor

shall place the appeal on the agenda of the next

regular city council meeting following receipt

thereof.

(Ord. 1284 § 1 (part), 1983; prior code § 7-408.)

5.32.100 Bowling.

Every person engaging in the business of operating a

bowling alley shall pay a license fee of fifty dollars per

year or gross receipts basis, whichever is greater. (Prior

code § 7-300.)

APPENDIX D

App. 12

17.26.020 Permitted uses.

In a C-2 zone that following uses only are permitted

and as specifically provided and allowed by this chapter:

1. Churches; subject to the conditions set forth in

Chapters 17.14 and 17.58;

2. Ambulance service;

2.5 Amusement arcades, subject to the issuance of a

conditional use permit;

3. Automobile and truck sales and service, new and or

used, when operated in conjunction, but not used

alone, and not including automobile service stations;

and automobile and truck leasing where the leasing

activity at the same site and location;

4. Bars and cocktail lounges;

5. Bicycle shops, but not including motorcycles or

motorcycle repairs;

Billiard halls and pool halls;

Bowling alleys;

Business and professional offices;

~~ a

Cleaning and pressing establishments using non-

flammable and nonexplosive cleaning fluids and liq-

uids with a flash point above 138.5 F. in a closed

safety cleaning system;

10. Conservatories of music, dance, drama and instru-

ment instruction;

11. Dance halls;

12. Decorator shops (interior);

13. Employment agencies;

14.

ioe

16.

17.

18.

19.

20.

21.

y »

23.

24.

25.

26.

27.

28.

29.

App. 13

Engineering consultant;

Gymnasiums, public commercial, or physical culture

shops;

Hospitals, emergency only;

Hotels or motels, but not apartment hotels, subject

to a conditional use permit. A market feasibility

study prepared by a city approved consultant shall

be submitted with a conditional use application;

Laboratories, x-ray;

Massage parlors and reducing salons;

Medical-dental buildings and clinics;

Mortuaries, subject to the issuance of a conditional

use permit;

Parking lots, when improved and maintained in the

manner specified by this code or by the uniform

standards established by the city council by resolu-

tion; provided, however, that no such area shall be

used for a car, truck, trailer or boat sales area or for

the accessory storage of cars, trucks, boats or

trailers;

Passenger terminals;

Printing establishments, including newspapers;

Private clubs and fraternal lodges;

Public parking garages, but not repairing;

Restaurants, including drive-thru, take-out and

walk-up restaurants and cafeterias; no drive-in;

Stationery stores, including incidental printing;

Telegraph offices and telephone exchanges;

emitSedeaticniodsbas

App. 14

30. Theaters, subject to the issuance of a conditional use

permit;

31. Accessory buildings and uses customarily incident

to any permitted uses when located on the same site

with the main building and use;

32. Similar rental services, professional or commercial

recreational establishments when interpreted by the

planning commission as to performance standards

as set forth in Chapter 17.10;

33. Unclassified uses, as provided for in Chapter 17.36;

34. Automotive service center and service station facili-

ties when operated as accessory to and in conjunc-

tion with regional shopping center department

stores.

(Ord. 1530 § 5, 1992; Ord. 1510 § 2, 1990.)

status of any property offered for referral.

(Prior code § 6-103.)

5.62.020 Residential rental business.

Every owner or operator of a business engaging in a

rental of five or more residential units other than hotels,

motels, motor courts or lodging houses shall pay an

annual fee as follows:

01-04 units $ 0.00 per unit

05-15 units $15.00 per unit

16-25 units $20.00 per unit

26 or more units $25.00 per unit

(Ord. 1555 § 2, 1993.)

App. 15

Chapter 5.64

PUBLIC EATING ESTABLISHMENTS

Sections:

5.64.010 License and fee.

5.64.010 License and fee.

A. Public Eating Places. Every person engaging in oper-

ating a public eating place other than a refreshment

stand or wayside stand shall pay a license fee based

upon gross receipts.

B. Refreshment Stand. Every person engaging in oper-

ating a refreshment stand shall pay a license fee

based upon gross receipts.

(Prior code § 9-502.)

Sections:

5.66.010

5.66.020

5.66.030

5.66.040

5.66.050

5.66.060

5.66.070

5.66.080

5.66.090

Chapter 5.66

OUTDOOR RESTAURANTS

Definitions.

Findings.

Permit — Required.

Permit — Other requirements.

Permit -— Expiration date.

Permit — Not assignable.

