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Full Opinion
MARINA POINT, LTD., Plaintiff and Respondent,
v.
STEPHEN WOLFSON et al., Defendants and Appellants.
Supreme Court of California.
*723 COUNSEL
Eugene C. Gratz, Noble, Gratz & Wolfson, Goller, Gillin & Menes, Lawrence C. Nobel, Josseline Charas, Kathleen Doyle and Martha Warriner for Defendants and Appellants.
W. Kenneth Rice, Steven Belasco, Mary K. Gillespie, Stephen R. Nielson, Robert M. Myers, Michael E. Wine, Eugene Roy Salmonsen, Harry M. Snyder, Susan Bartlett Foote, Carl K. Oshiro, Luana Martilla, Sharon Mosley, David A. Garcia, Steven C. Owyang, Joanne A. Lewis, Beverly S. Tucker, Ruby S. Udell, Eric W. Wright, Sidney M. Wolinsky, Richard Friedman, Katherine Wolff, David E. Frank and Fred Okrand as Amici Curiae on behalf of Defendants and Appellants.
Richard F. Hamlin for Plaintiff and Respondent. *724 Dennis B. Kavanagh as Amicus Curiae on behalf of Plaintiff and Respondent.
OPINION
TOBRINER, J.[*]
In this case we must determine whether, under California law, an owner of an apartment complex may lawfully refuse to rent any of its apartments to a family solely because the family includes a minor child. In the landlord's action to eject the family, the municipal court found, inter alia, that "[c]hildren are rowdier, noisier, more mischievous and more boisterous than adults," and upheld the landlord's policy of excluding all families with minor children. The tenants now appeal from the judgment in favor of the landlord, contending that the exclusionary policy violates their statutory rights under the Unruh Civil Rights Act (Civ. Code, § 51 et seq.) and the California Fair Housing Law (Health & Saf. Code, § 35700 et seq., now Gov. Code, § 12955) and, in addition, impermissibly infringes upon their state and federal constitutional rights of familial privacy (U.S. Const., 9th & 14th Amends., Cal. Const., art. I, § 1) and equal protection of the law. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.)
For the reasons discussed below, we have concluded that the landlord's broad, class-based exclusionary practice violates the Unruh Civil Rights Act (hereafter Unruh Act or act); in light of this conclusion, we have no occasion in this case to address any of the tenants' more sweeping and far-reaching constitutional contentions. As we shall explain, the municipal court, in finding the challenged practice compatible with the Unruh Act, proceeded from the erroneous premise that under that act "[n]ot every class... is protected from exclusion," but rather that "[i]t is only such class ... that is protected as is set forth in the [s]tatutes or who come under the [s]tatutes by judicial determination." Finding that "[t]here is no decision to include children, parents with children, or families with children, as a protected class by the wording of the [s]tatutes themselves or by judicial determination," the court concluded that the challenged practice fell outside the scope of the act.
As we shall point out, the municipal court's approach conflicts with the interpretation of the Unruh Act unanimously adopted by this court *725 a decade ago in In re Cox (1970) 3 Cal.3d 205 [90 Cal. Rptr. 24, 474 P.2d 992]. In Cox, after reviewing the origin, legislative evolution and prior judicial decisions construing the Unruh Act and its predecessors, our court concluded that the "identification of particular bases of discrimination color, race, religion, ancestry and national origin [in the current version of the act] ... is illustrative rather than restrictive." (Italics added.) (3 Cal.3d at p. 216.) Although we recognized that in recent years the act had been invoked most often "by persons alleging discrimination on racial grounds," we emphasized that the act's "language and its history compel the conclusion that the Legislature intended to prohibit all arbitrary discrimination by business establishments." (Italics added.) (Ibid.) Thus, contrary to the municipal court's conclusion, the fact that the landlord's exclusionary policy in this case discriminated against children and families with children, rather than a specific racial or religious group or some other classification specifically involved in a prior judicial decision, does not place the exclusionary practice beyond the reach of the Unruh Act.
