Summary
In Sunset Amusement Co. v. Board of Police Commissioners, 16 Cal.App.3d 184 [93 Cal.Rptr. 890], it was held that a plea of nolo contendere was not proof of the violation for the purpose of the administrative hearing there involved, and distinguished Christensen in precisely the same manner as the court did in Kirby, supra.
Summary of this case from Grannis v. Board of Medical ExaminersOpinion
For Opinion on Hearing, see 101 Cal.Rptr. 768, 496 P.2d 840.
Opinion on pages 180 to 195 omitted.
HEARINGS GRANTED
Arnold H. Gold, Beverly Hills, for petitioners and appellants.
Roger Arnebergh, City Atty., Los Angeles, George J. Franscell, Asst. City Atty., and Thomas M. Dempsey, Deputy City Atty., for respondent.
KINGSLEY, Associate Justice.
Sunset Amusement Co., and Rollerbowl Amusements, Inc., appeal from a judgment denying their petition for a writ of mandate to compel respondent board of police commissioners to issue a renewal permit to conduct a roller skating rink in the City of Los Angeles. We reverse the judgment with directions.
Appellants, under one, or the other, corporate name, have operated the rink in question since 1955. In due course they applied for a renewal permit for the year 1968.
On October 29, 1968, appellants received from the respondent board of police commissioners a 'Notice of Intention to Deny [93 Cal.Rptr. 892]Permit.' This notice set forth the grounds for denying the renewal according to sections 103.31(a), 103.31(c) and 103.29(b) of the Los Angeles Municipal Code. Hearings concerning this denial of a renewal license were held on December 2 and 13, 1968, and January 2, 6, 14, and 23, 1969. Following these hearings, the hearing examiner recommended that appellants' permit not be renewed. After appellants requested a record of the proceedings, it appeared that some of the reporter's notes had been lost so that additional hearings were conducted on June 12, 13, and 24, 1969. Following these hearings, the examiner again recommended that appellants' permit be denied. The recommendation was adopted by respondent on September 10, 1969.
See Appendix A.
See Appendix B.
After two petitions for reconsideration were granted on September 24, 1969, and October 8, 1969, the respondent board again denied appellants' renewal permit for 1968 and also their application for a 1969 renewal permit. The text of the denial, dated October 17, 1969, is set forth in the footnote.
The denial of the application for a renewal permit for 1969 rests on the ground that, if a permit for 1968 was validly refused, petitioners had no permit to 'renew.'
See Appendix C.
On October 23, 1969, appellants petitioned the superior court for a writ of mandate asking that the action of respondent be set aside. Appellants set forth a number of grounds for their petition: that the findings of respondent were not supported by sufficient evidence; that appellants were legally unable to control the conduct of persons outside of the establishment whose activities were cited by respondent as being detrimental to the neighborhood; that respondent board had wrongfully failed to conduct completely new hearings following loss of part of the hearing reporter's notes; and that the denial of their permit by the respondent was an infringement of First Amendment rights because the municipal ordinances under which the board acted are unconstitutionally vague.
On December 12, 1969, the superior court denied appellants' writ. On appeal from that ruing, appellants reassert as errors the adverse rulings of the trial court on each of the many points urged below as errors of the respondent in first denying their petition.
Under applicable rules, petitioners were entitled to continue their operation pending final action on their renewal applications. The superior court had stayed the effect of the board's denial pending its decision; when the appeal was filed here we continued that stay pending our final disposition of the appeal.
This court has reviewed the entire record before the administrative hearing officer, including the elusive references made by appellants and respondent.
The manner in which the case was presented here, especially by respondent, has caused this court unnecessary work. While appellants' opening brief partially complied with the requirement that appropriate testimony be quoted to us, respondent's brief consisted merely of references to pages of the administrative transcript, without quotation or summary. As a result, we were forced to read the entire 15 volumes of that record--a task properly that of counsel. In addition, with reference to finding number 1, hereinafter discussed, respondent originally relied in this court only on the nolo contendere plea, without citation of the case authority on which it relied in its petition for a rehearing (as it admits in that petition) without any reference to the oral testimony eventually relied on. As a result, in order to have time properly to consider the case, we were forced to grant a rehearing, vacate our original opinion, and resubmit the case, with the attendant additional work and delay.
