United States District Court, N.D. California
December 16, 2005.
PATRICIA A. YOUNG, Plaintiff,
COUNTY OF SAN MATEO, Defendant.
The opinion of the court was delivered by: CHARLES BREYER, District Judge
MEMORANDUM AND ORDER
In this section 1983 action plaintiff challenges San Mateo's
adoption of an ordinance regulating bed and breakfast
establishments. The Court previously dismissed some of the
claims, but denied defendant's motion to dismiss as to others.
Now pending before the Court is defendant's motion for summary
judgment on the remaining claims.
In 1999, plaintiff purchased residential property at 1201 West
Selby Lane, Redwood City, California ("the property"), located
outside the Coastal Zone in the unincorporated section of
defendant San Mateo County ("defendant"). The property is in an
area designated as "R-1" (residential single-family homes) under
local zoning ordinances. On or about August 24, 2000, plaintiff
applied for a building permit for construction of a bed and
breakfast. In so doing, plaintiff claims to have relied on
defendant's pamphlets and ordinances which stated that for
locations outside the Coastal Zone, no use permit or license is required to construct a bed and breakfast, and that so long as
an R-1 single family home retains the appearance of a single
family dwelling and satisfies parking requirements, an owner may
rent five or fewer rooms short term in their own home and provide
meals for guests.
From March 7, 2002, to November 5, 2002, plaintiff was issued
her demolition, building, and sewer permits.
On December 11, 2003, plaintiff was asked to appear at a San
Mateo County Planning Department meeting to discuss neighbor
concerns about plaintiff's bed and breakfast, which was expected
to open within two to four weeks. At the meeting, defendant
presented plaintiff with a proposed "Urgency Interim Ordinance"
that in application modified the existing zoning laws and
impacted only plaintiff's property. Defendant's findings in
relation to the ordinance declared that as a result of analysis
of 1201 West Selby Lane, the potential threat to neighborhood
character by bed and breakfasts warranted modification of county
On December 16, 2003, the San Mateo County Board of Supervisors
voted to adopt the Urgency Interim Ordinance, which in effect
placed additional restrictions on plaintiff's ability to operate
her bed and breakfast. The Ordinance's "Findings and
Declarations" note that Section 6400 of the San Mateo County
Zoning Regulations authorizes certain specified "accessory uses"
in a residential district, and in 1989 the San Mateo County
Planning Director adopted a policy that recognized that a bed and
breakfast operation of five or fewer rooms was an authorized
accessory use. Ordinance No. 4200 at 1. The Findings further note
that plaintiff was advertising her proposed bed and breakfast as
serving the "business and leisure traveler," and as indicating
the availability of a "conference room," and the ability to host
"small meetings" and "seminars." Id. at 2. The Ordinance
recites that this advertising concerned the Board that the
operation of plaintiff's bed and breakfast would not be
consistent with the residential character of the neighborhood.
In light of these findings, the Ordinance provides that the
"providing of table board in a dwelling in which any room is
rented at any time for a period of less than 30 consecutive days (commonly known as a bed and breakfast inn)" is a permitted
incidental use of a dwelling in a residential area, provided the
bed and breakfast complies with certain restrictions. For
example, "[t]he maximum number of registered guests . . . on any
given evening shall not exceed 1.5 times the number of guest
rooms . . ." and the "maximum number of guest motor vehicles
parked on site . . . shall be limited to the number of off street
or driveway parking spaces provided." The Ordinance also
There shall be no hosting of meetings, conferences or
social events, whether on a commercial or
non-commercial basis, involving on-site participants
who are not registered guests. . . . Similar events
for registered guests shall be conducted indoors only
between the hours of 8:00 a.m. and 6:00 p.m. Monday
A December 2003 memorandum to the Board of Supervisors from the
San Mateo County Director of Environmental Services explains that
the purpose of the "meetings and conferences" restriction is to
"limit activities that go beyond the traditional purpose of bed
and breakfast inns: overnight accommodations."
On December 23, 2003, plaintiff filed this Section 1983 action
making eight claims challenging the adoption of the Ordinance on
First Amendment and substantive due process grounds.
