HomeMy WebLinkAboutAgenda Report - September 21, 1983 (58)OPINION BY City Clerk Reimehe presented an Opinion of John K. Van De
ATI)aR Y GH*RAL Kamp, Attorney General regarding sex prograaming on
RE SEX P television which was received and which concluded that "A
MING California City does not have the legislative power to enact
a penal ordinance which would prohibit a person from
displaying on a television received for the viewing by a
minor, a "sex program" when such minor's parent is not
present or such minor does not have a parent's written
permission to view the program.
City Attorney Stein gave a brief analysis regarding the
subject opinion.
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California ..
JOHN K. VAN DE KAMP
Attorney General
----------------------------------------------
OPINION
No. 83-305
of
JOHN K. VAN DE KAMP SEPTEMBER 8, 1983
'Attorney -General
JOHN T. MURPHY
Deputy Attorney General
--------------------------------------------------- ------
THE HONORABLE PHILLIP ISENBERG, A MEMBER OF THE
CALIFORNIA ASSEMBLY, has requested our opinion on the
following question:
Does a California city have the leggislative power
to enact a penal ordinance which would prohibit a person
from displaying on a television receiver, for the viewing by
a minor, •a "sex program" when such minor'e parent is. not
present or such minor dors not have a parent's written
permission to view the program?
CONCLUSION
A California city does not have the legislative
power to enact a penal ordinance which would prohibit a
person from displaying on a television receiver, for the
viewing by a minor, a -"sex program" when such••minor's
parent is not present or such minor does not have a parent's
written permission to view the program.
ANALYSIS
A proposal was made to a city council that it
prohibit by penal ordinance the display of a "sex program"
on a television receiver i/ to a minor whose parent was not
present or had not authorized such viewing in Writing. A
'sex program" would be defined in terms of displaying
1. The ordinance is directed primarily atprograms
transmitted by cable television systems. However, for this
opinion we will not distinguish cable programs from programs
presented by video disk, tape or other means.
,specified unclod parts of the human anOoy or specified
sexual conduct.hose owning or controlling the television
receiver would be responsible for what was displayed to
minors thereon. The obvious purpose of the proposal is to
punish persons who permit minors to view without parental
approval television programs consisting of explicit nudity
or sexual conduct. We are asked whether a California city
has the legislative powe to enact such an ordinance. We
conclude that it does not.
THE ORDINANCE CONFLICTS WITH GENERAL LAW.
Article XI, section 7, of the California
Constitution states:
"A county or city may make and enforce within
its limits all local, police, sanitary, or other
ordinances and regulations n.,,- n conflict wit:
general law." (See also Gov. 4..�e, S 37100.)
Since a city ordinance enacted under this power
would be void if it conflicts with general state laws, we
must examine the possible conflicts. A conflict may occur
(1) if an ordinance d, uplicates state law, or (2) if an
ordinance contradicts state` w by prohibiting what state
law allows or allowing what state law prohibits. (Lancaster
v. Municipal Court (1972) 6 Cal.3d 805, 807-808; .In re Lane
(1962T 58 Cal.2d 99, 106; Abbott v. City off L_o_sA_n_R_eles
(1960) 53 Cal.2d 674, 681-6$'£; woe v. --Cit and Count ` of
San Francisco (1982) 136 Cal.App.3d 509,- -
con3 ct may also arise where state law has preen ted the
particular field of law by' express declarat o. by_
implication. iLancaster v. Municipal Court, supra, 6 Cal.3d
at 808; Doe v. Cit and Count of San ancisco, supra, 136
Ca1.App.3dat 5
Since the proposal would forbid the.display.of "sex
programs,to children without parental presence or prior
written permission, we are immediatei alerted to the state
laws prohibiting the dissemination o "harmful matters":oto,
minors (Pen. Code, S 313-313.4.) Penal Code -section, -313-0:,
subdivision (a), provides as follows:
"Every person who, with knowledge that a
person is a minor, or who fails to exercise
reasonable care in ascertaining the true age of a
minor, knowingly distributes, sends, causes. to. t4
sent, exhibits, or offers to distribute or exhibit
any harmful matter to the minor is guilty of a
misdemeanor."