The landlord maintains, however, that even if the municipal court did err in its analysis of the Unruh Act, we should nevertheless affirm the trial court judgment on the grounds that the exclusionary policy at issue is "reasonable," not "arbitrary," and hence not violative of the Unruh Act. Relying, inter alia, upon the court's finding that "[c]hildren are rowdier, noisier, more mischievous and more boisterous than adults," the landlord claims that it may seek to achieve its legitimate interest in a quiet and peaceful residential atmosphere by excluding all minors from its housing accommodations, thus providing its adult tenants with a "child free" environment.
As we shall explain, however, the landlord's argument overlooks the individual nature of the statutory right of equal access to business establishments that is afforded "all persons" by the Unruh Act. Derived from the early common law right of equal access to the services of innkeepers or common carriers, the Unruh Act prohibits business establishments from withholding their services or goods from a broad class of individuals in order to "cleanse" their operations from the alleged characteristics of the members of an excluded class.
As our prior decisions teach, the Unruh Act preserves the traditional broad authority of owners and proprietors of business establishments to adopt reasonable rules regulating the conduct of patrons or tenants; it imposes no inhibitions on an owner's right to exclude any individual *726 who violates such rules. Under the act, however, an individual who has committed no such misconduct cannot be excluded solely because he falls within a class of persons whom the owner believes is more likely to engage in misconduct than some other group. Whether the exclusionary policy rests on the alleged undesirable propensities of those of a particular race, nationality, occupation, political affiliation, or age, in this context the Unruh Act protects individuals from such arbitrary discrimination.
Accordingly, we conclude that the judgment in favor of the landlord should be reversed.
1. The facts and proceedings below.
Plaintiff Marina Point, Ltd. (hereafter landlord or Marina Point) is a privately owned apartment complex, which, at the time of trial, consisted of 846 separate apartment units. The apartment complex, located in Marina del Rey, an unincorporated area in the County of Los Angeles, stands on land owned, and leased by the county to Marina Point. The master lease between the county and Marina Point specifically forbids Marina Point from discriminating on the basis of race, religion or national ancestry, but contains no provision with respect to other forms of discrimination.
In January 1974, defendants Stephen and Lois Wolfson signed a one-year lease for an apartment in the Marina Point complex with occupancy to begin on February 1 of that year. Although the printed form lease that the Wolfsons then signed contained a clause which provided that no minors under the age of 18 could reside in the leased premises without the landlord's written permission, Marina Point acknowledges that at that time it followed a policy of renting its apartments to families with children as well as to families without children.
In October 1974, Marina Point altered its rental policy with the objective of ultimately excluding all children from the apartment complex. At that time, well over 60 families with children lived in apartments in the complex, and Marina Point decided that while it would allow the children already there to remain, it would not rent any apartments to new families with children or with pregnant women.
In February 1975, the Wolfsons renewed their lease for a one-year period; the form lease again contained the same clause with respect to *727 children as had appeared in the initial lease. In September 1975, Lois Wolfson gave birth to a son, Adam, who thereafter resided with his parents in the family apartment in Marina Point. In February 1976, the Wolfsons renewed their lease for another year; although the lease again contained the identical clause as to written consent for children, the Wolfsons apparently did not specifically inform the landlord of Adam's presence, and the lease made no reference to him.
In the fall of 1976, the landlord's manager learned that the Wolfsons had a child living in the apartment; shortly thereafter, the landlord informed them that their lease, due to expire on January 31, 1977, would not be renewed, and that the sole reason for such nonrenewal was Adam's presence on the premises.
After some negotiation between the parties, Marina Point agreed to a three-month extension of the Wolfsons' lease; the new lease agreement, which again contained the same provision as to children, specified that the premises would be occupied by the Wolfsons and their son. Thereafter, upon the Wolfsons' request, the landlord agreed to an additional one-month extension of the lease to May 31, 1977.
