THE PEOPLE, Plaintiff and Respondent, v. WHEATLY GLAZE, Defendant and Appellant, 27 Cal. 3d 841

Opinion BIRD, C. J. Under the California Constitution, may a city pass an ordinance which requires only picture arcades to close between the hours of 2 a.m. and 9 a.m. in order to prevent the possibility of masturbation by any of their customers? I Appellant Glaze was charged in March 1978 with a violation of Los Angeles Municipal Code

section 103.101, subdivision (g), which provides that “[e]ach picture arcade must remain closed between the hours of 2:00 A.M. and 9:00 A.M., and all customers, patrons, and visitors must be excluded therefrom between those hours. Where only one coin operated still or motion picture machine, projector or similar contrivance is maintained and such device is not the primary business, then, if that device remains inoperative between the hours of 2:00 A.M. and 9:00 A.M., customers, patrons and visitors need not be excluded from the premises.” Appellant demurred to the complaint on the grounds that

section 103.101, subdivision (

g) is unconstitutional on its face because (1) it violates freedom of expression as guaranteed by the First Amendment of the United States Constitution and by

article I,

section 2 of the California Constitution; (2) it discriminates against picture arcade operators in violation of state and federal constitutional guarantees of equal protection (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7); and (3) it purports to regulate in an area preempted by the state Legislature in violation of

article XI,

section 7 of the California Constitution. The trial court overruled appellant’s demurrer and held the ordinance was not unconstitutional on its face. The matter proceeded to trial and appellant was found guilty and fined $100. This appeal followed. II This court must determine the facial validity of this ordinance. The law is clear that a municipality has the general power to regulate commercial businesses where the regulation is reasonable and nondiscriminatory. (See Burton v. Municipal Court (1968) 68 Cal.2d 684, 689 [68 Cal.Rptr. 721, 441 P.2d 281]; Justesen’s F.S., Inc., v.

City of Tulare (1938) 12 Cal.2d 324, 328-329 [84 P.2d 140].) For example, it is permissible under a municipality’s police powers to reasonably restrict the hours of operation of an economic enterprise. (E.g., In re Sumida (1918) 177 Cal. 388 [170 P. 823]; Brix v. City of San Rafael (1979) 92 Cal.App.3d 47 [154 Cal.Rptr. 647].) The reasonableness of such a restrictive ordinance “is dependent upon the nature of the business being regulated and the degree of threat that the operation of such business presents to the tranquility, good order, and well-being of the community at large.

So long as a ‘patent relationship between the regulations and the protection of the public health, safety, morals, or general welfare’ exists, the regulations will be considered reasonable.” (7978 Corporation v. Pitchess (1974) 41 Cal.App.3d 42, 47 [115 Cal. Rptr. 746]; accord Brix v. City of San Rafael, supra, 92 Cal.App.3d at p. 51.) A different test is used, however, if the ordinance, not uniformly applicable to all commercial enterprises, involves restrictions on activities protected by the First Amendment. (See Sunset Amusement Co. v. Board of Police Commissioners (1972) 7 Cal.3d 64, 72-73 [101 Cal.

Rptr. 768, 496 P.2d 840]; Saunders v. City of Los Angeles (1969) 273 Cal.App.2d 407, 411-412 [78 CaLRptr. 236].) A higher standard of review is required because of the “preferred position” of freedom of speech in our system of ordered liberty. (Kovacs v. Cooper (1949) 336 U.S. 77, 88 [93 L.Ed. 513, 523, 69 S.Ct. 448, 10 A.L.R.2d 608]; see also Burton v. Municipal Court, supra, 68 Cal.2d at pp. 690-691.) Under this test, the government must bear the burden of showing that the regulation is narrowly and explicitly drawn and necessary to further a legitimate government interest. (Kash Enterprises, Inc. v.

City of Los Angeles (1977) 19 Cal.3d 294, 303 [138 Cal.Rptr. 53, 562 P.2d 1302]; Welton v. City of Los Angeles (1976) 18 Cal.3d 497, 504 [134 Cal. Rptr. 668, 556 P.2d 1119]; Westfall v. Board of Com’rs of Clayton Cty. (N.D.Ga. 1979) 477 F.Supp. 862, 870, 871.) The operation of a picture arcade has been held to be an activity which is protected by the First Amendment. (EWAP, Inc. v. City of Los Angeles, supra, 97 Cal.App.3d at p. 184; People v. Perrine, supra, 47 Cal.App.3d at p. 257.) The fact that a picture arcade is a profit-oriented business (see Welton v.

