Metropolitan News-Enterprise


Thursday, October 11, 2007


Page 1


Ninth Circuit Upholds Adult Business Zoning Ordinance


By STEVEN M. ELLIS, Staff Writer


A San Diego county ordinance regulating the operation of adult entertainment businesses and requiring them to move to industrial zones is constitutional, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

In an opinion by Judge Barry G. Silverman, the court affirmed the decision of U.S. District Judge Larry A. Burns of the Southern District of California granting summary judgment against the operators of an adult establishment who had challenged the ordinance on constitutional grounds.

The panel also affirmed the district court’s grant of summary judgment against the plaintiffs on their claim that the ordinance violated a state law requiring ordinances to be consistent with a county’s general plan, saying the plaintiffs had failed to raise the claim in their complaint.

The court, however, reversed the district court’s decision to sever the time period for reviewing permits under the ordinance because the decision raised other constitutional problems.

The San Diego County Board of Supervisors adopted a comprehensive zoning ordinance in June of 2002 to govern the operation of adult entertainment businesses within unincorporated portions of the county. The ordinance took effect the following month and restricted the hours in which businesses could operate; required the removal of doors on peep show booths; and mandated that the businesses disperse to industrial areas of the county.

Its purported rationale was to combat negative secondary effects — crime, disorderly conduct, blight, noise, traffic, property value depreciation, and unsanitary behavior — that concentrated in and around adult businesses.

A company named 1560 N. Magnolia Ave., LLC, operator of an adult bookstore in the Bostonia neighborhood of the county under the name “Déjà Vu,” and its landlord, Tollis, Inc., initiated federal and state constitutional challenges against the ordinance in the district court, seeking declaratory and injunctive relief.

The court granted summary judgment to the county, upholding the requirement that adult establishments locate only in industrial zones and dismissing a claim that the ordinance violated state law requiring ordinances to be consistent with a county’s general plan. However, the court also found that the county’s permitting regime for adult establishments unconstitutionally granted the licensing body an unreasonably long period of time to consider permit requests, and severed the time limits from the ordinance.

Silverman noted that the ordinance’s constitutionality depended on three factors as set forth by the U.S. Supreme Court in City of Renton v. Playtime Theaters, Inc. (1986). There, the court ruled that such ordinances cannot completely ban protected expression; must be content-neutral or, if content-based, be concerned predominately with the secondary effects of sexual or pornographic speech in the community; and must pass intermediate scrutiny, i.e., are narrowly tailored to serve a substantial government interest, and allow for reasonable alternative avenues of communication.

The plaintiffs raised two arguments on appeal both relating to the third step. They contended that a concurrence by U.S. Supreme Court Justice Anthony M. Kennedy in City of Los Angeles v. Alameda Books, Inc. (2002) altered the traditional framework by imposing an additional burden on the county to show “how speech would fare” under the new ordinance, and argued that the ordinance was unconstitutional under the traditional framework because the forced relocation to industrial zones did not provide them with a sufficient number of available potential relocation sites to allow a reasonable opportunity to operate their business.

Silverman first rejected the argument that Kennedy’s concurrence had imposed such an additional burden, noting that it mirrored the traditional framework and diverged only insofar as it required that quantity of speech not be diminished, i.e., patrons could not be significantly inconvenienced by the geographic dispersal.

He said that the county met its “minimal” burden of proof by introducing studies correlating adult establishments and crime, and by reasonably inferring from common experience that dispersal would not necessarily decrease quantity or accessibility of speech. Where the plaintiffs rebutted the county’s conclusion as to crime and reduced property values, but failed to rebut evidence with regard to noise and traffic, they failed as a matter of law to cast direct doubt on the county’s rationale, he said.

“So long as there are a sufficient number of suitable relocation sites,” Silverman wrote, “the County could reasonably assume that, given the draw of pornographic and sexually explicit speech, willing patrons would not be measurably discouraged by the inconvenience of having to travel to an industrial zone.”

Silverman also rejected the plaintiff’s argument that the list of available sites did not allow them a reasonable opportunity to operate their business because the sites were zoned only for industrial – not commercial – use.

“Whether or not an industrial zone permits generic commercial business within its borders rests on a legislative policy judgment,” he said. “Asking whether an industrial zone is suitable for generic commercial activity examines the physical characteristics and infrastructure of the land within the zone.”

“If an industrial site is reasonably accessible and has sufficient infrastructure to be “available”… it remains available even if its use for other commercial purposes may be restricted by the zoning law.”

He similarly rejected the argument that the sites were insufficient for their purposes, noting that the plaintiffs offered no evidence by which to compare the size of sites to others in cases they had cited, and pointing out that the plaintiffs remained free to locate within commercial zones in incorporated areas that fell outside of the ordinance’s jurisdiction.

Silverman also agreed with the district judge that the ordinance did not violate Government Code Sec. 65860, which requires ordinances to be consistent with a county’s general plan, because the plaintiffs had failed to raise the claim in their complaint.

He did, however, reverse the district court’s decision to sever the time period for review of permits, noting that once the severed provision was removed, the provision remained unconstitutional.

“A licensing requirement for protected expression is patently unconstitutional if it imposes no time limits on the licensing body,” he wrote.

Silverman said that the correct action was to sever only the provisions of the ordinance imposing a permit requirement, leaving its other provisions intact, and he remanded the case to district court with corresponding instructions.

Senior Deputy San Diego County Counsel Thomas D. Bunton told the MetNews that the county was pleased with the decision, and that it had already taken steps to amend the ordinance’s permitting requirement. He said that the time period had been reduced to 15 days, and anticipated that this change would resolve the matter.

Spokespersons for the plaintiffs did not return a call seeking comment.

Judges William A. Fletcher and Richard R. Clifton joined Silverman in his opinion.

The case is Tollis Inc. v. County of San Diego, No. 05-56300.


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