When the Wolfsons failed to vacate the premises on May, 31 the landlord commenced the present unlawful detainer action in municipal court. In their answer, the Wolfsons maintained that the landlord's policy of discriminating against families with children violated both statutory constitutional prescriptions, and, as such, did not provide a lawful basis for their eviction. The landlord acknowledges that if its exclusion of the Wolfsons does in fact contravene statutory or constitutional strictures, such illegality would indeed provide a valid defense to the unlawful detainer action. (See, e.g., S.P. Growers Assn. v. Rodriguez (1976) 17 Cal.3d 719, 724 [131 Cal. Rptr. 761, 552 P.2d 721]; Schweiger v. Superior Court (1970) 3 Cal.3d 507 [90 Cal. Rptr. 729, 476 P.2d 97]; Abstract Investment Co. v. Hutchinson (1962) 204 Cal. App.2d 242 [22 Cal. Rptr. 309].)
At trial, the landlord conceded that its nonrenewal of the Wolfsons' lease rested solely on its current general policy of refusing to rent any of its apartments to families with children, but the landlord denied that this policy violated any statutory or constitutional principle. In defense of its exclusionary policy, the landlord's apartment manager testified that the decision to bar families with children rested in part on a number of past instances in which young tenants had engaged in annoying *728 or potentially dangerous activities, ranging from acts of arson to roller skating and batting practice in the hallways to the attempted solicitation of snacks from the landlord's office staff.
The manager did not indicate, however, what proportion of the tenant children engaged in such activities or what steps, short of the blanket exclusionary policy, the landlord had implemented to deal with the problem, such as promulgating general rules as to permissible and impermissible conduct or excluding from the complex those families whose children repeatedly committed disruptive or destructive acts. Moreover, the landlord introduced no evidence that the Wolfsons' child had ever engaged in any such activity and, indeed, two of the Wolfsons' immediate neighbors testified that Adam's presence was not annoying to them at all.
As an additional explanation for the exclusionary policy, the apartment manager testified that the Marina Point complex had no special facilities for children, such as playground equipment, and no suitable area for children to play. The manager conceded, however, that the facilities of the complex had remained unaltered since the landlord had implemented its "no children" policy. In addition, the evidence revealed that, even at the time of trial, seven children were still living in apartments in the Marina Point complex.
Finally, the landlord presented testimony of two expert witnesses who had been in the real estate business for many years. These witnesses testified that in their opinion children, as a class, generally cause more wear and tear on property than adults do, and that as a consequence, landlords who rent to families with children generally have higher maintenance costs than landlords who exclude children. The witnesses presented no statistical data in support of their conclusion, but simply testified on the basis of their general experience.
As already noted, two immediate neighbors of the Wolfsons, one living next door and one living overhead, testified on behalf of the Wolfsons that they had not been disturbed by Adam's presence in the apartment. In addition to these neighbors' testimony, the Wolfsons presented one expert witness, a professor of real estate finance at California State University at Fullerton, who testified that the basic profitability of operating an apartment complex does not generally vary with the type or age of its tenants. Finally, the Wolfsons introduced a number of recent studies by various groups documenting the extensive *729 nature of the practice of discrimination against families with children in rental housing that currently exists throughout California. As these and more recent studies reveal, in many of the major metropolitan areas of the state, families with children are excluded from 60 to 80 percent of the available rental housing.[1]
At the conclusion of the trial, the municipal court ruled in favor of Marina Point, rejecting the Wolfsons' contention that the landlord's policy of excluding all families with children violated their statutory or constitutional rights. The court's formal findings of fact contain findings, inter alia, that the landlord's "exclusion of children ... proceeds from a reasonable economic motive to promote a quiet and peaceful environment free from noise and damage caused by children." Yet the court's memorandum opinion reveals that the court's legal conclusion that the practice in question did not violate any prohibited discrimination rested on the erroneous belief that the statutory proscription of discrimination applied only to a limited number of specifically designated "protected classes."[2] Because the municipal court could find "no *730 decision to include children, parents with children, or families with children, as a protected class by the wording of the statutes themselves, or by judicial determination," the court concluded that the exclusionary practice challenged in this case fell beyond the reach of the state's existing antidiscrimination statutes. The court accordingly entered judgment in favor of the landlord, awarding it possession of the premises, $1,903.50 in damages, $3,000 in attorney fees and costs.[3]
The Wolfsons now appeal from the judgment, asserting that both the Unruh Act and the Fair Housing Law bar the landlord's admitted policy of discriminating against families with children. They additionally contend that the exclusion violates their rights to familial privacy and equal protection of the law guaranteed by the state and federal Constitutions. As noted above, because we conclude that the landlord's exclusionary policy violates the Unruh Act we need not, and do not, reach the Wolfsons' additional contentions.
