SR-701-005 (3)
.
"70/- 005
I-A-
FE B t Q 19!11j
Santa MonIca, CalIfornIa
.
CA'RMM:Jw6120
CIty CouncIl MeetIng 2-19--85
STAFF REPORT
TO:
Mayor and CIty Coune]l
FROM:
CIty Attorney
SUBJECT:
OrdInance Ame~dlng MunICIpal Code SectIons 6120
and 6123 RegardIng QualIfIcatlons for PolIce
PermIts
BACKGROUND
MunICIpal Code SectIon 6120 reqUIres a polIce permIt for
any number of
actIVItIes
from organ grInders to ambulance
operators.
ApplIcants for such permIts must show, among other
thIngs,
that
they are ~morally responsIble and have a good
repu ta t Ion .,
MunICIpal
SectIon
6123 prOVIdes
the ChIef of
PolIce WIth dIscretIon to revoke or suspend a polIce permIt If
"the person conductIng sal.d bUSIness IS of unfIt characater to
conduct the same."
For
the
reasons
dIscussed below,
It
IS
the CIty
Attorney's opInIon that the current regulatIons are subJect to
constItutIonal
attack
AccordIngly,
thIS
staff Report
transmIts
to the CIty CounCIl
an ordInance for fIrst readIng
to
brIng
the
MunICIpal
Code
Into
conform1ty
W.Lth
const1tutIonal rpquIrements.
1
i-A
FE8 1 9 t9I5
.
.
I ANALYSIS
LIcensIng regulatIons wnLch are related to the safety,
health and welfare of the general pUblIC have been found to be
a valId eX?rCISe of the polIce power SInce as early as 1889.
Qent _y-__Wes~ VIrgInIa, 129 U.S 114
method of llcensIng requIrements must
(1889).
The scope and
follow the dIctates of
the due
process clause of the Fourtpenth Amendment.
As the
Supreme Court noted In Schware v Boat-d of Bar ExamIners, 353
U.S. 232 (1957):
A state cannot exclude a person
from the practIce of
law or from any
other occupatIon
In a manner or for
reasons
that
coptravene
the Due
Process or Equal ProtectIon Clause of
the
Fourteenth Amendment
Id.
at
238-39.
The Court went on to state:
We need not enter
Into a dISCUSSIon
whether
the practIce at
law 15
a
"rIqht" or "prIvIlege"
Regal-dless of
how the State's grant of permIsSIon to
engage In thIS occupatlon 15
characterIzed, It IS suffIcIent to say
that a person cannot be prevented from
practICIng except for valld reasons.
CertaInly the practIce of law 15 not a
2
.
.
of the StaLe's grace. LQ.
at
matter
239 n.5.
State courts have also applIed the due process clause to
screen occupatIonal
lIcensIng reqUIrements
by utI11z1ng the
ratIonal basls test.
In Doyle v Board of Barber ExamIners,
21g Gal. A.pp. 2d 501l, 33 Cal.
Rptr. 349 (1963), the Court of
Appefil
concluded that a statute may be InvalIdated "only If
these
theorIes are deVOId of any ratIonal connectIon With the
publiC
lnterest ObJectIves
as
the
legislature may have
conceIved them" rd.
at 519, 33 Cal. Rptr. at 357-58.
The due process clause mandates faIrness In the language
of
lIcenSIng statutes
as well as the manner 1n whIch It 15
enforced.
As one commentator has noted:
EssentIally, there would seem to
be three
reqUIrements
that
the due
process
clause places on occupational
lIcenSIng
schemes.
The
lIcenSIng
schemes
must
be
drawn
up With
speclflclty, ratIonalIty and faIrness.
SpeCIfICIty means that
th€" standards
and gUIdelInes that a licenSIng board
uses In grantIng, denYIng, suspendlng,
reneWIng or
reVOkIng a
lIcense be
Intelligible.
RatIonality means that
the
standards
bear
a
reasonable
relation
to eftective practice of the
regulated
occupation.
Fairness
3
pertains
to
the
.
make-up of
the
.
licensing board,
the procedures
It
follows,
and the necessity and timing
of JudIcial reVIew.
Cathcart & Graff,
Occupational
LIcensIng:
Fa C tor I...ILg:~
Out,
9 Pac
L.a.
147, lS2-53 (1978)
(footnotes omitted).
When reviewing the
Hmorally responsIble"
and "unfit
character"
requIrements
of Municipal Code SectIons 6120 and
6123,
It must be ascertained whether
such language IS clear
and
IntellIgIble
and
If
It
IS
rationally related to the
practIce of the occupation In questIon.
Courts
that have construed
local licenSIng ordInances
contaIning language SImIlar to Santa MonIca's have generally
found them to Violate due process protections.
