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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

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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

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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.