2. (1a) Contrary to the municipal court's conclusion, the antidiscrimination provisions of the Unruh Act are not confined only to a limited category of "protected classes" but rather protect "all persons" from any arbitrary discrimination by a business establishment.
In evaluating the legality of the challenged exclusionary policy in this case, we must recognize at the outset that in California, unlike many other jurisdictions, the Legislature has sharply circumscribed an apartment owner's traditional discretion to accept and reject tenants on the basis of the landlord's own likes or dislikes. California has brought such landlords within the embrace of the broad statutory provisions of the *731 Unruh Act, Civil Code section 51.[4] Emanating from and modeled upon traditional "public accommodations" legislation, the Unruh Act expanded the reach of such statutes from common carriers and places of public accommodation and recreation, e.g., railroads, hotels, restaurants, theaters and the like, to include "all business establishments of every kind whatsoever." (See generally Horowitz, The 1959 California Equal Rights in "Business Establishments" Statute A Problem in Statutory Application (1960) 33 So.Cal.L.Rev. 260, 272-294.)
For nearly two decades the provisions of the Unruh Act, in light of its broad application to "all business establishments," have been held to apply with full force to the business of renting housing accommodations. (See, e.g., Swann v. Burkett (1962) 209 Cal. App.2d 685, 694-695 [26 Cal. Rptr. 286]; Abstract Investment Co. v. Hutchinson, supra, 204 Cal. App.2d 242, 254-255; 56 Ops.Cal.Atty.Gen. 546 (1973); cf. Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 467-471 [20 Cal. Rptr. 609, 370 P.2d 313].) Indeed, in the case at bar, Marina Point apparently concedes that, like other business establishments that deal with the public, its freedom or authority to exclude "customers," i.e., prospective tenants, from the goods and services it offers, i.e., rental units, is limited by the provisions of the Unruh Act.[5]
The municipal court properly recognized that Marina Point, as a "business establishment," was generally subject to the Unruh Act. It concluded, however, that the act provided no protection to the Wolfsons because it found that the subjects, i.e., "victims," of the discriminatory practice in this case, described variously as "children" or "families with children," did not fall within what the court believed to be a limited set of "protected classes" shielded from discriminatory treatment by the *732 act. As already noted, the court, in elaborating upon its understanding of the Unruh Act, stated in this regard: "Not every class is protected. It is only such class or person that is protected as is set forth in the Statutes or who come under the Statutes by judicial determination." Because discrimination against children or against families with children was not in explicit terms proscribed by the language of section 51 or by any prior judicial decision, the court determined that any such discrimination was beyond the scope of the act.
The municipal court's interpretation of the act directly conflicts with this court's interpretation of the Unruh Act a decade ago in In re Cox, supra, 3 Cal.3d 205. In Cox, an individual who claimed that he had been excluded from a shopping center because a friend with whom he was talking "wore long hair and dressed in an unconventional manner" (3 Cal.3d at p. 210), asserted that such exclusion was barred by the Unruh Act. Relying upon the fact that the act, by its terms, expressly referred only to discrimination on the basis of "race, color, religion, ancestry or national origin,"[6] the city argued in response that the act's proscriptions were limited to discrimination which was based on the specifically enumerated forbidden criteria, and did not encompass the alleged discrimination against "hippies" or their associates.
After reviewing the common law origin, the legislative history and the past judicial interpretations of the act and its statutory predecessors, our court unanimously concluded in Cox that the "identification of particular bases of discrimination color, race, religion, ancestry, and national origin ... is illustrative rather than restrictive.. [Citation.] Although the legislation has been invoked primarily by persons alleging discrimination on racial grounds, its language and its history compel the conclusion that the Legislature intended to prohibit all arbitrary discrimination by business establishments." (Italics added.) (3 Cal.3d at p. 216.)
