Thoughts While Shaving: May a Private Rental Owner Restrict Tenants and Guests Rights to Wear Gang Colors?

I recently gave a talk to a group of Fresno City Police Officers regarding the landlord’s right to control what goes on within the bounds of the owner’s property. The topic came up when someone asked about limiting who can come upon the landlord’s property. I commented that as long as the property is privately owned, the landlord has the right to keep out anyone not specifically invited on the property by a tenant. Even then the visitor could not loiter. I stated that the owner is not bound by the Fourteenth Amendment to the United States Constitution and therefore the owner could deny tenants the right to free speech, the right to keep fire arms and perhaps the landlord could even have the right to forbid smoking.

A police officer asked if a landlord could forbid the display of "gang colors." I was stumped. The reason for this article is that I recently read a case that suggests that a landlord could forbid the display gang colors on the apartment grounds. It is this case that I would like to discuss. The case I refer to is Hessians Motorcycle Club v. J. C. Flanagans (2001) 86 Cal App 4th 833 [January 29, 2001]. In this case two motorcycle clubs sued a sports bar after the bar refused to allow the motorcyle club members in unless they removed their patches (colors) signifying their club membership. The complainants asserted that their rights under the Unruh Civil Rights Act (Civ. Code,1 §§ 51, 52; the Unruh Act). The trial court found no violation and on appeal, the decision was upheld.

The analysis that the appellate court used to determine if forbidding the clubs "colors" was instructive to us all. Relying on Harris v. Capital Growth Investors XIV (1991) 52 Cal. 3d 1142, 1148, the court used a three step analysis to find that the policy of keeping out members showing club colors was legal. The first step was to determine whether or not the "a policy which limits access to public accommodations does not amount to prohibited discrimination so long as the policy ‘is applicable alike to all persons regardless of race, color, sex, religion, etc.’" The court found that the policy did apply to all persons and did not single out any member or other members of the public.

Secondly, the court questioned "whether the challenged policy ‘bears a reasonable relation to commercial objectives appropriate to an enterprise serving the public.’" In this case the court found that preventing violence in the bar was a legitimate business purpose.

"We decline to second guess Flanagans's business judgment in this matter. Given the magnitude of the losses that could result from a barroom brawl, we cannot find as a matter of law that the bar's policy of prohibiting colors is irrational. Nor can we say the bar's perception of the wearing of colors as provocative is unfounded. (Curiously, the Hessians ignore the possibility this policy may be the very reason the bar has not yet had a violent incident.) We thus conclude the challenged admission policy serves a legitimate business interest."

Lastly, the court considered the consequences of allowing the discrimination claim asserted by the Hessians.

"We believe allowing a discrimination claim of this nature would lead to endless, increasingly frivolous challenges to dress codes and other neutral admission policies common in many restaurants and retail establishments. The drafters of the Unruh Act would surely blanch at the thought of having its noble provisions applied to such policies, which involve none of the classifications enumerated in the Act, and certainly none of the pernicious effects of real discrimination."

Thus, after reading the Hessian case, I concluded that a landlord might have the right to also restrict patches, certain types of clothing or head wear that might reflect membership in a particular gangs.

The issue of how much control the landlord of a residential rentals has over his or her private property also comes into play in the area of constitutional matters. In a case that has been accepted for review by the California Supreme Court [it may not be cited for legal purposes], Golden Gateway Center v. Golden Gateway Tenants Association (1999) 73 Cal App 4th 908; the appellate court held that a retail / apartment complex in San Francisco could prohibits tenants from distributing unsolicited newsletters to apartments and that the tenants' association did not have either a contractual or a statutory right to leaflet in the apartment complex. California’s Constitution, article I, section 2, reads: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." The issue was whether the owners rights respecting the property was subject to article I, section 2.

The more basic issue that was assumed in the above case is that the federal constitutional rights of free speech are not binding on private individuals and private property unless they are acting in a governmental capacity. Thus, an individual may have certain constitutional rights but such rights are not exercisable on someone else’s property, except where the property is open to the public such as in a shopping center. Other California cases have limited such holdings such that specialty stores or single use office buildings do not have to allow soliciting for initiatives. Trader Joe’s Company v. Progressive Campaigns, Inc. (1999) 73 Cal App 4th 425; and Waremart, Inc. v. Progressive Campaigns, Inc. (2000) 85 Cal App 4th 679 (Waremart was a large warehouse-style supermarket chain operating out of a free standing building).

