Opposition Brief — Sparks v. City & County of San Francisco

No. 91-1972

In The

Supreme Court of the United States

October Term, 1992

¢

ADAM SPARKS,

Petitioner,

VS.

CITY AND COUNTY OF SAN FRANCISCO,

Respondent.

*

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

¢

Louise H. RENNE

- City Attorney

*DENNIS AFTERGUT

Chief Assistant City Attorney

MicHELLE E. GOLDBERG

Deputy City Attorney

~ 1390 Market Street, 6th Floor

San Francisco, CA 94102

(415) 554-3918

Counsel for Respondent -

*Counsel of Record

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

OR CALL COLLECT (402) 342-2831

-

a ee eee

TABLE OF CONTENTS

Page

Pe Or Pe oo ASV is Kaha news gece wens iii

Introduction and Summary of Argument........... |

NE Or GE ON i ca kewacnnschusensew ons 4

Reasons Why the Petition Should be Denied....... 8

I. THE STATE APPELLATE COURT’S CON-

TEMPT DECISION IS VALID REGARDLESS

OF THE CONSTITUTIONALITY OF THE

UNDERLYING ORDINANCE................ 8

A. Sparks Was Obligated To Obey The

PIN nis oss Ska ia ks MRA KON a TERE 8

B. Sparks Had An Opportunity To Seek

Direct Review Of The Injunction But

oo kk Preerrrrr rer Teer eres 10

C. This Court Should Apply Federal Law.. 10

D. The Federal Collateral Bar Rule Applies

Because Sparks Had An Opportunity For

Adequate And Effective Review......... 12

Il. THIS COURT SHOULD NOT REACH THE

CONSTITUTIONALITY OF THE ORDI-

NANCE’S TOURIST RENTAL PROVISIONS

BECAUSE THE CONTEMPTS WERE_BASED

SOLELY ON SPARKS’ FAILURE TO MAIN-

TAIN RECORDS AND ALLOW AN INSPEC-

Pees Cee ree Peet Te ESTE Pore rT hry ree 13

Il. THE APPELLATE COURT CORRECTLY

DECIDED THAT THE ORDINANCE IS

FACIALLY CONSTITUTIONAL ............. 14

A. The Ordinance Does Not Deny All Eco-

nomically Viable Use Of The Property .. 15

li

TABLE OF CONTENTS - Continued

Page

B. The Ordinance Substantially Advances

Legitimate State Interests ............... 18

IV. THE COURTS BELOW CORRECTLY DECIDED

THAT PETITIONER HAD NO RIGHT TO A

JURY IN HIS TRIAL FOR PETTY OFFENSES... 20

Contbessioth «osc vik s cenuct eee Cl eee 23

lil

TABLE OF AUTHORITIES

Page

CasEs

Agins v. City of Tiburon, 447 U.S. 255 (1980)......... is

American Savings and Loan Ass’n v. County of ;

Marin, 653 F.2d 364 (9th Cir. 1981)................ 16

Bethlehem Mines v. United Mine Workers, 476 F.2d

DE ra inigia cc hips ov kia h's 6 ke A od Kee 10

Bullock v. City and County of San Francisco, 221 Cal.

I a SS 6 Kip 0a 4645 8b wes ween Ses 15, 19

Cherokee Express, Inc. v. Cherokee Express, Inc., 924

ke, er 10

Commercial Builders of Northern California v. City of

Sacramento, 941 F.2d 872 (9th Cir. 1991), cert.

denied, __ U.S. __, 112 S. Ct. 1997 (May 18,

aaah ak Ch 65s CAs PRA Oh Ao A awa wee va 20

Cooper's Express Co., Inc. v. Interstate Commerce

Comm'n, 330 F.2d 338 (1st Cir. 1964) .............. 14

First English Evangelical Lutheran Church of Glendale

v. County of Los Angeles, 482 U.S. 304 (1987) ...... 16

Glen v. Hongisto, 438 F. Supp. 10 (N.D. Cal. 1977) .... 10

GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375

TG 6 CR GA TGA S GS hu 4 59-15, 4 AES CoE KO AK 9

Harriman v. City of Beverly Hills, 275 Cal. App. 2d

BA SRR ine ei en 13

Howat v. State of Kansas, 258 U.S. 181 (1922)....8, 9, 11

In re Berry, 68 Cal. 2d 137 (1968) ............ 10, 11, 15

In re Establishment Inspection of Hern Iron Works,

ime., GB F.2d 722 (Sth Cir. 1969)................... 9

In re Morelli, 11 Cal. App. 3d 819 (1970)............ 21

In re Novak, 932 F.2d 1397 (11th Cir. 1991) .......... 12

iV

TABLE OF AUTHORITIES — Continued

Johansen v. San Diego County District Council of

Carpenters, 745 F.2d 1289 (9th Cir. 1984).......... 59

Karr v. Baldwin, 57 F.2d 252 (N.D. Tex. 1932)........ 14

Loretto v. Teleprompter Manhattan CATV Corp., 458

Loa OE CRED aa Wa ven vos nee eke eee cae cy we 17, 18

Lucus v. South Carolina Coastal Council, No. 91-453

(U.S. June 29, 1992) (WESTLAW, SCT file) .15, 16, 20

Lying v. Northwest Indian Cemetery Protective Ass‘n,

ee SF MUO 5 te aN 5a ahs eae er CANN es 14

MacLeod v. Santa Clara County, 749 F.2d 541 (9th

Cir. 1984), cert. denied, 472 U.S. 1009.............. 17

Maness v. Meyers, 419 U.S. 449 (1975) ..............0.. 9

Maita v. Whitmore, 365 F. Supp. 1331 (N.D. Cal.

