Wednesday, August 1, 2001
Court Revives Challenge to San Diego Adult Entertainment Law
By KENNETH OFGANG, Staff Writer/Appellate Courts
The Ninth U.S. Circuit Court of Appeals yesterday reinstated part of a lawsuit challenging San Diego’s adult entertainment zoning ordinance, saying the city had not proven that its zoning restrictions allow “reasonable alternative avenues of communication” to owners of adult businesses.
The court affirmed, in part, a summary judgment upholding the law, which bars the locating of an adult business within 1,000 feet of a residential zone, church, school, park, or charitable institution or of another adult business.
U.S. District Judge Irma Gonzalez of the Southern District of California ruled that George Isbell doesn’t have a First Amendment right to place an adult business at a specific location and that wasn’t denied equal protection, and the appeals court agreed.
But Gonzalez erred in also granting summary judgment on the question of reasonable alternatives under the First Amendment, Senior Judge William C. Canby Jr. wrote for the panel. While the city provided Isbell a list of more than 100 possible locations for his business, the list included locations that were close enough to other adult businesses to violate the 1,000-foot “separation requirement,” Canby said.
“Because the separation requirement was not taken into account, the record provides no means of determining just how many of the 110 sites are actually available,” the judge wrote.
Isbell applied for a permit in 1997 to operate an adult entertainment business in a building he had just purchased. The city denied Isbell’s request because the business would have been 900 feet from a residential neighborhood, and denied a variance.
Ninth Circuit precedent, Canby explained yesterday, requires that a city which denies a permit under an adult-business zoning law provide the applicant with a list of other sites that are actually available on the commercial real estate market. The site need not be economically suitable for adult entertainment, the judge said, but it must be part of an “actual market for commercial enterprises” and must be one on which an adult business may be located legally.
Of the 110 sites listed by the city in response to Isbell’s request, the judge noted, 45 already have adult businesses on them. Of the remainder, Canby said, there was no evidence how many—if any—were outside the 1,000-foot zone.
The evidence presented in support of the summary judgment motion, he went on to say, was not sufficient to justify a conclusion that limiting adult entertainment in the city to the 45 existing sites is reasonable.
There needs to be a “comprehensive and collective analysis,” Canby explained, taking into account such factors as the percentage of the city’s land which those businesses occupy, the relationship between the number of sites and the city’s population, and the city’s “community needs.”
Isbell had also claimed that even if he had reasonable alternatives, the city was violating the First Amendment by applying the requirement to his site, which was separated from the nearby residential zone by a freeway. But Canby explained that the city need not prove that the separation requirement serves a legitimate purpose as to a specific location, only that it generally serves the city’s compelling interest “in preserving the quality of urban life.”
Nor, the judge said, did the city invidiously discriminate against Isbell by denying him a variance while allegedly granting variances to other types of applicants under less-rigorous standards.
“So long as alternative avenues of expression are provided, a city may choose to treat adult businesses differently from other businesses...and even may treat one category of adult businesses differently from other categories of adult businesses....,” Canby said.
Canby was joined by Judges M. Margaret McKeown and Richard A. Paez.
The case is Isbell v. San Diego, 99-55591.
Copyright 2001, Metropolitan News Company