I
As to administrative finding number 1, respondent now relies, in this court, on two theories:
(1) That appellants' plea of nolo contendere to a charge of violation of section [93 Cal.Rptr. 893]12.21 of the Los Angeles Municipal Code, proved the charge that they had 'failed to provide sufficient parking facilities for its premises.'
The reliance on that plea is misplaced. Subdivision (3) of section 1016 of the Penal Code provides that a plea of nolo contendere 'may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.' Respondent contends that Christensen v. Orr (1969) 275 Cal.App.2d 12, 79 Cal.Rptr. 656, is authority for relying on a nolo contendere plea in an administrative (as opposed to a judicial) proceeding. The case does not so hold. In Christensen, a driver's license had been suspended, partly on the basis of a nolo plea. But, in such a case, the operative fact is not the existence of the underlying conduct, but merely the fact of a 'conviction'; Christensen holds only that a judgment based on a nolo plea is a 'conviction' for the purpose of the Vehicle Code provisions therein involved. But, in the case at bench, the issue is not whether appellants had been convicted of violation of the parking ordinance, but whether they had, in fact, violated that ordinance. It is the use of the plea for that broader purpose that section 1016 expressly prohibits.
The court's language was as follows:
(2) That there was oral testimony showing that the appellants had not provided the required off-street parking. In support of that contention, we are cited to the testimony of two witnesses.
The petition for rehearing refers us (for the first time) to other testimony. But, when analyzed, that testimony either is rank hearsay or relates only to the general charge of disturbance of the community, which we consider below. We can find, in the testimony cited to us, only that of Woodward and Trojanowski which relates to the parking facility issue.
Witness Woodward had visited the premises on a single occasion--in January of 1969. His testimony goes no further than to show that, on the day he visited appellants' establishment, their lease of parking facilities had been cancelled and that negotiations then under way for a substitute facility had not yet been completed. This, if anything, suggests that appellants had had off-street parking during the year (1968) involved in the renewal application, rather than that they had not had such facilities. Even as to the year 1969, we are not prepared to hold that a temporary interruption in parking facilities (not shown to be the fault of appellants) justifies a permanent revocation of their license.
The record suggests that, by the date of hearing (June 1969), appellants had secured other parking lots but had not yet secured administrative approval from another agency (the zoning administrator) for their continued use.
Whether or not a temporary loss of parking facilities would justify a suspension of a license until the situation was corrected is not before us; no such remedy was invoked by respondent.
Officer Trojanowski testified that he had visited the vicinity of appellants' business on six occasions in connection with the 1968 application, and that he had not seen any off-street parking; on cross-examination, he admitted that he had not checked all possible locations in the vicinity and that he was unfamiliar with certain locations about which counsel inquired. While weak, and mostly conclusionary, this [93 Cal.Rptr. 894]testimony could have supported an inference by the board that no off-street parking existed on those six occasions. At the most, it proves no more.
Officer Trojanowski also testified to conversations with a representative of appellants, to the effect that appellants were negotiating for off-street parking. That does not prove the non-existence of the required parking; at most it suggests that appellants wished to secure either more, or substitute parking facilities. It does not support the finding involved.
We cannot determine, from the record before us, whether or not the board did, in fact, place reliance on Officer Trojanowski's testimony, or how much weight it gave to the nolo plea or to Woodward's testimony. Under these circumstances, since the finding may have been based on either or both of the non-probative items, we must remand the case for a further consideration of the issue by the board.
II
The superior court found, contrary to respondents' finding number 3, that appellants did not knowingly make false statements of material fact in their renewal application. That finding is not in issue here.
III
The remaining findings, which are both redundant and verbose, appear to charge three primary problems as attributable to appellants: (1) that numerous arrests for batteries, assaults, and robberies occurred both within and without the premises of appellants; (2) that policing the applicant's business has caused the expenditure of numerous police manhours; and (3) that a presumed lack of parking has aggravated the problem of police control in the area.