The next month the Board of Supervisors adopted a new ordinance
to supercede the emergency ordinance. The new ordinance includes
the same restrictions with a few exceptions. Notably, the
restriction on meetings, conferences or social events expressly
does not apply to persons who reside at the bed and breakfast as
their residence: "These limitations do not apply to personal
social events or meetings engaged in by person occupying the
dwelling as a single family residence." Ordinance No. 4204 at 5.
Plaintiff subsequently amended her complaint. Her First Amended
Complaint included a claim for relief alleging that the
restriction on the hosting of meetings, conferences or social
events was "void for vagueness," as well as a claim for equitable
estoppel and declaratory relief, among other claims.
Defendants moved to dismiss the First Amended Complaint. By
Memorandum and Order dated July 19, 2004, the Court granted
defendants' motion in part. Thereafter the County passed a new ordinance which prohibits the operation of
new bed and breakfasts in non-coastal residential areas of San
Mateo County, but exempted existing bed and breakfasts, that is,
plaintiff's bed and breakfast. Ordinance No. 4225. Plaintiff's
bed and breakfast, however, is still subject to Ordinance No.
4204, including the "meetings and conferences" prohibitions.
Plaintiff subsequently filed a Second Amended Complaint
("SAC"). The SAC makes two substantive claims: (1) a facial First
Amendment challenge on the ground that the restriction on the
hosting of meetings, conferences, and social events is inherently
vague, and (2) a claim that defendant is barred by equitable
estoppel from enforcing the bed and breakfast restrictions
against her. Defendant moves for summary judgment on the
remaining claims. Plaintiff cross-moves for summary judgment on
the First Amendment claim.
Summary Judgment Standard
A principle purpose of the summary judgment procedure is to
isolate and dispose of factually unsupported claims. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). A party
moving for summary judgment that does not have the ultimate
burden of persuasion at trial (usually the defendant) has the
initial burden of producing evidence negating an essential
element of the non-moving party's claims or showing that the
non-moving party does not have enough evidence of an essential
element to carry its ultimate burden of persuasion at trial.
See Nissan Fire & Marine Ins. Co. v. Fritz Cos.,
210 F.3d 1099, 1102 (9th Cir. 2000). Where the party moving for summary
judgment would bear the burden of proof at trial (usually the
plaintiff), it has the initial burden of producing evidence which
would entitle it to a directed verdict if the evidence went
uncontroverted at trial. See C.A.R. Transp. Brokerage Co.,
Inc. v. Darden, 213 F.3d 474, 480 (9th Cir. 2000).
If the moving party does not satisfy its initial burden, the
non-moving party has no obligation to produce anything and
summary judgment must be denied. If, on the other hand, the
moving party has satisfied its initial burden of production, then
the non-moving party may not rest upon mere allegations or
denials of the adverse party's evidence, but instead must produce
admissible evidence that shows there is a genuine issue of
material fact for trial. Nissan Fire & Marine Ins. Co., 210 F.3d at 1102. A genuine
issue of fact is one that could reasonably be resolved in favor
of either party. A dispute is "material" only if it could affect
the outcome of the suit under the governing law. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
A. First Amendment Claim
Plaintiff contends that the Ordinance's restrictions on the
hosting of "meetings, conferences, and social events" involving
participants who are not registered guests of the bed and
breakfast, and the time limitation on such events for registered
guests, violate her First Amendment rights as well as those of
her guests. The parties cross-move for summary judgment on this
facial "void for vagueness" claim.
"An ordinance is unconstitutionally vague if it fails to
provide people of ordinary intelligence a reasonable opportunity
to understand what conduct it prohibits or if it authorizes or
even encourages arbitrary and discriminatory enforcement."
Gospel Missions of America, 419 F.3d 1042, 1047 (9th Cir. 2005)
(internal quotation marks and citation omitted); see also
Nunez v. San Diego, 114 F.3d 935, 940 (9th Cir. 1997) ("To
avoid unconstitutional vagueness, an ordinance must (1) define
the offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited; and (2) establish
standards to permit police to enforce the law in a non-arbitrary,
non-discriminatory manner"). "The need for definiteness is
greater when the ordinance imposes criminal penalties on
individual behavior or implicates constitutionally protected
rights than when it regulates the economic behavior of business."