In reaching this conclusion, we relied, inter alia, upon the fact that the Unruh Act had emanated from the venerable common law doctrine which "attached [to various `public' or `common' callings] `certain obligations including at various stages of doctrinal development the *733 duty to serve all customers on reasonable terms without discrimination ...'" (italics added) (id., at p. 212), and upon the fact that prior judicial decisions construing the predecessors of the Unruh Act had clearly held that the statutory protections were not limited to discrimination based on race, religion, or national origin but also barred, for example, the exclusion of homosexuals from a public bar or restaurant (Stoumen v. Reilly (1951) 37 Cal.2d 713, 716 [234 P.2d 969]) or the exclusion of persons with the reputation of immoral character from a public race track. (Orloff v. Los Angeles Turf Club (1951) 36 Cal.2d 734 [227 P.2d 449].) Because we could find absolutely no evidence to suggest that the Legislature intended to contract the reach of the statutory protections when it enacted the expansive Unruh Act in 1959, we concluded that the act must properly be interpreted "to interdict all arbitrary discrimination by a business enterprise." (3 Cal.3d at p. 212.)
Although the landlord in this case has not at any time questioned the continued vitality of this court's decision in Cox, an argument has been urged that this court's unanimous decision in Cox was wrongly decided and should at this late date be overruled. The argument rests upon the assertion that the second sentence of section 51 is inconsistent with the interpretation of the statute in Cox. The sentence in question states that "[t]his section shall not be construed to confer any right or privilege on a person which is conditioned or limited by law or which is applicable alike to persons of every sex, color, race, religion, ancestry or national origin."
Although it is asserted that the purport of this language is self-evident, its meaning from a literal standpoint could hardly be more obscure. Read literally, the sentence appears to provide that the right of equal access to business establishments conferred by section 51 is not applicable to persons of every sex, color, race, etc.; that meaning, of course, would completely contradict the fundamental antidiscrimination objective of the statute. Although it is not asserted that we should adopt this interpretation of the sentence, it is suggested that the sentence should be interpreted to exclude from the statute's purview any restriction on access to a business establishment, however arbitrary, that is "applicable alike to persons of every sex, color, race, religion, ancestry or national origin." Thus, under this proposed reading of the statute, for example, the total exclusion of homosexuals or members of the Republican Party from a public restaurant, a shoe store or an apartment complex would be entirely compatible with section 51.
*734 As we pointed out in Cox, however, from before the beginning of the twentieth century California's public accommodation statutes have uniformly proscribed the exclusion of individuals on the basis of purely arbitrary classifications. (See Stats. 1897, ch. 108, §§ 1, 2 p. 137; Stats. 1905, ch. 413, §§ 1, 2, pp. 553-554; Stats. 1919, ch. 210, §§ 1, 2, pp. 309-310, Stats. 1923, ch. 235, §§ 1, 2 (p. 485.) The argument under discussion proposes that we interpret the confusing, and virtually incoherent, language of the second sentence of section 51 as evidencing a legislative retreat from California's well-established statutory policy prohibiting all arbitrary discrimination in places of public accommodation. As we observed in Cox, however, "`[w]ithout the most cogent and convincing evidence, a court will never attribute to the Legislature the intent to disregard or overturn a sound rule of public policy.' [Citation.]" (3 Cal.3d at p. 215.)
Moreover, subsequent to our decision in Cox the Legislature effectively confirmed our interpretation of the act as barring all forms of arbitrary discrimination. In 1974, the Legislature amended section 51, reenacting the prior provisions of the statute and adding "sex" to the specifically enumerated bases of discrimination listed in the Unruh Act. In sending the bill to the Governor for his signature, the Chairman of the Select Committee on Housing and Urban Affairs explained: "The purpose of the bill is to bring it to the attention of the legal profession that the Unruh Act provides a remedy for arbitrary discrimination against women (or men) in public accommodations which are business enterprises. This bill does not bring such discrimination under the Unruh Act because that Act has been interpreted as making all arbitrary discrimination illegal, on whatever basis. The listing of possible bases of discrimination has no legal effect, but is merely illustrative." (Original italics.) The chairman attached to his letter a copy of a legislative counsel opinion, discussing our decision in Cox and confirming the chairman's view of the legislation.
