San Francisco Apartment Association v. City and County of San Francisco

We must determine whether a San Francisco city

ordinance limiting the rights of landlords to commence and

conduct buyout negotiations is consistent with the federal

and state constitutions. We do not, as we must not, evaluate

the policy merits of the ordinance. Appellants—an

individual property owner and several organizations that

represent landlords’ interests in San Francisco—present us

with assertions but no authority which suggests the

ordinance runs afoul of either constitution. We therefore

affirm the district court’s decision to grant the City and

County of San Francisco’s (“the City’s”) motion for

judgment on the pleadings.

FACTUAL AND PROCEDURAL BACKGROUND

On October 21, 2014, the San Francisco Board of

Supervisors enacted Ordinance No. 225-14 (the

“Ordinance”), titled “Tenant Buyout Agreements.” See S.F.

Admin. Code § 37.9E. The “Findings and Purpose” section

provides context for the enactment of the Ordinance:

Instead of evicting tenants, some landlords

offer cash buyouts to tenants in exchange for

the tenants vacating rental units. . . . Unlike

no-fault evictions, these buyouts are

unregulated, and can enable landlords to

circumvent many of the restrictions that

apply when a landlord executes a no-fault

eviction. For example, a landlord who

executes some types of no-fault evictions

must give tenants a certain amount of time to

move out, provide funds to tenants to cover

S.F. APARTMENT ASS’N V. CITY &CTY. OF S.F. 5

relocation costs, and allow tenants to move

back into the unit under specified

circumstances. Two types of these no fault

evictions—the Ellis Act and owner move-in

evictions—contain restrictions on how much

rent a landlord can charge if the units are rerented

following eviction. Analogous

regulations do not exist for tenant buyouts.

Anecdotal evidence indicates that many

buyout agreements are not conducted at

arms-length, and landlords sometimes

employ high-pressure tactics and

intimidation to induce tenants to sign the

agreements. Some landlords threaten tenants

with eviction if they do not accept the terms

of the buyout. The frequency of these buyout

offers increased significantly following

passage of a San Francisco law in 1996 which

restricted, and in many cases prohibited,

condominium conversions following no fault

evictions. By threatening a specific no fault

eviction and then convincing a tenant to

vacate rather than receiving the eviction

notice, a landlord will avoid restrictions on

condominium conversion as well as

restrictions on renovations, mergers, or

demolitions. . . . Disabled, senior, and

catastrophically ill tenants can be particularly

vulnerable, and can face greater hurdles in

securing new housing.

The main purpose of this Section 37.9E is to

increase the fairness of buyout negotiations

and agreements by requiring landlords to

6 S.F. APARTMENT ASS’N V. CITY &CTY. OF S.F.

provide tenants with a statement of their

rights and allowing tenants to rescind a

buyout agreement for up to 45 days after

signing the agreement . . . . Another goal of

this ordinance is to help the City collect data

about buyout agreements. The City lacks

comprehensive information about the

number, location, and terms of buyout

agreements. This dearth of information

precludes the City from understanding the

true level of tenant displacement in San

Francisco.

S.F. Admin. Code §37.9E(a). The Ordinance defines

“Buyout Agreement” as “an agreement wherein the landlord

pays the tenant money or other consideration to vacate the

rental unit,” and it excludes from the definition agreements

“to settle a pending unlawful detainer action.” Id. § 37.9E(c).

The Ordinance defines “Buyout Negotiations” as “any

discussion or bargaining, whether oral or written, between a

landlord and tenant regarding the possibility of entering into

a Buyout Agreement.” Id.

The Ordinance has six provisions relevant to this appeal:

(1) the “Disclosure Provision,” (2) the “Notification

Provision,” (3) the “Rescission Provision,” (4) the “Database

Provision,” (5) the “Penalty and Fee Provision,” and (6) the

“Condominium Conversion Provision.” Id. § 37.9E; S.F.

Subdivision Code § 1396.

The Disclosure Provision states that, prior to the

commencement of buyout negotiations for a rental unit,

landlords must provide each tenant in that unit with a written

disclosure form written by the Rent Board. S.F. Admin.