"Harmful matter" is defined in Penal Code section 313:
2. 83'n, 30.5
whole, the 'Harmful matter' means matter, taken as a
predominant appeal of which to the
average person.,applying contemporary standards, is
to prurient interest, i.e., a shameful or morbid
interest in nu�ditt sex, -or excretion, and is
patently offensive to a prevailing standards in
the adult community as a whole with respect to what
is suitable material for minors, and is utterly
without redeeming social importance for minors.
"(1) When it appears from the nature of the
matter or the circumstances of its dissemination,
distribution or exhibition that it is designed for
clearly defined deviant sexual groups, the
predominant appeal of the matter shall be judged
with reference to its intended recipient group.
"(2) in prosecutions under this chapter, where
circumstances of production, presentation, sale,
dissemination distribution or publicity indicate
that matter is being commercially exploited:
by the
defendant, for—the-sake sake of its prurient, appeal,: ,.such
evidence is probative with respect to the ,nature of
the matter and can justify the conclusion ,that the
matter,'..—is utterly without redeeming:. social
importance for minors.
'Matter',, means any book, magazine,
newspaper, or other printed or written material or
any ice, drawin photo ra ... motion picture,
or of er:r ctor a re resentat on or any statue.or
o er figure,,or any recording, transcription, or
mechanical, chemical, or electrical.reAroduction or:
any '.other `articles, equipment, machines., or:
materials,
(c) Personmeans any individual,
partnership,'firm , association, corporation; or,.
other.,legal entity.
"(d) 'Distribute' means to transfer possession_
of, whether with or without consideration.
"(e) 'Knowingly' means being aware of the
character of the matter.
"(f) 'Exhibit' means to show.
"(g) 'Minor.' means any natural person under 18
years of age." (Emphasis added.)
3. 83-305
In plain meaning, these state statutes prohibit a
person :from knowingly exhibiting or showing to a minor a
picture,. drawin§, photograph, motion picture or pictorial
representation f1) the .predominant appeal of which to the
average person applying contemporary standards is to
prurient interest, (2) is patently offensive to the
prevailing standards in the adult community as a whole with
respect to what is suitable material for minors and (3) is
utterly without redeeming social importance for minors.
Does a person who knowingly makes a television receiver
available to a minor upon which such harmful matter, in the
form of nudity or sex, is being shown fall within the
proscription of Penal Code section 313.1, subdivision (a)?
We believe so, unless the person is exempted from the
statutes.
As we have seen, the proposal. would forbid the
television display to minors of "sex programs." Assuming
for the purpose of this analysis only that the ordinance
would meet constitutional tests 2/, it is our opinion that
such an ordinance would duplicate the state harmful matter
laws by criminalizing the same conduct which has alread
been made criminal by such laws. (See In re Portnoy(19.42T
21 Cal.2d 237, 240- (slot machine ordinanceduplicated Penal
Code provisions); Pipoly v. Benson (1942) 20 Cal.2d 366, 370
(pedestrian roadcross ng ordnance duplicated Vehicle :Code
provisions): In re Mingo (1923) 190 Cal. 769, 771 (liquor
possession, or inan'ce duplicated Wright Act) .) The
invalidity arises, not from a conflict of langgusgge,:..but
from the inevitable conflict of jurisdiction which would
result from dual regulation covering the same ground."
(Pi of v. `Benson, supra, 20 Cal.2d at 371; Peovie ;v.
Villarino (1955) 1347 -Ca - l . App.2d - Supp.. 893 90 `�` the
ordinance would proscribe the. same conduct ;`already
proscribed by the state and, accordingly, would c2uplicate
the harmful matter statutes.
We also conclude that an ordinance of the. kind
proposed would contradict the state laws. It would'null'ify
the exemptions to Penal Code section 313.1 contained" , in
Penal Code section 313.2:
2. The ordinance raises serious questions concerning
speech, privacy, vagueness, overbreadth and equal
protection. In First Amendment context, "[p]recision of
regulation must be the touchstone. . ." (N.A.A.C.P.. v.
Button (1963) 371 U.S. 415, 438.) In view- or our
conclusion, however, it is not necessary that we address
these matters.