(2) It is a well-established principle of statutory construction that when the Legislature amends a statute without altering portions of the provision that have previously been judicially construed, the Legislature is presumed to have been aware of and to have acquiesced in the previous judicial construction. Accordingly, reenacted portions of the statute are given the same construction they received before the amendment. (See, e.g., In re Gladys R. (1970) 1 Cal.3d 855, 868-869 [83 Cal. Rptr. 671, 464 P.2d 127]; Brailsford v. Blue (1962) 57 Cal.2d 335, 339 [19 Cal. Rptr. 485, 369 P.2d 13]; Richfield Oil Corp. v. Public Util. *735 Com. (1960) 54 Cal.2d 419, 430 [6 Cal. Rptr. 548, 354 P.2d 4]; Buckley v. Chadwick (1955) 45 Cal.2d 183, 200 [288 P.2d 12, 289 P.2d 242]; cf. Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 659 [147 P.2d 359, 580 P.2d 1155]. See generally 1A Sutherland, Statutory Construction (4th ed.) § 22.33, pp. 191-192.)
(1b) In light of the legislative history noted above, this principle of construction particularly applies to the instant case for here we need not simply presume that the Legislature knew of this court's interpretation of section 51 in Cox at the time of the 1974 amendment; the legislative documents establish beyond question that the Legislature was well aware of Cox's construction of section 51. Had the Legislature disagreed with the Cox interpretation, or had it desired to constrict the reach of section 51 in a manner incompatible with Cox, it presumably would have altered the preexisting language of the statute so to indicate. (See, e.g., Estate of McDill (1975) 14 Cal.3d 831, 840 [122 Cal. Rptr. 754, 537 P.2d 874].) Instead, the Legislature reenacted the previously construed language verbatim, simply adding an explicit reference to sex discrimination to highlight the statute's application in that area. Under the numerous authorities cited above, this action represents a legislative endorsement of Cox's interpretation of section 51.[7]
*736 Indeed, in recent years, a spate of decisions by the appellate courts and the opinions of the Attorney General have explicitly concluded, in a variety of contexts, that the Unruh Act covers a wide range of discriminatory practices. Thus, for example, the decisions and opinions have established the act's application to exclusionary policies directed against (1) students (59 Ops.Cal.Atty.Gen. 70 (1976)), (2) welfare recipients (59 Ops.Cal.Atty.Gen. 223 (1976)), (3) those of a particular occupation or marital status (58 Ops.Cal.Atty.Gen. 608, 613 (1975)), or (4) those who associate with blacks. (Winchell v. English (1976) 62 Cal. App.3d 125, 128-130 [133 Cal. Rptr. 20].) Unlike the municipal court decision at issue here, these numerous decisions properly recognize that the protection against discrimination afforded by the Unruh Act applies to "all persons," and is not reserved for restricted categories of prohibited discrimination. Accordingly, the municipal court's decision in this case unquestionably proceeded from a fundamental misinterpretation of the Unruh Act.
3. (3) The landlord's blanket exclusion of all families with minor children is not permissible under the Unruh Act even if children "as a class" are "noisier, rowdier, more mischievous and more boisterous" than adults.
The landlord maintains, however, that even if the municipal court erred in concluding that the Unruh Act did not apply because children or families with children were not a "protected class" under the act, the judgment in its favor should nonetheless be affirmed. It asserts that the trial court's findings of fact demonstrate that its policy of excluding all families with children from its apartment complex is "reasonable" and not "arbitrary" and, as such, is not barred by the Unruh Act.