Code § 37.9E(d). The form states that a tenant has a right not

S.F. APARTMENT ASS’N V. CITY &CTY. OF S.F. 7

to enter into buyout negotiations or a buyout agreement, may

choose to consult with an attorney before entering into

negotiations or an agreement, has a right to rescind any

buyout agreement for up to forty-five days after the

agreement’s execution, and may visit the Rent Board for

information about other buyout agreements in the tenant’s

neighborhood. The form also includes a description of the

Condominium Conversion Provision, the contact

information for the landlord, the contact information for

several tenants’ rights organizations, and a space for a tenant

signature.

The Notification Provision states that, prior to the

commencement of buyout negotiations, the landlord shall

provide the Rent Board with a declaration that the landlord

provided each tenant with the disclosure form required by

§ 37.9E(d). Id. § 37.9E(e).1

The Rescission Provision provides tenants with a

unilateral right to rescind an executed buyout agreement for

up to and including forty-five days after the agreement’s

execution. Id. § 37.9E(g).

The Database Provision requires landlords to file a copy

of any buyout agreement with the Rent Board between the

forty-sixth and fifty-ninth day after the execution date of the

buyout agreement. Id. § 37.9E(h). A related provision

requires that the Rent Board create a searchable database

with information received from the buyout agreements filed

by landlords. Id. § 37.9E(i).

1 Appellants do not challenge the Notification Provision on appeal.

8 S.F. APARTMENT ASS’N V. CITY &CTY. OF S.F.

The Penalty and Fee Provision provides that a tenant

may bring a civil action against a landlord for “failure to

comply with the requirements set forth in subsections (d) and

(f).”2 Id. § 37.9E(k). That section also provides that “[t]he

City Attorney or any organization with tax exempt status

under [Section 501(c)(3) or 501(c)(4)] with a primary

mission of protecting the rights of tenants in San Francisco

may bring a civil action against a landlord . . . for failure to

comply with subsection (h).”3 Id.

Finally, the Condominium Conversion Provision

provides that any property subject to a buyout agreement

after the enactment of the Ordinance is ineligible for

conversion to a condominium for ten years where the tenant

involved in the buyout agreement was senior, disabled,

catastrophically ill, or where the owner entered into a buyout

agreement with two or more tenants in the same building.4

S.F. Subdivision Code § 1396.

2 Subsection (d) is the Disclosure Provision. Subsection (f) lists

various requirements for buyout agreements, including that the

agreements be in writing, state in bold letters that tenants may rescind a

buyout agreement any time before the forty-fifth day after the

agreement’s execution date, a list of rights similar to those included on

the disclosure form, and a description of the Condominium Conversion

Provision. Neither subsection expressly requires that a tenant sign the

disclosure form prior to the commencement of buyout negotiations.

3 Subsection (h) is the Database Provision, which requires landlords

to file copies of executed buyout agreements with the Rent Board to

create a publicly searchable database of buyout agreements.

4 The Ordinance defines “senior” as “a person who is 60 years or

older and has been residing in the unit for ten years or more at the time

of [the] Buyout Agreement.” S.F. Subdivision Code § 1396. A

“disabled” tenant is defined as “a person who is disabled within the

S.F. APARTMENT ASS’N V. CITY &CTY. OF S.F. 9

Appellants commenced this action by filing a “petition

for writ of mandate” and a “complaint for injunctive and

declaratory relief” in the Superior Court of California in San

Francisco. Appellants alleged in their complaint that the

Ordinance violates free speech rights under the United States

and California Constitutions, equal protection and due

process rights under the United States and California

Constitutions, Appellants’ right to privacy under the

California Constitution, and “the right to enter into voluntary

settlement of disputes.” Appellants sought an order

declaring the Ordinance illegal and unenforceable. The City

removed the case based on the federal constitutional claims,

and filed a motion for judgment on the pleadings. The

district court granted the City’s motion for judgment on the

pleadings. Because the district court concluded that

amendment would be futile, the district court dismissed the

case with prejudice.

STANDARD OF REVIEW

We review de novo a district court’s order granting a

motion for judgment on the pleadings. See Heliotrope Gen.,

Inc. v. Ford Motor Co., 189 F.3d 971, 978 (9th Cir. 1999).

“A judgment on the pleadings is properly granted when,

taking all the allegations in the pleading as true, the moving

party is entitled to judgment as a matter of law.” Id. at 978–

meaning of [42 U.S.C. § 12102] and has been residing in the unit for ten

years or more at the time of [the] Buyout Agreement.” Id. A

“catastrophically ill” tenant is defined as “a person who is disabled

within the meaning of [42 U.S.C. § 12102] and who is suffering from a

life threatening illness as certified by his or her primary care physician

and has been residing in the unit for five years or more at the time of

[the] Buyout Agreement.” Id.