There is no support for these findings in the record. As to problems occurring within the roller rink, there is no evidence whatsoever to support such a finding. Roller rink employees freely admitted that occasional altercations occurred within the rink. But they uniformly stated that they could control the problems with their own personnel, that the problems were no greater than one might expect with a large number of young persons gathered in one place; and that neither the police department nor any complaining citizen had complained of events occurring inside the rink. Indeed, although most testifying officers stated that they had never been inside the premises, one officer who was inside the premises stated that, 'Management of the skating rink has always been cooperative with the police department in the past. They have a minimum of trouble inside the skating rink * * *.' Another investigating officer found that the skating rink was properly conducted: 'Inside the place everyone seemed to behave. When the public address announcer announced certain ones to get off the floor, the floor was cleared immediately. The people participated and there were guards around that seemed to maintain order.'
In sum, there is nothing in the record to support a finding of numerous difficulties within the premises which could support a license revocation.
That difficulties occurring outside the premises became prevalent during approximately 1968, which inconvenienced both neighboring businesses and residents, is, at the same time, clear from the record. Witnesses testified that their driveways were blocked, that they were fearful of walking in the area, and that the traffic congestion was unbearable.
We find, and respondent cites, no authority for the proposition that appellants are responsible for events occurring outside of their premises. (Cf. Boreta Enterprises, Inc. v. Department of Alcoholic Beverage Control (1970) 2 Cal.3d 85, 95, 84 Cal.Rptr. 113, 465 P.2d 1; Stoumen v. Reilly (1951) 37 Cal.2d 713, 234 P.2d 969; Tarbox v. Board of Supervisors (1958) 163 Cal.App.2d 373, 378, 329 P.2d 553.) Indeed, the opposite is abundantly clear from the record. When appellants attempted to have their own security guards help to direct traffic in the area, they were told that their security officers could not lawfully do so. Further, when appellants attempted to obtain and pay control the traffic problem in the area, they were informed by the officer in charge of the Hollywood police division that the request would not be granted. At the same time, we cannot fail to note the extensive evidence elicited by appellants [93 Cal.Rptr. 895]that other establishments in the area, such as the Hollywood Bowl and numerous theaters, create major traffic congestion which is controlled by the Hollywood police division without charge or question.
In short, the record does not support the findings of the hearing officer that the operation of the roller rink was 'contrary to the general welfare of the public.' If anything, the record shows that the management of the roller rink was sensitive to both public concern and the needs of its patrons, that it attempted to correct alleged abuses by contacts with the Los Angeles Police Department and the hiring of additional security officers, and that it welcomed and solicited ways to correct alleged abuses from the police department.
Primarily, it is the duty of government, so long as a business is lawful, and properly zoned, to provide whatever police services are reasonably necessary to control the activities of potential, or past customers. Within limits which we need not here discuss, a governmental agency may weigh the cost and difficulty of such police services in determining whether or not that kind of business should be totally outlawed, or be restricted to an area where outside conduct will be less objectionable. But the failure of the police to control activity outside a business establishment cannot be used as an excuse to deny a license to a lawful and properly conducted business merely because adjacent residents object to activities of its patrons, which are in no way condoned or encouraged by the management (Tarbox v. Board of Supervisors, supra (1958) 163 Cal.App.2d 373, 329 P.2d 553.)
IV
As we have pointed out above, we must reverse the judgment so that the board may, if it desires, reconsider the issue of inadequate parking on the basis of admissible and probative evidence. In addition, we cannot determine whether the board would have invoked the ultimate penalty of total denial had its action rested only on that one matter. The ultimate remand will direct the board not only to reconsider the single factual issue of parking facilities but also, if a new finding on that issue is adverse to appellants, to reconsider its action on the application in the light of this opinion.
The judgment is reversed; the case is remanded to the superior court with directions to issue its writ of mandate directing respondent board to vacate its order and thereafter to proceed in accordance with this opinion.
