Solander v. Municipal Court

Opinion

EVANS, J.

The People, real party in interest, appeal from a judgment of the Sacramento Superior Court granting a writ prohibiting further

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prosecution in the municipal court of a criminal complaint framed in two counts. The first count alleges a violation of section 17.7 of the Sacramento City Code, and the second count a violation of section 28546 of the Health and Safety Code. Both provisions relate to restaurant sanitation. The trial court found both provisions unconstitutionally vague, thus violative of due process and, so finding, awarded costs to plaintiff.

On appeal, the People defend the constitutionality of the statutes in question and challenge the award of costs to plaintiff.

Facts

Since 1936, plaintiff Oli Solander has operated a small restaurant business in the City of Sacramento, selling food, milk shakes, beer and other beverages. His place of business is divided into three distinct areas: soda fountain, beer bar and kitchen. Hot and cold running water under pressure is piped to dish washing sinks in the fountain and in the kitchen but not to the sink in the beer bar.

In October 1971, the Sacramento County Health Department demanded that plaintiff install hot running water under pressure to the beer bar sink. He failed to do so, and in July 1972, the district attorney filed a misdemeanor complaint, charging him with a violation of section 17.7 of the Sacramento City Code in that he failed “to make accessible hot and cold running water under pressure to all rooms in which food and beverages are prepared and utensils washed.” The second count of the complaint charged plaintiff with a violation of section 28546 of the Health and Safety Code, more particularly in that he “failed to provide hot and cold running water under pressure to all areas in which food is prepared and utensils are washed.”

Plaintiff entered not guilty pleas to both counts. He moved the municipal court to dismiss the complaint on the ground, inter alia, that the charged statutes are unconstitutionally vague. The motion was denied, and trial by jury was scheduled for December 26, 1972. On December 15, 1972, the instant application for prohibitory relief was filed.