American Paint Co. v. McCune

DORAN, J. This is an appeal from a judgment of dismissal following the court’s action in sustaining defendants’ demurrer without leave to amend.

The complaint alleges that plaintiff corporation has owned, maintained and operated a retail paint store in the city of Los Angeles as an incident to the business in which such plaintiff is engaged. The store is located on Santa Monica Boulevard in a two story frame building, the upper floor of which is an apartment or rooming house. Two other stores in the same building operate as a cocktail bar and retail liquor store respectively.

It is further alleged that “Defendants claim and assert the power, by virtue of Section 17704 of the Health and Safety Code of the State of California, to compel plaintiff to cease carrying on said business and paint store at and in the place where it is located, as above set forth, and have threatened and now threaten to compel plaintiffs to cease carrying on said business and paint store by whatever legal action is provided by law in such cases against plaintiffs, unless said plaintiffs immediately cease carrying on said business and paint store at said location at and in the building where it is located, as above set forth, and will enforce said threats unless restrained and enjoined from so doing by this court.” Section 17704 of the Health and Safety Code of the State of Cali[585]fornia is as follows: “No portion of any apartment house or hotel shall be used as a paint shop, paint store, a gasoline or oil service station or store, or a vulcanizing shop.”

It is also alleged that the business of selling paint and conducting a paint store is “useful, innocent and harmless,in every way, and that plaintiff’s said business and paint store, as it always has been and now is carried on and conducted at said address, is useful, innocent and harmless and in no manner dangerous to person or property. ’ ’ Then follows .the allegation that said section 17704 violates article I, sections 13 and 21, and article IV, section 25, of the Constitution of California, in the manner therein particularly set forth. The complaint is extensive and comprehensive in .this regard.

• It is contended on appeal that the act in question is special and discriminatory; that as applied to paint stores it is unreasonable and arbitrary and- not based upon any natural, inherent or intrinsic distinction; that it is in violation of the Fourteenth Amendment to the Constitution of the United States and the due process clause as well.