Permit - Application.

Permit — Requirements for issuance.

Permit — Refusal - Issuance of permit

upon conditions.

App. 16

5.66.100 Permit — Renewal.

5.66.110 Permit — Revocation or suspension.

5.66.010 Definitions.

A. “Fully enclosed building,” as used in this chapter,

means a permanently located structure, having a roof

and four walls all of which conform to the Uniform

Building Code, as adopted by Section 15.04.010 of

this code.

de new teem

B. “Outdoor restaurant,” as used in this chapter, means

any public eating place which provides facilities for,

or permits, consumption of food products or bever-

ages on any portion of such premises not within a

fully enclosed building.

(Prior code § 9-1500.)

5.66.020 Findings.

La a he Salat Me

The city council finds as follows:

A. That “outdoor restaurants,” as defined herein, exist

in the city in close proximity to residences of inhabi-

tants of the city;

B. That restaurants which provide facilities for, or per-

mit consumption of food or beverages outdoors

attract large numbers of people who congregate and

: loiter about the premises;

; C. That operation of said outdoor restaurants in the

‘ nighttime hours has contributed to numerous and

: repeated instances of disturbance of the peace and

4 quiet of the vicinity in which they are located and the

: creation of public nuisances;

App. 17

D. That the public health, safety and general welfare

require that outdoor restaurants be regulated by the

city;

E. That the regulations herein prescribed as necessary

and appropriated for the promotion of the public

health, safety and general welfare, and

* * *

5.34.120 Theater.

5.34.130 Entertainment in general.

5.34.010 Amusement arcades.

Every person operating an amusement arcade as

defined in Section 17.04.077 of this code shall pay an

annual license fee based upon the annual gross receipts

set forth in Section 5.48.010 of this title per amusement

machine or device. (Ord. 1276 § 2, 1982.)

5.34.020 Astrology.

Every person engaging in the business, art or practice

of clairvoyance, clairaudience, magic, medium character

analysis, predictions or fortunetelling, and who demands

or receives a fee for the exercise or exhibition of his art

therein, directly or indirectly, either as a gift, donation or

otherwise, or who gives an exhibition thereof at any place

where an admission fee is charged, shall pay a license fee

of one hundred dollars per year; provided, however, that

nothing herein shall be deemed to authorize engaging in

the business of professing to reveal the future events in

the life of another, or the acceptance of gratuities there-

for; and provided further, that this section shall not apply

to any person conducting or participating in any religious

SO I OR. OR AER Pa EOE ONE

Oe a ee ee

App. 18

ceremony or services when such person holds a certifi-

cate, ordination or endorsement as a medium healer or

clairvoyant from any bona fide church or religious asso-

ciation having branches or churches in other states or

countries and a creed or sect of religious principles recog-

nized by all such branches or churches, and where the

fees, gratuities or profits of such ceremony or services are

regularly accounted for and paid solely to or for the

benefit of such church or religious association. Each

applicant for a license under this section shall make and

file an affidavit with the business license supervisor

showing his residence within the city during the twenty-

four months immediately preceding the date of said

application. (Ord. 1284 § 1 (part), 1983; prior code

§ 7-101.)

5.34.030 Boxing and wrestling.

Every person conducting, managing or carrying on a

boxing and wrestling exhibition shall pay a license fee of

ten dollars per exhibition. (Prior code § 7-102.)

5.34.040 Carnivals and fairs.

Every person operating a carnival, fair or similar

exhibition shall pay a license fee of one hundred dollars

per day, plus five dollars per day for each show, riding

device and concession in excess of twenty in number.

(Prior code § 7-103.)

App. 19

5.34.050 Children’s amusement park.

Every person operating a children’s amusement park

with ferris wheel, scenic railroad, merry-go-round, flying

Jenny, swing or similar device for the amusement of

children, where a fee is charged or collected for any

persons thereon, shall pay a license fee of six dollars per

year for each ride, machine or concession. (Prior code

§ 7-104.)

5.34.060 Children’s pony ride.

Every person operating a children’s pony ride, for

the amusement of children, not in connection with any

established livery stable or riding academy, where a fee is

charged or collected to ride such pony or ponies, shall

pay a license fee of ten dollars per year for each pony or

equine animal. (Prior code § 7-105.)

