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HomeMy WebLinkAboutFile 1 of 2 - Zoning Text Amendment 97-4 - Public Hearing - i LAW OFFICES WESTON. GARROU E� DEWITT JOHN H. WESTON' A PARTNERSHIP OF PROFESSIONAL CORPORATIONS SAN DIEGO OFFICE CLYDE DCWITT'T WILSHIRE BUNDY PLAZA 432 F STREET G. RANDALL GARROUS SUITE 202 ROBERT A. SARNO' I212I WILSHIRE BOULEVARD. SUITE 900 SAN DIEGO, CA 92101-6136 MELANIE D. LONG LOS ANGELES. CALIFORNIA 90025-II76 FAX 1619) 239-1717 JENNIFER LYNN ORFF (310) 442-.0072 16191 232-54ss Or COUNSEL AUBREY I. FINN FAX (310) 442-0899 CATHY E. CROSSON A. DALE MANANICOMICOM /J1 'A PROFESSIONAL CORPORATION November 17, 1997 RECEIVED FROM (//L 'ALSO ADMITTED IN TEXAS AND MADE A PART OF THE RECORD AT TOE (ALSO ADMITTED IN UTAH COUNCIL MEETING OF l II/ 7-`f OFFICE OF THE CITY CLERK CONNIE BROCKWAY,CITY CLERK Honorable Mayor Ralph Bauer and City Council Members Huntington Beach City Council (Hand Delivered) Re: Suggested Revisions To Proposed Ordinance No. 3378 In Light Of Pending Litigation In Talbert & Beach, Inc. v. City of Huntington Beach, U.S. Dist. Ct. No. SA CV 96-969 AHS Dear Mayor and Council Members: I am the attorney representing the plaintiffs in the still pending federal court lawsuit filed against the City last October on behalf of a corporation with an interest in developing certain property near the intersection of Talbert and Beach. As you are probably aware, the district court has dismissed two of the 24 distinct causes of action against the current ordinance scheme that affects our clients but has denied the City's motion to dismiss 22 other causes of action in this case. I have just completed my review of draft Ordinance No. 3378 (which I did not receive until late last week) and have reviewed it for its potential impact on the current litigation. It occurs to me that the City, in enacting this ordinance, is instituting a number of changes sought by our lawsuit, but that the Ordinance, as it has been explained to me by your City Attorney's Office, will not fix any of the problems in the Ordinance as they apply to pre-existing non-conforming uses such as my client's. However, if very slight modifications of the Ordinance were made (so as to make these changes applicable not only to new uses but also to those situated such as my client's), a very substantial amount of future litigation (and its attendant costs), could be avoided by rendering a number of my client's challenges moot. • LAW OFFICES WESTON. GARROU & DEWITT A PARTNERSHIP OF PROFESSIONAL CORPORATIONS Honorable Mayor Ralph Bauer and City Council Members Huntington Beach City Council November 17, 1997 Page 2 The specific provisions which I urge you to consider modifying are as follows: 1. The proposed ordinance would modify Section 212.04L-11C to create something called a "sex-oriented business zoning permit" which would establish a procedure by which an adult business applicant could obtain a timely and binding determination on whether a particular site could, or could not, be used for purposes of an adult business consistent with applicable zoning provisions. However, as currently written, this procedure is only applicable to those in an IG or IL zone. There is an equal need for providing such a clarifying procedure to the types of uses mentioned in proposed Section 236.08C. The lack of any such clear procedure for obtaining definitive zoning approval (or disapproval) has been a ;continuing obstacle to my client's ability to get a prompt and binding determination from the City concerning whether various proposals for the modification of its existing building would, or would not, be deemed to constitute compliance with the relevant zoning provisions of the Municipal Code. 2. Newly proposed Code Section 212.04L-11-F says that once a sex-oriented business zoning permit issues for a location in either the IL or IG zones, it is permissible to transfer such a business to a new owner without affecting the potential conforming use status of the land under the zoning laws. We submit that this same provision should also be made applicable to the non-conforming lawful uses discussed in the proposed amendment to Section 212.04L-11C. In other words, under your proposed ordinance, our client could operate its business for only three years. However, if, after the end of one or two years, our client were to attempt to sell the business to another, it would not be able to do so if, for example, a church, school, park or residential zone were to hereafter establish nearby. Because of this prospect, our client does not have a reasonable opportunity for opening its business and would still have to continue with its constitutional challenge to the Ordinance on this basis. Extending the transferability provisions of new Section 212.04L-11-F to all lawfully operating adult businesses would eliminate this issue from our lawsuit. 3. Under newly proposed Code Section 236.08-B, the City establishes a prospective rule (but one which only applies to adult businesses located in the IL and IG zones) that the location or establishment of a church, school, park, etc. after the grant of a sex-oriented business zoning permit does;not suddenly cause the permittee's use to be deemed non-conforming. However, after discussing this matter with the City Attorney's Office, I have learned that it is not the City's intent that such provision have any application to a use outside the IL and IG zones, such as the proposed use of my LAW OFFICES WESTON, GARROU & DEWITT A PARTNERSHIP OF PROFESSIONAL CORPORATIONS Honorable Mayor Ralph Bauer and City Council Members Huntington Beach City Council November 17, 1997 Page 3 client. Since the City has already decided that it makes sense to provide thus type of zoning certainty with respect to all other new adult businesses, it would seem to make little sense to deny these same protections to the very entity whose federal complaint has made the City aware of the need for such changes. If the City would simply modify this provision to extend to all lawfully operating sex-oriented businesses (as distinct from only those lawfully operating sex-oriented businesses which are "conforming uses"), a substantial amount of additional litigation in this case could be avoided. This issue will otherwise have to be briefed and argued in the Ninth Circuit in connection with our present preliminary injunction appeal and will,also be litigated extensively at trial,given the fact that the federal court has denied the City's motion to dismiss our two causes of action aimed at this particular problem (the Third and Fourth Causes of Action in the Second Amended Complaint). In short, a minor textual change can avoid the build-up of easily avoidable,but very significant,attorneys'fees which,should we prevail,would ultimately have to be paid by the City. Moreover, simply as a matter of fairness, it makes no sense to allow other adult businesses protection' against after-arriving churches, etc. but to deny such protections to this one particular adult business. 4. In newly proposed Section 212.04 L-11C-2, the City imposes an entirely new type of signage restriction on all new adult businesses which would locate in the IG or IL zones. Curiously absent from these restrictions is the prohibition contained in Chapter 5.70 of the Municipal Code that prohibits adult businesses from having signs which face any arterial street. However,because the City has not repealed the provisions of Chapter 5.70 which prohibits such signs from being visible from any arterial street, it would seem that even businesses establishing in the IL and IG zones would continue to have to comply with these more rigid signage restrictions, yet that would be inconsistent with the apparent purpose of the newly proposed amendment to Section 212.04L-11C2. We would propose that the language of the newly proposed signage restriction be made applicable citywide and that the signage restrictions in Chapter 5.70 simply be repealed, consistent with the apparent intent in enactment of the new proposed restriction. Should this change be effectuated, it would render moot our challenge to the old signage restrictions contained in Chapter 5.70 (the restrictions that it appears you wish to supersede by enactment of the new signage restrictions of Section 212.04 L-11C2). 5. Finally,with respect to the proposed revision to the off-street parking space requirements of Section 231.04, there appears to be a simple, but significant, typographical error in the portion of Schedule A of that section discussing the parking r LAW OFFICES WESTON. GARROU & DEWITT A PARTNERSHIP OF PROFESSIONAL CORPORATIONS Honorable Mayor Ralph Bauer and City Council Members Huntington Beach City Council November 17, 1997 Page 4 requirements for "Sex Oriented Business - Cabaret." At the top of page eight of the proposed draft, it appears that the right-hand column is off by one line from the corresponding portions of the left-hand column. As a result, there appears to be a parking requirement of 'one per 35 sq. ft. of instruction area" which, due to the misalignment of the typing, appears to apply to a "Sex Oriented Business-Cabaret,"but, rather, would make more sense if it were connected to the next listed sex oriented business, that of an"Encounter Center." Similarly,the entry opposite"Encounter Center" of'one per 250 sq. ft." would seem to properly relate to the entry for an "Escort Bureau" (the next lower listed sex oriented business). As the draft currently stands, the parking requirements for the use of an "Escort Bureau' appear to be those for a "Hotel/Motel," which, again, is the next lower entry in the list. This seems to be a mere technical and typographical error but one which must be corrected before this provision is adopted. Thank you for your consideration of this letter, it is my sincere hope that since the City is going to the trouble of making these significant changes, it do so in such a way that it can render moot as much of the ,pending litigation as possible. This will enure to the benefit of all involved in avoiding the expenditure of very significant attorneys fees and years of litigation which could otherwise be avoided. Finally, please do not interpret anything in this letter as acquiescence with the fundamental purpose of your current restrictions, i.e., the elimination, through amortization, of our client's current and lawful proposed use. We believe that the overall thrust of the Ordinance is unconstitutional as an undue restriction on Sex Oriented Businesses in Huntington Beach. However,we realize that you are well aware of the impact of this Ordinance and that there is very little we could say to prevent the enactment of this Ordinance altogether. Accordingly, please consider this letter as a good faith effort to simply eliminate those issues from our lawsuit (in light of the thrust of your proposed Ordinance changes) which would not appear to be worth further and protracted litigation. Sincerely, WESTON, GARROU & DEWITT m GRG:l' By `-% LRG3496 G. RANDALL GARROU PUBLIC NOTICES WMJCAOTIM P BLIC NOTICES PUBLIC NOTICES %MZ0 mum COUNCIL II OFTHE.Y*=tl,'11 UNTI G"Yid} Mondep,Nvveiinba 17,11997 at.740#'M S1i rORIEMED IADUL"BCIS1AWMA0RV1AW tX W 3378 NOTICE IS HEREBY GIVEN that on Monday,November 17,:1997,at 7:00 PM in the. Huns gon Beach City Council Chamber at the Huntington Beach Civic Centa.2000 Main Strew,Huntinggttoonn Beach,the City Council will hold public hearing on the above item to receive and consider tFie uattartents of all persons wish to lie heard telattve to the applicatioin described. DATEMM& Monday,Noretaber 17,1997,at 700 PM APPLICATION NUMBER: Zoning Text Amendment No.974 APPLICANT: City of Huntington Beach,-2000 Main Street,HB,CA 92649 LOCATION: Industrial Districts within the City of Huntington Beach which meet the locarional criteria.The industrial zoning districts include:Industrial Limited(10 and Industrial General(IG). REQUEST: The proposed amendment to the zoning ordinance will remove sex oriented(adult) businesses from the Commercial Districts and allow sex oriented(adult)businesses in the General Industrial(IG)and Limited Industrial(IL)Districts.The pprop�oaised amendment will also require sex oriented(adult)businesses to be at least 1 OOO feet trom any other sex oriented{adult)business,500 feet from any school(p9lic or private),religgiou�s assembly(church),park&recreational facil:ry,any parcel zoned esidential Low(RL),Residential Medium(RM) Residential Medium High (RMH),Residential High(RH),or Manufactuteo3 Home-Park�MP).Tlie specific Chapters of the Huntington Beach Zoning and Subdivision to be amended are as follows: 1) To amend Chapter 204,Use Classifications,Section 204.10.Commercial Use Classifications,pby Adcjing A.Adult Business 2)' To amend Chapter 204,Use Classifications,Section 204.10,Commercial Use Classifications,by adding Z.Sex Orioted Businesses 3) To amend Chapter 211,Commercial Districts,Section 211.04,Commercial Uses,by ddcling Adult Businesses(exduds'ng massage establishments)and Adult Businesses(massage establishments)+7Tse proposed amendments will exclude sex oriented(adult)businesses in the Commercial Districts,and will classify existing sex oriented(adult)businesses in the Commercial Districts as non-conforming. 4) To amend Chapter 212,Industrial Districts,Section 212.04,Commercial Uses, by Sex Oriented Business. 5) To amend Chapter 231,Off-Street Parking and Loading Provisions,Section - 231.04,OfRStritet Parking and Loading Spaces Required. 6) To amend Chapter 236,Nonconforming Uses and Structures. ZONES Industrial Districts'within the City of Huntington Beach which meet the locational criteria.The industrial zoning districts include:Industrial Limited(IL)and Industrial General(IG). ENVIRONMENTAL STATUS: The proposed Zoning Text Amendment is categorically exdnpt e ursuant to nvironm Class 20,Section,15321 of the a ental Quality.Act as'ssnended by City Council Resolution 4501 passed and adopted August 1.1977. COASTAL STATUSs Not Applicable ON FIM A Copy of the proposed request is on file in the City Clerks;Office,2000 Main Street,Huntingto Beach;California 9264$,for inspectionliy thep�bh A COW of the staff rgxvt be available to interested parties at de City Clerks Office after November 13,1997. ALL INTERESTED PERSONS are invited to attend said hearing and express opinions-or submit evidence for or against the �plication as outlined above:If you challenge the City Councils action in court,you maybe limited io raising only those rues yyoou or someone else raised,at the public hearing described in this notice,or in written torrapondcnce delivered to the City at,or nor to, the public hearing.ff there'are any further questions,please call the Planning Division at. 36-5271 and refer to the above item.Direct your written communications to the City Clerk. Connie Brockway,Cary Clerk City of Huntington Beach 2000 Main Ste,2nd Floor Huntington Beach,California 92648 714153&5227 Published Huntington,Beach—Fountain Valley Independent November 6, 13,1997 111-569 i PROOF OF PUBLICATION i STATE OF CALIFORNIA) SS. County of Orange ) I am a Citizen of the United States and a resident of the County aforesaid; I am _ over the age of eighteen years, and not a party to or interested in the below entitled matter. I am a principal clerk of the HUNTINGTON BEACH INDEPENDENT, a newspaper of general circulation, printed and published in the City of Huntington Beach, County of Orange, State of California, and that attached Notice is a true and complete copy as was printed and published in the Huntington Beach and Fountain: Valley issues of said newspaper to wit the issue(s) of: I November 6, 1997 November 13, 1997 I declare; under penalty of perjury, that the foregoing is true and correct. Executed on November 13 , 199 7 at Costa Mesa, California. Signature Council/Agency Meeting Held: 12//T/97 l�as► Deferred/Continued to: 1,A,y� 2lx EI Approved ElI Condition Ap roved �rx O De�ed �"'�""C City Cler Signature .va&• -a CBa.,v -n+o m er 1 Council Meeting Date: bDece , 1997 De artment ID Number: CD97-67 /skis s -79 CITY UNTINGTON BEACH REQUEST FOR COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS SUBMITTED BY: RAY SILVER, City Administrator o?e PREPARED BY: MELANIE S. FALLON, Community Development Director/* Ca m/ 7L-`- 74.23 7 ? SUBJECT: ZONING TEXT AMENDMENT NO. 97-4 (SEX ORIENTED BUSINESS ORDINANCE) CONTINUED FROM 12/1197 Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s) Statement of Issue: Transmitted for City Council approval is Zoning Text Amendment (ZTA) No. 97-4, a city initiated request to amend the applicable chapters of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) regulating sex oriented (adult) businesses (SOB). The item was continued from the November 17th and December 1st meetings to allow the City Attorney's Office to respond to written communications received at the November 17th meeting. Staff has included a series of straw vote motions addressing the Planning Commission's recommendations along with a comparison matrix for consideration by the Council. Funding Source: Not Applicable Recommended Action: Motion to: "Approve Zoning Text Amendment No. 97-4 as amended by straw vot'with findings (Attachment No. 1) by ad" , Ordinance No. 3378/". Alternative Action(s): The City Council may take alternative actions such as: A. Deny Zoning Text Amendment No. 97-4 with findings, or I B. Continue Zoning Text Amendment No. 97-4 and direct staff accordingly. REQUEST FOR COUNCIL ACTION MEETING DATE: December 15, 1997 DEPARTMENT ID NUMBER: CD97-67 Analysis: At the November 17th meeting, the City Council took public testimony and discussed the recommendations of the Planning Commission. The City Council continued the item and directed staff to analyze the Planning Commission recommendations and formulate a staff recommendation for Council consideration. The City Attorney has prepared a written analysis of the suggested changes recommended by the Planning Commission (see Attachment No. 3). The recommended changes by the Planning Commission affect only three issues contained in Chapter 212, Industrial Districts of the proposed zoning text amendment. No other changes to the draft ordinance are recommended. The three issues are, distance between sex oriented businesses, signage, and public notification. Staff has separated the issues for ease of discussion in a comparison matrix with recommendations (see Attachment No. 2). In addition to the comparison matrix, staff has prepared a legislative draft of the staff recommendation to Chapter 212 and a draft ordinance of the proposed changes (see Attachment Nos. 4 & 5). Also, staff has presented the issues in a straw vote format for the City Council to consider (see below). Staff recommends the City Council take the straw votes on each issue and amend draft Ordinance No. 3378 based upon the approved straw votes. Please note, the letters received from G. Randall Garrou and Roger Jon Diamond (see Attachment Nos. 6, 7 & 8) will be discussed with the City Council in closed session before the meeting. Straw Vote No. 1 - Distance requirement between sex oriented businesses To approve: a. The distance separation of 750 feet between sex oriented businesses (staff recommendation); or b. The distance separation of 1,000 feet between sex oriented businesses (Planning Commission recommendation). Straw Vot No. 2 - Allowable and visible signing for a sex oriented business To approve: a. The existing sign ordinance provision permitting one freestanding monument sign (max. 7 ft. high) and one wall sign (max. 100 sq. ft. without sexually explicit graphic material) for a sex oriented business ( original staff recommendation). The sianing would be visible from major, primary and secondary arterial streets; or CD97-67.DOC -2- 12/09/97 1:51 PM REQUEST FOR COUNCIL ACTION MEETING DATE: December 15, 1997 DEPARTMENT ID NUMBER: CD97-67 b. The prohibition of any signing visible from a major, primary and secondary street (Planning Commission recommendation): or C. The provision of the smallest allowable sign (monument) visible from a major, primary or secondary arterial street (modified staff recommendation). Straw Vote No. 3 - Notification of application submittal To approve: a. No notification of application submittal (staff recommendation); or b. Prior to application submittal for staff review, the applicant shall cause notice to be mailed to property owners within 1,000 feet of the proposed location of the sex oriented business and publish the notice of application submittal in a local newspaper of general circulation (Planning Comm issionyecommendation). Straw Vote No. 4 - Notification of Directors decision 0 To approve: °'hm+11 s-� a. Notification of the Director's decision shall be mailed to all property owners within 300 feet of the proposed location of the sex oriented business (original staff recommendation); or b. The applicant shall cause notice of the decision of the Director to be mailed to property owners within 1,000 feet of the proposed location of the sex oriented business and publish the notice of decision in a local newspaper of general circulation (Planning Commission recommendation); or C. No notification of Director's decision (modified staff recommendation). SUMMARY: In preparing and amending ZTA No. 97-4 by straw vote, the City has been mindful of legal principles relating to the zoning regulations of SOB's and does not intend to suppress or infringe upon any expressive activities protected by the First Amendment of the United States and California Constitutions. As such, the city desires to enact reasonable zoning regulations that address, minimize, and control the adverse secondary side effects associated with the operation of SOB's. In doing so, the city finds ZTA No. 97-4 will protect the health, safety, and welfare of the citizens of Huntington Beach, protect the citizens from increased crime, and preserve the quality of life. Staff recommends approval of ZTA No. 97- 4 as amended by straw vote with the findings outlined in Attachment No. 1. CD97-67.DOC -3- 12/08/97 4:51 PM I REQUEST FOR COUNCIL ACTION MEETING DATE: December 15, 1997 DEPARTMENT ID NUMBER: CD97-67 Environmental Status: The proposed Zoning Text Amendment is categorically exempt pursuant to Class 20, Section 15321 of the California Environmental Quality Act as amended by City Council Resolution No. 4501 passed and adopted August 1, 1977. Attachment(sl: NumberCity Clerk's Page • Description ......... ................ ....... ........ ... II 1. Findings for Approval - Zoning Text Amendment No. 97-4 2. Comparison Matrix - dated December 15, 1997 3. City Attorney memo dated December 1, 1997 4. Legislative Draft - Chapter 212, Industrial Districts 5. Draft Ordinance - Chapter 212, Industrial Districts 6. Letter from G. Randall Garrou dated November 17, 1997 7. Letter from G. Randall Garrou dated November 18, 1997 8. Letter from Roger Jon Diamond dated November 24, 1997 9. Request for Council Action (RCA) dated November 17, 1997 RCA Author: H. Fauland CD97-67.DOC -4- 12/08/97 9:50 AM ATTACHMENT 1 ATTACHMENT NO.1 ZONING TEXT AMENDMENT NO. 97-4 FINDINGS FOR APPROVAL: 1. Zoning Text Amendment No. 97-4 to amend the Huntington Beach Zoning and Subdivision Ordinance Chapter 204, Use Classifications, Chapter 211, Commercial Districts, Chapter 212, Industrial Districts, Chapter 231, Off-Street Parking and Loading Provisions, and Chapter 236, Nonconforming Uses and Structures regulating sex oriented (adult) businesses is consistent with the objectives, policies, general land uses and programs specified in the General Plan. (a) The zoning text amendment is consistent with the goals and policies of the Land Use Element of the General Plan. ZTA No. 97-4 will allow sex oriented businesses in the Industrial Districts subject to locational and distance requirements to sensitive uses, other sex oriented businesses and existing industrial land uses in the Industrial Districts. ZTA No. 97-4 provides a zoning review process and regulations which address issues of adequate setbacks, building heights, parking, landscaping, signing, etc. 2. A community need is demonstrated for the change proposed. The proposed amendments provides the zoning provisions necessary to regulate sex oriented (adult) businesses. The City Council, in adopting ZTA No. 97-4 takes legislative notice of the existence and content of the following studies concerning the adverse secondary side effects of Sex Oriented Businesses in other cities: Garden Grove, California (1991); Tucson, Arizona (1990); Seattle, Washington (1989); Austin, Texas (1986); Oklahoma City, Oklahoma (1986); Indianapolis, Indiana (1984); Houston, Texas (1983); Beaumont, Texas (1982 & 1992); Minneapolis, Minnesota (1980); Phoenix, Arizona (1979); Whittier, California (1978); Amarillo, Texas (1977); Cleveland, Ohio (1977); Los Angeles, California (1977); Dallas, Texas (1997). The City Council finds that these studies are relevant to the problems addressed by the City in enacting this ordinance to regulate the adverse secondary side effects of Sex Oriented Businesses, and more specifically finds that these studies provide convincing evidence that: (a) Sex Oriented Businesses are linked to increases in the crime rates in those areas in which they are located and in surrounding areas. (b) Both the proximity of Sex Oriented Businesses to sensitive land uses and the concentration of Sex Oriented Businesses tend to result in the blighting and deterioration of the areas in which they are located. RCA - 12/15/97 1 (CD9767) ZONING TEXT AMENDMENT NO. 97-4 FINDINGS FOR APPROVAL: Cont. Page Two (c) The proximity and concentration of Sex Oriented Businesses adjacent to residential, recreational, religious, educational and other Sex Oriented Business uses can cause other businesses and residences to move elsewhere. (d) There is substantial evidence that an increase in crime tends to accompany, concentrate around, and be aggravated by Sex Oriented Businesses, including but not limited to an increase in the crimes of narcotics distribution and use, prostitution, pandering, and violence against persons and property. The studies from other cities establish convincing evidence that Sex Oriented Businesses which are not. regulated as to permissible locations often have a deleterious effect on nearby businesses in residential areas, causing, among other adverse secondary effects, an increase in crime and a decrease in property values. 3. The adoption of ZTA No. 97-4 will be in conformity with public convenience, general welfare and good zoning practice. Based on the foregoing, the City Council of the City of Huntington Beach finds and determines that special regulation of Sex Oriented Businesses is necessary to ensure that their adverse secondary side effects will not contribute to an increase in crime rates or to the blighting or deterioration of the areas in which they are located or surrounding areas. The need for such special regulations is based upon the recognition that Sex Oriented Businesses have serious objectionable operational characteristics, particularly when several of them are concentrated under certain circumstances or located in direct proximity to sensitive uses such as parks, schools, churches, thereby having a deleterious effect upon the adjacent areas. It is the purpose and intent of these special regulations to prevent the concentration of Sex Oriented Businesses and thereby prevent such adverse secondary side effects. (a) The locational requirements established by this ordinance do not unreasonably restrict the establishment or operation of constitutionally protected Sex Oriented Businesses in the City of Huntington Beach, and a sufficient reasonable number of appropriate locations for Sex Oriented Businesses are provided by this ordinance. RCA - 12/15/97 2 (CD9767) ZONING TEXT AMENDMENT NO. 97-4 FINDINGS FOR APPROVAL: Cont. Page Three (b) In developing this ordinance, the City Council has been mindful of legal principles relating to regulation of Sex Oriented Businesses and does not intend to suppress or infringe upon any expressive activities protected by the First Amendments of the United States and California Constitutions, but instead does enact content-neutral time, place, and manner regulations that effectively address the adverse secondary effects of Sex Oriented Businesses. The City Council, has considered decisions of the United States Supreme Court regarding local regulation of Sex Oriented Businesses, including but not limited to: Young v. American Mini Theaters. Inc., 427 U.S. 50 (1976) Reh. Denied 429 U.S. 873; Renton v; Playtime Theaters, 475 U.S. 41 (1986) Reh. Denied 475 U.S. 1132; FW/PBS. Inc. v. Dallas, 493 U.S.215 (1990); Barnes v. Glenn Theater, 111. S.Ct. 2456 (1991); United States Court of Appeals 9th Circuit decisions, including but not limited to: Topanga Press. et al. v. City of Los Angeles, 989 F.2d 1524 (1993); several California cases including but not limited to: City of National City v. Wiener, 3 CalAth 832 (1992); People v. Superior Court (Lucero) 49 Cal.3d 14 (1989); and City of Vallejo v. Adult Books.et al., 167 Cal,.App.3d 1169 (1985); and other federal cases including Lakeland Lounge v. City of Jacksonville (5th Cir. 1992) 973 F.2d 1255, Hang On. Inc. v. Arlington (5th Cir. 1995) 65 F.3d 1248, Mitchell v. Commission on Adult Entertainment (3rd Cir. 1993)10 F.3d 123, International Eateries v. Broward County (11th Cir. 1991) 941 F.2d 1157, and Star Satellite v. City of Biloxi (5th Cir. 1986) 779 F.2d 1074. (c) Zoning, licensing and other police power regulations are legitimate, reasonable means of accountability to help protect the quality of life in the community of Huntington Beach and to help assure that all operators of Sex Oriented Businesses comply with reasonable regulations and are located in places that minimize the adverse secondary effects which naturally accompany the operation of such businesses. (d) The City Council of the City of Huntington Beach recognizes the possible harmful effects on children and minors exposed to the effects of such Sex Oriented Businesses and the deterioration of respect for family values, and the need and desire of children and minors to stay away from and avoid such businesses, which causes children to be fearful and cautious when walking through or visiting the immediate neighborhood of such businesses; and the City Council desires to minimize and control the adverse secondary side effects associated with the operation of Sex Oriented Businesses and RCA - 12/15/97 3 (CD9767) ZONING TEXT AMENDMENT NO. 97-4 FINDINGS FOR APPROVAL: Cont. Page Four thereby protect the health, safety, and welfare of the citizens of Huntington Beach; protect the citizens from increased crime; preserve the quality of life; preserve property values and the character of surrounding neighborhoods and businesses; deter the spread of urban blight and protect against the threat to health from the spread of communicable and sexually transmitted diseases. 4. The above referenced studies, particularly the Garden Grove study completed in 1991, indicate that the appropriate minimum distance to mitigate the harmful secondary effects of sex oriented businesses is 1,000 feet. However, the existing land use pattern and zoning districts in the City of Huntington Beach do not provide any areas where sex oriented businesses can locate at least 1,000 feet away from a residential zones as well as from other sensitive uses such as parks, schools and churches and synagogues. In particular, the commercial zone where sex oriented businesses are presently permitted allows for only a 200 foot minimum distance between the lot line of residential zoned property and the building of the sex oriented business. While the current zoning allows for a sufficient number of sites to meet constitutional standards, it places sex oriented businesses too close to residentially zoned property, and in particular, permits the parking lot of such businesses to be adjacent to the residential property even though the building may be 200 feet away. The above referenced studies and court cases indicate that frequently, the pernicious behaviors associated with sex oriented businesses, such as sex related crimes, and narcotics use, occurs in the parking lot of these businesses. 5. In order to better mitigate the harmful secondary effects of sex oriented businesses and still meet constitutional standards for providing an adequate number of sites available to sex oriented businesses, the zoning district in which sex oriented businesses are to be allowed has been moved to the industrial zone of the City. While still providing a sufficient number of sites to meet constitutional standards, the City was only able to increase the distance between residential properties and other sensitive uses from sex oriented businesses to 500 feet, measured from lot line to lot line. This form of measurement takes into account the parking area of sex oriented businesses. Although it does not meet the 750 foot distance requirement recommended by most studies, the Council finds that in the industrial zone, the large industrial buildings located in between the sensitive uses and the sex oriented businesses provide additional buffering between the uses. Further, in order to provide reasonable alternative avenues of communication for sex oriented RCA - 12/15/97 4 (CD9767) ZONING TEXT AMENDMENT NO. 97-4 FINDINGS FOR APPROVAL: Cont. Page Five uses, the City has reviewed the parcels that would be permitted to be used for sex oriented businesses, and has identified certain lots that are only a few feet less than 500 feet from sensitive uses. In these cases, although the lots do not meet the minimum 500 foot separation, by approving a map identifying such lots, the City is permitting sex oriented businesses to locate on these lots based on the expectation that the large industrial buildings will help mitigate the loss of the few feet short of the minimum distance separation. 6. Because adverse secondary effects are not mitigated as effectively at 500 feet from sensitive uses as they are at 750 or 1,000 feet, in order to further mitigate the adverse effects, the City is requiring that any building facing major, primary and secondary arterials that houses a sex oriented business, must have the facade or entrance of the sex oriented business facing a different direction. 7. In order to further mitigate the harmful secondary effects of sex oriented businesses, the ordinance establishes an amortization period for nonconforming uses currently occupying locations in the commercial zones of the City. Although case law allows such uses to be amortized in one year or less, the ordinance permits a three year amortization period with possible one-year extensions (maximum extensions of five years) based on sufficient evidence of extreme hardship. RCA - 12/15/97 5 (CD9767) ATTACHMENT 2 ZONING TEXT AMENDMENT NO, 97-4 SEX ORIENTED "ADULT"BUSINESS ORDINANCE City Council Meeting 12/15/97 ISSUES Current Zoning Original Staff Planning Revised Staff Ordinance Recommendation Commission Recommendation (11/17/97) Recommendation (12/15/97) (11/12/97) 1. Zoning District Commercial District Change to Industrial Change to Industrial ~ No change to staff District District recommendation 2. Distance Crrtena ~ 200 ft from Residential 500 ft from Residential, 500 ft from Residential, Disagree with PC ~ 500 ft from School School, Church, Park and School, Church, Park and recommendation, do not 500 ft from Church Recreational Facility, Recreational Facility, increase distance from 1,000 ft from another sex 750 ft from another sex 1,000 ft. from another 750 ft to 1,000 ft oriented business oriented business sex oriented business No signage visible from Allow the smallest sign 3. Signage Existing Sign Code Existing Sign Code Primary,Major or (monument)visible from Secondary Arterial arterial street Street Add: Notice of Agree with Planning 4. Notice of Application None Required None Required Application submittal Commission Submittal requirement(1,000 ft. Recommendation radius and publish in newspaper) 5. Notice of Director's None Required Notice of Decision Notice of Decision Disagree with PC & Decision requirement(300 ft requirement(1,000 ft. original staff radius only) radius and publish in recommendation newspaper (g\hAsWcompare) ATTACHMENT 3 CITY OF HUNTINGTON BEACH INTER-DEPARTMENT COMMUNICATION v HUNTINGTON BEACH © , O� TO: Honorable Shirley Dettloff, Mayor, and Members of the unci�9' FROM: Gail Hutton, City Attorney DATE: December 1, 1997 SUBJECT: Staff Recommendations regarding Proposed Ordinance No. 3378 regarding sexually oriented businesses Three specific issues have been raised and discussed regarding Proposed Ordinance No. 3378. The City Attorney's Office has reviewed the three issues with the Community Development Department and has submitted revised recommendations for City Council consideration. 1. Separation between sex oriented businesses. The Planning Commission recommended that the distance between sex oriented businesses be increased from 750 feet to 1000 feet. Staff has analyzed three different separation distances: 500 feet, 750 feet and 1000 feet. If separation is limited to 500 feet, the maximum number of sexually oriented businesses that could locate in the industrial area would be 23; a 750 foot separation yields 16 maximum businesses; and a 1000 foot separation reduces the maximum number to 12. While we believe that case law would support a reduction to 12 sites, in order to ensure the constitutionality of the ordinance and limit City liability exposure, we recommend the 750 foot separation. For example, the City has made available 29.5 acres of industrial property for sex oriented businesses. This represents two percent(2%) of the City's total industrial acreage, and .17 percent of the total acreage of the City. Several cases have upheld similar zoning provisions: Renton v. Playtime Theatres, 475 U.S. 41 (1986) (upholding distance requirements of 1000 feet from sensitive uses and one mile from schools); International Food& Beverage Systems v. City of Ft. Lauderdale, 794 F.2d 1526 (1986) on remand to, 664 F. Sup Op.482 (S.D.Fla. 1987), aff d, 838 F.2d 1220 (1 lth Cir. 1988) (upholding 750 feet distance requirements from sensitive uses or other adult businesses);Alexander v. City of Minneapolis, 928 F.2d 278 (8th Cir. 1991) (approving zoning in one district representing 6.69%of total land in city); City of National City v. Wiener, 838 F.2d 223 (Cal.1992) (upholding distance requirements of 1000 feet from residential areas and 1500 feet from other sensitive uses or other adult businesses unless in an enclosed mall). jmp/memo/dec 197 2. Signaae. A number of studies of sex oriented business throughout the nation have indicated the mere presence of these businesses tends to depress property values. Consequently, in order to mitigate this negative effect on property values, both the current zoning ordinance and the proposed ordinance have attempted to minimize the street visibility of the business. The current ordinance accomplishes this by providing that no signs may face a major,primary or secondary arterial street. The proposed zoning amendment took a slightly different course. Instead of focusing strictly on signage,the proposed ordinance focuses on the entrance and front facade of the building. The ordinance requires that sex oriented businesses not have a front entrance or front facade on a major,primary or secondary arterial. However,the Planning Commission,while agreeing with this provision, also recommended that signage be prohibited on a major,primary or secondary arterial. After careful consideration, the City Attorney's office has concluded that permitting limited signage on the arterial is necessary in order to assist motorists with finding these businesses from the street. After all, one purpose of signs is to direct traffic. However,the other purpose of signs is to advertise the business. It is that objective that negatively affects property values. In order to balance these two considerations,this office has revised the proposed ordinance to require that the entrance and front facade be turned away from the arterial, that only one sign be placed on the arterial, and that all other signs not be visible from the arterial. Further,the permitted sign on the arterial should be the smallest permitted sign under the zoning ordinance. For example, in the industrial zone,two signs are permitted, one a monument sign of less than 32 square feet and the second a wall sign of not more than 100 square feet. Consequently, only the monument sign could be on the arterial. 3. Public notification The Planning Commission had suggested that the staff review of a sex oriented business zoning permit, although not subject to public hearing, should be subject to public review. The Planning Commission recommended that there be both public notification when the application is filed and when it is approved/denied. However,the City Attorney's office believes that it is only necessary to provide notice to all property owners within 1000 feet of the proposed business at the time of application. This is necessary so that neighbors can bring to the attention of the Community Development Director any new sensitive uses that may have been jmp/memo/dec 197 located near the sex oriented business application. Further, property owners should be confident that the Community Development Director has properly applied the zoning regulations. In order to ensure this happens, providing notice to surrounding property owners of the submittal of the application is appropriate. To that end, we have added to the ordinance a publication requirement and the same notice procedure that the City currently uses for residential in-fill lot developments. On the other hand, we have not required notice of approval of the zoning permit, although the Planning Commission has recommended that such notice be given. We have deleted this provision in our recommendation because we believe it is unnecessarily duplicating the pre-submittal notice. Lastly, please note that the ordinance presented to City Council on November 17, 1997, had a formatting error. (See page D-1.62 attached hereto as Exhibit"A" and page D-1.62 attached hereto as Exhibit`B"). The correction is reflected in the revised ordinance page attached hereto as Exhibit "C"and revised legislative draft attached hereto as Exhibit «D» r Gail Hutton City Attorney jmp/memo/dec197 EXHIBIT A `a 12 seats or more, 1 per 60 sq. ft. or 1 per )00 sq. ft. if on a site with three or more uses 1 per 35 sq. ft. of instruction area Encounter center 1 per 250 sq. ft. Escort bureau 1.1 per guest room; plus 1 per passenger Hotel/Motel transport vehicle (minimum of 2 stalls) and 2 spaces for any manager's unit and parking for other uses as required by this schedule 1 per 3 fixed seats, or 1 per 35 sq. ft. seating area if there are no fixed seats Mini-motion picture theater, motion picture theater or motion picture arcade 1 per 200 sq. ft. Detail sales Swap Meets, Indoor/Flea Markets 1/100 sq. ft. except as may be modified by the'Planning Commission through the conditional use permit process, after submittal, review and approval of a traffic engineering study (Rest of page not used) 8 jmp/k/ordina nce/sob231/11/4/97 EXHIBIT "A" ' EXHIBIT B ' i K OFF-STREET PARKING SPACES REQUIRED: SCHEDULE A (continued) Use Classification Off-Street Parking Spaces Sex Oriented Business with less than 12 seats, 1 per 200 sq ft.; Cabaret with 12 seats or more, 1 per 60 sq. ft. or 1 per 100 sq. ft. if on a site with three or Amore uses �I per 35 sq. ft. of instruction area Encounter center 1 per 250 sq. ft. Escort bureau 1.1 per guest room; plus 1 per Hotel/Motel passenger transport vehicle (minimum of 2 stalls) and 2 spaces for any / managers unit and parking for other uses as required by this schedule 1 per 3 fixed seats, or 1 per 35 sq. ft. Mini-motion picture seating area if there are no fixed seats theater, motion picture theater or motion picture arcade 1 per 200 sq. ft. Retail sales Swap Meets, Indoor/Flea Markets 1/100 sq. ft. except as may be modified by the Planning Commission through the conditional use permit process, after submittal, review and approval of a traffic engineering study Vehicle/Equipment Sales and Services Automobile Rentals 1 per 1,000 sq. ft. of indoor/outdoor sales and/or display lot area accessible for public viewing, but no less than 10; plus 1/300 sq. ft. office area; 1/200 sq. ft. auto service area Automobile Washing (Car Nash) Full-service (attended) 10 With fuel sales 12 Self-service (unattended) 1.5 per wash stall Service Stations full-serve/repair garage 1 per 500 sq. ft. but no less than 5 self-serve 2 with convenience markets 1 per 200 sq. ft. of retail space but no less than 8 with self-serve car wash 4 with self-serve car wash 10 and convenience market Vehicle/Equipment Repair 1 per 200 sq. ft. but no less than 5 Huntington Beach Zoning and Subdivision Ordinance —�-�"'"r Chapter 231 231-8 5/97 _� EXHIBIT "B" EXHIBIT C 12 seats or more, 1 per 60 sq. ft. or 1 per 100 sq. ft. if on a site with three or more uses Encounter center 1 per 35 sq. ft. of instruction area Escort bureau 1 per 250 sq. ft. Hotel/Motel 1.1 per guest room; plus 1 per passenger transport vehicle (minimum of 2 stalls) and 2 spaces for any manager's unit and parking for other uses as required by this schedule Mini-motion picture 1 per 3 fixed seats, or 1 per 35 sq. ft. seating theater, motion area if there are no fixed seats picture theater or motion picture arcade Retail sales 1 per 200 sq. ft. Swap Meets, Indoor/Flea Markets 1/100 sq. ft. except as may be modified by the Planning Commission through the conditional use permit process, after submittal, review and approval of a traffic engineering study (Rest of page not used) 8 jmp/k/ordinance/sob231/12/4/97 EXHIBIT "C" EXHIBIT D OFF-STREET PARKING SPACES REQUIRED: SCHEDULE A (continued) Use Classification Off-Street Parking Spaces Sex Oriented Business with less than 12 seats, I per 200 sq. ft.; Cabaret with 12 seats or more, l er 60 sq. ft. or 1 per 100 sq. ft. if on a site with three or more uses Encounter center 1 per 35 sq. ft. of instruction area Escort bureau 1 per 250 sq. ft. Hotel/Motel 1.1 per guest room; plus 1 per passenger transport vehicle (minimum of 2 stalls) and 2 spaces for any managers unit and parking for other uses as required by this schedule Mini-motion picture 1 per 3 fixed seats, or 1 per 35 sqq. ft. theater, motion seating area if there are no fixedseats picture theater or motion picture arcade Retail sales 1 per 200 sq. ft. Swap Meets, Indoor/Flea Markets 1/100 sq. ft. except as may be modified by the Planning Commission through the conditional use permit process, after submittal, review and approval of a traffic engineering study Vehicle/Equipment Sales and Services Automobile Rentals 1 per 1,000 sq. ft. of indoor/outdoor sales and/or display lot area accessible for public viewing, but no less than 10; plus 1/300 sq. ft. office area; 1/200 sq. ft. auto service area Automobile Washing (Car Wash) Full-service (attended) 10 With fuel sales 12 Self-service (unattended) 1.5 per wash stall Service Stations full-serve/repair garage 1 per 500 sq. ft. but no less than 5 self-serve 2 with convenience markets 1.per 200 sq. ft. of retail space but no less than 8 with self-serve car wash 4 with self-serve car wash 10 and convenience market Vehicle/Equipment Repair 1 per 200 sq. ft. but no less than 5 Huntington Beach Zoning and Subdivision Ordinance Chapter 231 231-8 5/97 EXHIBIT "D" ATTACHMENT 4 .1 L-11 Allowed subject to the following requirements: A. A proposed sex oriented business shall be at least five hundred feet (500') from any residential use, school, park and recreational facility, or any building used for religious assembly (collectively referred to as a "sensitive use") and at least seven hundred fifty feet (750') from another sex oriented business. For purposes of these requirements, all distances shall be measured from the lot line of the proposed sex oriented business to the lot line of the sensitive use or the other sex oriented business. The term "residential use" means any property zoned RL, RM, RMH, RH, RMP, and any properties with equivalent designations under any specific plan. To determine such distances the applicant shall submit for review a straight line drawing depicting the distances from the lot line of the parcel of land on which the sex oriented business is proposed which includes all the proposed parking and: 1. the lot line of any other sex oriented business within seven hundred fifty feet (750') of the lot line of the proposed sex oriented business; and 2. the lot line of any building used for religious assembly, school, or park & recreational facility within five hundred (500') feet of the lot line of the proposed sex oriented business; and 3. the lot line of any parcel of land zoned RL, RM, RMH, RH, and RMP and any parcels of land with equivalent designations under any specific plans within hundred feet (500') of the lot line of the proposed sex oriented business. B. The front facade of the building, including the entrance and signage, shall not be visible from any major, primary or secondary arterial street, as designated by-the Circulation jmp/legdraft/212rev/12/1/97 Element of the General Plan adopted May, 1996, with the exception of Argosy Drive. C. Prior to or concurrently with applying for a building permit and/or a certificate of occupancy for the building, the applicant shall submit application for Planning Department Staff Review of a sex oriented business zoning permit with the drawing described in subsection A, a technical site plan, floor plans and building elevations, and application fee. Within ten (10) days of submittal, the Director shall determine if the application is complete. If the application is deemed incomplete, the applicant may resubmit a completed application within ten (10) days. Within thirty days of receipt of a completed application, the Director shall determine if the application complies with the applicable development and performance standards of the Huntington Beach Zoning and Subdivision Ordinance. Said standards include but are not limited to the following: 1. Chapter 203, Definitions; Chapter 212, Industrial Districts; Chapter 230, Site Standards; Chapter 231, Off-Street Parking & Loading Provisions; Chapter 232, Landscape Improvements; and Chapter 236, Nonconforming Uses and Structures. 2. Chapter 233.08(b), Signs. Signage shall conform to the standards of the Huntington Beach Zoning and Subdivision Ordinance Code except: a. that such signs shall contain no suggestive or graphic language, photographs, silhouettes, drawings, statues, monuments, sign shapes or sign projections, or other graphic representations, whieh depict t'1e human bed), or anatomy, ) p or an , ertion thereof 7 whether clothed or unclothed, including without limitation representations that depict "specified anatomical areas" or "specified sexual activities;" and b. only the smallest of the signs permitted under Chapter 233.08(b) shall be visible from any major, jmpAegdraft/212rev/1 2/1/97 2 Alin primary or secondary arterial street, such streets shall be those designated in the Circulation Element of the General Plan adopted May, 1996, with the exception of Argosy Drive. 3. Compliance with Huntington Beach Municipal Code Chapter 5.70. D. The Director shall grant or deny the application for a sex oriented business zoning permit for a sex oriented business. There shall be no administrative appeal from the granting or denial of a permit application thereby permitting the applicant to obtain prompt judicial review. A Notie6 of Deeision shall be forwarded tO R11 PFOpe..ty ,.wneFS Within thFee >I,..ndFea root «nn') of t)L.o PFOPosed loeation of the sex oFiented business. E. Ten (10) working days prior to submittal of an application for a sex oriented business zoning permit for Staff Review, the applicant shall: (i) cause notice of the application to be printed in a newspaper of general circulation; and (ii)give mailed notice of the application to property owners within one thousand (1000') feet of the proposed location of the sex oriented business; and the City of Huntington Beach, Department of Community Development by first class mail. The notice of application shall include the following: 1. Name of applicant; 2. Location of proposed.sex oriented business, including street address if known) and/or lot and tract number; 3. Nature of the sex oriented business, including maximum height and square footage of the proposed development; 4. The City Hall telephone number for the Department of Community Development to call for viewing plans_; 5. The date by which any comments must be received in writing by the Department of Community Development. This date shall be ten (10) working days from staff review submittal; and jmp/I egdraft/212rev/12/1/97 K.� 6. The address of the Department of Community Development. F. A sex oriented business may not apply for a variance pursuant to Chapter 241 nor a special sign permit pursuant to Chapter 233. G. A sex oriented business zoning permit shall become null and void one year after its date of approval unless: 1. Construction has commenced or a Certificate of Occupancy has been issued, whichever comes first; or 2. The use is established. H. The validity of a sex oriented business zoning permit shall not be affected by changes in ownership or proprietorship provided that the new owner or proprietor promptly notifies the Director of the transfer. I. A sex oriented business zoning permit shall lapse if the exercise of rights granted by it is discontinued for 12 consecutive months. j mp/legdraft/212rev/12/1/97 ATTACHMENT 5 JC L-11 Allowed subject to the following requirements: A. A proposed sex oriented business shall be at least five hundred feet(500') from any residential use, school,park and recreational facility, or any building used for religious assembly (collectively referred to as a"sensitive use") and at least seven hundred fifty feet(750') from another sex oriented business. For purposes of these requirements, all distances shall be measured from the lot line of the proposed sex oriented business to the lot line of the sensitive use or the other sex oriented business. The term "residential use"means any property zoned RL, RM, R.Mi H, RH, RMP, and any properties with equivalent designations under any specific plan. To determine such distances the applicant shall submit for review a straight line drawing depicting the distances from the lot line of the parcel of land on which the sex oriented business is proposed which includes all the proposed parking and: 1. the lot line of any other sex oriented business within seven hundred fifty feet(750') of the lot line of the proposed sex oriented business; and 2. the lot line of any building used for religious assembly, school, or park &recreational facility within five hundred (500') feet of the lot line of the proposed sex oriented business; and 3. the lot line of any parcel of land zoned RL, RM, RMH, RH, and RMP and any parcels of land with equivalent designations under any specific plans within hundred feet(500') of the lot line of the proposed sex oriented business. B. The front facade of the building, including the entrance and signage, shall not be visible from any major, primary or secondary arterial street as designated by the Circulation Element of the General Plan adopted May, 1996, with the exception of Argosy Drive. C. Prior to or concurrently with applying for a building permit and/or a certificate of occupancy for the building,the applicant shall submit application for Planning Department Staff Review of a sex oriented business zoning permit with the drawing described in subsection A, a technical site plan, floor plans and building elevations, and application fee. Within ten (10) days of submittal, the Director shall determine if the application is complete. If the application is deemed incomplete, the applicant may resubmit a completed application within ten (10) days. Within thirty days of receipt of a completed application, the Director shall detennine if the application complies with the applicable development and performance standards of the Huntington Beach Zoning and Subdivision Ordinance. Said standards include but are not limited to the following: jmpAegdraft/212rev/12/1/97 1` • ij 1. Chapter 203, Definitions; Chapter 212, Industrial Districts; Chapter 230, Site Standards; Chapter 231, Off-Street Parking & Loading Provisions; Chapter 232, Landscape Improvements; and Chapter 236, Nonconforming Uses and Structures. 2. Chapter 233.08(b), Signs. Signage shall conform to the standards of the Huntington Beach Zoning and Subdivision Ordinance Code except: a. that such signs shall contain no suggestive or graphic language, photographs, silhouettes, drawings, statues, monuments, sign shapes or sign projections, or other graphic representations, whether clothed or unclothed, including without limitation representations that depict"specified anatomical areas" or "specified sexual activities and b. only the smallest of the signs permitted under Chapter 233.08(b) shall be visible from any major, primary or secondary arterial street, such streets shall be those designated in the Circulation Element of the General Plan adopted May, 1996, with the exception of Argosy Drive. 3. Compliance with Huntington Beach 'Municipal Code Chapter 5.70. D. The Director shall grant or deny the application for a sex oriented business zoning permit for a sex oriented business. There shall be no administrative appeal from the granting or denial of a permit application thereby permitting the applicant to obtain prompt judicial review. E. Teri(10) working days prior to submittal of an application for a sex oriented business zoning permit for Staff Review,the applicant shall: (i) cause notice of the application to be printed in a newspaper of general circulation; and (ii) give mailed notice of the application to property owners within one thousand (1000*) feet of the proposed location of the sex oriented business; and the City of Huntington Beach, Department of Community Development by first class mail. The notice of application shall include the following: 1. Name of applicant: 2. Location of proposed sex oriented business, including street address if known) and/or lot and tract number; 3. Nature of the sex oriented business, including maximum height and square footage of the proposed development; 4. The City Hall telephone number for the Department of Community Development to call for viewing plans; jmp/kgdraft/212rev/12/1/97 5. The date by which any comments must be received in writing by the Department of Community Development. This date shall be ten (10) working days from staff review submittal; and 6. The address of the Department of Community Development. F. A sex oriented business may not apply for a variance pursuant to Chapter 241 nor a special sign permit pursuant to Chapter 233. G. A sex oriented business zoning permit shall become null and void one year after its date of approval unless: l. Construction has commenced or a Certificate of Occupancy has been issued, whichever comes first; or 2. The use is established. H. The validity of a sex oriented business zoning permit shall not be affected by changes in ownership or proprietorship provided that the new owner or proprietor promptly notifies the Director of the transfer. I. A sex oriented business zoning permit shall lapse if the exercise of rights granted by it is discontinued for 12 consecutive months. jmp/1egdraft/212rev/12/1/97 ATTACHMENT 6 LAW OFFICES WESTON. CARROU & DEWITT JOHN H. WESTON' - A PARTNERSHIP OF PROFESSIONAL CORPORATIONS SAN DIEGO OFFICE CLYDE OEWITT'f WILSHIRE BUNDY PLAZA 432 F STREET G. RANDALL GARROU( SUITE 202 ROBERT A. SARNO- 12121 WILSHIRE BOULEVARD. SUITE 900 SAN DIEGO. CA 92101-6138 MELANIE D. LONG LOS ANGELES, CALIFORNIA 90025-1176 FAX 1619) 239-1717 JENNIFER LYNN ORFP ' (310) 442-0072 (619) 232-5453 OF COUNSEL AUBREY I. FINN FAX (310) 442-0899 CATHY E. CROSSON A. GALE MANICOM to PROFESSIONAL CORPORATION November 17, 1997 ALSO ADMITTED IN TEXAS=ALSO ADMITTED IN UTAN Honorable Mayor Ralph Bauer and City Council Members Huntington Beach City Council (Hand Delivered) Re: Suggested Revisions To Proposed Ordinance No. 3378 In Light Of Pending Litigation In Talbert & Beach, Inc. v. City of Huntington Beach, U.S. Dist. Ct. No. SA CV 96-969 AHS Dear Mayor and Council Members: I am the attorney representing the plaintiffs in the still pending federal court lawsuit filed against the City last October on behalf of a corporation with an interest in developing certain property near the intersection of Talbert and Beach. As you are probably aware, the district court has dismissed two of the 24 distinct causes of action against the current ordinance scheme that affects our clients but has denied the City's motion to dismiss 22 other causes of action in this case. I have just completed my review of draft Ordinance No. 3378 (which I did not receive until late last week) and have reviewed it for its potential impact on the current litigation. . It occurs to me that the City, in enacting this ordinance,: is instituting a number of changes sought by our lawsuit, but that the Ordinance, as it has been explained to me by your City Attorney's Office, will not fix any of the problems in the Ordinance as they apply to pre-existing non-conforming uses such as my client's. However, if very slight modifications of the Ordinance were made (so as to make these changes applicable not only to new uses but also to those situated such as my client's), a very substantial amount of future litigation(and its attendant costs), could be avoided by rendering a number of my client's challenges moot. LAW OFFICES WESTON. GARROU & DEWITT A PARTNERSHIP OF PROFESSIONAL CORPORATIONS Honorable Mayor Ralph Bauer and City Council Members Huntington Beach City Council November 17, 1997 Page 2 The specific provisions which I urge you to consider modifying are as follows: 1. The proposed ordinance would modify Section 212.04L-11C to create something called a "sex-oriented business zoning permit" which would establish a procedure by which an adult business applicant could obtain a timely and binding determination on whether a particular site could, or could not, be used for purposes of an adult business consistent with applicable zoning provisions. However, as currently written, this procedure is only applicable to,those in an IG or IL zone. There is an equal need for providing such a clarifying procedure to the types of uses mentioned in proposed Section 236.08C. The lack of any such clear procedure for obtaining definitive zoning approval (or disapproval) has been a continuing obstacle to my client's ability to get a prompt and binding determination from the City concerning whether various proposals for the modification of its existing building would, or would not, be deemed to constitute compliance with the relevant zoning provisions of the Municipal Code. 2. Newly proposed Code Section 212.04L-11-F says that once a sex-oriented business zoning permit issues for a location in either the IL or IG zones, it is permissible to transfer such a business to a new owner without affecting the potential conforming use status of the land under the zoning laws. We submit that this same provision should also be made applicable to the non-conforming lawful uses discussed in the proposed amendment to Section 212.04L-11C. In other words, under your proposed ordinance, our client could operate its business for only three years. However, if, after the end of one or two years, our client were to attempt to sell the business to another, it would not be able to do so if, for example, a church, school, park or residential zone were to hereafter establish nearby. Because of this prospect, our client does not have a reasonable opportunity for opening its business and would still have to continue with its constitutional challenge to the Ordinance on this basis. Extending the transferability provisions of new Section 212.04L-11-F to all lawfully operating adult businesses would eliminate this issue from our lawsuit. 3. Under newly proposed Code Section 236.08-B, the City establishes a prospective rule (but one which only applies to adult businesses located in the IL and IG zones) that the location or establishment of a church, school, park, etc. after the grant of a sex-oriented business zoning permit does not suddenly cause the permittee's use to be deemed non-conforming. However, after discussing this matter with the City Attorney's Office, I have learned that it is not the City's intent that such provision have any application to a use outside the IL and IG zones, such as the proposed use of my LAW OFFICES WESTON. GARROU & DEWITT A PARTNERSHIP OF PROFESSIONAL CORPORATIONS Honorable Mayor Ralph Bauer and City Council Members Huntington Beach City Council November 17, 1997 Page 3 client. Since the City has already decided that it makes sense to provide thus type of zoning certainty with respect to all other new adult businesses, it would seem to make little sense to deny these same protections to the very entity whose federal complaint has made the City aware of the need for such changes. If the City would simply modify this provision to extend to all lawfully operating sex-oriented businesses (as distinct from only those lawfully operating sex-oriented businesses which are "conforming uses"), a substantial amount of additional litigation in this case could be avoided. This issue will otherwise have to be briefed and argued in the Ninth Circuit in connection with our present preliminary injunction appeal and will also be litigated extensively at trial,given the fact that the federal court has denied the City's motion to dismiss our two causes of action aimed at this particular problem (the Third and Fourth Causes of Action in the Second Amended Complaint). In short, a minor textual change can avoid the build-up of easily avoidable,but very significant, attorneys'fees which,should we prevail,would ultimately have to be paid by the City. Moreover, simply as a matter of fairness, it makes no sense to allow other adult businesses protection against after-arriving churches, etc. but to deny such protections to this one particular adult business. 4. In newly proposed Section 212.04 L-11C-2, the City imposes an entirely new type of signage restriction on all new adult businesses which would locate in the IG or IL zones. Curiously absent from these restrictions is the prohibition contained in Chapter 5.70 of the Municipal Code that prohibits adult businesses from having signs which face any arterial street. However,because the City has not repealed the provisions of Chapter 5.70 which prohibits such signs from being visible from any arterial street, it would seem that even businesses establishing in the IL and IG zones would continue to have to comply with these more rigid signage restrictions, yet that would be inconsistent with the apparent purpose of the newly proposed amendment to Section 212.04L-11C2. We would propose that the language of the newly proposed signage restriction be made applicable citywide and that the signage restrictions in Chapter 5.70 simply be repealed, consistent with the apparent intent in enactment of the new proposed restriction. Should this change be effectuated, it would render moot our challenge to the old signage restrictions contained in Chapter 5.70 (the restrictions that it appears you wish to supersede by enactment of the new signage restrictions of Section 212.04 L-11C2). 