10 S.F. APARTMENT ASS’N V. CITY &CTY. OF S.F.

79 (quoting Nelson v. City of Irvine, 143 F.3d 1196, 1200

(9th Cir. 1998)).

DISCUSSION

I. The Ordinance does not prevent Appellants from

commencing buyout negotiations if a tenant refuses

to sign the disclosure form.

Appellants argue that the Ordinance is a “Gag Rule” that

prevents landlords from commencing buyout negotiations

unless the tenant signs the required disclosure form.

Although the disclosure form states that “[e]ach tenant must

sign this three-page Pre-Buyout Negotiations Disclosure

Form below and write the date the landlord provided the

tenant with the disclosure form,” the Ordinance makes clear

that landlords need not obtain the tenant’s signature prior to

the commencement of buyout negotiations.

The Ordinance imposes a number of specific

requirements on landlords before they can commence

buyout negotiations—none of which involve securing the

tenant’s signature. For example, the Ordinance provides that,

prior to the commencement of buyout negotiations,

landlords “shall provide each tenant in that rental unit a

written disclosure, on a form developed and authorized by

the Rent Board.” S.F. Admin. Code § 37.9E(d). Landlords

also must provide the Rent Board with “[a] statement signed

under penalty of perjury that the landlord provided each

tenant with” the required disclosure form. Id. § 37.9E(e).

There is no requirement that the landlord certify that the

tenant signed the form. There is also no requirement to

obtain a tenant’s signature prior to the commencement of

buyout negotiations. Moreover, tenants may sue landlords

who fail to provide that form prior to the commencement of

buyout negotiations. Id. § 37.9E(k). That subsection does

S.F. APARTMENT ASS’N V. CITY &CTY. OF S.F. 11

not provide a right of action to tenants or anyone else against

landlords who fail to obtain the tenant’s signature. Although

the Ordinance states that “[t]he landlord shall retain a copy

of each signed disclosure form for five years, along with a

record of the date the landlord provided the disclosure to

each tenant,” id. § 37.9E(d), that clause can easily be

understood to mean that landlords need only retain copies of

signed disclosure forms, and need not retain copies of

disclosure forms that tenants refuse to sign. In other words,

the requirement that the landlord retain copies of signed

disclosure forms does not condition the right to commence

buyout negotiations on the tenant having signed the form.

Thus, Appellants’ argument that the Ordinance prevents

them from initiating buyout negotiations unless tenants sign

the disclosure form fails under the plain language of the

Ordinance.

II. The Disclosure Provision does not violate Appellants’

First Amendment rights.

Appellants argue that the Disclosure Provision violates

the First Amendment because it restricts protected speech.

They claim it limits landlords’ ability to initiate buyout

negotiations and compels speech by requiring landlords to

disclose the contact information for tenants’ rights

organizations prior to the commencement of buyout

negotiations. The City argues that the Disclosure Provision

targets purely commercial speech and does not preclude or

limit any speech after the minimal requirements of the

Disclosure Provision and Notification Provision have been

met. The City also argues that the Disclosure Provision does

not unconstitutionally compel speech because the

requirement to disclose a list of tenants’ rights organizations

directly advances the City’s substantial interest in improving

12 S.F. APARTMENT ASS’N V. CITY &CTY. OF S.F.

the bargaining position of tenants, and includes no message

from or endorsement of those organizations.

Although Appellants urge that the commencement of

buyout negotiations constitutes commercial speech that is

inextricably intertwined with noncommercial, fully

protected speech, Appellants fail to identify the

noncommercial, fully protected speech at issue. The district

court did not err in concluding that a discussion between a

landlord and a tenant about the possibility of entering into a

buyout agreement is commercial speech, as it relates solely

to the economic interests of the parties and does no more

than propose a commercial transaction. See Am. Acad. of

Pain Mgmt. v. Joseph, 353 F.3d 1099, 1106 (9th Cir. 2004)

(citing Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.

Comm’n of N.Y., 447 U.S. 557, 561 (1980); Va. State Bd. of

Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S.

748, 752 (1976)).

We use the four-part test from Central Hudson to

evaluate restrictions on commercial speech:

(1) if the communication is neither

misleading nor related to unlawful activity,

then it merits First Amendment scrutiny as a

threshold matter; in order for the restriction

to withstand such scrutiny, (2) [t]he State

must assert a substantial interest to be

achieved by restrictions on commercial

speech; (3) the restriction must directly

advance the state interest involved; and (4) it

must not be more extensive than is necessary

to serve that interest.

