Kamp, 090883 CAAGO, AGO 83-305

• Case Date: September 08, 1983
• Court: California

JOHN K. VAN DE KAMP Attorney General JOHN T. MURPHY Deputy Attorney General AGO 83-305 No. 83-305 California Attorney General Opinion Office of the Attorney General State of California September 8, 1983          THE HONORABLE PHILLIP ISENBERG, A MEMBER OF THE CALIFORNIA ASSEMBLY, has requested our opinion on the following question:          Does a California city have the legislative power to enact a penal ordinance which would prohibit a person from displaying on a television receiver, for the viewing by a minor, a "sex program" when such minor's parent is not present or such minor does not have a parent's written permission to view the program?          CONCLUSION          A California city does not have the legislative power to enact a penal ordinance which would prohibit a person from displaying on a television receiver, for the viewing by a minor, a "sex program" when such minor's parent is not present or such minor does not have a parent's written permission to view the program.          ANALYSIS          A proposal was made to a city council that it prohibit by penal ordinance the display of a "sex program" on a television receiver1 to a minor whose parent was not present or had not authorized such viewing in writing. A "sex program" would be defined in terms of displaying specified unclothed parts of the human anatomy or specified sexual conduct. Those owning or controlling the television receiver would be responsible for what was displayed to minors thereon. The obvious purpose of the proposal is to punish persons who permit minors to view without parental approval television programs consisting of explicit nudity or sexual conduct. We are asked whether a California city has the legislative power to enact such an ordinance. We conclude that it does not.          THE ORDINANCE CONFLICTS WITH GENERAL LAW.          Article XI, section 7, of the California Constitution states:

"A county or city may make and enforce within its limits all local, police, sanitary, or other ordinances and regulations not in conflict with general law." (See also Gov. Code, § 37100.)

         Since a city ordinance enacted under this power would be void if it conflicts with general state laws, we must examine the possible conflicts. A conflict may occur (1) if an ordinance duplicates state law, or (2) if an ordinance contradicts state law by prohibiting what state law allows or allowing what state law prohibits. (Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 807-808; In re Lane (1962) 58 Cal.2d 99, 106; Abbott v. City of Los Angeles (1960) 53 Cal.2d 674, 681-682; Doe v. City and County of San Francisco (1982) 136 Cal.App.3d 509, 517-518.) A conflict may also arise where state law has preempted the particular field of law by express declaration or by implication. (Lancaster v. Municipal Court, supra, 6 Cal.3d at 808; Doe v. City and County of San Francisco, supra, 136 Cal.App.3d at 517-518.)          Since the proposal would forbid the display of "sex programs" to children without parental presence or prior written permission, we are immediately alerted to the state laws prohibiting the dissemination of "harmful matters" to minors. (Pen. Code, §§ 313-313.4.) Penal Code section 313.1, subdivision (a), provides as follows:

"Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit any harmful matter to the minor is guilty of a misdemeanor."

         "Harmful matter" is defined in Penal Code section 313:

"(a) 'Harmful matter' means matter, taken as a whole, the predominant appeal of which to the average person, applying contemporary standards, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, and is patently offensive to the prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and is utterly without redeeming social importance for minors. "(1) When it appears from the nature of the matter or the circumstances of its dissemination, distribution or exhibition that it is designed for clearly defined deviant sexual groups, the predominant appeal of the matter shall be judged with reference to its intended recipient group. "(2) In prosecutions under this chapter, where circumstances of production, presentation, sale, dissemination, distribution, or publicity indicate that matter is being commercially exploited by the

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