5. Finally,with respect to the proposed revision to the off-street parking space requirements of Section 231.04, there appears to be a simple, but significant, typographical error in the portion of Schedule A of that section discussing the parking LAW OFFICES WESTON. GARROU & DEWITT A PARTNERSHIP OF PROFESSIONAL CORPORATIONS Honorable Mayor Ralph Bauer and City Council Members Huntington Beach City Council November 17, 1997 Page 4 requirements for "Sex Oriented Business - Cabaret." At the top of page eight of the proposed draft, it appears that the right-hand column is off by one line from the corresponding portions of the left-hand column. As a result, there appears to be a parking requirement of 'one per 35 sq. ft. of instruction area" which, due to the misalignment of the typing,appears to apply to a "Sex Oriented Business-Cabaret,"but, rather, would make more sense if it were connected to the next listed sex oriented business,that of an"Encounter Center." Similarly,the entry opposite"Encounter Center" of'one per 250 sq. ft." would seem to properly relate to the entry for an "Escort Bureau" (the next lower listed sex oriented business). As the draft currently stands, the parking requirements for the use of an "Escort Bureau" appear to be those for a "Hotel/Motel," which,,again, is the next lower entry in the list. This seems to be a mere technical and typographical error but one which must be corrected before this provision is adopted. Thank you for your consideration of this letter, it is my sincere hope that since the City is going to the trouble of making these significant changes, it do so in such a way that it can render moot as much of the pending litigation as possible. This will enure to the benefit of all involved in avoiding the expenditure of very significant attorneys fees and years of litigation which could otherwise be avoided. Finally, please do not interpret anything in this letter as acquiescence with the fundamental purpose of your current restrictions, i.e., the elimination, through amortization, of our client's current and lawful proposed use. We believe that the overall thrust of the Ordinance is unconstitutional as an undue restriction on Sex Oriented Businesses in Huntington Beach. However,we realize that you are well aware of the impact of this Ordinance and that there is very little we could say to prevent the enactment of this Ordinance altogether. Accordingly, please consider this letter as a good faith effort to simply eliminate those issues from our lawsuit(in light of the thrust of your proposed Ordinance changes) which would not appear to be worth further and protracted litigation. Sincerely, WESTON, GARROU & DEWITT GRG:'lm B (W- Y LRG3496 G. RANDALL GARROU ATTACHMENT 7 .: NOV-18-97 18: 37 FROM: SUITE 900 CO ID: 3104420899 PAGE 2/8 LAW OFFICes WESTON. GARROU 6 DEWITT JOMN m. WGSTON• A PARTNERSN,P Oc PROJ`6SSIONAI. COR►ORATIQNS SAN DIEGO OFFICE OLYpC GCWITT•T WILSHIPC BVNDY PLAZA 432 P STREET G. 14ANOALL /$APRON= $V17C 20Z FZOD2RT A. SARNO• 12121 WILSMIRC 90ULEVARD, SUITE 900 SAN DIEGO, CA 92101.613E m_CANIE D. LONG LOS ANGELES. CALIFORNIA 90025-1176 FAX (610) 239-1717 JENNIFER LYNN ORrr (619) 43*113+53 (3103 a-•s2'0072 OF COUNSEL FAX (31O) 4.4Z-0699 AUBR&Y 1. FINN CAT►IY C, CROSSON A. DAI.0 MANICOM 7 •A SQ AOMMTeO I TCXA:&AnoN November 18, 199#Ay,fj0 ACl�fTTG'O IN TLJ43 'ALSO Aowrr LO IN wrAm TR.ANSMI'ITED ON THIS DATE BY TELEFAX TO (714) 374-1590; ORIGINAL SENT TODAY BY MAIL. City Attorney Gail Hutton . P.O. Box 190 _ Huntington Beach, CA 97-W Re: Follow-up To Yesterday's Letter To The City Council Concerning Additional Suggested Revisions To Proposed Ordinance No. 3378 In Light Of Pending Litigation In Talbert & Bench, Inc. a City of Huntington Bench, U.S. Dist. Ct. No. SA CV 96-969 AHS Dear Mrs. Hutton_ This letter is a follow-up to the hastily prepared letter which I delivered to you and the Council at last night's City Council meeting. Given the fact that no one in your office had previously contacted me to notify me that this ordinance was being considered, much less to inform me of the existence of last night's hearing, I only found out about it at the last minute (my client was apparently notified by your staff, or so it states in the draft of the proposal) and, as a result, I did not have a sufficient opportunity to thoroughly analyze the proposal and list all potential problems with it: This letter will provide you with our additional input concerning likely litigation that would be generated by virtue of enactment of the Ordinance in its current form, along with our request for modification of the proposal. This letter supplements,but does not supersede, my lever to the Council of November 17, 1997. Last night, it appeared to me that at least some members of the Council seemed to have had (at least initially) the misimpression (as did a number of members of the audience with whom I subsequently spoke) that the proposed ordinance would have no impact upon pre-existing adult businesses such as my client's. When various Council members asked both you and Ms. McGrath about such things as transferability and grandfathering status under the Ordinance, you both responded to their questions as if they had been inquiries concerning how the Ordinance would affect only new uses which "�NOV_16-97 18- 37 FROM = SUITE 900 CO I0: 310442089S PACE 3/8 LAW OFFICES WESTON. GARROU 8 DEWITT / pARTNrRSAIP OT PROFESSIONAL CORPORATIONS City Attorney Gail Hutton November 18, 1997 Page 2 may hereafter locate in the IG or M zones. However,I believe you both misunderstood the nature of those two questions and, consequently, inadvertently caused the Council. Members to believe that the Ordinance would not have any impact on businesses such as our client's. In fact, it has a devastating impact on lawful non-conforming uses. I think it is critical that in any subsequent presentation, should you decide to keep such features in the draft of the Ordinance which you recommend to the Council, that you dearly advise the Council of the exact impact which this ordinance would have on our client's existing business. I will continue the numbering of the specific points we would like you to consider consecutive from where the previous letter left off. 6. As I expressed at last night's Council meeting, we believe the Ordinance should be modified to eliminate the three-year amortization requirement for existing uses in its entirety and should, instead, treat our client's proposed use like any other non-conforming use under the Municipal Code. Because all non-conforming uses, by definition, have presumed adverse secondary effects, the City cannot justify a discriminatory amortization provision simply on the basis of the hackneyed litany of "adult businesses have adverse secondary effect,," As I mentioned to the Council, we have successfully made this argument in a preliminary injunction motion in federal court against an ordinance of the County of San Bernardino which, like the proposed Huntington Beach . Ordinance, allowed existing adult businesses a three-year amortization period and then required their termination and/or relocation. The court orally indicated that it had a significant concern over this particular ground of challenge and, on the strength of that showing, granted a preliminary injunction against enforcement of the amortization provision,which injunction currently remains in effect. The formal citation for that case is Tollis,Inc.,et al. v. County of Sam Bernardino,U.S. Dist. Ct.,C.D.Cal.,E.D. Div.,No.ED CV 94-246 RT. As I mentioned to the Council last night, if the City were to pass this ordinance in its present form (i.e., to the extent that it imposes a three-year mandatory termination period on our client with or without any one-year extensions) we would certainly challenge that discriminatory amortization provision in a future federal court lawsuit against the City. 7. A second reason why we believe the proposed discriminatory amortization clause would result in litigation which the City would ultimately lose is our belief that the proposed ordinance would simply not allow enough relocation sites to meet constitutional scrutiny under the developing case law in this area. Please see, particularly, the recent opinion of the United States District Court for the Middle District of Florida entitled Centerfold Club, Inc. V. City of St. Petersburg, 969 F.Supp. 1288, 1305- NOV-16-97 16: 36 FROM=SUITE 900 CO ID: 3104420699 PAGE 4/6 LAW pFFICc5 WE5TON. GARROU 8 DEWITT A PARTNe.RSMIP Of ppor C951ONAL COR004ATION$ City Attorney Gail Hutton November 18, 1997 Page 3 1306 (M.D.Fla. 1997). Specifically, the court concluded that the relevant constitutional analysis must be between the ratio of a city's population and the number of distinct sites that could simultaneously be used by different adult entertainment businesses. The court found that the largest approved ratio seemed to be in the vicinity of approximately 6,000:1 but that the ratio under the St.Petersburg ordinance was 12,526:1. On that basis, the court struck the ordinance as unduly restrictive. At page 6 of Director Fallon's staff report, she indicates that the City's present population is "approximately 190,000" persons. In last night's meeting the City Attorney's office asserted that there were anywhere from 12 to 16 distinct sites which the new ordinance would support(a figure I doubt I would agree with). However, taking your figures at face value,if there are in fact 12 separate locations that this ordinance would support,the Ordinance provides an unacceptable ratio of one adult business site for every 16,333 persons. If the Ordinance supports 16 distinct sites, then it is one site for every 12,250 persons, approximately the same ratio that was found unconstitutional in the Florida case. However,as you know, a court is also likely to factor in whether there already are any existing uses in the City of the type that are challenging the Ordinance. Obviously, the City would be in a far better position to repel any future challenges to this ordinance if it allows the non- conforming use status of our client's business to be treated the same as any other non- conforming use in the City. Accordingly, again, it would seem to be in the City's best interest in eliminating the proposed discriminatory amortization provision. Moreover, while cities will always argue that there is no such site as a "good" site, our client has picked a remarkably reasonable location in a commercial zone which does not front any residential property and which has numerous physical barriers which would separate it from any sensitive uses. Moreover, it is situated in such a way that even the nearby commercial uses are well screened from the entranceway to this business. Moreover, this is not a business such as an adult arcade where there are occasionally significant adverse secondary effects on the neighboring community. This is a business which restricts its customers to adults only,which will be conducted wholly inside of a sealed building with no externally perceptible noise to disturb any surrounding neighbors, which will have a security guard patrolling the parking lot (even though there is very little likelihood that there will in fact be any need for such) and which will have more than adequate on-site parking spaces to prevent any type of parking problems for its neighbors. 8. Yet a third reason why the proposed discriminatory amortization provision would likely be found unconstitutional is an argument we are presently using with great success in other federal cases which we call the "shell game"argument. In City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), the Supreme Court held that adult businesses must be given a "reasonable opportunity"to "open and ID= 310442089E PAGE S/S NOV-18-97 18: 38 FROM= SUITE SOO CO Law OFFICES WESTON_ CARROU S DEWITT �P�RTN�RSMIP OF PRO/L$$,O N.LL GOR POAATONS City Attorney Gail Hutton November 18, 1997 Page 4 operate" in each city having its own zoning laws. What is a "reasonable opportunity" may vary from circumstance to circumstance; however, we would assert that any retroactive changing of the rules automatically denies a"reasonable opportunity"because no one will be likely to locate in your new IG and M zones for fear that, once again, after someone has either qualified or established their business in such a zone, there would be nothing to stop you from again changing the zoning to make them a non- conforming use subject to discriminatory amortization. In short, there is no constitutional problem with changing your zoning locations as you best see fit; the only problem is in doing so pursuant to discriminatory amortization provisions. For all the reasons above, we implore you to take the far-sighted approach and recommend to the Council that they avoid very significant litigation costs which would undoubtedly be generated (win or lose) should you attempt to impose the restrictions of this ordinance on our client's pre-existing business. Not wishing to `blow our own horn",but solely to advise you and the Council of the nature of what is involved here, we recently recovered attorneys' fees of $197,000 from the City of Rialto and $225,000 from the City of Yictorville in connection with federal civil rights lawsuits that we brought to prevent the enforcement of other municipal ordinances aimed at closing down(Victorville) or preventing the opening of(Rialto)similar adult businesses. Given the likelihood that your office would fight any such litigation tooth and nail, I would imagine the likely amount of attorneys' fees which would be generated in fighting any such proposed ordinance would be anywhere between approximately $200,000 to $400,000 and, of course, should either side appeal the case, the fees would go up substantially more, particularly if Supreme Court review is granted (in which case the fees can become truly astronomical). For all the reasons above,we respectfully urge that you recommend two essential things to the Council when they next consider this ordinance: (1) that you eliminate the three-year mandatory termination requirement for non-conforming uses;and(2)that you modify the Ordinance to allow non conforming uses (such as our client's) the same procedural benefits which the Ordinance affords to new adult uses (e.g.: (a) the procedural entitlement to be considered for a sex-oriented business permit zoning permit; (b) the express protection against subsequently locating sensitive uses such as churches, schools or residential zones; and (c) the right to transfer ownership of such a use where zoning is determined as it existed when the building permit was first submitted). , _, C_O'] i-IQ. r,7Ltd r,n�, NOV-•16-97 19= 39 FROM= SUITE 900 CO ID= 3104420699 PAGE 6/6 LAW OFFICES WE5TON. CARROU 8 DEWITT A PARYT ERSm'P or /ROrEsvoNK CORPORATION* City Attorney Gail Hutton November 18, 1997 Page 5 Contrary to what I thought I heard the Council being told last night,the proposed ordinance, as I read it, would not allow the transfer of ownership of a non-conforming use; yet no other non-conforming use is prevented from transferring ownership to their business. Lastly, the Council should be made aware that these is also very extensive recent Supreme Court case law unfavorable to the City in the area of restrictions on commercial expression, which case law would clearly apply to the type of discriminatory signage restrictions that are proposed in the Ordinance. See, e.g., 44 Lujuortmart, Inc. v. Rhode Island, 517 U.S. _ 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996) and Rubin v. Coors Brewing Co., 514 U.S. 476, 115 S.Ct: 1585, 131 L..Ed.2d 532 (1995). While my client has no desire to erect any sign that would feature any sort of graphic images of human body pans, it has a clear constitutional right to have a sign visible from a main street. We believe that we could sit down with your people (if they were so instructed) and come up with wording for that sign which both sides would find mutually acceptable. I once again reiterate my client's sincere desire to avoid further litigation if at all possible and believe that acceptance of our proposals would not only comport with fundamental fairness, but would both relieve the City from the specter of extremely significant attorneys' fees payments and would also provide the City with the greatest possible likelihood that its new and strict adult business ordinance would have the maximum chances of being upheld when ultimately challenged in any subsequent federal lawsuit. Sincerely, WESTON, GARROU & DEWI'IT GRG:jm By LRG3498 G. RANDALL GARROU cc: . Mayor Bauer Council Member Peter Green Council Member Pam Julien Council Member Tom Harmon Council Member Shirley Dettloff Council Member Dave Garofalo Council Member Dave Sullivan City Clerk 11-1$-97 09: i17F1-1 FG6 ATTACHMENT 8 RECEIVED LAW OFFICES OF MTV CLERK i,+TY OF ROGER JON DIAMOND 2115 MAIN STREET !� y SANTA MONICA, CALIFORNIA 90405-2215 26 8 13 TELEPHONE (310) 399-3259 FAX (310) 452-2031 (310) 392-9029 November 24, 1997 Connie Brockway, City Clerk City of Huntington Beach 2000 Main Street Second Floor Huntington Beach, CA 92648 Re: Proposed Zoning Text Amendment For Adult Business Dear Ms. Brockway: I have your Notice of Public Hearing regarding the hearing before the City Council on November 17, 1997. The notice states that if I have questions I should write to you. Please let me know whether the proposed-changes will affect existing adult businesses or whether they will be deemed non conforming uses and be permitted to remain at their current locations. Please send me a copy of the proposed text amendment and let me know what action, if any, the City Council has taken on it and when the ordinance is expected to be effective. Thank you. Sincerely, ROGER JON DIAMOND RJD:jb ATTACHMENT 9 LEGISLATIVE DRAFT Chapter 204 Use Classifications Sections: 204.02 Applicability 204.04 Uses Not Classified 204.06 Residential Use Classifications 204.08 Public and Semipublic Use Classifications 204.10 Commercial Use Classifications 204.12 Industrial Use Classifications 204.14 Accessory Use Classifications 204.16 Temporary Use Classifications 204.02 Applicability Use classifications describe one or more uses having similar characteristics, but do not list every use or activity that may appropriately be within the classification. The Director shall determine whether a specific use shall be deemed to be within one or more use classifications or not within any classification in this Title. The Director may determine that a specific use shall not be deemed to be within a classification, if its characteristics are substantially different than those typical of uses named within the classification. The Director's decision may be appealed to the Planning Commission. (3334) 204.04 Uses Not Classified Any new use, or any use that cannot be clearly determined to be in an existing use classification, may be incorporated into the zoning provisions by a Zoning and Subdivision Ordinance text amendment, as provided in Chapter 247. Such an incorporation shall not be effective unless certified by the Coastal Commission as a Local Coastal Program amendment. (3334) 204.06 Residential Use Classifications A. Day Care. Limited(or Small-Family). Non-medical care and supervision of six or fewer persons on a less than 24-hour basis. This classification includes nursery schools,preschools, and day-care centers for children and adults. B. Group Residential. Shared living quarters without separate kitchen or bathroom facilities for each room or unit. This classification includes boarding houses, but excludes residential hotels or motels. C. Multifamily Residential. Two or more dwelling units on a site. This classification includes manufactured homes. 1 JENNIFER/SOB204 Leg Draft 10/30/97 r D. Residential Alcohol Recovery, Limited. Twenty-four-hour care for no more than six persons suffering from alcohol problems in need of personal services, supervision, protection or assistance. This classification includes only those facilities licensed by the State of California. E. Residential Care, Limited. Twenty-four-hour non-medical care for 6 or fewer persons in need of personal services, supervision, protection, or assistance essential for sustaining the activities of daily living. This classification includes only those services and facilities licensed by the State of California. F. Single-Family Residential. Buildings containing one dwelling unit located on a single lot. This classification includes manufactured homes. 204.08 Public and Semipublic Use Classifications A. Cemetery. Land used or intended to be used for the burial of human remains and dedicated for cemetery purposes. Cemetery purposes include columbariums, crematoriums, mausoleums, and mortuaries operated in conjunction with the cemetery,;business and administrative offices, chapels, flower shops, and necessary maintenance facilities. B. Clubs and Lodges. Meeting, recreational, or social facilities of a private or nonprofit organization primarily for use by members or guests. This classification includes union halls, social clubs and youth centers. C. Community and Human Service Facilities. 1. Drug Abuse Centers. Facilities offering drop-in services for persons suffering from drug abuse, including treatment and counseling without provision for on-site residence or confinement. 2. Primary Health Care. Medical services, including clinics, counseling and referral services, to persons afflicted with bodily or mental disease or injury without provision for on-site residence or confinement. 3. Emergency Kitchens. Establishments offering food for the "homeless" and others in need. 4. Emergency Shelters. Establishments offering food and shelter programs for "homeless" people and others in need. This classification does not include facilities licensed for residential care, as defined by the State of California, which provide supervision of daily activities. 5. Residential Alcohol Recovery. General. Facilities providing 24-hour care for more than six persons suffering from alcohol problems, in need of personal services; supervision, protection or assistance. These facilities may include an inebriate reception center as well as facilities for treatment, training, research, and administrative services for program participants and employees. This classification includes only those facilities licensed by the State of California. 2 JENNIFER/SOB204 Leg.Draft 10/30/97 %t 6. Residential Care. General. Twenty-four-hour non-medical care for seven or more persons, including wards of the juvenile court, in need of personal services, supervision, protection, or assistance essential for sustaining the activities of daily living. This classification includes only those facilities licensed by the State of California. D. Convalescent Facilities. Establishments providing care on a 24-hour basis for persons requiring regular medical attention,but excluding facilities providing surgical or emergency medical services. E. Cultural Institutions. Nonprofit institutions displaying or preserving objects of interest in one or more of the arts or sciences. This classification includes libraries, museums, and art galleries. F. Day Care, Large-Family. Provision of non-medical care for 7 to 12 children on a less than 24-hour basis. G. Day Care, General. Provision of non-medical care for 13 or more persons on a less than 24-hour basis. This classification includes nursery schools, preschools, and day-care centers for children or adults. H. Emergency Health Care. Facilities providing emergency medical service with no provision for continuing care on an inpatient basis. I. Government Offices. Administrative, clerical, or public contact offices of a government agency, including postal facilities, together with incidental storage and maintenance of vehicles. J. Heliports. Pads and facilities enabling takeoffs and landings by helicopter. K. Hospitals. Facilities providing medical, surgical,psychiatric, or emergency medical services to sick or injured persons,primarily on an inpatient basis. This classification includes incidental facilities for out-patient treatment, as well as training, research, and administrative services for patients and employees. L. Maintenance and Service Facilities. Facilities providing maintenance and repair services for vehicles and equipment, and materials storage areas. This classification includes corporation yards, equipment service centers, and similar facilities. M. Marinas. A boat basin with docks, mooring facilities, supplies and equipment for small boats. N. Park and Recreation Facilities. Noncommercial parks, playgrounds, recreation facilities, and open spaces. O. Public Safety Facilities. Facilities for public safety and emergency services, including police and fire protection. P. Religious Assembly. Facilities for religious worship and incidental religious education, but not including private schools as defined in this section. 3 JENNIFER/SOB204 Leg.Draft 10/30/97 Q. Schools. Public or Private. Educational institutions having a curriculum comparable to that required in the public schools of the State of California. R. Utilities. Major. Generating plants, electrical substations, above-ground electrical transmission lines, switching buildings, refuse collection, transfer, recycling or disposal facilities, flood control or drainage facilities, water or wastewater treatment plants, transportation or communications utilities, and similar facilities of public agencies or public utilities. S. Utilities_ Minor. Utility facilities that are necessary to support legally established uses and involve only minor structures such as electrical distribution lines, underground water and.sewer lines, and recycling and collection containers. 204.10 Commercial Use Classifications regulatedas > baths, sauna baths and massage establisiff,e„ts as regulated b. Chapter- C 24; and figure .Y,adel st,,. ies ., r-egulated by Chapter- 5.60-. A4. Ambulance Services. Provision of emergency medical care or transportation, including incidental storage and maintenance of vehicles as regulated by Chapter 5.20. BE. Animal Sales and Services. 1. Animal Boarding. Provision of shelter and care for small animals on a commercial basis. This classification includes activities such as feeding, exercising, grooming, and incidental medical care, and kennels. 2. Animal Grooming. Provision of bathing and trimming services for small animals on a commercial basis. This classification includes boarding for a maximum period of 48 hours. 3. Animal Hospitals. Establishments where small animals receive medical and surgical treatment. This classification includes only facilities that are entirely enclosed, soundproofed, and air- conditioned. Grooming and temporary (maximum 30 days) boarding of animals are included, if incidental to the hospital use. 4. Animals: Retail Sales. Retail sales and boarding of small animals, provided such activities take place within an entirely enclosed building. This classification includes grooming, if incidental to the retail use, and boarding of animals not offered for sale for a maximum period of 48 hours. 5. Equestrian Centers. Establishments offering facilities for instruction in horseback riding, including rings, stables, and exercise areas. 4 JENNIFER/SOB204 Leg.Draft 10/30/97 6. Pet Cemetery. Land used or intended to be used for the burial of animals, ashes or remains of dead animals, including placement or erection of markers, headstones or monuments over such places of burial. CD. Artists' Studios. Work space for.:artists and artisans, including individuals practicing one of the fine arts or performing arts, or skilled in an applied art or craft. Dl✓. Banks and Savings and Loans. Financial institutions that provide retail banking services to individuals and businesses. This classification includes only those institutions engaged in the on-site circulation of cash money. It also includes businesses offering.check-cashing facilities. 1. With Drive-up Service. Institutions.providing services accessible to persons who remain in their automobiles. EF. Building Materials and Services. Retailing, wholesaling, or rental of building supplies or equipment. This classification includes lumber yards, tool and equipment sales or rental establishments, and building.contractors' yards, but excludes establishments devoted exclusively to retail sales of paint and hardware, and activities classified under Vehicle/Equipment Sales and Services. FG. Catering Services. Preparation and delivery of food and beverages for off- site consumption without provision for on-site pickup or consumption. (See also Eating and Drinking Establishments.) G14. Commercial Filming.. Commercial motion picture or video photography at the same location more than six days per quarter of a calendar year. (See also Chapter 5.54, Commercial Photography) HL Commercial Recreation and Entertainment. Provision of participant or spectator recreation or entertainment. This classification includes theaters, sports stadiums and arenas, amusement parks, bowling alleys, billiard parlors and poolrooms as regulated by Chapter 9.32; dance halls as regulated by Chapter 5.28; ice/roller skating rinks, golf courses, miniature golf courses, scale-model courses, shooting galleries,tennis/racquetball courts, health/fitness clubs,pinball arcades or electronic games centers having more than 4 coin-operated game machines as regulated by Chapter 9.28; card rooms as regulated by Chapter 9.24; and fortune telling as regulated by Chapter 5.72. 1. Limited. Indoor movie theaters, game centers and performing arts theaters and health/fitness clubs occupying less than 2,500 square feet. IJ. Communications Facilities. Broadcasting, recording, and other communication services accomplished through electronic or telephonic mechanisms, but excluding Utilities (Major). This classification includes radio, television, or recording studios; telephone switching centers; and telegraph offices; and cellular telephone facilities. 5 JENNIFER/SOB204 Leg.Draft 10/30/97 JIB. Eating and Drinking Establishments. Businesses serving prepared food or beverages for consumption on or off the premises. 1. With Fast-Food or Take-Out Service. Establishments where patrons order and pay for their food at a counter or window before it is consumed and may either pick up or be served such food at a table or take it off-site for consumption. a. Drive-through. Service from a building to persons in vehicles through an outdoor service window. b. Limited. Establishments that do not-serve persons in vehicles or at a table. 2. With Live Entertainment/Dancing. An eating or drinking establishment where dancing and/or live entertainment is allowed. This classification includes nightclubs subject to the requirements of Chapter 5.44 of the Municipal Code. K.L. Food and Beverage Sales. Retail sales of food and beverages for off-site preparation and consumption. Typical uses include-groceries, liquor stores, or delicatessens. Establishments at which 20 percent or more of the transactions are sales of prepared food for on-site or take-out consumption shall be classified as Catering Services or Eating and Drinking Establishments. 1. With Alcoholic Beverage Sales. Establishments where more than 10 percent of the floor area is devoted to sales, display and storage of alcoholic beverages. I.M. Food Processing. Establishments primarily engaged in the manufacturing or processing of food or beverages for human consumption and wholesale distribution. MN. Funeral and Interment Services. Establishments primarily engaged in the provision of services involving the care, preparation or disposition of human dead other than in cemeteries. Typical uses include crematories, columbariums, mausoleums or mortuaries. NO. Horticulture. The raising of fruits, vegetables, flowers, trees, and shrubs as a commercial enterprise. OP. Laboratories. Establishments providing medical or dental laboratory services; or establishments with less than 2,000 square feet providing photographic, analytical, or testing services. Other laboratories are classified as Limited Industry. PQ. Maintenance and Repair Services. Establishments providing appliance repair, office machine repair, or building maintenance services. This classification excludes maintenance and repair of vehicles or boats; see (Vehicle/Equipment Repair). 6 3ENNIFER/SOB204 Leg.Draft 10/30/97 i QR. Marine Sales and Services. Establishments providing supplies and equipment for shipping or related services or pleasure boating. Typical uses include chandleries, yacht brokerage and sales, boat yards, boat docks, and sail-making lofts. RS. Nurseries. Establishments in which all merchandise other than plants is kept within an enclosed building or a fully screened enclosure, and fertilizer of any type is stored and sold in package form only. ST. Offices. Business and Professional. Offices of firms or organizations providing professional, executive, management, or administrative services, such as architectural, engineering, graphic design, interior design, real estate, insurance, investment, legal, veterinary, and medical/dental offices. This classification includes medical/dental laboratories incidental to an office use, but excludes banks and savings,and loan associations. TJ3. Pawn Shops. Establishments engaged in the buying or selling of new or secondhand merchandise and offering loans secured by personal property and subject to Chapter 5.36 of the Municipal Code. U-V. Personal Enrichment Services. Provision of instructional services or facilities, including photography, fine arts, crafts, dance or music studios, driving schools, business and trade schools, and diet centers, reducing salons, and fitness studios. V-W. Personal Services. Provision of recurrently needed services of a personal nature. This classification includes barber and beauty shops, seamstresses, tailors, shoe repair shops, dry-cleaning businesses (excluding large-scale bulk cleaning plants), photo-copying, and self-service laundries. WX. Research and Development Services. Establishments primarily engaged in industrial or scientific research, including limited product testing. This classification includes electron research firms or pharmaceutical research laboratories, but excludes manufacturing, except of prototypes, or medical testing and analysis. X-Y. Retail Sales. The retail sale of merchandise not specifically listed under another use classification. This classification includes department stores, drug stores, clothing stores, and furniture stores, and businesses retailing the following goods: toys, hobby materials, handcrafted items,jewelry, cameras, photographic supplies, medical supplies and equipment, electronic equipment, records, sporting goods, surfing boards and equipment, kitchen utensils, hardware, appliances, antiques, art supplies and services, paint and wallpaper, carpeting and floor covering, office supplies, bicycles, and new automotive parts and accessories (excluding service and installation). YZ. Secondhand Appliances and Clothing Sales. The retail sale of used appliances and clothing by secondhand dealers who are subject to Chapter 5.36. This classification excludes antique shops primarily engaged in the sale of used furniture and accessories other than appliances, but includes junk shops. 7 JENNIFER/SOB204 Leg.Draft 10130/97 Z. Sex Oriented Businesses. Establishments as regulated by Chapter 5.70; baths, sauna, baths and massagge establishments, as regulated by Chapter 5.24; and figure model studios as regulated iby Chapter 5.60. AA. Swap Meets, Indoor/Flea Markets. An occasional, periodic or regularly scheduled market held within a building where groups of individual vendors offer goods for sale to the public. BB. Swap Meets, Recurring. Retail sale or exchange of handcrafted or secondhand merchandise for a maximum period of 32 consecutive hours, conducted by a sponsor on a more than twice yearly basis. CC. Tattoo Establishment. Premises used for the business of marking or coloring the skin with tattoos as regulated.by Chapter 8.70. DD. Travel Services. Establishments.providing travel information and reservations to individuals and businesses. This classification excludes car rental agencies. EE. Vehicle/Equipment Sales and Services. 1. Automobile Rentals. Rental of automobiles, including storage and incidental maintenance, but excluding maintenance requiring pneumatic lifts. 2., Automobile Washing. Washing, waxing, or cleaning of automobiles or similar light vehicles. 3. Commercial Parking Facility. Lots offering short-term or long-term parking to the public for a fee. 4. Service Stations. Establishments engaged in the retail sale of gas, diesel fuel, lubricants, parts, and accessories. This classification includes incidental maintenance and minor repair of motor vehicles, but excluding body and fender work or major repair of automobiles, motorcycles, light and heavy trucks or other vehicles. 5. Vehicle/Equipment Repair. Repair of automobiles, trucks, motorcycles, mobile homes, recreational vehicles, or boats, including the sale, installation, and servicing of related equipment and parts. This classification includes auto repair shops, body and fender shops, transmission shops, wheel and brake shops, and tire sales and installation, but excludes vehicle dismantling or salvage and tire retreading or recapping. a. Limited. Light repair and sale of goods and services for vehicles, including brakes, muffler, tire shops, oil and lube, and accessory uses, but excluding body and fender shops, upholstery, painting, and rebuilding or reconditioning of vehicles. 6. Vehicle/Equipment Sales and Rentals. Sale or rental of automobiles, motorcycles, trucks,tractors, construction or agricultural equipment, 8 JENNIFER/SOB204 Leg.Draft 10/30/97 manufactured homes, boats, and similar equipment, including storage and incidental maintenance. 7. Vehicle Storage. Storage of operative or inoperative vehicles. This classification includes storage of parking tow-aways, impound yards, and storage lots for automobiles, trucks, buses and recreational vehicles, but does not include vehicle dismantling. FF. Visitor Accommodations. 1. Bed and Breakfast Inns: Establishments offering lodging on a less than weekly basis in a converted single-family or multi-family dwelling or a building of residential design, with incidental eating and drinking service for lodgers only provided from a.single kitchen. 2. Hotels and Motels. Establishments offering lodging on a weekly or less than weekly basis. Motels may have kitchens in no more than 25 percent of guest units, and "suite" hotels may have kitchens in all units. This classification includes eating, drinking, and banquet service associated with the facility. (3334) GG. Warehouse and Sales Outlets. Businesses which store large inventories of goods in industrial-style buildings where these goods are not produced on the site but are offered to the public for sale. HH. Quasi Residential 1. Residential Hotels. Buildings with 6 or more guest rooms without kitchen facilities in individual rooms, or kitchen facilities for the exclusive use of guests, and which are intended for occupancy on a weekly or monthly basis. 2. Single Room Occupancy. Buildings designed as a residential hotel consisting of a cluster of guest units providing sleeping and living facilities in which sanitary facilities and cooking facilities are provided within each unit; tenancies are weekly or monthly. 3. Time-Share Facilities. A facility in which the purchaser receives the right in perpetuity, for life or for a term of years, to the recurrent exclusive use or occupancy of a lot, parcel, unit or segment of real property, annually or on some other periodic basis for a period of time that has been or will be allocated from the use or occupancy periods into which the plan has been divided. A time-share plan may be coupled with an estate in the real property or it may entail a license or contract and/or membership right of occupancy not coupled with an estate in the real property. (3334) 9 JENNIFER/SOB204 Leg.Draft 10/30/97 204.12 Industrial Use Classifications A. Industry. Custom. Establishments primarily engaged in on-site production of goods by hand manufacturing involving the use of hand tools and small- scale equipment. l. Small-scale. Includes mechanical equipment not exceeding 2 horsepower or a single kiln not exceeding 8 kilowatts and the incidental direct sale to consumers of only those goods produced on- site. Typical uses include ceramic studios, candle-making shops, and custom jewelry manufacture. B. Industry. General. Manufacturing of products, primarily from extracted or raw materials, or bulk storage and handling of such products and materials. Uses in this classification typically involve a high incidence of truck or rail traffic, and/or outdoor storage of,products, materials, equipment, or bulk fuel. This classification includes chemical manufacture or processing, food processing and packaging, laundry and dry cleaning plants, auto dismantling within an enclosed building, stonework and concrete products manufacture (excluding concrete ready-mix plants), small animal production and processing within an enclosed building, and power generation. C. Industrv, Limited. Manufacturing of finished parts or products, primarily from previously prepared materials; and provision of industrial services, both within an enclosed building. This classification includes processing, fabrication, assembly, treatment,land packaging, but excludes basic industrial processing from raw materials and Vehicle/Equipment Services, but does allow food processing for human consumption. D. Industry. Research and Development. Establishments primarily engaged in the research, development, and controlled production of high-technology electronic, industrial or scientific products or commodities for sale, but prohibits uses that may be objectionable in the opinion of the Director, by reason of production of offensive odor, dust, noise, vibration, or in the opinion of the Fire Chief by reason of storage of hazardous materials. Uses include aerospace and biotechnology firms, and non-toxic computer component manufacturers. This classification also includes assembly, testing and repair of components, devices, equipment, systems, parts and components such as but not limited to the following: coils, tubes, semi-conductors; communication, navigation, guidance and control equipment; data processing equipment; filing and labeling machinery; glass edging and silvering equipment; graphics and art equipment; metering equipment; optical devices and equipment; photographic equipment; radar, infrared and ultraviolet equipment; radio and television equipment. This classification also includes the manufacture of components, devices, equipment, parts and systems which includes assembly, fabricating, plating and processing, testing and repair, such as but not limited to the following: machine and metal fabricating shops, model and spray painting shops, environmental test, including vibration analysis, cryogenics, and related functions, plating and processing shops, nuclear and radioisotope. 10 JENNIFER/sOB204 Leg.Draft 10/30/97 �a This classification also includes research and development laboratories including biochemical and chemical development facilities for national welfare on land, sea, or air; and facilities for film and photography, metallurgy; pharmaceutical, and medical and x-ray research. E. Wholesaling. Distribution and Storage. Storage and distribution facilities without sales to the public on-site or direct public access except for recycling facilities and public storage in a small individual space exclusively and directly accessible to a specific tenant. This classification includes mini- warehouses. 204.14 Accessory Use Classifications Accessory Uses and Structures. Uses and structures that are incidental to the principal permitted or conditionally permitted use or structure on a site and are customarily found on the same site. This classification includes detached or attached garages, home occupations, caretakers' units, and dormitory type housing for industrial commercial workers employed on the site, and accessory dwelling units. 204.16 Temporary Use Classifications A. Animal Shows. Exhibitions of domestic or large animals for a maximum of seven days. B. Circuses and Carnivals. Provision of games, eating and drinking facilities, live entertainment, animal exhibitions, or similar activities in a tent or other temporary structure for a maximum of seven days. This classification excludes events conducted in a permanent entertainment facility. C. Commercial Filming. Limited. Commercial motion picture or video photography at a specific location six or fewer days per quarter of a calendar year. (See also Chapter 5.54, Commercial Photography) D. Personal Propea Sales. Sales of personal property by a resident ("garage sales") for a period not to exceed 48 consecutive hours and no more than once every six months. E. Real_Estate Sales. An office for the marketing, sales, or rental of residential, commercial, or industrial development. This classification includes "model homes." F. Retail Sales. Outdoor. Retail sales of new merchandise on the site of a legally established retail business for a period not to exceed 48 consecutive hours no more than once every 3 months. 11 G. Seasonal Sales. Retail sales of seasonal products, including Christmas trees, Halloween pumpkins and strawberries. H. Street Fairs. Provision of games, eating and drinking facilities, live entertainment, or similar activities not requiring the use of roofed structures. 11 JENTNIFER/SOB204 Leg.Draft 10/30/97 f I. Trade Fairs. Display and sale of goods or equipment related to a specific trade or industry for a maximum period of five days per year. J. Temporary Event. Those temporary activities located within the coastal zone that do not qualify for an exemption pursuant to Section 245.08. (3334) 12 JENNIFER/SOB204 Leg.Draft 10/30/97 ATTACHMENT 4 LEGISLATIVE DRAFT 3337 8 Chapter 211 C.Comirierdal Districts � Section 211.02 Commercial Districts Established 211.04 CO, CG, and CV Districts: Land Use Controls 211.06 CO, CG and CV Districts: Development Standards 211.08 Review of Plans 211.02 Commercial Districts Established The purpose of the Commercial districts is to implement the General Plan and Local Coastal Program commercial land use designations. Three(3)commercial zoning districts are established by this chapter as follows: (3334) A. The CO Office Commercial District provides sites for offices for administrative, financial,professional,medical and business needs. B. The CG General Commercial District provides opportunities for the full range of retail and service businesses deemed suitable for location in Huntington Beach. C. The CV Visitor Commercial District implements the Visitor Serving Commercial land use designation within the coastal zone and provides uses of specific benefit to coastal visitors. More specifically,the CV district provides opportunities for visitor-oriented commercial activities, including specialty and beach related retail shops,restaurants,hotels, motels,theaters,museums, and related services. (3334) 211.04 CO, CG, and CV Districts: Land Use Controls In the following schedules, letter designations are used as follows: "P" designates use classifications permitted in commercial districts. "L" designates use classifications subject to certain limitations prescribed by the "Additional Provisions" that follow. "PC" designates use classifications permitted on approval of a conditional use permit by the Planning Commission. "ZA" designates use classifications permitted on approval of a conditional use permit by the Zoning Administrator. "TU" designates use classifications allowed upon approval of a temporary use permit. JENNIFER/SOBC211 "P/U" for an accessory use means that the use is permitted on the site of a permitted use,but requires a conditional use permit on the site of a conditional use. Use classifications that are not listed are prohibited. Letters in parentheses in the "Additional Provisions" column refer to provisions following the schedule or located elsewhere in the Zoning Ordinance. Where letters in parentheses are opposite a use classification heading, referenced provisions shall apply to all use classifications under the heading. P = Permitted CO, CG, L = Limited (see Additional Provisions) and CV PC = Conditional use permit approved by Planning Commission Districts ZA = Conditional use permit approved by Zoning Administrator Land Use TU = Temporary Use Permit Controls P/U = Requires conditional use permit on site of conditional use Not Permitted CO CG CV Additional Provisions Residential (J)(Q)(R)(V) (3334) Group Residential PC PC PC (3334) Multifamily Residential - - PC (3334) Public and Semipublic (A)(J)(Q)(R)(V) (3334) Cemetery - - - Clubs and Lodges ZA ZA - (3334) Community and Human Services Drug Abuse Centers - PC - Primary Health Care L-2 L-2 - Emergency Kitchens - L-2 - Emergency Shelters - L-2 - Residential Alcohol Recovery, General - PC - Residential Care, General PC PC - Convalescent Facilities PC PC - Cultural Institutions PC PC PC Day Care, General L-2 L-2 - Day Care, Large-Family L-2 L-2 - Emergency Health Care L-2 L-2 - (3334) Government Offices P P PC (3334) Heliports PC PC PC (B) Hospitals PC PC - (3334) Park& Recreation Facilities L-9 L-9 L-9 Public Safety Facilities PC PC PC Religious Assembly PC PC - Schools, Public or Private PC PC - Utilities, Major PC PC PC Utilities, Minor P P P (L) JENNIFER/SOBC211 P = Permitted CO, CG, L = Limited(see Additional Provisions) and CV PC = Conditional use permit approved by Planning Commission Districts ZA = Conditional use Permit approved by Zoning Administrator Land Use TU = Temporary Use Permit Controls P/U = Requires conditional use permit on site of conditional use Not Permitted CO CG CV Additional Provisions Commercial Uses (J)(Q)(R) (3341-10/96) Adult It Businesses _ g g (G) (3341 10M) (exeluding massage) Adult l t Businesses - PIG P-G (—) (massage establishments) Ambulance Services - ZA - Animal Sales & Services Animal Boarding - PC - Animal Grooming - P - Animal Hospitals - PC - Animals: Retail Sales - P - Equestrian Centers - PC - (S) Pet Cemetery - PC - Artists' Studios P P P Banks and Savings & Loans P P P With Drive-Up Service ZA ZA ZA Building Materials and Services - P - Catering Services P P P Commercial Filming P P P (F) Commercial Recreation and Entertainment - PC PC (D) Communication Facilities P P P Eating and Drinking Estab. L-4 L-4 L-4 (N) w/Fast-Food or Take-Out Service ZA ZA ZA Drive Through - L-4 L-4 w/Live Entertainment/Dancing PC PC PC (H) Food& Beverage Sales - P L-2 w/Alcoholic Beverage Sales - ZA ZA (N) Funeral & Internment Services - ZA - Laboratories L-1 L-1 - Maintenance & Repair Services - P - Marine Sales and Services - P P Nurseries - ZA - Offices, Business & Professional P P P (3334) Pawn Shops - ZA - Personal Enrichment Services L-2 L-2 - Personal Services P P P Research& Development Services L-1 ZA - Retail Sales - P P (U)(V) (3285-6/95,3334) Secondhand Appliances/Clothing - P - JENNIFER/SOBC211 I .l P = Permitted CO, CG, L = Limited (see Additional Provisions) and CV PC = Conditional use permit approved by Planning Commission Districts ZA = Conditional use permit approved by Zoning Administrator Land Use TU = Temporary Use Permit Controls P/U = Requires conditional use permit on site of conditional use Not Permitted CO CG CV Additional Provisions Tattoo Establishments - PC - (C) Automobile Washing - L-7 - Commercial Parking - PC PC (P) Service Stations - PC PC (E) Vehicle Equip. Repair - L-5 - Vehicle Equip. Sales & Rentals - PC - Vehicle Storage - - - Visitor Accommodations Bed & Breakfast Inns PC PC PC (K) Hotels, Motels - PC PC (I) (3334) Quasi Residential (3334) Time Shares - PC PC (I)(J) (3334) Residential Hotel - PC PC (J) Single Room Occupancy - PC PC (J)(0) Industrial (J)(Q)(R)(V) (3334) Industry, Custom - L-6 L-6 Accessory Uses (J)(V) (3334) Accessory Uses & Structures P/U P/U P/U Temporary Uses (F)(J)(V) (3334) Animal Shows - TU - Circus and Carnivals - TU - Commercial Filming, Limited - P P (M) Real Estate Sales ZA ZA ZA Retail Sales, Outdoor - P P (M) Seasonal Sales P P P (M) Trade Fairs - TU - Nonconforming Uses (G)(J)(V) (3334) JENNIFER/SOBC211 CO, CG, and CV Districts: Additional Provisions L-1 Permitted if the space is 2,500 square feet or less; allowed with a conditional use permit from the Zoning Administrator if the laboratory space exceeds 2,500 square feet. L-2 Allowed with a conditional use permit from the Zoning Administrator if the space is 2,500 square feet or less; allowed with a conditional use permit from the Planning Commission if the space exceeds 2,500 square feet. L-3 Repealed (3334) L-4 Permitted with a maximum seating capacity of 12; allowed with a conditional use permit from the Zoning Administrator if seating capacity exceeds 12. L-5 Only "limited" facilities are allowed subject to approval of a conditional use permit from the Planning Commission, andbody and fender shops are permitted only as part of a comprehensive automobile:=service complex operated by a new vehicle dealer. L-6 Only "small-scale" facilities, as described in Use Classifications, are allowed with a conditional use permit from the Zoning Administrator and maximum 7 persons may be employed full time in processing or treating retail products, limited to those sold on the premises. L-7 Attended facilities allowed with a conditional use permit from the Planning Commission; unattended facilities allowed with a conditional use permit from the Zoning Administrator. L-8 On-site storage limited to two rental cars. L-9 Public facilities permitted, but a conditional use permit from the Zoning Administrator is required for commercial facilities. (A) Limited to facilities on sites 2 acres or less. (B) See Section 230.40: Helicopter Takeoff and Landing Areas. (G) The eK4er-ier-walls of a proposed adult business or-tattoo establislmnent shall be, at least 200 feet€r-efn any let zoned for-residential 500 feet fem-all),edueatienal facility frequented by miner-s,5nn��remror- any building used fbr-r-eligieus assembly, a� nt least 1 000 feet f e.�, another-adult.bu-s ..os- >~e.-pufpeses of these 11 rrr avrr�r a,vvv ivvr a.a vaaa LuaV uaL.a MMM1L VLLJ111VJJ. S Vl YLLS�.IVJ{.rJ�JTRLV , dicta ees shall be w. red � st-Fa r.l.4 line from t e M nearest point o f the p i4 f-41. r.a�_�_____ _______ __ ____������ ����..����D�������� uav aavw vvr rvaaar va raav t/Vara Val VL LaaV JENNIFER/SOBC211 See Chapter-5.70: Adult Business; Chapter- 5.24; Baths, Sauna Baths, and Massage Establishments; Chapter-5.60; Figure Medel Studies; Chapter- 8.70: T-aae Establishmen4 s. (D) See Section 230.38: Game Centers; Chapter 5.28: Dance Halls; Chapter 9.24: Card Rooms; Chapter 9.32: Poolrooms and-Billiards; and Chapter 9.28: Pinball Machines. (E) See Section 230.32: Service Stations. (F) See Section 241.20: Temporary Use Permits (G) See Chapter 236: Nonconforming Uses and Structures. (H) For teen dancing facilities, bicycle racks or a special bicycle parking area shall be provided. These may not obstruct either the public sidewalk or the building entry. See also Chapter 5.28: Dancing Halls; Chapter 5.44: Restaurants- Amusement and Entertainment Premises, and Chapter 5.70: Adult Entertainment Businesses. (3341-10/96) (I) Only permitted on a major arterial street, and a passive or active outdoor recreational amenity shall be provided, subject to approval of the Planning Commission. (J) In the CV District the entire ground floor area and at least one-third of the total floor area shall be devoted to visitor-oriented uses as described in the certified Local Coastal Program Land Use Plan. Any use other than visitor serving commercial shall be located above the ground level, and a conditional use permit from the Planning Commission is required. Any use other than visitor serving commercial uses shall only be permitted if visitor serving uses are either provided prior to the other use or assured by deed restriction as part of the development. No office or residential uses shall be permitted in any visitor serving designation seaward of Pacific Coast Highway. (3334) (K) See Section 230.42: Bed and Breakfast Inns. (L) See Section 230.44: Recycling Operations. (M) Subject to approval by the Police Department, Public Works Department, Fire Department and the Director. See also Section 230.86 Seasonal Sales. (N) The following businesses proposing to sell alcoholic beverages for on-site or off-site consumption are exempt from the conditional use permit process: (1) Retail markets with no more than 10 percent of the floor area devoted to sales, display, and storage of alcoholic beverages provided the sale of alcoholic beverages is not carried on in conjunction with the sale of gasoline or other motor vehicle fuel. (2) Restaurants, bars, and liquor stores that are located 300 feet or more from any R or PS district, school, church, or public use. JENNIFER/SOBC211 (3) Florist shops offering the sale of a bottle of an alcoholic beverage together with a floral arrangement. (0) See Section 230.46: Single Room Occupancy. (P) See Chapter 231 for temporary and seasonal parking. (Q) Development of vacant land or initial construction of a building for permitted use requires approval of a conditional use permit from the Zoning Administrator. (R) Projects within 500 feet of a PS District see Chapter 244. (S) See Section 230.48: Equestrian Centers (T) See Section 230.50: Indoor Swap Meets/Flea Markets (U) See Section 230.94: Carts and Kiosks (Note:Not certified by the California Coastal Commission;however, these provisions are in effect and will be enforced by the City Council of Huntington Beach.) (3248-6/95,3334) (V) In the coastal zone, the preferred retail sales;uses are those identified in the Visitor Serving Commercial land use designation which provide opportunities for visitor-oriented commercial activities including specialty and beach related retail shops, restaurants, hotels, motels, theaters,museums, and related services. 211.06 CO, CG and CV Districts: Development Standards The following schedule prescribes development standards for the CO, CG and CV districts. The first three columns prescribe basic requirements for permitted and conditional uses in each district. Letters in parentheses in the "Additional Requirements" column refer to standards following the schedule or located elsewhere in the zoning ordinance. In calculating the maximum gross floor area as defined in . Chapter 203, the floor area ratio is calculated on the basis of net site area. Fractional numbers shall be rounded down to the nearest whole number. All required setbacks shall be measured from ultimate right-of-way and in accordance with definitions set forth in Chapter 203, Definitions. (Rest of page not used) JENNIFER/SOBC211 CO, CG and CV DISTRICTS DEVELOPMENT STANDARDS CO CG CV Additional Requirements Residential Development (A)(B) Nonresidential Development (B) Minimum Lot Area(sq. ft.) 10,000 10,000 10,000 (C) Minimum Lot Width (ft.) 100 100 100 Minimum Setbacks Front(ft.) 10 10 - (D)(E)(0) Side (ft.) 5 - - (F) Street Side (ft.) 10 10 - (E) Rear(ft.) 5 - - (F) Maximum Height of Structures (ft.) 40 50 50 (F)(G) Maximum Wall Dimensions (N) Maximum Floor Area Ratio (FAR) 1.0 1.5 1.5 Minimum Site Landscaping (%) 8 8 8 (H)(I) Building Design Standards (0) Fences and Walls (J)(K) Off-Street Parking/Loading (L) Outdoor Facilities See Section 230.74 Screening of Mechanical Equipment See Section 230.76 (M) Refuse Storage Areas See Section 230.78 Underground Utilities See Chapter 17.64 Performance Standards See Section 230.82 Nonconforming Structures See Chapter 236 Signs See Chapter 233 CO, CG, and CV Districts: Additional Development Standards (A) Dwelling units shall be subject to the standards for minimum setbacks,height limits, maximum density, open space,balconies and bay windows, and parking for the RMH District. The setback standards shall apply only to the stories of a building that are intended for residential use. (B) See Section 230.62: Building Site Required and Section 230.64: Development on Substandard Lots. (C) The minimum site area for a hotel or motel is 20,000 square feet. (D) See Section 230.68: Building Projections into Yards and Required Open Space. Double-frontage lots shall provide front yards on each frontage. (E) A minimum 50-foot setback is required along Beach Boulevard, Pacific Coast Highway and Edinger Avenue or 25-foot setback with the setback area entirely landscaped. JENNIFER/SOBC211 (F) Along a side or rear property line abutting an R district, a 10-foot setback is required, and structures within 45 feet of the district boundary shall not exceed 18 feet in height. (G) See Section 230.70: Measurement of Height and Section 230.72: Exceptions to Height Limits. (H) Planting Areas: (1) Required front and street side yards shall be planting areas except properties with 50 foot setback shall provide a minimum 10 foot wide planting area along street frontages. (2) Required side and rear yards shall be planting areas or shall be enclosed by a solid concrete or masonry wall at least 6 feet in height. (3) Hotels and Motels. A 15-foot wide landscaped strip shall be provided along all street frontages, except for necessary driveways and walks. (I) See Chapter 232: Landscape Improvements. (J) See Section 230.88: Fencing and Yards. (K) A solid masonry or concrete wall at least 6 feet in height shall adjoin the site of an existing ground-floor residential use. However, where the portion of the site within 10 feet of the front property line is occupied by planting area or by a building having no openings except openings opposite a street property line, the Director may grant an exception to this requirement. A wall within 15 feet of a street property line shall not exceed 3.5 feet in height. (L) See Chapter 231: Off-Street Parking and Loading. (M) See Section 230.44: Recycling Operations and Section 230.80: Antennae. (N) A front or street side wall surface shall be no longer than 100 feet without a break, a recess or offset measuring at least 20 feet in depth and one-quarter of the building length, or a series of offsets,projections or recesses at intervals of not more than 40 feet that vary the depth of the building wall by a minimum of 4 feet. The Director may grant exceptions or allow these standards to be modified for exceptional or unique structures subject to Design Review, Chapter 244. (Rest of page not used) JENNIFER/SOBC211 2p ft ft. I Max.100 ft. 100 ft. unbroken wall—' t 25 ft. or more 1 Single Horizonal Offsets: 20ft. Mal- 100 ft. unbroken wall 2 ft. 20ft. 40FT. Min. 4 ft. recess :77- T f 25 ft. 25% of wall or more must be varied 1 Variable Offsets- 20 ft. and 4 ft. 211_OFFS MAXIMUM WALL LENGTH AND REQUIRED BREAK (0) Two building design standards are established to make commercial areas more attractive and provide a unified streetscape: (1) In the CV District a 10-foot minimum upper-story setback is required above the second story. (Rest of page not used) JENNIFER/SOBC211 1 Required Setback 1 Max.two stories without vertical break 211-cvsB. CV DISTRICT: UPPER-STORY SETBACK (2) In the CO and CV Districts, and on frontages adjacent to major or primary arterials in the CG District at least 40 percent of a building surface may be located at the minimum setback line if additional landscaping is provided on the site. Min. 40 percent of front building elevation at setback line Setback line 211-FACE.BW BUILDING FACE AT SETBACK LINE 211.08 Review of Plans All applications for new construction, initial establishment of use, exterior alterations and additions shall be submitted to the Community Development Department for review. Discretionary review shall be required as follows: A. Zoning Administrator Review. Projects requiring a conditional use permit from the Zoning Administrator; projects on substandard lots; see Chapter 241. B. Design Review Board. Projects within redevelopment project areas and areas subject to specific plans;projects within 500 feet of a PS District; see Chapter 244. C. Planning Commission. Projects requiring a conditional use permit from the Planning Commission; see Chapter 241. D. Projects in the Coastal Zone. A Coastal Development Permit is required unless the project is exempt; see Chapter 245. JENNIFER/SOBC211 ATTACHMENT 5 LEGISLATIVE DRAFT `A 337 Chapter 212 I Industrial Districts Sections: 212.02 Industrial Districts Established 212.04 IG and IL Districts: Land Use Controls 212.06 IG and IL Districts: Development Standards 212.08 Review of Plans 212.02 Industrial Districts Established Two (2) industrial zoning districts are established by this chapter as follows: A. The IG General Industrial District provides sites for the full range of manufacturing, industrial processing,resource and energy production, general service, and distribution. B. The IL Limited Industrial District provides sites for moderate-to low-intensity industrial uses, commercial services and light manufacturing. 212.04 IG and IL Districts: Land Use Controls In the following schedules, letter designations are used as follows: "P" designates use classifications permitted in the I districts. "L" designates use classifications subject to certain limitations prescribed by the "Additional Provisions" which follow. "PC" designates use classifications permitted on approval of a conditional use permit by the Planning Commission. "ZA" designates use classifications permitted on approval of a conditional use permit by the Zoning Administrator. "TU" designates use classifications allowed upon approval of a temporary use permit by the Zoning Administrator. "P/U" for an accessory use means that the use is permitted on the site of a permitted use,but requires a conditional use permit on the site of a conditional use. Use classifications that are not listed are prohibited. Letters in parentheses in the "Additional Provisions" column refer to requirements following the schedule or located elsewhere in this ordinance. Where letters in parentheses are opposite a use classification heading,referenced provisions shall apply to all use classifications under the heading. t jmp/kA egistdrR/sob212/11/4/97 ,.1 IG AND IL P - Permitted DISTRICTS: L - Limited (see Additional Provisions) LAND USE PC - Conditional use permit approved by Planning Commission CONTROLS ZA - Conditional use permit approved by Zoning Administrator TU - Temporary Use Permit P/U - Requires conditional use permit on site of conditional use Not Permitted Additional IG IL Provisions Residential Group Residential PC PC (� Public and Semipublic (A)(M) Community and Human Service Facilities PC PC (L) Day Care, General PC PC Heliports Maintenance & Service Facilities PC PC (0) Public Safety Facilities P P Religious Assembly L-10 L-10 Schools, Public or Private L-6 L-6 Utilities, Major PC PC Utilities, Minor L-7 L-7 (P) Commercial Uses (D)(M) Ambulance Services ZA ZA Animal Sales and Services Animal Boarding - PC Animal Hospitals - PC Artists' Studios P P Banks and Savings and Loans L-1 L-1 Building Materials and Services P P Catering Services - P Commercial Filming ZA ZA Commercial Recreation and Entertainment L-2 L-2 Communication Facilities P P Eating & Drinking Establishments L-3 L-3 Food & Beverage Sales PC PC Hospitals and Medical Clinics - PC Laboratories P P Maintenance & Repair Services P P Marine Sales and Services P P Nurseries P P Offices, Business & Professional L-1 L-1 (H) 2 jmp/k/1egistdrft/sob212/11/4/9'7 IG AND IL P - Permitted DISTRICTS: L - Limited(see Additional Provisions) LAND USE PC - Conditional use permit approved by Planning Commission CONTROLS ZA- Conditional use permit approved by Zoning Administrator TU - Temporary Use Permit P/U - Requires conditional use permit on site of conditional use - Not Permitted Additional IG IL Provisions Personal Enrichment L-9 L-9 Personal Services L-1 L-1 Research& Development Services P P Sex Oriented Businesses L-11 L-11 regulated by HBMC Chapter 7 Sex Oriented Businesses PC PC (R) (regulated byy HBMC Chapters 5.25 and 5.60) Swap Meets, Indoor/Flea Markets PC PC (Q) Vehicle/Equipment Sales & Services Service Stations L-4 L-4 Vehicle/Equipment Repair P P Vehicle/Equip. Sales/Rentals L-5 L-5 Vehicle Storage P ZA (1) Visitor Accommodations PC PC (K) Warehouse and Sales Outlets L-8 L-8 Industrial (See Chapter 204) (B)(M)(N) Industry, Custom P P Industry, General P P Industry, Limited P P Industry, R& D P P Wholesaling, Distribution& Storage P P Accessory Uses Accessory Uses and Structures P/U P/U (C) Temporary Uses Real Estate Sales P P Trade Fairs TU TU (E) Nonconforming Uses (F) 3 j mp/k/1egistdrft/sob212/11/4/97 IG AND IL Districts: Additional Provisions L-1 Only allowed upon approval of a conditional use permit by the Planning Commission for a mixed use project, subject to the following requirements: Minimum site area: 3 acres Maximum commercial space: 35 percent of the gross floor area and 50 percent of the ground floor area of buildings fronting on an arterial highway. Phased development: 25 percent of the initial phase must be designed for industrial occupancy. For projects over 500,000 square'feet, the initial phase must include 5 percent of the total amount of industrial space or 50,000 square feet of industrial space, whichever is greater. L-2 Allowed upon approval of a conditional use permit by the Planning Commission when designed and oriented for principal use by employees of the surrounding industrial development or when designed for general public use, after considering vehicular access and parking requirements. L-3 Allowed upon approval of a conditional use permit by the Planning Commission when in a free-standing structure or as a secondary use in a building provided that no more than 20 percent of the floor area is occupied by such a use. L-4 Only stations offering services primarily oriented to businesses located in an I District are allowed with a conditional use permit by the Planning Commission. L-5 No new or used automobile,truck or motorcycle retail sales are permitted. L-6 Only schools offering higher education curriculums are allowed with conditional use permit approval by the Planning Commission. No day care, elementary or secondary schools are permitted. L-7 Recycling Operations as an accessory use are permitted; recycling operations as a primary use are allowed upon approval of a conditional use permit by the Planning Commission. L-8 Allowed upon conditional use permit approval by the Planning Commission when a single building with a minimum area of 100,000 square feet is proposed on a site fronting an arterial. The primary tenant shall occupy a minimum 95%of the floor area and the remaining 5%may be occupied by secondary tenants. L-9 Allowed by conditional use permit approval by the Zoning Administrator if the space is 2,500 square feet or less; allowed by conditional use permit approval by the Planning Commission if the space is over 2,500 square feet. L-10 Allowed by conditional use permit approval by the Zoning Administrator as a secondary use; allowed by conditional use permit approval by the Planning Commission as a primary use for a period of time not to exceed five (5)years. 4 jmp/k/legistdrft/sob212/11/4/97 L-11 Allowed subject to the following requirements: A. A proposed sex oriented business shall be at least five hundred feet (5001) from any residential use, school, park and recreational facility, or any building used for religious assembly (collectively referred to as a "sensitive use") and at least 750 feet from another sex oriented business. For purposes of these requirements, all distances shall be measured from the lot line of the proposed sex oriented business to the lot line of-the sensitive use or the other sex oriented business. The term "residential use" means any property zoned RL, RM, RMH, RH, RMP, and any properties with equivalent designations under any specific plan. To determine such distances the applicant shall submit for review a straight line drawing depicting the distances from the lot line of the parcel of land on which the sex oriented business is proposed which includes all the proposed parking and: 1. the lot line of any other sex oriented business within seven hundred fifty feet (750') of the lot line of the proposed sex oriented business; and 2. the lot line of any building used for religious assembly, school, or park & recreational facility within five hundred feet (500') of the lot line of the proposed sex oriented business;and 3. the lot line of any parcel of land zoned RL, RM, RMH, RH, and RMP and any parcels of land with equivalent designations under any specific plans within five hundred feet (500') of the lot line of the proposed sex oriented business. B. The front facade of the building, including the entrance, shall not be visible from any major, primary or secondary arterial street as designated by the circulation element of the General Plan adopted May, 1996, with the exception of Argosy Drive. C. Prior to or concurrently with applying for a building permit and/or a certificate of occupancy for the building, the applicant shall submit application for staff review of a sex oriented business zoning permit with the drawing described in subsection A, a technical site plan, floor plans and building s jmp/k/legistdrft/sob212/N'ovember 12, 1997 elevations, and application fee. Within ten (10) days of submittal, the Director shall determine if the application is complete. If the application is deemed incomplete, the applicant may resubmit a completed application within ten (10) days. Within thirty days of receipt of a completed application, the Director shall determine if the application complies with the applicable development and performance standards of the Huntington Beach Zoning and Subdivision Ordinance. Said standards include but are not limited to the following: 1. Chapter 203, Definitions; Chapter 212, Industrial Districts; Chapter 230, Site Standards; Chapter 231, Off-Street Parking & Loading Provisions; Chapter 232, Landscape Improvements; and Chapter 236, Nonconforming Uses and Structures. 2. Chapter 233.08(b), Signs. Signage shall conform to the standards of the Huntington Beach Zoning and Subdivision Ordinance Code except that such signs shall contain no suggestive or graphic language, photographs, silhouettes, drawings, statues, monuments, sign shapes or sign projections, or other graphic representations, which depict the human body or anatomy, or any portion-thereof, whether clothed or unclothed, including without limitation representations that depict "specified anatomical areas" or "specified sexual activities." 3. Compliance with Huntington Beach Municipal Code Chapter 5.70. The Director shall grant or deny the application for a sex oriented business zoning permit for a sex oriented business. There shall be no administrative appeal from the granting or denial of a permit application thereby permitting the applicant to obtain prompt judicial review. A Notice of Decision shall be forwarded to all property owners within three hundred feet (300') of the proposed location of the sex oriented business. D. A sex oriented business may not apply for a variance pursuant to Chapter 241 nor a special sign permit pursuant to Chapter 233. E. A sex oriented business zoning permit shall become null and void one year after its date of approval unless: 6 jmp/k/1egistdrR/sob212/11/12/97 1. Construction has commenced or a Certificate of Occupancy has been issued, whichever comes first; or 2. The use is established. F. The validity of a sex oriented business zoning permit shall not be affected by changes in ownership or proprietorship provided that the new owner or proprietor promptly notifies the Director of the transfer. G. A sex oriented business zoning permit shall lapse if the exercise of rights granted by it is discontinued for 12 consecutive months. (rest of page not used) 7 j mp/1-Aegistdrft/sob212/11/12/97 IG AND IL Districts: Additional Provisions(continued) (A) Limited to facilities on sites of 2 acres or less. (B) A conditional use permit from the Zoning Administrator is required for any new use or enlargement of an existing use, or exterior alterations and additions for an existing use located within 150 feet of an R district. The Director may waive this requirement if there is no substantial change in the character of the use which would affect adjacent residential property in an R District. (C) Accessory office uses incidental to a primary industrial use are limited to 10 percent of the floor area of the primary industrial use. (D) Adjunct office and commercial space, not to exceed 25 percent of the floor area of the primary industrial use, is allowed with a conditional use permit from the Zoning Administrator, provided that it is intended primarily to serve employees of the industrial use, no exterior signs advertise the adjunct use,thei,adjunct use is physically separated from the primary industrial use, any retail sales are limited to goods manufactured on-site, and the primary industrial fronts on an arterial. (E) See Section 241.22: Temporary Use Permits. (F) See Chapter 236: Nonconforming Uses and Structures. (H) Medical/dental offices, insurance brokerage offices, and real estate brokerage offices, except for on-site leasing offices, are not permitted in any I District. Administrative, management, regional or headquarters offices for any permitted industrial use, which are not intended to serve the public, require a conditional use permit from the Zoning Administrator to occupy more than 10 percent of the total amount of space on the site of the industrial use. (I) Automobile dismantling, storage and/or impound yards may be permitted subject to the approval of a conditional use permit by the Planning Commission and the following criteria: (a) The site shall not be located within 660 feet of an R district. (b) All special metal cutting and compacting equipment shall be completely screened from view. (c) Storage yards shall be enclosed by a solid 6-inch concrete block or masonry wall not less than 6 feet in height and set back a minimum 10 feet from abutting streets with the entire setback area permanently landscaped and maintained. (d) Items stacked in the storage yard shall not exceed the height of the screening walls or be visible from adjacent public streets. (J) Limited to facilities serving workers employed on-site. (K) See Section 230-46: Single Room Occupancy. 