Jacob Shaw v. San Diego Neighborhood Code Compliance

Filed 6/20/07 Jacob Shaw v. San Diego Neighborhood Code Compliance CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Richard E. L. Strauss, Judge. Affirmed.

Jacob Shaw Incorporated (Shaw) appeals from a judgment denying its petition for a writ of mandate challenging the issuance of an administrative citation by the City of San Diego Neighborhood Code Compliance Department (Code Compliance). Shaw contends that the administrative hearing violated its procedural due process rights and there is insufficient evidence to support the finding that it violated the municipal code in question. We disagree and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Shaw operates a business located on Prospect Street in La Jolla called "The La Jolla Store" that sells t-shirts, sweatshirts, sunglasses and other items. On June 7, 2005, Code Compliance sent a letter to Shaw stating that its outdoor display was not a permitted use and that it was required to keep all merchandise inside the building. (All dates are in 2005.) The letter requested voluntary compliance to correct the violation and warned of monetary fines if the violation was not corrected. Inspector Teresa Steffen observed additional violations on July 12 and September 26 and wrote on the back of her business card a list of items that could be displayed with a permit. On November 10, Inspector Stephen Cousins issued Shaw a warning citation for violating section 103.1208(e) of the San Diego Municipal Code, noting that all outdoor displays must be moved inside the premises. (All undesignated section references are to the San Diego Municipal Code.) On November 21, Inspector Cousins issued an administrative citation and imposed a $100 fine because the violation had not been remedied.

Shaw appealed the citation and, after considering evidence from both sides, the hearing officer issued a written order upholding the citation against Shaw on the ground the merchandise it displayed outdoors was not exempt from the municipal code requirement. Shaw then filed a petition for writ of mandamus in the superior court arguing, among other things, that the hearing officer's findings were not supported by the evidence and the code was unconstitutionally vague. After oral argument, the trial court denied the petition.

DISCUSSION

I. Standard of Review

The parties disagree on the proper standard of appellate review in this case. Shaw contends our review is de novo and Code Compliance contends we apply the substantial evidence test. Where, as here, the underlying administrative proceeding does not affect a fundamental vested right, the trial court examines the administrative record to determine whether substantial evidence supports the agency's decision and whether the agency committed any errors of law. (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 217-219; Code Civ. Proc.,  1094.5.) On appeal we similarly review the administrative record to ascertain whether substantial evidence supported the agency's decision. (MHC Operating Limited Partnership v. City of San Jose, supra, 106 Cal.App.4th at p. 218.) However, the interpretation of the municipal code presents a question of law that we review independently (id. at p. 219), subject to the well-established rule that the Code Compliance's interpretation of the municipal code is entitled to respect unless that interpretation is clearly erroneous. (See Terminal Plaza Corp. v. City and County of San Francisco (1986) 186 Cal.App.3d 814, 826 [agency's interpretation of a resolution]; Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 8 [agency's interpretation of a statute].)

II. Analysis

The Meaning of Section 103.1208

We start by examining the municipal code section at issue because the parties dispute its meaning. Whether we are interpreting a state statute, local ordinance or municipal code, we engage in the same analytical process. (See County of Madera v. Superior Court (1974) 39 Cal.App.3d 665, 668.) Our task is to ascertain the intent of the legislative body so as to effectuate the purpose of the law. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386.) We must "look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. [Citations.]" (Id. at pp. 1386-1387.)

Section 103.1028 is located within Chapter 10 of the city's municipal code governing "Planning and Zoning." Article 3 of Chapter 10 is broken into Divisions reflecting various planned districts located in the city, including La Jolla (Division 12), where Shaw's business is located. The regulations contained in Division 12 are intended to protect the "unique character of La Jolla" in accordance with "public health, safety, and general welfare[.]" ( 103.1201.) Shaw's business is located in Zone 1, characterized by high levels of pedestrian activity, and the standards developed for this zone were designed to enhance the retail development pattern of department stores, small shops and restaurants. ( 103.1202(b).)

After setting forth various regulations and definitions ( 103.1203), Division 12 addresses regulated activities ( 103.1204), permitted uses and density ( 103.1205), property development and parking regulations ( 103.1206, 103.1207) and special use and encroachment permits ( 103.1208, 103.1209). Section 103.1208, entitled "Special Use Permit Development Standards" states that a special use permit "is required for any of the following projects described in Sections 103.1208(b) through 103.1208(m)." ( 103.1208(a), italics added.) Subdivision (e) of section 103.1208 governs outdoor sales and displays in zones 1 through 4. Subdivision (e)(1) states:

"The following listed merchandise sold on the premises may be displayed outdoors during hours of business operation without screening walls or fences except along property lines abutting residentially- zoned lots:

"Flowers and plants.

"Food products.

"Handcrafted products and goods.

"Artwork and pottery.

"Any other merchandise which the City Manager may find to be similar in character, type or nature to the merchandise listed in this Paragraph and which will not cause an adverse visual impact on the neighborhood." (Italics added.)

Subdivision (e)(2) of section 103.1208 states that "[a]ll other merchandise sold on the premises may be displayed outdoors . . . provided that the display area is enclosed" and subdivisions (e)(3) and (4) set forth standards for acceptable enclosures.

The trial court heard oral argument on the meaning of section 103.1208, with Shaw arguing that the section deals with structural changes requiring a special use permit and that an outdoor display is not a project requiring a permit. Reviewing this section de novo, we disagree with Shaw's interpretation.