4. 83-305
3
"(a) Nothing in' this chapter shall prohibit
any parent or guardian from distributing any
harmful matter to his child or ward or permitting
his child or ward to attend an exhibition of any
harmful matter if the child or ward is accompanied
by him.
"(b) Nothing in this chapter shall prohibit
any person from exhibiting any -harmful matter to
any of the following:
"(1) A minor who is accompanied by his parent
or guardian.
"(2) A minor who is accompanied by an adult
who represents.himself to be the parent or guardian
of the minor and whom the person, by the exercise
of reasonable care, does not have reason to know is
not the parent or guardian of the minor."
Accordingly, the person exhibiting the program to the minor
would not violate Penal Code section 313.1, subdivision (a),
if the minor were accompanied by a parent, a guardian or 'a
person representing himself as. either. In contrast, the
ordinance would exempt from criminal liability•a person who
has obtained the, prior. written permission°: -of -a parent
Consequentl the -proposed ordinance would, in effect,
authorize at state law prohibits.
We conclude that the ordinance described in the
proposal would both duplicate and contradict state law and;
thus, conflict'therewith.
We also conclude that such an, ordinance would tae
invalid because .state law has preempted ;.this .`field of ::law,
If a ' f ieYd of ' :law. has been preempted ;:. by, state law, no lddal
law regulating that field is. allowed-. (Lancaster _
Mal Court; supra, 6 Ca1.3d < 805, 80$" or inan'ce
Prohibit ng massage parlors invalid, since regulation of
sexual conduct is a.. field fully, occupied by;,.state ;laws-.) ' We
.believe the , field -:Of law at issue is the ,:di-stribut.on :Fto
children of harmful matter in the form of explicit nudity "or
aexual conduct.: While we find no :express -"leg 4,,A ive
statement ° of ` intent to preempt. this. field', neverthe ess such
intent is implied from the state laws.
Abbott v. City of Los Angeles, supra, 53 Cal.2d
674 concerned -a city ordinance requiring convicted felons
to register. State law, however, compelled only`sex`
offenders to register. The court struck down the ordinance
recognizing a legislative intent to provide `uniform
treatment of convicted criminals and holding that state law
preempted the field of registration of criminals. (Abbott,
5. 83-305
4.
Id., at p. 688.) Similarly, in In re Lane, supra, 58
Ca .2d 99, 105, the court found a local ordinance' regu sting
prostitution was preempted by state laws in the field of
sexual conduct. The tests to determine whether or not the
Legislature has occupied a particular field by implication
are found in Galvan v. Superior Court (1969) 70 Cal.2d 851,
859-860 (quot—ng`Trom In. re Hubbard (1964) 62 Cal.2d 119,
128): .
subject matter has been so* fully
and completely covered by general law as to clearly
indicate that it has become exclusively a matter of
state concern; (2) the subject matter has been
partially covered by general law couched in such
t,,�rms as to indicate clearly that a paramount. state
concern will not tolerate further or additional
loc -.l action; or (3) the subject matter has been
part ally covered by general law, and the subject
is of such a nature that the adverse effect of a
local ordinance on the transient citizens of the
state outweighs the possible benefit 'of the
municipality."
The state laws fully cover the field of
distribution of harmful • matter to children. As we..
previously discussed Penal Code- section 313, subdivision
(b) , provides. -that harmful matter may be found.. in "any. book,
magazine, newspaper, or other printed'or written.m�teria] or;
_ any picture, drawing, photograph, motion picture, or other _
pictorial representation or any statute`- or other figurex or
any recording, transcription, or mechanical, :chemical`or
electrical reproductionor any other. articles; equippment,
machines, or materials."•- The proposal concerns:_:.itseaf with.:
pictorial representations, namely, sexually Sex licit:'.
television programs. This type of :harmful matter is ;'`clearly
within the .Penal Code proscription. Indeed, Penal 'Code;-
section 313, subdivision (a), covers the entire subject df
the distribution of harmful . matter, " as ` it'" relates
children. This field of law, then, is fully; comp letelyand .
comprehensively covered by the state, statutes 3/ which
coverage indicates a legislative intent to 066upy tre field..'