8 j mp/k/legistdrft/sob212/11/4/97 IG AND IL Districts: Additional Provisions - (continued) (L) Limited to Emergency Shelters. (M) New construction and initial establishment ofla permitted use shall be subject to the approval of a conditional use permit by the Zoning Administrator unless Planning Commission approval is required. Change of use shall be subject to the approval of the Director unless the new use requires approval of a conditional use permit. (N) Major outdoor operations require conditional use permit approval by the Planning Commission. Major outside operations include storage yards and uses utilizing more than 1/3 of the site for outdoor operation. (0) See Section 230.40: Helicopter Takeoff and Landing Areas. (P) See Section 230.44: Recycling Operations. (Q) See Section 230.50: Indoor Swap Meets/Flea Markets (R) See L-11(A) relating to locational restrictions. 212.06 IG AND IL Districts: Development Standards The following schedule prescribes development standards for the I Districts. The first two columns prescribe basic requirements for permitted and conditional uses in each district. Letters in parentheses in the "Additional Requirements" column reference requirements following the schedule or located elsewhere in this ordinance. In calculating the maximum gross floor area as defined in Chapter 203, the floor area ratio is calculated on the basis of net site area. Fractional numbers shall be rounded down to the nearest whole number. All required setbacks shall be measured from ultimate right-of-way and in accordance with definitions set forth in Chapter 203, Definitions. Additional IG IL Requirements Residential Development (M) Nonresidential Development Minimum Lot Area(sq. ft.) 20,000 20,000 (A)(B)(I) Minimum Lot Width(ft.) 100 100 (A)(B) Minimum Setbacks (A)(C) Front(ft.) 10;20 10;20 (D) Side (ft.) - 15 (E)(F) Street Side (ft.) 10 10 Rear(ft.) - - (E) Maximum Height of Structures (ft.) 40 40 (G) Maximum Floor Area Ratio (FAR) 0.75 0.75 Minimum Site Landscaping (%) 8 8 (H)(I) 9 jmp/1-Jlegistdrft/sob212/11/4/97 I� Fences and Walls See Section 230.88 Off-Street Parking and Loading See Chapter 231 (J) Outdoor Facilities See Section 230.74 Screening of Mechanical Equipment See Section 230.76 (K) Refuse Storage Area See Section 230.78 Underground Utilities See Chapter 17.64 Performance Standards See Section 230.82 (L) Nonconforming Uses and Structures See Chapter 236 Signs See Chapter 233 (rest of page not used) 10 j mp/k/le gistdrft/sob2l 2/1 l/4/97 IG AND IL Districts: Additional Development Standards (A) See Section 230.62: Building Site Required and Section 230.64: Development on Substandard Lots. (B) Smaller lot dimensions for new parcels may be permitted by the Zoning Administrator with an approved development plan and tentative subdivision map. (C) See Section 230.68: Building Projections into Yards and Required Open Space. Double- frontage lots shall provide front yards on each frontage. (D) The minimum front setback shall 10 feet and the average setback 20 feet, except for parcels fronting on local streets where only a 10 foot setback is required. All I Districts: An additional setback is required for buildings exceeding 25 feet in height (I foot for each foot of height) and for buildings exceeding 150 feet in length (1 foot for each 10 feet of building length) up to a maximum setback of 30 feet. (E) In all I districts, a 15-foot setback is required abutting an R district and no openings in buildings within 45 feet of an R district. (F) A zero-side yard setback may be permitted in-the I districts, but not abutting an R district, provided that a solid wall at the property line is constructed of maintenance-free masonry material and the opposite side yard is a minimum of 30 feet. Exception. The Zoning Administrator or Planning Commission may approve a conditional use permit to allow a 15-foot interior side yards opposite a zero-side yard on one lot, if an abutting side yard at least 15 feet wide is provided and access easements are recorded ensuring a minimum 30-foot separation between buildings. This 30-foot accessway must be maintained free of obstructions and open to the sky, and no opening for truck loading or unloading shall be permitted in the building face fronting on the accessway unless a 45-foot long striped areas is provided solely for loading and unloading entirely within the building. (G) See Section 230.70: Measurement of Height. Within 45 feet of an R district, no building or structure shall exceed a height of 18 feet. (II) Planting Areas. Required front and street-side yards adjacent to a public right-of-way shall be planting areas except for necessary drives and walks. A 6-foot wide planting area shall be provided adjacent to an R district and contain one tree for each 25 lineal feet of planting area. (I) See Chapter 232: Landscape Improvements. (J) Truck or rail loading, dock facilities, and the doors for such facilities shall not be visible from or be located within 45 feet of an R district. (K) See Section 230.80: Antennae. 11 jmp/k/1egiAdrli/sob212/11/4/97 IG AND IL Districts: Additional Development Standards - (continued) (L) Noise. No new use shall be permitted, or exterior alterations and/or additions to an existing use allowed, within 150 feet of an R district until a report prepared by a California state- licensed acoustical engineer is approved by the Director. This report shall include recommended noise mitigation measures for the industrial use to ensure that noise levels will conform with Chapter 8.40 of the Municipal Code. The Director may waive this requirement for change of use or addition or exterior alteration to an existing use if it can be established that there had been no previous noise offense; that no outside activities will take place, or if adequate noise mitigation measures for the development are provided. (Nn Group residential or accessory residential uses shall be subject to standards for minimum setbacks and height of the RH District. ' 212.08 Review of Plans All applications for new construction and exterior alterations and additions shall be submitted to the Community Development Department for review. Discretionary review shall be required as follows: A. Zoning Administrator Review. Projects requiring a conditional use permit from the Zoning Administrator; projects including a zero-side yard exception; projects on substandard lots. B. Design Review Board. Projects within redevelopment project areas and areas within 500 feet of a PS district; see Chapter 244. C. Planning Commission. Projects requiring a conditional use permit from the Commission. D. Projects in the Coastal Zone. A Coastal Development Permit is required unless the project is exempt; see Chapter 245. 12 jmp/kAegiAdrft/sob212/11/4/97 ATTACHMENT 6 -720. 337� LEGISLATIVE DRAFT [Chapter 231 OffrS1fiet Paring and Loading Pto- VIS10ns Sections: 231.02 Basic Requirements for Off-Street Parking and Loading 231.04 Off-Street Parking and Loading Spaces Required 231.06 Joint Use Parking 231.08 Reduced Parking for Certain Uses 231.10 Parking In-Lieu Payments Within Downtown Specific Plan Area 231.12 Parking Spaces for the Handicapped 231.14 Parking Space Dimensions 231.16 Application of Dimensional Requirements 231.18 Design Standards 231.20 Compact Parking 231.22 Driveways; Visibility 231.24 Landscape Improvements 231.26 Parking Area Plan Required 231 28 Oceanside or On-Street Parking within the Coastal Zone 231.02 Basic Requirements for Off-Street Parking and Loading A. When Required. At the time of initial occupancy of a site, construction of a structure, or major alteration or enlargement of a site or structure, off-street parking facilities and off-street loading facilities shall be provided in accord with this chapter and parking area landscaping shall be provided in accord with Chapter 232. For the purposes of these requirements, "major alteration or enlargement" shall mean a change of use, an expansion of greater than 50 percent of the existing space in a non-residential building or an addition of bedrooms or units in a residential building. A change in occupancy that does not involve a change in the use classification is not considered a change in use for purposes of this requirement unless the change in occupancy involves an intensification of use or an increase in parking demand. B. Nonconforming Parking or Loading. No existing use of land or structure shall be deemed to be nonconforming solely because of the lack of off-street parking or loading facilities required by this chapter,provided that facilities being used for off-street parking and loading as of the date of adoption of this chapter shall not be reduced in number to less than that required by this chapter. Expansion of a use with nonconforming parking shall be subject to the following requirements: 1. A multi-family residential use with nonconforming parking may be expanded by adding bedrooms or additional units provided that the expansion complies with current standards contained in this chapter; 2. A single-family residence with nonconforming parking may be expanded by adding bedrooms provided the dwelling complies with current standards contained in this chapter; and Huntington Beach Zoning and Subdivision Ordinance Chapter 231 231-1 5/97 3. A nonresidential use with nonconforming parking may be expanded less than 50 percent of the existing square footage or intensified if additional parking is provided for the expansion or intensification. Expansions of 50 percent or more of the existing square footage require the site to be in total compliance with the current parking standards contained in this chapter. C. Spaces Required for Alteration or Enlargement. The number of parking spaces or loading spaces required for an alteration or enlargement of an existing use or structure, or for a change of occupancy, shall be in addition to the number of spaces existing prior to the alteration, enlargement, or change of occupancy unless the preexisting number is greater than the number prescribed in this chapter. In this case,the number of spaces in excess of the prescribed minimum shall be counted in determining the required number of parking or loading spaces. D. Spaces Required for Multiple Uses. If more than one use is located on a site, the number of off-street parking spaces and loading spaces to be provided shall be equal to the sum of the requirements prescribed for each use. This requirement applies not only to multiple uses under separate ownership but also to multiple uses in the same ownership. If the gross floor area of individual uses on the same site is less than that for which a loading space would be required by Section 231.06A, but the aggregate gross floor area of all uses is greater than the minimum for which loading spaces would be required, the aggregate gross floor area shall be used in determining the required number of loading spaces. E. Location and Ownership. Parking facilities required by this chapter shall be on the same site as the use served, except that an adjacent lot may be used which is in the same person's possession as the structure or use. Such possession may be by deed or long- term lease, approved as to form by the City Attorney, and recorded in the Office of the County Recorder. A copy of the recorded document stipulating the reservation of the property for parking purposes shall be filed with the City prior to issuance of a building permit and/or certificate of occupancy, whichever occurs first. No use shall be continued if the parking is removed from the adjacent lot unless substitute parking is provided. Parking facilities provided by a parking district or parking authority are not subject to these locational requirements. 1. Parking in Yards in R Districts. The parking of motor vehicles, trailers, campers and boats shall be prohibited on all landscaped areas within the front one-half of the lot except as provided below. (a) Oversized vehicles (see Definitions Chapter 203), campers,trailers and boats on trailers may be parked on the paved driveway area or on a paved area between the driveway and the nearest side property line provided that they do not project over any property line and that the area is kept free of trash, debris and parts. (b) Commercial oversized vehicles (see Definitions Chapter 203) or special purpose machines shall be prohibited in any yard area. 2. Parking in Yards in C or I Districts. Required yards may be used for required parking, subject to the landscaping standards of Chapter 232. 3. Access. When a lot abuts an arterial highway and a local street, access to on-site parking shall be from the local street. When a lot abuts an alley,then access to parking shall be provided from the alley unless the Planning Commission Huntington Beach Zoning and Subdivision Ordinance Chapter 231 231-2 5/97 approves a different access. When a lot abuts two arterial highways or two local streets, access shall be subject to the approval of the Director of Public Works. 4. Non-residential Parking in R Districts. Non-residential parking serving adjacent commercial or industrial uses shall not be located in any R zoned property. F. Computation of Spaces Required. If, in the application of the requirements of this chapter, a fractional number is obtained, one additional parking space or loading space shall be required. G. Other Requirements 1. Any off-street parking or loading facility which is permitted but not required shall comply with all provisions of this chapter governing location, design, improvement and operation. 2. Any motor vehicle incapable of movement by its own power and/or not licensed to operate on California streets shall be stored either in an enclosed building or entirely screened from view. 231.04 Off-Street Parking and Loading Spaces Required A. Non-residential uses shall provide one loading space (minimum fourteen [14] feet in width, twenty [20] feet in length, and fourteen [14] feet in height) for each 20,000 square feet, or fraction thereof, of gross floor area; however, a maximum of three (3) such spaces are required for buildings exceeding 60,000 square feet. No loading space is required for non-residential uses with less than 20,000 square feet of gross floor area. B. Off-street parking spaces shall be provided in accord with the following schedule. References to spaces per square foot are to be computed on the basis of gross floor area, unless otherwise specified. Where the use is undetermined, the approving body shall determine the probable use and the number of parking and loading spaces required. In order to make this determination, the Director may require the submission of survey data prepared by a state-registered traffic engineer for the applicant or collected at the applicant's expense. Parking spaces over and above the minimum number specified in this section may be required by the body responsible for reviewing the use itself based on the intensity of the use. (Rest of page not used) Huntington Beach Zoning and Subdivision Ordinance Chapter 231 231-3 5/97 OFF-STREET PARKING SPACES REQUIRED: SCHEDULE A Use Classification Spaces Residential Single-family Dwellings New construction 0-4 bedrooms 2 enclosed and 2 open 5 or more bedrooms 3 enclosed per unit and 3 open per unit Existing Dwellings 0-4 bedrooms 2 enclosed and 2 open' 5 or more bedrooms 2 enclosed per unit and 3 open per unit' In the RMH-A district 2 enclosed spaces per unit with up to three bedrooms, and 1 space for each additional bedroom; 1 additional space per dwelling where no on-street parking is allowed Multi-family Dwellings Studio/one bedroom 1 enclosed space per unit 2 bedrooms 2 spaces (1 enclosed)per unit 3 or more bedrooms 2.5 spaces(1 enclosed)per unit Guests 0.5 space per unit 'Open spaces may be behind any required spaces and/or on a street adjacent to the property. On-street parking may not be reserved for residents and/or guests but must be available to the general public on a first-come, first-serve basis. (Rest of page not used) Huntington Beach Zoning and Subdivision Ordinance Chapter 231 231-4 5/97 OFF-STREET PARKING SPACES REQUIRED: SCHEDULE A I. Use Classification Off-Street Parking Spaces Senior Studio/one bedroom 1 covered space per unit Two bedrooms 1.5 spaces per unit(1 covered) Manufactured Homes 2 spaces per unit; one covered, and one may be behind the first Guest 1 per 3 manufactured homes Rooming House 1 space per guest room plus 1 space per owner/manager plus 1 space per each 10 guest rooms Residential Care, Limited 1 per 3 beds Public and Semi-public Clubs and Lodges 1 per 35 sq. ft. used for assembly purposes of 1 per 3 fixed seats (18 inches=one seat), whichever is greater Cultural Facilities 1 per 300 sq. ft. gross floor area Day Care, General 1 per staff member plus one per classroom Government Offices 1 per 250 sq. ft. gross floor area Heliports As specified by use permit Hospitals 1 per 1.5 beds Maintenance and Service Facilities 1 per 500 sq. ft. Park and Recreation Facilities As specified by conditional use permit for private facilities Public Safety Facilities As specified by the conditional use permit Religious Assembly 1 per 35 sq. ft. of public assembly area, or 1 per 3 fixed seats (18 inches= 1 seat), whichever is greater Residential Care, General 1 per 3 beds; plus additional spaces, as specified by conditional use permit Schools, Public or Private Preschools, nursery day care 1 per staff member,plus one per classroom Elementary,junior high 1.5 per-,classroom High school/college 7 per classroom Huntington Beach Zoning and Subdivision Ordinance Chapter 231 231-5 5/97 OFF-STREET PARKING SPACES REQUIRED: SCHEDULE A (coodnucd) Use Classification Off-Street Parking Spaces Trade schools, music 1 per 35 sq. ft. of instruction area conservatories Utilities, Major As specified by conditional use permit Commercial Adult Businesses As speeified by eandifienal use peFmit based on aetual type of use Ambulance Services 1 per 500 sq. ft.; plus 2 storage spaces Animal Sales and Services Animal boarding 1 per 200 sq. ft. Animal grooming 1 per 200 sq. ft. Animal hospitals 1 per 200 sq. ft. Animal, retail sales 1 per.200 sq. ft. Artists' Studios 1 per 1,000 sq. ft. Banks and Savings & Loans 1 per 200 sq. ft. Drive-Up Service Queue space for 5 cars per teller Building Materials and Services 1 per 1,000 sq. ft. of lot area; minimum 10 plus 1/300 sq. ft. office area Catering Services 1 per 400 sq. ft. Commercial Recreation and Entertainment Bowling Alleys 3 per lane,plus 1 per 250 sq. ft. of public assembly and retail areas Electronic Game Centers 1 per 200 sq. ft. Health Clubs 1 per 200 sq. ft. Stables 1 per 3 corrals plus 1 horse trailer space for each 10 corrals plus 2 for caretaker's unit Tennis/Racquetball 3 per court Theaters 1 per 3 fixed seats, or 1 per 35 sq. ft. seating area if there are no fixed seats Other Commercial As specified by the Zoning Administrator or Recreation and Entertainment Planning Commission Communications Facilities 1 per 500 sq. ft. Eating and Drinking Establishments with less than 12 seats 1 per 200 sq. ft. with more than 12 seats 1 per 60 sq. ft. or 1 per 100 sq. ft. when on a site with 3 or more uses Huntington Beach Zoning and Subdivision Ordinance Chapter 231 231-6 5/97 OFF-STREET PARKING SPACES REQUIRED: SCHEDULE A (continued) Use Classification Off-Street Parking Spaces with dancing Plus 1 per 50 sq. ft. of dancing area with drive through service Plus queue space for 5 cars per service window Food and Beverage Sales 1 per 200 sq. ft. Furniture and Appliance Stores 1 per 500 sq. ft. excluding areas used for storage or loading, but not less than 5 Funeral and Interment Services 1 per 35 sq. ft. of seating space Hardware Stores 1 per 200 sq. ft. excluding areas used for storage / or loading, but not less than 5 Horticulture, Limited 1 per 2 acres Laboratories 1 per 500 sq. ft. Maintenance and Repair Services 1 per 500 sq. ft. Marine Sales and Services 1 per 500 sq. ft. Nurseries 1 per.1,000 sq. ft. of indoor/outdoor sales and/or display lot area accessible for public viewing, but no less than 10; plus 1 per 300 sq. ft. office area Offices, Business and Professional 1 per 250 sq. ft. for less than 250,000 sq. ft.; 1 per 300 sq. ft. for 250,000 sq. ft. or more Offices, Medical and Dental 1 per 175 sq. ft. (includes out-patient medical/surgery centers) Pawn Shops 1 per 200 sq. ft. Personal Enrichment Services 1 per 35 sq. ft. of instruction area Personal Services 1 per 200 sq. ft. Research and Development Services 1 per 500 sq. ft. Retail Sales Not Listed Under Another 1 per 200 sq. ft. Use Classification Huntington Beach Zoning and Subdivision Ordinance Chapter 231 231-7 5/97 OFF-STREET PARKING SPACES REQUIRED: SCHEDULE A (continued) Use Classification Off-Street Parking Spaces Sex Oriented Business with less than 12 seats, 1 per 200 sq. ft.; Cabaret with 12 seats or more, 1 per 60 sq. it. or 1 per 100 sq. ft. if on a site with three or more uses 1 per 35 sq. ft. of instruction area Encounter center 1 per 250 sq. ft. Escort bureau 1.1 per guest room; plus 1 per Hotel/Motel passenger transport vehicle (minimum of 2 stalls) and 2 spaces for any / managers unit and parking for other uses as required by this schedule 1 per 3 fixed seats, or 1 per 35 sq. ft. Mini-motion picture seating area if there are no fixed seats theater, motion picture theater or motion picture arcade 1 per 200 sq. ft. Retail sales Swap Meets, Indoor/Flea Markets 1/100 sq. ft. except as may be modified by the Planning Commission through the conditional use permit process, after submittal,review and approval of a traffic engineering study Vehicle/Equipment Sales and Services Automobile Rentals 1 per 1,000 sq. ft. of indoor/outdoor sales and/or display lot area accessible for public viewing, but no less than 10; plus 1/300 sq. ft. office area; 1/200 sq. ft. auto service area Automobile Washing (Car Wash) Full-service (attended) 10 With fuel sales 12 Self-service (unattended) 1.5 per wash stall Service Stations full-serve/repair garage 1 per 500 sq. ft. but no less than 5 self-serve 2 with convenience markets 1 per 200 sq. ft. of retail space but no less than 8 with self-serve car wash 4 with self-serve car wash 10 and convenience market Vehicle/Equipment Repair 1 per 200 sq. ft. but no less than 5 Huntington Beach Zoning and Subdivision Ordinance Chapter 231 231-8 5/97 OFF-STREET PARKING SPACES REQUIRED: SCHEDULE A (continued) Use Classification Off-Street Parking Spaces Vehicle/Equipment Sales 1 per 1,000 sq. ft. of indoor/outdoor sales and/or and Rentals display lot area accessible for public viewing,but no less than 10; plus 1 per 300 sq. ft. office area; 1 per 200 sq. ft. auto service area Vehicle Storage 1 per 5,000 sq. ft. lot area; no less than 5 Visitor Accommodations: Bed and Breakfast 1 per guest room plus 1 guest and 1 manager/owner space Hotels, Motels 1.1 per guest room; plus 1 per passenger transport vehicle (minimum of 2 stalls) and 2 spaces for / any manager's unit and parking for other uses as required by this schedule Single Room Occupancy, 0.5 per unit if project is within 2,000 feet of Residential Hotels public bus stop; 1.0 per unit if project is not within 2,000 feet of public bus stop; plus 1.0 per each resident staff member and 0.5 per all remaining personnel Warehouse and Sales Outlets l per 200 sq. ft. Industrial Speculative buildings 1 per 500 sq. ft. (maximum 10% office area) Manufacturing, research assembly, 1 per 500 sq. ft. packaging Wholesaling, warehousing and 1 per 1,000 sq. ft. distributing space 231.06 Joint Use Parking In the event that two (2) or more uses occupy the same building, lot or parcel of land, the total requirement for off-street parking shall be the sum of each individual use computed separately except as provided in this section. The Planning Commission or Zoning Administrator may grant a reduction in the total number of required spaces as part of the entitlement for the use or uses, or by conditional use permit when no other entitlement is required, when the applicant can demonstrate that the various uses have divergent needs in terms of daytime versus nighttime hours or weekday versus weekend hours. Such joint use approvals shall be subject to the following: 1. The maximum distance between the building or use and the nearest point of the parking spaces or parking facility shall be 250 feet; and Huntington Beach Zoning and Subdivision Ordinance Chapter 231 231-9 5/97 2. There shall be no conflict in the operating hours based on parking space requirements for the different uses on the parcel; and 3. Evidence of an agreement for such joint use shall be provided by proper legal instrument, approved as to form by the City Attorney. The instrument shall be recorded in the Office of the County Recorder and shall be filed with the City prior to issuance of building permit and/or certificate of occupancy, whichever occurs first. 231.08 Reduced Parking for Certain Uses A. The Planning Commission may approve a conditional use permit reducing the number of spaces to less than the number specified in the schedule in Section 231.04, provided that the following findings are made: 1. The parking demand will be less than the requirement in Schedule A; and 2. The probable long-term occupancy of the building or structure, based on its design, will not generate additional parking demand; and 3. A Transportation Demand Management plan which exceeds the minimum required by Section 230.36 has been approved by the Director. B. In reaching a decision, the Planning Commission shall consider survey data prepared by a state-registered traffic engineer that is submitted by an applicant or collected at the applicant's request and expense. 231.10 Parking In-Lieu Payments Within Downtown Specific Plan Area Parking requirements for private property uses within the Downtown Specific Plan Area may be met by payment of an "in-lieu" fee for providing parking in a parking facility subject to conditional use permit approval by the Planning Commission. Said fee may be paid in multiple installments. The first installment in an amount established by City Council Resolution for each parking space shall be paid prior to the issuance of building permits or of a certificate of occupancy, whichever comes first. Any successive installments shall be paid and secured by a mechanism established in the conditions of approval. 231.12 Parking Spaces for the Handicapped New and existing parking facilities shall comply with the State Handicapped Regulations as mandated in State law. 231.14 Parking Space Dimensions Required parking spaces shall have the following minimum dimensions in feet. Striping requirements are depicted in Diagram A. Directional signs and/or pavement markings shall be provided in any facility in which one-way traffic is established. Angle of Stall Stall Aisle Width' Huntington Beach Zoning and Subdivision Ordinance Chapter 231 231-10 5/97 i Parking Width Depth 1-way 2-way 00 9 19 (with 8 ft. Striped 12 20 (Parallel) maneuvering area between every 2 spaces) 300 9 19 14 20 450 9 19 15 20 600 9 19 20 20 900 9 19 26 26 Residential 9 19 25 25 Compact 8 17 subject to Section 231.20 IMinimum 24 feet when determined by Fire Department to be a fire lane. (rest of page not used) Huntington Beach Zoning and Subdivision Ordinance Chapter 231 231-11 5/97 300 ,450 & 60°Parking F i' /' r8 p� /0:zop 90c' Parking 24 In. Exterior i Dimension j 19 Ft. j 18 In. Interior Dimension i Parallel Parking 9 ft.L \ i♦ 8 _ 19 ft. _I_ 19 ft. _I_ 8 ft C3:1DN9DRAW=1 STRP.BM STRIPING REQUIREMENTS DIAGRAM A Huntington Beach Zoning and Subdivision Ordinance Chapter 231 231-12 5/97 rl 231.16 Application of Dimensional Requirements A. Relation to Walls and Posts/Columns. A parking space on a site with more than five (5)parking spaces and which is adjacent to a wall over twelve (12) inches in height shall be increased in width by three (3) feet. Post/columns may be permitted along the side of each space only within three (3) feet of the head and foot of each stall. B. Vertical Clearance. Vertical clearance forparking spaces shall be 7 feet, except that an entrance may be 6.67 feet. When handicapped parking is provided, vertical clearance shall comply with California Code of Regulations (Title 24, Part 2, Chapter 2-71). For residential uses, non-structural improvements including wall-mounted shelves, storage surface racks, or cabinets may encroach into the vertical clearance, provided a minimum 4.5 feet vertical clearance is maintained above the finished floor of the garage within the front 5 feet of a parking space. C. Wheel Stops. All spaces shall have wheel stops 2.5 feet from a fence, wall, building or walkway. D. Parking Space Dimension Reduction. When a parking space abuts a landscape planter, the front 2 feet of the required 19 foot length for a parking space may overhang the planter as provided in Chapter 232. 231.18 Design Standards A. Public Works Requirements. Drive entrances on arterial highways shall be located in a manner to coordinate with future median openings and in accord with Department of Public Works standards. The paved surface of driveways and drive entrances shall comply with Department of Public Works specifications. Parking facilities shall be prepared, graded, and paved to ensure that all surface waters will drain into a public street, alley, storm drain, or other drainage system approved by the Department of Public Works. Aisle ways without adjacent parking shall be a minimum 24 feet in width. B. Circulation Design. All off-street parking spaces shall have access to a public street or alley, and shall have internal circulation, safe entrances and exits, drives, and aisles in conformance with City standards. Every required parking space shall have unobstructed access from an aisle without moving another vehicle. All parking spaces, except residential garages and carports for single-family dwellings and duplexes, shall have forward travel to and from parking facilities when access is to a dedicated street. Traffic circulation shall be designed so that no vehicle need enter a public street in order to progress from one aisle to any other aisle within the same development. Commercial centers which have 200 parking spaces or more shall have at least one main entrance designed as depicted in Diagram B. (rest of page not used) Huntington Beach Zoning and Subdivision Ordinance Chapter 231 231-13 5/97 , I I I I I 100, I I 4% I I -- I ---�. 24ft 24ft C. G.WMDPJ=1E1ff.BN COMMERCIAL CENTER MAIN ENTRANCE FOR PARKING LOTS WITH OVER 200 SPACES DIAGRAM B A minimum 3-foot-by-3-foot-wide maneuvering area shall be provided at the end of dead-end parking aisles less than 150 feet in length. A vehicle turnaround space shall be provided at the end of all dead-end parking aisles which exceed 150 feet in length (measured from the closest intersecting aisle with complete circulation). The maneuvering area and turnaround space shall be designed as depicted in Diagram C. Other turnaround arrangements providing the same maneuverability are subject to approval by the Director. 2 ft. Wheel Maneuvering 19 stop area 9 R. 26 ft. }} I 3ft 3ft 12"Step off area GADW9DRAWU3I-RND.BMP TURN-AROUND SPACE AND MANEUVERING AREA DIAGRAM C Huntington Beach Zoning and Subdivision Ordinance Chapter 231 231-14 5/97 C. Illumination. All parking area lighting shall be energy-efficient and designed so as not to produce glare on adjacent residential properties. Security lighting shall be provided in areas accessible to the public during nighttime hours, and such lighting shall be on a time-clock or photo-sensor system. D. Residential parking, 1. Garages and Carports. All required garages and carports,permitted as accessory structures, shall be constructed at the.same time as the main building and shall be used only by persons residing on thepremises for storage of personal vehicles and other personal property. 2. Assignment of Spaces. Each studio and one bedroom dwelling unit shall have a minimum of one assigned parking space and each two or more bedroom units shall have a minimum of two assigned parking spaces. Each dwelling unit shall have an enclosed, assigned space which shall be within 200 feet walking distance of that unit and designated as such. The assigned spaces shall be provided with the rental of a dwelling unit without any additional cost. All unassigned spaces provided on site shall be open and only used for the parking of vehicles by persons residing on the property or their guests. 3. Turning Radius. The minimum turning radius for any garage, carport or open parking space, entered directly from an alley or driveway, shall be 25 feet. (See Diagram D) STREET GA GE ---- --- -—-—-—-—AtLEY-- DRIVEWAY STREET STREET G ADIVBDRAM31-TUR N.B MP TURNING RADIUS DIAGRAM D Huntington Beach Zoning and Subdivision Ordinance Chapter 231 231-15 5/97 4. Driveway Width. Length of Drive Minimum Driveway Width 150 feet or less 10 ft. for single family dwellings 20 ft. for multi-family dwellings Greater than 150 feet 20 feet clear width Exception: when designated as fire lane, all Fire Department requirements shall apply. 5. Guest Parking, All guest parking shall be fully accessible. 6. Coastal Zone. Each dwelling unit located in the Coastal Zone shall have a minimum of 2 on-site parking spaces. If the total coastal parking requirements exceed the total minimum parking as required by this chapter,the additional required parking spaces may be in tandem with enclosed spaces, provided the tandem space is assigned to an enclosed space and complies with the required turning radius. 7. Planned Residential Developments. In a planned residential development where a garage is constructed a minimum of 20 feet from the curb,the driveway in front of the garage may be used to provide one of the required uncovered spaces. 8. Driveway Air Space. The air space above all driveways which exceed 150 feet in length shall remain open to the sky, except that eaves or roof overhangs with a maximum 4-foot projection may be permitted above a height of 14 feet. 9. Storage Space. 100 cubic feet of enclosed storage space for each unit shall be provided in a secured parking area where there is no private garage. 10. Accessory Dwelling. One additional off-street parking space shall be required for an accessory dwelling, except that in the coastal zone there shall be a minimum of four(4)parking spaces on-site. (3334) E. Non-residential Parking and Loading, 1. Designated Parking, Parking spaces within an integrated,non-residential complex shall not be designated for exclusive use of any individual tenant except as authorized by a parking management plan approved by the Director. 2. Parking Controls. Parking controls, such as valet service, gates or booths, and/or collection of fees may be permitted when authorized by conditional use permit approval by the Planning Commission. 3. Minimum Driveway Width. 25 feet when providing access to the rear of a structure. 4. Reciprocal Access. Reciprocal ingress/egress access with adjacent properties shall be provided for all commercial properties. Huntington Beach Zoning and Subdivision Ordinance Chapter 231 231-16 5/97 i %I 5. Loading Location. On a site adjoining an alley, a required loading space shall be accessible from the alley unless alternative access is approved by the Director. An occupied loading space shall not prevent access to a required parking space. Truck or rail loading, dock facilities, and doors for such facilities shall not face or be located within 45 feet of property zoned or general planned residential. 6. Loading Design. Any loading facility shall be designed and located so that vehicles need not extend onto the public sidewalks, streets or alleys during loading activities. 7. Landscape Buffer. Where the side or rear yard of a parcel is used for loading activities and abuts an R District, a landscaped buffer along the property line shall be provided. F. Seasonal and Temporary, Parking Lots. Seasonal and temporary parking lots may be allowed upon approval of a conditional use permit by the Zoning Administrator. Seasonal lots may operate only from Memorial Day through the third weekend in September and shall be located within 1,000 yards of the mean high tide line of the Pacific Ocean. Temporary and seasonal commercial parking lots may be permitted for a maximum of five years. The design and'Jayout of seasonal and temporary parking lots shall comply with this chapter, Fire Department requirements, and the following standards: 1. Paving shall be 2 inches of asphalt over compacted native soil, or as approved by the Department; except seasonal parking lots shall be surfaced to meet minimum specifications for support of vehicles,and to provide dust control as required by the Zoning Administrator. 2. Boundaries of such lots shall be marked off and secured by chain or cable, with posts a minimum of 3 feet in height, solidly built. At a minimum, posts shall consist of 4" x 4" wood or equivalent metal posts a minimum of 1-1/2 inches in diameter securely set in the ground and placed 8 feet on center. The posts shall be connected with at least 1 strand of 1/2-inch cable or chain securely fastened to each post. An opening shall be provided to accommodate vehicle access during business hours. Seasonal lots shall be secured to prevent overnight parking between the closing hour on one business day and the opening hour the following business day. 3. Temporary parking lots shall have landscaped planters with an inside dimension of 3 feet along street-side property lines excluding driveways. Landscaping shall be protected from vehicle and pedestrian damage by wheel bumpers (asphalt, concrete, or wood),or asphalt or concrete curbs, or any other design that will provide adequate protection. 4. Seasonal parking lots are exempt from landscaping requirements of Chapter 232. 5. Directional and informational signs shall be displayed on-site to identify the entrance(s), fees, and hours of operation. Such signs shall be located at the entrance of the parking lot and shall not exceed 12 square feet and shall be 6 feet high. Signs for seasonal parking lots shall be removed from the site each season no later than the third weekend in September. Huntington Beach Zoning and Subdivision Ordinance Chapter 231 231-17 5/97 6. Automatic entry devices or fee collection points shall be set back a minimum of 20 feet from the public right-of-way, or at a distance recommended by the Department of Public Works and approved by the Director. 7. An attendant shall be on duty at all times during business hours of seasonal parking lots. 8. An approved fire extinguisher shall be provided on the premises during business hours. 9. The site shall be maintained in a clean condition, free from trash and debris. Trash containers shall be placed on the site to accommodate and store all trash that accumulates on the lot. For seasonal parking lots, a certificate of insurance for combined single limit bodily injury and/or property damage including products liability in the amount of$1,000,000 per occurrence shall be filed with the Department of Administrative Services. A hold harmless agreement holding the City harmless shall also be filed with the Department of Administrative Services. Subsequent to approval of an application for any seasonal or temporary parking lot, the applicant shall meet all standards and requirements and install all improvements. The parking lot shall then be inspected and approved by the Director prior to issuance of a Certificate to Operate. G. Parking Structures. Parking structures above or below grade shall be subject to conditional use permit approval by the Planning Commission when no other entitlement is required. In addition,parking structures,proposed within the coastal zone shall be subject to approval of a coastal development permit. All parking structures shall comply with the following requirements: (3334) 1. Transition ramps which are also used as back-up space for parking stalls shall have a maximum slope of 5 percent. The maximum slope for transition ramps with no adjacent parking spaces shall be 10 percent. A ramp used for ingress and egress to a public street shall have a transition section at least 16 feet long and a maximum slope of 5 percent. 2. Parking structures with over 300 spaces shall provide secondary circulation ramps and additional ingress and egress if deemed necessary by a traffic study prepared by a state-registered traffic engineer. 3. Parking structures shall be provided with a minimum 10-foot-wide perimeter landscape planter at ground level. Parked cars shall be screened on each level through landscape planters or trellises and/or decorative screening wall or railings. The Design Review Board shall approve the landscaping plan. 4. All parking structures shall be architecturally compatible with existing or proposed structures and shall be subject to review and approval by the Design Review Board prior to hearing. The Design Review Board shall consider the following factors in reviewing a proposal: bulk, scale,proportion,building materials, colors, signage, architectural features, and landscaping. 5. All parking structures proposed for conversion to a fee parking arrangement shall be subject to conditional use permit approval by the Planning Commission. Huntington Beach Zoning and Subdivision Ordinance Chapter 231 231-18 5/97 q Public parking structures within the coastal zone proposed for conversion to a fee parking arrangement shall be subject to approval of a coastal development permit. (3334) 231.20 Compact Parking The Planning Commission, City Council, or Zoning Administrator, whichever is the review body, may allow use of compact parking to satisfy a portion of the required parking upon finding that compact parking will result in a more effective and efficient circulation pattern and parking layout and enhance the general appearance of the development and its surroundings. Compact spaces shall be distributed throughout the parking area and have the same aisle width as full-size spaces. Compact spaces shall be marked "COMPACT" on the foot of the stall. The number permitted shall be:subject to the following standards: A. Non-residential developments with a minimum of 20 spaces shall be permitted to have 20 percent of the total spaces as compact parking. B. Residential developments with a minimum of 50 units may have 20 percent of the non- guest parking spaces as compact provided that an equitable system of assignment and distribution has been established. 231.22 Driveways; Visibility Visibility of a driveway crossing a street or alley property line or of intersecting driveways shall be consistent with the requirements of Section 230.88. 231.24 Landscape Improvements Landscape, planting and irrigation plans shall be prepared consistent with the requirements of Chapter 232. 231.26 Parking Area Plan Required Prior to the construction,reconstruction, or restriping of an off-street parking area, a parking area plan shall be submitted to the Director for the purpose of indicating compliance with the provisions of this section. This plan shall include: A. Location and description of fencing and architectural screen walls. B. Location and placement of parking stalls, including bumpers, striping and circulation, all dimensioned to permit comparison with approved parking standards. C. Location and placement of lights provided to illuminate the parking area. D. A drainage plan showing drainage to a public way in accordance with accepted standards or practices. E. A landscape, planting and irrigation plan prepared consistent with the requirements of Chapter 232. Single-family dwellings on pre-existing lots are exempt from this requirement. Huntington Beach Zoning and Subdivision Ordinance Chapter 231 231-19 5/97 231.28 Oceanside or On-Street Parking within the Coastal Zone If any existing oceanside or on-street parking within the coastal zone is removed, it shall be replaced on a one for one basis in an area that would not result in the loss of any sandy beach area and within walking distance of the existing site. Replacement parking shall be assured prior to the issuance of the coastal development permit and shall be provided before any existing parking is removed so that there will be no reduction in the number of parking spaces available. (3334) Huntington Beach Zoning and Subdivision Ordinance Chapter 231 231-20 5/97 ATTACHMENT 7 LEGISLATIVE DRAFT `/L - 3379 rc—hapter 236 minconforming LTm n Structures Sections: 236.02 General Provisions. 236.04 Destruction of a Nonconforming Structure or Use. 236.06 Alterations to a Nonconforming Structure or Use. 236.08 Sex Oriented Businesses 236.02 General Provisions A. A nonconforming structure or use shall not be enlarged, increased or intensified except as provided in this chapter. If any such use ceases,the subsequent use of such land, structure or building site shall be in conformance with the regulations specified by this code. B. A nonconforming use shall not be resumed, reestablished, or reopened after it has been abandoned, discontinued or changed to a conforming use. C. A nonconforming use shall be deemed to be discontinued or abandoned when such use has ceased to operate or to exist for a period of six(6) months. D. A nonconforming use which is not housed in any structure,but occupies a lot or portion of a lot, shall not be enlarged or extended to any other portion of the lot or any other lot not so occupied at the time the use became classified as nonconforming. E. A nonconforming use occupying either a conforming structure or nonconforming structure or portion thereof shall not be extended to any portion of the structure not so occupied at the time the use became nonconforming. 236.04 Destruction of a Nonconforming Structure or Use These provisions shall govern reconstruction of the nonconforming structures and/or uses listed below after such structure or use is destroyed by fire,explosion, act of nature or act of the public enemy by the percentage of value specified. A. Nonconforming structures and nonconforming uses destroyed 50%or less of the value prior to damage may be completely rebuilt. B. Nonconforming residential uses consisting of 10 or less units destroyed more than 50%of the value may be completely rebuilt. 1 jmp/1egisdrft/sob236/11/4/97 i C. Nonconforming residential uses consisting of more than 10 units destroyed more than 50% of the value may be completely rebuilt subject to conditional use permit approval by the Planning Commission provided current requirements for setback and parking are met. 236.06 Alterations to a Nonconforming Structure or Use A. Interior alterations and/or repairs may be made which do not enlarge the square footage or increase the height of a nonconforming use. Reroofing for health and safety purposes may also be permitted. B. A structure for a nonconforming use shall not be enlarged or altered on the exterior in any manner unless: 1. All aspects of the existing structure and the proposed addition are made to conform to applicable provisions of this Code, or 2. The Planning Commission permits such alteration subject to approval of a conditional use permit with the following findings: a. That the alteration is necessary to secure added safety or reduce the fire hazard or to improve the aesthetic appearance of the structure's architecture by bringing the design into greater conformance with the surrounding neighborhood. b. That the alteration or addition will not increase the number of stories. C. That the alterations will not cause the floor area to exceed more than ten(10%)percent of the floor area the structure contained at the time the use became nonconforming. C. Nonconforming structures may be altered or enlarged provided that the alteration or enlargement is in conformance with applicable provisions of Titles 21 and 22. D. Additions to nonconforming structures proposed to be constructed at the existing nonconforming yard setbacks shall be subject to approval of a conditional use permit by the Zoning Administrator. E. The area of enlargement to a nonconforming structure in any five year period shall not exceed 50%of the area of the structure as it exists on the effective date of this ordinance. 236.08 Sex Oriented Businesses A. Any sex oriented business lawfully operating on the effective date of the Ordinance No. that is in violation of Section 212.04 of this Code shall bedeemed a non- 2 j mp/legisdrft/sob236/1 l/4/97 conforming use. A non-conforming use will be permitted to continue for a period of three years with possible one year extensions (maximum extensions of five (5) years) to be granted by the Planning Commission only upon a conv►ncin showing b the applicant of extreme financial hardship which is defined as the recovery of the initial financial investment in the non-conforming use, unless sooner terminated for any reason or voluntarily discontinued for a period of thirty (30) days or more. Such non-conforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conformin use. If two (2) or more sex oriented businesses are within750 feet of one another and otherwise in a Permissible location, the sex oriented business which was first established and continually operating at the particular location is the conforming use an the later established business(es) is non-conforming. B. A sex oriented business lawfully operating as conforming use is not rendered a non-conforming use by the location, subsequent to the grant of a sex oriented business zoning permit, of a building used.for religious assembly, school, ppark and recreational facility or any property zoned RL, RM, RMH, RH, RMP, and an properties with equivalent designations under any specifi plan within five hundred feet�500') of the sex oriented business. C. Any application for a building permit to operate a sex oriented business in a location that is in violation of Section 212.04 that is filed prior to, but approved after the effective date of Ordinance po. shall be deemed a nonconforming use pursuant to Section A. Any such building permit application shall be considered subject to the applicable zoning regulations in effect prior to the effective date of Ordinance No. 3 j m p/1 e g i s d r ft/s o b 23 6/11/12/9 7 Council/Agency Meeting Held: G-0 Deferred/Continued to: 1A 11s L?7 � cza ❑ Approved ElConditionally Approved Eln Denied � te.'� City Clerk's Signature Council Meeting Date: December 1, 1997 Department ID Number: CRC-711 rn c CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL ACTION cam , �Cl) rn n� ^p'en SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS X. SUBMITTED BY: RAY SILVER, City AdministratorQkdo 1' T PREPARED BY: MELANIE S. FALLON, Community Development Director Ac-- - . SUBJECT: ZONING TEXT AMENDMENT NO. 97-4 (SEX ORIENTED BUSINESS ORDINANCE) CONTINUED FROM 11/17/97 Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s) Statement of Issue: Transmitted for City Council approval is Zoning Text Amendment (ZTA) No. 97-4, a city initiated request to amend the applicable chapters of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) regulating sex oriented (adult) businesses (SOB). The item is being continued from the November 17, 1997 meeting to allow the City Attorney's Office to respond to written communications received at the meeting. Staff recommends the item be continued to the meeting of December 15, 1997, in order to adequately address all written communications received and amend the ordinance as necessary. Funding Source: Not Applicable Recommended Action: Motion to: "Continue Zoning Text Amendment No. 97-4 to the City Council meeting of December 15, 1997". Alternative Action(s): The City Council may take one of the following actions: A. Approve Zoning Text Amendment No. 97-4 with findings, or B. Deny Zoning Text Amendment No. 97-4 with findings. ` REQUEST FOR COUNCIL ACTION MEETING DATE: December 1, 1997 DEPARTMENT ID NUMBER: CD97-70 Anal is: At the City Council meeting of November 17, 1997, a written communication was received from G. Randall Garrou of the law offices of Weston, Garrou & DeWitt dated November 17, 1997. In the communication, Mr. Garrou outlined a number of issues regarding the proposed sex oriented business ordinance. Due to the issues raised in the communication, the City Council recommended continuance in order to allow the City Attorney's office an opportunity to review and respond. The City Council continued the item to the meeting of December 1, 1997. Subsequent, the city has received another written communication from Mr. Garrou dated November 18, 1997. The communication outlines a number of additional comments regarding the proposed sex oriented business ordinance. In order to adequately address the issues, staff is recommending the City Council continue the hearing on the proposed ordinance to the meeting of December 15, 1997. Environmental Status: The proposed Zoning Text Amendment is categorically exempt pursuant to Class 20, Section 15321 of the California Environmental Quality Act as amended by City Council Resolution No. 4501 passed and adopted August 1, 1977. Attachment(sl: City Clerk's Page Number No. Description NONE RCA Author: H. Fauland CD97-70.DOC -2- 11/24/97 9:23 AM RCA ROUTING SHEET INITIATING DEPARTMENT: Community Development SUBJECT: ZTA No. 97-4 (SEX ORIENTED BUSINESS ORDINANCE) COUNCIL MEETING DATE: I December 1 , 1997 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Not Applicable Resolution (w/exhibits & legislative draft if applicable) Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) (Signed in full by the City Attomey) Not Applicable Subleases, Third Party Agreements, etc. (Approved as to form by City Attomey) Not Applicable Certificates of Insurance (Approved by the City Attorney) Not Applicable Financial Impact Statement (Unbudget, over $5,000) Not Applicable Bonds (If applicable) Not Applicable Staff Report (If applicable) Not Applicable Commission, Board or Committee Report (If applicable) Not Applicable Findings/Conditions for Approval and/or Denial Not Applicable EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED FORWARDED Administrative Staff ( ) ( ) Assistant City Administrator (Initial) ( ) ( ) City Administrator (Initial) ( ) ( p?Rd ) City Clerk ( ) EXPLANATION FOR RETURN OF ITEM: Only)(Below Space For City Clerk's Use RCA Author: f - r Council/Agency Meeting Held: i, Deferred/Continued to: 031(poroved ❑ Conditionally Approved_ ❑ Denjed City Clerks Signature Council Meeting Date: November 17, 1997 Department ID Number: CD97-57 CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS.,__ ;Y' SUBMITTED BY: RAY SILVER, Acting City AdministratorO�V PREPARED BY: MELANIE S. FALLON, Community Development Director SUBJECT: ZONING TEXT AMENDMENT NO. 97-4 (SEX ORIENTED BUSINESS ORDINANCE) Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachments) Statement of Issue: Transmitted for City Council approval is Zoning Text Amendment (ZTA) No. 97-4, a city initiated request to amend the applicable chapters of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) regulating sex oriented (adult) businesses (SOB). The proposed amendment will remove SOB's from the Commercial Districts and allow SOB's in the Industrial Districts. The amendment will also establish distance requirements between SOB's and distance requirements from sensitive uses such as schools (public or private), parks and recreational facilities, religious assembly (church), and any parcel of land zoned for residential use. As a result of the proposed amendment, existing SOB's in the Commercial Districts will become nonconforming. Funding Source: Not Applicable Recommended Action: PLANNING COMMISSION AND STAFF RECOMMENDATION Motion to: "Approve Zoning Text Amendment No. 97-4 with findings (Attachment No. 1) by adopting Ordinance No. 3378 (Attachment No. 2). Alternative Action(s): The City Council may take alternative actions such as: A. Deny Zoning Text Amendment No. 97-4 with findings, or B. Continue Zoning Text Amendment No. 97-4 and direct staff accordingly. _ /� REQUEST FOR COUNCIL ACTION MEETING DATE: November 17, 1997 DEPARTMENT ID NUMBER: CD97-57 Analysis: HISTORY: In 1981, the City Council adopted Ordinance No. 2522 establishing regulations for Adult Entertainment Businesses (Huntington Beach Ordinance Code, Division 9, Article 975). Since that time, a series of amendments have been made to the ordinance to further modify the zoning regulations (Ord. No. 2733 - 11/84, Ord. No. 2769 - 5/85, Ord. No. 2791 & 2797 - 9/85). In October 1996, in order to update city regulations to reflect the most recent court decisions, the City Council adopted Urgency Ordinance No. 3341. The recent action included an amendment to Chapter 211, Commercial Districts, of the HBZSO which removed the conditional use permit requirement for Adult Businesses (excluding massage establishments). The urgency ordinance also made substantial amendments to Chapter 5.70 of the Municipal Code regulating activities and hours of operation within an adult business. PROJECT DESCRIPTION: ZTA NO. 97-4 proposes to amend five chapters of the HBZSO which regulate SOB's. They are: 1) Chapter 204, Use Classifications; 2) Chapter 211, Commercial Districts; 3) Chapter 212, Industrial Districts; 4) Chapter 231, Off-Street Parking and Loading Provisions; and 5) Chapter 236, Nonconforming Uses and Structures. A brief explanation of each is provided below: Chapter 204 - Use Classifications: The proposed amendment is to delete the use classification - A. Adult Business and add the use classification - Z. Sex Oriented Businesses. The use classifications of the zoning code will cross reference the Huntington Beach Municipal Code, Chapter 5.24, Massage Establishments, Chapter 5.60, Figure Model Studios, and Chapter 5.70, Sex Oriented Businesses. Please see Attachment No. 3 for the legislative draft of the proposed amendment to Chapter 204. It should be noted that SCATS Gymnastics is located at 5742 McFadden Avenue which is approximately 450' (measured lot line to lot line) from the nearest property delineated for a potential SOB. The city approved Conditional Use Permit (CUP) No. 94-15 on October 25, 1994, pursuant to Article 9630 - Unclassified Uses, which established the use. At that time the use was considered unclassified and allowed in any District subject to a CUP. Under the overall heading of unclassified, the use was analyzed as a "health club" for purposes of compliance with parking and other provisions of the zoning code. Staff reviewed the use with the City Attorney's Office and it was determined that the use is not a sensitive use. CD97-57.DOC -2- 11/05/97 4:02 PM REQUEST FOR COUNCIL ACTION MEETING DATE: November 17, 1997 DEPARTMENT ID NUMBER: CD97-57 Chapter 211 - Commercial Districts: The proposed amendment is to delete both references to Adult Businesses (excluding massage establishments) and Adult Businesses (massage establishments) under the Land Use Control Section (211.04) of the chapter. The proposed amendment will classify existing SOB's in the Commercial Districts as nonconforming. Please see Attachment No. 4 for the legislative draft of the proposed amendments to Chapter 211. Chapter 212 - Industrial Districts: The proposed amendment is to allow SOB's (excluding massage establishments) as a limited use under the Land Use Controls Section (212.04) as described below. In addition, SOB's classified as massage establishments will be allowed subject to the review and approval of a conditional use permit by the Planning Commission. The method of regulating Massage Establishments is not being amended, only the zoning district in which they are permitted (from Commercial to Industrial) is being changed. Please see Attachment No. 5 for the legislative draft of the proposed amendments to Chapter 212. In addition to the amended Land Use Controls, staff is including a zoning review process under the Additional Provisions (L-11) for SOB's (excluding massage establishments). The review establishes a process as generally outlined below. The SOB zoning permit review process must be approved prior to the applicant obtaining a SOB permit from the Police Department (Municipal Code, Chapter 5.70). A general outline of the SOB zoning permit review process is as follows: 1. A locational review shall be performed by the Director. The locational review consists of compliance with the minimum distance requirements from a sensitive use (religious assembly [church], school, park and recreational facility, or property zoned RL, RM, RMH, RH, or RMP). The applicant shall submit for review a straight line drawing depicting the distances from the lot line of the parcel of land on which the Sex Oriented Business (SOB) is proposed, including all existing and proposed parking for the use, to: (a) the lot line of any other sex oriented business within seven hundred fifty feet (750') of the lot line of the SOB for which a SOB Permit is proposed; and (b) the lot line of any church (religious assembly), school, or park and recreational facility within five hundred (500') feet of the lot line of the SOB for which a SOB permit is requested; and CD97-57.DOC -3- 11/05/97 4:02 PM REQUEST FOR COUNCIL ACTION MEETING DATE: November 17, 1997 DEPARTMENT ID NUMBER: CD97-57 (c) the lot line of any parcel of land zoned RL, RM, RMH, RH, and RMP and any parcels of land with equivalent designations under any specific plans within hundred feet (500') of the lot line of the SOB for which a SOB permit is requested. 2. The front facade of the building, including the entrance, shall not be visible from any major, primary or secondary arterial street (except Argosy Drive). 3. Staff review shall include evaluation of a technical site plan, floor plans and building elevations to determine compliance with the applicable development and performance standards of the Huntington Beach Zoning and Subdivision Ordinance. The submittal of the appropriate application and fee shall be part of the staff review process. The staff review shall include but not be limited to the following: (a) Chapter 203, Definitions; Chapter 212, Industrial Districts; Chapter 230, Site Standards; Chapter 231, Off-Street Parking & Loading Provisions; Chapter 232, Landscape Improvements; Chapter 233, Signs; Chapter 236, Nonconforming Uses and Structures and Chapter 5.70 of the Municipal Code. (b) The Director shall grant or deny the application and there shall be no administrative appeal from the approval or denial of the application. 4. A SOB may not apply for a variance pursuant to Chapter 241. 5. A SOB zoning permit becomes null and void one year after its approval date unless: (a) Construction has commenced or a certificate of occupancy has been issued, whichever comes first; or (b) The use is established. 6. Change or ownership or proprietorship shall not affect the SOB zoning permit provided that the new owner or proprietor notifies the Director of the transfer. 7. A SOB zoning permit shall expire if the exercise of rights granted by the SOB zoning permit is discontinued for 12 consecutive months. Please refer to Attachment No. 5 for the legislative draft of the proposed amendments to Chapter 212. CD97-57.DOC -4- 11/06/97 10:22 AM REQUEST FOR COUNCIL ACTION MEETING DATE: November 17, 1997 DEPARTMENT ID NUMBER: CD97-57 Chapter 231 - Off-Street Parking and Loading Provisions The proposed amendment is to delete the reference to Adult Businesses under Schedule A (Section 231.04) which currently requires the determination of adequate parking spaces based on conditional use permit review and approval. The proposed amendment is to add specific parking space requirements based upon the SOB use. Staff has added the SOB, use and the parking space requirement to Schedule A. Please see Attachment No. 6 for the legislative draft of the proposed amendments to Chapter 231. Chapter 236 - Nonconforming Uses and Structures The proposed amendment provides that all sex oriented businesses currently existing legally in the commercial zone will become nonconforming uses. They are to be amortized within three years of the adoption of the new ordinance. This means that after three years, they will be required to relocate to the industrial zone. In cases where the sex oriented businesses have made substantial investments that cannot be amortized within three years or recovered by selling the property to a subsequent user, the ordinance permits for an extension of the amortization period by an additional five years. Case law provides that amortization of sex oriented uses can be completed within one year, on the basis that typically the building can be sold to a different user who can use the premises legally for some other commercial use. For example, an sex oriented bar can be sold and operated as a non-sex oriented bar and the owner can recover the entirety of his investment. Nonetheless, in order to insure the constitutionality of the ordinance, the lengthier amortization period is recommended. Further, any sex oriented business having submitted a building permit application prior to the adoption of this ordinance may continue to process that permit, and once the building is issued a certificate of occupancy, it will be treated as an sex oriented business which is subject to the usual amortization period of three years plus the option of five additional years. Please see Attachment No. 7 for the legislative draft of the proposed amendments to Chapter 236. DISCUSSION: The harmful secondary effects that sex oriented businesses cause to surrounding uses have been well studied in a series of reports prepared on behalf of cities throughout the nation. These reports indicate that separation of sex oriented businesses from those land uses particularly sensitive to the secondary effects of such businesses, including residential uses, schools, churches and synagogues and park and recreation facilities, is necessary and appropriate. Such separation of uses has been approved in a series of judicial decisions since the late 1970s. These studies and judicial decisions are on file with the City Clerk and it is recommended that the Council review these studies and judicial decisions prior to the public hearing. A summary of these studies is attached for review (see Attachment No. 9). CD97-57.DOC -5- 11/05/97 4:02 PM REQUEST FOR COUNCIL ACTION MEETING DATE: November 17, 1997 DEPARTMENT ID NUMBER: CD97-57 In the attempt to balance the expressive activities protected by the First Amendment of the United States Constitution, the California Constitution and the adverse secondary effects of SOB's, staff performed a series of locational exercises utilizing Geographic Information Systems (GIS). The exercises analyzed the potential location of SOB's in the commercial and industrial zoning districts of the city. In addition, distance requirements between SOB's and between sensitive uses such as; schools ,(public or private), religious assembly (church), park and recreational facilities, and residential zoned properties were performed. Varying distances between sensitive uses (500', 750', 1,000') along with varying distances (500', 750', 1,000') between SOB's were analyzed. The analysis also looked at how the distance measurement should be performed. Currently the measurement is taken from the lot line of the sensitive use to the SOB building. This type of measurement does not provide adequate separation between SOB and sensitive use. Therefore, staff prepared a lot line to lot line analysis. This method is easier to determine distances, prohibits a building from being modified to meet current standards and includes all associated SOB parking. Finally, staff used case studies provided by the City Attorney's Office concerning the adverse secondary side effects of SOB's and their locations. These case studies provide general guidelines in determining, locations, adequate acreage, possible number of SOB's, and a population comparison. In analyzing the commercial and industrial zoning designations of the city, it is noted that approximately 1,325 acres or 7.5% of the city is zoned and general planned as commercial, while approximately 1,475 acres or 8.3% of the city is zoned and general planned as Industrial. This is important when considering potential locations for SOB's in our city of approximately 190,000 population, 27.7 square miles (17,728 acres) and previous case studies. In addition, the case studies also identified the possible harmful effects on children and minors exposed to the effects of SOB's. The studies further note the deterioration of respect for family values, the need and desire of children and minors to stay away from and avoid such businesses, and causes children to be fearful and cautious when walking through or visiting the immediate neighborhood of such businesses. As a result of the numerous case study findings, staff began to focus their location analysis in the Industrial Districts of the city. In reviewing the different distance requirements in the Industrial Districts, it became apparent that a careful balance between adequate acreage and First Amendment Rights versus adverse secondary effects, sensitive uses, and separation between SOB's be achieved. Staff reviewed all the necessary criteria and believes that the Industrial District is the proper zoning district for such uses. Staff also determined that a minimum 750' between SOB's and 500' from sensitive uses provides adequate distance separation. The recommended locational criteria identifies an area of approximately 2% or 29.5 acres of the 8.3 % (1,475 acres) of Industrial zoned property. Staff believes this is adequate. CD97-57.DOC -6- 11/05/97 4:02 PM REQUEST FOR COUNCIL ACTION MEETING DATE: November 17, 1997 DEPARTMENT ID NUMBER: CD97-57 SUMMARY: In preparing ZTA No. 97-4, staff has been mindful of legal principles relating to the zoning regulations of SOB's and does not intend to suppress or infringe upon any expressive activities protected by the First Amendment of the United States and California Constitutions. As such, staff desires to enact reasonable zoning regulations that address, minimize, and control the adverse secondary side effects associated with the operation of SOB's. In doing so, staff finds ZTA No. 97-4 will protect the health, safety, and welfare of the citizens of Huntington Beach, protect the citizens from increased crime, and preserve the quality of life. Staff recommends approval of ZTA No. 97-4 with the findings outlined in Attachment No. 1. Environmental Status: The proposed Zoning Text Amendment is categorically exempt pursuant to Class 20, Section 15321 of the California Environmental Quality Act as amended by City Council Resolution No. 4501 passed and adopted August 1, 1977. AttachmenW: City Clerk's Page Number No. Description 1. Finding of Approval (ZTA No. 97-4) 2. Ordinance No. 3379 3. Legislative Draft - Chapter 204, Use Classifications 4. Legislative Draft- Chapter 211, Commercial Districts 5. Legislative Draft - Chapter 212, Industrial Districts 6. Legislative Draft- Chapter 231, Off-Street Parking and Loading 7. Legislative Draft - Chapter 236, Nonconforming Uses and Structures 8. Planning Commission Staff Report dated 11/12/97 9. Summary of Studies and Judicial Decisions (National Law Center) 10. Complete Studies and Judicial Studies (not attached)9k.�.,. �- 11. Locat o a Ma RCA Author: H. Fauland CD97-57.DOC -7- 11/06/97 11:47 AM ATTACHMENT 1 ATTACHMENT NO.1 ZONING TEXT AMENDMENT NO. 97-4 FINDINGS FOR APPROVAL: 1. Zoning Text Amendment No. 97-4 to amend the Huntington Beach Zoning and Subdivision Ordinance Chapter 204, Use Classifications, Chapter 211, Commercial Districts, Chapter 212, Industrial Districts, Chapter 231, Off-Street Parking and Loading Provisions, and Chapter 236, Nonconforming Uses and Structures regulating sex oriented (adult) businesses is consistent with the objectives, policies, general land uses and programs specified in the General Plan. (a) The zoning text amendment is consistent with the goals and policies of the Land Use Element of the General Plan. ZTA No. 97-4 will allow sex oriented businesses in the Industrial Districts subject to locational and distance requirements to sensitive uses, other sex oriented businesses and existing industrial land uses in the Industrial Districts. ZTA No. 97-4 provides a zoning review process and regulations which address issues of adequate setbacks, building heights, parking, landscaping, signing, etc. 2. A community need is demonstrated for the change proposed. The proposed amendments provides the zoning provisions necessary to regulate sex oriented (adult) businesses. The City Council, in adopting ZTA No. 97-4 takes legislative notice of the existence and content of the following studies concerning the adverse secondary side effects of Sex Oriented Businesses in other cities: Garden Grove, California (1991); Tucson, Arizona (1990); Seattle, Washington (1989); Austin, Texas (1986); Oklahoma City, Oklahoma (1986); Indianapolis, Indiana (1984); Houston, Texas (1983); Beaumont, Texas (1982 & 1992); Minneapolis, Minnesota (1980); Phoenix, Arizona (1979); Whittier, California (1978); Amarillo, Texas (1977); Cleveland, Ohio (1977); Los Angeles, California (1977); Dallas, Texas (1997). The City Council finds that these studies are relevant to the problems addressed by the City in enacting this ordinance to regulate the adverse secondary side effects of Sex Oriented Businesses, and more specifically finds that these studies provide convincing evidence that: (a) Sex Oriented Businesses are linked to increases in the crime rates in those areas in which they are located and in surrounding areas. (b) Both the proximity of Sex Oriented Businesses to sensitive land uses and the concentration of Sex Oriented Businesses tend to result in the blighting and deterioration of the areas in which they are located. RCA - 11/17/97 1 (CD9757-Revised) ZONING TEXT AMENDMENT NO. 97-4 FINDINGS FOR APPROVAL: Cont. Page Two (c) The proximity and concentration of Sex Oriented Businesses adjacent to residential, recreational, religious, educational and other Sex Oriented Business uses can cause other businesses and residences to move elsewhere. (d) There is substantial evidence that an increase in crime tends to accompany, concentrate around, and be aggravated by Sex Oriented Businesses, including but not limited to an increase in the crimes of narcotics distribution and use, prostitution, pandering, and violence against persons and property. The studies from other cities establish convincing evidence that Sex Oriented Businesses which are not regulated as to permissible locations often have a deleterious effect on nearby businesses in residential areas, causing, among other adverse secondary effects, an increase in crime and a decrease in property values. 