The question to be answered is whether the landlord’s rights in a private residential apartment complex that is not generally open to the public [it could even be a condominium project enclosed within a wall or fence] can deny tenants the right to bear arms, display flags or other statements of beliefs, political, religious or social outside of one’s own apartment or condominium. It would appear that the right of free speech can be limited on private property that is not generally open to the public. Allred v. Harris (1993) 14 Cal App 4th 1386. ("As a general rule, landowners and tenants have a right to exclude persons from trespassing on private property; the right to exclude persons is a fundamental aspect of private property ownership."). In this case, the court enjoined picketing on the grounds of an abortion clinic.

In the case of King v. Hofer (l996) 42 Cal App 4th 678, the court threw out a case filed against a delicatessen owner because the plaintiff was not allowed to smoke in the defendants restaurant, relying on the Unruh Act, (Civ. Code, § 51 et seq.) The court concluded that the Act did not provide protection to business patrons allegedly discriminated against for their status as nonsmokers. The court used the same three part analysis it used in the Hessian case mentioned above (motorcyle club "colors"). Thus, it might appear that landlords could limit or prohibit altogether prospective tenants who smoked. In some complexes with multiple stories or close quarters, it would be easy to justify the business purposes and the equal applicability to all.

The upshot of all of this discussion is that I concluded that a private landlord can tell the tenants and guests that "gang colors" are not allowed. I further conclude that subject to what the Supreme Court says in the Golden Gateway Center case, the owner can control what appears outside the tenants’ walls and what can be seen in the tenants’ windows.

The fact that the California Supreme Court has chosen to review the Golden Gateway Center case could signify a number of things but it is hard to guess at what the court might do. In the interim, I am looking forward to the Court’s decision to see if the private landlord can, indeed, continue to restrict the wearing of gang colors, limit picketing, limit the display of flags, signs or other statements of belief outside the walls of the apartments but on private property and finally, whether the owner can inquire as to whether the prospective tenant smokes and reject them for that reason. Stay tuned.

June, 2002:
Update to Article on Gang Colors / Free Speech on Private Property

In the article above, I set forth the proposition that owners of private rental property are not bound by the terms of the fourteenth amendment of the constitution and therefore the constitutional rights of free speech, rights to bear arms, etc., are not enforceable on private property except for exceptions noted. Unless there is a state law that would control constitutional rights of free speech or other rights also protected by the United States constitution, the private owner is not bound to grant to occupants / tenants on the owner's property free speech rights . At the end of the article I discussed a case that was pending before the California Supreme Court but which has now been decided: Golden Gateway Center v. Golden Gateway Tenants Association (2001) 26 Cal 4th 1013; 29 P3d 797, 111 Cal Rptr 2d 336,

The California Supreme Court held in a divided and fractured decision as follows: "In a groundbreaking decision over 20 years ago, we departed from the First Amendment jurisprudence of the United States Supreme Court and extended the reach of the free speech clause of the California Constitution to privately owned shopping centers. ( Robins v. Pruneyard Shopping Center (1979) 23 Cal. 3d 899, 910, 153 Cal. Rptr. 854, 592 P.2d 341 (Robins), affd. sub nom. Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74, 64 L. Ed. 2d 741, 100 S. Ct. 2035.) Since then, courts and commentators have struggled to construe Robins and determine the scope of protection provided by California's free speech clause. Today, we clarify Robins and consider whether a tenants association has the right to distribute its newsletter in a privately owned apartment complex under article I, section 2, subdivision (a) of the California Constitution. We conclude it does not."

In short, the California Supreme Court held that similar to the effect of the Fourteenth Amendment to the United States Constitution, the California Constitution forbidding the restriction of free speech rights to individuals did not extend to rights on private property but only applied to state action. Thus, the Court did determined that the tenant association did not have the unfettered right to distribute newsletters in a private apartment complex. The decision itself may not give much solace to private landlords because the justices who wrote concurring opinions were not unanimous in their holdings as to the full grounds for the decision. It may be that in a different time with different facts the decision might be altered.

- William H Leifer

William H. Leifer, Esq.
Gilmore Magness Leifer
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Phone: (559) 448-9800, ext. 108 • Fax: (559) 448-9899

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