Consequently, the ordinance would not survive the''at�
preemption test. r
Carl v. Cit of Los Angeles (1976) 61 'Cat' 'AP „
265 involy�^an or Hance which,rater alia, prohibited :;the .
offer of sale or the sale of harmful matter (as deft h end to
3. Other state statutes also deal with indecency._
visa -vis children. (See Pen. Code, f 272 (contributin to=
deliquency of minors); Pen. Code, 1273ab (child abuse)j
6. 83-305`
Penal Code section 313) from a newsrack on any public
sidewalk unless an adult person was present who was
authorized to prevent the purchase by a minor. 'In finding
the ordinance invalid, the court said:
We think it is obvious that section 313.1 of
the .Penal Code preempts the field of offering and
selling harmful matter to minors. The parallel
decisions holding that the stetutes relating to
adult obscenity preempt the field leave no room for
argument on this point. (Whitneyv. Municipal
Court, 58 Cal.2d907, 909-911 -[27 Cat.Rptr. 16. 377
T.2d_80]; In re Moss,58 Cal.2d V7, 117 [23 Cala
Rptr.361 , 3T3 -`ad 4251; Spitea�uer v. Count
of Los Angeles, 227 Cal.App.2d 376, 37 [38
aZ�1.Rp`tr: _7M] ; Mier v. Municipal Court, 211
Cal.App.2d 470, 4727M [27 Cal. ptr..
We observe no conceptual difference between a distribution
from a news rack, on one hand, and .a transmission from -..a
television screen, on the other'h"A- As "in Carl,'local
legislation regulating such harmful matter .would be void. 4/
Under the second test preempt ionwill be found when
the field has been partially covered by general state,,,law.
couched in such terms as to *indicati, clearly :that: e
paramount state concern will not; tolerate further :or:.:;_
additional local action.. To"a 'PP1y this test w wast examine
"the. pattern of [the state] legs lation;, the: ,langu ga:: used
in the relevant provisions; .and the' nature :.:of . the
subject. matter." (Long Beach Pohice Officers' -Assn, v. = z
Cit of Lon -Beach (I 976)_761
• PP• The
pattern o e legislation at issue dem6ne rates 'a completes
scheme o£ regulation. Definitions are; provided. (Pen.' Code,
S 313) , the forbidden conduct ` is`.' described :. (Pen.:: -Code, f
313.1) , the exceptions'are.., specified (Pen.: Code, 11 313`.2
and 313.3) , the punishment is indicated; Oen. ;Code',_ a 31,3:b� w:Y
and a severability clause is included (Pen. Codek;: f 31_313)-*,
The statutes carefully adopt judicial definitiona<:<when
describing the content` of the matter.,.deemed harmful ,to.
.distribute or exhibit to minors. Y(Erznoznik• V. Citq_:of
4. Where the purpose of the local , legislation -is to t'
resolve a peculiarly local problem,, the=:_ ordinance stay
survive as a regulation in a separate field of law. Pep le
v. Kukkanen (1967) 248 Cal.App.2d Supp. 899, 903(local
ordinance prohibiting topless waitresses found valid-; as
local regulation of live entertainment rather than of sexual
conduct)'-) 7 r
7. 83-305
Jacksonville (1975) 422 U.S. 205, 212-213; -Miller V.
Ca i ornia 1973) 413 U.S. 15, 24.) The statutes represent a
thoughtful legislative effort to regulate content. without
enteringin the arena of protected speech. Since the
{: ordinane would be disruptive in the legislative scheme, it
is our opinion that the ordinance would gnot pass the second
test of preemption.
We further conclude, under the third test, that the
proposal would have adverse effects on the state's -
transient citizens outweighing local benefits. A burden
would be placed on transient citizens generally if cities
were to enact penal ordinances in varying forms, with
conflicting notions of what is harmful to children, on the
subject of television viewing. (Seo Long Beach Peace
Officers Assn. v. City of Long Beach, supra, 61 GaT p .Za
64, 371.5 Moreover, the uniform state law provisions
proscribing the dissemination of harmful matter to children
would be disrupted by disparate local controls.
THE SUBJECT MATTER OF THE ORDINANCE IS NOT A MUNICIPAL.