3. The adoption of ZTA No. 97-4 will be in conformity with public convenience, general welfare and good zoning practice. Based on the foregoing, the City Council of the City of Huntington Beach finds and determines that special regulation of Sex Oriented Businesses is necessary to ensure that their adverse secondary side effects will not contribute to an increase in crime rates or to the blighting or deterioration of the areas in which they are located or surrounding areas. The need for such special regulations is based upon the recognition that Sex Oriented Businesses have serious objectionable operational characteristics, particularly when several of them are concentrated under certain circumstances or located in direct proximity to sensitive uses such as parks, schools, churches, thereby having a deleterious effect upon the adjacent areas. It is the purpose and intent of these special regulations to prevent the concentration of Sex Oriented Businesses and thereby prevent such adverse secondary side effects. (a) The locational requirements established by this ordinance do not unreasonably restrict the establishment or operation of constitutionally protected Sex Oriented Businesses ;in the City of Huntington Beach, and a sufficient reasonable number of appropriate locations for Sex Oriented Businesses are provided by this ordinance. RCA - 11/17/97 2 (CD9757-Revised) ZONING TEXT AMENDMENT NO. 97-4 FINDINGS FOR APPROVAL: Cont. Page Three (b) In developing this ordinance, the City Council has been mindful of legal principles relating to regulation of Sex Oriented Businesses and does not intend to suppress or infringe upon any expressive activities protected by the First Amendments of the United States and California Constitutions, but instead does enact content-neutral time, place, and manner regulations that effectively address the adverse secondary effects of Sex Oriented Businesses. The City Council, has considered decisions of the United States Supreme Court regarding local regulation of Sex Oriented Businesses, including but not limited to: Young v. American Mini Theaters. Inc., 427 U.S. 50 (1976) Reh. Denied 429 U.S. 873; Renton v; Playtime Theaters, 475 U.S. 41 (1986) Reh. Denied 475 U.S. 1132; FW/PBS. Inc. v. Dallas, 493 U.S.215 (1990); Barnes v. Glenn Theater, 111 S.Ct. 2456 (1991); United States Court of Appeals 9th Circuit decisions, including but not limited to: Topanga Press. et al. v. City of Los Angeles, 989 F.2d 1524 (1993); several California cases including but not limited to: City of National City v. Wiener, 3 CalAth 832 (1992); People v. Superior Court (Lucero) 49 Cal.3d 14 (1989); and City of Vallejo v. Adult Books.et al., 167 Cal.App.3d 1169 (1985); and other federal cases including Lakeland Lounge v. City of Jacksonville (5th Cir. 1992) 973 F.2d 1255, Hang On. Inc. v. Arlington (5th Cir. 1995) 65 F.3d 1248, Mitchell v. Commission on Adult Entertainment (3rd Cir. 1993)10 F.3d 123, International Eateries v. Broward County (11th Cir. 1991) 941 F.2d 1157, and Star Satellite v. City of Biloxi (5th Cir. 1986) 779 F.2d 1074. (c) Zoning, licensing and other police power regulations are legitimate, reasonable means of accountability to help protect the quality of life in the community of Huntington Beach and to help assure that all operators of Sex Oriented Businesses comply with reasonable regulations and are located in places that minimize the adverse secondary effects which naturally accompany the operation of such businesses. (d) The City Council of the City of Huntington Beach recognizes the possible harmful effects on children and minors exposed to the effects of such Sex Oriented Businesses and the deterioration of respect for family values, and the need and desire of children and minors to stay away from and avoid such businesses, which causes children to be fearful and cautious when walking through or visiting the immediate neighborhood of such businesses; and the City Council desires to minimize and control the adverse secondary side effects associated with the operation of Sex Oriented Businesses and RCA - 11/17/97 3 (CD9757-Revised) �s ZONING TEXT AMENDMENT NO. 97-4 FINDINGS FOR APPROVAL: Cont. Page Four thereby protect the health, safety, and welfare of the citizens of Huntington Beach; protect the citizens from increased crime; preserve the quality of life; preserve property values and the character of surrounding neighborhoods and businesses; deter the spread of urban blight and protect against the threat to health from the spread of communicable and sexually transmitted diseases. 4. The above referenced studies, particularly the Garden Grove study completed in 1991, indicate that the appropriate minimum distance to mitigate the harmful secondary effects of sex oriented businesses is 1,000 feet. However, the existing land use pattern and zoning districts in the City of Huntington Beach do not provide any areas where sex oriented businesses can locate at least 1,000 feet away from a residential zones as well as from other sensitive uses such as parks, schools and churches and synagogues. In particular, the commercial zone where sex oriented businesses are presently permitted allows for only a 200 foot minimum distance between the lot line of residential zoned property and the building of the sex oriented business. While the current zoning allows for a sufficient number of sites to meet constitutional standards, it places sex oriented businesses too close to residentially zoned property, and in particular, permits the parking lot of such businesses to be adjacent to the residential property even though the building may be 200 feet away. The above referenced studies and court cases indicate that frequently, the pernicious behaviors associated with sex oriented businesses, such as sex related crimes, and narcotics use, occurs in the parking lot of these businesses. 5. In order to better mitigate the harmful secondary effects of sex oriented businesses and still meet constitutional standards for providing an adequate number of sites available to sex oriented businesses, the zoning district in which sex oriented businesses are to be allowed has been moved to the industrial zone of the City. While still providing a sufficient number of sites to meet constitutional standards, the City was only able to increase the distance between residential properties and other sensitive uses from sex oriented businesses to 500 feet, measured from lot line to lot line. This form of measurement takes into account the parking area of sex oriented businesses. Although it does not meet the 750 foot distance requirement recommended by most studies, the Council finds that in the industrial zone, the large industrial buildings located in between the sensitive uses and the sex oriented businesses provide additional buffering between the uses. Further, in order to provide reasonable alternative avenues of communication for sex oriented RCA - 11/17/97 4 (CD9757-Revised) ZONING TEXT AMENDMENT NO. 97-4 FINDINGS FOR APPROVAL: Cont. Page Five uses, the City has reviewed the parcels that would be permitted to be used for sex oriented businesses, and has identified certain lots that are only a few feet less than 500 feet from sensitive uses. In these cases, although the lots do not meet the minimum 500 foot separation, by approving a map identifying such lots, the City is permitting sex oriented businesses to locate on these lots based on the expectation that the large industrial buildings will help mitigate the loss of the few feet short of the minimum distance separation. 6. Because adverse secondary effects are not mitigated as effectively at 500 feet from sensitive uses as they are at 750 or 1,000 feet, in order to further mitigate the adverse effects, the City is requiring that any building facing major, primary and secondary arterials that houses a sex oriented business, must have the facade or entrance of the sex oriented business facing a different direction. 7. In order to further mitigate the harmful secondary effects of sex oriented businesses, the ordinance establishes an amortization period for nonconforming uses currently occupying locations in the commercial zones of the City. Although case law allows such uses to be amortized in one year or less, the ordinance permits a three year amortization period with possible one-year extensions (maximum extensions of five years) based on sufficient evidence of extreme hardship. RCA - 11/17/97 5 (CD9757-Revised) ATTACHMENT 2 EXHIBIT A ATTACHMENT 8 r � f ~ Huntington Beach Department of Community Development STAFF REPORT TO: Planning Commission FROM: Howard Zelefsky, Planning Director BY: Herb Fauland, Senior Planner DATE: November 12, 1997 SUBJECT: Zoning Text Amendment No. 97-4 (SEX ORIENTED ADULT BUSINESS ORDINANCE) LOCATION: Industrial Districts within the City of Huntington Beach which meet the locational criteria. The industrial zoning districts include, Industrial Limited(IL) and Industrial General (IG) STATEMENT OF ISSUE: Transmitted for Planning Commission approval is Zoning Text Amendment(ZTA)No. 97-4, a city initiated request to amend the applicable chapters and provisions of the Huntington Beach Zoning and Subdivision Ordinance regulating sex oriented(sometimes know as"adult")businesses. The amendment will remove sex oriented businesses from the Commercial Districts and allow sex oriented businesses in the General Industrial (IG) and Limited Industrial (IL) Districts The proposed amendment will also require sex oriented businesses to be at least 750 feet from any other sex oriented business, and at least 500 feet from any school, church,park, or recreational facility, and any parcel zoned Residential Low (RL), Residential Medium(RM), Residential Medium High(RMH),Residential High(RH), or Manufactured Home Park(RMP). At the request of the City Council, staff has accelerated the processing of ZTA No. 97-4. The accelerated timeline has caused staff to prepare one comprehensive report for both Planning Commission and City Council review. The report is attached(No. 2) in the format of a City Council Request For Council Action(RCA). Staff is recommending the Planning Commission approve ZTA No 97-4 with findings and forward the recommendation to the City Council. RECOMMENDATION: Motion to: "Approve Zoning Text Amendment No. 97-4 with findings (Attachment No. 1) and forward to the City Council for adoption" i ALTERNATIVE ACTION(S): The Planning Commission may take alternative actions such as: A. "Deny Zoning Text Amendment No. 97-4 with findings for denial." B. "Continue Zoning Text Amendment No. 97-4 and direct staff accordingly." GENERAL INFORMATION: APPLICANT: City of Huntington Beach, 2000 Main Street, HB, CA 92648 REQUEST: The proposed amendment to the zoning ordinance will remove sex oriented(adult) businesses from the Commercial Districts and allow sex oriented (adult) businesses in the General Industrial (IG) and Limited Industrial (IL) Districts. DATE ACCEPTED: October 27, 1997 ANALYSIS: A full and comprehensive analysis of the proposed request is included in the RCA staff report dated November 17, 1997. Please see Attachment No. 2. In addition, the studies and judicial decisions regarding the harmful secondary effects of sex oriented businesses are on file with the Secretary of the Planning Commission. Summaries of these studies are included as an Attachment(No. 9) in the RCA dated 11/17/97 (see Attachment No. 2). Environmental Status: The proposed Zoning Text Amendment is categorically exempt pursuant to Class 20, Section 15321 of the California Environmental Quality Act as amended by City Council Resolution 4501 passed and adopted August 1, 1977. Coastal Stattts: Not applicable. Pttblic Notification: Legal notice was published(1/4 page advertisement) in the Huntington Beach/Fountain Valley Independent on Thursday, October 30, 1997 and notices were sent to property owners of record which may be affected by proposed ZTA No. 97-4. ATTACHMENTS: 1. Findings of Approval - Zoning Text Amendment No. 97-4 2. RCA staff report dated November 17, 1997 SH:HF:kjl Staff Report- 11/12/97 2 (97SR53) ATTACHMENT 9 National Law Center Summary of the GARDEN GROVE, CAUFORNIA 1AND USE STUDY DATW SII'I-aME t12, 1991 OVERVIEW: This report by independent consultants summarizes statistics to determine whether adult businesses should be regulated because of their impact on the community in terms of crime, decreased property values and diminished quality of life. Statistics were measured from 1981'to 1990, and included crime data and surveys with real estate professionals and city residents. Garden Grove Boulevard, which has seven adult businesses, was selected as the study area. The study incorporated many control factors to insure accurate results. The report includes a brief legal history of adult business regulation and an extensive appendix with sample materials and a proposed statute. CRIME: Crime increased significantly with the opening of an adult business, or with the expansion of an existing business or the addition of a bar nearby. The rise was greatest in "serious" offenses (termed "Part I" crimes: homicide, rape, robbery, assault, burglary, theft and auto theft). On Garden Grove Boulevard, the adult businesses accounted for 36% of all crime in the area. In one case, a bar opened less than 500 feet from an adult business, and serious crime within 1,000 feet of that business rose more than 300% the next year. REAL ESTATE: Overwhelmingly, respondents said that an adult business within 200-500 feet of residential and commercial property depreciates that property value. The greatest impact was on single family homes. The chief factor cited for the depreciation was the increased crime associated with adult businesses. HOUSEHOLD SURVEYS: 118 calls were completed in a random sample of households in the Garden Grove Boulevard vicinity. The public consensus was that adult businesses in that area were a serious problem. Nearly 25% of the surveyed individuals lived within 1,000 feet of an 1 adult business. More than 21% cited specific personal experiences of problems relating to these businesses, including crime, noise, litter, and general quality of life. 80% said they would want to move if an adult business opened in their neighborhood, with 60% saying they "would move" or "probably would move." 85% supported city regulation of the locations of adult businesses, with 78% strongly advocating the prohibition of adult businesses within 500 feet of a residential area, school or church. Women commonly expressed fear for themselves and their children because of adult businesses. I RECOMMENDATIONS: The report concludes that adult businesses have a "real impact" on everyday life through harmful secondary effects and makes four recommendations: (1) Keep current requirement of 1,000 feet separation between adult businesses; (2) Prohibit adult establishments within 1,000 feet of residential areas; (3) Enact a system of conditional use permits for adult businesses with police department involvement in every aspect of the process; and (4) IProhibit bars or taverns within 1,000 feet of an adult business. ` ^ � \'adonal IaaCenter for Children and families i National Law Center Summary of the TUCSON, ARIZONA IAND USE STUDY DATm MAY 1, 1990 OVERVIEW: This report is a memorandum from Police Department Investigative Services to the City Prosecutor describing events and activities at "adult entertainment bookstores and establishments" that demonstrate the need for stronger ordinances. Investigations had been-in progress since 1986 following numerous complaints of illegal sexual activity and unsanitary conditions. FINDINGS: Officers found a wide variety of illegal sexual conduct at all adult businesses. At virtually every such business, employees were arrested for prostitution or obscene sex shows. Dancers were usually prostitutes where, for a price, customers could observe them performing live sex acts. At several businesses, customers were allowed inside booths with dancers and encouraged to disrobe and masturbate. Many times, dancers would require customers to expose themselves before they would perform. Underage dancers were found, the youngest being a 15 year old female. Within peep booths, officers found puddles of semen on the floor and walls. If customers had used tissues, these were commonly on the floor or in the hallway. On two occasions, fluid samples were collected from the booths. In the first instance, 21 of 26 samples (81%) tested positive for semen. In the second sampling, 26 of 27 fluid samples (96%) tested positive for semen. "Glory holes" in the walls between adjoining booths facilitated anonymous sex acts between men. RECOMMENDATIONS: (1) The bottom of the door in peep booths must be at least 30 inches from the floor so that an occupant can be seen from the waist down when seated. (2) The booth cannot be modified nor can a chair be used to circumvent the visibility of the client. (3) Employee licensing procedures that include a police department background check should be put in effect. (4) In the event of a denied or revoked license, the requirement of a hearing before any action is taken. f Donal tawCenter for Children and Families National Law Center Summary of the SEATTLE, WASMNGTON IAND USE STUDY DATM M M 24, 1989 OVERVIEW: The report concerns a proposed amendment to add topless dance halls to existing land use regulations for "adult entertainment establishments." Seattle had eight such dance halls (termed "adult cabarets"), six established since 1987. The study relies on reports from a number of cities, including Indianapolis, Los Angeles, Phoenix, Austin and Cleveland. FINDINGS: The increased number of cabarets resulted in citizen complaints, including phone calls, letters (from individuals and merchants associations), and several petitions with hundreds of signatures. Protests cited decreased property values; increased insurance rates; fears of burglary, vandalism, rape, assaults, drugs, and prostitution; and overall neighborhood deterioration. The report notes that patrons of these cabarets most often are not residents of nearby neighborhoods. Without community identity, behavior is less inhibited. Increased police calls to a business, sirens, and traffic hazards from police and emergency vehicles are not conducive to healthy business and residential environments. RECOMMENDATIONS: Since city zoning policy is based on the compatibility of businesses, the report recommends that the cabarets locate in the same zones as "adult motion picture theaters." This plan allows about 130 acres for such businesses to locate throughout the city. � National IawCeruer for Clvldral and Families National Law Center Summary of the AUSTIN, TEXAS IAND USE STUDY DATED MAY 19, 1986 OVERVIEW: The report was the basis for developing an amendment to existing sexually oriented business ordinances. At the time, 49 such businesses operated in Austin, mostly bookstores, theaters, massage parlors and topless bars. The study examined crime rates, property values, and trade area characteristics. The report focused on sexually related crimes in four study areas (with sexually oriented businesses) and four control areas (close to study areas and similar). Two study areas had one sexually oriented business and the others had two such businesses. To determine the effects of these businesses on property values, the city sent surveys to 120 real estate appraising or landing firms (nearly half responded). For trade area characteristics, three businesses (a bookstore, theater and topless bar) were observed on a weekend night to determine customer addresses. CRIME: Sexually related crime ranged from 177-482% higher in the four study areas than the city average. In the two study areas containing two sexually oriented businesses, the rate was 66% higher than in the study areas with one such business. All control areas had crime rates near the city average. REAL ESTATE: 88% said that a sexually oriented business within one block of a residential area decreases the value of the homes (33% said depreciation would be at least 20%). Respondents also said such a business is a sign of neighborhood decline, making underwriters hesitant to approve the 90-95% financing most home buyers require. They said commercial property is also negatively effected by such businesses. TRADE AREA CHARACTERISTICS: Of 81 license plates traced for owner address, only 3 lived within one mile of the sexually oriented business. 44% were from outside Austin. RECOMMENDATIONS: 1) Sexually oriented businesses should be limited to highway or regionally-oriented zone districts. 2) Businesses should be dispersed to avoid concentration. 3) Conditional use permits should be required for these businesses. 1 ' � N'rional IanCenter for Children and Families National Law Center Summary of the OMAHOMA. Crff, OKIAHOMA LAND USE STUDY DATm MAHM 3, 1986 OVERVIEW: This study contains the results of a survey of 100 Oklahoma City Real Estate Appraisers. Appraisers were given a hypothetical situation and a section to comment on the effects of sexually oriented businesses in Oklahoma City. The hypothetical situation presented a residential neighborhood bordering an arterial street with various commercial properties which served the area. A building vacated by a hardware store was soon to be occupied by an "adult" bookstore. No other sexually oriented businesses were in the area and no other vacant commercial space existed. With less than a one month response time, 34 completed surveys were received by the city. FINDINGS: 32% of the respondents said that such a bookstore within one block of the residential area would decrease home values by at least 20%. Overwhelmingly, respondents said an "adult" bookstore would negatively effect other businesses within one block (76%). The level of depreciation is greater for residents than businesses. The negative effects on property values drop sharply when the sexually oriented business is at least three blocks away. In the subjective portion, 86% of the respondents noted a negative impact of sexually oriented businesses on Oklahoma City. Frequent problems cited by the appraisers included the attraction of undesirable clients and businesses, safety threats to residents and other shoppers (especially children), deterrence of home sales and rentals, and immediate area deterioration (trash, debris, vandalism). CONCLUSIONS: Oklahoma City's findings supported results from other national studies and surveys. Sexually oriented businesses have a negative effect on property values, particularly residential properties. The concentration of sexually oriented businesses may mean large losses in property values. l 1 llbtional IaavCenter for Children and Families OKLAHOMA CITY, OKLAHOMA Study of SOB Prosecution Dated June 1992 This study, written by Jon Stephen Gustin, a retired sergeant for the Oklahoma City Police Department, examines a history of the successful abatement of sexually oriented businesses (SOBs) in Oklahoma City between 1984 - 1989, which ultimately reduced an alarmingly high crime rate in the city, which is one of many harmful secondary effects related to the operation of SOBS in the community. This study indicates that in the early 1980's there was a large growth of SOBs in Oklahoma City in conjunction with a boom in the-oil industry resulting in a large influx of oil field workers in the area. Houses of prostitution, nude bars and adult theaters spread throughout the city. SOB promoters and entrepreneurs from around the country came to the area to compete for their share in the market. By 1984, over 150 SOBs and an estimated 200 prostitutes operated in the city. SOB owners competed by using more and more blatant signs and advertising. As a result, the city experienced epidemic proportions of crime problems associated with the SOBs. Citizens began to voice concerns over the decay of community moral standards, the increased crime rate, and decreased property values. Although Oklahoma City had a history of unsuccessful prosecution of cases related to pornography, prostitution, and related SOBs, public pressure from citizens and elected officials ultimately resulted in support by the Chief of Police, the City Council and the city's District Attorney to prosecute SOBs that were in violation of the law. Abating prostitution and related businesses was the first priority. The media aided this effort by publishing names of arrested customers and prostitutes, and airing live coverage-of arrests and raids. This bolstered citizen support of police and prosecutors. At adult bookstores and peep booths arrests were made for customers propositioning undercover officers to engage in sex acts, for the sale and possession of pornography, the display of pornography and for health department violations (including seminal fluids on the walls and floors of peep show booths). [Note that the author uses the term "pornography" referring to illegal pornography, also known as "obscenity."] The city next focused on prosecution for violations at nude and semi-nude dance bars, where customers engaged in sexual favors with nude employees in exchange for the purchase of expensive cocktails. Repeated arrests in these bars forced them into compliance, causing a lack of customer support. Simple arrests at escort services, which were organized fronts for prostitution, did little to abate the illegal activity. Therefore, police worked undercover , arresting solicitors of the service. Also an attempt was made to prohibit businesses that had been convicted on prostitution charges from having access to phone service. As a result of the aggressive arrest and prosecution efforts, only a handful of the original 150 SOBs remained by early 1990. All remaining SOBs operated within statutory guidelines. It has been documented that incidents of reported rape in Oklahoma City decreased 27% during that period, while it increased 16% in the rest of the state. In 1983 nearly one-half of the rapes in Oklahoma occurred in Oklahoma City, decreasing to one-third by 1989. This is an example of the benefits of stringent enforcement and prosecution of the so called "victimless crimes" associated with SOBs. National Law Center Summary of the I NDIANAPOLIS, I NDIANA IAND USE STUDY DATED REBR AW, 1984 OVERVIEW: After a 10 year growth in the number of sexually oriented businesses (to a total of 68 on 43 sites) and numerous citizen complaints of decreasing property values and rising crime, the city compared 6 sexually oriented business "study" areas and 6 "control" locations with each other and with the city as a whole. The study and control areas had high population, low income and older residences. In order to develop a "best professional opinion," the city collaborated with Indiana University on a national survey of real estate appraisers to determine valuation effects of sexually oriented businesses on adjacent properties. CRIME: From 1978-82, crime increases in the study areas were 23% higher than the control areas (46% higher than the city as a whole). Sex related crimes in the study areas increased more than 20% over the control areas. Residential locations in the study areas had a 56% greater crime increase than commercial study areas. Sex related crimes were 4 times more common in residential study areas than commercial study areas with sexually oriented businesses. REAL ESTATE: Homes in the study areas appreciated at only 1/2 the rate of homes in the control areas, and 1/3 the rate of the city. "Pressures within the study areas" caused a slight increase in real estate listings, while the city as a whole had a 50% decrease, denoting high occupancy turnover. Appraisers responding to the survey said one sexually oriented business within 1 block of residences and businesses decreased their value and half of the respondents said the immediate depreciation exceeded 10%. Appraisers also noted that value depreciation on residential areas near sexually oriented businesses is greater than on commercial locations. The report concludes: "The best professional judgment available indicates overwhelmingly that adult entertainment businesses -- even a relatively passive use such as an adult bookstore -- have a serious negative effect on their immediate environs." RECOMMENDATIONS: Sexually oriented businesses locate at least 500 feet from residential ` areas, schools, churches or established historic areas. � National IavoCencer for Ctuldren and Fanulies 1 National Law Center Summary of the HOUSTON, TEXAS 1AND USE STUDY DATE[)Nov>affi>Hx3, 1983 OVERVIEW: Report by the Committee on the Proposed Regulation of Sexually Oriented Businesses determining the need and appropriate means of regulating such businesses. Four public hearings provided testimony from residents, business owners, realtors, appraisers, police, and psychologists. The committee and legal department then reviewed the transcripts and drafted a proposed ordinance. More hearings obtained public opinion on the proposal and the ordinance was refined for vote by the City Council. TESTIMONY: The testimony was summarized into six broad premises: (1) The rights of individuals were affirmed. (2) Sexually oriented businesses can exist with regulations that 1 minimize their adverse effects. (3) The most important negative effects were on neighborhood protection, community enhancement, and property values. (4) Problems increased when these businesses were concentrated. (5) Such businesses contribute to criminal activities. (6) Enforcement of existing statutes was difficult. ORDINANCE: (1) Required permits for sexually oriented businesses (non-refundable $350 application fee). (2) Distance requirements: 750 ft. from a church or school; 1,000 ft. from other such businesses; 1,000 ft. radius from an area of 75% residential concentration. (3) Amortization period of 6 months that could be extended by the city indefinitely on the basis of evidence. (4) Revocation of permit for employing minors (under 17), blighting exterior appearance or signage, chronic criminal activity (3 convictions), and false permit information. (5) Age restrictions for entry. I I 1 1 National I ,n%Centa for Children and Pxnlhes National Law Center Summary of the BEAUMONT, TEXAS LAND USE STUDY DATED SMIMIuU4, 1982 OVERVIEW: This report by the city Planning Department encourages amendments to existing "adult business" ordinances to include eating or drinking places featuring sexually oriented entertainment (strippers, etc.). Zoning laws required "adult uses" to locate 500 ft. from residential areas; 300 ft. from any other adult bookstore, adult theater, bar, pool hall or liquor store; and 1,000 feet from a church, school, park, or recreational facility where minors congregate. CRIME: Police verified that bars, taverns, and lounges (especially those with sexually oriented entertainment) are frequent scenes of prostitution and the sale/use of narcotics. On the whole, all criminal activity was higher at sexually oriented bminesses. RECOMMENDATIONS: 1) Add eating/drinking, places that exclude minors (under Texas law), unless accompanied by a consenting parent, guardian or spouse. 2) Require specific permits for areas zoned as General Commercial-Multiple Fainily Dwelling Districts. 3) Reduce the required distance of sexually oriented businesses from residential areas, schools, parks, and recreational facilities from 1,000 to 750 ft. National Iaa Grw.for Children and Families National Law Center Summary of the MINNEAPOLIS, MINNESOTA LAND USE STUDY DATED OCTOBIIR, 1980 OVERVIEW: This report is divided into two sections: the relationship of bars and crime and the impact of "adult businesses" on neighborhood deterioration. In the study, an "adult business" is one where alcohol is served (including restaurants) or a sexually oriented business (i.e., saunas, adult theaters and bookstores, rap parlors, arcades, and bars with sexually oriented entertainment). Census tracts were used as study areas and evaluated for housing values and crime rates. Housing values were determined by the 1970 census compared to 1979 assessments. Crime rates were compared for 1974-75 and 1979-80. The study is strictly empirical and reported in a formal statistical manner; therefore it is difficult for layman interpretation of the data. FINDINGS: The report concludes that concentrations of sexually oriented businesses have significant relationship to higher crime and lower property values. Other than statistical charts, no statements of actual crime reports or housing values are included in the report. thus, the lay reader has only the most generalized statements of how the committee interpreted the empirical data. RECOMMENDATIONS: First, that adult businesses be at least 1/10 mile (about 500 feet) from residential.areas. Second, that adult businesses should not be adjacent to each other or even a different type of late night business (i.e., 24-hour laundromat, movie theaters). third, that adult businesses should be in large commercial zones in various parts of the city (to aid police patrol and help separate adult businesses from residential neighborhood). The report said "policies which foster or supplement attitudes and activities that strengthen the qualities of the neighborhoods are more likely to have desired impacts on crime and housing values than simple removal or restriction of adult businesses." 1 National IawCenter for Childran and Families r f National Law Center Summary of the PHOENIX, ARIZONA ]LAND USE STUDY DATM MAY 25, 1979 ' The study examines crime statistics for 1978 comparing areas which have sexually oriented businesses with those that do not. The results showed a marked increase in sex offenses in neighborhoods with sexually oriented businesses, and also proved increases in property and ` violent crimes as well. This study is not unique but is unusually significant, in covering the issue of property crimes more extensively. Three study areas (near locations of sexually oriented businesses) and three control areas (with no sexually oriented businesses) were selected. The study and control areas were paired according to the number of residents, median family income, percentage of non-white population, median age of population, percentage of dwelling units built since 1950, and percentage of acreage used for residential and non-residential purposes. e categories of criminal activity were included in the stud property crimes burl ' Threey y p p y (burglary, ary, larceny, auto theft), violent crimes (rape, murder, robbery, assault), and sex crimes (rape, indecent exposure, lewd and lascivious behavior,child molestation). ' On average, the number of sex offenses was 506% greater in neighborhoods where g g sexually oriented businesses were located. In one of the neighborhoods the number was 1,000% above the corresponding control area. Of the sex offenses, indecent exposure was the most common offense and the largest contributor to the increase of crimes in areas where sexually oriented businesses were located. Even without considering the crime of indecent exposure, the number of other sex crimes, such as rape, lewd and lascivious behavior, and child molestation, was 132% greater than in control areas without sexually oriented businesses. On average the number of property crimes was 43% greater in neighborhoods where sexually oriented businesses were located, and the number of violent crimes was 4% higher in those areas. The Phoenix ordinance requires sexually oriented businesses to locate at least 1,000 feet from another sexually oriented business and 500 feet from a school or residential zone. Approval by the City Council and area residents can waive the 500 foot requirement. A petition signed by 51% of the residents in the 500 foot radius who do not object must be filed and be verified by the Planning Director. i �� 14�tional IawCenter for Children and Families t a i National Law Center Summary of the WMTTIER, CAUFORMA 'A LAND USE STUDY ' DATMJANUAW9, 1978 OVERVIEW: After experiencing a rapid growth of sexually oriented businesses since 1969, the Whittier City Council commissioned a study of the effects of the businesses on the adjacent residential and commercial areas. At the time of the study, Whittier had 13 "adult" businesses: 6 model studios, 4 massage parlors, 2 bookstores, and 1 theater. Utilizing statistics, testimonies, and agency reports, the study compared two residential areas and four business areas over a span of 10 years (1968-1977). One residential area was near the largest concentration of adult businesses, the other had no commercial frontage but was chosen because of similar street patterns, lot sizes wid number of homes. For businesses, Area 1 had six adult businesses, Area 2 had one, Area 3 had ' three, and Area 4 had none. 1973 was selected as the year to compare before and after effects of the adult businesses. Two chief concerns cited in the report are residential and business occupancy turnovers and increased crime. OCCUPANCY TURNOVER: After 1973, 57% of the homes in the adult business area had changes of occupancy, compared to only 19% for the non-adult business area. Residents complained of "excessive noise, pornographic material left laying about, and sexual offenders (such as exhibitionist) venting their frustrations in the adjoining neighborhood." Citizens also expressed concern about drunk drivers coming into the area. Business Area 1, with the most concentration of adult businesses-(6), experienced a 134% increase in annual turnover rate. Area 3, with three adult businesses at one location, showed a 107% turnover rate. Area 2 (with 1 adult business) had no measurable change and Area 4 (with no commercial or adult businesses) experienced a 45% decrease in turnover from similar periods. CRIME: The City Council looked at the two residential areas for the time periods of 1970-7:1 (before adult businesses) and 1974-77 (after adult businesses). In the adult business area, criminal activity increased 102% (the entire city had only an 8.3% increase). Certain crimes skyrocketed (malicious mischief up 700%; all assaults up 387%; prostitution up 300%). All types of theft (petty, grand, and auto) increased more than 120% each. Ten types of crime were reported for the first time ever in the 1974-77 period. RECOMMENDATIONS: The Council's report recommended a dispersal type ordinance that prohibits adult businesses closer than 500 feet to residential areas, churches and schools. Distances between adult businesses was recommended at 1,000 feet. In addition, the study proposed a 1,000 foot separation from parks because of their use by citizens after normal working hours. Adult businesses would be given an 18-36 month amortization period (if the change; involved only stock in trade, a 90 day period was recommended). i National tawCenter for Children and Families F National Law Center Summary of the AMARILLO, TEXAS LAND USE STUDY DATED SHIMMER 12, 1977 OVERVIEW: This Planning Department report cites several sources including national news magazines, "adult business" ordinances from other cities, an American Society of Planning Officials report and pertinent Supreme Court decisions. Lengthy explanation of the Miller test (with legal definitions), discussion of Young v. American Mini Theatres, and a comparison of the Boston and Detroit zoning models are included. The city defined "adult businesses" as taverns, lounges, lounges with semi-nude entertainment, and bookstores or theaters with publications featuring nudity and explicit sexual activities. (At the time, Amarillo had 3 such theaters and 4 bookstores with space for such publications). FINDINGS: The police department provided an analysis showing that areas of concentrated "adult only" businesses had 2 1/2 times the street crime as the city average. The Planning Department concluded that concentrations of these businesses have detrimental effects on residential and commercial activities caused by 1) noise, lighting and traffic during late night hours 2) increased opportunity for street crimes and 3) the tendency of citizens to avoid such business areas. The study noted that lack of zoning regulations would lead to concentrations of sexually oriented businesses (causing increased crime) .or more such establishments locating near residential areas or family and juvenile oriented activity sites (churches, parks,etc.) RECOMMENDATIONS: 1) Adult businesses locate 1,000 feet from each other. No recommended distance was specified from residential zones or family/juvenile activities. 2) City development of an amortization schedule and permit/licensing mechanism. 3) City regulation of signs and similar forms of advertising. 4) Vigorous enforcement of State Penal Code, especially relating to "Harmful to Minors." 5) City amendments prohibiting minors from viewing or purchasing sexually oriented materials (enforced physical barriers). National lawCenta for Children and Families National Law Center Summary of the CLEVELAND, OH[O LAND USE STUDY DATM AUGLST 24, 1977 OVERVIEW: This is a Cleveland Police Department report from Captain Carl Delau, commander of the City's vice and obscenity enforcement units and reported by him while he participated in a panel discussion at the National Conference on the Blight of Obscenity held in Cleveland July 28-29, 1977. The topic was "The Impact of Obscenity on the Total Community." Crime statistics are included for 1976 robberies and rapes. Areas evaluated were census tracts (204 in the whole city, 15 study tracts with sexually oriented businesses). At the time of the study, Cleveland had 26 pornography outlets (8 movie houses and 18 bookstores with peep shows). their location was not regulated by city zoning laws. FINDINGS: For 1976, study tracts had nearly double the number of robberies as the city as a whole (40.5 per study tract compared to 20.5 for other city tracts). In one study tract with five sexually oriented businesses and 730 people, there were 136 robberies. In the city's largest tract (13,587 people, zero pornography outlets) there were only 14 robberies. Of the three tracts with the highest incidence of rape, two had sexually oriented businesses and the third bordered a tract with two such businesses. In these three, there were 41 rapes in 1976 (14 per tract), nearly seven times the city average of 2.4 rapes per census tract. CONCLUSION: "Close scrutiny of the figures from the Data Processing Unit on any and every phase of the degree of crime as recorded by census tracts indicates a much higher crime rate where the pornography outlets are located." I � IMaorial IawCen[er for Children and Families National Law Center Summary of the Los Angeles, CALIFORNIA LAND USE STUDY DATMJU! F, 1977 OVERVIEW: The Department of City Planning studied the effects of the concentration of sexually oriented businesses on surrounding properties for the years 1969-75 (a time of proliferation for such businesses). The report focuses on five areas with the greatest concentration of these businesses (compared to five "control" areas free of them), and cites data from property assessments/sales, public meeting testimony, and responses from two questionnaires (one to business/residential owners within a 500 foot radius of the five study areas and a second to realtors/real estate appraisers and lenders). Crime statistics in the study areas were compared to the city as a whole. Also included: a chart of sexually oriented business regulations in eleven major cities, details of current regulations available under state/municipal law, and appendices with samples of questionnaires, letters, and other study materials. PROPERTY: While empirical data for 1969-75 did not conclusively show the relation of property valuations to the concentration of sexually oriented businesses, more than 90% of realtors, real estate appraisers and lenders responding to city questionnaires said that a grouping of such businesses within 500-1,000 feet of residential property decreases the market value of the homes. Also, testimony from residents and business people at two public meetings spoke overwhelmingly i against the presence of sexually oriented businesses citing fear, concern for children, loss of customers and difficulty in hiring employees at non-adult businesses, and the necessity for r churches to provide guards for their parking lots. CRIME: More crime occurred in areas of sexually oriented business concentration. Compared to city-wide statistics for 1969-75, areas with several such businesses experienced greater increases in pandering (340%), murder (42.3%), aggravated assault (45.2%), robbery (52.6%), and purse snatching (17%). Street robberies, where the criminal has face to face contact with his victim, increased almost 70% more in the study areas. A second category of crime, including other assaults, forgery, fraud, counterfeiting, embezzlement, stolen property, prostitution, narcotics, liquor laws, and gambling increased 42% more in the study areas over the city as a whole. RECOMMENDATIONS: The study recommended distances of more than a 1,000 feet separating sexually oriented businesses from each other, and a minimum of 500 feet separation of such businesses from schools, parks churches and residential areas. t National IawCauer for Cltildral and Punilies DALLAS, TEXAS Land Use Study Dated April 29, 1997 This study, which is an update of a December 14, 1994 report prepared by The Malin Group, analyzes the effects of sexually oriented businesses (SOBs), specifically those that offer or advertise live entertainment and operate as an adult cabaret, on the property values in the surrounding neighborhoods. The study concludes that there is a much greater impact on the surrounding neighborhoods when there is a high concentration of these businesses in one locale. The study found that the presence of an SOB in an area can create a"dead zone" which is avoided by shoppers and families with children that do not want to be in areas that also have adult uses. Also, the late hours of operation combined with loitering by unsavory people in the area where SOBs are located, appear to lead to higher crime in the area. In fact, a look at police calls for service over a four year period (1993-1996) shows that SOBs were a major source of the calls. One area averaged more than one call to police per day, where there was a concentration of seven SOBS. In that same area there was a much higher incidence of sex crime arrests than in similar areas with none or fewer SOBs. This study applied the conclusions of several other studies completed by New York, Phoenix, Indianapolis, Austin, and Los Angeles, finding that the methodology used was appropriate and the conclusions were sound. This study concludes that the finding in these other studies would not be any different in Dallas. The studies found that SOBS have negative secondary impacts such as increased crime rates, depreciation of property values, deterioration of community character and the quality of life. In addition, real estate brokers interviewed in the Dallas area reported that SOBS are "perceived to negatively affect nearby property values and decrease market values." There were similar results from surveys taken in New York City and a national survey completed in Indianapolis and Los Angeles. The study also showed that community residents were concerned that the business signs used by SOBS were out of keeping with neighborhood character and could expose minors to sexual images. In areas where SOBs were concentrated, the signs were larger more visible and more graphic, to compete for business. The study shows that a concentration of SOBs has a higher negative impact on the surrounding communities than an area with one isolated SOB. When concentrated, SOBS tend to be a magnet for certain businesses such a pawn shops, gun stores, liquor stores, etc., while driving away more family-oriented businesses. It can be harder to rent or sell vacant land in areas where SOBs are located. In fact, the negative perceptions associated with these areas have a significant impact on declining property values, even where other negative effects of SOBS are difficult to measure. Interviews with owners of commercial property near SOBS confirmed that the loss of property value manifested in a variety of ways, including: increased operating costs, like additional security patrols, burglar alarms, and trash cleanup; properties selling at much lower sales prices; and extreme difficulty in leasing properties. Owners thought that if the SOBs were gone, their property values would increase. 11-26-97 03: 21PM FROM 111 TO CITY CLERK P01 : NOV 26 197 02:05PM NED R. HEAL'r (7'14" 64 -7251 P. 1. . . I I November 26, 1997 I Mayor Ralph Bauer, Council Members copy to City Attorncy's Office Attn, Scott Field and Jermifer McGrath i R1?; Adult Business Ordinance Update As a property owner in the Central Park Business Center, I have concerns that arty SOB relegated to an"industrial area"because "commercial" is off limits be required to follow all rules regarding signs, parking, trash, noise, maintenance of property and landsc Ipe. My husband and 1 own a property where we operate a warehouse business in thl Central Park Business Center industrial tract which is located south of Slater on Griffin Lane Burton Way and Sampson Lane. Y also serve as Secretary/Treasurer of the Central Park Busipess Center Master Association. As a business owner, and a volunteer Director of the Association, I am concern�d with having in our midst, any "retail"business which might attract large numbers of patrons during the 7 a.m. to 6 p.m, normal business day. II 1. Parking: Would the business be required to buy or lease space with sufficient on-site puking? If not, would overflow take street parking outside bur business or even invade our on site parking built to code with ample parking for our use. 2, Trash: Would a SOB be rcquired to have sufficient 4equency oft ash removal so that its' patrons do not invade adjoining businesses to dump trash 3. Signs: Should be in compliance with not only city ordinance but any sign limitations imposed by the CURS of the association governing the tract. 4. Msiutenance of property and landscape in our industrial park is also governed by our CC&Rs, so any new owner or tenant would need to comply. 5. Noise: Will there be restrictions against loud music broadcast over exterior loudspeakers? Please consider and make requirements which will not adversely affect the ope,ation oftho existing businesses in our tract. While it is more offensive to have "Adult" businesses located ncar churches, schools and residential housing, please remember that this kind bf business will have an impact wherever it locates. co W X Very truly yours, I w CA X c'7 Rita L. Healy, property o r e 17602 Griffin Lane, 92647 j ` ' i P = Permitted CO, CG, L = Limited (see Additional Provisions) and CV PC = Conditional use permit approved by Planning Commission Districts ZA = Conditional use permit approved by Zoning Administrator Land Use TU = Temporary Use Permit Controls P/U = Requires conditional use permit on site of conditional use Not Permitted CO CG CV Additional Provisions Tattoo Establishments - PC - Automobile Washing - L-7 - Commercial Parking - PC PC (P) Service Stations - PC PC (E) Vehicle Equip. Repair - L-5 - Vehicle Equip. Sales & Rentals - PC - Vehicle Storage - - - Visitor Accommodations Bed & Breakfast Inns PC PC PC (K) Hotels, Motels - PC PC (I) (3334) Quasi Residential (3334) Time Shares - PC PC (I)(J) (3334) Residential Hotel - PC PC (J) Single Room Occupancy - PC PC (J)(0) Industrial (J)(Q)(R)(V) (3334) Industry, Custom - L-6 L-6 Accessory Uses (J)(V) (3334) Accessory Uses & Structures P/U P/U P/U Temporary Uses (F)(J)(V) (3334) Animal Shows - TU - Circus and Carnivals - TU - Commercial Filming, Limited - P P (M) Real Estate Sales ZA ZA ZA Retail Sales, Outdoor - P P (M) Seasonal Sales P P P (M) Trade Fairs - TU - Nonconforming Uses (G)(J)(V) (3334) 4 JM/s:JM:21 1-Fin 10/30/97 40 CO, CG, and CV Districts: Additional Provisions L-1 Permitted if the space is 2,500 square feet or less; allowed with a conditional use permit from the Zoning Administrator if the laboratory space exceeds 2,500 square feet. L-2 Allowed with a conditional use permit from the Zoning Administrator if the space is 2,500 square feet or less; allowed with a conditional use permit from the Planning Commission if the space exceeds 2,500 square feet. L-3 Repealed (3334) L-4 Permitted with a maximum seating capacity of 12; allowed with a conditional use permit from the Zoning Administrator if seating capacity exceeds 12. L-5 Only "limited" facilities are allowed subject to approval of a conditional use permit from the Planning Commission, and body and fender shops are permitted only as part of a comprehensive automobile-service complex operated by a new vehicle dealer. L-6 Only "small-scale" facilities, as described in Use Classifications, are allowed with a conditional use permit from the Zoning Administrator and maximum 7 persons may be employed full time in processing or treating retail products, limited to those sold on the premises. L-7 Attended facilities allowed with a conditional use permit from the Planning Commission; unattended facilities allowed with a conditional use permit from the Zoning Administrator. L-8 On-site storage limited to two rental cars. L-9 Public facilities permitted, but a conditional use permit from the Zoning Administrator is required for commercial facilities. (A) Limited to facilities on sites 2 acres or less. (B) See Section 230.40: Helicopter Takeoff and Landing Areas. (C) Repealed. (D) See Section 230.38: Game Centers; Chapter 5.28: Dance Halls; Chapter 9.24: Card Rooms; Chapter 9.32: Poolrooms and Billiards; and Chapter 9.28: Pinball Machines. (E) See Section 230.32: Service Stations. (F) See Section 241.20: Temporary Use Permits (G) See Chapter 236: Nonconforming Uses and Structures. 5 JM/s:JM:21 1-Fin 10/30/97 (H) For teen dancing facilities, bicycle racks or a special bicycle parking area shall be provided. These may not obstruct either the public sidewalk or the building entry. See also Chapter 5.28: Dancing Halls; Chapter 5.44: Restaurants - Amusement and Entertainment Premises; and Chapter 5.70: Adult Entertainment Businesses. (3341-10/96) (I) Only permitted on a major arterial street, and a passive or active outdoor recreational amenity shall be provided, subject to approval of the Planning Commission. (J) In the CV District the entire ground floor area and at least one-third of the total floor area shall be devoted to visitor-oriented uses as described in the certified Local Coastal Program Land Use Plan. Any use other than visitor serving commercial shall be located above the ground level, and a conditional use permit from the Planning Commission is required. Any use other than visitor serving commercial uses shall only be permitted if visitor serving uses are either provided prior to the other use or assured by deed restriction as part of the development. No office or residential uses shall be permitted in any visitor serving designation seaward of Pacific Coast Highway. (3334) (K) See Section 230.42: Bed and Breakfast Inns. (L) See Section 230.44: Recycling Operations. (M) Subject to approval by the Police Department, Public Works Department, Fire Department and the Director. See also Section 230.86 Seasonal Sales. (N) The following businesses proposing to sell alcoholic beverages for on-site or off-site consumption are exempt from the conditional use permit process: (1) Retail markets with no more than 10 percent of the floor area devoted to sales, display, and storage of alcoholic beverages provided the sale of alcoholic beverages is not carried on in conjunction with the sale of gasoline or other motor vehicle fuel. (2) Restaurants, bars, and liquor stores that are located 300 feet or more from any R or PS district, school, church, or public use. (3) Florist shops offering the sale of a bottle of an alcoholic beverage together with a floral arrangement. (0) See Section 230.46: Single Room Occupancy. (P) See Chapter 231 for temporary and seasonal parking. (Q) Development of vacant land or initial construction of a building for permitted use requires approval of a conditional use permit from the Zoning Administrator. (R) Projects within 500 feet of a PS District see Chapter 244. (S) See Section 230.48: Equestrian Centers (T) See Section 230.50: Indoor Swap Meets/Flea Markets 6 JM/s:JM:21 1-Fin 10/30/97 P = Permitted CO, CG, L = Limited (see Additional Provisions) and CV PC = Conditional use permit approved by Planning Commission Districts ZA = Conditional use permit approved by Zoning Administrator Land Use TU = Temporary Use Permit Controls P/U = Requires conditional use permit on site of conditional use Not Permitted CO CG CV ditional Provisions Tattoo Establishments - PC Automobile Washing - L-7 - Commercial Parking - P PC (P) Service Stations - C PC (E) Vehicle Equip. Repair - L-5 - Vehicle Equip. Sales & Rentals - PC - Vehicle Storage - - - Visitor Accommodations Bed & Breakfast Inns C PC PC (K) Hotels, Motels - PC PC (1) (3334) Quasi Residential (3334) Time Shares - PC PC (1)(J) (3334) Residential Hotel - PC PC (J) Single Room Occupancy - PC PC (J)(0) Industrial (J)(Q)(R)(V) (3334) Industry, Custom - L-6 L-6 Accessory Uses (J)(V) (3334) Accessory Uses & Structur s P/U P/U P/U Temporary Uses (F)(J)(V) (3334) Animal Shows - TU - Circus and Carnivals - TU - Commercial Filmin , Limited - P P (M) Real Estate Sales ZA ZA ZA Retail Sales, Out oor - P P (M) Seasonal Sales P P P (M) Trade Fairs - TU - Nonconforming Uses G (3334) 4 JM/s:JM:21 1-Fin 10/30/97 CO, CG, and CV Districts: Additional Provisions L-1 Permitted if the space is 2,500 square feet or less; allowed with a conditional use permit from the Zoning Administrator if the laboratory space exceeds 2,500 square feet. / L-2 Allowed with a conditional use permit from the Zoning Administrator if the space is 2,500 square feet or less; allowed with a conditional use perm' from the Planning Commission if the space exceeds 2,500 square feet. L-3 Repealed (3334) L-4 Permitted with a maximum seating capacity of 12; allowe�cacitywith a conditional use permit from the Zoning Administrator if seating exceeds 12. L-5 Only "limited" facilities are allowed subject to ap oval of a conditional use permit from the Planning Commission, and bod and fender shops are permitted only as part of a comprehensive automobile-s ice complex operated by a new vehicle dealer. L-6 Only "small-scale" facilities, as describ ;in Use Classifications, are allowed with a conditional use permit from th oning Administrator and maximum 7 persons may be employed full time ' processing or treating retail products, limited to those sold on the premi es. L-7 Attended facilities allowed wi a conditional use permit from the Planning Commission; unattended fa ' ities allowed with a conditional use permit from the Zoning Administrator. L-8 On-site storage limited o two rental cars. L-9 Public facilities pe itted, but a conditional use permit from the Zoning Administrator is re uired for commercial facilities. (A) Limited to facili es on sites 2 acres or less. (B) See Section 2 0.40: Helicopter Takeoff and Landing Areas. (D) See Sectio 230.38: Game Centers; Chapter 5.28: Dance Halls; Chapter 9.24: Card Roo s; Chapter 9.32: Poolrooms and Billiards; and Chapter 9.28: Pinball Machine . (E) See S tion 230.32: Service Stations. (F) See ection 241.20: Temporary Use Permits (G) I e Chapter 236: Nonconforming Uses and Structures. H r teen dancing facilities bicycle ( ) g } e racks or a special bicycle parking area shall le provided. These may not obstruct either the public sidewalk or the building 5 JM/s:JM:21 1-Fin 10/30/97 entry. See also Chapter 5.28: Dancing Halls; Chapter 5.44: Restaurants - Amusement and Entertainment Premises, and Chapter 5.70: Adult Entertainment Businesses. (3341-10/96) (I) Only permitted on a major arterial street, and a passive or active outdoor recreational amenity shall be provided, subject to approval of the Planning Commission. (J) In the CV District the entire ground floor,area and at least one-third of the total floor area shall be devoted to visitor-oriented uses as described in the certified Local Coastal Program Land Use Plan. Any use other than visitor se- ing commercial shall be located above the ground l/dn a conditio 1 use permit from the Planning Commission is requir use other an visitor serving commercial uses shall only be permitteor servi uses are either provided prior to the other use or assured by dection a part of the development. No office or residential uses shalitte in any visitor serving designation seaward of Pacific Coast H (3334) (K) See Section 230.42: Bed and Breakfast Inns. (L) See Section 230.44: Recycling Operations. (M) Subject to approval by the Police Department, Porks Department, Fire Department and the Director. See also SectionSeasonal Sales. (N) The following businesses proposing to sell al 6holic beverages for on-site or off-site consumption are exempt from the co ditional use permit process: (1) Retail markets with no more than 1 percent of the floor area devoted to sales, display, and storage of alcoh lic beverages provided the sale of alcoholic beverages is not carried n in conjunction with the sale of gasoline or other motor vehicle el. (2) Restaurants, bars, and liquor ores that are located 300 feet or more from any R or PS district, school, hurch, or public use. (3) Florist shops offering the ale of a bottle of an alcoholic beverage together with a floral arrangemen . (0) See Section 230.46: Single oom Occupancy. (P) See Chapter 231 for temp q ary and seasonal parking. (Q) Development of vacant 1 /d or initial construction of a building for permitted use requires approval of a conditional use permit from the Zoning Administrator. (R) Projects within 500 feet of a PS District see Chapter 244. (S) See Section 230.48: Equestrian Centers (T) See Section 230.50: Indoor Swap Meets/Flea Markets 6 JM/s:JM:21 1-Fin 10/30/97 o c HB CITY OF HUNTINGTON BEACH �c rxn INTER-DEPARTMENT COMMUNICATION ' -`" C�r c CD "=o z i- TO: HONORABLE MAYOR RALPH BAUER AND MEMBERS OF TI-LeC;TY COUNCIL FROM: GAIL HUTTON, City Attorney DATE: NOVEMBER 14, 1997 SUBJECT: PLANNING COMMISSION RECOMMENDATIONS RELATING TO CITY COUNCIL AGENDA ITEM D-1 At its meeting of November 12, 1997, the Planning Commission recommended approval of ZTA 97-4 to the City Council with the following amendments to Zoning Code Section 212.04 L-11: 1. The distances between sex oriented businesses should be increased to one thousand feet (1000'). 2. No signage should be visible from a major, primary or secondary arterial. 3. The applicant shall cause notice to be mailed to property owners within one thousand feet of the proposed location of the sex oriented business prior to submission of an application for staff review. 4. The applicant shall cause notice of the decision of the Director to be mailed to property owners within one thousand feet of the proposed location of the sex oriented business and publish the notice of decision in a local newspaper of general circulation. The recommendations as outlined above are represented by the underlined language on the attached pages. The City Attorney's office is of the opinion that all of the above changes are constitutional because they are consistent with the general theme of the cases approving various restrictions that may be placed on sex oriented businesses in order to mitigate their harmful secondary effects on surrounding properties. However, the City Attorney is also unaware of any cases specifically upholding the regulations the Planning Commission recommended. Further, the City Attorney's office is of the opinion that the Council's desire to fully mitigate the harmful secondary effects of sex oriented businesses must be tempered by realization that should the regulations be challenged in court, the City will be paying attorneys' fees to the plaintiff, even if the Court declares unconstitutional only one of twenty-five challenged regulations. Given this reality, we feel the need to be cautious with our recommendations regarding additional regulations in order to protect the City's finances. I 1 j mp/memo/sob212pc/11/14/97 Turning then to the four specific recommendations of the Planning Commission, the City Attorney's office is of the following opinion: 1. The distances between sex oriented businesses should be left at the 750 feet separation originally recommended. Staff analyzed three different separation distances: 500 feet, 750 feet, and 1000 feet. If separation is limited to 500 feet, the maximum number of adult sexually oriented businesses that could locate in the industrial area would be 23. Under the 750 foot recommendation, the maximum number of businesses is 16. By increasing the number to 1000 feet, this reduces the maximum number of sites to 12. Unfortunately, case law is mixed on the exact percentage of acreage the City must make available to sex oriented businesses, as well as the maximum number of individual sites. Again because of our concern of limiting City exposure, we recommend the 750 foot separation. 2. The City Attorney's office does not recommend prohibiting signage from being visible from any major, primary or secondary arterial. Currently, in the commercial zone, the City does have a signage prohibition similar to the one the Commission recommended, although it is currently the subject of litigation in the case of Talbert & Beach, Inc. v. City of Huntington Beach. Moreover, the City Attorney's office does believe that the City may constitutionally regulate the signage of sex oriented businesses. However, as a general matter, permissible signage in the industrial zone is substantially more restricted than it is in the commercial zone. For example, in the commercial zone, free standing signs with internal illumination are permitted. By contrast, businesses in the industrial zone are limited to two signs only, one a monument sign not exceeding 7 feet in height and typically of less than 32 square feet, and a second wall sign of not more than 100 square feet. Further, the City is already prohibiting the text of the sign for the sex oriented business from including any suggestive or graphic language or pictures. On the other hand, the Planning Commission pointed out that in order to mitigate the harmful secondary effects of these businesses, Staff was already recommending that no business shall have an entrance on a major, primary or secondary arterial. This means that all the businesses drawing access off of Bolsa, Bolsa Chica and Graham are required to locate their entrances away from these major streets. We do recognize that the mere presence of these businesses, apart from any criminal activity that may occur, tends to depress property values. A number of studies have identified this effect. Consequently, we believe that reduced property values can be avoided by minimizing the presence of these businesses through reduced signage. However, motorists intending to visit these businesses need to be able to identify them from the street. Consequently, while we do not support the signage prohibition placed by the Planning Commission, if the Council wishes to further limit signage, we would recommend that Subsection L-11. B read as follows: "The front facade of the building, including the entrance, and one sign, shall not be visible from any major, primary or secondary arterial or street as designated by the circulation element of the General Plan adopted 2 jmp/memo/sob212pc/1 1/14/97 May, 1996, with the exception of Argosy Drive. However, one monument or wall sign or the two sign permitted pursuant to Zoning Code Section 233.08E shall be permitted to be visible from a major, primary or secondary arterial or street." 3. The City Attorney's office agrees that the applicant should cause notice of the sex oriented business zoning application to be mailed to all property owners within 1000 feet of the proposed business. Initially, we had not included such notification since the approval of the business is an administrative matter and there is neither a conditional use permit required, nor a public hearing. However, neighboring property owners should be informed of the application for several reasons. For example, neighbors can bring to the attention of the Community Development Director any new sensitive uses may have been located near the sex oriented business. Further, neighboring property owners should be confident that the Community Development Director has properly applied the zoning:standards the City Council has adopted. In order to insure this happens, providing a notice to surrounding property owners of the submittal of an application is appropriate. The notice procedure the Commission added is the same process the City uses pursuant to Zoning Code Section 230.22D for residential in-fill lot developments. Such in-fill lot developments do not require any public hearing or discretionary approval. Nonetheless, public notification is provided of these applications so that neighboring property owners are aware of them, and can monitor the process to be assured that the City has followed all proper regulations. 4. We believe providing notice of the approval of a sex oriented business zoning permit is unnecessary if the property owners have already been notified of the application. Consequently, we would recommend that Subsection H.3., as the Planning Commission recommended, be deleted. Gail Hutton City Attorney Attachments: 1. Legislative Draft of Chapter 212.04, L-11 identifying the Planning Commission recommendations 2. Industrial sign standards from Section 233.08 B. 3 j mp/memo/sob212 pc/I 1/14/97 ` I Attachment 1 L-11 Allowed subject to the following requirements: A. A proposed sex oriented business shall be at least five hundred feet (500') from any residential use, school, park and recreational facility, or any building used for religious assembly (collectively referred to as a "sensitive use") and at least 1000 feet from another sex oriented business. For purposes of these requirements, all distances shall be measured from the lot line of the proposed sex oriented business to the lot line of the sensitive use or the other sex oriented business. The term "residential use" means any property zoned RL, RM, RMH, RH, RMP, and any properties with equivalent designations under any specific plan. To determine such distances the applicant shall submit for review a straight line drawing depicting the distances from the lot line of the parcel of land on which the sex oriented business is proposed which includes all the proposed parking and: 1. the lot line of any other sex oriented business within one thousand feet 1( 000') of the lot line of the proposed sex oriented business; and 2. the lot line of any building used for religious assembly, school, or park & recreational facility within five hundred (500') feet of the lot line of the proposed sex oriented business; and 3. the lot line of any parcel of land zoned RL, RM, RMH, RH, and RMP and any parcels of land with equivalent designations under any specific plans within five hundred feet (500') of the lot line of the proposed sex oriented business. B. The front facade of the building, including the entrance and all signaage, shall not be visible from any major, primary or secondary arterial street as designated by the circulation element of the General Plan adopted May, 1996, with the exception of Argosy Drive. C. Prior to or concurrently with applying for a building permit and/or a certificate of occupancy for the building, the applicant shall submit application 4 j mp/memo/sob212p c/11/14/97 for staff review of a sex oriented business zoning permit with the drawing described in subsection A, a technical site plan, floor plans and building elevations, and application fee. Within ten (10) days of submittal, the Director shall determine if the application is complete. If the application is deemed incomplete, the applicant may resubmit a completed application within ten (10) days. Within thirty days of receipt of a completed application, the Director shall determine if the application complies with the applicable development and performance standards of the Huntington Beach Zoning and Subdivision Ordinance. Said standards include but are not limited to the following: 1. Chapter 203, Definitions; Chapter 212, Industrial Districts; Chapter 230, Site Standards; Chapter 231, Off-Street Parking & Loading Provisions; Chapter 232, Landscape Improvements; and Chapter 236, Nonconforming Uses and Structures. 