JEFFERSON, Acting P. J., and DUNN, J., concur.
APPENDIX A
'In the event of a Hearing, you should be prepared to meet the issues set forth in the following paragraphs:
'I. The Board may deny a permit for a business prohibited by any local or state law, statute, rule or regulation or prohibited in the particular location by this code, section 103.31(a) L.A.M.C., in that,
'A. The applicant has not obtained a Certificate of Occupany for the premises from the Department of Building and Safety as required by Section 91.0315(A) L.A.M.C.
'On or about September 30, 1968, applicant's Certificate of Occupancy was cancelled by Department of Building and Safety City of Los Angeles.
'II. The Board may deny a permit if the applicant, his agent or employee, or any person connected or associated with the applicant, as partner, director, officer, stockholder, associate, or manager has committed or aided or abetted in the commission of any act or act of omission which, if committed by a permittee, would be a ground for disciplinary action section 103.31(c)3 L.A.M.C., in that,
'A. On or about March 1, 1967, the applicant violated Subparagraph (E) of Paragraph (4) of Subdivision (A) of Section 12.21 of [93 Cal.Rptr. 896]the Los Angeles Municipal Code in that applicant failed to provide sufficient parking facilities for its premises.
'Applicant plead nolo contendere on November 28, 1967 in municipal court and was find $110 and placed on 12 months probation. (103.35(B) L.A.M.C.)
'B. The applicant knowingly made a false statement of a material fact in its application in that Joseph Decker, president of applicant corporation, indicated to Police Commission investigator that the applicant corporation is no longer operating the premises, and that the Rollerbowl Amusement Inc., a non-permittee, is operating the premises known as Hollywood Rollerbowl at 5612 Sunset Boulevard. (103.35(A) L.A.M.C.)
'III. The Board may deny a permit if said operation will not comport with the peace, health, safety, convenience, good morals, and general welfare of the public, section 103.29(b) L.A.M.C., in that,
'A. On or about July 22, 1968, applicant was found guilty of violation of probation stemming from charges brought as indicated in Paragraph II(A) and included herein as though fully set forth, in that applicant continuously refuses to provide adequate parking for its premises.
'B. Eleven letters of protest from 52 interested persons have been received by the Board.
'C. The protests reflect that the proposed Skating Rink would not comport with the peace, health, safety, convenience, good morals and general welfare of the public.
'D. The applicant and the officers and employees of the applicant have conducted the permitted business in a manner contrary to the general welfare of the public in that there have been and continues to be numerous arrests occurring in or near the premises, including but not limited to Battery against Police Officers, Assault with Deadly Weapon, Drunk, Robbery, Thefts from Motor Vehicles and Disturbing the peace.
'E. The applicant the officers and employees of the applicant have conducted the permitted business in a manner contrary to the general welfare of the public in that since 1964 the applicant's premises has required numerous manhours and efforts on the part of patrol in the setting up of command posts, assignment of men to special details and patrolling of the premises to prevent and to control major disturbances.'
APPENDIX B
Sec. 103.29. (Amended by Ord. No. 137,438, Eff. 11/7/68.)
BOARD ACTION ON APPLICATION:
'After an investigation, the Board may:
'(a) Issue Permit. Issue the permit if the Board finds that the operation of the trade, occupation or business by the applicant will comport with the peace, health, safety, convenience and general welfare of the public;
'(b) Issue Permit--Limit or Condition. Issue the permit subject to limitations or conditions if the Board finds that such limitations or conditions on the operation of the trade, occupation or business by the applicant will comport with the peace, health, safety, convenience and general welfare of the public; or
'(c) Deny Permit. Deny the permit if the Board finds that the said operation will not comport with the peace, health, safety, convenience and general welfare of the public or that facts exist upon which a denial of such permit would be authorized pursuant to this Article.'
[93 Cal.Rptr. 897]'Sec. 103.31. (Amended by Ord. No. 137,438, Eff. 11/7/68.)
DENIAL OF PERMIT:
'(a) Ground for Denial--Prohibited by Law. The Board shall not issue a permit for a business prohibited by any local or state law, statute, rule or regulation, or prohibited in the particular location by the provisions of Chapter 1 of this Code.
