Monday, June 6, 2005
C.A. Gives Green Light to Shutting Down Pomona Strip-Tease Cabaret
By a MetNews Staff Writer
The Court of Appeal for this district has ruled that the City of Pomona may shut down a strip-tease dance hall based on a zoning ordinance even if there is no available real property within the city where the establishment could lawfully be operated.
Thursday’s decision came in an unpublished opinion by Div. Two’s presiding justice, Roger Boren. It reverses a judgment by Los Angeles Superior Court Judge Andrea Richey in favor of the owners of the “Baby Dolls Theater,” and disapproves of the legal standard utilized by a referee she appointed, retired Court of Appeal Presiding Justice Robert Feinerman.
The ordinance in question bans “adult” businesses within 300 feet of a residential zone or 1,000 feet from “sensitive uses” such as churches, schools and parks.
In 1998, the appeals court held that the activities of the “Baby Dolls Theater” enjoyed constitutional protections and remanded the case to the trial court for a determination as to whether there were alternatives sites in Pomona where such a business might be operated.
The city pointed to 31 such sites. Feinerman found that, for varying reasons, none of those sites was actually available and, based on that finding, Richey enjoined the city from enforcing its ordinance against the cabaret owners.
Reversing, Boren said that Feinerman and Richey “did not follow the legal standards” set forth in decisions of the United States Supreme Court.
In particular, Boren found that Feinerman, who presided over Div. Five from 1982-88, “applied an inappropriate litmus test,” in determining if potential sites existed in the city that would conform with the ordinance. He explained:
“The question is not whether any particular site is appropriate for an adult business. Rather, the issue is whether there are any sites appropriate for a generic commercial enterprise, regardless of current occupancy, landlords’ unwillingness to rent, physical characteristics, or economic unfeasibility. By this standard, Pomona has established that there are numerous sites available within the city, and respondents failed to carry their burden of proving nonavailability of alternative sites.”
Boren declared that “[v]irtually every purported flaw in the sites analyzed by the referee was constitutionally irrelevant.” He continued:
“The primary defect identified by the referee was that many of the potential sites are not currently for rent. The controlling cases emphasize that it is irrelevant whether suitable sites are currently under lease or owner-occupied, for purposes of constitutional review….
“The referee focused improperly on ‘economic impact’ problems. It is irrelevant that many of the sites are economically unfeasible because they are too large, too small, or poorly shaped.”
Boren quoted a Fifth U.S. Circuit Court of Appeals opinion saying that physical aspect of potential sites may exclude them from consideration only if they are “under the ocean, airstrips of international airports, sports stadiums, areas not readily accessible to the public, areas developed in a manner unsuitable for any generic commercial business, areas lacking in proper infrastructure, and so on.”
The case is Kozub v. City of Pomona, B174501.
Santa Monica attorney Roger Jon Diamond represented the cabaret owners and Roger A. Colvin and Bobby A. Aldesco Alvarez-Glasman & Colvin acted for the City of Pomona.
Copyright 2005, Metropolitan News Company