1973) rev'd on other grounds, 508 F.2d 143 (9th

Cir. 1974), cert. denied, 421 U.S. 947 (1975) ..... 12, 21

Moore v. City of Costa Mesa, 678 F. Supp. 1448 (C.D.

Sa SS ON Ost Ue a nied a » sae eh es 17

Nollan v. California Coastal Comm’‘n, 483 U.S. 825

GRP o eka ecin lyse eee eur ae kina. 3, 17, 19, 20

Oceanic California, Inc. v. City of San Jose, 497 F.

a ee ee eee re 17

Pacific Telegraph & Telephone v. Superior Court, 265

ee Ss Se Pe ck caper we ekies Se eerie 21

Pasadena City Board of Education v. Spangler, 427

ie | eee caren een re reer ee 9

Penn Central Transportation Co. v. City of New York,

ee Se | er ere 16, 17, 18, 20

Pennell v. City of San Jose, 485 U.S. 1 (1988)......... 14

Vv

TABLE OF AUTHORITIES - Continued

Page

People v. White, 259 Cal. App. 2d Supp. 936 (1968) .... 14

Rife v. Godbehere, 814 F.2d 563, as amended, 825 F.2d

306 (0 Coe. TOGE). . casei mnceseeee ee 21

Sadowsky v. City of New York, 732 F.2d 312 (2d Cir.

GD 3.5 scinncscs ssn 00ansve ends seep ee eeeeeneE eee 18

Seawall Associates v. City of New York, 542 N.E.2d -

on ei eer rr errr pyre 17, 19, 20

Taylor v. Hayes, 418 U.S. 488 (1974)............... 21, 22

Terminal Plaza v. City and County of San Francisco,

177 Cal. App. 30 Gh2 GROG) . .. «2 sh sasesss nes 15, 19

Thomas v. Collins, 323 U.S. 516 (1945) ............... 12

Traweek v. City and County of San Francisco, 659 F.

Supp. 1012 (N.D. Cal. 1984), aff'd in part and

rev'd in part, 920 F.2d 589 (9th Cir. 1990).......... 16

U.S. v. May, 622 F.2d 1000 (9th Cir. 1980) ........... 21

LS. =. Rye, 402 US Soe GIG). «<x cies svanscnnicess 12

U.S. v. United Mine Workers, 330 U.S. 258 (1947)...... 8

Walker v. City of Birmingham, 388 U.S. 307 (1967) passim

William C. Haas & Co., Inc. v. City and County of San

Francisco, 605 F.2d 1117 (9th Cir. 1979), cert.

Geniel, 645 US. FEB CUBR) «6 a0 sdaat eases 17

Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S.

Et . . rnenne grr Prrere py rae ne te OE 13

Yee v. City of Escondido, 503 U.S. __, 112 S. Ct. 1522

TPO ooo oc nns v caveneanss¥int meee 3, 19, 20

vi

TABLE OF AUTHORITIES - Continued

Page

STATUTES

California Civil Code

Yr ree AB Rd 3 ny (nA 20, 21

California Government Code

UCC TOTO 6666544045 Khe eaw Se een 17

Sections 65580, 65589.5, 65915, 66412.3 ............ 19

San Francisco Administrative Code

CANOE GiBe «co. ckk eke shar cunserse hea dbyee cee tee 4

ee! | err er eee rr ee er rere hy 4, 18

LUGE SINE oo cis ee nic nvnesacrede saeenaweeeneel 4

OTHER TEXT

11 C. Wright & A. Miller, Federal Practice and Pro-

Come S FOGG CIS Ss «ss occccssesectkete eon 12

No. 91-1972

¢

In The

Supreme Court of the United States

October Term, 1992

¢

ADAM SPARKS,

Petitioner,

Vs.

CITY AND COUNTY OF SAN FRANCISCO,

Respondent.

¢

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

*

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

4

Respondent City and County of San Francisco files

this brief in opposition to the Petition for a Writ of

Certiorari and prays that the Writ be denied. The Ninth

Circuit Court of Appeals correctly affirmed the denial of

the habeas petition and upheld petitioner Adam Sparks’

conviction and sentence.

INTRODUCTION AND SUMMARY OF ARGUMENT

In an action by the City and County of San Francisco

(“San Francisco” or the “City”) to enforce its Residential

Hotel Unit Conversion and Demolition Ordinance (the

“Ordinance”), the California Superior Court enjoined

petitioner Adam Sparks from violating the Ordinance and

subsequently twice held Sparks in contempt. The Califor-

nia Court of Appeal, in two separate unpublished deci-

sions, upheld the preliminary injunction and six counts of

contempt. The California Supreme Court denied review

of both decisions. !

On June 17, 1991, the California Superior Court

enforced the six contempt counts by ordering Sparks to

surrender to the County Sheriff. The next day, Sparks

filed his petition for writ of habeas corpus with the

United States District Court in and for the Northern

District of California. The district court denied Sparks’

federal habeas petition and declined to stay his sentence

pending appeal. Citing Walker v. City of Birmingham, 388

U.S. 307 (1967), the court held that Sparks was required to

serve his jail term for violating the superior court’s

injunction, even if he believed the Ordinance to be uncon-

stitutional, and even if the Ordinance was ultimately held

to be unconstitutional. The Ninth Circuit affirmed the

denial of the habeas petition. Sparks now seeks certiorari

and challenges the contempts by arguing that the Ordi-

nance upon which the injunction was based is unconstitu-

tional and that he was denied his right to a jury trial.