Character
requIrements such as whether an applIcant IS a "reasonable and
relIable person" have been held InvalId.
CarolIna ActIon v.
PIckard,
465
F. SuPp. 576,
S82 (W.D.N C. 1979).
SImIlarly,
the
"good
character"
ot
a
licensee was
found to be
ImpermIssIbly vague.
Perrl~e v. ~unIcIpal Court) S Cal. 3d
656,
661,
488 P 2d 648, 653, 97 Cal. Rptr. 320, 323 (1971);
HIllman v- BrItton, 111 Cal
App. 3d 810, 824, 166 Cal. Rptr.
852,860 (1980).
The
rule
IS now well settled that d~nlal of a lIcense
applicatIon or
revocatIon of an eXistIng
lIcense cannot be
upheld ba~ed solely upon a fIndIng the l1cen5ee IS not morally
responSIble.
4
.
.
A
person may be barred from practlclng a
lawful
profess~on only tor reasons relatIng to hIS or her fItness or
competence to practIce that professIon
Newland v. Board of
Governors,
19 Cal
3d 705) 711, S66 P.2d 254, 260, 139 Cal.
Rptr
620
(19771.
The exerCIse of the power must bear a
dIrect
and ratIonal relatIonshIp
to the IndIVIdual's fItness
to engage In the partIcular vocatIon Involved.
( See, e. 9 ,
Ha...ll-Ln.~Jl v.
CommIttee of B~r ExamIners,
65 Cal. )d 447, 421
P.2d
76, 55 Cal. Rptr. 228 (1966); MorrIson V. State Board of
EducatIon)
1 Cal.
3d 214, 461 P.2d 375, 82 Cal. Rptr.
175
(1969);
MunICIpal Court, 5
Cal
3d 656, 488 P.2d
PerrIne v.
648} 97 Cal. Rptr. 320 (1971)
Based upon the foregOIng, It 15 the opInIon of the CIty
Attorney that MunICIpal Code SectIons
6120 and 6121) as they
are curlently wrItten,
would not WIthstand constltut~onal
scrutIny and accordIngly reqUIre reVISIon.
II. PROPOSED REVISION OF SECTION 61~O.
The
accompanYIng
ordInance reV15es MunICIpal Code
SectIon 6120 to address the concerns outlIned above
The most
fundamental
change
] S
found
In SectIons
(b)(2) and lb)(4)
WhiCh replaces
the "morally respons1ble"
prOV1S1on WIth one
reqUIrIng the applIcant not
to have been
convlcted ot any
crIme wlthln fIve years prIor
to the applIcatIon WhICh crIme
or
act
1S
substantIally related to the qualIfIcatIons}
functIons or dutIes of
the SUbJect
bUSIness.
ThIS more
obJectIve
standard has been found to be cons1stent WIth due
5
.
.
Brandt v. Fox, 90 Cal. App. 3d 737,
process
requIrements.
'748,
153 Cal. Rptr.
683, 689~90 (19/9)
The term convIctIon
Includes
a convIctIon followIng a plea of nolo contendere.
SectIon (e) provides the ChIef of PolIce wIth the authorIty to
develop crIterIa
to
a1d
In determInIng whether
a crIme IS
substantIally related
to the qualIfIcatIons,
functIons or
dutIes of the applIcant's bUSIness.
III. PROPOSED REVISION OF SECTION 0123.
The
accompanYIng
ordInance
reV1ses Munlclapl
Code
SectIon 6123 regardIng lIcense revocatIons by SUbstItutIng "or
SInce
Issuance of the permIt the permIttee has been convIcted
of
a
crIme
that
1'"
substantIalty
related
to the
qual1fIcatlons) functIons or dutIes of the perrrlltted actIvIty"
for
the clause
currently used "If the
lIcensee 15 of untlt
cha t- ae ter to conduct the same."
RECOMMl::NDl\'frON
It
15
respectfully recommended that
the accompanYIng
ordInance be Introduced for fIrst readIng.
PREPARED BY,
Robert M. Myers, CIty Attorney
Jeffrey W. Holtzman, Deputy CIty Attorney
6
.
.
CA ~ RMM ; J wb 1 20
CIty CouncIl MeetIng 2-19-85
Santa MonIca, CalIfornIa
ORDINANCE NUMB~R
(CIty CouncIl SerIes)
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF SANTA MONICA AMENDING SECTIONS
6120 AND 6123 OF THE SANTA MONICA
MUNICIPAL CODE REGARDING QUALIFICATIONS
FOR POLICE PERMITS
THE CITY COUNCIL OF T~E CITY OF SANTA MONICA DOES ORDAIN
AS FOLLOWS:
SECTION 1
SectIon 6120 of the Santa MonIca MunICIpal
Code IS amended to read as tollows:
SECTION 6120.