'(b) Ground for Denial--Nuisance. The Board shall not issue a permit for a business which has been or is a public nuisance.
'(c) Further Grounds for Denial. The Board may deny a permit on any of the following grounds:
'1. The applicant is unfit to be trusted with the privileges granted by such permit, or has a bad moral character, intemperate habits or a bad reputation for truth, honesty or integrity;
'2. The applicant is a person under the age of 18 years;
'3. The applicant, his agent or employee, or any person connected or associated with the applicant as partner, director, officer, stockholder, associate, or manager has committed or aided or abetted in the commission of any act or act of omission which, if committed by a permittee, would be a ground for disciplinary action under this Article; or
'4. The applicant, his agent or employee, or any person connected or associated with the applicant as partner, director, officer, stockholder, associate or manager has been refused a permit or had a permit revoked or has been an officer, director, member, partner or manager of any person who has been refused a permit or had a permit revoked by the Board.'
APPENDIX C
'1. That on or about March 1, 1967, the applicant violated subparagraph E of Paragraph 4, Section 12.21 of the Los Angeles Municipal Code, in that applicant failed to provide sufficient parking facilities for its premises.
'2. That due to insufficient parking facilities for the permitted activity, the operation of the business constitutes a menace to the detriment of the neighborhood and as such, does not comport with the public health, safety and welfare.
'3. That applicant knowingly made a false statement of a material fact on his application, in that Joseph Decker indicated to a Police Commission investigator that the applicant corporation is no longer operating the premises and that the Rollerbowl Amusement, a nonpermittee, is operating the premises known as 'Hollywood Rollerbowl.'
'4. That there exists today inadequate parking facilities for the permitted activity which lack of proper facilities constitutes a menace and hardship to the public welfare.
'5. That letters of protest reflect that the skating rink and its manner of operation do not comport with the peace, health, safety, convenience, good morals, and general welfare of the public.
'6. That applicant, as well as its agents, servants, and employees, has conducted the permitted business in a manner contrary to the general welfare of the public, in that said operation has resulted in batteries against police officers, assaults with deadly weapons, drunks, robberies, thefts from motor vehicles, disturbing the peace, resulting in numerous arrests for these offenses.
'7. That the applicant, its officers and employees have conducted the permitted business in manner contrary to the general welfare, resulting in the Los Angeles Police Department having to spend numerous manhours on the part of patrols in the form of special details and special patrols of the premises, to prevent and to control major disturbances.
'8. That the applicant and the officers and employees have conducted the permitted business in a manner contrary to the general welfare of the public.
'9. That the applicant and the officers and the employees of the operation have conducted the permitted business in a manner [93 Cal.Rptr. 898]contrary to the general welfare of the public, in that there has been, and continues to be, numerous arrests occurring in and near the premises for offenses including, but not limited to, batteries against police officers, assaults with a deadly weapon, drunks, robberies, thefts from motor vehicles, and disturbing the peace.
'10. That the applicant and the officers and employees of the operation have conducted the permitted business in a manner contrary to the general welfare; and since 1964, the applicant's premises has required numerous manhours on the part of patrol in the setting up of command posts in patrolling the premises and to control major disturbances.
'and, based on each of these adverse findings, separately considered, and on the further and separate grounds that the granting of this permit will not comport with the public health, safety, welfare, and good morals of the community, this Board DENIED your 1968 and 1969 renewal applications for Skating Rink police permit at 5612 Sunset Boulevard, Los Angeles, effective midnight, October 24, 1969.'
'To establish a criminal conviction, the nolo contendere plea was the same as a guilty plea. Under it the court convicted Christensen of drunk driving. The license suspension was based on the ultimate fact of Christensen's conviction, not upon any implied admission or the manner in which that conviction came about, whether by guilty plea, finding of guilt after trial or nolo contendere plea.' (Christensen v. Orr, srpra (1969) 275 Cal.App.2d 12, 13, 79 Cal.Rptr. 656, 657.)