1 Sparks failed to seek a timely direct review in this Court

of the preliminary injunction decision, but did seek certiorari

as to the second appellate decision, that which upheld the six

counts of contempt. This Court denied Sparks’ first petition for

Writ of Certiorari last year. A copy of the letter confirming

denial of certiorari is attached as Appendix A to this Opposi-

tion.

Although Sparks urges this Court to declare the

Ordinance’s tourist rental provisions unconstitutional,

Sparks’ argument fails for several reasons. First, under

federal law, Sparks cannot raise as a defense in this

proceeding the unconstitutionality of the preliminary

injunction or its underlying law. The appellate decision

upholding the injunction is a final judgment that cannot

now be challenged in this habeas proceeding. Second, the

constitutionality of the tourist rental provisions is irrele-

vant given that Sparks was not held in contempt for

violating the injunction’s tourist rental provisions; rather,

Sparks was found guilty of violating the injunction’s

basic recordkeeping and inspection requirements —

requirements that raise no constitutional issues. Finally,

even if this Court were to reach the issue of the constitu-

tionality of the Ordinance’s tourist rental provisions, the

Ordinance does not effect a taking as Sparks alleges.

The petition to this Court attempts to manufacture a

false conflict between the holding of the California Court

of Appeal and the federal courts. Given that the federal

courts have yet to rule on the constitutionality of the

Ordinance, and that the state appellate court’s opinion is

fully consistent with this Court’s decisions in Nollan and

Yee, Sparks’ predictions regarding the content of any

future federal decisions are speculative at best.

This Court must also reject Sparks’ attempt to con-

coct a conflict between the California and New York

courts. Sparks’ argument is predicated on a patent mis-

construction of the Ordinance. In reality, the San Fran-

cisco law is distinguishable from the New York City law

and thus warrants different treatment under the Constitu-

tion. This case presents no conflict in decisions and the

petition should be denied.

STATEMENT OF THE CASE

The San Francisco Residential Hotel Unit Conversion

and Demolition Ordinance (“the Ordinance”) was

enacted in 1979. It represented San Francisco's legislative

response to the widespread conversion of residential

hotels to tourist hotels that was causing a serious short-

age of housing in San Francisco. S.F. Admin. Code Chap.

41.2. Similar to zoning provisions, the Ordinance froze in

place the number of residential and tourist rooms at

certain residential hotels and regulated future change.”

The San Francisco Board of Supervisors enacted the

Ordinance on the basis of a study by San Francisco’s

Department of City Planning. The study showed that the

number of residential housing units in the City had

decreased by nearly 20% between 1975 and 1979 due to

the -“vacation, conversion or demolition” of residential

hotels. Id., chap. 41.3(d). The Board found that “a housing

emergency exists within the City and County of San

Francisco for its elderly, disabled and low-income house-

holds,” people who traditionally had rented rooms at

residential hotels. Id., chap. 41.3(e).

2 Contrary to the allegations set forth in Sparks’ and

Pacific Legal Foundation’s briefs, the Ordinance does not set Or

limit the hotel’s rental rates; it merely regulates the length of

stay of the hotel’s tenants.

Sparks purchased the Sequoia Hotel in 1984, more

than three years after the Ordinance went into effect and

with full knowledge of its restrictions. Initially, Sparks

operated the hotel as a residential hotel, consistent with

its historical use. Following a minor fire, however, Sparks

renovated the hotel with the specific goal of operating it

illegally as a tourist hotel. In July 1987, the hotel was re-

named the Pacific Bay Inn and re-opened as a tourist

hotel despite the Ordinance’s prohibitions. Beginning in

July 1987, and continuing until today, Sparks has oper-

ated the Pacific Bay Inn as a tourist hotel.

Because of Sparks’ flagrant violations of the Ordi-

nance, the City filed an enforcement action in December

1987. (California Superior Court, CCSF v. Pacific Bay Inn

and Adam Sparks, No. 885-533.) The City alleged violation

of the Ordinance as well as of the City’s zoning laws that

prohibited the operation of the Pacific Bay Inn as a tourist

hotel in a residential neighborhood.* Sparks cross-com-

plained, alleging that the City’s enforcement of the Ordi-

nance violated his constitutional rights.4

3 Sparks, a licensed real estate agent, purchased the hotel

with knowledge that the property was zoned RC-4. Under

RC-4 zoning, use as a tourist hotel was prohibited unless the

property owner had obtained a conditional use permit.

4 The City’s case was subsequently consolidated with an

action against Sparks by the Tenderloin Housing Clinic, a non-

profit housing organization. On August 26, 1991, and following

a three-day court trial, Judge Richard Figone of the California

Superior Court announced his tentative decision in favor of

plaintiffs. Judge Figone found that Sparks had purchased his

hotel in 1984 with the intent of making a profit as a tourist

(Continued on following page)

On April 6, 1988, the California Superior Court

issued a Preliminary Injunction ordering Sparks to com-

ply with the Ordinance by (1) not renting more than a

certain number of units for tourist use; (2) keeping and

posting specified records; and (3) allowing administrative

inspections by City inspectors. Sparks argued that the

Ordinance was unconstitutional and, on that basis,

appealed the issuance of the Preliminary Injunction to the

California Court of Appeal. The Preliminary Injunction

remained in effect throughout the appeal.

