Friday, July 18, 2008
Judge Strikes City’s Combined Adult Business Ordinance
By STEVEN M. ELLIS, Staff Writer
A federal judge has again ruled that a Los Angeles city ordinance banning more than one sex-related business from operating under the same roof violates the First Amendment.
Holding that evidence presented by an adult bookstore and an adult arcade operating in the same location showing that stand-alone arcades are not economically viable cast doubt on the city’s contention that the ordinance would not suppress speech, which the city failed to rebut, U.S. District Judge Dean D. Pregerson of the Central District of California Wednesday granted summary judgment for the businesses.
Pregerson previously granted summary judgment in favor of the businesses after they first challenged the ordinance in 1995. However, the city appealed the matter all the way to the U.S. Supreme Court, which in 2002 overturned Pregerson’s decision and remanded to determine whether the plaintiffss could provide evidence calling the city’s rationale into question.
The ordinance was the result of a study on adult business the Los Angeles City Planning Commission conducted in 1977, concluding that a concentration of adult businesses in one area led to increased crime and lower property values. Based on the findings, the City Council in 1978 passed a zoning ordinance blocking adult businesses from locating within 1,000 feet of one another.
The ordinance—which also prohibited such businesses from operating within 500 feet of a church, school, or public park—was subsequently expanded in 1983 to prevent single adult store locations from expanding to conduct multiple businesses under one roof.
Alameda Books, Inc. and Highland Books—which later merged—brought suit, and the district court ruled in their favor, concluding that the ordinance was a content-based regulation of speech that failed strict scrutiny.
The Ninth U.S. Circuit Court of Appeals affirmed, albeit on different grounds, holding that even if the ordinance was content neutral, the city failed to demonstrate the regulation was designed to serve a substantial government interest.
However, a divided Supreme Court reversed in 2002. While no opinion carried a clear majority, Chief Justice William H. Rehnquist, and Justices Antonin Scalia, Clarence Thomas, Sandra Day O’Connor and Anthony Kennedy agreed that the ordinance was subject to intermediate, rather than strict, scrutiny, and that the city had satisfied its initial evidentiary burden to demonstrate that the ordinance furthered its interest in reducing crime.
On remand, Pregerson wrote that the plaintiffs bore the burden of casting direct doubt on that rationale by showing that the ordinance’s burden on speech was out of proportion to its elimination of secondary effects.
Rejecting the testimony of the city’s expert witness, who did not claim to have any knowledge of the adult entertainment industry, Pregerson relied on testimony by plaintiffs’ witnesses, who both had approximately 20 years of experience relating to adult bookstores and arcades, and who both testified that they had never seen or heard of an adult arcade not attached to a retail business.
He noted testimony that operations of adult bookstores and arcades are intertwined because customers of bookstores often frequent arcades in order to preview films or videos prior to purchase or rental, and that the public generally views stand-alone adult theaters or arcades as “seedy,” and opined that a stand-alone arcade was not viable because, “logically, if it were, someone during the history of the adult entertainment industry would have tried it.”
Concluding that the plaintiffs had succeeded, Pregerson then said that the city failed to supplement the record in a way that would undermine the plaintiffs’ argument.
He noted that the city offered “no relevant evidence” to rebut the plaintiffs’ contention, and swept aside the city’s argument that, even if the arcade closed, people could get adult material via other means, such as their home computer, at a comparable or even lesser cost.
“The City’s argument fails to identify the correct speaker, and this mistake is fatal to its case…” he wrote. “If the speakers at issue were the patrons, this argument might have some force. However, the speech of the patrons—protected though it is—is not the focus of this lawsuit. It is…the First Amendment rights of the businessowners, not the rights of the customers, that are at issue in this litigation.”
A call to the Los Angeles City Attorney’s Office seeking comment was not returned, but Santa Monica attorney Clyde DeWitt, who represented the plaintiffs, called it a victory for those who challenged the use of “shoddy data” by municipalities in promulgating ordinances.
However, despite the fact that the case has now been pending for some 13 years, DeWitt said he did expect an appeal by the city.
Copyright 2008, Metropolitan News Company