State Ex Rel. Hansen v. Salt Lake City

ELLETT, Justice

(dissenting).

I dissent.

These two cases were consolidated for this appeal. In one of them the Attorney General of Utah sought a declaratory judgment that Sections 20-29-1 through 20-29-25, Revised Ordinances of Salt Lake City, Utah, 1965 are unconstitutional. In the other, seven private clubs sought to enjoin the enforcement of the ordinance against them individually. The lower court ruled that the ordinance was valid except as hereinafter indicated, and the cases are here on appeal by the Attorney General and by the private clubs.

A question has been raised as to whether the Attorney General has standing to question the constitutionality of a city ordinance since his office has no proper interest therein. However, we need not concern ourselves with the question since it is properly raised in the suit brought by the private clubs.

The trial judge in the case brought by the private clubs declared invalid that part of the ordinance which provided that any peace officer might enter the club rooms, meeting rooms, and so forth, for the purpose of determining whether any laws or ordinances were being violated, and Salt Lake City has cross-appealed from that ruling. The ordinance has a saving clause in it, and so the court held the remaining portions to be valid.

In 1959 our legislature enacted Section 1 of Chapter 24, Laws of Utah 1959, which was codified as Section 11-10-1, U.C.A. 1953. In 1967 the legislature amended Section 11-10-1, U.C.A.1953, by eliminating therefrom certain language. The original section is set forth below with the part eliminated by the amendment of 1967 italicized :

Cities and towns within the corporate limits, and counties outside of corporate cities and towns shall license all establishments, associations and corporations, except non-profit corporations bonded and regulated tmder provisions of sections 16-6-13.1, 16-6-13.2 and 16-6-13.3, Utah Code Annotated 1953 as enacted by Chapter 25, sections 2, 3, and 4, Laws of Utah 1955 that operate a club, business or association which allows the customers, members or guests to possess *329or consume liquor on the premises, provided the license does not permit the licensee, operator or employee of either to hold, store, or possess liquor on the premises. However, nothing in this section shall be construed to prevent persons other than the licensee, operator or employees of either, from possessing and consuming, but not storing, liquor on premises, except as otherwise provided for by statute.

Sections 16-6-13.1, 16-6-13.2, and 16 — ó— 13.3 referred to above dealt with so-called locker clubs where liquor is stored or consumed on the premises, and those sections require each club to furnish a bond to the effect that it will faithfully comply with the laws of Utah. The Secretary of State is given authority to revoke the charter and forfeit the bond in case of violation of law.

Salt Lake City relies upon additional sections of our code as giving authority for enacting the ordinance in question. They are set out below:

10-8-42. They [cities] may prohibit, except as provided by law, any person from knowingly having in his possession any intoxicating liquor, and the manufacture, sale, keeping or storing for sale, offering or exposing for sale, importing, carrying, transporting, advertising, distributing, giving away, exchanging, dispensing or serving of intoxicating liquors.
10-8-81. They [cities] may regulate all social clubs, recreational associations,' athletic associations and kindred associations, whether incorporated or not, which maintain club rooms or regular meeting rooms within the corporate limits of the city.

The Attorney General, arguing the position of the locker clubs, claims that the legislature preempted the field for the State insofar as locker clubs are concerned and that the cities have no power to do any regulating of such clubs. He seems to think that with 29 counties and 202 cities and towns all regulating such clubs, there would be such confusion resulting that a tippler who drinks all over the State would get ulcers not from the alcoholic content of the beverages consumed but from trying to keep up with the many and varied regulations imposed by the different municipalities. One naturally feels sorry for such ubiquitous imbibers, but it seems only proper that when one drinks in Rome, he ought to drink as the Romans do.

The question of preemption was before this court in the case of Salt Lake City v. Kusse, 97 Utah 113, 117, 93 P.2d 671, 673 (1939). The defendant there claimed that a city had no authority to pass an ordinance prohibiting driving an automobile under the influence of intoxicating liquor, since the State had already passed a statute making it a crime to drive a mo*330tor vehicle while under the influence of intoxicating' liquor. The court said:

Does Sec. 57-7-14, R.S.U.1933, being of state wide application and designed to prevent driving anywhere in the state while under the influence of intoxicating liquor, prevent the enactment of an ordinance preventing in the cities the same thing ?
The solution of this question depends on the following principles: An ordinance dealing with the same subject as a statute is invalid only if prohibited by the statute■ or inconsistent therewith. [Citations omitted.] (Emphasis added.)

Since the city is not prohibited from regulating clubs, and since there is no inconsistency between the ordinance and state law, it would seem that the State has not preempted the field in this regard.