In November 1990, the California Court of Appeal

upheld the Injunction, finding the Ordinance to be consti-

tutional on its face. As to Sparks’ claims that the Ordi-

nance was unconstitutional as applied, the appellate

court held that the record did not disclose that Sparks

had exhausted his remedies. Sparks’ request for review

by the California Supreme Court was denied on March

20, 1991.

In February 1989, the superior court found Sparks in

contempt on 32 separate violations of the Preliminary

Injunction. Remarkably, even after being held in contempt

in February, Sparks continued to ignore the Injunction.

Thus, in November 1989, Superior Court Judge Claude D.

Perasso again held Sparks in contempt, finding beyond a

—_—_ —

(Continued from previous page)

hotel. Moreover, in violation of the City’s zoning laws, Sparks

operated his hotel as a tourist hotel despite the fact that he had

never applied for or obtained the proper permits to run a

tourist hotel in a residential neighborhood. Accordingly, Judge

Figone permanently enjoined Sparks from operating the Pacific

Bay Inn as a tourist hotel.

reasonable doubt that Sparks’ defiance of the court’s

Injunction “ha[d] been intentional, willful and with the

intent to frustrate the processes of [the Superior] Court.”

Sparks filed petitions for writs of habeas corpus and

certiorari in the California Court of Appeal. The appellate

court stayed enforcement of both contempt orders and

undertook review. In January 1991, the Court of Appeal

upheld six counts of contempt and annulled the other

counts citing evidentiary defects. These six counts were

based solely on Sparks’ violation of the Injunction’s

recordkeeping and inspection provisions. Specifically,

Sparks had failed to keep and post records required

under the Ordinance, and had deliberately obstructed a

City inspection in September 1989. _

On June 17, 1991, Superior Court Judge Richard

Figone enforced the six contempt counts by issuing an

Order of Commitment that directed Sparks to surrender

to the County Sheriff at 9:00 a.m. on June 19, 1991. Sparks

filed his petition for writ of habeas corpus with the

district court the next day.

Judge John P. Vukasin of the Northern District of

California dismissed Sparks’ habeas petition and declined

to stay his sentence pending appeal. Citing Walker v. City

of Birmingham, 388 U.S. 307 (1967), the court held that

Sparks was fequired to serve his jail term for violating

the superior court’s Injunction, even if he believed the

Ordinance to be unconstitutional, and even if the Ordi-

nance was ultimately held to be unconstitutional. On

appeal, the Ninth Circuit affirmed the denial of Sparks’

habeas petition.

REASONS WHY THE PETITION SHOULD BE DENIED

I. THE STATE APPELLATE COURT’S CONTEMPT

DECISION IS VALID REGARDLESS OF THE CON-

STITUTIONALITY OF THE UNDERLYING ORDI-

NANCE.

A. Sparks Was Obligated To Obey The Injunction.

Federal courts have long held that a party cannot

‘challenge a contempt citation for violation of an injunc-

tion by raising the constitutionality of the underlying

ordinance as a defense. U.S. v. United Mine Workers, 330

U.S. 258 (1947); Howat v. State of Kamsas, 258 U.S. 181

(1922); Johansen v. San Diego County District Council of

Carpenters, 745 F.2d 1289 (9th Cir. 1984). Thus, in the

seminal case of Walker v. City of Birmingham, 388 U.S. 307

(1967), this Court held that violation of a duly issued

court order may be properly punished as contempt, even

if the underlying statute or ordinance upon which the injunc-

tion is based is later found to be unconstitutional.

In Walker, petitioners were prominent civil rights

activists who were held in contempt by an Alabama court

for violating am injunction prohibiting a scheduled civil

rights march. That injunction was based on a Birmingham

ordinance that petitioners contended was unconstitu-

tional on its face.

This Court recognized that “the Birmingham parade

ordinance upon which the injunction was based would

unquestionably raise substantial constitutional issues. ...”

388 U.S. at 316. Nevertheless, this Court upheld the finding of

contempt, quoting its decision in Howat v. State of Kansas,

258 U.S. 181 (1922):

“An injunction duly issuing out of a court of

general jurisdiction . . . must be obeyed .. .

however erroneous the action of the court may

be, even if the error be in the assumption of the

validity of a seeming, but void law going to the

merits of the case.

It is for the court of first instance to determine

the question of the validity of the law, and until

its decision is reversed for error by orderly

review, either by itself or by a higher court, its

orders based on its decision are to be respected, and

disobedience of them is contempt of its lawful

authority, to be punished.”

388 U.S. at 314 (quoting Howat v. State of Kansas, 258 U.S.

at 189-190) (emphasis added).

More recently, in GTE Sylvania, Inc. v. Consumers

Union, 445 U.S. 375 (1980), this Court echoed the reason-

ing of Walker, holding that “persons subject to an injunc-

tive order issued by a court with jurisdiction are expected

to obey that decree until it is modified or reversed, even

if they have proper grounds to object to the order.” 445

U.S. at 386 (citations omitted). See also Pasadena City Board

of Education v. Spangler, 427 U.S. 424, 439 (1976); Maness v.

Meyers, 419 U.S. 449, 458-59 (1975); In re Establishment

Inspection of Hern Iron Works, Inc., 881 F.2d 722, 725-28

(9th Cir. 1989); Johansen v. San Diego County District Coun-

cil of Carpenters, 745 F.2d 1289 (9th Cir. 1984). In the

present case, the district court correctly applied these

decisions in denying Sparks’ habeas petition.

10 =)

B. Sparks Had An Opportunity To Seek Direct

Review Of The Injunction But Failed To Do So.