City of Los Angeles, supra, 18 Cal. 3d at pp. 503-504; Bigelow v. Virginia (1975) 421 U.S. 809, 818 [44 L.Ed.2d 600, 609, 95 S.Ct. 2222]), or that it may exhibit pictures which are offensive or lacking in social worth is not relevant. (See Welton v. City of Los Angeles, supra, 18 Cal.3d at p. 504; Cohen v. California (1971) 403 U.S. 15, 24-26 [29 L.Ed.2d 284, 293-294, 91 S.Ct. 1780]; N.A.A.C.P. v. Button (1963) 371 U.S. 415, 444-445 [9 L.Ed.2d 405, 424-425, 83 S.Ct. 328].) As the Supreme Court stated in Cohen v.

California, supra, 403 U.S. at page 25 [29 L.Ed.2d at page 294], “We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, [the] fundamental societal values [of the First Amendment] are truly implicated. That is why ‘[wholly] neutral [statements]. . . come under the protection of free speech as fully as do Keats’ poems or Donne’s sermons,’. . . . ” The closing hour requirement in the present case prohibits the showing of pictures between 2 a.m. and 9 a.m.

Indeed, customers and other visitors cannot be present during those hours even if the machines are not operated. Therefore, this case involves more than the incidental infringement of freedom of expression. (See Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748, 756 [48 L.Ed.2d 346, 354, 96 S.Ct. 1817]; Martin v. Struthers (1943) 319 U.S. 141, 143 [87 L.Ed. 1313, 1316, 63 S.Ct. 862]; Westfall v.

Board of Com’rs of Clayton Cty., supra, All F.Supp. at p. 871.) It follows that the ordinance is constitutional only if the city can prove it was narrowly drawn and necessary to a legitimate governmental interest. (Kash Enterprises, Inc. v. City of Los Angeles, supra, 19 Cal.3d at p. 303; Welton v. City of Los Angeles, supra, 18 Cal. 3d at p. 504; see also United States v. O’Brien (1968) 391 U.S. 367, 377 [20 L.Ed.2d 672, 680, 88 S.Ct. 1673]; EWAP, Inc. v.

City of Los Angeles, supra, 97 Cal.App.3d at p. 189.) The city contends that the closing of picture arcades between 2 a.m. and 9 a.m. is a constitutional exercise of its police powers because the closing helps prevent masturbation during those hours when law enforcement problems are greatest. While this governmental purpose may be laudable, the means selected for its accomplishment fail to meet the strict standards required by the Constitution. Rather than dealing directly with the objectionable conduct, the ordinance curtails the protected interests of persons engaged in First Amendment activity. (Cf.

Schneider v. State (1939) 308 U.S. 147, 162 [84 L.Ed. 155, 165, 60 S.Ct. 146]; California v. LaRue (1972) 409 U.S. 109, 131-133 [34 L.Ed.2d 342, 359-360, 93 S.Ct. 390] (dis. opn. of Marshall, J.).) Arguably, crime in the streets could be reduced by prohibiting all persons from going out in public. However, when fundamental liberties are at stake, the test in a free society is whether there are “less drastic means” available to accomplish the government’s purpose. (Wollam v. City of Palm Springs (1963) 59 Cal.2d 276, 287 [29 Cal.Rptr. 1, 379 P.2d 481], quoting Shelton v.

Tucker (1960) 364 U.S. 479, 488 [5 L.Ed.2d 231, 237, 81 S.Ct. 247]; see also Welton v. City of Los Angeles, supra, 18 Cal. 3d at pp. 507-508; Police Department of Chicago v. Mosley (1972) 408 U.S. 92, 101, fn. 8 [33 L.Ed.2d 212, 220, 92 S.Ct. 2286].) The government may deal directly with masturbation in public picture arcades by persons who know or should know of the presence of others who may be offended by such conduct by arresting and prosecuting them. (Pryor v. Municipal Court (1979) 25 Cal.3d 238 [158 Cal.