5.34.070 Circus.

Every person operating a circus or similar exhibition

shall pay a license fee of fifty dollars per day, plus five

dollars per day for each side show included in such circus

or exhibition for which a separate admission fee in the

amount of twenty-five cents or less is charged, or plus ten

dollars per day if such admission fee exceeds twenty-five

cents but does not exceed fifty cents, or plus twenty

dollars per day for each such admission which exceeds

fifty cents. (Prior code § 7-106.)

App. 20

5.34.080 Amusement devices.

A. License Fees. Every person engaging in any business,

who permits the operation of mechanical, electrical

or electronic devices having a skill or amusement

| feature connected therewith, and which permit the

use and operation of the same by the insertion of a

coin, slug or token shall pay an annual license fee

based upon the annual gross receipts set forth in

Section 5.48.010 of this title per amusement machine

or device, in addition to any other fees imposed by

this code.

B. Impounding. Any mechanical amusement device

operated or maintained in violation of any law of the

state, or any provisions of this code, or of any condi-

tions upon which a permit or license may be granted

or of any lawful order of the chief of police, shall be

deemed to be a public nuisance and shall be

impounded by the chief of police and if any court of

competent jurisdiction determines that said device,

or the use or operation thereof, violates or has vio-

lated any of such laws or ordinances, conditions or

orders, said mechanical amusement device shall be

confiscated by the chief of police. Likewise if any

such device is placed, operated or maintained to be

operated without a current license, the chief of police

shall immediately cause the same to be impounded

and shall not release said mechanical amusement

device until a new permit has been obtained in the

manner provided for in this code for obtaining an

original permit. Mechanical amusement devices

impounded under the provisions of this section shall

be held for a period of thirty days, and if not

redeemed within such period, may be destroyed or

otherwise disposed of by the chief of police, and any

proceeds obtained from the disposal thereof shall be

ee ee ee

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seat ct

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4

.

App. 21

deemed forfeited to the city to compensate it for the

impounding of such device.

C. Slot Machines Prohibited. No person shall install,

operate or maintain any mechanical amusement

device which contains a pay-off device for the return

of slugs, money, coins, checks, tokens or merchandise

or any mechanical amusement device of the class

commonly known as a “slot machine,” or “console,”

and no permit or license shall be issued for any

mechanical amusement device of the type mentioned

in this section.

(Ord. 1276 § 4, 1982; Ord. 1264 § 4, 1982; Ord. 1028 § 6,

1972; prior code § 7-107.)

5.34.090 Music machines.

Every person engaging in the business of operating

in any place open to the public any device, machine,

instrument, radio or apparatus designed, constructed or

used for the purpose of producing, reproducing or play-

ing any musical tone, tones or combinations-of tones,

when the use, operating or playing of such device,

machine, instrument, radio or apparatus is caused, per-

mitted or allowed by the deposit of any coin, token or

other thing of value in any slot, crevice or other opening,

or by the payment of any fee therefor, shall pay a license

fee based on the schedule set out in Chapter 5.48 of this

code. (Ord. 1028 § 8, 1972: prior code § 7-108.)

5.34.100 Shooting gallery.

Every person engaging in the business of operating a

shooting gallery, archery range or any other game of ball

App. 22

rolling, ring throwing, disc throwing or other games of

skill not enumerated shall pay a license fee of fifty dollars

per year. (Prior code § 7-109.)

5.34.110 Tent show.

Every person operating any traveling theatrical per-

formance or any theatrical performance such as comedy,

spoken drama, operas or concerts, under, surrounded or

partially enclosed by a canvas or similar substance, shall

pay a fee of twenty dollars per year, for each machine.

Provisions of Section 5.34.080B shall apply to this section.

(Prior code § 7-110.)

5.34.120 Theater.

Every person engaging in the business of operating a

theater shall pay a license fee of fifty dollars per year or

on a gross receipts basis, whichever is greater. (Prior code

§ 7-111.)

5.34.130 Entertainment in general.

Every person conducting, managing or carrying ona

lecture, entertainment, show or exhibition not otherwise

provided for in this chapter, for which a fee is received,

directly or indirectly, either as a gift, donation or other-

wise, shall pay a license fee of ten dollars per day. (Prior

code § 7-112.)

Sections:

5.44.010

5.44.020

5.44.030

5.44.040

5.44.050

5.44.060

5.44.070

5.44.080

5.44.090

App. 23

Chapter 5.44

ESCORT BUREAUS

Defined.

License fees.

Application fee.

Application for license.

Registration.

Records.

Grounds for revocation of permit.

Minors.

Exemption.