Nunez, 114 F.3d at 940. This greater need for definiteness is
present in this case because a violation of the Ordinance can
result in criminal sanctions, namely, three months incarceration
and/or a $300 per day fine. "However, perfect clarity and precise
guidance have never been required even of regulations that
restrict expressive activity. As a result, uncertainty at a
statute's margins will not warrant facial invalidation if its is
clear what the statute proscribes in the vast majority of its
intended applications." Gospel Missions of America,
419 F.3d at 1047 (internal quotation marks and citation omitted). As the Ninth Circuit has cautioned, "[f]acial
invalidation is, manifestly, strong medicine that has been
employed by the Court sparingly and only as a last resort." Cal
Teachers Ass'n v. State Bd. of Educ., 271 F.3d 1141, 1155 (9th
Cir. 2001) (internal quotation marks and citation omitted).
The Court previously denied defendant's motion to dismiss the
First Amendment claim. Defendant argued that the Ordinance is not
vague because any reasonable person would understand what is
prohibited by the statute. It based its argument solely on the
dictionary definitions of the terms challenged by plaintiff;
namely, "meetings," "conferences," and "social events." The Court
denied defendant's motion to dismiss, reasoning that the
dictionary definitions proffered by defendant are as vague as the
terms used in the Ordinance. The Court explained:
For example, the Ordinance prohibits hosting any
meetings, conferences or social events involving
registered guests on Sundays. The Ordinance is vague
as to whether it therefore prohibits the bed and
breakfast from serving breakfast in the dining room,
an event which might qualify as a "social event" or
"meeting." As another example, the Ordinance also
prohibits any outdoor meetings, conferences or
social events. Again, the Ordinance is vague as to
whether it would therefore prevent the establishment
from serving wine and cheese outside in the
July 19, 2004 Memorandum and Order at 6. Accordingly, defendant
had not met its burden of proving that plaintiff's claim failed
as a matter of law.
On its summary judgment motion defendant does not rely on
dictionary definitions; instead, it makes a different argument.
It contends that the terms "meetings," "conferences" and "social
events" as used in the Ordinance are sufficiently clear when
viewed in the context of the entire regulatory scheme, including
the legislative purpose behind the Ordinance. See Gospel
Missions of America, 419 F.3d at 1048 (holding that other
provisions of an ordinance may provide guidance on terms that
appear vague); City of Los Altos v. Barnes, 3 Cal.App.4th 1193,
1202 (1992) (holding that in interpreting zoning ordinances,
courts should refer to, among other things, legislative history
In Tobe v. City of Santa Ana, 9 Cal.4th 1069 (1995), for
example, the plaintiffs challenged an ordinance which prohibited
camping and storage of personal property in public places. The plaintiffs claimed that the terms "camp," "camp
paraphernalia," and "store" in the ordinance were
unconstitutionally vague. Id. at 1106. The appellate court
agreed and the California Supreme Court reversed. It concluded
that the court of appeal had erred because it had "isolated
particular terms rather than considering them in context." Id.
The Court concluded that the terms at issue are not
unconstitutionally vague "when the purpose clause of the
ordinance is considered and the terms are read in that context as
they should be." Id.
The same reasoning applies here. First, in order to put this
discussion in context, the Court notes that since the ruling on
the motion to dismiss, defendant has adopted Ordinance No. 4225
prohibiting all new bed and breakfasts in residential/non-coastal
areas of San Mateo County; thus, the provisions plaintiff
challenges apply only to plaintiff's bed and breakfast.