2. Chapter 233.08(b), Signs. Signage shall conform to the standards of the Huntington Beach Zoning and Subdivision Ordinance Code except that such signs shall contain no suggestive or graphic language, photographs, silhouettes, drawings, statues, monuments, sign shapes or sign projections, or other graphic representations, which depict the human body or anatomy, or any portion thereof, whether clothed or unclothed, including without limitation representations that depict "specified anatomical areas" or "specified,sexual activities." 3. Compliance with Huntington Beach Municipal Code Chapter 5.70. The Director shall grant or deny the application for a sex oriented business zoning permit for a sex oriented business. There shall be no administrative appeal from the granting or denial of a permit application thereby permitting the applicant to obtain prompt judicial review. D. A sex oriented business may not apply for a variance pursuant to Chapter 241 nor a special sign permit pursuant to Chapter 233. E. A sex oriented business zoning permit shall become null and void one year after its date of approval unless: 5 jmp/memo/sob212pc/l 1/14/97 1. Construction has commenced or a Certificate of Occupancy has been issued, whichever comes first; or 2. The use is established. F. The validity of a sex oriented business zoning permit shall not be affected by changes in ownership or proprietorship provided that the new owner or proprietor promptly notifies the Director of the transfer. G. A sex oriented business zoning permit shall lapse if the exercise of rights granted by it is discontinued for 12 consecutive months. H. Public Notification Requirements. 1. Ten (10) working days prior to submittal for staff review, the applicant shall give notice of the application to property owners within one thousand feet (1000') of the proposed location of the sex oriented business by first class mail. The notice of application shall include the following: a. name of applicant b. location of proposed sex oriented business c. nature of the sex oriented business d. the City Hall telephone number for the Department of Community development to call for viewing plans e. the date by which any comments must be received in writing by the Department of Community Development. This date shall be ten (10) working days from staff review submittal, f. the address of the Department of Community Development 2. The applicant shall submit proof of mailing of the notice when submitting the application for staff review. The noticed property owners shall have ten (10) working days from staff review submittal to provide comments regarding the application to the Director. 3. subsequent to the decision of the Director, the applicant shall give Notice of the Decision to all property owners within one thousand feet (1000')-of the proposed location of the sex oriented business by first class mail and publish the Notice of Decision in a local newspaper of general circulation. 6 j mp/memo/sob212pc/11/14/97 i' i A. x-iidential use of sign type maximum number maximum area maximum other standards r sin height Neighborhood f/s 1 per street entrance 1 sq ft per dwelling unit, 6 ft. 1.Signs shall be affixed to perimeter wall or placed within a landscaped planter Identification max.50 sq ft 2 Sign copy shall be limited to 18 inches in height,name of development only. OR One on each side of each .5 sq.ft.per dwelling 3.Freestanding signs shall be setback 20 feet from any interior property line street entrance unit,max 25 sq.ft Placement shall conform to Diagram A wail Vacancy Signs for wall One per street frontage 6 sq ft. Below 1.Copy limited to"vacancy,"type of unit available,and source of information. multi-family roofline developments B. Industrial and Mixed Use use of sign type maximum number maximum area maximum other standards per sin height Business Us One per site Under 1 acre 32 sq ft 7 ft. 1.Sign copy shall be limited to center or single business identification only No Identification multi-tenant panels shall be permitted rt Industrial centers over 1 r acre:50 sq ft 2.Freestanding signs shall be located in a landscaped planter a minimum of 2 feet n wider than the sign itself. 3 Freestanding signs shall conform to Diagram A. (D 4.Signs shall be monument type. rt N 5 External illumination only. 6 All freestanding signs shall have the street address included on the sign wall One per street or parking lot 1 sq ft.per lineal ft.of Below 1 No internal illumination permitted. frontage for each separate building frontage. roof line business. 2 One nameplate may be placed at each door,loading dock,or other entrance facing Channel letter signs a public street;max 6 sq.ft. receive a 10%bonus after the above calculation. Max.100 sq.ft.per business for all wall signs C. Commercial Huntington Beach Zoning and Subdivision Ordinance Chapter 233 233-9 5/97 Huntington Beach Planning Commission P.O. BOX 190 CALIFORNIA 92648 November 14, 1997 City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 SUBJECT: Zoning Text Amendment No. 97-4 (SEX ORIENTED ADULT BUSINESS ORDINANCE) REQUEST: The proposed amendment to the zoning ordinance will remove sex oriented (adult) businesses from the Commercial Districts and allow sex oriented (adult) businesses in the General Industrial (IG) and Limited Industrial (IL) Districts. LOCATION: Industrial Districts within the City of Huntington Beach which meet the locational criteria. The industrial zoning districts include; Industrial Limited (IL) and Industrial General (IG) DATE OF ACTION: November 12, 1997 Your application was acted upon by the Planning Commission of the City of Huntington Beach on November 12, 1997, and your request was Approved with Modifications and will be forwarded to the City Council for final action. Attached to this letter are the Findings for Approval and revised Section 212.04(L-11) for this application. In your case, the last day for filing an appeal and paying the filing fee is not applicable because the project will be automatically forwarded to the City Council. (97CL 1112-27) is If there are any further questions, please contact Herb Fauland, Senior Planner at (714) 536-5271. Sincerely, Howard Zelefsky, Secretary Planning Commission by: Scott Hess, AICP Senior Planner xc: Property Owner Attachment: 1. Findings for Approval 2. Revised Section 212.04(L-11) (97CL I l 12-28) FINDINGS FOR APPROVAL ZONING TEXT AMENDMENT NO. 97-4 FINDINGS FOR APPROVAL - ZONING TEXT AMENDMENT NO. 97-4: 1. Zoning Text Amendment No. 97-4 to amend the Huntington Beach Zoning and Subdivision Ordinance Chapter 204, Use Classifications, Chapter 211, Commercial Districts, Chapter 212, Industrial Districts, Chapter 231, Off-Street Parking and Loading Provisions, and Chapter 236, Nonconforming Uses and Structures regulating sex oriented (adult) businesses is consistent with the objectives, policies, general land uses and programs specified in the General Plan. The zoning text amendment is consistent with the goals and policies of the Land Use Element of the General Plan. ZTA No. 97-4 will allow sex oriented businesses in the Industrial Districts subject to locational and distance requirements to sensitive uses, other sex oriented businesses and existing industrial land uses' in the Industrial Districts. ZTA No. 97-4 provides a zoning review process and regulations which address issues of adequate setbacks, building heights, parking, landscaping, signing, etc. 2. A community need is demonstrated for the change proposed. The proposed amendments provides the zoning provisions necessary to regulate sex oriented (adult) businesses. The Planning Commission, in adopting ZTA No. 97-4 takes legislative notice of the existence and content of the following studies concerning the adverse secondary side effects of Sex Oriented Businesses in other cities: Garden Grove, California (1991); Tucson, Arizona (1990); Seattle, Washington (1989); Austin, Texas (1986); Oklahoma City, Oklahoma (1986); Indianapolis, Indiana (1984); Houston, Texas (1983); Beaumont, Texas (1982 & 1992); Minneapolis, Minnesota (1980); Phoenix, Arizona (1979); Whittier, California (1978); Amarillo, Texas (1977); Cleveland, Ohio (1977); Los Angeles, California (1977); Dallas, Texas (1997). The Planning Commission finds that these studies are relevant to the problems addressed by the City in enacting this ordinance to regulate the adverse secondary side effects of Sex Oriented Businesses, and more specifically finds that these studies provide convincing evidence that: (a) Sex Oriented Businesses are linked to increases in the crime rates in those areas in which they are located and in surrounding areas. (b) Both the proximity of Sex Oriented Businesses to sensitive land uses and the concentration of Sex Oriented Businesses tend to result in the blighting and deterioration of the areas in which they are located. (c) The proximity and concentration of Sex Oriented Businesses adjacent to residential, recreational, religious, educational and other Sex Oriented Business uses can cause other businesses and residences to move elsewhere. (97CL 1112-29) (d) There is substantial evidence that an increase in crime tends to accompany, concentrate around, and be aggravated by Sex Oriented Businesses, including but not limited to an increase in the crimes of narcotics distribution and use, prostitution, pandering, and violence against persons and property. The studies from other cities establish convincing evidence that Sex Oriented Businesses which are not regulated as to permissible locations often have a deleterious effect on nearby businesses in residential areas, causing, among other adverse secondary effects, an increase in crime and a decrease in property values. 3. The adoption of ZTA No. 97-4 will be in conformity with public convenience, general welfare and good zoning practice. Based on the foregoing, the Planning Commission of the City of Huntington Beach finds and determines that special regulation of Sex Oriented Businesses is necessary to ensure that their adverse secondary side effects will not contribute to an increase in crime rates or to the blighting or deterioration of the areas in which they are located or surrounding areas. The need for such special regulations is based upon the recognition that Sex Oriented Businesses have serious objectionable operational characteristics, particularly when several of them are concentrated under certain circumstances or located in direct proximity to sensitive uses such as parks, schools, churches, thereby having a deleterious effect upon the adjacent areas. It is the purpose and intent of these special regulations to prevent the concentration of Sex Oriented Businesses and thereby prevent such adverse secondary side effects. (a) The locational requirements established by this ordinance do not unreasonably restrict the establishment or operation of constitutionally protected Sex Oriented Businesses in the City of Huntington Beach, and a sufficient reasonable number of appropriate locations for Sex Oriented Businesses are provided by this ordinance. (b) In developing this ordinance, the Planning Commission has been mindful of legal principles relating to regulation of Sex Oriented Businesses and does not intend to suppress or infringe upon any expressive activities protected by the First Amendments of the United States and California Constitutions, but instead does enact content-neutral time, place, and manner regulations that effectively address the adverse secondary effects of Sex Oriented Businesses. The Planning Commission, has considered decisions of the United States Supreme Court regarding local regulation of Sex Oriented Businesses, including but not limited to: Young v. American Mini Theaters. Inc., 427 U.S. 50 (1976) Reh. Denied 429 U.S. 873; Renton v; Playtime Theaters, 475 U.S. 41 (1986) Reh. Denied 475 U.S. 1132; FW/PBS. Inc. v. Dallas, 493 U.S.215 (1990); Barnes v. Glenn Theater, 111 S.Ct. 2456 (1991); United States Court of Appeals 9th Circuit decisions, including but not limited to: Topanga Press. et al. v. City of Los Angeles, 989 F.2d 1524 (1993); several California cases including but not limited to: City of National City v. Wiener, 3 CalAth 832 (1992); People v. Superior Court (Lucero) 49 Cal.3d 14 (1989); and City of Vallejo v. Adult Books.et al., 167 Cal.App.3d 1169 (1985); and other federal cases including Lakeland Lounge v. City of Jacksonville (5th Cir. 1992) 973 F.2d 1255, Hang On. Inc. v. Arlington (5th Cir. 1995) 65 F.3d 1248, Mitchell v. Commission on Adult Entertainment (3rd Cir. 1993)10 F.3d 123, International Eateries v. Broward County (I Ith Cir. 1991) 941 F.2d 1157, and Star Satellite v. City of Biloxi (5th Cir. 1986) 779 F.2d 1074. (97CL 1112-30) (c) Zoning, licensing and other police power regulations are legitimate, reasonable means of accountability to help protect the quality of life in the community of Huntington Beach and to help assure that all operators of Sex Oriented Businesses comply with reasonable regulations and are located in places that minimize the adverse secondary effects which naturally accompany the operation of such businesses. (d) The Planning Commission of the City of Huntington Beach recognizes the possible harmful effects on children and minors exposed to the effects of such Sex Oriented Businesses and the deterioration of respect for family values, and the need and desire of children and minors to stay away from and avoid such businesses, which causes children to be fearful and cautious when walking through or visiting the immediate neighborhood of such businesses; and the Planning Commission desires to minimize and control the adverse secondary side effects associated with the operation of Sex Oriented Businesses and thereby protect the health, safety, and welfare of the citizens of Huntington Beach; protect the citizens from increased crime; preserve the quality of life; preserve property values and the character of surrounding neighborhoods and businesses; deter the spread of urban blight and protect against the threat to health from the spread of communicable and sexually transmitted diseases. 4. The above referenced studies, particularly the Garden Grove study completed in 1991, indicate that the appropriate minimum distance to mitigate the harmful secondary effects of sex oriented businesses is 1,000 feet. However, the existing land use pattern and zoning districts in the City of Huntington Beach do not provide any areas where sex oriented businesses can locate at least 1,000 feet away, from a residential zones as well as from other sensitive uses such as parks, schools and churches and synagogues. In particular, the commercial zone where sex oriented businesses are presently permitted allows for only a 200 foot minimum distance between the lot line of residential zoned property and the building of the sex oriented business. While the current zoning allows for a sufficient number of sites to meet constitutional standards, it places sex oriented businesses too close to residentially zoned property, and in particular, permits the parking lot of such businesses to be adjacent to the residential property even though the building may be 200 feet away. The above referenced studies and court cases indicate that frequently, the pernicious behaviors associated with sex oriented businesses, such as sex related crimes, and narcotics use, occurs in the parking lot of these businesses. (97CL 1112-31) 5. In order to better mitigate the harmful secondary effects of sex oriented businesses and still meet constitutional standards for providing an adequate number of sites available to sex oriented businesses, the zoning district in which sex oriented businesses are to be allowed has been moved to the industrial zone of the City. While still providing a sufficient number of sites to meet constitutional standards, the City was only able to increase the distance between residential properties and other sensitive uses from sex oriented businesses to 500 feet, measured from lot line to lot line. This form of measurement takes into account the parking area of sex oriented businesses. Although it does not meet the 750 foot distance requirement recommended by most studies, the Commission finds that in the industrial zone, the large industrial buildings located in between the sensitive uses and the sex oriented businesses provide additional buffering between the uses. Further, in order to provide reasonable alternative avenues of communication for sex oriented uses, the City has reviewed the parcels that would be permitted to be used for sex oriented businesses, and has identified certain lots that are only a few feet less than 500 feet from sensitive uses. In these cases, although the lots do not meet the minimum 500 foot separation, by approving a map identifying such lots, the City is permitting sex oriented businesses to locate on these lots based on the expectation that the large industrial buildings will help mitigate the loss of the few feet short of the minimum distance separation. 6. Because adverse secondary effects are not mitigated as effectively at 500 feet from sensitive uses as they are at 750 or 1,000 feet, in order to further mitigate the adverse effects, the City is requiring that any buildings facing major, primary and secondary arterials that houses a sex oriented business, must have the signage and the facade or entrance of the sex oriented business facing a different direction. 7. In order to further mitigate the harmful secondary effects of sex oriented businesses, the ordinance establishes an amortization period for nonconforming uses currently occupying locations in the commercial zones of the City. Although case law allows such uses to be amortized in one year or less, the ordinance permits a three year amortization period with possible one year extensions (maximum extensions of five years) based on sufficient evidence of extreme hardship. (97CL 1112-32) L-11 Allowed subject to the following requirements: A. A proposed sex oriented business shall.be at least five hundred feet (5001) from any residential use, school, park and recreational facility, or any building used for religious assembly (collectively referred to as a "sensitive use") and at least 1000 feet from another sex oriented business. For purposes of these requirements, all distances shall be measured from the lot line of the proposed sex oriented business to the lot line of the sensitive use or the other sex oriented business. The term "residential use" means any property zoned RL, RM, RMH, RH, RMP, and any properties with equivalent designations under any specific plan. To determine such distances the applicant shall submit for review a straight line drawing depicting the distances from the lot line of the parcel of land on which the sex oriented business is proposed which includes all the proposed parking and: 1. the lot line of any other sex oriented business within one thousand feet (1000') of the lot line of the proposed sex oriented business; and 2. the lot line of any building used for religious assembly, school, or park & recreational facility within five hundred (500') feet of the lot line of the proposed sex oriented business; and 3. the lot line of any parcel of land zoned RL, RM, RMH, RH, and RMP and any parcels of land with equivalent designations under any specific plans within hundred feet (5001) of the lot line of the proposed sex oriented business. B. The front facade of the building, including the entrance and all signage, shall not be visible from any major, primary or secondary arterial street as designated by the circulation element of the General Plan adopted May, 1996, with the exception of Argosy Drive. C. Prior to or concurrently with applying for a building permit and/or a certificate of occupancy for the building, the applicant shall submit application for staff review of a sex oriented business zoning permit with the drawing 4 jmp/memo/sob212pc/11/14/97 described in subsection A, a technical site plan, floor plans and building elevations, and application fee. Within ten (10) days of submittal, the Director shall determine if the application is complete. If the application is deemed incomplete, the applicant may resubmit a completed application within ten (10) days. Within thirty days of receipt of a completed application, the Director shall determine if the application complies with the applicable development and performance standards of the Huntington Beach Zoning and Subdivision Ordinance. Said standards include but are not limited to the following: 1. Chapter 203, Definitions; Chapter 212, Industrial Districts; Chapter 230, Site Standards; Chapter 231, Off-Street Parking & Loading Provisions; Chapter 232, Landscape Improvements; and Chapter 236, Nonconforming Uses and Structures. 2. Chapter 233.08(b), Signs. Signage shall conform to the standards of the Huntington Beach Zoning and Subdivision Ordinance Code except that such signs shall contain no suggestive or graphic language, photographs, silhouettes, drawings, statues, monuments, sign shapes or sign projections, or other graphic representations, which depict the human body or anatomy, or any portion thereof, whether clothed or unclothed, including without limitation representations that depict "specified anatomical areas" or "specified sexual activities." 3. Compliance with Huntington Beach Municipal Code Chapter 5.70. The Director shall grant or deny the application for a sex oriented business zoning permit for a sex oriented business. There shall be no administrative appeal.from the granting or denial of a permit application thereby permitting the applicant to obtain prompt judicial review. D. A sex oriented business may not apply for a variance pursuant to Chapter 241 nor a special sign permit pursuant to Chapter 233. E. A sex oriented business zoning permit shall become null and void one year after its date of approval unless: s jmp/memo/sob212pc/1 1/14/97 4 1. Construction has commenced or a Certificate of Occupancy has been issued, whichever comes first; or 2. The use is established. F. The validity of a sex oriented business zoning permit shall not be affected by changes in ownership or proprietorship provided that the new owner or proprietor promptly notifies the Director of the transfer. G. A sex oriented business zoning permit shall lapse if the exercise of rights granted by it is discontinued for 12 consecutive months. H. Public Notification Requirements. 1. Ten (10) working days prior to submittal for staff review, the applicant shall give notice of the application to property owners within one thousand feet (10001) of the proposed location of the sex oriented business by first class mail. The notice of application shall include the following: a. name of applicant b. location of proposed sex oriented business c. nature of the sex oriented business d. the City Hall telephone number for the Department of Community development to call for viewing pins e. the date by which any comments must be received in writing by the Department of Community Development. This date shall-be- ten (10) working days from staff review submittal, f the address of the Department of Community Development 2. The applicant shall submit proof of mailing of the notice when submitting the application for staff review. The noticed property owners shall have ten (10) working days from staff review submittal to provide comments regarding the application to the Director. 3. Subsequent to the decision of the Director, the applicant shall give Notice of the Decision to all property owners within one thousand feet (1000') of the proposed location of the sex oriented business by first class mail and publish the Notice of Decision:in a local newspaper of general circulation. 6 jmp/memo/sob212pc/11/14/97 r . c ZONING TEXT AMENDMENT NO. 97-4 SEX ORIENTED "ADULT" BUSINESS ORDINANCE AMENDS HUNTINGTON BEACH ZONING AND SUBDIVISION ORDINANCE: 1 . CHAPTER 204 - USE CLASSIFICATIONS 2. CHAPTER 211 - COMMERCIAL DISTRICTS 3. CHAPTER 212 - INDUSTRIAL DISTRICTS 4. CHAPTER 231 - OFF-STREET PARKING AND LOADING PROVISIONS 5. CHAPTER 236 - NONCONFORMING USES AND STRUCTURES Q = pr>�rn r � � GJ :.-�i�m 4Ln r T m co ^ o l r t— (g:\hf\sob\ccsobotl) 11/17/97 NEW REQUIREMENTS a. 500 feet from a sensitive use such as: any residential use, school, park and recreational facility, and building used for religious assembly b. Applicant submit straight line drawing to determine distances c. Front facade, including entrance shall not be visible from major, primary or secondary arterial street d. Applicant shall submit for staff review to indicate zoning compliance e. Director shall grant or deny the application. f. No administrative appeal g. Notice of action shall be mailed to property owners within 300 feet h. Applicant may not apply for a Variance (gAhflsob\ccsobotl) 2 11/17/97 CHAPTER 231 OFF-STREET PARKING ADD: Parking Requirements 1 . Cabaret: restaurant parking requirements (i.e. 1 per 60 sq. ft.) 2. Encounter Center: Assembly parking requirements (Le. 1 per 35 sq. ft. of instruction area) 3. Escort Bureau: office parking requirements (i.e. 1 per 250 sq. ft.) 4. Hotel/Motel: hotel/motel parking requirements (i.e. 1 per guest room; plus 1 per transport vehicle, and 2 per manager's unit) 5. Theater/Arcade: theater parking requirements (i.e. 1 per 3 fixed seats or 1 per 35 sq. ft. of seating area if there are no fixed seats) 6. Retail Sales: retail parking requirements (i.e. 1 per 200 sq. ft.) (gAht\sob\ccsobotl) 3 >1/17/97 :A CHAPTER 236 - NONCONFORMING 1 . Existing sex oriented businesses in commercial districts become nonconforming 2. Existing uses may continue for three years with possible one year extensions (maximum of five years) subject to Planning Commission approval. (gAhflsob\ccsobotl) 11/17/97 PLANNING COMMISSION RECOMMENDATIONS 1 . Increase distances between sex oriented businesses from 750 feet to 1 ,000 feet. 2. No signage shall be visible from a major, primary, or secondary arterial street. 3. Applicant shall cause notice to be mailed to property owners within 1 ,000 feet of the proposed location prior to submission of application. 4. Applicant shall cause notice of the Director's decision to be mailed to property owners within 1 ,000 feet of the proposed location and published in the local newspaper. (g:\ht\sob\ccsobotl) 5 11/17/97 SUMMARY 1 . CASE STUDIES/JUDICIAL DECISIONS 2. LAND USE AND DISTANCE EXERCISES RECOMMENDATION APPROVE ZTA NO. 97-4 WITH FINDINGS (g:\ht\sob\ccsobotl) 6 11117/97 ZONING TEXT AMENDMENT NO. 97-4 SEX ORIENTED "ADULT"BUSINESS ORDINANCE City Council Meeting 11/17/97 ISSUES Current Zoning Original Staff Planning Revised Staff Ordinance Recommendation Commission Recommendation Recommendation Zoning District Commercial District Industrial District Industrial District Industrial District Distance Criteria 200 ft from Residential 500 ft from Residential, 500 ft from Residential, No change to staff 500 ft from School School, Church, Park and School, Church, Park and recommendation 500 ft from Church Recreational Facility, Recreational Facility, 1,000 ft from another 750 ft from another sex 1,000 ft. from another Adult Business oriented business sex oriented business No signage visible from No change to staff Signage Existing Sign Code Existing Sign Code Primary, Major or recommendation Secondary Arterial (**see below) Street Notice of Application Not Applicable Not Applicable Add: Notice of Agree with Planning Submittal Application submittal Commission requirement Recommendation Notice of Director's Not Applicable Notice of Decision Add: Notice of Decision Disagree with PC Decision requirement recommendation,Notice of Decision not necessary ** See late communication memo dated 11/14/97, from City Attorney (bottom Page Two, last paragraph) CJ1 (g\admm\111797) ;I Available Industrial SOB Sites - 500 ft from Sensitive Uses , South of Bolsa Ave BOLSA AV BOLE AV tJ I I I ! - , I nao¢E" GOS _---- r If L• r - - — _ :S I DE A j• ' FA2KN AV r , Lj Aktl : r I j jl _ u 1, r . o �Y i i I - - KRetELN I j r —_.. ,,L�_—._.....____—__-__—_. ._ ........._....._._--_......_...____... lineh=30Ufeet �Awhl llaeWMI.ftcel,OuWd.Serol""UmBufferAreu pe�� ,cel Wxs — N" El Selected Pan ab for Ma+lmum Number of SOB Sites Available 508 Sit.Bouodary(at least 500 R from SC Wtlw UM) "yl., ®••:'" �- ^� ff Buerroun Ad Selected Paice east ta(at l 750 it from other 8O her S0 MMC W0RRS DWiRT.MZXy October 31,1997 is Pmcds Adl'ce t to ArtmW Roadways SURFC77V eu SOO it Buffer Around thetl—.nt Nigh School Site -n 1 ,i wr Available Industrial SOB Sites 500 ft from Sensitive Uses East of Gothard Ave " _ I ' K EDDLR SLATER AV SLATER AV 9 AST I I � u asT I , yy , , i l `1 r r ;� II r I I 3 i - L TALBERT AV Essl),on i ._.- .::_...... ' I r r•- -I `L 1 inch=200 feet ❑ AwilaWe whole ParceU owide saD1t Ae Ufe BDrter Aruf Ramat Una SelMed Parcels for Maal—Number DE SOB SEta AwllaWe SOB Site B oundary(at lean 500 ft from StaDlUve Ufa) fz-v.*:a•=-...d October 31,1997 © ^r P—elf Adjacent to Arterial Rofdwap Buffers Around Selected Parcels(at least 7SO ft from other SOBO SURF a MY ca RCA ROUTING SHEET INITIATING DEPARTMENT: Community Development Department SUBJECT: ZTA No. 97-4 (Sex Oriented Business Ordinance) COUNCIL MEETING DATE: November 17, 1997 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Attached Resolution (w/exhibits & legislative draft if applicable) Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) (Signed in full by the City Attomey) Not Applicable Subleases, Third Party Agreements, etc. (Approved as to form by City Attomey) Not Applicable Certificates of Insurance (Approved by the City Attomey) Not Applicable Financial Impact Statement (Unbudget, over $5,000) Not Applicable Bonds (If applicable) Not Applicable Staff Report (If applicable) Not Applicable Commission, Board or Committee Report (If applicable) Attached Findings/Conditions for Approval and/or Denial Attached EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED FOR ED Administrative Staff ( ) ( ) Assistant City Administrator (Initial) ( ) ( ) City Administrator (Initial) ( ) ( ) City Clerk ( ) EXPLANATION FOR RETURN OF ITEM: (BelowOnly) RCA Author: H. Fauland REQUEST FOR LATE SUBMITTAL OF RCA Department: RCA ��r , ( Title "( VjA Council Meetin Date: l t n :> Date of This Request: 11 (o - = ` REASON (Why is this RCA being submitted late?): ttJCo EXPLANATION (Why is this RCA necessary to this agenda?): w CONSEQUENCES How shall delay of this RCA adversely impact the City?): Signature: O Approved O Denied O Approved O Denied Initials Required De artme Head Ray Silver Michael Uberua a Request for Late Submittal Requests for Council Action (RCA's) are due and considered late after the City Administrator's deadline which is 5:00 P.M. Wednesday ten days prior to the Council meeting at which the item is to be heard. This deadline reflects the time needed prior to Agenda Review for Administration staff and the City Administrator to review all RCA's and their support material prior to forwarding them to the City Clerk for placement on the preliminary agenda. It also provides time for the City Clerk's office to review the item and add proper wording for the item to the preliminary agenda for discussion at Agenda Review the following Monday. The Request for Late Submittal form provides a vehicle for RCA's to be submitted after the Wednesday, deadline when there are extenuating circumstances .which delayed the item and when action on the item is necessary at the upcoming Council meeting. Late items can agendized only with signed authorization on the Request for Late Submittal form by the Assistant City Administrator or the City Administrator. M X. :: MEETING DATE: November 17, 1997 P � A Community Development Zone Text Amendment 97-4 - Industrial Districts to include Adult/Sex Oriented Business NUMBER OF HEARINGS: TODAY'S DATE: 10/27/97 2:29 PM VERIFIED BY ADMININSTRATION: APPROVED BY: 627 Ray Silver Assistant City Administrator 10/27/97 2:29 PM LAW OFFICES WESTON. GARROU & DEWITT JOHN H. WESTON* A PARTNERSHIP OF PROFESSIONAL CORPORATIONS SAN DIEGO OFFICE CLYDE DEWITT*1 WILSHIRE BUN DY PLAZA - 432 F STREET G. RANDALL GARROU= SUITE ROBERT A. SARNO* 12121 WILSHIRE BOULEVARD, SUITE 900 SAN DIEGO, CA 92101-6138 MELANIE D. LONG LOS ANGELES, CALIFORNIA 90025-1176 FAX (619) 239-1717 JENNIFER LYNN ORFF (310) 442-0072 (619) 232-5455 OF COUNSEL AUBREY I. FINN FAX (310) 442-0899 CATHY E. CROSSON A. DALE MANICOM 'A PROFESSIONAL CORPORATION December 16, 1997 tAL50 ADMITTED IN TEXAS =ALSO ADMITTED IN UTAH City Clerk's Office City of Huntington Beach 2000 Main Street 2nd Floor Huntington Beach, CA 92648 Re: Request For Copy of Videotape of City Council Public Hearing Meeting of 12/15/97 Dear Sir or Madam: Enclosed is a check in the amount of $35.00 for payment.to receive a copy of the videotape of the City Council Public Hearing which took place on December 15, 199.7. Please be sure to include on this tape, specifically, two portions of the meeting: (1) the comments of Mr. G. Randall Garrou, the last of the speakers in the "public comments portion" of the meeting and (2) the entirety of the discussion of agenda item F-1 during the meeting. Please be so kind as to forward to us a copy of the videotape as soon as possible. Additionally, we-would appreciate it if you would call and inform us as soon as the copy is made and when we should be expecting to receive it. Thank you for your cooperation and courtesy. Sincerely, WESTON, GARROU & DEWITT GRG:jm LRG3550 By Enclosure G. RANDALL.GARROU . FAX FROM: CONNIE BROCKWAY, CITY CLERK J J CITY CLERK'S OFFICE CITY OF HUNTINGTON BEACH • P O Box 19012000 Main Street * Huntington Beach, CA 92648 HUNTINGTON BEACH (714) 536-5227 (714) 374-1557 FAX Date: i.t —i 9 — 9 '? Number of Pages (including cover page):� Q, Deputy City Clerk <o•:.;:.;:::::.::<.:;:.;:.>:: G. o-� d•�l/ �ria rro :::::Y:.::; /-�-�� �G s De p Y Y Fax 'r > > Remarks:�l 11 Urgent 11 11 For your review Reply ASAP Please comment Per your request r k V i o -77 ZONING TEXT AMENDMENT NO. 97-4 Straw Vote No. 1 - Distance requirement between sex oriented businesses To approve: a. The distance separation of 760 feet between sex oriented businesses(original staff recommendation); or b. The distance separation of 1,000 feet between sex oriented businesses(Planning Commission recommendation); or Straw Vote No. 2 -Allowable and visible signing for a sex oriented business To approve: a. The existing sign ordinance provision permitting one freestanding monument sign (max. 7 ft. high) and one wall sign (max. 100 sq. ft. without sexually explicit graphic material)for a sex oriented business (original staff recommendation). The signing would be visible from major, primary and secondary arterial streets; or f b.• The prohibition of any signing visible from a major, primary and secondary street(Planning Commission recommendation): or C. The provision of the smallest allowable sign,(monument)visible from a major, primary or secondary arterial street(modified staff recommendation). Straw Vote No. 3- Notification of application submittal, To approve: a. No notification of application submittal(staff recommendation); or b. Prior to application submittal for staff review, the applicant shall cause notice to be mailed to property owners within 1,000 feet of the proposed location of the sex oriented business and publish the notice of application submittal in'a local newspaper of general circulation (Planning Commission &modified staff recommendation). Straw Vote No. 4- Notification of Director's decision To approve: a. Notification of the Director's decision shall be mailed to all property owners within 300 feet of the proposed location of the sex oriented'business(original staff recommendation); or b. The applicant shall cause notice of the decision of the Director to be mailed to property owners within 1,000 feet of the proposed location of the sex oriented business and publish the notice of decision in a local newspaper of general circulation(Planning Commission recommendation); or C. No notification of Director's decision (modified staff recommendation). 90 RECEIVED L E.ITY .�ER0 LAW OFFICES CITY 01: CALIF. WESTON, GARROU 8 DEWV+3�1''►lu7^h � " ((ll JOHN H. WESTON' A PARTNERSHIP OF PROFESSIONAL CORPORATIONS K5 530 $A,I'V{pI EGO OFFICE CLYDE DEWITT't WILSHIRE BUNDY PLAZA DEC Iv .32 F STREET G. RANDALL GARROUt R09ERT A. SARNO' 12121 WILSHIRE BOULEVARD, SUITE 900 SUITE SAN DIEGO, CA 92101-6136 MEI-ANTE D. LONG LOS ANGELES. CALIFORNIA 90025-1176 FAX (619) 239-1717 JENNIFER LYNN ORFF (310) 442-0072 (619) 232-5455 OF COUNSEL AUOREY 1. FINN FAX (310) 442-0899 CAYHY E. CROSSON A. DALE MANICOM PROFESSIONAL CORPORATION to December 12, 1997 rAL50 ADMITTED IN TEXAS xALSO ADMITTED IN UTAH VIA FEDERAL EXPRESS AIRBILL # 791534483687 Connie Brockway, City Clerk City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Re: Letter to City Council Members Re Suggested Revisions To Proposed Ordinance No. 3378 In Light Of Pending Litigation In Talbert & Beach, Inc. v. City of Huntington Beach, U.S. Dist. Ct. No. SA CV 96-969 AHS Dear Ms. Brockway: Enclosed please find one original and 21 copies of the above-referenced letter sent as a late communication for consideration at the December 15, 1997 City Council meeting. Please supply one copy of the letter to the Mayor, each City Council member and the City Attorney's office. Please feel free to call should you have any questions regarding this communication. Thank you for your cooperation. Sincerely, WESTON, GARROU & DEWITT By GgGVUV��� G. RANDALL GARROU GRG:jm LRG3545 Enclosures r. • LAW OFFICES WESTON, GARROU 8 DEWITT JOHN H. WESTON* A PARTNERSHIP OF PROFESSIONAL CORPORATIONS SAN DIEGO OFFICE CLYDE DEWITT`t WILSHIRE BUNDY PLAZA 432 F STREET G. RANDALL GARROU= 202 ROBERT A. SARNO* 12121 WILSHIRE BOULEVARD, SUITE 900 SUITE SAN DIEGO, CA 92101-6138 MELANIE D. LONG LOS ANGELES, CALIFORNIA 90025-1176 FAX (619) 239-1717 JENNIFER LYNN ORFF (310) 442-0072 (619) 232-5455 OF COUNSEL AUBREY 1. FINN FAX (310) 442-0899 CATHY E. CROSSON A. DALE MANICOM to PROFESSIONAL CORPORATION December 12, 1997 tAL50 ADMITTED IN TEXAS =ALSO ADMITTED IN UTAH Honorable Mayor Ralph Bauer and City Council Members Huntington Beach City Council Re: Suggested Revisions To Proposed Ordinance No. 3378 In Light Of Pending Litigation In Talbert & Beach, Inc. v. City of Huntington Beach, U.S. Dist. Ct. No. SA CV 96-969 AHS Dear Mayor and Council Members: I have reviewed the City Attorney's recommendations to you regarding the proposed Ordinance No. 3378. As you will recall,I wrote two letters to the Council and City Attorney Gail Hutton(on November 17, 1997 and November 18, 1997)outlining my suggested revisions to Ordinance No. 3378 in an effort to obviate the need for litigation between my client and the City on those issues in our currently pending lawsuit which would not appear to be worth further protracted litigation if they can be remedied with a few slight modifications to the ordinance. Specifically, with detailed explanation, I recommended the following changes: (1) that you eliminate the three-year mandatory termination requirement for non- conforming uses; and (2) that you modify the Ordinance to allow non-conforming uses (such as our client's) the same procedural benefits which the Ordinance affords to new adult uses (e.g.: (a) the procedural entitlement to be considered for a sex-oriented business zoning permit;(b)the express protection against subsequently locating sensitive uses such as churches, schools or residential zones; and (c) the right to transfer ownership of such a use where zoning is determined as it existed when the building permit was first submitted). However, the City Attorney's office has not contacted me with any response to my suggestions. Consequently, I am once again appealing to you to consider that acceptance of our proposals would not only comport with fundamental fairness, but would both relieve the City from the specter of extremely significant attorneys' fees • • LAW OFFICES WESTON, GARROU & DEWITT A PARTNERSHIP OF PROFESSIONAL CORPORATIONS Honorable Mayor Ralph Bauer and City Council Members Huntington Beach City Council December 12, 1997 Page 2 payments and would also provide the City with the greatest possible likelihood that its new and strict adult business ordinance would have the maximum chances of being upheld when ultimately challenged in any subsequent federal lawsuit. Please allow me to address any concerns you or the City Attorney's office may have about our proposed changes. I am confident that after thorough consideration of my suggestions you will agree with me that these changes will enure to the benefit of all involved in avoiding the expenditure of very significant attorneys fees and years of litigation which could otherwise be avoided. Sincerely, WESTON, GARROU & DEWITT GRG:jm LRG3544 By N K cc: Gail Hutton G. RANDALL GARROU PLEASE FOLD THIS SHIPPING DOCUMENT IN HALF AND PLACE IT IN A WAYBILL POUCH AFFIXED TO YOUR SHIPMENT SO THAT THE BAR-CODE PORTION OF THE LABEL CAN BE READ AND SCANNED. *"WARNING: USE ONLY THE PRINTED ORIGINAL LABEL FOR SHIPPING. USING A PHOTOCOPY OF THIS LABEL FOR SHIPPING PURPOSES IS FRAUDULENT AND COULD RESULT IN ADDITIONAL BILLING CHARGES,ALONG WITH THE CANCELLATION OF YOUR FEDEX ACCOUNT NUMBER. FROM: G.RANDALL GARROU(310)442-0072 Weston G DeWitt SHIPPER'S FEDEX ACCOUNT NUMBER 12121 Wilshirehire Boulevard Suite 900 Los Angeles,CA 900251176 Federal Express TO: CONNIE BROCKWAY(714)536-5227 SHIP DATE: 12DEC97 CITY CLERK MAN-WGT: 1 LBS CITY OF HUNT. BEACH 2000 MAIN STREET HUNTINGTON BEACH, CA 92648- REF: 878-026 DELIVERY ADDRESS BAROODE(FEDEX-EDR) CAD 01220502 PRIORITY OVERNIGHT MON AA TRK# 7915 3448 3687 FORM 0201 LETTER Deliver By: L 15DEC97 92648-CA-US DROP OFF W4 JLB LAW OFFICES WESTON, GARROU & DEW117 JOHN H. WESTON* A PARTNERSHIP OF PROFESSIONAL CORPORATIONS SAN DIP-GO OFFICE CLYDE OEWITT•t WILSHIRE BUNDY PLAZA 432 F STREET G. RANDALL GARROU= SUITE ROBERT A. SARNO, 12121 WILSHIRE BOULEVARD, SUITE 900 SAN D1EG0, CA 92 92101-613B MELANIE D. LONG LOS ANGELES. CALIFORNIA 90025-1176 FAX (619) 239-1717 JENNIFER LYNN ORFF (310) 442-0072 (619) 232-5455 OF COUNSEL AUBREY 1. FINN FAX (310) 442-0899 CATHY E. CROSSON A, DALE MANICOM PROFESSIONAL CORPORATION fA December 12, 1997 •ALSO ADMITTED IN TEXAS AALSO ADMITTED IN UTAH Honorable Mayor Ralph Bauer and City Council Members Huntington Beach City Council Re: Suggested Revisions To Proposed Ordinance No. 3378 In Light Of Pending Litigation In Talbert & Beach, Inc. v. City of Huntington Beach, U.S. Dist. Ct. No. SA CV 96-969 AHS Dear Mayor and Council Members: I have reviewed the City Attorney's recommendations to you regarding the proposed Ordinance No. 3378. As you will recall,I wrote two letters to the Council and City Attorney Gail Hutton(on November 17,1997 and November 18, 1997)outlining my suggested revisions to Ordinance No. 3378 in an effort to obviate the need for litigation between my client and the City on those issues in our currently pending lawsuit which would not appear to be worth further protracted litigation if they can be remedied with a few slight modifications to the ordinance. Specifically, with detailed explanation, I recommended the following changes: (1) that you eliminate the three-year mandatory termination requirement for non- conforming uses; and (2) that you modify the Ordinance to allow non-conforming uses (such as our client's) the same procedural benefits which the Ordinance affords to new adult uses (e.g.: (a) the procedural entitlement to be considered for a sex-oriented business zoning permit;(b)the express protection against subsequently locating sensitive uses such as churches, schools or residential zones; and (c) the right to transfer ownership of such a use where zoning is determined as it existed when the building permit was first submitted). However, the City Attorney's office has not contacted me with any response to my suggestions. Consequently, I am once again appealing to you to consider that acceptance of our proposals would not only comport with fundamental fairness, but would both relieve the City from the specter of extremely significant attorneys' fees � (y`n es,tle�1 r ea.�i etn F- LAW OFFICES WESTON. GARROU b DEWITT A PARTNERSHIP OF PROFESSIONAL CORPORATIONS Honorable Mayor Ralph Bauer and City Council Members Huntington Beach City Council December 12, 1997 Page 2 payments and would also provide the City with the greatest possible likelihood that its new and strict adult business ordinance would have the maximum chances of being upheld when ultimately challenged in any subsequent federal lawsuit. Please allow me to address any concerns you or the City Attorney's office may have about our proposed changes. I am confident that after thorough consideration of my suggestions you will agree with me that these changes will enure to the benefit of all involved in avoiding the expenditure of very significant attorneys fees and years of litigation which could otherwise be avoided. Sincerely, WESTON, GARROU & DEWITT GRG:jm LRG3544 cc: Gail Hutton G. RANDALL GARROU 61 L-11 Allowed subject to the following requirements: A. A proposed sex oriented business shall be at least five hundred fe (500') from any residential use, school, park and recreational facility, or any buil ing used for religious assembly (collectively referred to as a "sensitive use") and at ast 750 feet from another sex oriented business. For purposes of these requirement , all distances shall be measured from the lot line of the proposed sex oriented usiness to the lot line of the sensitive use or the other sex oriented business. The erm "residential use" means any property zoned RL, RM, RMH, RH, RMP, and any p perties with equivalent designations under any specific plan. To determine such distances the applicant sh I submit for review a straight line drawing depicting the distances from the lot line of t parcel of land on which the sex oriented business is proposed which includes all th proposed parking and: 1. the lot line of any other sex orie ed business within seven hundred fifty feet (750') of the lot line of the proposed sex on ted business; and 2. the lot line of any building u ed for religious assembly, school, or park & recreational facility within five hundred feet (500') of the lot line of the proposed sex oriented business;and 3. the lot line of any parcel of land zoned RL, RM, RMH, RH, and RMP and any parcels of land with equivalent designations under any specific plans within five hundred feet (500') of the lot line of the proposed sex oriented business. B. The front facade of the building, including the entrance, shall not be visible from any major, primary or secondary arterial street as designated by the circulation element of the General Plan adopted May, 1996, with the exception of Argosy Drive. C. Prior to or concurrently with applying for a building permit and/or a certificate of occupancy for the building, the applicant shall submit application for staff review of a sex oriented business zoning permit with the drawing described in subsection A, a technical site plan, floor plans/and building elevations, and application fee. Within ten (10) days of submittal, the Director shall determine if the application is complete. If the application is deemed incomplete, the applicant may resubmit a completed application within ten (10) days. Within thiYppplication / days of receipt of a completed application, the Director shall determine if the complies with the applicable development and performance standards of th�Huntington Beach Zoning and Subdivision Ordinance. Said standards include but are not limited to the following: 1. Chapter 203, Definitions; Chapter 212, Industrial Districts; Chapter 230, Site Standards; Chapter 231, Off-Street Parking & Loading Provisions; Chapter 232, Landscape Improvements; and Chapter 236, Nonconforming Uses and Structures. 5 jmp/k/ordinance/sob212/November 12, 1997 i 19-7 2. Chapter 233.08 b Signs. Si na a shall conform to the standards'of th P ( ), 9 g 9 e Huntington Beach Zoning and Subdivision Ordinance Code except th.-tt"such signs shall contain no suggestive or graphic language, photographs, silhouettes, drawings, statues, monuments, sign shapes or sign projections, or other graphic r. resentations, which depict the human body or anatomy, or any portion thereof, whether clothed or unclothed, including without limitation representations that depict "sp .Aiied anatomical areas" or "specified sexual activities." 3. Compliance with Huntington Beach Municipal Code Chapter 5.70. The Director shall grant or deny the application for sex oriented business zoning permit for a sex oriented business. There shall be no administrative appeal from the granting or denial of a permit application thereby permitting the at(plicant to obtain prompt judicial review. A Notice of Decision shall be forwarded to all property owners within three hundred feet (300) of the proposed location of the sex oriented business. D. A sex oriented business may not ply for a variance pursuant to Chapter 241 nor a special sign permit pursua to Chapter 233. E. A sex oriented business zoni g permit shall become null and void one year after its date of approval unless: 1. Construction has�ommenced or a Certificate of Occupancy has been issued, whichever comes first; - r 2. The use is esstablished. F. The validity a of x oriented business zoning permit Y 9 ermit shall not be affected b changes in sex ownership or proprietorship provided that the new owner or proprietor promptly notifies the Director of the transfer. G. A sex oriented business zoningpermit shall lapse if the exercise of rights ranted b it is P p 9 9 Y discontinued for 12 consecutive months. (rest of page not used) 6 jmp/k/ordinance/sob212/11/12/97 STUDIES AND JUDICIAL DECISIONS SEX ORIENTED (ADULT) BUSINESSES ON FILE OFFICE OF THE CITY CLERK CITY HALL - 2ND FLOOR 2000 MAIN STREET ATTACHMENT 1 ,0 U.S. SUPREME COURT REPORTS 49 L Ed 2d YOUNG v AMERICAN MINI THEATRES 427 US 50,49 L Ed 2d 310,96 S Ct 2440 fare on a regular basis and had not alleged any basis for claiming or anticipating any waiver of the 1000-foot restriction as applied to their theaters, (2) the plaintiffs could not raise the vagueness issue under the theory that even though their own rights were not violated, the very existence of the ordinances might cause persons not before the court to refrain from engaging in constitutionally protected speech or expression, since (a) it was not clear that the ordinances would have a significant deterrent effect on the exhibition of films protected by the First Amend- ment, (b) the only vagueness in the ordinances related to the amount of [427 US 501 sexually explicit activity that could be portrayed before the material could COLEMAN A. YOUNG, Mayor the City of Detroit, et al., Petitioners, be said to be "characterized by an emphasis" on such matter, and for most V films the question would be readily answerable, (c) to the extent that an area of doubt existed, the ordinances were readily subject to a narrowing AMERICAN MINI THEATRES,INC., et al. construction by state courts, and (d) there was a less vital interest in the uninhibited exhibition of material that was on the borderline between 427 US 50, 49 L Ed 2d 310, 96 S Ct 2440, reh den (US)50 L Ed 2d 155, 97 S pornography and artistic expression than in the free dissemination of ideas Ct 191 of social and political significance, and (3) the licensing and zoning ordi- nances were not invalid as impermissible prior restraints on free speech, the [No. 75-31211 city's interest in planning and regulating the use of property for commercial purposes being adequate to support such type of restrictions applicable to all Argued March 24, 1976. Decided June 24, 1976. theaters within the city limits. STEVENS, J.,joined by BURGER, Ch. J., WHITE, SUMMARY J., and REHNQUIST, J., also expressed the view that although the First The operators of two adult movie theaters in Detroit, Michigan, instituted Amendment protected communication in the area of adult movies from total separate actions against city officials in the United States District Court for suppression, nevertheless the city, without violating equal protection re- the Eastern District Michigan, seeking injunctive relief and a declaratory quirements, could legitimately use the content of such pictures as the basis= for placing adult theaters in a different classification from other theaters for judgment of the unconstitutionality of a Detroit ordinance requiring that zoning purposes, the city's interest in the character of its neighborhoods adult theaters be licensed, and of Detroit zoning ordinances providing that adequately supporting the ordinances' classification. absent a waiver from the Zoning Commission, an adult movie theater may not be located within 1000 feet of any two other "regulated uses" (10 different kinds of establishments in addition to adult theaters), and defining POWELL, J., concurred as to holdings (1), (2), and (3) above, expressing the an "adult theater" as one which presents material "characterized by an view that (1) the city had broad regulatory power to prevent the deteriora- emphasis" on matter depicting or relating to"Specified Sexual Activities" or tion of its commercial neighborhoods, (2) there was no indication that the "Specified Anatomical Areas (as defined in the ordinances). Consolidating ordinances suppressed the production of or, to any significant degree, the cases, the District Court granted the defendants' motion for summary restricted access to adult movies, and (3) the ordinances' incidental restric- judgment (373 F Supp 363), but the United States Court of Appeals for the tion on First Amendment freedoms was no greater than was essential to the Sixth Circuit reversed, holding that the ordinances violated the equal furtherance of the substantial governmental interest in preserving the protection clause because they imposed a prior restraint on constitutionally character of its neighborhoods, which interest was unrelated to the suppres- protected communication and thus could not be justified merely by estab- sion of free expression. lishing that they were designed to serve a compelling state interest(518 F2d 1014). STEWART, J.,joined by BRENNAN, MARSHALL, and BLACKMUN, JJ., dissent- On certiorari, the United States Supreme Court reversed. In an opinion ing, expressed the view that (1) the First Amendment required that time, by STEVENS, J., expressing the view of five members of the court, it was held place, and manner regulations that affected protected expression must be that (1) as applied to the plaintiffs, the zoning ordinances did not violate the content-neutral, except in the limited context of a captive or juvenile due process clause of the Fourteenth Amendment on the ground of vague- audience, and (2) thus the Detroit zoning ordinance violated the First ness for failing to indicate how much of the described activity might be Amendment, the fact that the kind of expression at issue was no doubt permissible before the exhibition was "characterized by an emphasis" on objectionable to some not diminishing its protected status. such matter, or for failing to specify procedure or standards for obtaining a waiver of the 1000-foot restriction, since the plaintiffs proposed to offer adult BLACKMUN, J., joined by BRENNAN, STEWART, and MARSHALL, JJ., dis- Briefs of Counsel, p 1333, infra. sented on the ground that the ordinances were unconstitutional for vague- 310 311 U.S. SUPREME COURT REPORTS 49 L Ed 2d YOUNG v AMERICAN MINI THEATRES 427 US 50,49 L Ed 2d 310,96 S Ct 2440 ss of various provisions, including those relating to (1) licensing and Courts §270 —jurisdiction — consti- persons not before the court to refrain s Court - iiver standards, (2) the determination of whether a film was "character- tutionality of ordinances from engaging in constitutionally prS- �d by an emphasis" on the specified sexual activities or anatomical areas, 2a, 2b. A Federal District Co has tected speech or expression,since(1)it is A (3) the determination of whether neighboring establishments consti jurisdiction under 28 USCS § urt s not clear that the ordinances will have which confers jurisdiction of civil actions significant deterrent effect on the exhibi- ted "regulated uses." to redress the deprivation, under color of tion of films protected by the First state law, of constitutional rights—of an Amendment, (2) the only vagueness in HEADNOTES action brought by the operators of adult the ordinances relates to the amount of movie theaters against city officials for sexually explicit activity that may be Classified to U.S.Supreme Court Digest,Lawyers'Edition injunctive relief and a declaratory judg- portrayed before the material can be onstitutional Law §925.5 — First antees of freedom of speech and press ment that the city's zoning ordinances said to be "characterized by an empha- Amendment — applicability to are made applicable to the states by the restricting the location of adult theaters sis" on such matter, and for most films states due process clause of the Fourteenth are unconstitutional, where the plaintiffs the question will be readily answerable, la, lb. The First Amendment's guar- Amendment. allege a claim for relief under 42 USCS (3) to the extent that an area of doubt §1983. exists, the ordinances are readily subject to a narrowing construction by state TOTAL CLIENT-SERVICE LIBRARY®REFERENCES Constitutional Law §935.5; Zoning §1 courts, and (4) there is a less vital inter- - adult movie theaters — ordi- est in the uninhibited exhibition of ma- 16 Am JUR 2d, Constitutional Law §§341-350, 552; 82 Am nance restricting location — terial that is on the borderline between JUR 2d, Zoning and Planning§§11, 12, 14, 122 vagueness—overbreadth pornography and artistic expression 20 AM JUR LEGAL FORMS 2d, Zoning §§268:51 et seq. 3a, 3b. A city's zoning ordinances pro- than in the free dissemination of ideas of viding that absent a waiver from the social and political significance. 16 Am JUR TRIALS 99, Relief From Zoning Ordinance Zoning Commission, an adult movie the- USCS, Constitution, 1st and 14th Amendments Ater may not be located within 1000 feet Statutes §27 —standing to challenge US L ED DIGEST, Constitutional Law §935.5; Zoning §1 of any two other "regulated uses" (10 —overbreadth different kinds of establishments in addi- 4. The principle that a person whose ALR DIGESTS, Constitutional Law §791; Zoning §18 tion to adult theaters),—and defining an own speech was not protected by the L ED INDEX TO ANNOS, Certainty and Definiteness; Freedom "adult theater" as one which presents First Amendment has standing to chal- of Speech, Press, Religion, and Assembly; Motion Pictures; material "characterized by an emphasis" lenge the constitutionality of a state Zoning on matter depicting or relating to "Spec- statute purporting to prohibit protected ALR QUICK INDEX, Certainty and Definiteness; Freedom of ified Sexual Activities" or "Specified An- speech because the very existence of the Speech and Press; Motion Pictures; Zoning atomical Areas" (as defined in the ordi- statute may cause persons not before the FEDERAL QUICK INDEX, Certainty and Definiteness; Freedom of nances)—as applied to certain theater court to refrain from engaging in consti- operators—do not violate the due process tutionally protected speech or expression Speech and Press; Motion Pictures; Zoning clause of the Fourteenth Amendment on is justified by the overriding importance the ground of vagueness for failing to of maintaining a free and open market ANNOTATION REFERENCES indicate how much of the described ac- for the interchange of ideas; neverthe- Supreme Court's views as to overbreadth of legislation in connection with First tivity may be permissible before the ex- less, if the statute's deterrent effect on Amendment rights.45 L Ed 2d 725. hibition is "characterized by an empha- legitimate expression is not both real Supreme Court's application of vagueness doctrine to noncriminal statutes or sis" on such matter, or for failing to and substantial, and if the statute is ordinances.40 L Ed 2d 823. specify procedures or standards for ob- readily subject to a narrowing construc- What provisions of the Federal Constitution's Bill of Rights are applicable to the taining a waiver of the 1000-foot restric- tion by state courts, the litigant is not states. 18 L Ed 2d 1388,23 L Ed 2d 985. tion, where the theater operators pro- permitted to assert the rights of third The Supreme Court and the right of free speech and press.93 L Ed 1151,2 L Ed posed to offer adult fare on a regular parties. 2d 1706,11 L Ed 2d 1116,16 L Ed 2d 1053,21 L Ed 2d 976. basis and did not allege any basis for Indefiniteness of language as affecting validity of criminal legislation or judicial claiming or anticipating any waiver of Constitutional Law §§933, 935.5 — definition of common-law crime.96 L Ed 374,16 L Ed 2d 1231. the 1000-foot restriction as applied to free speech — adult movie thea- Interest necessary to maintenance of declaratory determination of validity of their theaters, any element of vagueness ters—city ordinances in the ordinances thus not affecting such 5. A city's ordinances providing that statute or ordinance. 174 ALR 549. theater operators; nor may such theater adult films may only be exhibited com- operators raise the vagueness issue un- mercially .in licensed theaters, that an der the theory that even though their adult movie theater may not be located own rights were not violated, the very within 1000 feet of any two other "regu- existence of the ordinances may cause lated uses" (10 different kinds of estab- 312 313 U.S. SUPREME COURT REPORTS 49 L Ed 2d YOUNG v AMERICAN MINI THEATRES 427 US 50,49 L Ed 2d 310,96 S Ct 2440 shments in addition to adult theaters), cation of theaters as well as the location sexually explicit activity that may be ited commercially only in licensed t1Fet nd that an"adult theater"is one which of other commercial establishments, ei- portrayed before material can be said to ters, that is also true of all films. Tha resents material "characterized by an ther by confining them to certain speci- be "characterized by an emphasis" on the place where films may be exhibite, :nphasis" on material depicting or re- fled commercial zones or by requiring such matter, there is no reason why the is regulated does not violate free expre: sting to "Specified Sexual Activities" or that they be dispersed throughout the ordinances are not "readily subject to a sion, the city's interest in planning an, Specified Anatomical Areas" (as defined city; the mere fact that the commercial narrowing construction by the state regulating the use of property for com i the ordinances), are not invalid as exploitation of material protected by the courts."This would therefore be an inap- mercial purposes being clearly adequat npermissible prior restraints on free First Amendment is subject to zoning propriate case to apply the principle to support peech; the city's interest in planning and other licensing requirements is not urged b respondents that the be p the levers nag restriction. nd regulating the use of property for a sufficient reason for invalidating ordi- g Y P Y per- 518 Stevens,F2dJ,reversed. mitted to challenge the ordinances, not eves, J., delivered the opinion o ommercial purposes is adequate to sup- nances. because their own rights of free expres- the Court, in which Burger, C. J., an( ,ort such type of restriction applicable Sion are violated, but because of the White, Powell (except o all theaters within the city limits, and Constitutional Law §925 — First t for Part III), an( p Amendment — re pro- c P regulation of assumption that the ordinances' very Rehnquist, JJ.,joined. Powell, J., filed he regulation of the place where adult tected speech existence may cause others not before concurring opinion, post, p 73, 49 L Ec films may be exhibited does not offend p Ise First Amendment. 7a, 7b. Reasonable regulations of the the court to refrain from constitutionally , P 2d 327. Stewart, J., filed a dissenting speech time, place, and manner of protected Protected p ech or expression. opinion, in which Brennan, Marshall 2. The ordinances are not invalid un- and Blackmun, JJ.,joined, post, 84, 4E onstitutional Law §§933, 935.5; Zon- speech, where those regulations are nec- j P P Y significant g der the First Amendment as prior re- L Ed 2d, p 334. Blackmun, J., filed < ing §1 — First Amendment — essar to further si ificant overnmen- r on location of theaters tal interests, are permitted by the First straints protected communication be- dissenting opinion, in which Brennan 6. A municipality may control the lo- Amendment. cause of the licensing or zoning require- Stewart, and Marshall, JJ., joined, post SYLLABUS BY REPORTER OF DECISIONS ments. Though adult films may be exhib- p 88,49 L Ed 2d,p 337. Respondent operators of two adult mo- spondents, in addition to asserting the APPEARANCES OF COUNSEL ion picture theaters brought this action correctness of that court's ruling with Maureen P. Reilly argued the cause for petitioners. .against petitioner city officials for injunc- respect to those constitutional issues, Stephen M. Taylor and John H. Weston argued the cause for .ive relief and a declaratory judgment of contend that the ordinances are void for respondents. .inconstitutionality regarding two 1972 vagueness. While not attacking the Briefs of Counsel, p 1333, infra. Detroit zoning ordinances that amended specificity of the definitions of sexual an "Anti-Skid Row Ordinance" adopted activities or anatomical areas, respon- 10 years earlier. The 1972 ordinances dents maintain (1) that they cannot de- OPINION OF THE COURT provide that an adult theater may not termine how much of the described ac- [427 US 52) fication is unconstitutional because apart from a special waiver) be located tivity may be permissible before an exhi- Mr. Justice Stevens delivered the it is based on the content of commu. within 1,000 feet of any two other"regu- bition is "characterized by an emphasis" opinion of the Court.* nication protected by the First on such matter, and (2) that the ordi- to Amendment. gated uses" or within 500 feet of a resi- ' dential area. The term "regulated uses" nances do not specify adequate proce- [ ] Zoning ordinances adopted by applies to 10 different kinds of establish- dures or standards for obtaining a the city of Detroit differentiate be- Effective November 21 1972, De- ments in addition to adult theaters, in- waiver of the 1,000-foot restriction. Held: tween motion picture theaters which troit adopted the ordinances chal- cluding adult book stores, cabarets, bars, 1. The ordinances as applied to these exhibit sexually explicit "adult" taxi dance halls, and hotels. If the thea- respondents do not violate the Due Proc- movies and those which do not. The lenged in this litigation. Instead of ess Clause of the Fourteenth Amend g concentratin "adult" theaters in ter is used to present "material distin- ment on the ground of vagueness. principal question presented by this case is whether that statutor classi- limited zones, these ordinances re- guished or characterized by an emphasis (a) Neither of the asserted elements of Y on matter depicting . . . Specified Sex- vagueness has affected these respon- ual Activities' or 'Specified Anatomical dents, both of which propose to offer The Chief Justice,Mr.art III of this opinion pionJust i joined and only press to the States by the Due Processmade appli. Areas'" it is an "adult" establishment. adult fare on a regular basis and allege Justice Rehnquist. Y The District Court upheld the ordi- no ground for claiming or anticipating of the Fourteenth Amendment. Edwards v nances, and granted petitioners' motion any waiver of the 1,000-foot restriction. L [lb] "Congress shall make no law . . . South Carolina, 372 US 229, 9 L Ed 2d 697, for summer judgment. The Court of Y j g (b) The ordinances will have no de- abridging the freedom of speech, or of the 83 S Ct 680. Appeals reversed, holding that the ordi- monstrably significant effect on the exhi- nances constituted a prior restraint on bition of films protected by the First constitutionally protected communica- Amendment. To the extent that any tion and violated equal protection. Re- area of doubt exists as to the amount of 314 315 U.S. SUPREME COURT REPORTS 49 L Ed 2d YOUNG v AMERICAN MINI THEATRES 427 US 50,491 Ed 2d 310,96 S Ct 2440 ire that such theaters be dis- phasis on matter depicting, describ• adult motion picture theaters and gas station which was converted into rsed. Specifically, an adult theater ing or relating to 'Specified Sexual adult book stores to the list of busi- a "mini theater," but denied a certif- _iy not be located within 1,000 feet Activities' or 'Specified Anatomical nesses which, apart from a special icate of occupancy because of its any two other "regulated uses" or Areas,"'' it is an adult establish- waiver,' could not be located within plan to exhibit adult films. Both the- .thin 500 feet of a residential area 2 ment.s 1,000 feet of two other "regulated aters were located within 1,000 feet ie term "regulated use" includes [427 US 54] uses," was, in part, a response to the of two other regulated uses and the different kinds of establishments The 1972 ordinances were amend- significant growth in the number Pussy Cat was less than 500 feet addition to adult theaters.3 ments to an "Anti-Skid Row Ordi- [427 US 55] from a residential area. The respon- of such establishments." In the opin- dents brought two [427 US 53] nonce" which had been adopted 10 g separate actions The classification of a theater as years earlier. At that time the De- ion of urban planners and real es- against appropriate city officials, adult" is expressly predicated on troit Common Council made a find- tate experts who supported the ordi- seeking a declaratory judgment that ie character of the motion pictures ing that some uses of property are , nances, the location of several such the ordinances were unconstitu- hich it exhibits. If the theater is especially injurious to a neighbor- 0 businesses in the same neighborhood tional and an injunction against sed to present "material distin- hood when they are concentrated in tends to attract an undesirable their enforcement. Federal jurisdic- uished or characterized by an em- limited areas e The decision to add quantity and quality of transients, tion was properly invoked' and the adversely affects property values, two cases were consolidated for deci- 2.The District Court held that the original ments—bookstores, motion picture theaters, causes an increase in crime, espe- sion.10 ciall prostitution, and encourages ,rm of the 500-foot restriction was invalid and mini motion picture theaters—defined y P + g ecause it was measured from "any building respectively as follows: residents and businesses to move The District Court granted defend- ontaining a residential, dwelling or rooming "Adult Book Store elsewhere. ants' motion for summary judgment. .nit." The city did not appeal from that rul- "An establishment having as a substantial + ng. but adopted an amendment prohibiting or significant portion of its stock in trade, [2a] Res On the basis of the reasons stated Respondents are the operators [427 US ss] he operation of an adult theater within 500 books,magazines,and other periodicals which of two adult motion picture theaters. .?et of any area zoned for residential use.The are distinguished or characterized by their by .mended restriction is not directly challenged emphasis on matter depicting, describing or One, the Nortown, was an estab- the city for adopting the ordinances, n this litigation. relating to 'Specified Sexual Activities' or lished theater which began to ex- the court concluded that they repr'e- 'Specified Anatomical Areas,' (as defined be- hibit adult films in March 1973. The sented a rational attempt to pre- 3. In addition to adult motion picture thea- low), or an establishment with a segment or other, the Pussy Cat, was a corner serve the city's neighborhoods." The ers and 'mini" theaters, which contain less section devoted to the sale or display of such .han 50 seats, the regulated uses include material. +dult bookstores; cabarets (group "D"); estab- "Adult Motion Picture Theater to insure that these adverse effects will not 8. A police department memorandum ad- :ishments for the sale of beer or intoxicating "An enclosed building with a capacity of 50 contribute to the blighting or downgrading of dressed to the assistant corporation counsel liquor for consumption on the premises; ho- or more persons used for presenting material the surrounding neighborhood. These special stated that since 1967 there had been an tels or motels; pawnshops; pool or billiard distinguished or characterized by an emphasis regulations are itemized in this section. The increase in the number of adult theaters in halls; public lodging houses; secondhand on matter depicting, describing or relating to primary control or regulation is for the pur- Detroit from two to 25, and a comparable Mores; shoeshine parlors; and taxi dance 'Specified Sexual Activities' or'Specified Ana- t pose of preventing a concentration of these increase in the number of adult book stores halls. tomical Areas,'(as defined below)for observa- uses in any one area Q. e. not more than two and other"adult-type businesses." 