OCR Text |
Show TI KSDAN. MAIM 'II LM, lilTO THE DAILY RECORD H pondi nt. L. M. Cuni'nings Clerk K. R. Ca IliINRIOl), Just Ins is i a lhsler, t : ralln J., Justice R. L. TuckeTt, Just.ce g ELLETI, Justice: (Dissenting) unorthodox appeal from a judgment holding Rev. tod Ordinances of Salt Lake City .'1965 , unconstitutional in Sec. three separate lasts appealed from the (Iiy Court to lit District ( ourt, that for appeal. AUirmc-- wih rio costs awarded. someliow became i 'I 19-4-- FOUR WK CO NT UR; Joe Whr ler, David Ho,i and loo Jackson, Def nd.in'r and PAGE r 0, d.sscn. The ordinance seems crystal clear to me. The main to tear that the police may try to inspect atte r business hours. teems opinion It the tavern remains open after business hours, a law is b ing violated, and naturally the bartender would not want the police to make any kind of an inspection under those circumstances. I Defendants Ttoyd and Jackson at 2:15 one morning rennsed o give police officers permission to inspect the premises of flit Regal Lounge, which was being operated under a city brer license. Dtfendan' Wheeler at 8:30 p.m. of another day, also re fused to allow officers similar inspection of the premises. No search warrant was served or attempted to be served on r.iher occasion. Closing hour under the ordinance is 1:00 a.rn. City ordinances, like state statutes, are entitled o the presumption regularity, and as Justice Uenriod so cagently said in Norton v. Department of Unemployment Security, 22 Utah 2d 24, 26, 447 p. 2d 907 U968): of The District Judge concluded that the ordinanc e was unconstitutionally and overbroad, permitting searches without a warrant so as to b offenvague sive to the Fourth Amendment of the U. S. Constitution. Here is the subject ordinance : The presumption of constitutionality of a statute transcends its destruction unlees the latter so obviously is obsessed with cup.rlity and unreason as to have no substantial basis for its existence. We believe that is not the instant case. Without quoting in extenso from decisions which support our conclusion, we commend the reader to an examination of a leading case which seems to be apropos here, v. So. Coal Coke. 301 U.S. 495, 57 S. Ct. 8bB, 81 L. Ed. 1245, The police department shall be perm. tied to See. have access o all premises licensed or applying lor licence under thi chapter, and shall make periodic mtp ctioni- - oi said pr:nurt s and Ttport its findings to the board oi 19-4-f- i. commifuonf 109 A. I..R. Section U.C.A. 1953, as amended, gives ths power to cities to prohibit the 6ale of beer or to permit it subject to restrictions and regulations. Any right to sell beer is to be found in the city ordinance and not in any constitutional provision. 32-4-1- of The quoted language applies to businesses spei ilied in Sec. . e s which includes cafes, restaurant1 public diningrooms, the city ordinam cafeterias, taverns, cabarets, private clubs, corpora. on ar.d a ssociations having licenses ior consumption of liquor on the premises. 19-1-- 7 , It seems obvious from a casual reading of the ordinance that, of all the municipal agencies, the police department alone is accord d the right of entry without a search warrant.. to inspect any or aM 'he premises lor which the license is issued, without reservation or restriction as to the private or public pot Mohs thereof, without any specu.ed protection against a plenary power o prowl 'he premises. It is reasonably foreseeable that under some circumstances, where a waTranMess entry may have ben accomplished, an erstwhile r.ghi of an accused to suppression of vidence or hi- - right of There is nothing unconstitutional about permitting an inspection of a business as a condition of allowing it to exist when a license to engage in that business may be denied outright. The requirement of the ordinance in question is that ihe police department shall be permitted to have access to the licensed premises and to make periodic inspections. When an officer enters the licensed premises for the purpose of inspecting the same, he is doing so for the purpose of determining whether any laws or ordinances are being violated. If the defendants herein were not violating the law or permitting it to be violated, they could have no objection to the presence of the officer. In truth, his effect on any errant cuspresence would most likely have a whole-somtomers who rmgh be breaking the law or planning to do sc. well might be foreclo-e- d rimply b cause immunity lrom self nu r .th nation of ' search may he employed :n the ordinance. the word inspect in'-eaCounsel implies that inspection may be some'h.ng other than search in a l h any Fourth Amendment sense. Ihe authorities seem to distinction by making the two words synonymous in both 1st ordinary and constitutional senses. -- d.-pe- e Although ihe Cny urges that the inspection in ifret has been limited to business hours, the ordinance nowhere proscribes sue h restraint. Such suggestion hardly i convincing where in one of the very cases b ior us, the 'inspection' was a!temped a 2:1 5 a.m., after dosing time., and ihe own while in for its City plugging brief, constitutionality of the ordinance, that are said Thee taverns significantly required to close at 1:00 a.m. . . . Many infraction1 o: the State and City laws occur alter hoB hours and to limit the right of inspection to only business hours would make the This seems to City's right and power of regulation largely illusory. any mythical distinction between ' browsing inspection and bruising search, so far a Fourth Amendment concepts arc concerned. One might ask: 'Why would the City's power he illusory '" Another might answer that what with the restricted number o: licenses issued and the comparative asc-oobtaining a search warrant where an establishment rnay be suspect, what is wrong or onerous about requiring such a warrant 7 It would seem that enlightened peace officers would prefer such procedure in order to inoculate themselves against possible nuisance litigation. During th 30 year- - and more of my tenure on ihe trial banrh, it was my obsc rvatl n from listening to he evidence that a very high per- centage of all criminal cases pi z secuted had their genesis In a beer tavern and by defendant who had consumed bBer and o'her