Rptr. 330, 599 P.2d 636].) Respondent concedes that this alternative would be less restrictive of First Amendment rights, but argues that the closing-hours requirement is necessary because of the limited number of police available during the early morning hours. A similar claim was made in Skaggs v. City of Oakland (1936) 6 Cal.2d 222 [57 P.2d 478]. The government tried to justify an ordinance restricting deliveries of bakery goods to those times when food and sanitary inspectors might reasonably be expected to be on duty.

The court rejected that argument and observed that “it is not a valid exercise of police power to restrict unnecessarily a lawful occupation conducted in a reasonable manner, merely that it may accord with the convenience of inspectors.” (Id., at p. 224; accord Justesen’s F.S., Inc., v. City of Tulare, supra, 12 Cal.2d at p. 332; see also Schneider v. State, supra, 308 U.S. at p. 164 [84 L.Ed. at p. 166]; Stanley v. Georgia (1969) 394 U.S. 557, 567-568 [22 L.Ed.2d 542, 550-551, 89 S.Ct. 1243].) The same reasoning applies with even greater force where First Amendment rights are involved.

The record before this court fails to show either that criminal activity is particularly acute at picture arcades or that it is prevalent between the hours of 2 a.m. and 9 a.m. (Cf. Brix v. City of San Rafael, supra, 92 Cal.App.3d at p. 51, fn. 2.) If merely stating a laudable purpose were sufficient to justify a restriction on free expression, the government could justify closing picture arcades or other establishments at any hour of the day.

Moreover, the police commissioner’s report submitted by respondent states that portions of the ordinance that do not directly curtail First Amendment interests should by themselves reduce masturbation in picture arcades. In addition, the government may require that a licensed manager be present to supervise the premises. (People v. Perrine, supra, 47 Cal.App.3d 252.) In short, the government has not shown that the closing-hours requirement is necessary or that it is the least restrictive means available to curb anticipated masturbation. Appellant also contends that the closing-hours requirement is overbroad.

An ordinance must be narrowly directed at the evil being attacked if First Amendment activity is involved. For example, an ordinance prohibiting all unauthorized use of sound amplifiers is invalid (Saia v. New York (1948) 334 U.S. 558, 562 [92 L.Ed. 1574, 1578, 68 S.Ct. 1148]), but a limitation on sound equipment emitting loud and raucous noises has been upheld. (Kovacs v. Cooper, supra, 336 U.S. 77.) Similarly, a prohibition on all house-to-house solicitation is over-broad (Martin v.

Struthers, supra, 319 U.S. 141), but a statute was sustained which prohibited mailed solicitations to occupants who had advised that they found certain material offensive. (Rowan v. Post Office Dept. (1970) 397 U.S. 728 [25 L.Ed.2d 736, 90 S.Ct. 1484].) In the present case, the government assumes that because masturbation has occurred at some picture arcades in the past, it is necessary to restrict the hours of all such businesses in the future. The ordinance fails to regulate only those arcades that have been or are likely to be havens for masturbation.

A bookstore with two motion picture machines, an arcade showing only old Mickey Mouse cartoons and a peep show with fifty booths are all subject to the closing requirement. Under subdivision (g), no distinction is made for those picture arcades which provide a manager to supervise and patrol the premises or have well lighted booths open to public view. Such an undifferentiated approach is not sufficient to limit the right to free expression. (See Tinker v. Des Moines School Dist. (1969) 393 U.S. 503, 508 [21 L.Ed.2d 731, 738, 89 S.Ct. 733]; Police Department of Chicago v.

Mosley, supra, 408 U.S. at p. 101 [33 L.Ed.2d at p. 220]; Cohen v. California, supra, 403 U.S. at p. 23 [29 L.Ed.2d at p. 292]; SWAP, Inc. v. City of Los Angeles, supra, 97 Cal.App.3d at p. 187; People ex rel. Busch v. Projection Room Theater (1976) 17 Cal.3d 42, 59 [130 Cal.Rptr. 328, 550 P.2d 600].) In First Amendment jurisprudence, “[precision of regulation must be the touchstone. ...” (N.A.A.C.P. v. Button, supra, 371 U.S. at p. 438 [9 L.Ed.2d at p. 421]; Interstate Circuit v. Dallas (1968) 390 U.S. 676, 682 [20 L.Ed.2d 225, 230, 88 S.Ct. 1298]; Burton v.