4.These terms are defined as follows: tion by patrons therein. such uses within one thousand feet of each "Adult Mini Motion Picture Theater other which would create such adverse [ Respondents alleged a claim for "For the purpose of this Section, 'Specified effects)." relief under 42 USC§1983[42 USCS§1983], Sexual Activities'is defined as: "An enclosed building with a capacity for invoking the jurisdiction of the federal court "l. Human Genitals in a state of sexual less than 50 persons used for presenting mate- under 28 USC§1343(3)[28 USCS§1343(3)]. stimulation or arousal; rial distinguished or characterized by an em. 7. The ordinance authorizes the Zoning "2. Acts of human masturbation, sexual phasis on matter depicting, describing or re Commission to waive the 1,000-foot restriction 10. Both cases were decided in a single intercourse or sodomy; lating to.'Specified Sexual Activities' or it it finds: opinion filed jointly by Judge Kennedy and "3. Fondling or other erotic touching of 'Specified Anatomical Areas,' (as defined be- "a) That the proposed use will not be con. Judge Gubow.Nortown Theatre v Gribbs,373 human genitals, pubic region, buttock or fe- low),for observation by patrons therein." ; trary to the public interest or injurious to F Supp 363(ED Mich 1974). male breast. nearby properties, and that the spirit and "And 'Specified Anatomical Areas' is 6.Section 66.000 of the Official Zoning Ordi- intent of this Ordinance will be observed. 11. "When, as here, the City has stated a nance recited: "b)That the proposed use will not enlarge reason for legitimate an ordinance which is t defined as: subject of le rtimate concern, that statement "In the development and execution of this or encourage the development of purpose is not subject to attack. "1. Less than completely and opaquely cov- ag pment of a 'skid row' p Po j Ordinance, it is recognized that there are area. "red: la) human genitals, pubic region, (b) 'Nor may the Court substitute its judgment na- because of their very h hic , y buttock, and (c) female breast below a point some uses w "c)That the establishment of an additional for that of the Common Council of the City of immediately above the top of the areoia;and ture, are recognized as hawing serious objec• regulated use in the area will not be contrary Detroit as to the methods adopted to deal "2. Human male genitals in a discernibly tionable operational characteristics, particu• to any program of neigh[bor]hood conserva. with the City's legitimate concern to preserve turgid state, even if completely and opaquely larly when several of them are concentrated tion nor will it interfere with any program of neighborhoods, so long as there is some ra- covered." under certain circumstances thereby hawing a urban renewal. tional relationship between the objective of deleterious effect upon the adjacent areas. "d) That all applicable regulations of this the Ordinance and the methods adopted." Id., 5. There are three types of adult establish- Special regulation of these uses is necessary Ordinance will be observed." at 367. 316 317 I U.S. SUPREME COURT REPORTS 49 L Ed 2d YOUNG v AMERICAN MINI THEATRES 427 US 50,49 L Ed 2d 310,96 S Ct 2440 ourt analyzed and rejected respon- straint on constitutionally protected lation," rather than a regulation of ments in the abstract. For even i Tents' argument that the definition communication and therefore `• speech on the basis of its content." there may be some uncertainti :nd waiver provisions in the ordi- "merely establishing that they were Because of the importance of the about the effect of the lances were impermissibly vague; it designed to serve a compelling pub- decision, we granted certiorari, 423 [427 US 593 „ ordinances or field that the disparate treatment of lic interest provided an insufficient US 911, 46 L Ed 2d 139, 96 S Ct 214. other litigants, they are unquestion adult theaters and other theaters justification for a classification of As they did in the District Court, ably applicable to these respondents .vas justified by a compelling state motion picture theaters on the basis respondents contend (1) that the or- The record indicates that both thea .nterest and therefore did not violate of the content of the materials they dinances are so vague that the io- ters Y v propose to offer adult fare on ,Z gue :he Equal Protection Clause; and purvey to the public." Relying pri- late the Due Process Clause of the regular basis.'s Neither respondent finally it concluded that the regula- marily on Police Department of Chi- Fourteenth Amendment; (2) that has alleged any basis for claiming o1 tion of the places where adult films cago v Mosley, 408 US 92, 33 L Ed they are invalid under the First anticipating any waiver of the re- could be shown did not violate the 2d 212, 92 S Ct 2286, the court held Amendment as prior restraints on striction as applied to its theater. Il First Amendment." the ordinance invalid under the protected communication; and (3) is clear, therefore, that any element [427 US 571 Equal Protection Clause. Judge Cele- that the classification of theaters on of vagueness in these ordinances has The Court of Appeals reversed. . brezze, in dissent, expressed the basis -of the content of their not affected these respondents. Tc American Mini Theatres, Inc. v [427 US 581 exhibitions violates the Equal Pro- the extent that their challenge is Gribbs, 518 F2d 1014 (CA6 1975). the opin- tection Clause of the Fourteenth predicated on inadequate notice re- The majority opinion concluded that ion that the ordinance was a val. Amendment. We consider their ar- sulting in a denial of procedural due the ordinances imposed a prior re- id "'time, place and manner' regu- guments in that order. process under the Fourteenth Amendment, it must be rejected. Cf. 12. "Because the Ordinances distinguish borhoods in the City of Detroit, is unrelated I Parker v Levy, 417 US 733, 754-757, adult theatres and bookstores from ordinary to the suppression of free expression. First theatres and bookstores on the basis of the Amendment rights are indirectly related, but [3a] There are two parts to respon- 41 L Ed 2d 439, 94 S Ct 2547. dents' claim that the content of their respective wares, the classifi- only in the sense that they cannot be freely ordinances are 14] Because the ordinances affect cation is one which restrains conduct pro- exercised in specific locations. Plaintiffs would too vague. They do not attack the communication protected by the tected by the First Amendment. See Inter- not contend that they are entitled to operate specificity of the definition of Speci- First Amendment, respondents ar- state Circuit, Inc. v Dallas,390 US 676,(20 L a theatre or bookstore, which are commercial fied Sexual Activities" or "Specified Ed 2d 225, 88 S Ct 12981 . . . (1968). The businesses, in a residentially zoned area; nor ! Anatomical Areas." They argue, gue that they may raise the vague appropriate standard for reviewing the classi- could they claim the right to put on a per- ness issue even though there is no fication, therefore, is a test of close scrutiny. formance for profit in a public street. Admit- 1 however, that they cannot determine uncertainty about the impact of the Harper v Virginia Board of Elections,383 US tedly the regulation here is more restrictive, how much of the described activity ordinances on their own rights. On 663, 670,(16 L Ed 2d 169, 86 S Ct 10791 . . . but it is of the same character."Id.,at 371. may be permissible before the exhi (1966); NAACP v Button, 371 US 415, 438, (9 . bition is "characterized by an em• several occasions we have deter L Ed 2d 405, 83 S Ct 3281 . . . (1963). Under 14. "The City did not discharge its heavy phasis" on such matter. In addition, mined that a defendant whose own this test, the validity of the classification burden of justifying the prior restraint which speech was unprotected had stand- depends on whether it is necessary to further these ordinances undoubtedly impose by they argue that the ordinances areing onality a compelling State interest. merely establishing that they were designed vague because they do not specify of at statute epurported which nge the tto pro- "The compelling State interest which the to serve a compelling public interest. Since adequate procedures or standards Defendants point to as justifying the restric- fundamental rights are involved,the City had for obtaining a waiver of the 1,000 hibit protected speech, or even tions on locations of adult theatres and book- the further burden of showing that the foot restriction. speech arguably protected.17 This ex- stores is the preservation of neighborhoods, method which it chose to deal with the prob- ception upon which adult establishments have been lem at hand was necessary and that its effect We find it unnecessary to consider [427 US 60] found to have a destructive impact. The on protected rights was only incidental. The the validity of either of these argu- from traditional rules of affidavit of Dr. Mel Ravitz clearly establishes City could legally regulate movie theatres and that the prohibition of more than one regu- bookstores under its police powers by provid- 15.He stated in art: lated use within 1000 feet is necessary to ing that such establishments be operated onlyp said theatera Neither respondent has indi- promote that interest. This provision there "I do not view the 1000 foot provision as a Gated any Platt to exhibit pictures even argu- in particular areas. . . . However, this ordi• regulation of speech on the basis of its con- ably outside the coverage of the ordinances. fore does not offend the equal protection Y g clause."Id.,at 369. nance selects for special treatment particular tent. Rather, it is a regulation of the right to business enterprises which fall within the locate a business based on the side-effects of 17. "Such claims of facial overbreadth have 13. "Applying those standards to the in- general business classifications permissible its location. The interest in preserving neigh- been entertained in cases involving statutes stant case, the power to license and zone under zoning laws and classifies them as regu- borhoods is not a subterfuge for censorship." which, by their terms, seek to regulate 'only businesses and prohibit their location in cer- lated uses solely by reference to the content Id.,at 1023. spoken words.'" Gooding v Wilson, 405 US tain areas is clearly within the constitutional of the constitutionally protected materials 518, 520, [31 L Ed 2d 408, 92 S Ct 11031 power of the City.The government interest,i. which they purvey to the public."518 F2d,at 16. Both complaints allege that only adults (1972). See Cohen v California,403 US 15,[29 are admitted to these theaters. Nortown ex- L Ed 2d 284, 91 S Ct I7801 (1971); Street v e. the preservation and stabilization of neigh- 1019-3020. pressly alleges that it "desires to continue New York,394 US 576,(22 L Ed 2d 572,89 S exhibiting adult-type motion picture films at Ct 13541(1969); Brandenburg v Ohio, 395 US 318 319 U.S. SUPREME COURT REPORTS 49 L Ed 2d YOUNG v AMERICAN MINI THEATRES 427 US 50.49 1,Fd 2d 310.96 S Ct 2440 standing to raise constitutional is- As already noted, these ordinances comprises films appetite for sexually explicit fare sues has reflected the Court's judg- the only vagueness in the ordinances containing material falling within Viewed as an entity, the market fol ment that the very existence of some relates to the amount of sexually the specific definitions of "Specified this commodity is essentially unres statutes may cause persons not be- explicit activity that may be por- Sexual Activities" or "Specified Ana- trained. fore the Court to refrain from engag- trayed before the material can be tomical Areas." The fact that the ing in constitutionally protected said to be "characterized by an em- First Amendment protects some, [61 It is true, however, that adult speech or expression. See Broadrick phasis" on such matter. For most though not necessarily all, of that films may only be exhibited commer. v Oklahoma, 413 US 601, 611-614, films the question will be readily material from total suppression does cially in licensed theaters. But that 37 L Ed 2d 830, 93 S Ct 2908. The answerable; to the extent that an not warrant the further conclusion is also true of all motion pictures. exception is justified by the overrid- area of doubt exists, we see no rea- that an exhibitor's doubts as to The city's general zoning laws re• ing importance of maintaining a free son why the ordinances are not whether a borderline film may be quire all motion picture theaters tc and open market for the interchange "readily subject to a narrowing con- shown in his theater, as well as in satisfy certain locational as well as of ideas. Nevertheless, if the stat- struction by the state courts." Since theaters licensed for adult presenta- other requirements; we have nc ute's deterrent effect on legitimate there is surely a less vital interest in tions, involves the kind of threat to doubt that the municipality may expression is not "both real and sub- the uninhibited exhibition of mate- the free market in ideas and expres- control the location of theaters as stantial," and if the statute is "read- rial that is on the borderline be- sion that justifies the exceptional well as the location of other com- ily subject to a narrowing construc- tween pornography and artistic ex- approach to constitutional adjudica- mercial establishments, either by tion by the state courts," see Erznoz- pression than in the free dissemina- tion recognized in cases like Dom- confining them to certain specified nik v City of Jacksonville, 422 US tion of ideas of social and political browski v Pfister, 380 US 479, 14 L commercial zones or by requiring 205, 216, 45 L Ed 2d 125, 95 S Ct significance, and since the limited Ed 2d 22, 85 S Ct 1116. that they be dispersed throughout 2268, the litigant is not permitted to amount of uncertainty in the ordi- the city. The mere fact that the assert the rights of third parties. nances is easily susceptible of a nar- [3b] The application of the ordi- commercial exploitation of material rowing construction, we think this is nances to respondents is plain; even protected by the First Amendment is We are not persuaded that the an inappropriate case in which to if there is some area of uncertainty subject to zoning and other licensing Detroit zoning ordinances will have adjudicate the hypothetical claims of about their application in other situ- requirements is not a sufficient rea• a significant deterrent effect on the persons not before the Court. ations, we agree with the District son for invalidating these ordi- exhibition of films protected by the Court that respondents' due process nances. First Amendment. The only area of protected commu- argument must be rejected. [427 US 61] nication that may be deterred by [7a] Putting to one side for the 444, (23 L Ed 2d 430, 89 S Ct 1827, 48 Ohio tained where statutes,by their terms,purport [427 US 62] moment the fact that adult motion Ops 2d 320](1969); Chaplinsky v New Hamp• to regulate the time, place, and manner of II. picture theaters must satisfy a loca- tional restriction not shire,315 US 568,[86 L Ed 1031,62 S Ct 766] expressive or communicative conduct, see i applicable to (1942). In such cases, it has been the judg- Grayned v City of Rockford, supra, at 114- [5] Petitioners acknowledge that other theaters, we are also per- ment of this Court that the possible harm to 121,[33 L Ed 2d 222,92 S Ct 22941;Cameron the ordinances prohibit theaters suaded that the 1,000-foot restriction society in permitting some unprotected speech v Johnson, 390 US, at 617-619, (20 L Ed 2d which are not licensed as "adult does not, in itself, create an imper- to go unpunished is outweighed by the possi- 182,88 S Ct 1335]; Zwickler v Koota, 389 US bility that protected speech of others may be 241, 249-250, [19 L Ed 2d 444, 88 S Ct 3911 motion picture theaters" from exhib- missible restraint on protected com- muted and perceived grievances left to fester (1967);Thornhill v Alabama,310 US 88,[84 L iting films which are protected by munication. The city's interest in because of the possible inhibitory effects of Ed 1093, 60 S Ct 736](1940),and where such the First Amendment. Respondents Planning and regulating the use of overly broad statutes. Overbreadth attacks conduct has required official approval under for commercial purposes have also been allowed where the Court laws that delegated standardless discretionary argue that the ordinances are there property P A thought rights of association were ensnared in power to local functionaries, resulting in vir- fore invalid as prior restraints On [427 US 63] statutes which, by their broad sweep, might tually unreviewable prior restraints on First free speech. is result in burdening innocent associations. See Amendment rights. See Shuttlesworth v Bir- clearly adequate to support that Keyishian v Board of Regents, 385 US 589, mingham, 394 US 147,[22 L Ed 2d 162, 89 S The ordinances are not challenged kind of restriction applicable to all [17 L Ed 2d 629, 87 S Ct 6751 (1967); United Ct 935](1969); Cox v Louisiana, 379 US 536, on the ground that they impose a theaters within the city limits. In States v Robel, 389 US 258, [19 L Ed 2d 508, 553-558,[13 L Ed 2d 471,85 S Ct 4531(1965); limit on the total number of adult short, apart from the fact that the 88 S Ct 4193(1967); Aptheker v Secretary of Kunz v New York,340 US 290,[95 L Ed 280, theaters which may O State, 378 US 500, 112 L Ed 2d 992, 84 S Ct 71 S Ct 312] (1951); Lovell v Griffin, 303 US y operate in the ordinances treat adult theaters 16591 (1964); Shelton v Tucker, [364 US 479] 444, [82 L Ed 949, 58 S Ct 6661 (1938)." city of Detroit. There is no claim differently from other theaters and (1960) [5 L Ed 2d 231, 81 S Ct 247]. Facial Broadrick v Oklahoma, 413 US 601, 612-613, that distributors or exhibitors of the fact that the classification is overbreadth claims have also been enter- 37 L Ed 2d 830,93 S Ct 2908. adult films are denied access to the predicated on the content of mate- market or, conversely, that the view- rial shown in the respective thea- ing public is unable to satisfy its ters, the regulation of the place 320 321 U.S. SUPREME COURT REPORTS 49 L Ed 2d YOUNG v AMERICAN MINI THEATRES 427 US 50,49 L Ed 2d 310,96 S Ct 2440 .•here such films may be exhibited may not affect the regulation of the niello v Chicago, 337 US 1, 4, (93 L public forum may not be based on does not offend the First Amend- time, place, or manner of presenting Ed 1131, 69 S Ct 8941 (1949); De content alone, and may not Be- ment.'" We turn, therefore, to the the speech. Jonge v Oregon, 299 US 353, 365, justified by reference to content 4uestion whether the classification is (81 L Ed 278, 57 S Ct 255) (1937). alone." 408 US, at 95-96, 33 L Ed -onsistent with the Equal Protection If picketing in the vicinity of a To permit the continued building 2d 212, 92 S Ct 2286. (Footnote Clause. school is to be allowed to express the of our politics and culture, and to omitted.) point of view of labor, that means of assure self-fulfillment for each in- III expression in that place must be dividual, our people are guaran- This statement, and others to the allowed for other points of view as teed the right to express any same effect, read literally and with- A remark attributed to Voltaire well. As we said in Mosley: thought, free from government out regard for the facts of the case characterizes our zealous adherence censorship. The essence of this for- in which it was made, would abso- to the principle that the government "The central problem with Chi- bidden censorship is content con- Iutely preclude any regulation of may not tell the citizen what he may sagos ordinance is that it de- trol. Any restriction on expressive expressive activity predicated in activity because of its content whole or in or may not say. Referring to a sug- scribes permissible picketing in y part on the content of gestion that the violent overthrow of terms of its subject matter. Peace- (427 US 65] the communication. But we learned tyranny might be legitimate, he would completely undercut the long ago that broad statements of said: "I disapprove of what you say, ful picketing on the subject of a I profound national commitment to schools labor-management dispute the principle that debate on public principle, no matter how correct e, but I will defend to the death your is permitted, but all other peaceful the context a which they are made, „19 P issues should be uninhibited, ro- right to say it. The essence of that picketing is prohibited. The opera- are sometimes qualified by contrary comment has been repeated time P g P bust, and wide-open.' New York decisions before the absolute limit of tive distinction is the message on Times Co. v Sullivan, supra, at after time in our decisions invalidat- a picket sign' But, above all else, the stated principle is reached.!' 95 the First Amendment means that 95 ALR2d 14121. ing attempts by the government to [11 L Ed 2d 686, 84 S Ct 710, When we review this Court's actual impose selective controls upon the government has no power to re- adjudications in the First Amertd- dissemination of ideas. strict expression because of its "Necessarily, then, under the ment area, we find this to have been t t t t subj message, its ideas, its subject ma - Equal Protection Clause, not the case Thus, the use of streets.and.parks g � [427 US ss] for the free expression of views on ter, or its content. Cohen v Califor- mention the First Amendment it- with the stated principle national affairs may not be condi- nia, 403 US 15, 24, [29 L Ed 2d self, government may not grant that there may be no restriction tioned upon the sovereign's agree- 284, 91 S Ct 17801 (1971); Street v the use of a forum to people whose whatever on expressive activity Be- ment with what a speaker may in- New York, 394 US 576, [22 L Ed views it finds acceptable, but deny 2d 572 89 S Ct 1354] (1969); New use to those wishing to express cause of its content. tend to say.�0 Nor may speech be curtailed because it York Times Co. v Sullivan, 376 US less favored or more controversial The question whether speech is, or [427 US 64) 254, 269-270, [11 L Ed 2d 686, 84 views. And it may not select which is not, protected by the First Amend- invites dispute, S Ct 710, 95 ALR2d 14121 (1964), issues are worth discussing or de- creates dissatisfaction with condi- and cases cited; NAACP v Button, bating in public facilities. There is f the often depends on the content o tions the way they are, or even stirs 371 US 415, 445, (9 L Ed 2d 405, an 'equality of status in the field of the speech. Thus, the line between eo le to an er.21 The soverei 's 83 S Ct 328] (1963); Wood v Geor- of ideas,' and government must permissible advocacy and im violence P g � Bible incitation to crime or violence agreement or disagreement with the gia, 370 US 375, 388-389, [8 L Ed afford all points of view an equal depends, not merely on the setting content of what a speaker has to say 2d 569,82 S Ct 13641(1962);Termi- opportunity to be heard. Once a forum is opened up to assembly or in which the speech occurs, but also 18. 7b Reasonable regulations of the 2294(ban on willful making,on grounds adja- speaking by some groups, govern- on exactly what the speaker had to time, place, and manner of protected speech, cent to a school, of any noise which disturbs ment may not prohibit others say.'-3 Similarly, it is the content of where those regulations are necessary to fur- the good order of the school session). the utterance that determines ther significant governmental interests, are from assembling or speaking on g B whether it is a protected epithet or permitted by the First Amendment.See,e.g., 19. S. Tallentyre, The Friends of Voltaire the basis of what they intend t0 Kovacs v Cooper,336 US 77, 93 L Ed 513, 69 199(1907). say. Selective exclusions from a an unprotected 'fighting com S Ct 448, 10 ALR2d 608(limitation on use of sound trucks); Cox v Louisiana, 379 US 559, 20.See Hague v CIO,307 US 496,516,83 L 22.See,e.g., Kastigar v United States, 406 23.See Bond v Floyd,385 US 116, 133-134. 13 L Ed 2d 487, 85 S Ct 476 (ban on demon- Ed 1423,59 S Ct 954(opinion of Roberts,J.). US 441, 454-455, 32 L Ed 2d 212, 92 S Ct 17 L Ed 2d 235, 87 S Ct 339; Harisiades strations in or near a courthouse with the 1653; United Gas Co. v Continental Oil Co. Shaughnessy, 342 US 580, 592, 96 L Ed 586 intent to obstruct justice); Grayned v City of 21.Terminiello v Chicago,337 US 1,4,93 L 381 US 392, 404, 14 L Ed 2d 466, 85 S Ct 72 S Ct 512; Musser v Utah, 333 US 95, 99- Rockford,408 US 104,33 L Ed 2d 222,92 S Ct Ed 1131,69 S Ct 894. 1517. 101,92 L Fd 562,68 S Ct 397. 322 323 U.S. SUPREME COURT REPORTS 49 L Ed 2d YOUNG v AMERICAN MINI THEATRES 427 US 50,49 L Ed 2d 310,96 S Ct 2440 • • tent,"" And in time of war "the separate individual views were fre decide whether it involves 5 public [a27 US s9] ublication of the sailing dates of quently stated, the Court addressed figure or a public issue, the publicourt's to 69 afforded com- application or the number and loci- the broad problem of when the New mercial s ion of troops" may unquestionably York Times standard of malice was application of the relevant rule may speech will surely be gov- e restrained, see Near v Minnesota, not depend on its favorable or unfa- erned largely by the content of the e restrained, 697, 716, 75 L Ed 1357, so S required by the First Amendment. vorable appraisal of that figure or communication.': 't 625, although publication of news Despite a diversity of opinion on that issue. More directly i whether it was required only in yn point are opinions tories with a different content cases involving public figures, or also We have recently held that the dealing with the question whether vould be protected. g p First Amendment affords some pro- the First Amendment prohibits the Even within the area of protected in cases involving public issues, and tection to commercial speech.2" We State and Federal Governments peech, a difference in content may on whether the character of the have also made it clear, however, from wholly suppressing sexually -equire a different governmental re- damages claim mattered, a common that the content of a particular ad- oriented materials on the basis of :ponse. In New York Times Co. v thread which ran through all the vertisement may determine the ex- their "obscene character." In Gins- 3ullivan, 376 US 254, 11 L Ed 2d opinions was the assumption that tent of its protection. A public rapid berg v New York, 390 US 629, 20 L 386, 84 S Ct 710, 95 ALR2d 1412, we the rule to be applied depended on transit system may accept some ad- Ed 2d 195, 88 S Ct 1274, 44 Ohio recognized that the First Amend- the content of the communication.26 vertisements and reject others" A Ops 2d 339, the Court upheld a con- places limitations on the But that assumption did not contra- state statute may permit highway viction for selling to a minor maga- States' power to enforce their libel dict the underlying reason for the billboards to advertise businesses lo- zines which were concededly not laws. We held that a public official rule which is generally described as Gated in the neighborhood but not "obscene" if shown to adults. may not recover damages from a a prohibition of regulation based on elsewhere'30 and regulatory commis- Indeed, the Members of the critic of his official conduct without the content of protected communica- sions may prohibit businessmen Court who would accord the great- proof of"malice" as specially defined tion. The essence of that rule is the from making statements which, est protection to such materials in that opinion.L5 Implicit in the need for absolute neutrality by the though literally true, are potentially have repeatedly indicated that the opinion is the assumption that if the government; its regulation of com- deceptive.31 The measure of constitu- State could prohibit the distribu- content of the newspaper article had munication may not be affected by tional protection tion or exhibition of such materials been different-that is, if its subject sympathy or hostility for the point matter had not been a public official of view being expressed by the com- siderations of censorship. And this is precisely Ed 2d 547, 89 S Ct 1918, the Court upheld a -a lesser standard of proof would municator.27 Thus, although what Mr.Justice Black argued in Cox: federal statute which balanced an employer's have been adequate. [427 US 681 "'But by specifically permitting picketing for free speech right to communicate with his [427 US 67] the con• the publication of labor union views, Louisi- employees against the employees" rights to= In a series of later cases, in which tent of a story must be examined to ana is attempting to pick and choose among associate freely by providing that the expres- the views it is willing to have discussed on its sion of "'any views, argument, or opinion"' 24. In Chaplinsky v New Hampshire, 315 First Amendment requires that we protect streets. It is thus trying to prescribe by law should not be evidence of an unfair labor US 568, 574, 86 L Ed 1031, 62 S Ct 766, we some falsehood in order to protect speech that what matters of public interest people it al- practice,"' so long as such expression con- y Pe twins"'no threat of reprisal or force or prom- held that a statute punishing the use of"dam- lows to assemble on its streets may and may matters." Id., at 341,41 L Ed 2d 789,94 S Ct ise of benefit'" which would involve interfer- ned racketeer[s]"and "damned Fascist[s]"did not discuss.This seems to me to be censorship not unduly impair liberty of expression. 2997. in a most odious form . . .' [379 US, at 581] ence,restraint or coercion of employees in the [13 L Ed 2d 487,85 S Ct 476]." exercise of their right to self-organization. 25. "Actual malice" is shown by proof that 27. Thus, Professor Kalven wrote in The The power of the Federal Trade Commis- a statement was made "with knowledge that Concept of the Public Forum: Cox v Louisi- 28. Virginia Pharmacy Board v Virginia sion to restrain misleading, as well as false, it was false or with reckless disregard of ana, 1965 Sup Ct Rev 1,29: Consumer Council, 425 US 748, 48 L Ed 2d statements in labels and advertisements has whether it was false or not." 376 US, at 280, 346,96 S Ct 1817(Ma 19761. long been recognized. See, e. g., Jacob Siegel 11 L Ed 2d 686,84 S Ct 710,95 ALR2d 1412. "[The Equal Protection Clause] is likely to y provide a second line of defense for vigorous Co. v FTC, 327 US 608,90 L Ed 888, 66 S Ct l 26. See, for example, the discussion of the users of the public 29• Lehman v City of Shaker Heights, 418 758; FTC v National Comm'n on Egg Nutri- public or general interest' test" for deter- p forum. If some groups are US 298,41 L Ed 2d 770,94 S Ct 2714(product tion, 517 F2d 485 (CA7 1975); E. F. Drew 8 mining the applicability of the New York exempted from a prohibition on parades and advertising accepted, while political cards re- Co,v FTC,235 F2d 735,740(CA2 1956). Times standard in Gertz v Robert Welch,Inc. pickets, the rationale for regulation is fatally jected). 418 US 323, 346, 41 L Ed 2d 789, 94 S Ct impeached. The objection can then no longer 32. As Mr. Justice Stewart pointed out in 2997, and the reference, id., at 348, 41 L Ed be keyed to interferences with other uses of 30, Markham Advertising Co, v State, 73 Virginia Pharmacy Board v Virginia Con- 2d 789, 94 S Ct 2997, to a factual misstate- the public places, but would appear to impli- Wash 2d 405, 439 P2d 248 (1968), appeal sumer Council, the "differences between com- ment "whose content did not warn a reason. Gate the kind of message that the groups were dismissed for want of a substantial federal mercial price and product advertising . . . ably prudent editor or broadcaster of its de- transmitting. The regulation would thus slip question,393 US 316,21 L Ed 2d 512,89 S Ct g and ideological communication"permits re u- 553. famatory potential." The mere fact that an from the neutrality of time, place, and cir- lation of the former that the First Amend- alleged defamatory statement is false does cumstance into a concern about content. The 31. In National Labor Relations Board v ment would not tolerate with respect to the not,of course,place it completely beyond the result is that equal-protection analysis in the Gissel Packing Co.,Inc.395 US 575,617,23 L latter,supra,at 779(concurring opinion). protection of the First Amendment. "The area of speech issues would merge with con- 324 325 U.S. SUPREME COURT REPORTS 49 L Ed 2d YOUNG v AMERICAN MINI THEATRES 427 US 50,49 L Ed 2d 310,96 S Ct 2440 to juveniles and unconsenting cal debate that inspired Voltaire's raise the wisdom of its decision to fits that characterization turns on adults." Surely the First Amend- immortal comment. Whether politi require adult theaters to be sepa- the nature of its content, we con• ment does cal oratory or philosophical discus- rated rather than concentrated in elude that the city's interest in the [427 US 701 sion moves us to applaud or to de- the same areas. In either event, the resent and future character of its not foreclose such a prohi- spise what is said, every schoolchild p bition; yet it is equally clear that can understand why our duty to serve interest in attempting to pre- neighborhoods adequately supports any such prohibition must rest defend the right to speak remains serve the quality of urban life is one its classification of motion pictures, squarely on an appraisal of the con- the same. But few of us would that must accorded high respect. We hold that the zoning ordinances tent of material otherwise within a march our sons and daughters off to Moreover, the city must be allowed a requiring that adult constitutionally protected area. war to preserve the citizen's right to reasonable opportunity to experi- [427 US 731 see "Specified Sexual Activities" ex- ment with solutions to admittedly motion picture Such a line may be drawn on the hibited in the theaters of our choice. serious problems, theaters not be located within 1,OOC basis of content without violating Even though the First Amendment Since what is ultimately at stake feet of two other regulated uses does the government's paramount obliga- protects communication in this area is nothing more than a limitation on not violate the Equal Protection tion of neutrality in its regulation of from total suppression, we hold that the place where adult films may be Clause of the Fourteenth Amend- protected communication. For the the State may legitimately use the exhibited'31 even though the determi- ment. regulation of the places where sex- content of these materials as the nation of whether a ually explicit films may be exhibited basis [427 US 721 The judgment of the Court of Ap- is unaffected by whatever social, po- [427 US 711 particular film peals is reversed. litical, or philosophical message a for placing them in a different SEPARATE OPINIONS film may be intended to communi- classification from other motion pic- cate; whether a motion picture ridi- tures. Mr. Justice Powell, concurring. and concur in Parts I and II, my cules or characterizes one point of approach to the resolution of this view or another, the effect of the The remaining question is Although I agree with much of case is sufficiently different tc ordinances is exactly the same. whether the line drawn by these what is said in the plurality opinion, prompt me to write separately.a I ordinances is justified by the city's Moreover, even though we recog- interest in preserving the character 35.The situation would be quite different if opening of an art exhibit as well as shots of nize that the First Amendment will of its neighborhoods. On this ques- the ordinance had the effect of suppressing,or bathers on a beach. Clearly all nudity cannot not tolerate the total suppression -of tion we agree with the views ex- greatly restricting access to, lawful' speech. be deemed obscene even as to minors. Ser. erotic materials that have some ar- pressed by District Judges Kennedy Here, however, the District Court specifically Ginsberg v New York, supra. Nor can such r guably artistic value, it is manifest and Gubow. The record discloses a found that "[t]he Ordinances do not affect the broad restriction be justified by any other operation of existing establishments but only governmental interest pertaining to minors that society's interest in protecting factual basis for the Common Coun- the location of new ones. There are myriad Speech that is neither obscene as to youthE this type of expression is of a wholly cil's conclusion that this kind of re- locations in the City of Detroit which must be nor subject to some other legitimate proscrip different, and lesser, magnitude than striction will have the desired over 1000 feet from existing regulated estab- tion cannot be suppressed solely to protect the the interest in untrammeled politi- effect." It is not our function to ap- lishments. This burden on First Amendment young from ideas or images that a legislative rights is slight."373 F Supp,at 370. body thinks unsuitable for them." 422 US, ai It should also be noted that the definitions 213-214,45 L Ed 2d 125,95 S Ct 2268. 33. In Paris Adult Theatre I v Slaton, 413 34. The City Council's determination was of"Specified Sexual Activities"and"Specified Moreover, unlike the ordinance in this case. US 49,73,37 L Ed 2d 446,93 S Ct 2628,Mr. that a concentration of "adult" movie thea- Anatomical Areas" in the zoning ordinances, the Erznoznik ordinance singled out movies Justice Brennan, in a dissent joined by Mr. ters causes the area to deteriorate and be- which require an emphasis on such matter "containing even the most fleeting and inno Justice Stewart and Mr. Justice Marshall, come a focus of crime, effects which are not and primarily concern conduct, are much cent glimpses of nudity . . . ." Id., at 214, 4° explained his approach to the difficult prob- attributable to theaters showing other types more limited than the terms of the public L Ed 2d 125,95 S Ct 2268. lem of obscenity under the First Amendment: of films.It is this secondary effect which these nuisance ordinance involved in Erznoznik, The Court's opinion in Erznoznik presaged "I would hold, therefore, that at least in the zoning ordinances attempt to avoid, not the supra, which broadly prohibited scenes which our holding today by noting that the pre absence of distribution to juveniles or obtru- dissemination of "offensive" speech. In con- could not be deemed inappropriate even for sire exposure to unconsenting adults, the when a of statutory validity "has less force prohibit tract,in Erznoznik v City of Jacksonville,422 juveniles. when a classification turns on the sub eci First and Fourteenth Amendments � the State and Federal Governments from at- US 205, 45 L Ed 2d 125, 95 S Ct 2268, the "The ordinance is not directed against sex. matter of expression." Id., at 215,45 L Ed 2c tempting wholly to suppress sexually oriented justifications offered by the city rested primar- ually explicit nudity, nor is it otherwise lim- 125, 95 S Ct 2268. Respondents' position is materials on the basis of their allegedly 'ob- ily on the city's interest in protecting its ited. Rather, it sweepingly forbids display of that the presumption has no force, or more scene'contents. Nothing in this approach pre- citizens from exposure to unwanted, all films containing any uncovered buttocks or precisely,that any classification based on sub eludes those governments from taking action 'offensive" speech. The only secondary effect breasts, irrespective of context or pervasive- ject matter is absolutely prohibited. to serve what may be strong and legitimate relied on to support that ordinance was the ness. Thus it would bar a film containing a interests through regulation of the manner of impact on traffic—an effect which might be picture of a baby's buttocks, the nude body of 1. I do not think we need reach, nor am distribution of sexually oriented material." caused by a distracting open-air movie even if a war victim, or scenes from a culture in inclined to agree with,the holding in Part II Id.,at 113,37 L Ed 2d 446,93 S Ct 2628. it did not exhibit nudity. which nudity is indigenous. The ordinance (and supporting discussion) that nonobscene also might prohibit newsreel scenes of the erotic materials may be treated different], 326 32. U.S. SUPREME COURT REPORTS 49 L Ed 2d YOUNG v AMERICAN MINI THEATRES 427 US 50,49 L Ed 2d 310,96 S Ct 2440 view the case as presenting an ex- In the intervening years zoning ing neighborhood." The purpose of (1965). And, even if Detroit's interest ample of innovative land-use regula- has become an accepted necessity in preventing the deterioration of com- in preventing the deterioration of tion, implicating First Amendment our increasingly urbanized society, mercial neighborhoods was certainly business areas is sufficient to justify concerns only incidentally and to a and the types of zoning restrictions within the concept of the public wel- the impact upon freedom of expres- limited extent. have taken on forms far more com- fare that defines the limits of the sion, the ordinance is nevertheless plex and innovative than the ordi- police power. See Berman v Parker, invalid because it impermissibly I nance involved in Euclid. In Village 348 US 26, 32-33, 99 L Ed 27, 75 S 1427 US 761 of Belle Terre v Boraas, 416 US 1, 39 Ct 98(1954). Respondents apparently dis- One half century ago this Court L Ed 2d 797, 94 S Ct 1536 (1974), we concede the legitimacy of the ordi- criminates between types of theaters broadly sustained the power of local considered an unusual regulation en- nance as solely on the basis of their content. municipalities to utilize the then rel- � passed in 1962, but chal- Y p acted by a small Long Island com- lenge the amendments 10 years later See Police Department of Chicago v atively novel concept of land-use reg- munity in an apparent effort to that brought within its provisions Mosley, 408 US 92, 33 L Ed 2d 212, ulation in order to meet effectively avoid some of the unpleasantness of adult theaters as well as adult book- 92 S Ct 2286 (1972). the increasing encroachments of ur- urban living. It restricted land use stores and "topless" cabarets. Those banization upon the quality of life of within the village to single-family amendments resulted directly from I reject respondents' argument for their citizens. Euclid v Ambler dwellings and defined "family" in the Common Council's determina- the following reasons. Realty Co. , 54 ALR 101 (1 US 365, 71 L Ed 303 47 S Ct 11414, . such a way that no more than two tion that the recent proliferation of unrelated persons could inhabit the these establishments and their tend- III The Court there noted the very prrat-at- tical consideration underlying the same house. We upheld this ordi- ency to cluster in certain parts of necessity for such power: "[W]ith the nance, noting that desires to avoid the city would have the adverse ef- This is the first case in this Court great increase and concentration of congestion and noise from both peo- fect upon the surrounding areas that in which the interests in free expres- population, problems have devel- ple and vehicles were "legitimate the ordinance was aimed at prevent- sion protected by the First and Four- oped, and constantly are developing, guidelines in a land-use project ad- ing. teenth Amendments have been im- which require, and will continue to dressed to family needs and that it plicated by a municipality's commer- require, additional restrictions in re- was quite within the village's power Respondents' attack on the cial zoning ordinances. Respondents spect of the use and occupation of to make the area a sanctuary for amended ordinance, insofar as it af- would have us mechanically apply private lands in urban communi- people." Id., at 9, 39 L Ed 2d 797, 94 fects them, can be stated simply. the doctrines developed in other-con= ties." Id., at 386-387, 71 L Ed 303, S Ct 1536. Contending that it is the "character texts. But this situation is not analo- 47 S Ct 114, 54 ALR 1016. The Court of the right, not of the limitation," gous to cases involving expression in also II which governs the standard of judi- public forums or to those involving [427 US 741 cial review, see Thomas v Collins, individual expression or, indeed, to laid out the general Against this background of prece- 323 US 516, 530,.89 L Ed 430, 65 S any other prior case. The unique boundaries within which the zoning dent, it is clear beyond question that Ct 315 (1945), and that zoning regu- situation presented by this ordi- power may operate: Restrictions the Detroit Common Council had lations therefore have no talismanic nance calls, as cases in this area so upon the free use of private land broad regulatory power to deal with immunity from constitutional chal- often do, for a careful inquiry into must find their justifications in the problem that prompted enact- lenge, cf. New York Times Co. v the competing concerns of the State "some aspect of the police power, ment of the Anti-Skid Row Ordi- Sullivan, 376 US 254, 269, 11 L Ed and the interests protected by the asserted for the public welfare"; the nance. As the Court notes, ante, at 2d 686, 84 S Ct 710, 95 ALR2d 1412 guarantee of free expression. legitimacy of any particular restric- 54 and n 6, 49 L Ed 2d 316, the (1964), they argue that the 1972 tion must be judged with reference Council was motivated by its percep- amendments abridge First Amend- Because a substantial burden rest to all of the surrounding circum- tion that the "regulated uses," when ment rights by restricting the places upon the State when it would limit stances and conditions; and the legis- concentrated, worked a "deleterious at which an adult theater may loc- in any way First Amendment rights lative judgment is to control in cases effect upon the ate on the basis of nothing more it is necessary to identify with spe in which the validity of a particular (427 US 751 substantial than unproved fears and cificity the nature of the infringe zoning regulation is "fairly debata- adjacent areas" and apprehensions about the effects of ment in each case. The primary con ble." Id., at 387, 388, 71 L Ed 303, 47 could "contribute to the blighting or such a business upon the surround- tern of the free speech guarantee is S Ct 114, 54 ALR 1016. downgrading of the surround- ing area. Cf., e. g., Terminiello v that there be full opportunity fo+ under First Amendment principles from other to depend on distinctions between protected Chicago, 337 US 1, 93 L Ed 1131, 69 expression in all of its varied form: forms of protected expression. I do not con- speech. S Ct 894 (1949); Cox v Louisiana, 379 to convey a desired message. Vital t, sider the conclusions in Part I of the opinion US 536, 13 L Ed 2d 471, 85 S Ct 453 this concern is the corollary tha 328 32! U.S. SUPREME COURT REPORTS 49 L Ed 2d YOUNG v AMERICAN MINI THEATRES 427 US 50,49 L Ed 2d 310,96 S Ct 2440 there be full opportunity for every- But the central First Amendment purposes is not concerned with eco- them the number of adult movie one to receive the message. See, e. g., concern remains the need to main- nomic impact; rather, it looks only theaters in Detroit will remain ap= Whitney v California, 274 US 357, tain free access of the public to the to the effect of this ordinance upon proximately the same, free to purvey 377, 71 L Ed 1095, 47 S Ct 641 (1927) expression. See, e. g., Kingsley freedom of expression. This prompts the same message. To be sure some (Brandeis, J., concurring); Cohen v Books, Inc. v Brown, 354 US 436, essentially two inquiries: (i) Does the prospective patrons may be inconve- California, 403 US 15, 24, 29 L Ed 442, 1 L Ed 2d 1469, 77 S Ct 1325, ordinance impose any content limi- nienced by this dispersal? But other 2d 284, 91 S Ct 1780 (1971); Procu- 14 Ohio Ops 2d 471 (1957); Smith v tation on the creators of adult mov- patrons, depending upon where they nier v Martinez, 416 US 396, 408- California, 361 US 147, 150, 153-154, ies or their ability to make them live or work, may find it more conve- 409, 40 L Ed 2d 224, 94 S Ct 1800, 4 L Ed 2d 205, 80 S Ct 215, 14 Ohio available to whom they desire, and nient to view an adult movie when 71 Ohio Ops 2d 139 (1974); Klein- Ops 2d 459 (1959); Interstate Circuit (ii) does it restrict in any significant adult theaters are not concentrated dienst v Mandel, 408 US 753, 762- v Dallas, 390 US 676, 683-684, 20 L way the viewing of these movies by in a particular section of the city. 765, 33 L Ed 2d 683, 92 S Ct 2576 Ed 2d 225, 88 S Ct 1298 (1968); those who desire to see them? On (1972); Virginia Pharmacy Board v compare Marcus v Search Warrant, the record in this case, these inquir- In these circumstances, it is appro- Virginia Consumer Council, 425 US 367 US 717, 736, 6 L Ed 2d 1127, 81 ies must be answered in the nega- priate to analyze the permissibility 748, 763-765, 48 L Ed 2d 346, 96 S S Ct 1708 (1961), and A Quantity of tive. At most the impact of the ordi- of Detroit's action under the four- Ct 1817 (1976). Motion pictures, the Books v Kansas, 378 US 205, 213, 12 nance on these interests is inciden- part test of United States v O'Brien, medium of expression involved here, L Ed 2d 809, 84 S Ct 1723 (1964), tal and minimal2 Detroit has si- 391 US 367, 377, 20 L Ed 2d 672, 88 are fully within the protection of the with Heller v New York, 413 US lenced no message, has invoked no S Ct 1673 (1968). Under that test, a First 483, 491-492, 37 L Ed 2d 745, 93 S censorship, and has imposed no limi- governmental regulation is suffi- (427 US 771 Ct 2789 (1973); and cf. Bantam tation upon those who wish to view ciently justified, despite its inciden- Amendment. Books Inc. v Sullivan, 372 US 58, them. The ordinance is addressed tal impact upon First Amendment Joseph Burstyn, Inc. v Wilson, 343 70-71, 9 L Ed 2d 584, 83 S Ct 631 only to the places at which this type interests, "if it is within the consti- US 495, 501-503, 96 L Ed 1098, 72 S (1963). of tutional power of the Government; if Ct 777 (1952). In the quarter century [427 US 79) it furthers an important or substan- since Burstyn motion pictures and In this case, there is no indication expression may be presented, a tial governmental interest; if the an analogous medium, printed that the application of the Anti-Skid restriction that does not interfere governmental interest is unrelated books, have been before this Court Row Ordinance to adult theaters has with content. Nor is there any sig- to the suppression of free the effect of suppressing production on many occasions, and the person nificant overall curtailment of adult (427 US 801 _ asserting a First Amendment claim of or, to any significant degree, re- movie presentations, or the opportu- expression; often has been a theater owner or a stricting access to adult movies. Nor- nity for a message to reach an audi- and if the incidental restriction on bookseller. Our cases reveal, how- town concededly will not be able to ence. On the basis of the District . . . First Amendment freedoms is ever, that the central concern of the exhibit adult movies at its present Court's finding, ante, at 71-72, n 35, no greater than is essential to the First Amendment in this area is location, and the ordinance limits 49 L Ed 2d 327, it appears that if a furtherance of that interest." Ibid. that there be a free flow from cre- the potential [427 US 781 sufficient market exists to support The factual distinctions between a ator to audience of whatever Ines- location of the pro- sage a film or a book might convey. posed Pussy Cat. The constraints of 2. The communication involved here is not 3. The burden, it should be noted, is no Mr. Justice Douglas stated the core a kind in which the content or effectiveness of different from that imposed by more common idea succinctly: "In this Nation ev- the ordinance with respect to IOCa- the message depends in some measure upon ordinances that restrict to commercial zones ery writer actor or producer no tion may indeed create economic loss where or how it is conveyed.Cf.Cox v Louisi- of a city movie theaters generally as well as ' p for some who are engaged in this ana,379 US 536, 13 L Ed 2d 471,85 S Ct 453 other types of businesses presenting similar matter what medium of expression business. But in this respect they (1965); Brown v Louisiana, 383 US 131, 15 L traffic, parking, safety, or noise problems. he may use, should be freed from Ed 2d 637, 86 S Ct 719(1966); Police Dept. of After a half century of sustaining traditional the censor." Superior Films v De- are affected no differently from any Chicago v Mosley,408 US 92,93, 33 L Ed 2d zoning of this kind, there is no reason to partment of Education, 346 US 587, other commercial enterprise that 212,92 S Ct 2286(1972). There is no suggestion that the Nortown is, believe this Court would invalidate such d- 589, 98 L Ed 329, 74 S Ct 286, 52 suffers economic detriment as a re- or that the Pussy Cat would be, anything ordinance as violative of the First Amend- sult of land-use regulation. The cases more than a commercial purveyor. The do ment. The only difference between such an Ohio Ops 433, 67 Ohio L Abs 289 p y y (1954) (concurring opinion). In are legion that sustained zoning not profess to convey their own personal mes- ordinance and the Detroit ordinance lies in g p many against claims of Serious economic sages through the movies they show, so that the reasons for regulating the location of instances, for example with respect damage. See, e. g., Zahn v Board of the only communication involved is that con- adult theaters. The special public interest to certain criminal statutes or cen- tained in the movies themselves. Cf. United that supports this ordinance is certainly as sorship or licensing schemes, it is Public Works, 274 US 325, 71 L Ed States v O'Brien,391 US 367,376,20 L Ed 2d substantial as the interests that support the only the theater owner or the book- 1074, 47 S Ct 594 (1927). 672, 88 S Ct 1673 (1968); Spence v Washing- normal area zoning to which all movie thea- seller who can protect this interest. The inquiry for First Amendment ton,418 US 405,409-411, 41 L Ed 2d 842,94 ters, like other commercial establishments, P q Y S Ct 2727(1974). long have been subject. 330 331 U.S. SUPREME COURT REPORTS 49 L Ed 2d YOUNG v AMERICAN MINI THEATRES ; 427 US 50,49 L Ed 2d 310,96 S Ct 2440 rosecution for destruction of a Se- the character of specific areas of a that the degree of incidental en- support for their position in Erznpz- =•ctive Service registration certifi- city, is perhaps "the most essential croachment upon such expression nik v City of Jacksonville, 422 US ate, as in O'Brien, and this case are function performed by local govern- was the minimum necessary to fur- 205, 45 L Ed 2d 125, 95 S Ct 2268 abstantia), but the essential weigh- ment, for it is one of the primary ther the purpose (1975). I believe this perception is a ng and balancing of competing in- means by which we protect that [427 US 82) clouded one. The Jacksonville and erests are the same. Cf. Procunier v sometimes difficult to define concept of the ordinance. Detroit ordinances are quite dissimi- ,lartinez, 416 US, at 409-412, 40 L of quality of life." Village of Belle The evidence presented to the Com- lar, and our analysis of the infirmi- ;d 2d 224, 94 S Ct 1800, 71 Ohio Terre v Boraas, 416 US, at 13, 39 L mon Council indicated that the ur- ties of the former is inapplicable to )ps 2d 139. Ed 2d 797, 94 S Ct 1536 (Marshall, ban deterioration was threatened, the latter. In Erznoznik, an ordi- J., dissenting). not by the concentration of all movie nance purporting to prevent a nui- There is, as noted earlier, no ques- theaters with other "regulated sance, not a comprehensive zon- ion that the ordinance was within The third and fourth tests of uses," but onlyb a concentration of P O'Brien also are met on this record. y ing ordinance, prohibited the show- .he power of the Detroit Common those that elected to specialize in in of films containing y y Council to enact. See Berman v Par- It is clear both from the chronology adult movies 5 The case would pre'- g g nudity b and from the facts that Detroit has P drive-in theaters when the screens ::er, 348 US, at 32, 99 L Ed 27, 75 S ent a different situation had Detroit were visible from a public street or 't 98. Nor is there doubt that the not embarked on an effort to sup brought within the ordinance types press free expression. The ordinance place. The governmental interests 'Interests furthered by this ordinance was already in existence, and its of theaters that had not been shown advanced as justifying the ordinance re both important and substantial. purposes clearly set out, for a full to contribute to the deterioration of were three: (i) to protect citizens Without stable neighborhoods, both decade before adult establishments surrounding areas.6 from unwilling exposure to possibly essential and commercial, large were brought under it. When this offensive materials; 60 to pro- sections of a modern city quickly can occurred, it is clear-indeed it is not [427 US 83] tect children from such materials; deteriorate into an urban jungle seriously challenged-that the gov- III and (iii) to prevent the slowing of ,t•ith tragic consequences to social, ernmental interest prompting the The dissenting opinions perceive passing traffic and the likelihood ;environmental, and economic values. inclusion in the ordinance of adult While I agree with respondents that establishments was whollyunrelated no aspect of the police power enjoys its nature would make the O'Brien test snap- ing that it involves an impermissible time P P Pto any suppression of plicable.See O'Brien,391 US,at 382,20 L Ed place, and manner.restriction based on th( immunity from searching constitu- [427 US 811 2d 672, 88 S Ct 1673; Spence v Washington, content of expression. It involves nothing o tional scrutiny, it also is undeniable free expres- 418 US, at 414 n 8, 41 L Ed 2d 842,94 S Ct the kind. We have here merely a decision b, that zoning, when used to preserve Sion.' Nor is there reason to question 2727;cf. Stromberg v California, 283 US 359, the city to treat certain movie theaters differ 75 L Ed 1117, 51 S Ct 532, 73 ALR 1484 ently because they have markedly differen (1931). But the Common Council simply acted effects upon their surroundings. See n 3, su 4. Respondents attack the nature of the involved individuals desiring to express their to protect the economic integrity of large pra.Moreover,even if this were a case involy evidence upon which the Common Council own messages rather than commercial exhibi- areas of its city against the effects of a pre- ing a special governmental response to th( acted in bringing adult entertainment estab- tors of films or vendors of books. When an lishments under the ordinance, and which individual or a group of individuals is si- of certain le interaction between a concentration content of one type of movie, t is possible of certain businesses and the responses of that the result would be supported by a ling petitioners submitted to the District Court in lenced, the message itself is silenced and free people in the area. If it had been concerned of cases recognizing that the government cal support of it. That evidence consisted of re- speech is stifled. In the context of movies and with restricting the message purveyed by tailor its reaction to different types of speec) Ports and affidavits from sociologists and ur- books,the more apt analogy to Cox or Termi- adult theaters, it would have tried to close according to the degree to which its specia ban planning experts, as well as some lay- niello would be the censorship cases,in which them or restrict their number rather than and overriding interests are implicated. See y a State or a municipality attempted to sup- circumscribe their choice as to location. e.g.,Tinker v Des Moines School Dist.393 U. started in areas of other cities,and that could press copies of particular works,or the licens- 503,509-511,21 L Ed 2d 731,89 S Ct 733, 4`. be expected in Detroit, from the influx and ing cases in which that was presented.danger 5. Respondents have argued that the Com- Ohio Ops 2d 222(1969);Procunier v Martinea concentration of such establishments. Respon- g dents insist that a major part of that cycle is But a zoning ordinance that merely specifies mon Council should have restricted adult the- 416 US 396,413-414,40 L Ed 2d 224,94 S C a kind of"self-fulfilling prophecy" in which a `Where a theater may locate,and that does not aters' hours of operation or their exterior 1800, 71 Ohio Ops 2d 139 (1974); Greer business establishment neighboring on several reduce significantly the number or accessibil- advertising instead of refusing to allow their Spock,424 US 828, 842444, 47 L Ed 2d 50 of the "regulated uses" perceives that the ity of theaters presenting particular films, clustering with other "regulated uses." Most 96 S Ct 1211(1976)(Powell,J.,concurring);ci area is g y stifles no expression. of the ill effects, however, appear to result going downhill economical) and pPe CSC v Letter Carriers, 413 US 548, 37 L E moves out, with the result that a less desira- Moreover, the Common Council did not from the clustering itself rather than the 2d 796, 93 S CC 2880 (1973), It is not analc ble establishment takes its place-thus fulfill- inversely zone adult theaters in an effort to operational characteristics of individual thea- ing the prophecy made by the more reputable protect citizens against the content of adult ters. Moreover, the ordinance permits an ex- gous to Police Dept. of Chicago v Mosley,40 business. As noted earlier, supra, at 75, 49 L movies. If that had been its purpose, or the ception to its 1,000-foot restriction in appro- US 92,33 L Ed 2d 212,92 S Ct 2286(1972),i Ed 2d 329, respondents have tried to analo- effect of the amendment to the ordinance,the priate cases.See ante,at 54 n 7. which no governmental interest justified gize these types of fears to the apprehension case might be analogous to those cited by Mr. 6.In my view Mr.Justice Stewart's dissent distinction between the types of message found insufficient in previous cases to justify Justice Stewart's dissent, post,at 85,49 L Ed misconceives the issue in this case by insist- permitted in the public forum there involved stifling free expression.But cases like Cox and 2d 334. Moreover, an intent or purpose to Terminiello, upon which respondents rely, restrict the communication itself because of 332 33 U.S. SUPREME COURT REPORTS 49 L Ed 2d YOUNG v AMERICAN M1141 'rrir.A i nr.o 427 US 50,49 L Ed 2d 310,96 S Ct 2440 esulting accidents. We found the sion. The Detroit zoning ordinance, expression or other speech that is mentary that a prime function 'of -�sonville ordinance on its face in contrast, affects expression only entitled to less than the full protec- the First Amendment is to guard .er overbroad or underinclusive incidentally and in furtherance of tion of the First Amendment' The against just such interference.' By t respect to each of these as- governmental interests wholly unre- kind of expression at issue here is no refusing to invalidate Detroit's ordi- ed purposes. As to the first pur- lated to the regulation of expression. doubt objectionable to some, but that nance the Court rides roughshod the ordinance was overbroad At least as applied to respondents, it fact does not diminish its protected over cardinal principles of First .fuse it proscribed the showing of does not offend the First Amend- status any more than did the partic- Amendment nudity, however innocent or ed- ment. Although courts must be alert ular content of the "offensive" ex- [427 US 861 .tional. Moreover, potential view- to the possibility of direct rather pression in Erznoznik v City of Jack- law, which require that who deemed particular nudity to than incidental effect of zoning on sonville, 422 US 205,45 L Ed 2d 125, time, place, and manner regulations offensive were not captives; they expression, and especially to the pos- 95 S Ct 2268 (display of nudity on a that affect protected expression be 1 only to look elsewhere. Id., at sibility of using the power to zone as drive-in movie screen); Lewis v City content neutral except in the limited i-212, 45 L Ed 2d 125, 95 S Ct a pretext for suppressing expression, of New Orleans, 415 US 130, 39 L context of a captive or juvenile audi- i8; see Cohen v California, 403 it is clear that this is not such a Ed 2d 214, 94 S Ct 970 (utterance of ence.5 In place of these principles at 21, 29 L Ed 2d 284, 91 S Ct case. vulgar epithet); Hess v Indiana, 414 the Court invokes a concept wholly 10. As to minors the Jacksonville Mr. Justice Stewart, with whom US 105, 38 L Ed 2d 303, 94 S Ct 326 alien to the First Amendment. Since linance was overbroad because it Mr. Justice Brennan, Mr. Justice (utterance of vulgar remark); Papish "few of us would march our sons sight prohibit newsreel scenes of Marshall, and Mr. Justice Black- v University of Missouri Curators, and daughters off to war to preserve opening of an art exhibit as well mun join, dissenting. 410 US 667, 35 L Ed 2d 618, 93 S Ct the citizen's right to see 'Specified shots of bathers on a beach. 422 1197 (indecent remarks in campus Sexual Activities' exhibited in the 3, at 213, 45 L Ed 2d 125, 95 S Ct The Court today holds that the newspaper); Cohen v California, 403 theaters of our choice," ante, at 70, 68. Finally, the ordinance was not First and Fourteenth Amendments US 15, 29 L Ed 2d 284, 91 S Ct 1780 49 L Ed 2d 326, the Court implies tionally tailored to support its as- do not prevent the city of Detroit (wearing of clothing inscribed with a that these films are not entitled to :-ted purpose as a traffic regula- from using a system of prior re- vulgar remark); Brandenburg v the full protection of the Constitu- in. By proscribing even the most straints and criminal sanctions to Ohio, 395 US 444, 23 L Ed 2d 430, eting and innocent glimpses of nu- enforce content-based restrictions on tion. This stands "Voltaire's imr 89 S Ct 1827, 48 Ohio Ops 2d 320 mortal comment, )bid., on its head'. iy," it was .strikingly underinclu- the geographic location of motion (utterance of racial slurs); or Kings- For if the guarantees of the e-omitting"a wide variety picture theaters that exhibit nonob [427 US 841 scene but sexually oriented films. I ley Pictures Corp. v Regents, 360 US First Amendment were reserved for of other dissent from this drastic departure 684, 3 L Ed 2d 1512, 79 S Ct 1362 expression that more than a- enes in the customary screen diet from established principles of First (alluring portrayal of adultery as "few of us" would take up arms to . [that] would be [no]less distract- Amendment law. proper behavior). defend, then the right of free .g to the passing motorist." Id., at 14-215, 45 L Ed 2d 125, 95 S Ct This case does not involve a sim- What this case does involve is the expression would be defined and cir 268. ple zoning ordinance,' or a content- constitutional permissibility of selec- cumscribed by current popular neutral time, place, and manner re- tive interference with protected opinion. The guarantees of the Bill In sum, the ordinance in Erznoz- striction 2 speech whose content is thought to of Rights were designed to protect ik was a misconceived attempt di- [427 US 851 produce distasteful effects. It is ele- against precisely such majoritarian ectly to regulate content of expres- or a regulation of obscene 3.The regulatory scheme contains no provi- not involve state regulation narrowly aimed 1.Contrast Village of Belle Terre v Boraas, those "used for presenting material distin• sion for a judicial determination of obscenity. at preventing objectionable communication 16 US 1, 39 L Ed 2d 797, 94 S Ct 1536, guished or characterized by an emphasis on As the Court of Appeals correctly held, the from being thrust upon an unwilling audi- .hich upheld a zoning ordinance that re- matter depicting, describing or relating to material displayed must therefore be pre- ence. See Erznoznik v City of Jacksonville, .ricted no substantive right guaranteed by 'Specified Sexual Activities'or'Specified Ana- sumed to be fully protected by the First supra, at 209, 45 L Ed 2d 125, 95 S Ct 2268. ie Constitution. tomical Areas' The ordinances thus Amendment.518 F2d,at 1014, 1019. Contrast Lehman v City of Shaker Heights, "'sli[p)from the neutrality of time,place,and 418 US 298, 41 L Ed 2d 770, 94 S Ct 2714; 2. Here, as in Police Dept. of Chicago v circumstance into a concern about content.' 4. See, e.g., Terminiello v Chicago, 337 US Rowan v Post Office Dept. 397 US 728, 25 L losley, 408 US 92, 33 L Ed 2d 212, 92 S Ct This is never permitted." Police Dept, of Chi- 1,4-5,93 L Ed 1131,69 S Ct 894. Ed 2d 736, 90 S Ct 1484. Nor is the Detroit :286, and Erznoznik v City of Jacksonville, cago v Mosley, supra, at 99, 33 L Ed 2d 212, ordinance narrowly aimed at protecting chil- :22 US 205,45 L Ed 2d 125,95 S Ct 2268,the 92 S Ct 2286 (citation omitted). See, e.g., 5. See, e.g., Hudgens v NLRB, supra, 47 L dren from exposure to sexually oriented dis- ;tate seeks to impose a selective restraint on Hudgens v NLRB, 424 US 507, 520, 47 L Ed Ed 2d 196, 96 S Ct 1029; Erznoznik v City of plays that would not be judged obscene by speech with a particular content. It is not all 2d 196, 96 S Ct 1029; Grayned v City of Jacksonville, supra, 45 L Ed 2d 125, 95 S Ct adult standards. Contrast Ginsberg v New novie theaters which must comply with Ordi• Rockford,408 US 104, 115,33 L Ed 2d 222,92 2268;Police Dept.of Chicago v Mosley,supra, York, 390 US 629, 20 L Ed 2d 195, 88 S Ct lances No. 742-G and No. 743-G, but only S Ct 2294. 33 L Ed 2d 212, 92 S ct 2286. This case does 1274,44 Ohio Ops 2d 339. 