alcoholic drinks for long periods or '.me lieiore and during ihe planning of the committed crime. Thus the need ioi irequent inspection of beer tavern? by police oificers seems to me lo be ppent. An applican officers in ordi r to . fendants herein guilty o: dispensing beer unlawfully, since a license, issued pursuant to a void ordinance would also be invalid7 ordinance, however, is valid. If the inspecting officer himself law and makes n unwarranted and unlawful search and seizure the violates and thereby d.scover 5 evidence Tha a crime is being committed, then and in that event the rules of ev:dnce should give all the protection to a guilty bartender to wh.ch he : en.thdwhrn he .? tried ior his crime. Ii no evidence of an incriminating nature is discovered hv such an unlawful search, then the innocent har'endr-- r ha a civil remedy for the trespass. In any event, there is no reason to hold that a proper inspection cannot be made. The J I If the ordinance is susceptible, of two constructions, one oi which will render it invalid and the other of which will permit it to stand, then it is our duty to give that construction to the ordinance which will allow it to The law in this regard is set out in 16 C. J.S. Conbe held constitutional. stitutional Law $ 98 as follows: a statute is susceptible of two constructions, one of which will render it constitutional and the other of which will render it unconstitutional in whole or in part, or raise Ii At oral argument, counsel lor tin- City suggested deferment of the instant case until Colonnade v. S. came: down from the U. S. Supreme Court. We followed the suggestion. I he opinon l l that case was published on February 2s?. ITO. It rivers d the Circuit Court decision, upon the rationale of which the C.i'y onsiderahly relied. Ihe case lends no comfort to the City. - grave and doubtful constitutional questions, the court will adopt that construction of the statute which, without doing violence to the fair meaning of language employed by the legislature therein, will render it valid, and give effect to all of its provisions, or which will free it from doubt as to its constitutionality, even though Ihe other construction is equally reasonable, or seems the more obvious, natural, : black and ballantyne Law- Dictionaries and V.bter International, under "search"; Camara v. Municipal ( . , 387 U.S. 21, IS L. Kd. 2d 930, 87 S. Ct. S 1727 (l'ii) 7): See v. Seattle, 1ST 7 ) Colonnade , IS I.. Kd. 2d 943 ( v. U.S., 410 led. .d 117, cert, granted, , 24 L. Kd. 2d 66, U.S. S. Ct. OS Oct" I No. (Oit. 13. erin, l'b?, Feb. 25, 1970 - !.. 1 1 (Douglas, J. ), 2d 318, 445 Law Week 41(7; Vagabond Club v. Salt Lake Cily 2d 691 (1968), where we said In the Camara rase 21 3K Utah the court observed that the question was not whether an inspection may be made, but whether it may be marie without a warrant. The court held that searches of this kind arc'sigmfic ant intrusions upon the Fourth Amendment ' Vol. A Words 2IA, Phrases, Perm, lid., p. 162, v.lere it is said No difference: between the words inspect and sea ri h exists in regard to the provisions of the 4th Amendment prohibiting unreasonable scar lies of boires, and the Inspector . . . was required under the amendment to obtain a warrant to and again, inOkla. A.Il.C.Hd. v. Mc Culley, (Okl. t 377 P. 2d inspect . . 568 (1963), it is Btated that the right to insjet and the right to search were indistinguishable under the Act providing that a search warrant was unnecessary for agents to enter and inspei t the lw insed premises. (ITmphasis added. ) 2. 21 Utah 2d 318, 445 P. 2d h'M ( f f , - See fool note I, supra. 3. See footnote 1, supra. 1 and preferable, interpretation . 1 i . . . The reason lor this Tulr of construction is that there is a presumption that legislative bodies in enacting statutes or ordinances do not intend to violate constitutional provisions. There is also a presumption that officers will obey tht law. This ordinance can, therefore, be held tad only if we reatl into it something which cannot be found therein. The judgment of the trial court dismissing the charges should be reversed and the cases remanded for the purpose of proceeding with trials on the complaints filed. Revised Ordinances of Salt lake City 19b5. 1. Section 16 C. J.S. Constitutional Law 5 98 and 99. 2. 3. See Royer v. Larson, 20 Utah 2d 121, 433 I1. 2d 1015 (1967). 19-3-1- 3 i lor a license mu?1 agree to permit inspection by police ecure the license. I: 'he o:d. nance is ove;rly broad -- and not clrar and unconstitutional as held by the lower court and as set out in the main opinion, the n why is not the entire ordinance invalid and the de- f Withal that is said above, we believe and conclude that our own recent decision in Vagabond Club v. Salt Lake City is dispositive of the instant case. There the nty ordinance required that the propriior furnish a key to the police department for the purpose of entering and inspecting" the premises. We concluded that it was offensive to the Fourth Amendment, citing with approval Camara v. Municipal Court, and See v. Seattle, which struck down similar legislation presuming to permit warrantless ' inspections." The only substantial difference between the Vagabond case and this case, is that in the former the proprietor was required to furnish the police with a key to unlock the door at any time lrom the outside, while in the instant case the ordinance requires tl. proprietor to unlock the door at any time from the inside, - all to accomplish the same objective, - a look-se- e of aH the premises. We arc not constrained to overrule the Vagabond case. 7, One desiring to engage in the business of dispensing light beer must secure a license to do so from the city and ought to comply with the rules and regulations prescribed as a condition cf securing the license, and especially is this true where the only requit ement is that the licensee not violate the law and that he permit agents of the city to inspect the premises so licensed, to ascertain that such is the fact. ordinance is clear, not vague or overbroad, The City urges that and constitutes a constitutional means tor ihe control oi Lquor sale and consumption. the. 1. 1327 (1937). r 4, Crockett, Tlllctt. C. J., concurs in the dissenting opinion of Mr. Justice I |