In this regard, the landlord correctly points out that in Cox we explained that while the Unruh Act prohibits a business establishment from engaging in any form of arbitrary discrimination, the act does not *737 absolutely preclude such an establishment from excluding a patron in all circumstances. As we stated in Cox: "In holding that the Civil Rights Act forbids a business establishment generally open to the public from arbitrarily excluding a prospective customer, we do not imply that the establishment may never insist that a patron leave the premises. Clearly, an entrepreneur need not tolerate customers who damage property, injure others or otherwise disrupt his business. A business establishment may, of course, promulgate reasonable deportment regulations that are rationally related to the services performed and the facilities provided. [Citation.]" (3 Cal.3d at p. 217.)
The landlord contends that the exclusionary policy at issue here falls within the category of permissible regulations to which Cox adverted. Marina Point acknowledges that its blanket policy of excluding all families with children cannot properly be characterized as a "deportment regulation" since it does not focus on the conduct of the individuals or families who are actually excluded by the rule. (Cf. Hales v. Ojai Valley Inn and Country Club (1977) 73 Cal. App.3d 25, 28-29 [140 Cal. Rptr. 555, 89 A.L.R.3d 1] (restaurant rule requiring men to wear ties).) The landlord contends, however, that in light of the trial court's factual finding that "[c]hildren are rowdier, noisier, more mischievous and more boisterous than adults," its exclusion of all children bears a rational relation to its legitimate interest in preserving an appropriate environment.
In support of its contention, the landlord relies heavily upon the case of Flowers v. John Burnham & Co. (1971) 21 Cal. App.3d 700 [98 Cal. Rptr. 644]. In Flowers, the plaintiff tenants, who had been evicted from their apartment, alleged that their landlord had violated the Unruh Act by adopting a policy of excluding all families with male children over the age of five. The trial court sustained the landlord's demurrer to the complaint and, on appeal, the Court of Appeal, in a very brief, two-and-one-half-page opinion, affirmed the trial court judgment. Although recognizing that under Cox the Unruh Act barred all arbitrary discrimination by such a landlord, the court upheld the landlord's policy of excluding families on the basis of their children's sex and age. Disposing of the tenant's contention in two, rather conclusory sentences, the court stated: "Because the independence, mischievousness, boisterousness and rowdyism of children vary by age and sex, Burnham, as landlord, seeks to limit the children in its apartments to girls of all ages *738 and boys under 5. Regulating tenants' ages and sex to that extent is not unreasonable or arbitrary." (21 Cal. App.3d at p. 703.)[8]
Although the Flowers court's reasoning, such as it is, does support the present landlord's position, we believe that both the landlord's contention and the Flowers decision rest on a fundamental misconception of the Cox decision and, more basically, of the individual nature of the statutory right afforded "all persons" by section 51. As already noted, in Cox we explained that the provisions of section 51 derive from the common law doctrine which imposed upon certain enterprises affected with a public interest "`the duty to serve all customers on reasonable terms without discrimination.'" (Italics added.) (3 Cal.3d at p. 212.) Under this common law principle, each member of the public, as an individual, possessed the right to obtain the services of such enterprises. (See, e.g., Willis v. McMahan (1891) 89 Cal. 156, 157-158 [26 P. 649]; see generally Beale on Innkeepers and Hotels (1906) pp. 42-50, 63-69.)
The rights afforded by the Unruh Act similarly are enjoyed by all persons, as individuals. As an early decision construing a predecessor of section 51 declared: "The purpose [of the statutes] is to compel a recognition of the equality of citizens in the right to the peculiar service offered by [the] agencies [covered by the acts]." (Piluso v. Spencer (1918) 36 Cal. App. 416, 419 [172 P. 412]. See also Greenberg v. Western Turf Assn. (1903) 140 Cal. 357, 362 [73 P. 1050] ("The defendant is conducting a place of amusement. There is held out to the public under the guaranty of the statute the right to admission to this place of amusement and to the enjoyment of the pleasure which it affords. This is the right which the plaintiff had secured to him by the law, in common with all other inhabitants of the state...."); Perrine v. Paulos (1950) 100 Cal. App.2d 655, 657 [224 P.2d 41].)
As we recognized in Cox, of course, an individual may forfeit his statutory right of access to the services of a business enterprise if he conducts himself improperly or disrupts the operations of the enterprise. But, contrary to the contention of Marina Point and the suggestion of *739 the