.AFFAIR.
A chartered city, as distinguished from a general
law city, has exclusive power over municipal affairs. (Cal.
Const., art. XI, I 5(a).) The case of Bishop v. Cit of
San Jose (1969) 1 Cal.3d 56 examined'thTs constitut ona
power. At issue in BisnhoR was the authority of a chartered..
city to pay its emp ogees salaries below the level of the
state wage law. The court recognized that a chartered,. city
has "autonomy .with respect to all municipal affairs."' (1
Cal.3d at 61.) However, as to matters of "a ate -wide'
concern," chartered cities remain subject :to and controlled:::
by applicable•. general state law "regardless of the;
provisions of their charters, if it; is the intent and
purpose of such general law to occupy the field to the
exclusln of municipal' regulation (the preemption.
doctrine)." (1 Cal.3d at 60-61.
Under Bishop, it must be determined in the first, _
instance whether the local ordinance of a chartered city
conflicts with general state law. If it does, as we have
already determined here, then it must be decided whether the
subject regulated is a municipal affair or a matter of. -
statewide concern. (See 58 Ops.Cal.Atty.Gen. 519, 512: ,
(1975).) Our opinion is that the subject matter is one of
statewide concern and that the kind of ordinance proposed,
if enacted by a chartered city, would be void.
Municipal affairs are matters which affect the
local citizens rather than the people of the state
generally. Accordingly, such subjects as wages and salaries
(Sonoma County Org. of Pub. Employees v. County of Sonoma.
8. 83-305
(1979) 23 Cal.3d 296, 315; Vial V. Cit off San Diego (1981)
122 Cal.App.3d 346, 347) , police andtiredepartment
operations (Brown v. Cit of -Berkeley (1976) 57 Cal.App.3d
223, 236) and public park reg u at ons (Simons v. ' City Of
Los An eIes (1976) 63 Cal.App.3d 455,--4-6-7)- have -ween
ed t u ne-d-by the courts to be municipal affairs. Indeed, a
municipal affair is always a judicially defined term.
(Bisho v. city of San Jose, _supra, 1 Cal . 3d 56, 63.) On
t e of er hand, a matter- of statewide concern extends beyond
the local interests at stake. For example, gun control
(Long Beach Police Officers Assn. v. city of Long Beach,
supra, 61 Cal.App-3d-372), telephone lines and
hig- ways Pacific Tel. and Tel. Co. v. City and County of
San FranciscoCal.-Td--766, 173; Southern CaL.
oa s ii v. * McGuire (1934) 2 Cal.2d 115, - an
regional- lance (CEEED v. California Coastal Zone
Conservation Comn'n (197 43 Cal.App.3d 306,- -2 are
matters of statewide concern. (See Professional Fire
Fighters, Inc. v. Cit of Los Angeles 60 Cal.2d�-276,��-�
collecte cases) .
The purpose of harmful. matter legislation is to
protect_ children. Courts have long recognized juveniles as
a class of persons in whose welfare the state has a uniue
interest. (Ginsbergv. New York (1968) 390 U.S..,. 619,
640-641 (obscene books). Interstate Circuit v. Dallas (1968)
390 U.S. 676, 690 (obscene films); Prince v. ssac usetts
(1944) 321 U.S. 158, 170 (streetemplooyment�tur er
Burn _Mfg.. _Co. v. Beauchamp(1913) (child labor Marine
o nt Ltd. v. Wo son 1982) . 30 Ca1.3d 721, 7 + �-T�►�
(housing);T.N.G. v. Superior Court (1971) 4 Cal.3d 767,_778.
(juvenile law).) Th s concern. fo= children is not limited
to cities but is statewide in scope. The distribution_of
harmful matter to children cannot be said to be of paramount
importance to cities only.
The interest of the city in this field of law may
certainly overlap the state's interest. However, `'wjhe�,:._
there is doubt as to whether an attempted reggulation relates
to a municipal or to a state matter, or if it be a mixed
concern of both, the doubt must be resolved in favor of the
legislative authority of the state." (Abbott v. City: of.
Los Angeles, supra, 53 Cal.2d 674, 681.)