World Wide Rush, LLC v. City of Los Angeles, 606 F.3d 676,

684 (9th Cir. 2010) (alteration in original) (quotation

S.F. APARTMENT ASS’N V. CITY &CTY. OF S.F. 13

omitted). First, the Ordinance triggers First Amendment

scrutiny because it restricts commercial speech that is neither

misleading nor related to unlawful activity. Second, the

asserted government interests in enacting the Ordinance are

substantial. As the Ordinance states, its main purpose is “to

increase the fairness of buyout negotiations and agreements”

in response to San Francisco’s “housing crisis.” S.F. Admin.

Code § 37.9E(a). It also seeks to “reduc[e] the likelihood of

landlords pressuring tenants into signing buyout agreements

without allowing the tenants sufficient time to consult with

a tenants’ rights specialist,” and to “collect data about buyout

agreements.”5 Id.

The final two steps of the Central Hudson analysis

“basically involve a consideration of the ‘fit’ between the

legislature’s ends and the means chosen to accomplish those

ends.” Rubin v. Coors Brewing Co., 514 U.S. 476, 486

(1995) (quotation omitted). The Ordinance purports to

advance the City’s stated interest in the fairness of buyout

negotiations by placing targeted restrictions on landlordtenant

communication before the landlord discloses certain

pertinent information. As the district court held, the

Ordinance is sufficiently tailored because the speech

restrictions apply only until the landlord has provided the

disclosures to the tenant, which “could take less than half a

day.” See Edenfield v. Fane, 507 U.S. 761, 767 (1993)

(holding that restrictions on commercial speech “need only

be tailored in a reasonable manner to serve a substantial state

5 Whether bolstering the bargaining posture of tenants will indeed

ameliorate the “housing crisis” in San Francisco depends on an economic

theory that interferes with free market forces. It is a policy chosen by the

City’s representatives, the effectiveness of which is not for this court to

either accept or reject.

14 S.F. APARTMENT ASS’N V. CITY &CTY. OF S.F.

interest”). Thus, these restrictions do not violate the First

Amendment.

Neither do the Disclosure Provision’s compelled

disclosures run afoul of the First Amendment. “[T]he

government may compel truthful disclosure in commercial

speech as long as the compelled disclosure is ‘reasonably

related’ to a substantial governmental interest.” CTIA-The

Wireless Ass’n v. City of Berkeley, 854 F.3d 1105, 1115 (9th

Cir. 2017) (citing Zauderer v. Office of Disciplinary Counsel

of the Supreme Ct. of Ohio, 471 U.S. 626, 651 (1985)). Here,

the City requires landlords to provide tenants with a form

that describes tenants’ rights with respect to buyout

negotiations and agreements, and lists the contact

information for tenants’ rights organizations. Both

disclosures are “purely factual,” and do not include any

message whatsoever from the tenants’ rights organizations

listed on the disclosure form. Id. Moreover, the required

disclosure advances the City’s purported substantial interest

in increasing the fairness of buyout negotiations (by

informing tenants of their rights) and reducing the likelihood

that tenants will accept “unfair” buyout agreements (by

providing tenants with a list of organizations that can

advance their rights). Therefore, the Disclosure Provision

does not violate the First Amendment.

III. The creation of a publicly searchable database of

buyout agreements does not violate landlords’

right to privacy under the California

Constitution.

Appellants argue that the Database Provision of the

Ordinance violates landlords’ right to privacy under the

California Constitution. The Database Provision makes

publicly available landlords’ business contact information,

the address of any rental unit subject to a buyout agreement,

S.F. APARTMENT ASS’N V. CITY &CTY. OF S.F. 15

the certification of compliance with the Disclosure

Provision, and copies of executed buyout agreements. S.F.

Admin. Code § 37.9E(h). The City argues that landlords

have no legally protected privacy interest in their names,

business contact information, or address of the rental unit at

issue, because ownership of property is a matter of public

record.6 The City also argues that landlords have no legally

protected privacy interest or reasonable expectation of

privacy in the transactional information included in buyout

agreements, as that information is not the type of private

financial information held to be protected by the right to

privacy under the California Constitution.