The rule of Walker is especially applicable where, as

here, the contemnor had an opportunity to challenge the

validity of the injunction but failed to do so. Thus,

because Sparks failed to seek timely review in this Court

of the appellate court’s preliminary injunction decision,

that decision cannot be challenged in this habeas pro-

ceeding. Cf. Cherokee Express, Inc. v. Cherokee Express, Inc.,

924 F.2d 603, 607 (6th Cir. 1991) (“An appeal from a

finding of contempt does not put in issue the validity of

the underlying judgment from which the party has failed

to perfect a timely appeal”); Bethlehem Mines v. United

Mine Workers, 476 F.2d 860 (3d Cir. 1973) (if a party fails to

appeal from a preliminary injunction that has been vio-

lated, the validity of the injunction is not at issue on

appeal and cannot be urged as grounds to vacate the

contempt order).

C. This Court Should Apply Federal Law.

Citing In re Berry, 68 Cal. 2d 137 (1968), Sparks

attempts to circumvent Walker by asking this Court to

“defer” to California state law to determine whether he

can challenge the constitutionality of the Ordinance in his

federal habeas proceeding. In short, Sparks seeks to

apply a California case over directly controlling United

States Supreme Court authority. This argument runs

roughshod over the consistent line of cases following

Walker, and finds no support in logic or in law. E.g., Glen

v. Hongisto, 438 F. Supp. 10, 16 n.10 (N.D. Cal. 1977)

(“While petitiwners urge that this Court adopt the Berry

11

rule as the law of the case, such a course would be

improper in this federal court proceeding.”) (emphasis

added). For example, in Maita v. Whitmore, 365 F. Supp.

1331 (N.D. Cal. 1973), rev’d on other grounds, 508 F.2d 143

(9th Cir. 1974), cert. denied, 421 U.S. 947 (1975), the court

applied Walker, not Berry:

Petitioner apparently believes that the First

Amendment entitled him to litigate the

obscenity issue twice - once at the time the

temporary injunction is issued and once at any

subsequent contempt hearing. As was discussed

above, ... [o]nce . . . an injunction [is] properly

issued, the only consideration before the court in a

contempt proceeding is if petitioner in fact violated

the terms of the injunction.

365 F. Supp. at 1336, citing Walker (emphasis added)

(footnote omitted).

Nothing in Howat, Walker, Maita, or any other federal

case suggesis thai the federal court should defer to or

apply the state court procedure. Indeed, Walker implies

just the opposite: The Walker Court uses the federal rule as

the standard against which the state court rule of law

must be compared. Walker, 388 U.S. at 314 (The Kansas

“rule of state law accepted and approved in Howat v. State

of Kansas is consistent with the rule of law followed by the

federal courts.”) (emphasis added).

Adam Sparks may disagree with the Residential

Hotel Ordinance. But it is not the Ordinance or its alleged

unconstitutionality that is at issue here. Thus, under the

federai collateral bar rule enunciated in Walker and relied

upon by the federal courts below, the appellate court’s

contempt decision is valid regardless of the Ordinance’s

constitutionality.

12

D. The Federal Collateral Bar Rule Applies

Because Sparks Had An Opportunity For Ade-

quate And Effective Review.

Relying on an isolated passage in Walker, Sparks next

argues that Walker does not apply to him because he

purportedly exhausted his state court remedies. Sparks’

construction of Walker is perverse: The exception to the

collateral bar rule applies to petitioners who are denied

adequate or effective state court review, not to those such

as Sparks who had the advantage of such review. The

rationale is that a party who is denied state court review

must be given such an opportunity in federal court - else

they would have no opportunity for review at all. As

stated by Wright & Miller, “[I]t is the opportunity for

effective review that bars later challenge in a contempt

proceeding.” 11 C. Wright & A. Miller, Federal Practice and

Procedure § 2960, at 598 (1973). Accord, In re Novak, 932

F.2d 1397, 1401 (11th Cir. 1991) (an exception to the collat-

eral bar rule applies where the state court provides no

opportunity for review) (citing U.S. v. Dickinson, 465 F.2d

496, 511 (5th Cir. 1972)); U.S. v. Ryan, 402 U.S. 530, 532 n.4

(1971).

Thomas v. Collins, 323 U.S. 516 (1945), cited by Sparks,

is wholly inapposite. Thomas predates Walker, and does

not address the collateral bar rule. The Thomas Court

simply assumes that it has jurisdiction over, and proceeds

to address, the constitutional question. 323 U.S. at 524

n.7. Moreover, the statute and injunction in Thomas con-

stituted a prior restraint on speech, thus creating a special

constitutional circumstance that is not present here.

13

Here there is no question of the superior court’s

jurisdiction, and Sparks has availed himself of both the

state and federal review procedures. The fact that he has

not succeeded does not create an exception to Walker. The

federal courts below correctly applied Walker, and Sparks’

petition for certiorari should be denied.

II. THIS COURT SHOULD NOT REACH THE CON-

STITUTIONALITY OF THE ORDINANCE’S

TOURIST RENTAL PROVISIONS BECAUSE THE

CONTEMPTS WERE BASED SOLELY ON

SPARKS’ FAILURE TO MAINTAIN RECORDS

AND ALLOW AN INSPECTION.

