Filed 2/14/19
                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SIXTH APPELLATE DISTRICT

 HERIBERTO PEREZ et al.,                           H044364
                                                  (Monterey County
          Plaintiffs and Appellants,               Super. Ct. No. M131362)

          v.

 COUNTY OF MONTEREY et al.,

          Defendants and Respondents.


        Plaintiffs Heriberto Perez and Miguel Angel Reyes Robles appeal a defense
judgment in their action for declaratory relief against the County of Monterey. Plaintiffs
sought to invalidate as unconstitutional a county ordinance limiting the number of
roosters that can be kept on a property without a permit. We agree with the trial court
that the ordinance does not violate the Constitution and will therefore affirm the
judgment.
        The challenged ordinance provides that no one may keep more than four roosters
on a single property without a rooster keeping operation permit. (Monterey County
Ordinance No. 5249 added Chapter 8.50 to Title 8 of the Monterey County Code;
unspecified citations are to this code.) A permit can be obtained by application to the
county Animal Control Officer. (§ 8.50.040(A).) The application must include a plan
describing the “method and frequency of manure and other solid waste removal,” and
“such other information that the Animal Control Officer may deem necessary to decide
on the issuance of the permit.” (§ 8.50.040(C)(3)-(4).) A permit cannot be issued to
anyone who has a criminal conviction for illegal cockfighting or other crime of animal
cruelty. (§ 8.50.060(F)(1).) And permitted rooster keeping operations must comply with
certain minimum standards, such as maintaining structurally sound pens that protect
roosters from cold and are properly cleaned and ventilated. (§§ 8.50.080(B),
8.50.090(C)(1)(a)-(b).) The ordinance includes four exemptions from the permit
requirement: for poultry operations (defined as raising more than 200 fowl for the
primary purpose of producing eggs or meat for sale); poultry hobbyists (a member of a
recognized organization that promotes the breeding of poultry for show or sale); minors
who keep roosters for an educational purpose; and minors who keep roosters for a Future
Farmers of America project or 4-H project. (§§ 8.04.010, 8.50.110.)
       Plaintiffs sued to challenge the validity of the rooster keeping ordinance, seeking a
declaratory judgment that the law is unconstitutional. The complaint also alleged causes
of action for damages based on civil rights violations, but plaintiffs agreed to limit the
scope of their suit to the issue of whether the ordinance is valid on its face. Accordingly,
no evidence was introduced at trial other than the text of the ordinance and some related
legislative documents. The trial court found that the ordinance does not violate the
constitution and entered judgment for the County.
       STANDARD OF REVIEW
       “A facial challenge to the constitutional validity of a statute or ordinance considers
only the text of the measure itself, not its application to the particular circumstances of an
individual.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.) To succeed on a
facial challenge, a plaintiff must show that the law in question could never be applied in a
constitutional manner; it is not enough to show that the law would be unconstitutional
under some circumstances. (Ibid.) We use our independent judgment to decide whether
the challenged law is constitutional. (Vergara v. State of California (2016)
246 Cal.App.4th 619, 628.)
       CONSTITUTIONAL CHALLENGES
       Plaintiffs challenge the ordinance on a variety of constitutional grounds. They
argue it (1) takes property without compensation in violation of the Fifth Amendment to
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the United States Constitution; (2) infringes on Congress’ authority to regulate interstate
commerce; (3) violates the Equal Protection clause of the Fourteenth Amendment to the
United States Constitution; (4) is a prohibited bill of attainder; and (5) violates the rights
to privacy and to possess property guaranteed by the California Constitution. As we will
explain, the arguments lack merit.

         1. Fifth Amendment Taking
       The Fifth Amendment prohibits the government from taking private property for
public use without paying the owner fair compensation. (Palazzolo v. Rhode Island
(2001) 533 U.S. 606, 617.) That prohibition applies to both real and personal property.
(Horne v. Dep’t. of Agriculture (2015) ___ U.S. ___ , 135 S.Ct. 2419, 2426 (Horne).)
And it applies not only to a “taking” as that term is commonly understood––a direct
appropriation of property––but also to situations where a government regulation goes so
far as to deprive the owner of all economically beneficial or productive use of the
property. (Id. at p. 2427.)
       Plaintiffs allege in their complaint that the rooster keeping ordinance is a
regulatory taking, one that deprives them of all beneficial use of their property. The
complaint expressly frames the taking claim as an “as applied” challenge: it alleges that
the way the ordinance applies to plaintiffs’ property results in a regulatory taking in
violation of the Fifth Amendment. When plaintiffs agreed to limit the scope of the issues
tried to solely whether the ordinance is valid on its face (and accordingly did not present
evidence of how the ordinance affected them) it was fatal to their regulatory taking
challenge. That is because a regulatory taking claim––in contrast to a physical
occupation or direct appropriation of property––requires evidence of how the regulation
affects the property in question. As the Supreme Court has instructed, determining
whether a statute constitutes a regulatory taking requires “an ‘ad hoc’ factual inquiry,”
necessitating the consideration of “factors such as the economic impact of the regulation,