334 335 U.S. SUPREME COURT REPORTS 49 L Ed 2d YOUNG v AMERICAN MINI THEATRES 427 US 50,49 L Ed 2d 310,96 S Ct 2440 citations on individual liberty.e sion as an aberration. The Court is nicipal Code §330.313 with Detroit whether the theater is "used for [427 US 87] undoubtedly sympathetic, as am I, to Ordinance No. 742-G, §32.0007. In presenting" films that are "distil- the well-intentioned efforts of De- short, Erznoznik is almost on "all guished or characterized by an em- The fact that the "offensive" troit to "clean up" its streets and fours" with this case. phasis on" certain specified activi- eech here may not address "impor- ties, including course, or -it" topics—"ideas ��of social and rows.'ntButeitpisolin proliferation instances skid The Court must never forget that specified anatomical areas.' It will be litical significance, 1n the Courts the consequences of rigorously en- rminology, ante, at 61, 49 L Ed 2d where protected speech grates most forcing the guarantees of the First simple enough, as the operator :0—does not, mean that it is less unpleasantly against the sensibilities Amendment are frequently unpleas- screens films, to tell when one of .,rthy of constitutional protection. that judicial vigilance must be at its ant. Much speech that seems to be of these areas or activities is being de- Vholly neutral futilities . . . come height. little or no value will enter the mar- pitted, but if the depiction repre- ider the protection of free speech ketplace of ideas, threatening the sents only a part of the films' subject fully as do Keats' poems or Heretofore, the Court has not quality of our social discourse and, matter, I am at a loss to know how onne's sermons." Winters v New shied from its responsibility to pro- more generally, the serenity of our he will tell whether they are "distin- ork, 333 US 507, 528, 92 L Ed 840, tect "offensive" speech from govern- lives. But that is the price to be paid guished or characterized by an em- 3 S Ct 665 (Frankfurter, J., dissent- mental interference. Just last Term for constitutional freedom. phasis" on those areas and activities. ig); accord, Cohen v California, su- in Erznoznik v City of Jacksonville, Mr. Justice Blackmun, with The ordinance gives him no guid- ra, at 25, 29 L Ed 2d 284, 91 S Ct supra, the Court held that a city whom Ju Justice Brennan ante. Neither does it instruct him on 180. Moreover, in the absence of a could not, consistently with the First , with how to tell whether, assuming the idicial determination of obscenity, and Fourteenth Amendments, make Justice Stewart, and Mr. Justice films in question are thus "distin- is by no means clear that the it a public nuisance for a drive-in Marshall join, dissenting, guished or characterized," his thea- aeech is not "important even on movie theater to show films contain- I join Mr. Justice Stewart's dis- ter is being "used for presenting" `.ie Court's terms. "[S]ex and obscen- ing nudity if the screen were visible sent, and write separately to identify such films. That phrase could mean .v are not synonymous. . . . The [427 US 88) an independent ground on which, for ever used, often used, or predomi- ortrayal of sex, e.g., in art, litera- from a public street or place. The me, the challenged ordinance is un- nantly used, to name a few possibili- are and scientific works, is not itself factual parallels between that case constitutional. That ground is vague- ties. aBicient reason to deny material and this one are striking. There, as ness. he constitutional protection of free- here, the ordinance did not forbid Let us assume the exhibitor con - lie of speech and press. Sex, a altogether the "distasteful" expres- I cludes that the film series-will ren-- ,real and mysterious motive force in der his showhouse an "adult thea- Y Sion but merely required an altera- We should put ourselves for a mo- ter. He still must determine whether iuman life, has indisputably been a tion in the physical setting of the ment in the shoes of the motion the operation of the theater is pro- .ubject of absorbing interest to man- forum. There, as here, the city's picture exhibitor. Let us suppose -ind through the ages; it is one of asserted interest was in that, having previously offered only hibited by virtue of there being two he vital problems of human interest principal g p Y Y other 'regulated uses within 1,000 p minimizing the "undesirable" effects a more innocuous fare, he feet. His task of determining tnd public concern." Roth v United of speech having articular con- [427 US 891 P g a p whether his own theater is "adult" States, 354 US 476, 487, 1 L Ed 2d tent. And, most significantly, the decides to is suddenly multiplied by however 1498, 77 S Ct 1304, 14 Ohio Ops 2d vary it by exhibiting on certain days particular content of the restricted many neighbors he may have that 331 (footnotes omitted). See also films from a series which occasion speech at issue in Erznoznik pre- arguably are within that same class. Kingsley Pictures Corp. v Regents, ally deals explicitly with sex. The supra, at 688-689, 3 L Ed 2d 1512, tiion n e [427 US so) embodied in §1 of Detroit parallels the content restric-s defi- exhibitor must determine whether He must, in other l 9 S Ct 1362. this places his theater into the nition of Specified Anatomical "adult" class prescribed by the chal- words, know and I can only interpret today's deci- Areas." Compare Jacksonville Mu- lenged ordinance. If the theater is evaluate not only his own films, but within that class, it must be li- those of any competitor within 1,000 6.See,e.g.,Terminiello v Chicago,supra,at the exercise of his liberty of expression in tensed, and it may be entirely pro- feet. And neighboring theaters are 1-5, 93 L Ed 1131, 69 S Ct 894. The Court appropriate places abridged on the plea that not his only worry, since the list of stresses that Detroit's content-based regula- it may be exercised in some other place."'Id., hibited, depending on its location. regulated uses also includes adult„ tory displaystem does not preclude of sexually oriented films. But,as the Schneider ether the at 43 v SStt.ate, 308'US 147,163, quoting L "Adult" status vel non depends on bookstores, "Group 'D' Cabaret[s]," Court noted in a similar context in Southeast- 155,60 S Ct 146. See also Interstate Circuit v ern Promotions, Ltd. v Conrad, 420 US 546, Dallas, 390 US 676, 20 L Ed 2d 225, 88 S Ct 1. See ante, at 52-55, and nn 3-7, 49 L Ed nance that are not set out in the Court's -13 L Ed 2d 448,95 S Ct 1239,this is constitu- 1298; Bantam Books, Inc. v Sullivan, 372 US 2d 316-317.I reproduce,or cite specifically to, opinion. tiona!ly irrelevant, for "'one is not to have 58,9 L Ed 2d 584,83 S Ct 631. only those sections of the challenged ordi- 336 337 U.S. SUPREME COURT REPORTS 49 L Ed 2d YOUNG v AMERICAN MINI THEATRES 427 US 50,49 L Ed 2d 310,96 S Ct 2440 lers of alcoholic beverages for con- der the circumstances, the exhibitor of either the patrons, employees, identification only." We found it in- :nption on the premises, hotels, chose to forgo showing the film se- or persons residing or doing busi- tolerably unclear what "Groups and .)tels, pawnshops, pool halls, public ries altogether. Such deterrence of ness nearby." Code of Detroit §5- Organizations" were encompassed, ?ging houses, "secondhand stores," protected First Amendment activity 2-3. what was meant by a "cause," and :)eshine parlors, and "taxi dance in the "gray area" of a statute's what was required by way of"identi- lls." The exhibitor must master possible [427 US s2l If the operation of an "adult" the- fication." I fail to see how a statu- these definitions. Some he will [427 US 91) ater would violate the 1,000-foot tory prohibition as difficult to under- A very clear, of course; others less coverage is, of course, one of rule, the exhibitor must obtain the stand and apply as the 1,000-foot A neighboring bookstore is the vices of vagueness. A second is approval not only of the mayor but rule for "adult" theaters can survive dult," for example, if a "substan- the tendency of vague statutory of the City Planning Commission, if the ordinance in Hynes could not. it or significant portion of its stock standards to grant excessive and ef- which is empowered to waive the trade" is "distinguished or charac- fectively unreviewable discretion to rule. It may grant a waiver if it finds The vagueness in the licensing rized" in the same way as the the officials who enforce those stan- that the operation of an "adult" the- and waiver standards of this ordi- ms shown in an "adult" theater. dards. That vice is also present here. ater, in addition to satisfying several nance is more pernicious still. The It is present because the vague Stan- more definite criteria, "will not be mayor's power to deny a license be- The exhibitor's compounded task dards already described are left to contraryto the cause of "flagrant disregard" for the public interest or applying the statutory definitions the interpretation and application of injurious to nearby properties," or "safety or welfare" of others is ap- himself and his neighbors, fur- law enforcement authorities.3 It is violative of"the spirit and intent" of parently exercisable only over those .ermore, is an ongoing one. At any introduced even more dangerously the ordinance. who have committed some .oment he could become a violator by the indefinite standards under [427 US 933 the ordinance because some which city officials are empowered to Peed into a ' regu- grant or deny licenses for "adult" in- ai hbor has slipped II fraction within the previous two g .ted use�� years a but I do not see why even classification. He must theaters, and also waivers of the Just the other day, in Hynes v those persons should be subject to tow, for example, if the adjacent 1,000-foot rule.' Mayor of Oradell, 425 US 610, 48 L those persons licensing Ael has opened a bar or shoeshine Ed 2d 243, 96 S Ct 1755 (1976), we discretion of parlor" on the premises, though he All "adult" theaters must be li reaffirmed the principle that in the precisely the kind that this Court so .ay still be uncertain whether -the censed, and licenses are dispensed by First. Amendment area many times has condemned. See otel as a whole constitutes more the mayor. The ordinance does not . "'government may regulate Shuttlesworth v Birmingham,- 394 ian one "regulated use." He must specify the criteria for licensing, ex- only with narrow specificity,' " US 147, 22 L Ed 2d 162, 89 S Ct 935 Iso know the moment when the cept in one respect. The mayor is NAACP v Button, 371 US 415, 433, (1969); Staub v City of Baxley, 355 :ock in trade of neighboring book- empowered to refuse an "adult" the- 9 L Ed 2d 405, 83 S Ct 328 (1963), US 313, 2 L Ed 2d 302, 78 S Ct 277 :ores and theaters comes to be of ater license, or revoke it at any avoiding the use of language that is (1958); Kunz v New York, 340 US ach a character, and predominance, time, so vague that"men of common intel- 290, 95 L Ed 280, 71 S Ct 312 (1951); s to render them "adult." Lest he ligence must necessarily guess at its Niemotko v Maryland, 340 US 268, ?t down his guard, he should re- "upon proof submitted to him of meaning." Connally v General 95 L Ed 267, 71 S Ct 325 (1951); Saia nember that if he miscalculates on the violation . . . , within the pre- Constr. Co. 269 US 385, 391, 70 L Ed v New York, 334 US 558, 92 L Ed ny of these issues, he may pay a ceding two years, of any criminal 322, 46 S Ct 126 (1926). In Hynes we 1574, 68 S Ct 1148 (1948); Schneider .ne or go to jail.' statute . . . or [zoning] ordinance invalidated for its vagueness an ordi- v State, 308 US 147, 163-164, 84 L which .evidences a flagrant nance that required "Civic Groups Ed 155, 60 S Ct 146 (1939); Hague v It would not be surprising if, un- disregard for the safety or welfare and Organizations," and also anyone CIO, 307 US 496, 83 L Ed 1423, 59 S 2. seeking to "call from house to house Ct 954 (1939); Lovell v Griffin, 303 69.000. enforcement authorities.Official Zoning Ordinance of Detroit which use to eliminate is left entirely to the . for a recognized charitable . . . US 444, 82 L Ed 949, 58 S Ct 666 or . . . political campaign or cause," (1938). For the exhibitor who must 3. A special opportunity for arbitrary or 4.These two features the ordinance con- to register with the local police "for obtain a waiver of the 1,000-foot iscriminatory application of the ordinance is stitute prior restraints and are challengeable on that ground alone. Cf. Southeastern Pro- pparently supplied by the operation of the motions, Ltd. v Conrad, 420 US 546, 43 L Ed 5. The ordinance empowers the mayor to gal infractions must be otherwise adjudicated ,000-foot rule. Presumbably, only one of 2d 448,95 S Ct 1239 Q975).Since,for me,the act"upon proof submitted to him of[a)viola- or not,the mayor clearly retains the power to hree "regulated uses" within a 1,000-foot most glaring defect in the operation of these tion." It is possible that he may entertain revoke a license for "flagrant disregard," area must be eliminated in order for the restraints is the vagueness of the standards evidence not only of convictions but also of should infractions occur at any time after the emaining two to become legal. For all that governing their applications, however, only violations themselves,even though these have license's issuance. .ppears from the ordinance, the choice of the vagueness point is pursued here. not been otherwise adjudicated. Whether le- 338 339 U.S. SUPREME COURT REPORTS 49 L Ed 2d YOUNG v AMERICAN MINI THEATRES 427 US 50,49 L Ed 2d 310,96 S Ct 2440 le, the City Planning Commission sonable and definite standards." than in the free dissemination of As to the third reason, that . :ewise functions effectively as a Niemotko v Maryland, 340 US, at ideas of social and political signifi- "adult" material is simply entitled nsor, constrained only by its per- 271, 95 L Ed 267, 71 S Ct 325. This cance." Ante, at 60, 61, 49 L Ed 2d to less protection, it certainly ex ption of the "public interest" and may be a permissible way to control 320. plains the lapse in applying settled e "spirit and intent" of the ordi- pawnshops, pool halls, and the other vagueness principles, as indeed it .nce. This Court repeatedly has "regulated uses" for which the ordi As to the first reason, I disagree explains this whole case. In joining validated such vague standards for nance was originally designed. It is on the facts, as is clear from the Mr. Justice Stewart I have joined his •ior approval of film exhibitions. not an acceptable way, in the light initial section of this opinion.7 As to forthright rejection of the notion the second, no easy "narrowing con- that First Amendment protection is �e Interstate Circuit v Dallas, 390 of the First Amendment's presence,S 676, 683, 20 L Ed 2d 225, 88 S Ct to decide who will be permitted to struction„ is proposed, and I doubt diminished for "erotic materials" 298 (1968), and cases cited 6 Indeed, exhibit what films in what places. that one exists, particularly since that only a "few of us" see the need standard much like the waiver (due to the operation of the 1,000- to protect. andard foot rule) not only the "used for (427 US 941 III presenting" and "characterized by se should not characterization of the swayed in this in this case was the one an emphasis" language relating to case by the charac )und wanting in Gelling v Texas, The Court today does not really "adult" theaters, and the "flagrant challenged ordinance as merely a 43 US 960, 96 L Ed 1359, 72 S Ct question these settled principles, or disregard" and "public interest" lan- zoning' regulation, or by the )02 (1952) (censor could ban films raise any doubt that if they were guage of the licensing and waiver "adult" nature of the affected mate- A such character as to be prejudi- applied in this case, the challenged provisions, but also the definitions of rial. By whatever name, this ordi- ial to the best interests of the peo- ordinance would not survive. The other regulated uses must all be nance prohibits the showing of cer- le of said City"). Court reasons, instead, that these reduced to specificity. See also tain films in certain places, imposing principles need not be applied in this Hynes v Mayor of Oradell, 425 US, criminal sanctions for violation of It is true that the mayor and the case because the plaintiffs them- at 622, 48 L Ed 2d 243, 96 S Ct 1755 the ban. And however distasteful we 'tanning Commission review the ap- selves are clearly within the ordi- ("we are without power to remedy may suspect the films to be, we can- lications of theaters, rather than nance's proscriptions, and thus not the [vagueness] defects by giving the not approve their suppression witq- Idividual films. It might also be affected b is vagueness. Our usual out any judicial finding that they g Y i g ordinance constitutionally precise rgued that at least if they adhere practice, as the Court notes, is to content"). are obscene under this Court,s care- o the "spirit and intent" of the entertain facial challenges based on fully delineated and considered stan- -rdinance, their principal concern vagueness and overbreadth by any- [427 US 96) dards. — ill be with the blighting of the one subject to a statute's proscrip- :ityscape, rather than that of the tion. The reasons given for departing 7. In Ennoznik v City of Jacksonville, 422 deterrent effect in the "unwelcome choice"to rinds of their constituents. But Wei [427 US 95) US 205, 45 L Ed 2d 125,95 S Ct 2268(1975), which the ordinance put exhibitors: "either the case on which the Court relies for the (to]restrict their movie offerings or construct her of these aspects of the case from this practice are (1) that the proposition that only statutes having a adequate protective fencing which may be :ilters its basic and dispositive facts: ordinance will have no "significant "significant deterrent effect" may be facially extremely expensive or even physically im- )ersons seeking to exhibit "adult," deterrent effect on the exhibition of challenged,such an effect in fact was found to practicable." Id.,at 217,45 L Ed 2d 125,95 S exist.The ordinance there at issue prohibited Ct 2268. In the present case the second horn jut protected, films must secure, in films protected by the First Amend- drive-in theaters from exhibiting films in of the dilemma is even sharper: the construc- _nany cases, the prior approval of ment , (2) that the ordinance is eas- which nude parts of the human body would tion (or acquisition) of an entirely new thea- =he mayor and City Planning Com- ily susceptible of "a narrowing con- be "visible from any public street or public ter mission; the latter inevitably will struction"; and (3) that "there is place"We perceived a"real and substantial" make their decisions by reference to surely a less vital interest in the :he content of the proposed exhibi- uninhibited exhibition of material tions; they are not constrained in that is on the borderline between 3oing so by "narrowly drawn, rea- pornography and artistic expression 6. Interstate Circuit disposes of any argu- from the film exhibitions. It thus threatened :Went that excessively vague standards may the exhibitor with a loss of only part of his be permitted here because the film exhibitions audience. The effect of the present ordinance are not banned entirely, but merely prohib• is more severe,since if the exhibitor has only ited in a particular place. The ordinance in- one theater, he is completely foreclosed. See validated in Interstate Circuit required exhib- also Southeastern Promotions, Ltd. v Conrad, itors to submit films for official determination 420 US, at 556 n 8,43 L Ed 2d 448,95 S Ct whether persons under 16 should be excluded 1239. 340 341 U.S. SUPREME COURT REPORTS 89 L Ed 2d which it opposes-8 Presumably the Commission had taken over com- plurality does not doubt the consti- pany buildings and vehicles for pro- tutionality of the SEC's requirement paganda purposes, or even engaged [475 US 401 in viewpoint discrimination among under the First Amendment, and yet speakers desirous of sending mes- -although the analogy is far from sages via the billing envelope, I perfect—it performs the same func- would be concerned. But nothing in tion as the Commission's rule by this case presents problems even re- making accessible the relevant audi- motely resembling or portending the [475 US 411 ence, whether it be shareholders in- ones just mentioned. Although the CITY OF RENTON,et al., Appellants vesting d by the utility,corporation or to con- plurality's holding may wisely fore- umers serve v viduals or groups with demonstrable stall serious constitutional problems that are likely to arise in the future, PLAYTIME THEATRES, INC.,et al. interests in reaching that audience I am not convinced that the order for certain limited and approved purpose under review today has crossed the 475 US 41, 89 L Ed 2d 29, 106 S Ct 925, reh den 475 US 1132, 90 L Ed 2d threshold of unconstitutionality. Ac- 1 205, 106 S Ct 1663 If the California Public Utilities cordingly, I respectfully dissent. i [No. 84-13601 8. 17 CFR §240.14a-8 (1985). This regula- on the basis of the commercial character of tion cannot be justified on the basis of the the communication, that justification is not 1 Argued November 12, 1985. Decided February 25, 1986. commercial character of the communication, irrelevant in this case.The messages that the { because the Rule can and has been used to utility disseminates in its newsletter are un- Decision Zoning ordinance prohibiting adult movie theaters from locating propagate purely political proposals. See, e.g., questionably intended to advance the corpora- Medical Committee for Human Rights v SEC, tion's commercial interests, and its objections within 1,000 feet of residential property, church, park, or school held not 139 US App DC 226, 229, 432 F2d 659, 662 to the public interest groups messages are to violate First Amendment. (1970) (shareholder proposal to stop sale of based on their potentially adverse impact on napalm in part because of use in Vietnam), the utility's ability to obtain rate increases. I SUMMARY vacated as moot,401 US 973, 28 L Ed 2d 322, These commercial factors do not justify an 91 S Ct 1191 (1971). See generally Weiss, abridgment of the utility's constitutionally 1 Two theater owners who intended to exhibit adult motion pictures in Proxy Voting on Social Issues: ll Growth protected right to communicate in its newslet- their theaters brought suit in the United States District Court for the Industry, Bus. and Soc'y Rev 16 (Autumn ter, but they do provide a legitimate and an adequate justification for the Commission''ss Western District of Washington, seeking declaratory and injunctive relief 1974). action in giving TURN access to the same against a city zoning ordinance which prohibited adult motion picture Even if the SEC Rule were justified largely audience that receives the utility's newsletter. theaters from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. Rejecting the theater owners' claims that the ordinance violated the First and Fourteenth Amend- ments, the District Court entered summary judgment in favor of the city. EDITOR'S NOTE The United States Court of Appeals for the Ninth Circuit reversed and An annotation on "Governmental regulation of public utility as violating utility's remanded the case, holding (1) that the ordinance constituted a substantial First Amendment right to free speech or press,"appears p 930,infra. restriction on speech, (2) that the city had failed to make a sufficient showing of a substantial governmental interest in support of the ordinance, and (3) that the city's asserted interests had not been shown to be unrelated to the suppression of speech(748 F2d 527). On certiorari, the United States Supreme Court reversed. In an opinion by REHNQUIST, J., joined by BURGER, Ch. J., and WHITE, POWELL, STEVENS, and O'CONNOR, JJ., the court, concluding that the ordinance was not unconstitutional, held that the ordinance (1) was a "content-neutral" speech regulation, (2) was designed to serve a substantial governmental interest, and (3) allowed for reasonable alternative avenues of communication; that the city was entitled to rely on the experience of other cities in enacting a zoning ordinance for adult motion picture theaters; that there was no constitutional defect in the method chosen by the city to further its substan- Briefs of Counsel, p 935, infra. 28 29 U.S. SUPREME COURT REPORTS 89 L Ed 2d RENTON v PLAYTIME THEATRES, INC. 475 US 41,89 L Ed 2d 29,106 S Ct 925 tial interests; that the ordinance was not unconstitutionally underinclusive iting adult motion picture theaters Court will not strike down an other- for failing to regulate businesses other than adult motion picture theaters; from locating within 1,000 feet of wise constitutional statute on the and that the ordinance represented a valid governmental response to the any residential zone, single- or mul- basis of an alleged illicit legislative Serious problems created by adult motion picture theaters. tiple-family dwelling, church, park, motive. or school, does not violate the First BRENNAN, J., joined by MARSHALL, J., dissented on the grounds that Amendment. (Brennan and Mar- Constitutional Law §936 — free because the ordinance imposed special restrictions on certain kinds of shall, JJ., dissented from this hold- speech — adult theater — or- speech on the basis of content, the ordinance was not "content-neutral," and ing•) dinance restricting location :hat even if the ordinance could fairly be characterized as "content neu- 5. A city zoning ordinance prohib- Constitutional Law §934 — free tral," the city failed to make a sufficient showing of a substantial govern- speech — "content-neutral" iting adult motion picture theaters mental interest in support of the ordinance, and the ordinance did not regulation — time, place, and from locating within 1,000 feet of provide for reasonable alternative avenues of communication. manner of expression any residential zone, single- or mul- HEADNOTES 2a-2d. For purposes of the First tiple-family dwelling, church, park, Amendment, a city zoning ordinance or school, does not contravene the Classified to U.S.Supreme Court Digest,Lawyers'Edition prohibiting adult motion picture the- fundamental principle which under- Constitutional Law §936 — free dinance restricting location aters from locating within 1,000 feet lies judicial concern about "content- speech — adult theater — or- 1. A city zoning ordinance prohib- I of any residential zone, single- or based" speech regulations: that gov- multiple-family dwelling, church, ernment may not grant the use of a park, or school, is a form of "con- forum to people whose views it finds TOTAL CLIENT-SERVICE LIBRARY®REFERENCES tent-neutral" regulation of time, acceptable, but deny use to those s place, and manner of expression, wishing to express less favored or j 16 Am Jur 2d, Constitutional Law §521; 82 Am Jur 2d, where (1) the ordinance is aimed not more controversial views. Zoning and Planning §§ 11, 12, 14, 122t_ at the content of the films shown at 16 Am Jur Trials 99, Relief From Zoning Ordinance adult motion picture theaters, but Constitutional Law §936 — free USCS, Constitution, 1st and 14th Amendments F rather at the secondary effects of speech — adult theater — or- US L Ed Digest, Constitutional Law §§404, 934, 936; Munici l such theaters on the surrounding dinance restricting location community, (2) the city's pursuit of pal Corporations §37.7 6. A city zoning ordinance its zoning interests is unrelated prohib- Index to Annotations, Freedom of Speech and Press; Theaters t iting adult motion picture theaters the suppression of free expressi to on, and Motion Pictures; Zoning and (3) the ordinance is justified from locating within 1,000 feet of VERALEX^': Cases and annotations referred to herein can be without reference to the content of any residential zone, single- or mul- further researched through the VERALEX electronic re- regulated speech. (Brennan and tiple-family dwelling, church, park, trieval system's two services, Auto-Cites and SHOWME*-. ( Marshall, JJ., dissented from this or school, is designed to serve a sub- Use Auto-Cite to check citations for form, parallel refer- € holding.) stantial governmental interest, so as ences, prior and later history, and annotation references. to satisfy First Amendment require- Constitutional Law §934 — free ments, a city's interest in attempt- Use SHOWME to display the full text of cases and annota- speech — "content-neutral" ing to preserve the quality of urban tions. regulation — time, place, and life being one which must be ac- manner of expression corded high respect. (Brennan and ANNOTATION REFERENCES 3. "Content-neutral" regulations of Marshall, JJ., dissented from this the time, place, and manner of ex- holding.) Supreme Court's application of vagueness doctrine to noncriminal pression are acceptable, under the g statutes or ordinances. 40 L Ed 2d 823. First Amendment, so long as they The Supreme Court and the right of free speech and press. 93 L Ed are designed to serve a substantial Constitutional Law §936 — free 1151,2 L Ed 2d 1706, 11 L Ed 2d 1116, 16 L Ed 2d 1053,21 L Ed 2d 976. speech — adult theater — or- governmental interest and do not dinance restricting location Validity of "war zone" ordinances restricting location of sex-oriented unreasonably limit alternative ave g businesses. 1 ALR4th 1297. nues of communication. 7a, 7b. A city zoning ordinance prohibiting adult motion picture the- Courts § 102 — inquiry into legis- aters from locating within 1,000 feet lative motive of any residential zone, single- or 4. The United States Supreme multiple-family dwelling, church, 30 31 U.S. SUPREME COURT REPORTS 89 L Ed 2d RENTON v PLAYTIME THEATRES, INC. 475 US 41,89 L Ed 2d 29,106 S Ct 925 park, or school, allows for reason- dent of that already generated by contemplating moving into, the city, Constitutional Law §404 — equal able alternative avenues for commu- other cities, so long as whatever evi- and where there is no basis for as- protection—theaters nication, so as to satisfy First dence the city relies upon is reason- 1 suming that the city will not, in the 12a, 12b. The rights, under the Amendment requirements, where (1) ably believed to be relevant to the future, amend its ordinance to in- equal protection clause of the Four- :he ordinance leaves some 520 acres, problem which the city addresses; clude other kinds of adult busi- teenth Amendment, of theater own- or more than 5 percent of the entire and another city's choice of a differ- nesses, which have been shown to ers intending to exhibit adult motion land area of the city, open to use as ent method of adult theater zoning produce the same kinds of secondary pictures in their theaters are not adult theater sites, and (2) such land to combat the secondary effects of effects as adult theaters; that the violated by a city zoning ordinance consists of ample, accessible real es- adult theaters does not call into city chose first to address the poten- prohibiting adult motion picture the- tate, including acreage in all stages question either the other city's iden- tial problems created by one particu- aters from locating within 1,000 feet of development from raw land to tification of those secondary effects lar kind of adult business in no way of any residential zone, single- or developed, industrial, warehouse, or the relevance of the other city's suggests that the city has singled out multiple-family dwelling, church, office, and shopping space which is experience. adult theaters for discriminatory park, or school. criss-crossed by freeways, highways, treatment. and roads; that theater owners who Constitutional Law §936 — free Municipal Corporations §37.7 — speech — adult theater — or- Constitutional Law §936 — free intend to exhibit adult motion pic p validity of ordinance — tures in their theaters must fend for dinance restricting location ; speech r adult theater io or- vagueness 9. There is no constitutional de- t dinance restricting location 13a, 13b. A city zoning ordinance themselves in the real estate mar- Y g ket, on an equal footing with other fect, under the First Amendment, in 11. A city zoning ordinance pro- prohibiting adult motion picture the- prospective g the methods chosen b a city to hibiting adult motion picture the- prospective purchasers and lessees, Y Y k, � aters from locating within 1,000 feet aters from locating within 1,000 feet does not give rise to a First Amend further its substantial interests of any residential zone, single- or of any residential zone, single- or where the city enacts a zoning ordi- ; multiple-family dwelling,ment violation; the First Amend- nance prohibiting adult motion is I multiple-family dwelling, church, P Y g, church, ment does not compel the govern P g P park, or school, represents a valid Park, or school, is not unconstitu- ment to insure that adult theaters, 1,00ture theaters from locating within tionall vague, where (1) the ordi- 1,000 feet of any residential zone, governmental response to the Seri- nance applies es to buildings "used" for or any other kinds of speech-related single- or multiple family dwelling, ous problems created by adult the- pp g businesses, will be able to obtain aters, and satisfies the dictates of Presenting sexually explicit films, (2) — sites at bargain prices; and the First church, park, or school, and where the First Amendment, where the the term "used" describes a continu- the ordinance is narrowly tailored to city has not used the power to zone ing course of conduct of exhibiting Amendment requires only that the affect only that category of theaters city refrain from effectively denying shown to produce unwanted second as a pretext for suppressing expres- sexually explicit films in a manner a person a reasonable opportunity to ary effects; cities may choose to reg- Sion, but rather has sought to make which appeals to a prurient interest, open and operate an adult theater ulate adult theaters by dispersing some areas available for adult the- and (3) even if there may be some within the city. (Brennan and Mar- them or by effectively concentrating aters and their patrons, while at the uncertainty about the effect of the shall, JJ., dissented from this hold- them. same time preserving the quality of ordinance on other persons, it is ing.) life in the community at large by unquestionably applicable to theater Constitutional Law §936 — free preventing those theaters from locat- owners who intend to exhibit adult Constitutional Law §936 — free speech — adult theater — or- ing in other areas. motion pictures in their theaters. speech — adult theater — or- dinance restricting location SYLLABUS BY REPORTER OF DECISIONS dinance restricting location 10. A city zoning ordinance pro- d. A city is entitled to rely on the hibiting adult motion picture the- Respondents purchased two the- aters from locating within 1,000 feet experiences of other cities in enact- aters from locating within 1,000 feet aters in Renton, Washington, with of any residential zone, single- or ing a zoning ordinance prohibiting of any residential zone, single- or the intention of exhibiting adult multiple-family dwelling, church, adult motion picture theaters from multiple-family dwelling, church, films and, at about the same time, park, or school. The District Court locating within 1,000 feet of any park, or school, is not unconstitu- filed suit in Federal District Court, ultimately entered summary judg- residential zone, single- or multiple- tionally underinclusive for failing to seeking injunctive relief and a de- ment in the city's favor, holding that family dwelling, church, park, or regulate businesses other than adult claratory judgment that the First the ordinance did not violate the school; the First Amendment does motion picture theaters, where there and Fourteenth Amendments were First Amendment. The Court of Ap- not require a city, before enacting is no evidence that, at the time the violated by a city ordinance that peals reversed, holding that the ordi- such an ordinance, to conduct new ordinance was enacted, any other prohibits adult motion picture the- nance constituted a substantial re- studies or produce evidence indepen- adult business was located in, or was 32 33 U.S. SUPREME COURT REPORTS 89 L Ed 2d RENTON v PLAYTIME THEATRES, INC. 475 US 41,89 L Ed 2d 29,106 S Ct 925 striction on First Amendment inter- Renton's particular problems, Ren- APPEARANCES OF COUNSEL ests, and remanded the case for re- ton was entitled to rely on the expe- E. Barrett Prettyman, Jr., argued the cause for appellants. consideration as to whether the city riences of, and studies produced by, Jack R. Burns argued the cause for appellees. had substantial governmental inter- the nearby city of Seattle and other Briefs of Counsel, p 935, infra. ests to support the ordinance. cities. Nor was there any constitu- Held. The ordinance is a valid tional defect in the method chosen OPINION OF THE COURT governmental response to the seri- by Renton to further its substantial } [475 US 431 [475 US 441 ous problems created by adult the- interests. Cities may regulate adult Justice Rehnquist delivered the In May 1980, the Mayor of Ren- aters and satisfies the dictates of the theaters by dispersing them, or by opinion of the Court. ton, a city of approximately 32,000 First Amendment Cf. Young v effectively concentrating them, as in people located just south of Seattle, American Mini Theatres, Inc., 427 Renton. Moreover, the ordinance is [1] This case involves a constitu- suggested to the Renton City Council US 50, 49 L Ed 2d 310, 96 S Ct 2440. not "underinclusive" for failing to tional challenge to a zoning ordi- that it consider the advisability of (a) Since the ordinance does not regulate other kinds of adult busi- t nance, enacted by appellant city of enacting zoning legislation dealing ban adult theaters altogether, it is nesses, since there was no evidence Renton, Washington, that prohibits with adult entertainment uses. No properly analyzed as a form of time, that, at the time the ordinance was adult motion picture theaters from such uses existed in the city at that place, and manner regulation. "Con- enacted, any other adult business locating within 1,000 feet of any time. Upon the Mayor's suggestion, tent-neutral" time, place, and man- was located in, or was contemplating residential zone, single- or multiple- the City Council referred the matter ner regulations are acceptable so moving into, Renton. family dwelling, church, park, or to the city's Planning and Develop- long as they are designed to serve a (d) As required by the First school. Appellees, Playtime The- ment Committee. The Committee substantial governmental interest Amendment, the ordinance allows atres, Inc., and Sea-First Properties, held public hearings, reviewed the and do not unreasonably limit alter- for reasonable alternative avenues of Inc., filed an action in the United experiences of Seattle and other cit- native avenues of communication. communication. Although respon- States District Court for the West- ies, and received a report from the ( ) The District Court found that dents argue that in general there ern District of Washington seeking a City Attorneys Office advising as to the Renton City Council's "predomi- are no "commercially viable" adult ` declaratory judgment that the Ren- developments in other cities. The nate" concerns were with the sec- theater sites within the limited area # ton ordinance violated the First and City Council, meanwhile, adopted ondary effects of adult theaters on of land left open for such theaters by ` Fourteenth Amendments and a per- Resolution No. 2368, which imposed _ the surrounding community, not the ordinance, the fact that respon- manent injunction against its en- a moratorium on the licensing of with the content of adult films them- dents must fend for themselves in forcement. The District Court ruled "any business . . . which . . . has as selves. This finding is more than the real estate market, on an equal ( in favor of Renton and denied the its primary purpose the selling, rent- adequate to establish that the city's footing with other prospective pur- permanent injunction, but the Court ing or showing of sexually explicit pursuit of its zoning interests was chasers and lessees, does not give of Appeals for the Ninth Circuit materials." App 43. The resolution unrelated to the suppression of free rise to a violation of the First reversed and remanded for reconsid- ex expression, and thus the ordinance Amendment, which does not compel contained a clause explaining that P �� P eration. 748 F2d 527 (1984). We such businesses "would have a se- is a content-neutral speech regula- the Government to ensure that adult noted probable jurisdiction, 471 US vere impact upon surrounding busi- tion. theaters, or any other kinds of 1013 85 L Ed 2d 297, 105 S Ct 2015 (c) The Renton ordinance is de- speech-related businesses, will be nesses and residences." Id., at 42. (1985), and now reverse the judg- signed to serve a substantial govern- able to obtain sites at bargain prices. ment of the Ninth Circuit.' In April 1981, acting on the basis mental interest while allowing for 748 F2d 527, reversed. reasonable alternative avenues of Rehnquist, J., delivered the opin- 1. This appeal was taken under 28 USC The present appeal seeks review of a judg- communication. A city's interest in ion of the Court, in which Burger, C. §1254(2) [28 USCS §1254(2)], which provides ment remanding the case to the District attempting to preserve the quality of J., and White, Powell, Stevens, and this Court with appellate jurisdiction at the Court. We need not resolve whether this ap- urban life, as here, must be accorded O'Connor, JJ., joined. Blackmun, J., behest of a party relying on a state statute or peal is proper under §1254(2), however, be- high respect. Although the ordi- concurred in the result. Brennan, J., local ordinance held unconstitutional a cause in any event we have certiorari jurisdic- court of appeals.As we have previously noted, ed, tion under 28 USC §2103 [28 USCS §2103]. nance was enacted without the ben- filed a dissenting opinion, in which there is some question whether jurisdiction As we have previously done in equivalent efit of studies specifically relating to Marshall,J.,joined. under §1254(2) is available to review a nonfi- situations, see El Paso v Simmons, 379 US nal judgment. See South Carolina Electric & 497, 502-503, 13 L Ed 2d 446, 85 S Ct 577 Gas Co. v Flemming, 351 US 901. 100 L Ed (1965); Doran v Salem Inn, Inc. 422 US 922, 1439, 76 S Ct 692 (1956); Slaker v O'Connor, 927, 45 L Ed 2d 648, 95 S Ct 2561 (1975), we 278 US 188, 73 L Ed 258, 49 S Ct 158(1929). dismiss the appeal and,treating the papers as But see Chicago v Atchison, T. & S. F. R. Co. a petition for certiorari, grant the writ of 357 US 77, 82.83. 2 L Ed 2d 1174, 78 S Ct certiorari. Henceforth, we shall refer to the 1063(1958). parties as"petitioners"and"respondents." 34 35 U.S. SUPREME COURT REPORTS 89 L Ed 2d RENTON v PLAYTIME THEATRES, INC. 475 US 41,89 L Ed 2d 29,106 S Ct 925 of the Planning and Development Court adopted the Magistrate's rec- ences of other cities in lieu of evi- is, of course, only the first step in Committee's recommendation, the ommendations and entered the pre- dence about the effects of adult the- our inquiry. This Court has long City Council enacted Ordinance No. liminary injunction, and respondents aters on Renton, that Renton had held that regulations enacted for the 3526. The ordinance prohibited any began showing adult films at their thus failed to establish adequately [475 US 47] "adult motion picture theater" from two theaters in Renton. Shortly the existence of a substantial gov- purpose of restraining speech on the locating within 1,000 feet of any thereafter, the parties agreed to sub- ernmental interest in support of its basis of its content presumptively residential zone, single- or multiple- mit the case for a final decision on ordinance, and that in any event violate the First Amendment. See family dwelling, church, or park, whether a permanent injunction Renton's asserted interests had not Carey v Brown, 447 US 455, 462-463, and within one mile of any school. should issue on the basis of the rec- ( been shown to be unrelated to the and n 7, 65 L Ed 2d 263, 100 S Ct App to Juris Statement 79a. The ord as already developed. suppression of expression. The Court 2286 (1980); Police Dept. of Chicago term "adult motion picture theater" of Appeals remanded the case to the v Mosley, 408 US 92, 95, 98-99, 33 L was defined as "[a]n enclosed build- The District Court then vacated District Court for reconsideration of Ed 2d 212, 92 S Ct 2286 (1972). On ing used for presenting motion pic- the preliminary injunction, denied Renton's asserted interests. the other hand, so-called "content- ture films, video cassettes, cable tele- respondents' requested permanent i neutral" time, place, and manner vision, or any other such visual me- injunction, and entered summary i [2a] In our view, the resolution of regulations are acceptable so long as dia, distinguished or characteri[zed] judgment in favor of Renton. The ! this case is largely dictated by our they are designed to serve a substan- by an emphasis on matter depicting, court found that the Renton ordi- decision in Young v American Mini tial governmental interest and do describing or relating to 'specified nance did not substantially restrict Theatres, Inc., supra. There, al not unreasonably limit alternative sexual activities' or 'specified ana- First Amendment interests, that though five Members of the Court avenues of communication. See tomical areas' . . . for observation Renton was not required to show did not agree on a single rationale Clark v Community for Creative by patrons therein." Id., at 78a. specific adverse impact on Renton for the decision, we held that the Non-Violence, 468 US 288, 293, 82 L [a75 US 45] from the operation of adult theaters city of Detroit's zoning ordinance, Ed 2d 221, 104 S Ct 3065 (1984); City f which prohibited locating an adult Council of Los Angeles v Taxpayers In early 1982, respondents ac but could rely on the experiences o theater within 1,000 feet of any two for Vincent, 466 US 789, 807, 80 L quired two existing theaters in other cities, that the purposes of the ! other "re ulated uses" or within 500 Ed 2d 772, 104 S Ct 2118 (1984); downtown Renton, with the inten- ordinance were unrelated to the sup g ression of speech, and that the re- ! feet of any residential zone, did not Heffron v International Society for l _ en using them exhibit feature- p p j violate the First and Fourteenth Krishna Consciousness, Inc. 452 US lengthh adult filmss.. The theaters strictions on speech imposed by the ! Amendments. Id., at 72-73, 49 L Ed 640, 647, 648, 69 L Ed 2d 298, 101 S were located within the area pro- ordinance were no greater than nec 2d 310, 96 S Ct 2440 (plurality opin Ct 2559 (1981). scribed by Ordinance No. 3526. At essary to further the governmental about the same time, respondents interests involved. Relying on Young j ion of Stevens, J., joined by Burger, p C. J., and White and Rehnquist, JJ.); [2b, 4] At first glance, the Renton filed the previously mentioned law- v American Mini Theatres, Inc. 427 suit challenging the ordinance on US 50, 49 L Ed 2d 310, 96 S Ct 2440 ! id:, at 84, 49 L Ed 2d 310, 96 S Ct ordinance, like the ordinance in First and Fourteenth Amendment (1976), and United States v O'Brien, (. 2440 (Powell, J., concurring). The American Mini Theatres, does not grounds, and seeking declaratory 391 US 367, 20 L Ed 2d 672, 88 S Ct Renton ordinance, like the one in appear to fit neatly into either the and injunctive relief. While the fed- 1673 (1968), the court held that the American Mini Theatres, does not "content-based" or the "content-neu- eral action was pending, the City Renton ordinance did not violate the ban adult theaters altogether, but tral category. To be sure, the ordi- merely provides that such theaters nance treats theaters that specialize Council amended the ordinance in First Amendment. [ y in adult films differently several respects, adding a statement [ may not be located within 1,000 feet y from other [475 US 461 of any residential zone, single- or kinds of theaters. Nevertheless, as re reasons for its enactment and The Court of Appeals for the multiple-family dwelling, church, the District Court concluded, the reducing the minimum distance Ninth Circuit reversed. The Court of park, or school. The ordinance is Renton ordinance is aimed not at from any school to 1,000 feet. Appeals first concluded, contrary to therefore properly analyzed as a the content of the films shown at In November 1982, the Federal the finding of the District Court, form of time, place, and manner "adult motion picture theatres," but Magistrate to whom respondents' ac- that the Renton ordinance consti- regulation. Id., at 63, and n 18, 49 L rather at the secondary effects of tion had been referred recommended tuted a substantial restriction on Ed 2d 310, 96 S Ct 2440; id., at 78- such theaters on the surrounding the entry of a preliminary injunc- First Amendment interests. Then, 79, 49 L Ed 2d 310, 96 S Ct 2440 community. The District Court tion against enforcement of the Ren- using the standards set forth in (Powell, J., concurring). found that the City Council's "pre- ton ordinance and the denial of Ren- United States v O'Brien, supra, the dominate concerns" were with the ton's motions to dismiss and for Court of Appeals held that Renton [3] Describing the ordinance as a secondary effects of adult theaters, summary judgment. The District had improperly relied on the experi- time, place, and manner regulation and not with the content of adult- 36 37 U.S. SUPREME COURT REPORTS 89 L Ed 2d RENTON v PLAYTIME THEATRES, INC. 475 US 41,89 L Ed 2d 29, 106 S Ct 925 films themselves. App to Juris State- serv[e] the quality of [the city's) plicit materials,' zoning ordinances See, e. g., Tinker v Des ment 31a (emphasis added). But the neighborhoods, commercial districts, designed to combat the undesirable Moines School Dist. 393 US 503, Court of Appeals, relying on its deci- and the quality of urban life," not to secondary effects of such businesses 509-511 [21 L Ed 2d 731, 89 S Ct lion in Tovar v Billmeyer, 721 F2d suppress the expression of unpopu- are to be reviewed under the stan- 733, 49 Ohio Ops 2d 222] (1969); 1260, 1266 (CA9 1983), held that this lar views. See App to Juris State- dards applicable to 'content-neu- Procunier v Martinez, 416 US 396, was not enough to sustain the ordi- ment 90a. As Justice Powell ob- tral" time, place, and manner regu- 413414 [40 L Ed 2d 224, 94 S Ct nance. According to the Court of served in American Mini Theatres, lations. Justice Stevens, writing for 1800, 71 Ohio Ops 2d 139] (1974); Appeals, if "a motivating factor" in "[i]f [the city] had been concerned the plurality, concluded that the city Greer v Spock, 424 US 828, 842- enacting the ordinance was to re- with restricting the message pur- of Detroit was entitled to draw a 844 [47 L Ed 2d 505, 96 S Ct 1211) strict respondents' exercise of First veyed by adult theaters, it would distinction between adult theaters (1976) (Powell, J., concurring); cf. Amendment rights, the ordinance have tried to close thetas or restrict and other kinds of theaters "without CSC v Letter Carriers, 413 US 548 would be invalid, apparently no mat- their number rather than circum- violating the government's para- [37 L Ed 2d 796, 93 S Ct 2880] ter how small a part this motivating scribe their choice as to location." ! mount obligation of neutrality in its (1973)." Id., at 82, n 6, 49 L Ed 2d factor may have played in the City 427 US, at 82, n 4, 49 L Ed 2d 310, regulation of protected communica 310, 96 S Ct 2440. Council's decision. 748 F2d, at 537 96 S Ct 2440. ; tion," 427 US, at 70, 49 L Ed 2d 310, (emphasis in original). This view of 96 S Ct 2440, noting that"[i]t is th[e] [6, 7a] The appropriate inquiry in the law was rejected in United [2d, 51 In short, the Renton ordi- secondary effect which these zoning this case, then, is whether the Ren- States v O'Brien, 391 US, at 382-386, nance is completely consistent with ordinances attempt to avoid, not the ton ordinance is designed to serve a 20 L Ed 2d 672, 88 S Ct 1673, the our definition of "content-neutral" i dissemination of 'offensive' speech," substantial governmental interest very case that the Court of Appeals speech regulations as those that "are id., at 71, n 34, 49 L Ed 2d 310, 96 S and allows for reasonable alterna- said it was applying: justified without reference to the ; Ct 2440. Justice Powell, in concur- tive avenues of communication. See [47b US 48] content of the regulated speech." rence, elaborated: Community for Creative Non-Via Virginia Pharmacy Board v Virginia lence, 468 US, at 293, 82 L Ed 2d "It is a familiar principle of con Citizens Consumer Council Inc. 425 "[The] dissent misconceives the 221, 104 S Ct 3065; International , stitutional law that this Court will issue in this case b insisting that Society for Krishna Consciousness, not strike down an otherwise con- US 748, 771, 48 L Ed 2d 346, 96 S Ct i Y g Y 1817 (1976) (emphasis added); Com- l it involves an impermissible time, 452 US, at 649, 654, 69 L Ed 2d 298, stitutional statute on the basis of } place, and manner restriction 101 S Ct 2559. It is clear that the an alleged illicit legislative munity for Creative Non-Violence, i based on the content of expression. ordinance meets such a standard. As motive. . . . supra, at 293, 82 L Ed 2d 221, 104 S p Ct 3065; International Society for It involves nothing of the kind. We a majority of this Court recognized Krishna Consciousness, supra, at ° have here merely a decision by the in American Mini Theatres, a city's tit to treat certain movie the- "interest in attempting to reserve " . What motivates one legis- 648, 69 L Ed 2d 298, 101 S Ct. 2559. Y p g p lator to make a speech about a The ordinance does not contravene atees differently because they have the quality of urban life is one that the fundamental principle that un markedly different effects upon must be accorded high respect." 427 statute is not necessarily what mo p p their surroundings. . . . Moreover, US, at 71, 49 L Ed 2d 310, 96 S Ct tivates scores of others to enact it, derlies our concern about "content- even if this were a case involving 2440 (plurality opinion);and the stakes are sufficiently based speech regulations: that "gov g y p' on); see id., at a special governmental response to 80, 49 L Ed 2d 310, 96 S Ct 2440 high for us to eschew guesswork." ernment may not grant the use of a the content of one type of movie, (Powell, J., concurring) ("Nor is Id., at 383-384, 20 L Ed 2d 672, 88 forum to people whose views it finds it is possible that the result would there doubt that the interests fur- S Ct 1673. acceptable, but deny use to those be su wishing to express pported by a line of cases thered by this ordinance are both [2c] The District Court's finding as [475 US 491 recognizing that the government important and substantial"). ExactIy to "predominate" intent, left undis- less favored or can tailor its reaction to different the same vital governmental inter- turbed by the Court of Appeals, is more controversial views." Mosley, types of speech according to the ests are at stake here. more than adequate to establish that supra, at 95-96, 33 L Ed 2d 212, 92 S degree to which its special and the city's pursuit of its zoning inter- Ct 2286. overriding interests are impli- The Court of Appeals ruled, how- ests here was unrelated to the sup- cated. ever, that because the Renton ordi- pression of free expression. The ordi- It was with this understanding in [475 US 50] nance was enacted without the ben- nance by its terms is designed to mind that, in American Mini The- 2. See American Mini Theatres, 427 US, at wholly different, and lesser, magnitude than prevent crime, protect the city's re- atres, a majority of this Court de- 70, 49 L Fd 2d 310, 96 S Ct 2440 (plurality the interest in untrammeled political debate tail trade, maintain property values, tided that, at least with respect to opinion)("[I)t is manifest that society's inter- and generally "protec[t) and pre- businesses that purvey sexually ex- est in protecting this type of expression is of a 38 39 U.S. SUPREME COURT REPORTS 89 L Ed 2d RENTON v PLAYTIME THEATRES, INC. 475 US 41,89 L Ed 2d 29, 106 S Ct 925 efit of studies specifically relating to on the adverse effects of the pres- [91 We also find no constitutional ton chose first to address the poten- "the particular problems or needs of ence of adult motion picture the- defect in the method chosen by Ren- tial problems created Renton," the Cty's justifications for aters on neighborhood children ton to further its substantial inter- [475 US 531 the ordinance were "conclusory and and community improvement ef- ests. Cities may regulate adult the- by one particu- speculative." 748 F2d, at 537. We forts. The court's detailed findings, aters by dispersing them, as in De- lar kind of adult business in no way think the Court of Appeals imposed which include a finding that the troit, or by effectively concentrating suggests that the city has "singled on the city an unnecessarily rigid location of adult theaters has a them, as in Renton. "It is not our out adult theaters for discrimina- burden of proof. The record in this harmful effect on the area and function to appraise the wisdom of tory treatment. We simply have no case reveals that Renton relied heav- contribute to neighborhood blight, [the Cty's] decision to require adult basis on this record for assuming ily on the experience of, and studies are supported by substantial evi- theaters to be separated rather than that Renton will not, in the future, produced by, the city of Seattle. In dence in the record." Id., at 713, concentrated in the same areas. . . , amend its ordinance to include other Seattle, as in Renton, the adult the- 585 P2d, at 1156. [T]he city must be allowed a reason- kinds of adult businesses that have ater zoning ordinance was aimed at able opportunity to experiment with been shown to produce the same preventingthe secondary effects "The record is replete with testi- solutions to admittedly serious prob- kind of secondary effects as adult y mon regarding the effects of { theaters. See Williamson v Lee Opti- caused by the presence of even one y lems. American Mini Theatres, 427 cal Co. 348 US 483, 488-489, 99 L Ed such theater in a given neighbor- adult movie theater locations on US, at 71, 49 L Ed 2d 310, 96 S Ct hood. See Northend Cinema, Inc. v residential neighborhoods." Id., at 2440 (plurality opinion). Moreover, 563, 75 S Ct 461 (1955). Seattle, 90 Wash 2d 709, 585 P2d 719, 585 P2d, at 1159. the Renton ordinance is "narrowly [7b] Finally, turning to the ques- 1153 (1978). The opinion of the Su- [8] We hold that Renton was enti- tailored" to affect only that category tion whether the Renton ordinance preme Court of Washington in tled to rely on the experiences of E of theaters shown to produce the allows for reasonable alternative av- Northend Cinema, which Seattle and other cities, and in par t unwanted secondary effects, thus enues of communication, we note [475 US 511 ticular on the "detailed findings" avoiding the flaw that proved fatal that the ordinance leaves some 520 was before summarized in the Washington Su- to the regulations in Schad v Mount acres, or more than five percent of the Renton City Council when it Ephraim,Court's Northend Cinema Ephraim, 452 US 61, 68 L Ed 2d 671, the entire land area of Renton, open enacted the ordinance in p question 101 S Ct 2176 (1981), and Erznoznik to use as adult theater sites. The here, described Seattle's experience opinion, in enacting its adult theater District Court found, and the Court zoning ordinance. The First Amend- v City of Jacksonville, 422 US 205, as follows: ment does not require a city, before C 45 L Ed 2d 125, 95 S Ct 2268(1975). of Appeals did not dispute the find- "The amendments to the City's enacting such an ordinance, to con sistng, that the le, acres of land con- "The code which are at issue duct new studies or produce evi- [10] Respondents contend that the sitts of "[a]mple, accessible real es- zoning Renton ordinance is "underinclu- tate," including "acreage in all here are the culmination of a long dence independent of that already sive," in that it fails to regulate stages of development from raw land period of study and discussion of generated by other cities, so long as other kinds of adult businesses that to developed, industrial, warehouse, the problems of adult movie the- whatever evidence the city relies are likely to produce secondary ef- office, and shopping space that is aters in residential areas of the upon is reasonably believed to be fects similar to those produced by Criss-crossed by freeways, highways, City. . . . [T]he City's Department relevant to the adult theaters. On this record the and roads." App to Juris Statement of CommunityDevelopment made [475 ob 52] 28a problem that the city contention must fail. There is no a study of the need for zoning evidence that, at the time the Ren- p g controls of adult theaters addresses. That was the case here. Respondents argue, however, that Nor is our holding affected by the ton ordinance was enacted, any some of the land in question is al- The study analyzed the City's zon- fact that Seattle ultimately chose a other adult business was located in, ready occupied by existing busi- ing scheme, comprehensive plan, different method of adult theater or was contemplating moving into, nesses, that"practically none" of the and land uses around existing zoning than that chosen by Renton, Renton. In fact, Resolution No. 2368, undeveloped land is currently for adult motion picture theaters. . . ." Id., at 711, 585 since Seattle's choice of a different enacted in October 1980, states that sale or lease, and that in general P2d, at 1155. remedy to combat the secondary ef- the City of Renton does not, at the there are no "commercially viable" fects of adult theaters does not call present time, have any business adult theater sites within the 520 "[T]he [trial] court heard exten- into question either Seattle's identifi- whose primary purpose is the sale, acres left open by the Renton ordi- sive testimony regarding the his- cation of those secondary effects or rental, or showing of sexually ex- nance. Brief for Appellees 34-37.The tory and purpose of these ordi- the relevance of Seattle's experience elicit materials." App 42. That Ren- Court of Appeals accepted these nances. It heard expert testimony to Renton. 40 41 U.S. SUPREME COURT REPORTS 89 L Ed 2d RENTON v PLAYTIME THEATRES, INC. 475 US 41,89 L Ed 2d 29,106 S Ct 925 arguments,'concluded that Amendment purposes is not con- the Court of Appeals is therefore Justice Blackmun concurs in the [475 US 541 cerned with economic impact"). In reversed. result. the 520 our view, the First Amendment re- acres was not truly "available" land, quires only that Renton refrain from SEPARATE OPINION and therefore held that the Renton effectively denying respondents a ordinance "would result in a sub- reasonable opportunity to open and Justice Brennan, with whom Jus- regulation of other kinds of speech, I stantial restriction" on speech. 748 operate an adult theater within the Lice Marshall joins, dissenting. dissent. F2d, at 534. city, and the ordinance before us Renton's zoning ordinance selec- easily meets this requirement. I We disagree with both the reason- Lively imposes limitations on the lo- ing and the conclusion of the Court [11, 12a, 13a] In sum, we find that cation of a movie theater based ex- "[A] constitutionally permissible of Appeals. That respondents must the Renton ordinance represents a clusively on the content of the films time, place, or manner restriction fend for themselves in the real es- valid governmental response to the shown there. The constitutionality of may not be based upon either the tate market, on an equal footing "admittedly serious problems" cre- the ordinance is therefore not cor- content or subject matter of speech." with other prospective purchasers ated by adult theaters. See id., at 71, rectly analyzed under standards ap- Consolidated Edison Co. v Public and lessees, does not give rise to a 49 L Ed 2d 310, 96 S Ct 2440 (plural- plied to content-neutral time, place, Service Comm'n of N. Y., 447 US First Amendment violation. And al- ity opinion). Renton has not used l and manner restrictions. But even 530, 536, 65 L Ed 2d 319, 100 S Ct though we have cautioned against the power to zone as a pretext for assuming that the ordinance may 2326 (1980). The Court asserts that the enactment of zoning regulations suppressing expression," id., at 84, fairly be characterized as content- the ordinance is "aimed not at the that have "the effect of suppressing, 49 L Ed 2d 310, 96 S Ct 2440 (Pow- neutral, it is plainly unconstitu- content of the films shown at `adult or greatly restricting access to, law- ell, J., concurring), but rather has tional under the standards estab- motion picture theatres,' but rather ful speech," American Mini The- sought to make some areas available lished by the decisions of this Court. at the secondary effects of such the- atres, 427 US, at 71, n 35, 49 L Ed g for adult theaters and their patrons, Although the Courts analysis is lim- aters on the surrounding commu- 2d 310, 96 S Ct 2440 (plurality o in- while at the same time preserving ited to nity," ante, at 47, 89 L Ed 2d, at 37 ion), we have never suggested that the quality of life in the community [475 US 56] (emphasis in original), and thus is the First Amendment compels the at large by preventing those theaters cases involving"businesses simply a time, place, and manner p from locating in other areas. This, that purvey sexually explicit materi- regulation.' This analysis is mis- Government to ensure that adult after all, is the essence of zoning. als," ante, at 49, 89 L Ed 2d, at 38- theaters, or any other kinds of Here, as in American Mini Theatres, guided. speech-related businesses for that � 39, and n 2, and thus does not affect p the city has enacted a zoning ordi- our holdings in cases involving state The fact that adult.movie theaters matter,will be able to obtain sites at nance that meets these goals while bargain prices. See id., at 78, 49 L also satisfying the dictates of the theaters "used to present material distin- Shaker Heights,418 US 298, 316,41 L Ed 2d Ed 2d 310, 96 S Ct 2440 (Powell, J., [475 US 551 guished or characterized by an emphasis on 770,94 S Ct 2714(1974)(Brennan,J.,dissent- concurring) ("The inquiry for First First Amendment.' The judgment of [sexually explicit matter]." Id.,at 53,49 L Ed ing);see also Consolidated Edison Co.v Public 2d 310, 96 S Ct 2440. We held that "even if Service Comm'n of N.Y. 447 US 530, 537, 65 there may be some uncertainty about the L Ed 2d 319, 100 S Ct 2326(1980)("The First 3. The Court of Appeals' rejection of the tion Clause of the Fourteenth Amendment.As effect of the ordinances on other litigants, Amendment's hostility to content-based regu- District Court's findings on this issue may should be apparent from our preceding discus- they are unquestionably applicable to these lation extends not only to restrictions on have stemmed in part from the belief, ex- sion,respondents can fare no better under the respondents."Id.,at 58-59,49 L Ed 2d 310,96 particular viewpoints, but also to prohibition pressed elsewhere in the Court of Appeals' Equal Protection Clause than under the First S Ct 2440. We also held that the Detroit of public discussion of an entire topic").More- opinion, that, under Bose Corp. v Consumers Amendment itself. See Young v American ordinance created no "significant deterrent over, the Court's conclusion that the restric- Union of United States,Inc.466 US 485,80 L Mini Theatres,Inc.,427 US,at 63-73,49 L Ed effect" that might justify invocation of the tions imposed here were viewpoint-neutral is Ed 2d 502, 104 S Ct 1949 (1984), appellate 2d 310,96 S Ct 2440. First Amendment"overbreadth"doctrine. Id., patently flawed. "As a practical matter, the courts have a duty to review de novo all [13b]Respondents also argue that the Ren- at 59-61,49 L Ed 2d 310,96 S Ct 2440. speech suppressed by restrictions such as mixed findings of law and fact relevant to the ton ordinance is unconstitutionally vague. those involved [here] will almost invariably application of First Amendment principles. More particularly, respondents challenge the 1. The Court apparently finds comfort in carry an implicit, if not explicit, message in ordinance's application to buildings See 748 F2d 5279 535 (1984). We need not "used"for the fact that the ordinance does not "deny favor of more relaxed sexual mores. Such review the correctness of the Court of Ap- presenting sexually explicit films, where the use to those wishing to express less favored or restrictions, in other words, have a potent peals' interpretation of Bose Corp., since we term "used"describes"a continuing course of more controversial views." Ante, at 48.49, 89 viewpoint-differential impact. . . . To treat determine that,under any standard of review, L Ed 2d, at 38. However, content-based dis- such restrictions as viewpoint-neutral seems conduct of exhibiting [sexually explicit films] the District Court's findings should not have in a manner which appeals to a crimination is not rendered "any less odious" simply to ignore reality." Stone, Restrictions prurient been disturbed. because it distinguishes"among entire classes of Speech Because of its Content: The Pecu- interest." App to Juris Statement 96a. We of ideas, rather than among points of view liar Case of Subject-Matter Restrictions,46 U 4.[12 Respondents argue,as an"a - reject respondents' "vagueness" argument for within a particular class." Lehman v City of Chi L Rev 81,111-112(1978). five basis" for affirming the decision of of the the same reasons that led us to reject a Court of Appeals, that the Renton ordinance similar challenge in American Mini Theatres, violates their rights under the Equal Protec• supra.There,the Detroit ordinance applied to 42 43 U.S. SUPREME COURT REPORTS 89 L Ed 2d RENTON v PLAYTIME THEATRES, INC. 475 US 41,89 L Ed 2d 29,106 S Ct 925 may cause harmful "secondary" face against certain forms of speech Co., 348 US 483, 488-489 [99 L Ed ordinance also lists certain conclu- land-use effects may arguably give based on content. Movie theaters 563, 75 S Ct 4611 (1955). This pre- sory "findings" concerning adult en- Renton a compelling reason to regu- specializing in "adult motion pic- sumption of statutory validity, tertainment land uses that the late such establishments; it does not tures" may not be located within however, has less force when a Council purportedly relied upon in mean, however, that such regula 1,000 feet of an residential zone, classification turns on the subject adopting the ordinance. Id., at 81a- tions are content-neutral. y matter of expression. '[Ajbove all 86a. The city points to these provi- [475 US 57] single p multiple-family dwelling, else, the First Amendment means sions as evidence that the ordinance Because church, park, or school. Other mo- that government has no power to the ordinance imposes special re- tion picture theaters, and other g P was designed to control the second- strictions on certain kinds of speech f restrict expression because of its ary effects associated with adult on the basis of content, I cannot forms of "adult entertainment," is ideas, its subject mat-message, i J movie theaters, rather than to sup- simply accept, as the Court does, such as bars, massage parlors, and ter, or its content.' Police Dept. of P y P y P P • press the content of the films the Renton's claim that the ordinance adult bookstores, are not subject to Chicago v Mosley, 408 US, at 95 the "legislative the same restrictions. This selective exhibit. However, was not designed to suppress the ± [33 L Ed 2d 212, 92 S Ct 2286]." history" of the ordinance strongly content of adult movies. "[W]hen treatment strongly suggests that Erznoznik v City of Jacksonville, suggests otherwise. regulation is based on the content of Renton was interested not in con- 422 US 205, 215, 45 L Ed 2d 125, speech, governmental action must be trolling the "secondary effects" asso- 95 S Ct 2268(1975). Prior to the amendment, there scrutinized more carefully to ensure ciated with adult businesses, but in was no indication that the ordinance that communication has not been In this case, the city has not justi- discriminating against adult the- i was designed to address any second- prohibited 'merely because public of- aters based on the content of the fied treating adult movie theaters ary effects" a single adult theater ficials disapprove the speaker's films thehibit. The Court i differently from other adult enter- might create. In addition to the sus- views.'" Consolidated Edison Co., su- y ex ignores tainment businesses. The ordi- pra, at 536, 65 L Ed 2d 319, 100 S Ct this discriminatory treatment, de- nance's underinclusiveness is cogent piciously coincidental timing of the 6 Glaring that Renton is free "to ad- evidence that it was aimed at the amendment, many of the City Coun- I 340US 268,g t 282, 95L Ed 267, 71 S dress the potential problems created content of the films shown in adult cil's "findings"do not relate to legiti- Ct 325 (1951) (Frankfurter, J., con- by one particular kind of adult busi- movie theaters. mate land-use concerns. As the curring in result)). "[B]efore defer- ness," ante, at 52-53, 89 L Ed 2d, at Court of Appeals observed, "[b]oth ring to [Renton's] judgment, [we] 41 and to amend the ordinance in the magistrate and the district court must be convinced that the city is the B recognized that many of the stated seriously and comprehensively ad- [475 US 581 Shortly after this lawsuit com- reasons for the ordinance were no dressing" secondary land-use effects future to include other adult en- menced, the Renton City Council more than expressions of dislike for associated with adult movie the- terprises.Ante,at 53,89 L Ed 2d,at 41 amended the ordinance, adding a the subject matter." 