Section 103.1208(a) clearly states that a special use permit is required for any of the projects described in subdivisions (b) through (m), which includes subdivision (e) addressing outdoor sales and displays. Thus, Shaw needed to obtain a special use permit before displaying any merchandise outdoors. Subdivisions (e)(1) and (2) further specify that flowers, plants, food products, handcrafted products and goods, artwork and pottery or other similar items may be displayed outdoors without screening walls or fences, but all other merchandise must be displayed in an enclosed area meeting certain requirements.

Shaw looks at the various parts of Division 12, including the definition of a project contained in section 103.1204, noting this section pertains to changing the structure of a building. Accordingly, it argues that the trial court's focus on section 103.1208(a) ignores the rule of law that courts must harmonize apparently conflicting provisions and harmony can only be achieved by reading the requirement for a special use permit as applying only where there is a structural change to a building. Shaw's argument, however, ignores the clear language of section 103.1208. Additionally, only sections relating to the same subject must be read together and harmonized. (Kotler v. Alma Lodge (1998) 63 Cal.App.4th 1381, 1394.)

Division 12 sets forth zoning requirements in La Jolla on a variety of disparate subjects including changes to the structure of a building ( 103.1204), parking ( 103.1207) and special use permits ( 103.1208). While the underlying purpose of all these requirements is to protect the "unique character of La Jolla" in accordance with "public health, safety, and general welfare" ( 103.1201), these various sections refer to different subjects. Significantly, Division 12 contains a section listing definitions, but the word "project" is not defined. ( 103.1203.) In contrast, section 103.1208(a) specifically indicates that anything in subdivisions (b) through (m) is a "project" requiring a special use permit. Notably, subdivisions (b) through (m) address a variety of different subjects, including: heritage structural preservation, cultural use, hotel and motel development, outdoor sales and displays, fast food restaurants, drive through facilities and above ground parking structures. Nothing within section 103.1208 indicates that the special use permit requirement applies only when the structure of a building is changed.

The Constitutionally of Section 103.1208

Shaw contends that section 103.1208 is unconstitutionally vague because it does not give an enforcement officer criteria to determine what is handcrafted. Code Compliance responds that we need not examine the constitutionality of the code or whether Shaw's merchandise qualified as handcrafted because Shaw lacks standing to attack the constitutionality of the code as it applies to permit holders. (E.W.A.P., Inc. v. City of Los Angeles (1997) 56 Cal.App.4th 310, 323 [party cannot attack ordinance on grounds not applicable to itself].) This argument assumes that Shaw lacks a special use permit; however, there was no evidence presented to the hearing officer on this issue.

Although we cannot determine from the record whether Shaw had a special use permit, counsel conceded at oral argument that the business did not have such a permit. While this concession technically moots Shaw's constitutional argument, we will review the argument on its merits as Shaw may apply for such a permit in the future.

"[I]n California, the most general zoning standards are usually deemed sufficient. 'The standard is sufficient if the administrative body is required to make its decision in accord with the general health, safety, and welfare standard.' [Citation.]" (People v. Gates (1974) 41 Cal.App.3d 590, 595.) Such vague standards are permitted because California courts are "'sensitive to the need of government in large urban areas to delegate broad discretionary power to administrative bodies if the community's zoning business is to be done without paralyzing the legislative process.' [Citation.]" (Ibid.) A statute or ordinance need only have "a reasonable degree of certainty" to survive a constitutional vagueness challenge and will not be held void for uncertainty "if any reasonable and practical construction can be given to its language." (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1107.) Only a reasonable degree of certainty is required and a somewhat imprecise term will not offend due process if the language sufficiently warns of the proscribed conduct when measured by common understanding and experience. (People v. Green (1991) 227 Cal.App.3d 692, 698-699, overruled on other grounds in People v. Castenada (2000) 23 Cal.4th 743.)

Here, the term "handcrafted" provides a sufficiency definite guideline s0 as to avoid arbitrary and discriminatory enforcement. To "handcraft" an item means to fashion it by "handicraft" or to make an item totally or chiefly by hand. (Webster's Third New Intern. Dict. (2002) p. 1027; see also p. 1026 "handmade" means "made by hand or a hand process esp. as distinguished from a machine or mechanical process.") Accordingly, there is no merit to Shaw's contention that section 13.1208 is unconstitutionally vague.

Sufficiency of the Evidence

Finally, Shaw contends that the hearing officer's decision and findings were not supported by the evidence, that Code Compliance offered no evidence as to whether the clothing Shaw displayed outdoors was handcrafted other than Inspector Cousins's subjective opinion and that Code Compliance failed to meet its burden of proof on this issue. We disagree.

As a threshold matter, there was substantial evidence to support the conclusion that Shaw displayed merchandise outdoors, including photographs, Inspector Cousins's testimony and written records from Code Compliance showing that Shaw was warned and cited for displaying merchandise outdoors. Accordingly, because Shaw did not have a special use permit, it violated section 103.1208 by displaying merchandise outdoors.

Even assuming Shaw did have a special use permit, there is substantial evidence to support the conclusion that it violated section 103.1208 by displaying merchandise outdoors that was not handcrafted. At the administrative hearing, Shaw argued that the Hawaiian shirts it displayed outdoors were handcrafted because the pockets were stitched onto the shirt so that the pattern on the pocket matched the pattern on the shirt. It admitted, however, that the shirts were stitched by a machine and were not labeled as being handmade. Standing alone, this evidence was sufficient to uphold the issuance of the citation. In any event, Inspector Cousins also testified that the shirts at issue were not handcrafted because they were sewn on a machine and the hearing officer had before it a photograph of the shirts hanging outside Shaw's store. Taken together, this evidence amply supported the issuance of the citation. Because substantial evidence supported the hearing officer's findings, the trial court properly denied Shaw's petition.

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

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