PermIts ReqUIred.
(a) Any
person
requIred to
obtaIn a lIcense to engage In any
bUSIness, callIng or purSUIt mentIoned
In SectIons 6204A, 6204C, 6204D,
6204E, 6204F, 6204H) 6204J, 62D4K,
6204M, 62D4N, 6204P, 6204Q, 6204R,
6204T, 6204U, 6204W, 6207, 6208,
620BA, 6210} 6218, 6220, 6221, 6222,
6224, 6231, 6233, 6233A, 62338, 6233C,
6233D,
6239,
ti740(6),
6240[8),
6240(20), 6240(23), 6241 or 6244 of
thIS Cude shall fIrst obtaIn a permIt
to conduct such bUSIness from the
1
.
.
Clnef
of PolIce.
In
order to obtaIn
such
a permlt,
a wrItten applIcatIon
shall
be
flIed WIth
saId ChIef of
PolIce,
whlch
applIcatIon
Slldll
contaIn a statement of IntentIon as to
the
locatIon
and
extent
of
the
premIses,
If any, to be occupIed, and
In
addItIon
such
applIcatIon
for a
permIt
to
engage
In
any of
the
bUSlneSbes
rE'qulr1ng
a
permIt shall
conta1n
the
name
of
any person
f1nancIally 1ntere~ted 1n the bUSIness
In any manner
(b)
The
Chlef
of
Pollce,
WIthIn
a
reasonable
tIme
after
submISS10n
of such applIcatIon, shall
conduct
an
InvestIgat1on,
10
such
manner as he or she deems approprIate,
In order
to
ascertain whether such
permIt
should be Issued as requested
The
Chief shall 1ssue
such pernu t as
requested, unless, as a result of saId
Investlgatlon,
he
or she
finds by a
preponderance
of the eVIdence, any of
the follOWIng:
(1) The conductIng of the
bU~lness or profeSSIon In the locatIon
2
.
.
stated
In the applIcatIon WIll be In
vIolatIon of any laws or ordInances.
(2) That any applIcant,
IncludIng
but
not
lImIted
to
the
applIcant's employees dIrectly engaged
In
the subJect
actIvIty} has) WIthIn
fIve
( 5 )
years
of the date of
applIcatIon,
been conVIcted of any
crIme WhIch IS
substantIally related
to
the qualIfIcatIons,
functIons, or
dutIE'S of the bUSIness or professIon
for WhICh applIcatIon IS made A
conVIctIon WIthIn the meanIng of thIS
actIon means
a plea or verdIt of
gUIlty or a conVIctIon follOWIng a
plea of nolo contendere.
(3) That any such person
has} WIthIn fIve (5) years of the date
ot
applIcatIon)
commItted an act
WhICh,
If done by a
lIcensee or
permIttee under thIS Chapter} would be
grounds
for suspensIon or revocatIon
of a lIcense or permIt
(4) That any such person
has, WIthIn fIve (51 years of the date
of
applIcatIon,
commItted an act
InvolVIng dIshonesty, fraud, or dece1t
3
e
.
WI th
the
Intent
to
substantIally
benefIt
III m s elf
or
another
or
substantIally to InJure another, or an
act of vIolence, WhlCh act or acts are
substantIally
related
to
the
qualIfIcatIons,
tunctIons,
or dutIes
of the bUSIness or profeSSIon for
WhICh applIcatIon IS made.
( 5 )
That
the applIcant
has knOWIngly and WIth the Intent to
deceIve mdde a false,
mISleadIng or
fraudulent
statement of fact to the
CIty In the applIcatIon process.
l c)
The ChIef of
PolIce may
develop crIterIa
to aId hIm or her)
when
conslderlng
the
denlal,
suspenSIon or revocatIon of a lIcense
or
permIt,
In determInIng whether a
crIme or act IS substantIally related
to
the qualIfIcatIons,
functIons, or
dutIes
of the bUSIness or profeSSIon
for WhICh applIcaLlon
IS made.
Such
crIterIa,
If developed, shall contaIn
prOVISIons
for
9 t- ant 1 n 9
the
applIcatIon of any person conVIcted of
a
felony} prOVIded
the applIcant has
obtalnl?d
a
certltlcate
of
4
.
.
rehabIlItatIon
under
Penal
Code
Sectl.ons
4852.01
et g.,g.,
or
If
convIcted of a mIsdemeanor, that the
applIcant
establIshes
to
the
satIsfactIon of the ChIef he or she IS
rehabllItated
(d)
The
ChIef
shall
be
authorIzed to condItIon
the Issuance
of
any permIt
to
Insure complIance
WIth thIS Chapter and other applIcable
laws.