“[A]rticle I, section 1 of the California Constitution

creates a right of action against private as well as

government entities.” Hill v. Nat’l Collegiate Athletic Ass’n,

7 Cal. 4th 1, 20 (1994). To state a claim for a violation of the

right to privacy under the California Constitution,

Appellants must allege facts sufficient to raise a plausible

inference that they have a legally protected privacy interest,

a reasonable expectation of privacy under the circumstances,

and a “serious invasion” of privacy by the City that

constitutes “an egregious breach of the social norms

underlying the privacy right.” Id. at 35–37.

The district court did not err in its conclusion that

landlords do not have a legally protected privacy interest or

reasonable expectation of privacy in the information made

6 The court notes that the owner, whose name appears on the public

record, is not necessarily the landlord in all cases, and thus that the above

argument may not always apply. Property is often leased to a tenant

under a master lease; the tenant then leases spaces to subtenants.

However, this unique issue does not arise in this case and, in any event,

Appellants fail to argue that such a privacy issue would make a

difference.

16 S.F. APARTMENT ASS’N V. CITY &CTY. OF S.F.

publicly available by the Ordinance. As the City noted,

information already publicly available is not protected by the

right to privacy under the California Constitution. Moreover,

Appellants offer no explanation why the terms or

consideration for a buyout agreement is more sensitive or

private than other financial information routinely submitted

to the government and made publicly available. For

example, a landlord who seeks to impose a rent increase in

excess of the generally applicable limitations must file a

petition with the Rent Board that includes (among other

information) the landlord’s name and contact information,

the property address, information about proposed

expenditures where applicable, the current rent for each unit,

and the proposed increase. S.F. Admin. Code § 37.7, 37.8.

Landlords also must disclose similar information when they

apply for condominium conversions, including detailed

rental history, proposed sale prices of the condominiums

produced, and a copy of the condominium purchase

agreement. S.F. Subdivision Code § 1381. More broadly,

financial information relating to real estate and land use

transactions is regularly filed with government entities and

made publicly accessible, including records that involve

security interests or transfers of ownership or title, or

applications under the zoning laws. See, e.g., S.F. Planning

Code § 303, 305; Cal. Gov’t Code § 27280(a); Cal. Civ.

Code § 2932.5; Cal. Bus. & Prof. Code § 10233.2.

Appellants fail to provide any argument why the

consideration paid in a buyout transaction, or any other

information contained in a buyout agreement, is more

sensitive than the information described above.

S.F. APARTMENT ASS’N V. CITY &CTY. OF S.F. 17

IV. The Ordinance does not violate landlords’ rights

to equal protection or due process.

Appellants argue that the Ordinance violates their rights

to equal protection and due process because it applies only

to speech by landlords and requires the redaction of the

tenant’s identity, but not the landlord’s identity, from the

publicly searchable database of buyout agreements.7 As

explained above, the Ordinance does not violate the First

Amendment, nor does it violate any other fundamental right

guaranteed by the Constitution. Landlords are also not a

protected class. Therefore, we review Appellants’ claim that

the Ordinance violates their right to equal protection under

the rational basis standard. See Sylvia Landfield Tr. v. City

of L.A., 729 F.3d 1189, 1191 (9th Cir. 2013). Under the

rational basis standard, “[t]he general rule is that legislation

is presumed to be valid and will be sustained if the

classification drawn by the statute is rationally related to a

legitimate state interest.” City of Cleburne v. Cleburne

Living Ctr., 473 U.S. 432, 440 (1985).

Here, the City could reasonably conclude that tenants are

in an inferior bargaining position relative to landlords, who

are generally more sophisticated and have more information

about the rental market and the rights and obligations of both

parties than are tenants. The City could also reasonably

conclude that landlords face unique incentives to pressure

tenants into accepting buyout agreements, such as the

avoidance of restrictions and regulations that apply to nofault

evictions. A commercial disclosure requirement that

applies only to landlords and informs tenants of their rights

7 Appellants do not analyze their due process claims separately from

those based on equal protection. Therefore, we focus on Appellants’

equal protection claim.

18 S.F. APARTMENT ASS’N V. CITY &CTY. OF S.F.

with regard to buyout negotiations and agreements is

rationally related to the City’s legitimate interests in

improving the bargaining position of tenants in buyout

negotiations and ensuring that tenants are apprised of their

rights prior to the commencement of such negotiations. See

Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 690 (9th

Cir. 1993) (“[T]he stated purposes of the ordinance were to

alleviate hardship created by rapidly escalating rents; to

protect owners’ investments in their mobile homes; to

equalize the bargaining position of park owners and tenants;

and to protect residents from unconscionable and coercive

changes in rental rates. These purposes are similar to those

advanced in support of other rent control ordinances; the

Supreme Court has held that these goals are legitimate.”)

