Tellis v. Municipal Court for Central Judicial District of Marin County

Opinion

DRAPER, P. J.

Appellants were charged in municipal court with violation of a Marin County ordinance requiring an occupancy permit for residential use of a moored vessel. Asserting the ordinance to be unconstitutional upon its face, plaintiffs applied to the superior court for writ of prohibition to bar further proceedings in the misdemeanor prosecution. Order to show cause issued, the matter was submitted upon written memoranda, and the petition was denied. Plaintiffs appeal.

The ordinance is an exercise of the police power, designed to insure public safety, in part by requiring sanitary methods of sewage disposal from moored vessels used as living quarters. Thus it is within county power (Cal. Const., art. XI, § 11).

Appellants argue, however, that the ordinance in some way requires them to waive Fourth Amendment rights in order to secure the occu

[458]

pancy permit for which they have not applied. We do not so read the ordinance. One section (11.20230(F)) does authorize the health officer to inspect “when he has reasonable cause to believe that the vessel is occupied in violation” of the ordinance. There is no attempt to authorize entry by the health officer without a warrant. Such a provision would be unconstitutional

(Camara

v.

Municipal Court of San Francisco,

387 U.S. 523 [18 L.Ed.2d 930, 87 S.Ct. 1727]). The ordinance is in fact subject to the overriding mandate of 1968 amendments to state law (Code Civ. Proc., §§ 1822.50-1822.57) which permit inspection by a health officer only upon issuance of a warrant which fully meets the requirements of

Camara.

Appellants also argue that the federal Constitution reserves to the United States sole jurisdiction to regulate such vessels. But it is not contended that these moored houseboats are engaged in interstate or foreign commerce. The federal jurisdiction over admiralty and maritime matters does not proscribe reasonable local health regulations