San Francisco Street Artists Guild v. Scott

Opinion

The question in this case is whether an ordinance of the City and County of San Francisco, which forbids unlicensed peddling on the sidewalks, is constitutional on its face or in its application. Plaintiffs are individuals who declare in their separate affidavits in support of their complaint for injunction that they are artists, and a guild of craftsmen and musicians of which they are members. The lawsuit does not affect the musicians, however. They perform their art on the sidewalks without the requirement of a permit, but without monetary recompense save that donated at the scene.

The articles which the several individual plaintiffs wish to sell include paintings and sculptural representations of tiny plants, dolls which are representations or caricatures of public figures, paintings and sculptures, crocheted clothing, macrames made of beads, jewels and feathers, and similar objects vaguely described in the affidavits. It is alleged in the complaint, which is for declaratory relief and for injunction, that the individual plaintiffs wish to display and sell their art on the sidewalks where their presence would not interfere with pedestrian or vehicular traffic, but that peddlers’ permits have been denied to them despite repeated applications and appeals to the board of permit appeals, the highest source of administrative remedy. It is alleged that appellants are subject to arrest and pretrial incarceration should they proceed, without permit, to display and to sell objects which they have created, and that arrests have

The mercantile element of the projected enterprises (although it would be unimportant in cases really involving free press or free speech) is significant here. In Breard v. Alexandria, 341 U.S. 622 , 641 [ 95 L.Ed. 1233 , 1247, 71 S.Ct. 920 , 35 A.L.R.2d 335 ], it is said of a contention that an ordinance was an abridgment of freedom of speech and the press: “Only the press or oral advocates of ideas could urge this point. It was not open to the solicitors for gadgets or brushes.” Even in the dissent by Justices Black and Douglas, it is said of the ordinance (which forbade door-to-door soliciting of subscribers for magazines and periodicals without prior consent of owners or occupants) that the ordinance could constitutionally be applied to a “merchant” who goes from door to door “selling pots” (p. 650 [95 L.Ed. at p. 1252]). Although we do not mean to equate appellants’ creations with gadgets, brushes or pots, we do not find them to be so likely to communicate expression of the type of ideas held sacred by the First Amendment as to vest them with such broad rights as are held by pamphleteers or purveyors of newspapers. And although the appellants present before us no doubt are sincerely devoted to their arts, the widening of

Appellants have cited no authority for the enlargement of freedom of expression, accompanied by commercial advantage, for which they contend.

A

ppellants say that section 869 of the San Francisco Police Code, which reads: “It shall be unlawful for any person to peddle goods, wares of merchandise, or any article, material or substance, of whatsoever kind on public streets, unless duly licensed so to do,” is unconstitutional on its face and as applied. The challenge to constitutionality on the face of the ordinance is contained in a bare statement in appellants’ brief and is unsupported by argument or citation of authorities, except the decisions of Sail’er Inn, Inc. v. Kirby, 5 Cal.3d 1 [ 95 Cal.Rptr. 329 , 485 P.2d 529 , 46 A.L.R.3d 351 ], in which Business and Professions Code section 25656, which prohibits women from tending bar except when they are licensees, wives of licensees, or singly or with their husbands sole shareholders of a corporation holding the license, was held unconstitutional on its face as arbitrarily foreclosing persons’ rights to pursue a lawful occupation; and Purdy & Fitzpatrick v. State of California, 71 Cal.2d 566 [ 79 Cal.Rptr. 77 , 456 P.2d 645 , 38 A.L.R.3d 1194 ], in which Labor Code section 1850, which limited the employment of aliens on public works, was held void on its face as arbitrarily foreclosing the right of employment and denial of the equal protection laws. Section 869 does not on its face purport to enact an outright prohibition against any occupation, but does forbid certain kinds of selling without a license.