5.44.010 Defined.

“Escort bureau” means any business or agency

which, for a fee, commission, hire, reward or profit, fur-

nishes, or offers to furnish escorts or persons who, for

hire or reward, accompany others to or about social

affairs, entertainments or places of amusement, or who

consort with others, for hire or reward, about any place of

public resort or within any private quarters. (Prior code

§ 6-1600.)

5.44.020 License fees.

A. Every person engaging in the business of an escort

bureau shall pay a license fee of fifty dollars per year.

B. Every person employed as an escort in an escort

bureau shall pay a license fee of two dollars per year.

(Prior code § 6-1601.)

=

OE WE ee Ney eta BER mh

App. 24

5.44.030 Application fee.

Every application for such license shall comply with

Chapter 5.14. (Prior code § 6-1602.)

5.44.040 Application for license.

Application for such license shall be under oath and

shall contain the following information:

A.

The name of applicant and a complete statement

regarding any and all true and fictitious names used

by the applicant within five years immediately prior

to the date of filing the application;

The residence address and telephone number of the

applicant;

The age, date and place of birth of the applicant;

The place or places where applicant will engage in

his business, calling or employment;

The nature and place of applicant’s business or

employment within five years immediately prior to

the date of filing the application;

A photograph of the applicant taken within sixty

days immediately prior to the date of filing the appli-

cation, which picture shall be two inches by two

inches, showing the head and shoulders in a clear

and distinguishing manner;

The finger and thumb prints of the applicant, to be

taken by the police department of the city;

The names of at least two reliable property owners of

the county, who will certify as to the applicant’s good

character and/or business responsibility; or, in lieu

of the names of such references, such other available

App. 25

evidence as to the good character and/or business

responsibility of the applicant as will enable an

investigator to properly evaluate such character

and/or business responsibility;

I. A statement that applicant has never been convicted

of a crime involving moral turpitude, or a felony; if

any such crime has been committed by applicant, a

complete statement of the nature of such crime and

the place and date of conviction.

(Prior code § 6-1603.)

5.44.050 Registration.

Each application for a permit must state the names

and addresses of all escorts intended to be employed by

the applicant, and, if a permit is granted, the permittee

must notify the chief of police in writing, within twenty-

four hours, of any change in personnel with regard to

escorts. All such escorts shall be registered by the chief of

police: provided, however, that no escort shall be regis-

tered unless there is furnished to the chief of police

satisfactory evidence of the good moral character of such

escort. The registration of any escort may be canceled for

cause by the chief of police and thereafter no escort

bureau shall employ, engage or deal with such escort.

Any escort who has had his registration canceled by the

chief of police may appeal to the council from such deci-

sion in the manner provided in Section 5.16.010 of this

code. (Prior code § 6-1604.)

0 eae Sera

App. 26

5.44.060 Records.

A record shall be kept by each permittee showing

every transaction whereby any escort is employed, fur-

nished or arranged for on behalf of any patron or cus-

tomer, the date and approximate hour of the transaction,

the name, address and telephone number of the patron or

customer, the name of each escort involved and such

other information as the chief of police may reasonably

require by rule or regulation. Such record shall be kept

available and open to the inspection of any police officer

at any time during business hours and shall be presented

before the chief of police at any time upon written

request therefor. (Prior code § 6-1605.)

5.44.070 Grounds for revocation of permit.

In addition to the grounds for revocation contained

in Section 5.16.020 of this code, any permit to engage in

the business of an escort bureau may be revoked upon

any of the following grounds:

A. That the permittee has, in the course of said business,

committed, or caused, permitted, encouraged or con-

doned the commission of any act in violation of this

chapter, or any lewd and immoral act, or any act of

prostitution;

B. That the business has been conducted, in whole or in

part, as a subterfuge to facilitate the conduct of any

unlawful or immoral business or practice.

(Prior code § 6-1606.)

App. 27

———————e eg

5.44.080 Minors.

A. No permittee under the provisions of this chapter

shall employ, as an escort, any person under twenty-

one years of age;

B. No permittee under this chapter shall furnish any

escort to, or accept employment from any patron,

customer or person to be escorted who is under

twenty-one years of age, except at the special

instance and request of the parent, guardian or other

person in lawful custody of the person on whose

behalf the escort service is engaged.

(Prior code § 6-1607.)

5.44.090 Exemption.

The provisions of this chapter shall not apply to the

lawfu! business of any employment agency licensed

under the laws of the state. (Prior code § 6-1608.)