If this Court does not apply Walker and reaches the

constitutionality of the underlying order, the only issue is

whether the basis for the contempt is constitutional. As

stated earlier, the six counts of contempt before this Court

are based solely on Sparks’ willful violation of the supe-

rior court’s order to (a) maintain records and notices; and

(b) allow City inspections. These are ministerial acts that

Sparks easily could have performed regardless of the

other aspects of the Ordinance, and they do not implicate

any constitutional right.5

A government requirement to maintain daily busi-

ness registers does not violate any federal constitutional

right. See Williamson v. Lee Optical of Oklahoma, Inc., 348

U.S. 483 (1955); Harriman v. City of Beverly Hills, 275 Cal.

° Because the Ordinance contains a severability clause,

Sparks was required to comply with the recordkeeping and

inspection provisions, even if he bélieved that the tourist rental

provisions were unconstitutional.

14

App. 2d 918 (1969). Likewise, government requirements

that a business or property owner permit inspection of

records are constitutionally permissible. See Cooper's

Express Co., Inc. v. Interstate Commerce Comm'n, 330 F.2d

338 (1st Cir. 1964); People v. White, 259 Cal. App. 2d Supp.

936 (1968); Karr v. Baldwin, 57 F.2d 252 (N.D. Tex. 1932).

Given the City’s legitimate interest in knowing the scope

and size of its housing stock, the Ordinance’s reporting

and inspection requirements are valid independent of the

tourist rental provisions.

The finding of contempt against Adam Sparks for

failing to maintain records and allow inspections violated

no constitutional right. Thus, the constitutionality of the

Ordinance’s tourist rental provisions is irrelevant.

indeed, because this case can be disposed of on noncon-

stitutional grounds, this Court should not address the

constitutionality of the Ordinance’s tourist rental provi-

sions. See Lying v. Northwest Indian Cemetery Protective

Ass'n, 485 U.S. 439 (1988); Pennell v. City of San Jose, 485

U.S. 1 (1988).

Ill. THE APPELLATE COURT CORRECTLY DECIDED

THAT THE ORDINANCE IS FACIALLY CONSTI-

TUTIONAL.

Assuming arguendo that Sparks could hurdle the first

two obstacles and establish that (1) the Walker rule does

not apply, and (2) a constitutional issue is raised by

recordkeeping and inspection requirements, the contempt

finding should still be upheld because the underlying

Ordinance is constitutional on its face.

15

The California Court of Appeal has thrice considered

the issue and held the Ordinance to be facially constitu-

tional. See Terminal Plaza v. City and County of San Fran-

cisco, 177 Cal. App. 3d 892, 912 (1986) (court explicitly

rejects argument that the Ordinance effects an unconstitu-

tional “taking” of property); Bullock v. City and County of

San Francisco, 221 Cal. App. 3d 1072 (1990); and Sparks v.

City and County of San Francisco.6

Despite this precedent, Sparks asserts that the Ordi-

nance is facially invalid on the theory that it effects a

taking without just compensation in violation of the Fifth

Amendment. The party challenging a government regula-

tion as a taking must demonstrate that the statute either

(1) denies all economically viable use of the subject prop-

erty, or (2) does not substantially advance legitimate state

interests. See Lucas v. South Carolina Coastal Council, No.

91-453 (U.S. June 29, 1992) (WESTLAW, SCT file); Agins v.

City of Tiburon, 447 U.S. 255, 260 (1980). Sparks’ argument

fails on both counts.”

A. The Ordinance Does Not Deny All Economi-

cally Viable Use Of The Property.

The fact that some restrictions have been imposed

upon Sparks’ use of his property does not establish that a

6 In contrast, the order at issue in Berry had never under-

gone judicial scrutiny.

7 Even before this Court can address Sparks’ takings

claim, Sparks must establish that he exhausted his administra-

tive remedies. As set forth earlier, the California Court of

Appeal found that Sparks had not done so.

16

taking has occurred. Regulation of private property con-

stitutes inverse condemnation only where the regulation

denies the landowner all reasonable economic and benefi-

cial use of the property. See Lucas v. South Carolina Coastal

Council, No. 91-453 (U.S. June 29, 1992) (WESTLAW, SCT

file); First English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, 482 U.S. 304 (1987); American Sav-

ings and Loan Ass‘n v. County of Marin, 653 F.2d 364,368

(9th Cir. 1981) (citing Agins, supra).

The Supreme Court has provided no “set formula” to

determine when economic injuries caused by public

action must be compensated by the government. How-

ever, in Penn Central Transportation Co. v. City of New York,

438 U.S. 104, 124 (1978), this Court discussed several

factors that bear on this issue: (1) the extent to which the

regulation has interfered with reasonable investment-

backed expectations; and (2) the character of the govern-

mental action (i.e., is it a physical invasion or merely an

adjustment of the benefits and burdens of economic life).

Here, the Ordinance has not interfered with any of

Sparks’ reasonable, investment-backed expectations. When

Sparks purchased the hotel in 1984, he was aware that

historically it had been a residential hotel and was subject

to the Ordinance. This situation is similar to that in

Traweek v. City and County of San Francisco, 659 F. Supp.

1012 (N.D. Cal. 1984), aff'd im part and rev'd in part, 920

F.2d 589 (9th Cir. 1990), where the court rejected a takings

claim because the owner could continue an existing use:

“(T]he plaintiffs bought into a heavily regulated situation

arid were on notice that the City’s condominium conver-

sion regulations were subject to annual review.” Id. at

1026.

17

Sparks bought a residential hotel with full knowl-

edge of the Ordinance. He had no reasonable investment-

backed expectation that he would be able to defy the law.

Thus, he cannot meet the Penn Central test. See MacLeod v.