(e) When
the ChIef
fInds from
the InvestIgatIon
that
any of
the
facts
sp~clfled above are present, he
or
she
shall declIne to
Issue the
requested permIt wIthln
30 calendar
days
flom the date of
the permIt
applIcatIon.
Any deCISIon of
the
ChIef WIth respect to
the denIal or
condItIonal
approval
ot
any such
permIt
shall be subJect
to an appeal
by the aggrIeved applIcant, prOVIded
that
the appeal IS
taken wIthl.n the
tIme and
In the manner set forth In
SectIons 6124 and 6126 of thIS Code.
(f)
Upon
approval
of
an
applIcatIon by the ChIef of PolIce, It
L-
:)
.
shall
.
then
be
submItted by the
app1:Icant
w~th
the amount
of
the
lIcense fee requIred hereunder to the
DIrector
of
FInance who
then shall
Issue the lIcense provIded for In thlS
Code.
(g)
PermIts
Issued
hereunder
shall be effectIve for the Sdme perIod
as the lIcense Issued pursuant to such
permIt.
Upon the eXpIratlon of the
permIt,
an applIcatIon tor
renewal
thereof
'3hall be
flIed
In a
lIke
manner
as
an
applIcatIon
for
an
orIglnal
permIt,
dnd such
renewal
permIt
shall be granted only when the
reqUIrements
for
the Issuance of an
orlglnal
permIt a~e met.
Perrolts
Issued
hereunder
shall
not
be
assIgnable.
SECTION 2.
SectIon 6123 of
the Santa MonIca MunICIpal
Code 15 amended to read as follows.
SECTION
6123.
RevocatIon of
.E~ml t.
( a )
Any permIt
Issued by the
ChIef of PolIce pursuant to thIS Code
may be suspended or revoked by the
b
.
Chlet
of Pol1ce
In the
.
followlng
sltuatlons;
( 1 )
Wnpn
1t shall appear
that
the busIness of the person to
whom such perm1t was
15sued has been
conducted 1n a d1sorderly manner or 10
v1olat1on of
any appl1cable
law or
ord1nance
of
tlus
Clty
or
any
prOV1S10ns of thIS Code.
( .2 )
Wben
subsequent
to
1ssuance of the perm1t, the permittee
has bpen convIcted of a crlme that 15
sub'itantlally
related
to the
qualltlcatlons)
functlons,
or dutles
of the permItted actlvlty
( 3 )
When
the purpose fOf
Wh1Ch the permlt has been lssued, lS
beIng abused to the detrlment of the
publlC,
or
when the perm1t lS belng
used for a purpose dlfferent from that
for Wh1Ch lt was Issued.
(b) If the perrn1t of any person
shall be revoked, another permIt shall
not be granted to such person wIthl"
twelve months after the date of such
revocatIon.
If
the permlt of any
per50n has been suspended,
another
7
.
permIt
shall
.
not be granted to such
person dur~ng the prescrIbed perIod of
suspenSIon.
( c)
The
effect
of
the
suspenSIon or revocatIon of any permIt
by the ChJef of PolIce shall be to
suspend or revoke
any llcense Issued
by the CIty to carryon such bUSIness
for
the duratIon of
suspenSIon or
revocatIon.
SECTION 3
Any prOVISIon of the Santa MonIca MunICIpal
Code or appendIces thereto InconSIstent WIth the prOViSions of
thIS
ordlnance, to the extent ot such InconSIstencIes and no
further,
are hereby repealed or modIfIed to that extent
necessary to affect the prOVISIons of thIS ordInance.
SECTION
4.
If
clny sectIon,
subsectIon,
sentence,
clause,
or phlase of thIS ordInance 15 for any reason held to
be InvalId or unconstItutIonal by a deCISIon of any court of
any competent JurISdIctIon, such deCISIon shall not affect the
valIdIty of the remaInlng portIons of the ordInance
The CIty
Counc1l
hereby declares
that
It would have passed
thIS
ordlnance and each and ev~ry sectlon, subsectIon, sentence,
clause or phrase not declared Invalld or unconstltutlonal
wlthout
regard to whether any port1on of the ord1nance w0uld
be subsequently declared 1nva11d or unconstItutIonal
8
. .
SECTION 5 The Mayor shall sIgn and the Cl ty Clerk
shall attest to the passage of thIS ordInance. Thp CIty Clerk
shall cause the same to be publIshed once In the offIcIal
newspaper wIthIn 15 days after
Its adoptIon
ThF ordInance
shall become etfectIve after 30 days from Its adoptIon
APPROVED AS TO FORM.
,.. ~ ~ .L. L. \_
I~ ""'-- ~
{j~
ROBEHT M MYERS
CIty Attorney
9