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its interference with reasonable investment-backed expectations, and the character of the
government action.” (Horne, supra, ___ U.S. ___ , 135 S.Ct. 2419, 2427.) But when a
statute is challenged on its face, we consider only the text of the statute itself and not any
other evidence. (And the record here contains no evidence for us to consider, since
plaintiffs pursued only the facial challenge in the trial court.) As there is no evidence on
which to evaluate the economic impact of the regulation or the level of its interference
with reasonable investment-backed expectations, plaintiffs’ regulatory taking claim
necessarily fails.
       There is also no evidence regarding whether either plaintiff is eligible for a rooster
keeping permit, has been granted or denied one, or has even applied for one. The extent
to which the ordinance affects plaintiffs depends on whether they have a rooster keeping
permit. Without evidence on that point, we are further unable to determine whether a
regulatory taking has occurred. (See Williamson County Regional Planning Comm’n v.
Hamilton Bank of Johnson City (1985) 473 U.S. 172, 191 [the relevant considerations
“simply cannot be evaluated until the administrative agency has arrived at a final,
definitive position regarding how it will apply the regulations at issue to the particular
land in question.”].)

         2. Interstate Commerce
       The Commerce Clause gives Congress the power to regulate commerce between
the States. (U.S. Const., art. I, § 8, cl. 3.) “ ‘This affirmative grant of authority to
Congress also encompasses an implicit or ”dormant” limitation on the authority of the
States to enact legislation affecting interstate commerce.’ ” (Ferguson v. Friendfinders,
Inc. (2002) 94 Cal.App.4th 1255, 1261.) A local regulation violates the Commerce
Clause if it either discriminates against interstate commerce or “imposes a burden on
interstate commerce that is ‘clearly excessive in relation to the putative local benefits.’ ”
(C & A Carbone, Inc. v. Clarkstown (1994) 511 U.S. 383, 390.) A regulation that


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discriminates against interstate commerce is per se invalid, unless there are no other
means to achieve a legitimate local interest. A non-discriminatory regulation, on the
other hand, requires a balancing test––a regulation that serves an important local interest
will be upheld unless the benefits of the regulation are clearly outweighed by the burden
imposed on interstate commerce. (Id. at pp. 390–392.)
       Plaintiffs assert the rooster keeping ordinance imposes a burden on interstate
commerce. The burden, as they describe it, is that, “The ordinance forces rooster owners
to immediately divest themselves [] of all but four of their roosters … . A major portion
of the roosters[] sold will likely be interstate commerce.” To begin with, plaintiffs do not
accurately characterize what the ordinance requires––it does not force all rooster owners
to “immediately divest” themselves of all but four roosters; it merely requires a permit to
keep more than four roosters on a single property. Plaintiffs have provided no evidence
to support their assertion that the ordinance will result in roosters being sold, nor have
they provided evidence of how that would affect interstate commerce. Plaintiffs
therefore are unable to show that the burden imposed on interstate commerce outweighs
the benefits of the regulation, and their Commerce Clause challenge fails.

         3. Equal Protection
       “The Equal Protection Clause of the Fourteenth Amendment commands that no
State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’
which is essentially a direction that all persons similarly situated should be treated alike.”
(Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 439.) Plaintiffs contend
the ordinance violates the equal protection clause because it treats minors more favorably
than adults, in that there are two exceptions to the permit requirement which apply only
to minors: minors keeping roosters for an educational purpose, and minors keeping
roosters for a Future Farmers of America or 4-H project. But “age is not a suspect
classification under the Equal Protection Clause,” so laws “may discriminate on the basis