Municipal Court, supra, 68 Cal.2d at p. 691.) Since the Los Angeles city ordinance restricts all activity at all picture arcades, it fails this requirement. (Cf. Erznoznik v. City of Jacksonville, supra, 422 U.S. at p. 213 [45 L.Ed.2d at p. 133]; Thornhill v. Alabama (1940) 310 U.S. 88, 99 [84 L.Ed. 1093, 1100, 60 S.Ct. 736]; Talley v. California (1960) 362 U.S. 60, 64 [4 L.Ed.2d 559, 562, 80 S.Ct. 536]; Carl v.

City of Los Angeles (1976) 61 Cal.App.3d 265, 273 [132 Cal.Rptr. 365].) III Even if the First Amendment activity which the government seeks to regulate is of little value, the regulation must be necessary and it must focus narrowly on the abuse sought to be remedied. Subdivision (

g) does not meet this crucial standard. The judgment is reversed. Tobriner, J., Mosk, J., and Newman, J., concurred. All code references hereinafter are to the Los Angeles Municipal Code unless otherwise specified.

Section 103.101 deals primarily with the issuance, revocation and suspension of police commission permits to operate arcades. Violation of its provisions is made a misdemeanor by

section 11.00, subdivision (m).

Article I,

section 2 of the California Constitution provides: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” This

section is more protective of speech than the First Amendment of the United States Constitution. (Wilson v. Superior Court (1975) 13 Cal.3d 652, 658 [119 CabRptr. 468, 532 P.2d 116].) This court therefore only addresses the question whether the challenged subdivision is consistent with the California Constitution. Nevertheless, in keeping with convention, the free speech rights at stake will be referred to as First Amendment rights. Appellant attacks only the facial validity of

section 103.101, subdivision (g). Therefore, no transcript of the actual trial was made a part of the record before this court. EWAP, Inc. v. City of Los Angeles (1979) 97 Cal.App.3d 179 [158 Cal.Rptr. 579], involved two other subdivisions of

section 103.101. In that case, the court held that subdivision (c)(4) was an invalid prior restraint on freedom of expression in that it denied a permit to any applicant who had knowingly allowed lewd conduct at any picture arcade within the preceding two years. The court upheld subdivision (i), which required the interior of picture arcades to be visible upon entrance and prohibited enclosed or concealed booths. Where the ordinance singles out for regulation a First Amendment protected activity, the ordinance must also be content-neutral. (E.g., Erznoznik v.

City of Jacksonville (1975) 422 U.S. 205 [45 L.Ed.2d 125, 95 S.Ct. 2268].) The appellant has not challenged the present ordinance as content-based. Therefore, this court does not address the issue of the ordinance’s content neutrality. A higher standard of review is not required where access to protected speech is not restricted, even though First Amendment activity is implicated. (E.g., Young v. Ameri can Mini Theatres (1976) 427 U.S. 50, 62, 71, fn. 35, 73 (cone. opn. of Powell, J.), 78 (cone. opn. of Powell, J.) [49 L.Ed.2d 310, 321, 327, 330, 96 S.Ct. 2440]; Pittsburgh Press Co. v. Human Rel.

Comm'n (1973) 413 U.S. 376, 383 [37 L.Ed.2d 669, 675, 93 S.Ct. 2553]; Walnut Properties, Inc. v. City Council (1980) 100 Cal.App.3d 1018, 1021, 1023 [161 Cal.Rptr. 411]; People v. Perrine (1975) 47 Cal.App.3d 252, 260 [120 Cal.Rptr. 640]; Antonello v. City of San Diego (1971) 16 Cal.App.3d 161, 166 [93 Cal.Rptr. 820].) For example, the ordinance requires the interior of picture arcades to be visible upon entrance and prohibits enclosed or concealed booths. (§ 103.101, subd. (i).) The government may also prohibit an owner from knowingly allowing lewd conduct to occur. (See Pen.

Code, § 11225.) A content-based ordinance limited to sexually explicit films might not be overbroad. However, that type of ordinance would raise other First Amendment issues. (See Stone, Restrictions of Speech Because of its Content: The Peculiar Case of Subject-Matter Restrictions (1978) 46 U.Chi.L.Rev. 81, 111-112.) Because appellant’s freedom of expression claim has merit, his equal protection and preemption arguments are not reached.