Now for the application of the statute and of the underlying licensing provisions, which are: (1) section 3.537 of the Charter of the City and County of San Francisco, which reads: “The chief of police may refuse to issue any permit that is subject to police department investigation and issuance, if it shall appear that the character of the business or the applicant requesting such permit does not warrant the issuance thereof, or he may revoke any such permit as soon as it shall appear that the business or calling of the person to whom it was granted is conducted in a disorderly or improper manner, or that the place in which the business is conducted or maintained is not a proper or suitable place in which to conduct or

Appellants state in their brief that permits simply are not granted to street artisans, and that therefore section 869 has been applied effectively to extinguish a lawful occupation. The findings of fact made by the trial judge do not support this contention. The judge found that of the ten individual plaintiffs two had been selling their creations on the public streets without peddling permits, as had other members of the San Francisco Street Artists Guild; that six of the witnesses, who were members of the guild, had not made formal applications for permits because they were not being issued for the areas in which they desired to sell their goods, that is, Victoria Park, Ghirardelli Square, The Cannery, Fisherman’s Wharf and Union Square; that certain of the plaintiffs and witnesses were informed by police officers that permits in those particular areas were not being granted; that not one of the aforementioned plaintiffs or witnesses had either completed formal applications or initiated administrative appellate procedure which was available; that two persons, Key and Conant (neither was an individual plaintiff but both were members of the guild), had made formal application for peddlers’ permits, and upon denial had appealed unsuccessfully to the board of permit appeals. There is nothing in the record to show what the evidence was relating to Mr. Conant. As to the application of Mr. Key, whose case was reviewed by the board of permit appeals and about whose application we have some information, there is in the record his affidavit that he applied for a permit to sell art work (beads) in front of Victoria Park and in front of Union Square, and that the permits were denied by the police. The affidavit evidently was in support of the application for injunction. There is also a statement by his counsel before the board of permit appeals that the sidewalk adjacent to Victoria Park, where he wished to operate, is 25 feet in width and that he wishes to sell on a blanket about 4 feet wide; wherefore, there should be no traffic flow problem. But this is all that is in the record. Whether Mr. Key appeared as a witness before the court is not shown (the reporter’s transcript is not included in the record), nor is he one of the individual plaintiffs.

There is no justification for concluding upon the record before us that

Delegation of power to a municipal officer to refuse permits to businesses which are subject to police regulation is constitutional, and it is presumed that such authorities have not acted arbitrarily but in the exercise of sound discretion. (Iscoff v. Police Commission, 222 Cal.App.2d 395 , 401 [ 35 Cal.Rptr. 189 ]; In re Holmes, 187 Cal. 640 , 646-647 [ 203 P. 398 ]; In re Petersen, 51 Cal.2d 177 , 185 [ 331 P.2d 24 , 77 A.L.R.2d 1291 ], app. den., 360 U.S. 314 [ 3 L.Ed.2d 1259 , 79 S.Ct. 1294 ].) The granting of discretionary power not restricted by specific standards to confer or deny licenses is to be upheld where the licensed activity, because of its potentially objectionable character (e.g., traffic obstruction), may be regulated or restricted to certain localities. (In re Petersen, supra, at p. 184.) In People v. Amdur, 123 Cal.App.2d Supp. 951 [ 267 P.2d 445 ] (referred to approvingly in In re Petersen, at p. 185), this principle was applied in a case involving a permit for a temporary obstruction of a sidewalk. (In Amdur there was a remand because evidence had been excluded that the ordinance had been applied in a discriminatory manner; as said in footnote 1, equal protection is not an issue on this appeal.)

Despite the presumption that the officer will duly perform his duty, an abuse of discretion may be shown and relief obtained in the courts. (In re Petersen, supra, at p. 185.)

Declaratory relief is not an appropriate method for judicial review of administrative decisions (Hill v. City of Manhattan Beach, 6 Cal.3d 279 , 287 [ 98 Cal.Rptr. 785 , 491 P.2d 369 ]), and although proceedings for declaratory relief may under appropriate circumstances be construed as

The judgment is affirmed.

Rattigan, Acting P. J., and Christian, J., concurred.

Appellants’ petition for a hearing by the Supreme Court was denied May 22, 1974. Mosk, J., was of the opinion that the petition should be granted.