This court had occasion later to look at the problem of preemption in the case of Salt Lake City v. Towne House Athletic Club, 18 Utah 2d 417, 424 P.2d 442 (1967), which case was decided before Sec. 11-10-1, U.C.A.1953, was amended. In that case it was said at pages 419-420 of the Utah Reports, 424 P.2d at pages 443-445:

The stipulation recites that the city claims the right to adopt the ordinance from * * * Section 10-8-80, U.C.A. ’53, giving cities the revenue raising power by licensing businesses, and Section 10-8-81, U.C.A. ’53, giving cities the power to license and regulate “social clubs, recreational associations, athletic associations” and the like. By their briefs and oral argument the parties considered the power asserted by the city to be regulatory rather than revenue producing, and we so consider it. * * *
^ * * * * *
Sections 16-6-13 to 13.3 U.C.A. ’53, enacted in 1955, establishes a procedure for regulating social clubs. By its terms this set of statutes is aimed at assuring that the clubs are organized in good faith as non-profit associations, that gambling is not allowed, and if liquor is stored or consumed thereat, that the Liquor Control Act is not violated.
Section 11-10-1, U.C.A. ’53, enacted in 1959, delegates to cities the power to regulate “all establishments, associations and corporations,” except those covered by Section 16-6-13 to 13.3, U.C.A. ’53, who “operate a club, business or association which allows the customers, members or guests to possess or consume liquor on the premises, provided the license does not permit the licensee, operator or employee of either to hold, store, or possess liquor on the premises.”
The trial court held that, although these statutes might be construed as a preemption to the State, as far as nonprofit corporations are concerned, in the area of regulating the licensing of es*331tablishments to permit storing-, possession and consumption of liquor, they do not preclude delegation to cities of the power to regulate such corporations or clubs in their conduct of other activities. We agree.

Now that Section 11-10-1 has been amended and provides that cities shall license all establishments that operate a club which allows liquor to be consumed, the case is stronger than when the section excluded those non-profit corporations organized under Chapter 6, Title 16, U.C.A. 1953.

The lower court was correct in both cases in holding that Salt Lake City has the authority to regulate clubs by ordinance.

Section 16-6-14, U.C.A.1953, reads:

All peace officers shall have the right to enter the club rooms or meeting rooms of social clubs, recreational or athletic associations, or kindred associations, incorporated under the provisions of this chapter, for the purpose of determining whether any laws or ordinances are being violated therein.

The ordinance of Salt Lake City involved in this matter has a similar provision as it relates to clubs where liquor is consumed.

The lower court thought these sections were in violation of the constitutional right to be free from unreasonable search. I do not so regard them. If the establishment desires to have liquor consumed by its members and guests, it must comply with the law which grants the privilege. One requirement is that peace officers have the right to enter the club rooms and meeting rooms for the purpose of determining whether any laws or ordinances are being violated. The officer is not entering to make a search. No search is contemplated by the ordinance or by the statute. He simply enters to see what everybody else in there sees: whether the law is being violated. This is no more a search on the part of the officer than it would be on the part of any bystander who might be present therein. If the officer desires to make a search other than one incident to the making of a lawful arrest, he must secure a search warrant before making it.

The main opinion cites two cases, viz., Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). In See v. Seattle, the defendant appealed from the conviction of violating a city ordinance in that he refused to permit a representative from the city Fire Department to inspect his private warehouse. The Washington Supreme Court without a dissent affirmed the conviction, City of Seattle v. See, Wash., 408 P.2d 262, and' it did so upon grounds more consonant with reason and common sense than those stated in the six to three United States Supreme Court *332opinion which reversed the Washington court. We must bow to power when we would prefer to follow reason, and so I shall assume the See case to be the law as now imposed upon the states. However, I have no quarrel with the See case in connection with the instant case, for it is not in point.

The case with which we are here concerned does not involve a person who is accused of crime for denying entrance by an inspector into private property which he owns and has a right to own without license or leave. Rather, we are here considering the question of whether one who seeks the right to operate a club where liquor is to be consumed can enjoy that right without complying with the statutory conditions precedent thereto.

In the case of Camara v. Municipal Court, supra, prosecution under a municipal ordinance which made it a criminal offense to refuse to permit a building inspector to inspect private residences was restrained by the Supreme Court of the United States. In that case the Supreme Court used the same faulty reasoning as it did in See v. Seattle, supra. However, this case like the See case is not here in point.

I think it is time to put an end to the loud and raucous wailing of those who claim a constitutional right to hide behind locked doors and commit acts which they think are not appropriate for a policeman’s eyes. Let them comply with the law or let them forego hiding from their law-abiding acquaintances. Are they the “men who loved darkness rather than the light; because their .deeds were evil” ? 1

The ruling of the trial courts rejecting the contention of the Attorney General and of the private clubs that the ordinance is unconstitutional should be affirmed. However, the holding that Section 16-6-14 and the similar provision of the ordinance violate the constitutional right to be free from unreasonable search should be reversed.

No costs should be awarded.

. John 3:19.