                                              5
of age without offending the Fourteenth Amendment if the age classification in question
is rationally related to a legitimate state interest.” (Kimel v. Florida Bd. of Regents
(2000) 528 U.S. 62, 83.) A law that discriminates on the basis of age is reviewed for a
rational basis and will not be overturned unless the differential treatment “ ‘is so
unrelated to the achievement of any combination of legitimate purposes that we can only
conclude that the [government’s] actions were irrational.’ ” (Id. at p. 84.)
       In pressing their equal protection challenge, plaintiffs correctly observe that the
ordinance treats people differently based on age. But they do not articulate how the
differential treatment completely fails to advance a legitimate government purpose. The
ordinance includes a statement of “findings and purpose” (§ 8.50.010), explaining that
the County “desires to allow the keeping of roosters in a manner that addresses the
treatment of roosters and environmental and health and safety impacts of keeping
roosters, while discouraging the raising of roosters for illegal purposes[,]” and
“recognizes that students legitimately raise roosters for 4-H, Future Farmers of America,
and other educational projects[.]” (§ 8.50.010(F)-(G).) The ordinance therefore “serves
the public health, safety and welfare by establishing a comprehensive approach to the
keeping of five or more roosters that balances promotion of agriculture and agricultural
education with prevention of operations that are unsanitary, inhumane, environmentally
damaging, and potentially conducive of illegal conduct.” (§ 8.050.010(J).) In our view,
the County’s stated objectives are legitimate and the exceptions for minors correspond
rationally to achieving those ends. We therefore reject plaintiffs’ equal protection
challenge.

         4. Bill of Attainder
       Bills of attainder are prohibited by the United States Constitution. (U.S. Const.,
art. I, § 10.) A bill of attainder is an ancient practice once engaged in by the Parliament
of England to punish without trial “ ‘specifically designated persons or groups.’ ”


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(Selective Service v. Minnesota Public Interest Research Group (1984) 468 U.S. 841,
847.) “Historically, bills of attainder generally named the persons to be punished.
However, ‘[t]he singling out of an individual for legislatively prescribed punishment
constitutes an attainder whether the individual is called by name or described in terms of
conduct which, because it is past conduct, operates only as a designation of particular
persons.’ ” (Ibid.) Of course, “[h]owever expansive the prohibition against bills of
attainder, it surely was not intended to serve as a variant of the equal protection doctrine,
invalidating every Act of Congress or the States that legislatively burdens some persons
or groups but not all other plausible individuals.” (Nixon v. Administrator of General
Services (1977) 433 U.S. 425, 471.)
       That the ordinance in question does not burden all people (only those who want to
keep more than four roosters on a property) does not make it a bill of attainder. The
ordinance prospectively regulates the keeping of roosters. It does not single out a person
or group for punishment based on conduct predating its enactment. It is therefore not a
bill of attainder.

         5. Rights to Privacy and to Possess Property
       Article I, section 1 of the California Constitution states: “All people are by nature
free and independent and have inalienable rights. Among these are enjoying and
defending life and liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy.” Plaintiffs contend the ordinance violates
both the right to privacy and to possess property. Regarding the right to privacy, we note
it is not absolute. (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 961.) “ ‘The
diverse and somewhat amorphous character of the privacy right necessarily requires that
privacy interests be specifically identified and carefully compared with competing or
countervailing privacy and nonprivacy interests in a “balancing test.” … Invasion of a
privacy interest is not a violation of the state constitutional right to privacy if the invasion


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is justified by a competing interest.’ ” (Ibid.) Plaintiffs make no effort to identify a
specific privacy interest implicated by the ordinance, much less explain why any
purported invasion of privacy is not outweighed by the County’s competing interest in
establishing humane and sanitary standards for the keeping of roosters. We perceive no
violation of the constitutional right to privacy.
       Regarding the right to possess property, while property ownership rights are
indeed constitutionally guaranteed, they “must be subordinated to the rights of society.”
(People v. Byers (1979) 90 Cal.App.3d 140, 147.) “It is now a fundamental axiom in the
law that one may not do with his property as he pleases; his use is subject to reasonable
restraints to avoid societal detriment.” (Ibid.) The rooster ordinance does not deprive
plaintiffs of the right to own property; it regulates their use of it. We conclude the
ordinance is a valid exercise of the County’s police power. (See Community Memorial
Hospital v. County of Ventura (1996) 50 Cal.App.4th 199, 206. [“The police power is the
authority to enact laws to promote the public health, safety, morals and general
welfare.”].)
       The judgment is affirmed. The parties shall bear their own costs on appeal.




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                                        ____________________________________
                                        Grover, J.




WE CONCUR:




____________________________
Greenwood, P. J.




____________________________
Danner, J.




H044364 - Perez et al. v. County of Monterey et al.
Trial Court:                             Monterey County Superior Court
                                         Case No. M131362



Trial Judge:                             Hon. Thomas W. Wills



Counsel for Plaintiffs/Appellants        Lynne Marie Patterson
Heriberto Perez and Miguel Angel Reyes
Robles:



Counsel for Defendants/Respondents       Charles J. McKee, County Counsel
County of Monterey and County of         Michael J. Whilden, Deputy County Counsel
Monterey Board of Supervisors:           Office of the Monterey County Counsel