Santa Clara County, 749 F.2d 541, 548-549 (9th Cir. 1984),

cert. denied, 472 U.S. 1009; Moore v. City of Costa Mesa, 678

F. Supp. 1448, 1451 (C.D. Cal. 1987) (no taking where

property owner “able to continue to use his property for

his home and business; he has merely been unable to

build a new and more profitable building to replace the

current buildings”); William C. Haas & Co., Inc. v. City and

County of San Francisco, 605 F.2d 1117, 1120 (9th Cir. 1979),

cert. denied, 445 U.S. 928 (1980); Oceanic California, Inc. v.

City of San Jose, 497 F. Supp. 962, 973-977 (N.D. Cal. 1980).

Moreover, the Ordinance does not result in a perma-

nent physical invasion. This fact distinguishes the Ordi-

nance from the laws at issue in Nollan v. California Coastal

Commission, 483 U.S. 825 (1987), Loretto v. Telepromptor

Manhattan CATV Corp., 458 U.S. 419 (1982), as well as

Seawall Associates v. City of New York, 542 N.E.2d 1059

(1989), the case relied on by Sparks. |

In Seawall, the New York law required owners to

rehabilitate and rent units to tenants; a vacancy constitu-

ted a violation of the ordinance. Here, no such forced

rental exists. The City does not require hotel owners

either to rehabilitate units or to keep them occupied.

Indeed, the owner is free to go out of the residential

market entirely under California law. See Cal. Gov’t Code

§§ 7060-7060.7. Thus, the Ordinance does not result in a

physical invasion. It affects only economic use of the

property and is precisely the sort of governmental action

that results merely in “an adjustment of the benefits and

18

burdens of economic life.” Penn Central Transportation Co.

v. City of New York, supra, 438 U.S. at 124.

B. The Ordinance Substantially Advances Legiti-

mate State Interests.

The second prong of the takings analysis involves a

determination as to whether the legislation advances a

legitimate state interest. In the late 1970’s, San Francisco’s

Department of City Planning conducted a study of the

City’s housing markei. The study showed that the

number of residential hotel units in the City had

decreased by neafly 20% between 1975 and 1979 due to

the “vacation, conversion or demolition” of residential

hotels. S.F. Admin. Code Chap. 41.3(d).

Concerned that further elimination of residential

units would exacerbate the housing shortage, the San

Francisco Board of Supervisors enacted the Ordinance to

halt the conversion trend, preserve the residential hous-

ing stock, and maintain a proper balance between

residential and commercial uses. The Ordinance accom-

plishes its legitimate state goals by regulating conversion

or demolition of residential hotel rooms and by requiring

one-for-one replacement if such residential units are con-

verted to nonresidential uses.®

8 That states have broad powers to regulate housing con-

ditions is beyond dispute. See Loretto v. Telepromptor Manhattan

CATV Corp., 458 U.S. 419 (1982); Sadowsky v. City of New York,

732 F.2d 312 (2d Cir. 1984) (law limiting ability to demolish

single room occupancy buildings in New York City, specifically

(Continued on following page)

19

Because of this “fit” between the Ordinance and its

legitimate purpose, the California Court of Appeal has

upheld the constitutionality of the Ordinance in three

well-reasoned opinions. Thus, in Terminal Plaza v. City and

County of San Francisco, supra, 177 Cal. App. 3d at 912

(1986), Bullock v. City and County of San Francisco, supra,

and Sparks v. City and County of San Francisco, the courts

held that the Ordinance did not amount to a taking.

Sparks urges this Court to ignore the Terminal Plaza deci-

sion. Alternatively, he argues that Terminal Plaza was

overruled by the Supreme Court in Nollan v. California

Coastal Commission, 483 U.S. 825 (1987) and, more

recently, in Yee v. City of Escondido, 503 U.S. acai OAR Ok

1522 (1992).

Contrary to Sparks’ assertion, Nollan did not radi-

cally alter the traditional takings analysis. Nollan held

that a higher judicial scrutiny of government regulation

may be required where the police power involves a physi-

cal invasion of the property, such as the exaction of a

public easement across the plaintiff’s property in that

case, 483 U.S. at 841.9 However, with respect to other

(Continued from previous page)

intended to protect the poor and elderly occupants of these

buildings, had a valid purpose). Moreover, the State of Califor-

nia has recognized that Provision of housing for all economic

segments of society should be a government priority. See Cal.

Gov't Code §§ 65580, 65589.5, 65915, and 66412.3.

® Similarly, under the reasoning of Nollan, the forced

rentals at issue in the Seawall case effected a physical taking in

that the hotel owners were required to rent their property to

(Continued on following page)

20

regulation of property rights that do not constitute a

physical encroachment on land, such as the regulation at

issue in this case, Nollan does not change the existing test:

Land use regulation does not effect a taking if it substan-

tially advances legitimate state interests and does not

deny an owner economically viable use of his land. Lucas

v. South Carolina Coastal Council, No. 91-453 (U.S. June 29,

1992) (WESTLAW, SCT file); Commercial Builders of North-

ern California v. City of Sacramento, 941 F.2d 872 (9th Cir.

1991), cert. denied, U.S. __, 112 S. Ct. 1997 (May 18,

1992).1° Under Lucas, Nollan, and Commercial Builders, the

Ordinance must be upheld as a constitutional regulation

of land use.

IV. THE COURTS BELOW CORRECTLY DECIDED

THAT PETITIONER HAD NO RIGHT TO A JURY

IN HIS TRIAL FOR PETTY OFFENSES.