(citing Pennell v. City of San Jose, 485 U.S. 1, 13–14

(1988)).

Appellants’ argument that the Ordinance violates equal

protection because it requires the redaction of the tenant’s

identity from the publicly searchable database of buyout

agreements, but not the landlord’s identity, also fails. The

information collected from landlords concerns their

businesses, which is already a matter of public record

through the Office of the Assessor-Recorder and the San

Francisco Planning Department. By contrast, the inclusion

of a tenant’s name connects the tenant to his current or prior

residence. See, e.g., Cty. of L.A. v. L.A. Cty. Emp. Relations

Comm’n, 56 Cal. 4th 905, 927 (2013) (“Courts have

frequently recognized that individuals have a substantial

interest in the privacy of their home. . . . Accordingly, home

contact information is generally considered private.”

(quotation omitted)).

Because the Ordinance does not violate Appellants’ right

to privacy under the California Constitution, we review

S.F. APARTMENT ASS’N V. CITY &CTY. OF S.F. 19

Appellants’ equal protection claim under the rational basis

standard. The Ordinance’s requirement that the Rent Board

publish landlords’ contact information and rental unit

address—information that is already publicly available—is

rationally related to the City’s legitimate interest in reducing

information asymmetry between tenants and landlords and

improving the inferior bargaining position of tenants in

buyout negotiations while protecting tenant privacy. See

Levald, 998 F.2d at 690.

V. The Condominium Conversion Provision does not

violate landlords’ “liberty of contract.”

Appellants do not cite any case law or other precedential

authority to support their claim that the Condominium

Conversion Provision violates their “liberty of contract”

under the United States Constitution.8 Under California law,

regulation of condominium conversions lies within a

municipality’s police power and need only be reasonably

related to a legitimate governmental purpose. See Griffin

Dev. Co. v. City of Oxnard, 39 Cal. 3d 256, 262–66 (1985).

The City has a legitimate governmental purpose in

protecting what it sees as vulnerable tenants and maintaining

a form of price control which it theorizes will provide an

affordable rental housing inventory for its residents. See

Levald, 998 F.2d at 690; see also Cal. Gov’t Code

§ 65580(a) (“The availability of housing is of vital statewide

importance, and the early attainment of decent housing and

8 In any event, the Contracts Clause does not support Appellants’

claim that the Condominium Conversion Provision violates their “liberty

of contract” because the Ordinance applies only to buyout agreements

executed after the enactment date of the Ordinance, and “[t]he

Constitution protects freedom of contract only by limiting the states’

power to modify or affect contracts already formed.” McCarthy v. Mayo,

827 F.2d 1310, 1315 (9th Cir. 1987); see also U.S. Const. art. I, § 10.

20 S.F. APARTMENT ASS’N V. CITY &CTY. OF S.F.

a suitable living environment for every Californian . . . is a priority of the highest order.”). The City could reasonably believe that senior, disabled, or catastrophically ill tenants face greater hurdles in securing new housing, and that multiple buyouts within the same building have a greater impact on the availability of affordable rental housing than single-unit buyouts. Therefore, we hold that the Condominium Conversion Provision survives rational basis review and does not violate Appellants’ “liberty of contract.”



* * *



9 See Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423 (1952) (“The liberty of contract argument pressed on us is reminiscent of the philosophy of Lochner v. State of New York, 198 U.S. 45 [1905], which invalidated a New York law prescribing maximum hours for work in bakeries[.] . . . Our recent decisions make plain that we do not sit as a super-legislature to weigh the wisdom of legislation nor to decide whether the policy which it expresses offends the public welfare.”). For all the recent academic discussion whether Lochner’s evaluation of economic freedom requires greater judicial scrutiny, see, e.g., Randy E. Barnett, Foreword: What’s So Wicked About Lochner?, 1 N.Y.U. J. L.& LIBERTY 325 (2005), our governing precedent has not significantly changed from that of Day-Brite.

For all of the foregoing reasons, we AFFIRMthe district court’s order granting the City’s motion for judgment on the pleadings.

Costs are awarded to the Appellee.