The Ordinance does not violate plaintiff's First Amendment
rights when the restriction on meetings, conferences and social
events is considered in light of the history and purpose of the
statute. The purpose of the statute is to prohibit the bed and
breakfast from hosting conferences, meetings and social events
that include persons that are not guests of the inn; in other
words, it is to limit the bed and breakfast to providing room and
table board, the traditional services of a bed and breakfast. The
Ordinance expressly states that these restrictions do not apply
to the persons who reside at the bed and breakfast as their
residence. There is nothing vague about this exception: if
plaintiff lives at the bed and breakfast she can host and
participate in events at her home just as anyone else in the
neighborhood can do.
Plaintiff contends that she is precluded from inviting her
family to her bed and breakfast. The Court does not understand
how plaintiff reads such a restriction into the Ordinance. The
Ordinance says that its meetings/conferences/social events
restriction does not apply to persons who occupy the bed and
breakfast as their residence. As one cannot engage in a "meeting"
or "social event" by oneself, the Ordinance must mean that
plaintiff can host personal parties and family events. Common
sense dictates that no public official would read this Ordinance
as prohibiting plaintiff from hosting her family at Christmas. The Ordinance also does not violate the First Amendment rights
of plaintiff's guests. The Court agrees with defendant that when
the Ordinance is considered it context, it is not
unconstitutionally vague as to whether it would prohibit
registered guests from gathering for breakfast on Sunday, or from
being served wine and cheese in the back yard. Such events are
part of the traditional services of a bed and breakfast.
Moreover, defendant states in its papers that such events are
allowed. As the Ordinance applies only to plaintiff, she cannot
now claim to not know whether such events are permitted.
Plaintiff does not identify any situations (other than those
identified by the Court in its ruling on the motion to dismiss
and addressed in the paragraph above) in which there is possible
vagueness as to what plaintiff's registered guests may do. In any
event, "speculation about possible vagueness in hypothetical
situations not before [the Court] will not support a facial
attack on a statute when it is surely valid in the vast majority
of its intended applications." Hill v. Colorado, 530 U.S. 703,
733 (2000) (internal quotation marks and citation omitted).
Plaintiff's primary argument is that the Ordinance does not
specifically define the terms "social events," "conferences," and
"meetings." The law does not require a municipal ordinance to
include definitions. The question is whether those terms, as used
in Ordinance 4202, are sufficiently clear that a person of
ordinary intelligence would know what is prohibited.
The meaning of the Ordinance is sufficiently clear. Plaintiff
may not rent out her bed and breakfast for weddings, parties,
meetings, or conferences if those events will involve
participants who are not registered guests of the inn. She may
host weddings, conferences, meetings, and similar social events
that are limited to registered guests, but such events must occur
indoors and must be limited to certain times. There are no
restrictions on plaintiff's ability to provide traditional bed
and breakfast services, such as providing meals to registered
guests. And there are no restrictions on plaintiff's ability to
use her home for personal social events the same as any other
homeowner in her neighborhood may do. Accordingly, the Court must grant defendant summary judgment on
plaintiff's First Amendment claim and her claim for declaratory
relief (which seeks a judgment that the Ordinance violates the
First Amendment), and deny plaintiff's cross-motion for summary
Plaintiff does not contend that defendant cannot
constitutionally limit her ability to host meetings, conferences
or social events involving non-registered guests; nor does she
contend that it cannot limit the time, place and manner in which
she hosts such events for registered guests. She also does not
argue that her First Amendment claim turns on genuine disputes of
fact. Rather, her constitutional challenge is limited to whether
one provision of Ordinance 4204, namely, the restriction on the
hosting of meetings, conferences, and social events, is subject
to a facial First Amendment challenge because it is too vague.
There is a "strong presumption that legislative enactments
`must be upheld unless their unconstitutionality clearly,
positively, and unmistakably appears." Walker v. Superior
Court, 47 Cal.3d 112,143 (1988) (internal quotation marks and
citation omitted). As plaintiff has not demonstrated that the
Ordinance is "clearly, positively, and unmistakenly"
unconstitutional, defendant's motion for summary judgment on the
First Amendment claims must be granted.
In the interests of comity, the Court dismisses the remaining
state law equitable estoppel claim without prejudice to plaintiff
pursuing the claim in the state courts.
IT IS SO ORDERED.
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