Sparks also asserts that he was entitled to a jury trial

on charges of violating California Civil Code Section

(Continued from previous page)

strangers, 542 N.E.2d at 1062-63. In contrast, there is no physi-

cal invasion under the San Francisco Ordinance because

vacancy does not constitute a violation of San Francisco’s

Ordinance. Seawall is also distinguishable because the New

York law did not advance its stated purpose of alleviating the

homelessness problem. San Francisco’s one-for-one replace-

ment provisions, however, do advance the City’s goals of pre-

serving the available residential housing stock.

10 Similarly, nothing in Yee v. City of Escondido, 503 U.S.

__, 112 S. Ct. 1522 (1992), changes the factors to be analyzed in

a takings claim: the economic impact of the regulation, its

interference with reasonable investment-backed expectations,

and the character of the government action. See Penn Central

Transportation Co. v. City of New York, 438 U.S. 104, 124 (1978).

21

1209. The charge of contempt under Section 1209 is a

“petty offense” that is punishable by no more than five

days in jail and a one thousand dollar fine. Petty offenses

do not require a jury trial. See Taylor v. Hayes, 418 U.S.

488, 495 (1974); In re Morelli, 11 Cal. App. 3d 819, 850

(1970); Pacific Telegraph & Telephone v. Superior Court, 265

Cal. App. 2d 370, 375 (1968).

Sparks attempts to create a jury “right” where none

exists by aggregating the penalties to which he might

have been subjected under the 178 separate counts of

contempt originally found by the trial court. But Sparks

was not entitled to a jury trial on any one of those 178

counts. Thus, the assertion that Sparks’ potential sentence

raises a constitutional right to a jury is without merit.

Finally, even assuming arguendo that Sparks had been

entitled to a jury trial, any constitutional violation was

remedied when the appellate court upheld only six

counts of contempt and imposed a sentence of less than

six months in jail and less than $5,000 in fines. See Taylor

v. Hayes, supra (trial by jury not required where state

reduces sentence to six months or less); Rife v. Godbehere,

814 F.2d 563, as amended, 825 F.2d 185 (9th Cir. 1987)

(constitutional violation remedied by state court’s ulti-

mate imposition of sentence that would not trigger jury

trial right); Maita v. Whitmore, 508 F.2d 143 (9th Cir. 1974),

cert. denied, 421 U.S. 947 (1975) (jury trial not required

where trial judge later reduces sentence to less than six

months); U.S. v. May, 622 F.2d 1000, 1005 (9th Cir. 1980).

In Taylor, the Kentucky trial court, without a jury,

convicted the defendant of criminal contempt and

imposed consecutive sentences aggregating almost four

22

years’ imprisonment. The trial judge subsequently

amended the sentence but left open the question of

whether the sentences were to run concurrently or con-

secutively. The Kentucky Court of Appeals affirmed, but

amended the sentence to run concurrently, thereby

imposing a six month jail sentence and curing the jury

trial right violation. 418 U.S. at 495-96.

On review, this Court held that because the actual

penalty imposed was no more than a six month sentence,

the contemnor’s right to jury trial had not been violated.

More importantly, this Court held that after the contem-

nor’s conviction, the state could reduce a sentence rather

than retry the contempt with ~ jury:

It is argued that a State should not be per-

mitted, after conviction, to reduce the sentence

to less than six months and thereby obviate a

jury trial. The thrust of our decisions, however,

is to the contrary: in the absence of legislative

authorization of serious penalties for contempt,

a State may choose to try any contempt without

a jury if it determines not to impose a sentence

longer than six months. We discern no material

difference between this choice and permitting

the State, after conviction, to reduce a sentence

to six months or less rather than to retry the

contempt with a jury. In either case, the State

itself has determined that the contempt is not so

serious as to warrant more than a six-month

sentence. We remain firmly committed to the

proposition that “criminal contempt is not a

crime of the sort that requires the right to jury

trial regardless of the penalty involved.”

418 U.S. at 496 (citations omitted).

23

In the instant case, because the California legislature

did not authorize a “serious” penalty, the state courts

were free to reduce Sparks’ sentence in order to cure any

constitutional violation and obviate a jury trial. Thus,

even if the trial court had violated Sparks’ right to a jury

trial, this violation was cured when Sparks’ penalty was

ultimately reduced on appeal to six days in jail and $3,000

in fines —- well below the demarcation point for the right

to jury trial.

CONCLUSION

No court issues contempt findings lightly. Two Cali-

fornia state court judges and a federal district court judge

believed that Sparks’ intentional violation of the injunc-

tion was serious and required an appropriate sanction.

There is a strong public interest in upholding injunctions

issued by state court judges and in allowing penalties to

be enforced for violating those injunctions. Sparks’ peti-

tion for a writ of certiorari should be denied.

DATED: July 6, 1992

Respectfully submitted,

Louise H. RENNE

City Attorney

*DENNIS AFTERGUT

Chief Assistant City Attorney

MicHELLe E. Gotpserc

Deputy City Attorney

1390 Market Street, 6th Floor

San Francisco, CA 94102

(415) 554-3918

Counsel for Respondent

*Counsel of Record

. -_

App. 1

APPENDIX 1

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

November 4, 1991

Ms. Violet Elizabeth Grayson

3128 Clay Street

San Francisco, CA 94115

Re: Adam Sparks v. Superior Court of the City and

County of San Francisco (City and County of San

Francisco, Real Party)

No. 91-85

Dear Ms. Grayson:

The Court today entered the following order in the

above entitled case:

The petition for a writ of certiorari is denied.

Very truly yours,

/s/ William K. Suter

William K. Suter, Clerk