748 F2d 527, aters. Metromedia, Inc, v San Diego, provision explaining that its inten- 537 (CA9 1984)?That some residents 453 US 490, 531,69 L Ed 2d 800, 101 (citing Williamson v Lee Optical Co., S Ct 2882 (1981) (Brennan, J., con- 348 US 483, 488-489, 99 L Ed 563, 75 tion in adopting the ordinance had may be offended by the content of been curring in judgment). In this case, S Ct 461 (1955)).' However, because to promote the City of Ren- the films shown at adult movie the- both the language of the ordinance of the First Amendment interests at 'i ton s great interest in protecting and aters cannot form the basis for state and its dubious legislative history stake here, this one-step-at-a-time preserving the quality of its neigh- regulation of speech. See Terminiello belie the dubious s conclusion that analysis is wholly ina borhoods, commercial districts, and v Chicago, 337 US 1, 93 L Ed 1131, "the cit 'sy y inappropriate. the quality of urban life through 69 S Ct 894 (1949). y pursuit of its zoning effective land in- terests here was unrelated to the "This Court frequently has upheld [475 US 591 Some of the "findings" added by suppression of free expression." underinclusive classifications on use planning." App to the City Council do relate to sup- Ante, at 48, 89 L Ed 2d, at 38. the sound theorythat a legislature Juris Statement 81a. The amended y effects" associated gi posed "secondary A may deal with one part of a prob- lem without addressing all of it. 3. For example, "finding" number 2 states aggressive, consensual sexual relations." App The ordinance discriminates on its See e. g., Williamson v Lee Optical that to Juris Statement 86a. "[1]ocation of adult entertainment land uses "Finding"number 6 states that on the main commercial thoroughfares of the "(1]ocation of adult land uses in close prox- 2. The Court also explains that "[t]here is was enacted, there was no evidence that any City gives an impression of legitimacy to,and imity to residential uses,churches,parks,and no evidence that, at the time the Renton adult movie theaters were located in, or con- causes a loss of sensitivity to the adverse other public facilities, and schools, will cause ordinance was enacted, any other adult busi- sidering moving to, Renton. Thus, there was effect of pornography upon children, estab- a degradation of the community standard of ness was located in, or was contemplating no legitimate reason for the city to treat adult )ished family relations, respect for marital morality. Pornographic material has a de- moving into, Renton." Ante, at 52, 89 L Ed movie theaters differently from other adult relationship and for the sanctity of marriage grading effect upon the relationship between 2d,at 41. However,at the time the ordinance businesses. relations of others, and the concept of non- spouses."Ibid. 44 45 4 U.S. SUPREME COURT REPORTS 89 L Ed 2d RENTON v PLAYTIME THEATRES, INC. 475 US 41,89 L Ed 2d 29,106 S Ct 925 with adult movie would be affected by the presence of since Renton ultimately adopted zon- require that the ordinance, like any (475 US 601 an adult movie theater, and never ing regulations different from either other content-based restriction on theaters.'However, considered whether residents' con- Detroit or Seattle, these "studies" speech, is constitutional "only if the the Court cannot, as it does, merely terns could be met by "restrictions provide no basis for assessing the [city] can show that [it] is a precisely accept these post-hoc statements at that are less intrusive on protected effectiveness of the particular re- drawn means of serving a compel- face value. "[T]he presumption of forms of expression." Schad, supra, strictions adopted under the ordi- ling [governmental] interest." Con- validity that traditionally attends a at 74, 68 L Ed 2d 671, 101 S Ct 2176. nance.e Renton cannot merely rely solidated Edison Co. v Public Service local government's exercise of its As a result, any "findings" regarding on the general experiences Comm'n of N. Y., 447 US, at 540, 65 zoning powers carries little, if any, "secondary effects" caused by adult (475 US 62) L Ed 2d 319, 100 S Ct 2326; see also weight where the zoning regulation movie theaters, or the need to adopt 1 of Seattle Carey v Brown, 447 US 455, 461-462, trenches on rights of expression pro- specific locational requirements to or Detroit, for it must "justify its 65 L Ed 2d 263, 100 S Ct 2286(1980); tected under the First Amendment." combat such effects, were not "find- ordinance in the context of Renton's Police Department of Chicago v Mos- Schad v Mount Ephraim, 452 US 61, problems—not Seattle's or Detroit's 408 US 92 99 33 L Ed 2d 212 77, 68 L Ed 2d 671, 101 S Ct 2176 ings at all, but purely speculative P ley, , conclusions. Such "findings" were problems." 748 F2d, at 536 (empha- 92 S Ct 2286 (1972). Only this strict (1981) (Blackmun,J., concurring). As not such as are required to justify sis in original). approach can insure that cities will the Court of Appeals concluded, the burdens "[tJhe record presented by Renton to In sum, the circumstances here not use their zoning powers as a support its asserted interest in en- (475 US 611 strongly suggest that the ordinance Pretext for suppressing constitution- actin the zoning ordinance is very the ordinance imposed was designed to suppress expression, ally protected expression. thin." 748 F2d, at 536. y upon constitutionally protected ex- even that constitutionally protected, [475 US 631 pression. and thus was not to be analyzed as a Applying this standard to the facts The amended ordinance states The Court holds that Renton was ! content-neutral time, place, and of this case, the ordinance is pa- that its "findings" summarize testi manner restriction. The Court al- tent] unconstitutional. Renton has i mon received b the City Council at entitled to rely on the experiences of y y y y certain public hearings. While none cities like Detroit and Seattle, which lows Renton to conceal its illicit mo- not shown that locating adult movie tives, however, by reliance on the theaters in y of this testimony was ever recorded had enacted special zoning regula- proximity to its tions for adult entertainment busi- fact that other communities adopted churches, schools, parks, and resi- th preserved, a city official reported similar restrictions. The Court's a dences will necessarily result in un- that residents had objected to having nesses after studying the adverse P- y effects caused b such establish- proach largely immunizes such mea- desirable "secondary effects," or that adult movie theaters located in their y sures from judicial scrutiny, since a these problems could not be effec- community. However, the official menu. However, even assuming that was unable to recount any testimony Renton was concerned with the municipality can readily find other tively addressed by less intrusive as to how adult movie theaters same problems as Seattle and De- municipal ordinances to rely upon, restrictions. would specifically affect the schools, troit, it never actually reviewed any thus always retrospectively justify- churches, parks, or residences "pro- of the studies conducted by those ing special zoning regulations for II tected" by the ordinance. See App cities. Renton had no basis for deter- adult theaters.' Rather than specu- 190-192. The City Council conducted mining if any of the "findings" made late about Renton's motives for Even assuming that the ordinance no studies, and heard no expert tes- by these cities were relevant to Ren- adopting such measures, our cases should be treated like a content-neu- timony, on how the protected uses ton's problems or needs.° Moreover, for determining whether Seattle's experience ceived unfavorable effects of an adult the- 4. For example, "finding" number 12 states denied sub nom Apple Theatre,Inc.v Seattle, is relevant to Renton's. ater."748 F2d,at 536(emphasis in original). that 441 US 946, 60 L Ed 2d 1048, 99 S Ct 2166 6.As the Court of Appeals observed: 7.As one commentator has noted: "(flotation of adult entertainment land uses (1979), which upheld Seattle's zoning regula- "Although the Renton ordinance purports "(Alnyone with any knowledge of human in proximity to residential uses, churches, tions against constitutional attack. Again, de- to copy Detroit's and Seattle's, it does not nature should naturally assume that the deci- parks and other public facilities, and schools, spite the suspicious coincidental timing of the solve the same problem in the same manner. Sion to adopt almost any content-based re- may lead to increased levels of criminal activ. amendment, the Court holds that "Renton The Detroit ordinance was intended to dis. striction might have been affected by an anti- ities, including prostitution, rape, incest and was entitled to rely . . . on the 'detailed perse adult theaters throughout the city so pathy on the part of at least some legislators assaults in the vicinity of such adult enter. findings' summarized in the . . . Northend that no one district would deteriorate due to a to the ideas or information being suppressed. tainment land uses."Id.,at 83a. Cinema opinion." Ante, at 51, 89 L Ed 2d, at concentration of such theaters. The Seattle The logical assumption, in other words,is not 40.In Northend Cinema,the court noted that ordinance, by contrast, was intended to con. that there is not improper motivation but, 5. As part of the amendment passed after "[t)he record is replete with testimony regard- centrate the theaters in one place so that the rather, because legislators are only human, this lawsuit commenced, the City Council ing the effects of adult movie theater loca- whole city would not bear the effects of them. that there is a substantial risk that an imper- added a statement that it had intended to tions on residential neighborhoods." 90 Wash The Renton Ordinance is allegedly aimed at missible consideration has in fact colored the rely on the Washington Supreme Court's 2d, at 719, 585 P2d, at 1159. The opinion Protecting certain uses—schools, parks, deliberative process."Stone,supra n 1,at 106, opinion in Northend Cinema, Inc. v Seattle, however, does not explain the evidence it churches and residential areas—from the per- 90 Wash 2d 709, 585 P2d 1153 (1978), cert purports to summarize,and provided no basis 46 47 U.S. SUPREME COURT REPORTS 89 L Ed 2d RENTON v PLAYTIME THEATRES, INC. 475 US 41,89 L Ed 2d 29,106 S Ct 925 tral time, place, and manner restric- (475 US 641 Again, these facts serve to distin- themselves in the real estate mar- tion, I would still find it unconstitu- the Detroit zoning guish this case from American Mini ket, on an equal footing with other tional. "[R]estrictions of this kind ordinance upheld in Young v Ameri- Theatres, where there was no indica- prospective purchasers and lessees, are valid provided . . . that they are can Mini Theatres, Inc. 427 US 50, tion that the Detroit zoning ordi- does not give rise to a First Amend- narrowly tailored to serve a signifi- 49 L Ed 2d 310, 96 S Ct 2440 (1976). nance seriously limited the locations ment violation." Ante, at 54, 89 L cant governmental interest, and that The Detroit ordinance, which was available for adult businesses. See Ed 2d, at 42. However, respondents they leave open ample alternative designed to disperse adult theaters American Mini Theatres, supra, at are not on equal footing with other channels for communication of the throughout the city, was supported 71, n 35, 49 L Ed 2d 310, 96 S Ct prospective purchasers and lessees, information." Clark v Community by the testimony of urban planners 2440 (plurality opinion) ("The situa- but must conduct business under for Creative Non-Violence, 468 US and real estate experts regarding tion would be quite different if the severe restrictions not imposed upon 288, 293, 82 L Ed 2d 221, 104 S Ct the adverse effects of locating sev- ordinance had the effect of . . . other establishments. The Court also 3065 (1984); Heffron v International eral such businesses in the same greatly restricting access to, lawful argues that the First Amendment Society for Krishna Consciousness, neighborhood. Id., at 55, 49 L Ed 2d speech"); see also Basiardanes v City does not compel "the government to Inc., 452 US 640, 648, 69 L Ed 2d 310, 96 S Ct 2440; see also Northend of Galveston, 682 F2d 1203, 1214 ensure that adult theaters, or any 298, 101 S Ct 2559 (1981). In apply- Cinema Inc. v Seattle, 90 Wash 2d (CA5 1982) (ordinance effectively other kinds of speech-related busi- ing this standard, the Court "fails to 709, 711, 585 P2d 1153, 1154-1155 banned adult theaters nesses for that matter, will be able subject the alleged interests of the (1978), cert denied sub nom Apple [475 US 65] to obtain sites at bargain prices." [city] to the degree of scrutiny re- Theatre, Inc. v Seattle, 441 US 946, by restricting Ibid. However, respondents do not quired to ensure that expressive ac- 60 L Ed 2d 1048, 99 S Ct 2166 (1979) them to "'the most unattractive, ask Renton to guarantee low-price tivity protected by the First Amend- (Seattle zoning ordinance was the inaccessible, and inconvenient areas sites for their businesses, but seek ment remains free of unnecessary 'culmination of a long period of of a city'"); Purple Onion, Inc. v only a reasonable opportunity to op- limitations." Community for Cre- study and discussion"). Here, the Jackson, 511 F Supp 1207, 1217 (ND erate adult theaters in the city. By ative Non-Violence, 468 US, at 301, Renton Council was aware only that Ga 1981) (proposed sites for adult denying them this opportunity, Ren- 82 L Ed 2d 221, 104 S Ct 3065 some residents had complained entertainment uses were either "un- ton can effectively ban a form of (Marshall, J., dissenting). The Court about adult movie theaters, and that available, unusable, or so inaccessi- protected speech from its borders. "evidently [and wrongly] assumes other localities had adopted special ble to the public that . . . they The ordinance "greatly restrict[s] ac- that the balance struck by [Renton] zoning restrictions for such estab- amount to no locations"). cess to, lawful speech," American officials is deserving of deference so lishments. These are not "facts" Mini Theatres, supra, at 71, n 35, 49 long as it does not appear to be sufficient to justify the burdens the Despite the evidence in the record, L Ed 2d 310, 96 S Ct 2440 (plurality tainted by content discrimination." ordinance imposed upon constitu- the Court reasons that the fact opinion), and is plainly unconstitu- Id., at 315, 82 L Ed 2d 221, 104 S Ct tionally protected expression. "[t]hat respondents must fend for tional. 3065. Under a proper application of the relevant standards, the ordi- B nance is clearly unconstitutional. Finally, the ordinance is invalid A because it does not provide for rea- sonable alternative avenues of com- The Court finds that the ordinance munication. The District Court was designed to further Renton's found that the ordinance left 520 substantial interest in "preserv[ing] acres in Renton available for adult the quality of urban life." Ante, at theater sites, an area comprising 50, 89 L Ed 2d, at 39. As explained about five percent of the city. How- above, the record here is simply ever, the Court of Appeals found insufficient to support this assertion. that because much of this land was The city made no showing as to how already occupied, "[l]imiting adult uses "protected" by the ordinance theater uses to these areas is a sub- would be affected by the presence of stantial restriction on speech." 748 an adult movie theater. Thus, the F2d, at 534. Many "available" sites Renton ordinance is clearly distin- are also largely unsuited for use by guishable from movie theaters. See App 231, 241. 48 49 i U.S. SUPREME COURT REPORTS 107 L Ed 2d deposits would be. The typical lease condition. A customer who makes [493 US 2151 deposit secures the tenant's fulfill- this deposit reflects no commitment FW/PBS, INC., dba PARIS ADULT BOOKSTORE II, et al., Petitioners ment of a contractual obligation to to purchase services, and IPL's right v pay a specified rent throughout the to retain the money is contingent term of the lease. The utility cus- upon events outside its control. We CITY OF DALLAS et al. (No. 87-2012) tomer, however, makes no commit- hold that such dominion as IPL has ment to purchase any services at all over these customer deposits is in. at the time he tenders the deposit. sufficient for the deposits to qualify M. J. R.,INC., et al., Petitioners as taxable income at the time they [1t, 4] We recognize that IPL de- are made. v rives an economic benefit from these The judgment of the Court of Ap- CITY OF DALLAS et al. (No. 87-2051) deposits. But a taxpayer does not peals is affirmed. realize taxable income from every event that improves his economic It is so ordered. CALVIN BERRY, III, et al., Petitioners v CITY OF DALLAS et al. (No. 8849) 493 US 215, 107 L Ed 2d 603, 110 S Ct 596 [Nos. 87-2012, 87-2051, and 88-49] I Argued October 4, 1989. Decided January 9, 1990. Decision: Licensing provision of ordinance regulating sexually oriented businesses held to violate Federal Constitution for lack of procedural safeguards where businesses are engaged in First Amendment activity. SUMMARY The city of Dallas, Texas adopted a comprehensive ordinance regulating sexually oriented businesses, which were defined to include "adult" arcades, bookstores, video stores, cabarets, motels, and theaters, as well as escort agencies, nude model studios, and sexual encounter centers. The term "adult motel" was defined to include a motel offering a room for rent for a period of less than 10 hours. Among the ordinance's provisions was a licensing scheme under which the chief of police was directed to approve the issuance of a license to a sexually oriented business within 30 days after the receipt of an application, except under certain circumstances, such as where (1) the applicant or the applicant's spouse had been convicted of any of SUBJECT OF ANNOTATION Beginning on page 1151, infra Regulation of hotel, motel, or similar lodging establishment as violating due process clause or equal protection clause of Federal Constitution Briefs of Counsel, p 1148, infra. 602 603 U.S. SUPREME COURT REPORTS 107 L Ed 2d FW/PBS, INC. v DALLAS (1990)493 US 215,107 L Ed 2d 603,110 S Ct 596 certain enumerated crimes—including a violation of the Texas controlled parties had standing to raise a facial challenge to the licensing scheme, and substances statute—in which event the applicant was disabled from obtain- the businesses challenging the scheme had a valid First Amendment inter- ing a license for 2 years in the case of conviction of a misdemeanor and 5 est; (2) the licensing scheme, as enforced against businesses engaged in years in the case of conviction of either a felony or more than two activity protected by the First Amendment, violated the Federal Constitu- misdemeanors within a 24-month period, or (2) the applicant was residing tion because the scheme (a) allowed indefinite postponement of the issuance with an individual whose license application had been denied or whose of a license, and (b)failed to provide an avenue for prompt judicial review so license had been revoked within the preceding 12 months, or (3) the as to minimize suppression of protected speech in the event of a license premises to be used for the business had not been approved by the health denial; and (3) the First Amendment did not require the city, in applying department, fire department, and the building official as being in compli. the licensing scheme, to bear the burden of going to court to effect the ance with the applicable laws and ordinances. The licensing scheme did not denial of a license application, or to bear the burden of proof once in court. set a time limit within which inspections by such authorities must occur. Three separate suits challenging the ordinance, each suit seeking injunctive BRENNAN, J., joined by MARSHALL and BLACKMUN, JJ., concurring in the and declaratory relief, were brought in the United States District Court for judgment, expressed the view that (1) the licensing provisions, as applied to the Northern District of Texas by sexually oriented businesses and persons any First Amendment-protected business, were invalid, not only because involved in such businesses. The District Court upheld the bulk of the they allowed indefinite postponement of the issuance of a license and failed ordinance but struck certain provisions, including the one that prohibited to provide an avenue for prompt judicial review, but also because they did the issuance of a license where the applicant or the applicant's spouse had not require the city to bear the burden of going to court and proving its case been convicted under the state controlled substances statute (648 F Supp before denying licenses to First Amendment-protected businesses; (2) the 1061). The city subsequently amended the ordinance in conformity with the provisions applicable to adult motels were valid; and (3) the court's discus- District Court's judgment. The United States Court of Appeals for the Fifth sion of standing to challenge the civil disability provisions of the licensing Circuit, affirming the District Court's judgment, held that the licensing scheme was unnecessary to the decision. scheme withstood federal constitutional challenge, despite its failure to WHITE, J.,joined b REHN provide certain procedural safeguards, because it was a content-neutral j y QUIST, Ch.J., concurring in part and dissenting j time, place, and manner regulation relating to the conduct of an ongoing in part, (1) joined the court's opinion as to the issues of (a) standing to j challenge the civil disability provisions, and (b) the validity of the adult commercial enterprise(837 F2d 1298). motel provisions, but (2) expressed the view that no procedural safeguards On certiorari, the United States Supreme Court affirmed in part, reversed discussed by the court were applicable to the licensing scheme. in part, vacated in part, and remanded. A majority of the members of the court joined in an opinion holding that the ordinance's motel provisions did STEVENS, J., concurring in part and dissenting in part, (1) joined the not violate the Federal Constitution. Although unable to agree on an court's opinion as to the issues of (a) what procedural safeguards were opinion as to what procedural safeguards were necessary with respect to the necessary with respect to the licensing process, and (b) the validity of the licensing process, six members of the court ( O'CONNOR, STEVENS, KENNEDY, adult motel provisions, and (2) expressed the view that (a) conduct or BRENNAN, MARSHALL, and BLACKMUN, JJ.) agreed that the existing licensing communication that is protected by the First Amendment cannot lose its scheme, as enforced against businesses engaged in activity protected by the protected status by being advertised in a truthful and inoffensive manner, First Amendment, violated the Federal Constitution. and (b) there should have been a remand for an evidentiary hearing on the standing issues. O'CONNOR, J., announced the judgment of the court. In an opinion by O'CONNOR, J., joined in pertinent part by REHNQUIST, Ch.J., and WHITE, SCALIA, J., concurring in part and dissenting in part, (1)joined the court's SCALIA, and KENNEDY, JJ., and joined in pertinent part, except for point 1 opinion as to the issues of (a) standing to challenge the civil disability below, by STEVENS, J., it was held that (1) no party had standing to provisions, and (b) the validity of the adult motel provisions, and (2) challenge the ordinance's civil disability provisions; (2) for the purposes of expressed the view that (a) even if a particular work of pornography is not the due process clause of the Federal Constitutions Fourteenth Amend- obscene, a merchant who concentrates upon the sale of such works isengaged y ment, the city sufficiently justified its requirement that motels permittingin the business of obscenity, which may properly be licensed or room rentals for less than 10 hours should be included within the ordinance; entirely prohibited, and (b) because the city could constitutionally have and (3) the inclusion of such motels within the ordinance did not place an proscribed the commercial activities that it chose instead to license, the unconstitutional burden on the right to freedom of association. Also, O'CON- details of its licensing scheme did not have to comply with First Amend- NOR,J.,joined by STEVENS and KENNEDY,JJ., expressed the view that(1)the ment standards. 604 605 U.S. SUPREME COURT REPORTS 107 L Ed 2d FW/PBS, INC. v DALLAS (1990)493 US 215,107 L Ed 2d 603,110 S Ct 596 scheme is enforced against busi- challenge ordinance — moot- HEADNOTES nesses engaged in activity protected ness—change in ordinance Classified to U.S.Supreme Court Digest,Lawyers'Edition by the First Amendment, where the 3a-3d. On certiorari to the United Constitutional Law §§945, 955 — defined as adult arcades, adult book- ordinance (1) provides that the chief States Supreme Court to review a sexually oriented businesses stores, adult video stores, adult caba- of police shall approve the issuance decision that affirmed the judgment — licensing — procedural rets, adult motels, adult motion pic- of a license to a sexually oriented of a Federal District Court—which safeguards ture theaters, adult theaters, escort business within 30 days after the judgment upheld the validity of a la-lc. A licensing scheme in a agencies, nude model studios, or sex- receipt of an application, but(2)does city ordinance provision prohibiting comprehensive city ordinance regu- ual encounter centers—violates the not require a license to be issued if the issuance of a license for the lating sexually oriented businesses— Federal Constitution insofar as the the premises to be used for the busi- operation of a sexually oriented busi- ness have not been approved by the ness where the applicant or the ap- health department, fire department, plicant's spouse had been convicted TOTAL CLIENT-SERVICE LIBRARY®REFERENCES and the building official as being in of any of certain enumerated crimes, compliance with the applicable laws including a violation of the state 40 Am Jur 2d, Hotels, Motels, and Restaurants §§42, 44; 50 and ordinances, and (3) does not set controlled substances statute—an in- Am Jur 2d, Lewdness, Indecency, and Obscenity §10; 51 a time limit within which the in- dividual who has been convicted un- Am Jur 2d, Licenses and Permits §§101, 119 spections must occur; such a scheme der the controlled substances statute 16 Am Jur PI & Pr Forms (Rev), Licenses and Permits, Forms is unconstitutional because (1) it al- has no standing to challenge the 23, 24 lows indefinite postponement of the validity of the provision, where the issuance of a license, and (2) it fails individual asserts that his wife is 10 Am Jur Trials 1, Obscenity Litigation to provide an avenue for p prompt interested in opening a sexually ori- USCS,Constitution, Amendments 1, 14 judicial review so as to minimize ented business, but where (1) the US L Ed Digest, Constitutional Law §§694, 945,955, 960 suppression of protected speech in wife is not an applicant for a license Index to Annotations, Adult or X-Rated Businesses or Movies; the event of a license denial. [Per and is not a party to the action, and Due Process; Hotels and Motels; Licenses and Permits O'Connor, Stevens, Kennedy, Bren- (2) even if the wife did have stand- Auto-Cite®: Cases and annotations referred to herein can be nan, Marshall, and Blackmun, JJ. ing, her claim would be moot be- further researched through the Auto-Cite® computer-as- Dissenting: White, J., Rehnquist, cause the city council, following the sisted research service. Use Auto-Cite to check citations for Ch.J., and Scalia, J.) District Court's decision, deleted the form, parallel references, prior and later history, and anno- part of the provision pertaining to tation references. Municipal Corporations §37.5 — convictions under the controlled sub- standing to challenge ordi• stances statute, and thus her hus- nance band's conviction would no longer ANNOTATION REFERENCES 2a-2c. Parties have no standing to disable her from obtaining a license. Requirements of Article III of Federal Constitution as affecting stand- challenge the validity of a city ordi- ing to challenge particular conduct as violative of federal law. 70 L Ed 2d nance provision prohibiting the issu- Municipal Corporations §37.5 — 941. ance of a license for the operation of standing to challenge ordi- The Supreme Court and the right of free speech and press. 93 L Ed a sexually oriented business to an nance 1151;2 L Ed 2d 1706; 11 L Ed 2d 1116; 16 L Ed 2d 1053;21 L Ed 2d 976. applicant who resides with an indi- 4a-4c. On certiorari to the United Validity of statute or ordinance requiring sex-oriented businesses to vidual whose license application has States Supreme Court to review a obtain operating licenses.8 ALR4th 130. been denied or whose license has decision that affirmed the judgment Validity of "war zone" ordinances restricting location of sex-oriented been revoked within the preceding of a Federal District Court with re- businesses.1 ALR4th 1297. 12 months, where the record does spect to the validity of a city ordi- Binding effect upon state courts of opinion of United States Supreme not reveal that any party was living nance provision prohibiting the issu- Court supported by less than a majority of all its members. 65 ALR3d with an individual whose license ap- ance of a license for the operation of 504. plication was denied or whose li- a sexually oriented business to an Validity of procedure designed to protect the public against obscenity.5 cense was revoked. applicant who has been convicted of any of certain enumerated crimes— ALR3d 1214. Appeal § 1660; Municipal Corpo- such disability lasting for 2 years in rations §37.5 — standing to the case of conviction of a misde- 606 607 ,.A U.S. SUPREME COURT REPORTS 107 L Ed 2d FW/PBS, INC. v DALLAS (19901493 US 215.107 L Ed 2d 603,110 S Ct 596 .eanor and 5 years in the case of Constitutional Law §§945, 960 — have standing to challenge any of sion as to the validity of a city ordi- .)nviction of either a felony or more freedom of association — sex- the provisions, even if the courts nance provision prohibiting the issu- ian two misdemeanors within a 24- ually oriented businesses — below have not passed on the issue ance of a license for the operation of ionth period—an applicant seeking motels and the parties fail to raise the issue a sexually oriented business to an challenge the validity of the pro- 6a, 6b. A provision of a city ordi- before the Supreme Court, because applicant who has been convicted of ision must establish standing by nance regulating sexually oriented the federal courts are under an inde any of certain enumerated crimes, - iowing both (1) that the applicant businesses, which provision states pendent obligation to examine their the United States Supreme Court (1) as been convicted of one or more of that motels that rent rooms for less own jurisdiction, and standing is will not rely on the city's representa- he enumerated crimes, and (2) that than 10 hours are sexually oriented perhaps the most important of the tions at oral argument that certain he conviction or release from con- businesses and are, therefore, regu- jurisdictional doctrines. inement occurred recently enough lated under the ordinance, does not parties have standing to challenge o disable the applicant under the place such a burden on the right to Appeal § 1332 — inquiry as to ju- the provision on the ground that risdiction the have had their licenses denied ,rdinance; thus, (1) a party who freedom of association as to violate 9. Ever federal a Y the Federal Constitution, because (1) Y appellate court based on criminal conviction, be- ;tates in an affidavit that he has the sorts of Constitution, bonds that are has a special obligation to satisfy cause the necessary factual predi- )een convicted of three misde- P itself not only of its own jurisdiction, neanor violations within a 24-month Protected by the right to freedom of but also that of the lower courts in a cafe for standing may not be gleaned association are those that have cause under review, even though the from the briefs and arguments them- )eriod lacks standing where he has played a critical role in the culture selves; and (2) may not rely on an -ailed to state when he was con- and traditions of the nation by cube parties risdic are prepared to concede ju- affidavit filed by the city which .he d of the last misdemeanor or vatin and transmitting shared ide- states that two licenses were re- me date of his release from confine- als and beliefs; (2) any "personal Appeal § 1334 — jurisdiction of voked on the grounds of a prior :tent, and (2) no other party has bonds" that are formed from the use court below conviction since the ordinance went standing where none has alleged of a motel room for less than 10 10. If the record discloses that the into effect, but which fails to identify acts to establish standing and the hours are not such traditional bonds; lower court was without jurisdiction, the licensees, because (a) such an District Court made no factual find- and thus (3) the provision has no the United States Supreme Court P affidavit is evidence first introduced ings that could support standing. discernible effect on such traditional will notice the defect, although the to the Supreme Court and is not in 1 Constitutional Law §694 — due bonds. parties make no contention concern- the record of the proceedings below, process — licensing — adult Appeal § 1331.5 — what reviewa- ing it. and (b) even if the Supreme Court motels ble Pleading §§ 107, 114 —standing— could take into account the facts as 5a, 5b. For purposes of the due 7a-7c. On certiorari, the United jurisdictional averments — alleged in the affidavit, the affidavit States Supreme Court w not necessary allegations of facts fails to identify the individuals process clause of the Federal Consti ill reach tution's Fourteenth Amendment, a the merits of parties' challenges, un- 11. Standing cannot be inferred whose licenses were revoked and, city's determination that motels per- der the Federal Constitution's First argumentatively from averments in therefore, falls short of establishing miffing room rentals for less than 10 Amendment, to the validity of vari the pleadings, but rather must affir- that any party before the Supreme y ordinance a city matively appear in the record; it is Court has had a license revoked un- hours should be included within a ous provisions of the burden of the party who seeks licensing scheme in a comprehensive regulating sexually oriented busi- the exercise of jurisdiction in his der the provision and thus has ordinance regulating sexually ori- nesses, where the parties fail to standing. favor clearly to allege facts demon- ented businesses is adequately sup- show that they have standing to ported by (1) the reasonableness of challen a such provisions. strafing that he is a proper party to Appeal §1706 — dismissal — lack g invoke judicial resolution of the dis- of jurisdiction the city's legislative judgment that pute; the parties must allege facts shorter rental time periods indicate Appeal § 1333; Courts §245 — in- essential to show jurisdiction, and if 13. On certiorari to review a that such motels foster prostitution quiry as to jurisdiction — they fail to make the necessary alle- United States Court of Appeals deci- -this type of criminal activity being standing gations, they have no standing. sion as to the validity of provisions what the ordinance seeks to sup- 8. On certiorari to review a United of a city ordinance which prohibit press--combined with (2) a study by States Court of Appeals decision in- Appeal §§ 1011, 1017, 1018 — con- the issuance of a license for the another city that considered curso- volving the validity of provisions of sideration of statements not operation of a sexually oriented busi- rily the effect of adult motels on a city ordinance, the United States in record — affidavit — suffi. ness to (1) an applicant who has ciency of recital been convicted of any of certain enu- surro[�annotation ti p 1151snfral dress e he Court whether required parties 12. On certiorari to review a deci- merated crimes, or (2) an applicant 608 609 a° `t U.S. SUPREME COURT REPORTS 107 L Ed 2d FW/PBS, INC. v DALLAS (1990)493 US 215,107 L Ed 2d 603,110 S Ct 596 f _ Whose spouse has been convicted of 15. Owners of motels that rent � ordinance but struck down several be moot, since the city council de- any of such crimes, the United rooms for less than 10 hours have j subsections, and the city subse- leted from the statutory list the States Supreme Court will vacate standing, for purposes of the Federal quently amended the ordinance in crimes of which her husband was :he Court of Appeals'judgment with Constitution's Article III, to chal. conformity with the court's judg- convicted after the District Court -espect to those provisions, with di- lenge a provision of a city ordinance ment. The Court of Appeals af- ruled that the inclusion of such con- regulating to dismiss that portion of regulating sexually oriented busi firmed, holding, inter alia, that the victions was unconstitutional. Fur- :he action,where the Supreme Court nesses—which provision states that ordinance's licensing scheme did not thermore, although one party stated --oncludes that no party has shown motels that rent rooms for less than violate the First Amendment despite in an affidavit that he had been standing to challenge either of the 10 hours are sexually oriented busi- its failure to provide the procedural convicted of three enumerated mis- provisions, and that the courts below nesses and are, therefore, regulated 380 lated safeguards set forth in Freedman v lacked jurisdiction to adjudicate the Maryland, demeanors, he lacked standing, since under the ordinance—because such US 51, 13 L Ed 2d he failed to state when he had been claims of the parties with respect to owners have a live controversy 649, 85 S Ct 734, and that its civil those provisions. (Stevens, J., dis- disability provisions and its provi- convicted of the last misdemeanor or sented from this holding.) against enforcement of the provi- sion requiring licensing for "adult the date of his release from confine- sion. ment and, therefore, has not shown Appeal § 1662 — effect of decision motel owners renting rooms for that he is still within the statutory on other grounds Appeal § 1112.5 — issues not fewer than 10 hours were constitu- disability period. This Court cannot 14a, 14b. On certiorari to review a raised below tional. United States Court of Appeals deci- 16. On certiorari to review a Held: The judgment is affirmed in rely r the city s representations at sion as to the validity of a licensing art, reversed in art, and vacated oral argument that one or two of the United States Court of Appeals deci- p P petitioners had been denied licenses scheme in a comprehensive city ordi- sion as to the validityof a provision in part, and the cases are remanded. P based on convictions, since the nec- nance regulating sexually oriented of a city ordinance regulating sexu- 837 F2d 1298, affirmed in part, businesses, the United States Su- reversed in art, vacated in essary factual predicate must be preme Court—upon concluding that ally oriented businesses—which pro- P part, gleaned from the record below. Simi- vision states that motels that rent and remanded. the licensing requirement violates Justice O'Connor delivered the larly, the city's affidavit indicating I the Federal Constitution's First rooms for less than 10 hours are opinion of the Court with respect to that two licenses were revoked for Amendment because it lacks essen- sexually oriented businesses and are, Parts III and IV, concluding that: convictions is unavailing, since the tial procedural safeguards, and that therefore, regulated under the ordi- affidavit was first introduced in this no party has standing to challenge nance—the United States Supreme 1. No petitioner has shown stand- _ other articular provisions challenge the Court will decline to consider ing to challenge (1) the ordinance's Court and is not part of the record, p provision which prohibits the licens- and, in any event, fails to identify licensing scheme—will not reach whether the provision violates the ing of an applicant who has resided the individuals whose licenses were questions involving a variety of federal constitutional right to be let with an individual whose license ap- revoked. Because the courts below other First Amendment challenges alone, and whether the provision plication has been denied or re- lacked jurisdiction to adjudicate peti- to the scheme. infringes the commercial speech voked, or (2) the civil disability pro- tioners' claims,the Court of Appeals' Municipal Corporations §37.5 — rights of the owners of such motels, visions, which disable for specified judgment with respect to the disabil- standing to challenge ordi- where these issues were not pressed periods those who have been con- ity provisions is vacated, and the nance—motel owners or passed upon below. victed of certain enumerated crimes, court is directed to dismiss that por- SYLLABUS BY REPORTER OF DECISIONS been well as those whose spouses have tion of the suit. been so convicted. The record does 2. The ordinance's provision re- Respondent city of Dallas adopted be licensed and includes civil disabil- not reveal that any petitioner was quiring licensing for motels that a comprehensive ordinance regulat- ity provisions prohibiting certain in- living with an individual whose ap- rent rooms for fewer than 10 hours ing sexually oriented businesses," dividuals from obtaining licenses. plication was denied or whose li- is not unconstitutional. The motel which are defined to include "adult" Three groups of individuals and cense was revoked. Moreover, al- owner. petitioners' contention that arcades, bookstores, video stores, businesses involved in the adult en- though the record reveals one indi- the city has violated the Due Process cabarets, motels, and theaters, as tertainment industry filed separate vidual who potentially could be dis- Clause by failing to produce ade- well as escort agencies, nude model suits challenging the ordinance on abled under the spousal conviction quate support for its supposition studios, and sexual encounter cen- numerous grounds and seeking in- provision, that person is not herself that renting rooms for fewer than 10 ters. Among other things, the ordi- junctive and declaratory relief. The a license applicant or a party to this hours results in increased crime or nance requires that such businesses District Court upheld the bulk of the action. Even if she did have stand- other secondary effects is rejected. ing, however, her claim would now As the Court of Appeals recognized, 610 611 U.S. SUPREME COURT REPORTS 107 L Ed 2d ' FW/PBS, INC. v DALLAS (1990)493 US 215,107 L Ed 2d 603, 110 S Ct 596 .t was reasonable to believe that regulation is challenged as over : quo must be maintained; (2) expedi- isterial action of reviewing the e shorter rental time periods indicate broad. Petitioners argue that the tious judicial review of that decision eral qualifications of each license :hat the motels foster prostitution, licensing scheme fails to set a time must be available; and (3)the censor applicant. It therefore need not be and that this type of criminal activ- limit within which the licensing au- must bear the burden of goingto required to carry the burden of go- Ay is what the ordinance seeks to thority must act. Since Freedman, suppress. The reasonableness of the supra, at 56-57, 13 L Ed 2d 649, 85 S court to suppress the speech and ing to court or of there justifying a !e islative judgment, along with the Ct 734, held that such a failure is a must bear the burden of proof once decision to suppress speech. More- g j gm g in court. Like a censorship system, a over, unlike the motion picture dis- Los Angeles study of the effect of species of unbridled discretion, every licensingscheme creates the ossibil- adult motels on surrounding neigh- application of the ordinance creates p tributors considered in Freedman— borhoods that was before the city an impermissible risk of suppression sp that constitutionally protected who were likely to be deterred from P speech will be suppressed where council when it passed the ordi- of ideas. Moreover, the businesses there are inadequate challenging the decision to suppress q procedural nance, provided sufficient support challenging the licensing scheme safeguards to ensure prompt issu- a particular movie if the burdens of for the limitation. Also rejected is have a valid First Amendment inter- ante of the license. Thus, the license going to court and of proof were not the assertion that the 10-hour limi- est. Although the ordinance applies for a First Amendment-protected placed on the censor—the license tction places an unconstitutional to some businesses that apparently business must be issued in a reason- applicants under the Dallas scheme burden on the right to freedom of are not protected by the First able have ever incentive to association recognized in Roberts v Amendment—e. g., escort agencies Period o time, and, accordingly, Y pursue a g the first two Freedman safeguards license denial through court, since United States Jaycees, 468 US 609, and sexual encounter centers—it are essential. Here, although the the license is the key to their obtain- 618, 82 L Ed 2d 462, 104 S Ct 3244. largely targets businesses purveying Dallas ordinance requires the chief ing and maintaining a business. Ri- Even assuming that the motel own- sexually explicit speech which the of police to approve the issuance of a ley v National Federation of Blind of ers have standing to assert the asso- city concedes for purposes of this license within 30 days after receipt N.C., Inc. 487 US 781, 101 L Ed 2d cational rights of motel patrons, litigation are protected by the First of an application, it also conditions 669, 108 S Ct 2667, is not dispositive limiting rentals to 10 hours will not have any discernible effect on the Amendment. While the city has as- such issuance upon approval by of this litigation, since, although it serted that it requires every business other municipal inspection agencies struck down a licensing scheme for sorts of traditional personal bonds _.regardless of whether it engages without setting forth time limits failing to provide adequate proce- considered in Roberts: those that within which those inspections must dural safeguards, it did not address in First Amendment-protected play a critical roles the Nations speech—to obtain a certificate of oc- occur. Since the ordinance therefore the proper scope of procedural safe- culture and traditions by cultivating cu ancy when it moves into a new fails to provide an effective time p and transmitting shared ideals and P p ands with respect to such a beliefs. This Court will not consider location or the use of the structure limitation on the licensing decision, scheme. Since the Dallas ordinance changes, the challenged ordinance and since it also fails to provide an the motel owners privacy and tom- nevertheless is more onerous with summarily states that its terms and nevere mercial speech challenges, since avenue for prompt judicial review so provisions are severable, the Court those issues were not pressed or respect to sexually oriented busi- as to minimize suppression of speech in the event of a license denial its m Appeals must, on remand, deter- nesses, which are required to submit Pp passed upon below. � mine to what extent the licensing Justice O'Connor, joined by Jus- to inspections—for example, when licensing requirement is unconstitu- requirement is severable. tice Stevens and Justice Kennedy, their ownership changes or when tional insofar as it is enforced Justice Brennan,joined by Justice concluded in Part II that the ordi- they apply for the annual renewal of against those businesses engaged in Marshall and Justice Blackmun al- nance's licensing scheme violates the their permits—whether or not they First Amendment activity, as deter- though agreeing that the ordinance's First Amendment, since it consti- have moved or the use of their strut- mined by the court on remand. How- tutes a prior restraint upon pro- tures has changed. ever, since the licensing scheme at licensing scheme is invalid as to any tected expression that fails to pro- (b)Freedman,supra, at 58-60, 13 L issue is significantly different from First Amendment-protected business vide adequate procedural safeguards Ed 2d 649, 85 S Ct 734, determined the censorship system examined in under the Freedman doctrine, con- as required by Freedman, supra. that the following procedural safe- Freedman, it does not present the cluded that Riley mandates applica- (a) Petitioners may raise a facial guards were necessary to ensure ex- grave dangers of such a system, and tion of all three of the Freedman challenge to the licensing scheme. peditious decisionmaking by a mo- the First Amendment does not re- procedural safeguards, not just two Such challenges are permitted in the tion picture censorship board: (1) quire that it contain the third Freed- of them. Riley v National Federation First Amendment context where the any restraint prior to judicial review man safeguard. Unlike the Freed- of Blind of N.C., Inc., 487 US 781, scheme vests unbridled discretion in can be imposed only for a specified man censor, Dallas does not engage 802, 101 L Ed 2d 669, 108 S Ct 2667, the decisionmaker and where the brief period during which the status in presumptively invalid direct cen- applied Freedman to invalidate a sorship of particular expressive ma- professional licensing scheme with terial, but simply performs the min- respect to charity fundraisers who were 612 613 `4f. U.S. SUPREME COURT REPORTS 107 L Ed 2d FW/PBS, INC. v DALLAS 0990)493 US 215,107 L Ed 2d 603,110 S Ct 596 gaged in First Amendment-protected is the unlawful stifling of speech litigation comes to us, no issue is specified in the ordinance; and adult :tivity, ruling that the scheme that results. Thus, there are no rele- presented with respect to whether motel owners. Following expedited ust require that the licensor—i. e., vant differences between the fun- the books, videos, materials, or en- discovery, petitioners' constitutional ,e State, not the would-be fun- draisers in Riley and the petitioners tertainment available through sexu- claims were resolved through cross- raiser—either issue a license here, and, in the interest of protect- ally oriented businesses are obscene motions for summary judgment. Af- ithin a specified brief period or go ing speech, the burdens of initiating pornographic materials. ter a hearing, the District Court court. The principal opinion's judicial proceedings and of proof i upheld the bulk of the ordinance, rounds for declining to require the must be borne by the city. } I striking only four subsections. See iird Freedman safeguard—that the O'Connor, J., announced the judg- On June 18, 1986, the city council Dumas v Dallas, 648 F Supp 1061 +allas scheme does not require an ment of the Court and delivered the of the city of Dallas unanimously (ND Tex 1986). The District Court dministrator to engage in the pre- opinion of the Court with respect to ' adopted Ordinance No. 19196 regu- struck two subsections, §§41A-5(a)(8) umptively invalid task of passing Parts I and IV, in which Rehnquist, lating sexually oriented businesses, and 41A-5(c), on the ground that idgment on whether the content of C. J., and White, Stevens, Scalia, which was aimed at eradicating the they vested overbroad discretion in articular speech is protected, and and Kennedy, JJ., joined, the opin- secondary effects of crime and urban the chief of police, contrary to our hat it licenses entire businesses, not ion of the Court with respect to Part blight. The ordinance, as amended, holding 4 Shu 47, 1 0-1 v Birmin d ust individual films, so that appli- III, in which Rehnquist, C. J., and defines a "sexually oriented busi- ham, 394 US 147, 150 151, 22 L Ed ants will not be inclined to abandon White, Scalia, and Kennedy, JJ., i ness," as "an adult arcade, adult 2d 162, 89 S Ct 935 (1969). See 648 F heir interests--do not distinguish joined, and an opinion with respect 1 bookstore or adult video store, adult Supp, at 1072-1073. The District he present litigation from Riley, to Part II, in which Stevens and cabaret, adult motel, adult motion Court also struck the provision that vhere the licensor was not required Kennedy, JJ., joined. Brennan, J., C picture theater, adult theater, escort imposed a civil disability merely on o distinguish between protected and filed an opinion concurring in the agency, nude model studio, or sexual the basis of an indictment or infor- inprotected speech, and where the judgment, in which Marshall and encounter center." Dallas City Code, mation, reasoning that there were 'undraisers had their entire liveli- Blackmun, JJ., joined. White, J., ch 41A, Sexually Oriented Busi- less restrictive alternatives to foods at stake. Moreover, the danger filed an opinion concurring in part nesses §41A-2(19) (1996). The ordi- achieve the city's goals. See id., at 4 posed by a license that prevents a and dissenting in part, in which nance regulates sexually oriented 1075 (citing United States v O'Brien, Speaker from speaking at all is not Rehnquist, C. J., joined. Stevens, J., businesses through a scheme incor- 391 US 367, 20 L Ed 2d 672, 88 S Ct lerived from the basis on which the and Scalia, J., filed opinions concur- porating zoning, licensing, 1673 (1968)). Finally, the District license was purportedly denied, but ring in part and dissenting in part. [493 US 221) Court held that five enumerated and in- crimes from the list of those creating APPEARANCES OF COUNSEL spections.The ordinance also includes civil disability were unconstitutional a civil disability provision,which pro- because they were not sufficiently John H.Weston argued the cause for petitioners. hibits individuals convicted of certain related to the purpose of the ordi- Analeslie Muncy argued the cause for respondents. crimes from obtaining a license to nance. See 648 F Supp, at 1074 Briefs of Counsel,p 1148,infra. operate a sexually oriented business (striking bribery, robbery, kidnaping, for a specified period of years. organized criminal activity, and vio- OPINION OF THE COURT Three separate suits were filed lations of controlled substances (493 US 2201 straint that fails to provide adequate challenging the ordinance on numer- Acts). The city of Dallas subse- Justice O'Connor announced the procedural safeguards as required by ous grounds and seeking preliminary quently of the Court and delivered Freedman v Maryland, 380 US 51, and permanent injunctive relief as [as3 US 222) judgment amended the ordinance in con- the opinion of the Court with respect 13 L Ed 2d 649, 85 S Ct 734 (1965)• well as declaratory relief. Suits were formity with the District Court's judg- to Parts I, III, and IV, and an opin- We must also decide whether any brought by the following groups of ment. ion with respect to Part II, in which petitioner has standing to address individuals and businesses: those in- Justice Stevens and Justice Ken• the ordinances civil disability provi- volved in selling, exhibiting, or dis- The Court of Appeals for the nedy join. sions, whether the city has suffi- tributing publications or video or Fifth Circuit affirmed. 837 F2d ciently justified its requirement that motion picture films; adult cabarets 1298 (CA5 1988). Viewing the [1a, 2a, 39, 4a, Sa, 6a] These cases motels renting rooms for fewer than or establishments providing live ordinance as a content-neutral time, call upon us to decide whether a 10 hours be covered by the ordi- nude dancing or films, motion pic- place, and manner regulation un- licensing scheme in a comprehensive nance, and whether the ordinance tures, video cassettes, slides, or other der Renton v Playtime Theatres, city ordinance regulating sexually impermissibly infringes on the right photographic reproductions depict- Inc. 475 US 41, 89 L Ed 2d 29, oriented businesses is a prior re- to freedom of association. As this ing sexual activities and anatomy 106 S Ct 925 (1986), the Court of 614 615 U.S. SUPREME COURT REPORTS 107 L Ed 2d FW/PBS, INC. v DALLAS (1990)493 US 215, 107 L Ed 2d 603, 110 S Ct 596 Appeals upheld the ordinance tion of sexually oriented businesses cisionmaker and where the regula- Ct 215 (1959)(bookstores); Southeast- igainst petitioners' facial attack on do not violate the Federal Constitu- tion is challenged as overbroad. See ern Promotions, Ltd. v Conrad, su- .he ground that it is "'designed to tion, 485 US City Council of Los Angeles v Tax- pra (live theater performances); [as3 US 223] payers for Vincent, 466 US 789, 798, Young v American Mini Theatres, >erve a substantial government 1042, 99 L Ed 2d 919, nterest' and allowed for and n 15, 80 L Ed 2d 772, 104 S Ct Inc. 427 US 50, 49 L Ed 2d 310, 96 S " 108 S Ct 1605 (1988), and granted 2118 (1984). In Freedman, we held Ct 2440 (1976) (motion ' 'reasonable alternative avenues of that the failure to place limitations aters); Schad v Mount Ephraim, 452 :om s nable alternative 837 F2d, at 1303 certiorari, 489 US 1051, 103 L Ed 2d j picture the quoting Renton, supra, at 47, 89 L 578, 109 S Ct 1309 (1989). We now on the time within which acensor- US 61, 68 L Ed 2d 671 101 S Ct Ed 2d 29, 106 S Ct 925). The Court reverse in part and affirm in part. ship board decisionmaker must 2176 (1981) (nude dancing). As Jus- 3f Appeals further concluded that make a determination of obscenity is tice Scalia acknowledges, post, at the licensing scheme's failure to pro- II a species of unbridled discretion. See 262, 107 L Ed 2d, at 642, the city vide the procedural safeguards set jib] We granted certiorari on the Freedman, supra, at 56-57, 13 L Ed does not argue that the businesses forth in Freedman v Maryland, su- issue whether the licensing scheme 2d 649, 85 S Ct 734 (failure to con- targeted are engaged in purveying pra, withstood constitutional chal- is an unconstitutional prior restraint fine time within which censor must obscenity which is unprotected by lenge, because such procedures are that fails n provide adequate proce make decision "contains the same the First Amendment. See Brief for less important when regulating "the that safeguards as required by vice as a statute delegating excessive Respondents 19, 20, and n 8 ("[T]he conduct of an ongoing commercial dural Freedman v Maryland, 380 US 51, administrative discretion"). Thus, city is not arguing that the ordi- enterprise." 837 F2d, at 1303. 13 L Ed 2d 649 85 S Ct 734 (1965). where a scheme creates a "[r]isk of nance does not raise First Amend- Additionall , the Court of Appeals Petitioners involved in the adult en- delay," 380 US, at 55, 13 L Ed 2d ment concerns . . . y P 649, 85 S Ct 734 • [T]he right to upheld the provision of the ordi- tertainment industry and adult cab sell this material is a constitution- [493 US 224] nance providing that motel owners arets argue that the licensing ally protected right . . ."). See also scheme fails to set a time limit such that 'ev- Miller v California, 413 US 15, 23- renting rooms for fewer than 10 hich the licensi authority ery application of the statute create[s] 24, 37 L Ed 2d 419, 93 S Ct 2607 hours were adult motel owners within w ng an impermissible risk of suppression (1973). Nor does the city rely upon �. and, as such, were required obtain creates st stheue alikel hood license nof arb trary of ideas," Taxpayers for Vincent, su- Ginzburg v United States, 383 US a license under the ordinann ce. See denials and the concomitant sup- pra, at 798, n 15, 80 L Ed 2d 772, 104 463P , 16 L Ed 2d 31, 86 S Ct 942 §§41A-2(4); 41A-18. The motel own- ression of speech. Because we con- S Ct 2118, we have permitted parties (1966), or contend that those busi- ers attacked the provision on the P ude that the city's licensing to bring facial challenges. nesses governed by the ordinance ground that the city had made no scheme lacks adequate procedural The businesses regulated by the P are engaged in pandering. It is this finding that adult motels engendered safeguards, we do not reach the is- city's licensing scheme include adult Court's practice to decline to review the evils the city was attempting to sue decided by the Court of Appeals arcades (defined as places in which those issues neither pressed nor redress. The Court of Appeals con- whether the ordinance is properly passed u cluded that the 10-hour limitation motion pictures are shown to five or P Pon below. See 47 L Ed v h was based on the reasonable supposi- viewed as a content-neutral time, fewer individuals at a time, see 701, Miller, 425 US 231, 234, L Ed 2d tion that short rental periods faciai- Place, and manner restriction aimed §41A-2(1)), adult bookstores or adult ria m). 96 S Ct 1399 (1976) (per cu- tate prostitution, one of the second- at secondary effects arising out of video stores, adult cabarets, adult ia the sexually oriented businesses. Cf. motels, adult motion picture the [493 US 2251 ary effects the city was attempting Southeastern Promotions, Ltd. v aters, adult theaters, escort agencies, The city asserted at oral argument to remedy. See 837 F2d, at 1304.304. Conrad, 420 US 546, 562, 43 L Ed 2d nude model studios, and sexual en- that it requires every business- Finally, the Court of Appeals up- 448,95 S Ct 1239 (1975). counter centers, §§41A-2(19) and without regard to whether it en- held the civil disability provisions, as 41A-3. Although the ordinance ap- gages in First Amendment-protected modified by the District Court, on A plies to some businesses that appar- speech-to obtain a certificate of oc- the ground that the relationship be- ently are not protected by the First cupancy when it moves into a new tween "the offense and the evil to be We note at the outset that peti Amendment, e.g., escort agencies location or the use of the structure regulated is direct and substantial." tioners raise a facial challenge to and sexual encounter centers, it changes. Tr of Oral Arg 49; see also Id., at 1305. the licensing scheme. Although fa- largely targets businesses purveying App 42, Dallas City Code §51-1.104 cial challenges to legislation are gen- sexually explicit speech which the (1988) (certificate of occupancy re- We granted petitioners' applica- erally disfavored, they have been cityconcedes for tion for a stay of the mandate except permitted in the First Amendment purposes of these tion o where there is new construc- tion a cases are protected by the First tion or before occupancy if there is a for the holding that the provisions of context where the licensing scheme Amendment. Cf. Smith v California, thane in use). Under the chal- the ordinance regulating the loca- vests unbridled discretion in the de- 361 US 147, 150, 4 L Ed 2d 205, 80 S lenged ordinance, however, inspec- 616 617 U.S. SUPREME COURT REPORTS 107 L Ed 2d FWlPBS,INC.v DALLAS (1990)493 US 215,107 L Ed 2d 603, 110 S Ct 596 ions are required for sexually ori- ment official or agency constitutes a dressed a motion picture censorship ment, and the building official as nted businesses whether or not the prior restraint system that failed to provide for being in compliance with applicable usiness has moved into a new struc- [493 US 2261 adequate procedural safeguards to laws and ordinances." and may result in cen- ensure against unlimited su §41A-5(ax6). ure and whether or not the use of sorship." Lakewood v Plain Dealer ! sion of �onstitutionall ppres- Moreover, the ordinance does not set he structure has changed. There- y protected a time limit within which the in- :)re, even assuming the correctness Publishing Co. 486 US 750, 757, 100 speech. 380 US, at 57, 13 L Ed 2d spections must occur. The ordinance ,f the city's representation of its L Ed 2d 771, 108 S Ct 2138(1988).See 649, 85 S Ct 734. Like a censorship provides no means by which an ap- 'general" inspection scheme, the Saia v New York, 334 US 558, 92 L system, a licensing scheme creates plicant may ensure that the business cheme involved here is more oner- Ed 1574, 68 S Ct 1148 (1948); Nie- the possibility that constitutionally is inspected within the 30-day time )us with respect to sexually oriented motko v Maryland, 340 US 268, 95 protected speech will be suppressed period within which the license is )usinesses than with respect to the L Ed 267, 71 S Ct 325 (1951); Kunz where there are inadequate proce- purportedly to be issued if approved. ast majority of other businesses. v New York,340 US 290,95 L Ed 280, dural safeguards to ensure prompt The city asserted at oral argument For example, inspections are re- 71 S Ct 312 (1951); Staub v City of issuance of the license. In Riley v that when applicants apply for licen- quired whenever ownership of a sex- Baxley, 355 US 313, 2 L Ed 2d 302, National Federation of Blind of N.C., ses, they are given the telephone ually oriented business changes, and 78 S Ct 277 (1958); Freedman v Inc. 487 US 781, 101 L Ed 2d 669, numbers of the various inspection when the business applies for the Maryland 380 US 51, 13 L Ed 2d 649, 108 S Ct 2667 (1988), this Court held agencies so that they may contact annual renewal of its permit. We, 85 S Ct 734 (1965); Cox v Louisiana, that a licensing scheme failing to them. Tr of Oral Arg 48. That mea- therefore, hold, as a threshold mat- 379 US 536, 13 L Ed 2d 471, 85 S Ct provide for definite limitations on sure, obviously, does not place any ter, that petitioners may raise a fa- 453 (1965); Shuttlesworth v Birming- the time within which the licensor limits on the time within which the cial challenge to the licensing ham, supra; Secretary of State of must issue the license was constitu- scheme, and that as the suit comes Maryland v Joseph H. Munson Co. tionally unsound, because the "delay city will inspect the business and y thereby make the business eligible to us, the businesses challenging the 467 US 947, 81 L Ed 2d 786, 104 S compel[led] the speakers silence-" for the sexually oriented business scheme have a valid First Amend- Ct 2839(1984)."'It is settled by a long Id., at 802, 101 L Ed 2d 669, 108 S Ct ment interest. line of recent decisions of this Court 2667. The failure to confine the time scheme allows indefinite postpone- license. Thus, the city' regulatory i within which the licensor must that an ordinance which . . . makes make a decision "contains the same ment of the issuance of a license. B the peaceful enjoyment of freedoms vice as a statute delegating which the Constitution guarantees [493 US 2271 In Freedman, we determined that While "[p]rior restraints are not contingent upon the uncontrolled will xcessive the following three procedural safe- unconstitutional per se . . . [a]ny of an official-as by requiring a administrative discretion," Freed- guards were necessary to ensure ex- system of prior restraint . . . comes permit or license which may be man, supra, at 56-57, 13 L Ed 2d peditious decisionmaking by the mo- to this Court bearing a heavy pre- granted or withheld in the discretion 649, 85 S Ct 734. Where the licensor tion picture censorship board: (1) sumption against its constitutional of such official-is an unconstitu- has unlimited time within which to any restraint prior to judicial review validity." Southeastern Promotions, tional censorship or prior restraint issue a license, the risk of arbitrary can be imposed only for a specified Ltd. v Conrad, 420 US, at 558, 43 L upon the enjoyment of those free- suppression is as great as the provi- brief period during which the status Ed 2d 448, 95 S Ct 1239. See, e.g., doors.'"Shuttlesworth,supra,at 151, sion of unbridled discretion. A quo must be maintained; (2) expedi- Lovell v Griffin, 303 US 444, 451- 22 L Ed 2d 162, 89 S Ct 935 (quoting scheme that fails to set reasonable tious judicial review of that decision 452, 82 L Ed 949, 58 S Ct 666 (1938); Staub, supra, at 322, 2 L Ed 2d 302, time limits on the decisionmaker must be available; and (3) the censor Cantwell v Connecticut, 310 US 296, 78 S Ct 277). creates the risk of indefinitely sup- must bear the burden of going 306-307, 84 L Ed 1213, 60 S Ct 900, pressing permissible speech. to court to suppress the speech 128 ALR 1352 (1940); Cox v New Second, a prior restraint that fails and must bear the burden of proof Hampshire, 312 US 569, 574-5759 85 to place limits on the time within Although the ordinance states once in court. Freedman, supra, L Ed 1049, 61 S Ct 762, 133 ALR which the decisionmaker must issue that the chief of police shall ap- at 58-60, 13 L Ed 2d 649, 85 S Ct 734. 1396 (1941); Shuttlesworth v Bir- the license is impermissible. Freed- prove the issuance of a license by [493 US 228) mingham, 394 US, at 150-151, 22 L man, supra, at 59, 13 L Ed 2d 649, the assessor and collector of taxes to Although we struck the licensing Ed 2d 162, 89 S Ct 935. Our cases 85 S Ct 734; Vance v Universal an applicant within 30 days after provision in Riley v National Feder- addressing prior restraints have Amusement Co., 445 US 308, 316, 63 receipt of an application," the li- ation of Blind of N.C., Inc., supra, on identified two evils that will not be L Ed 2d 413, 100 S Ct 1156 (1980) cense may not issue if the "premises the ground that it did not provide tolerated in such schemes. First, a (striking statute on ground that it to be used for the sexually oriented adequate procedural safeguards, we scheme that places "unbridled dis- restrained speech for an indefinite business have not been approved by did not address the proper scope of cretion in the hands of a govern- duration"). In Freedman, we ad- the health department, fire depart- procedural safeguards with respect 618 619 1 U.S. SUPREME COURT REPORTS 107 L Ed 2d FW/PBS, INC. v DALLAS 1 (1990)493 US 215,107 L Ed 2d 603,110 S Ct 596 to a licensing scheme. Because the tor, on the other hand, may be ; was to be suppressed and of justify- TER 1 of the Dallas City Code, as licensing scheme at issue in this case equally unwilling to accept the ing its decision once in court. Under amended." We therefore remand to does not present the grave "dangers burdens and delays of litigation in the Dallas ordinance, the city does the Court of Appeals for further of a censorship system," Freedman, a particular area when, without not exercise discretion by passing determination whether and to what supra, at 58, 13 L Ed 2d 649, 85 S Ct such difficulties, he can freely ex- judgment on the content of any pro- extent the licensing scheme is sever- 734, we conclude that the full proce- hibit his film in most of the rest of tected speech. Rather, the city re- able. Cf. Lakewood v Plain Dealer dural protections set forth in Freed- the country . . . . 380 US, at 59, views the general qualifications of Publishing Co. 486 US, at 772, 100 L man are not required. 13 L Ed 2d 649, 85 S Ct 734. each license applicant, a ministerial Ed 2d 771, 108 S Ct 2138 (remanding ;[993 US 229] action that is not presumptively in- for determination of severability). The core policy underlying Freed- Moreover, a censorship system cre• valid. The Court in Freedman also man is that the license for a First ates special concerns for the protec- placed the burdens on the censor, III Amendment-protected business must tion of speech, because "the risks of because otherwise the motion pic- be issued within a reasonable period freewheeling censorship are formida• ture distributor was likely to be det• [7a, 8, 9, 10] We do not reach the of time, because undue delayresults erred from challenging the decision merits of the adult entertainment � g blS Southeastern Promotions, 420 to suppress the speech and, there- and adult cabaret petitioners' chal- in the unconstitutional suppression US, at 559, 43 L Ed 2d 448, 95 S Ct fore, the censor's decision to sup- lenges to the civil disability provi- of protected speech. Thus, the first 1239. two safeguards are essential: the li- press was tantamount to complete sion, §41A-5(a)(10), and the provi- censor must make the decision As discussed supra, the Dallas suppression of the speech. The li- sion disabling individuals residing whether to issue the license within a scheme does not provide for an effec- tense applicants under the Dallas with those whose licenses have been specified and reasonable time period tive limitation on the time within scheme have much more at stake denied or revoked, §41A-5(a)(5), be- during which the status quo is main- which the licensor's decision must be than did the motion picture distribu- cause petitioners have failed to show tained, and there must be the possi- made. It also fails to provide an for considered in Freedman, where they have standing to challenge bility of prompt judicial review in avenue for prompt judicial review so only one film was censored. Because them. See Brief for Petitioners in the event that the license is errone- as to minimize suppression of the the No. 87-2051, pp 22-40, 44; Brief for ously denied. See Freedman, supra, speech in the event of a license de- [493 US z3o] Petitioners in No. 87-2012, pp 12-20. at 51, 13 L Ed 2d 649, 85 S Ct 734. nial. We therefore hold that the fail- license is the key to the appli- Neither the District Court nor the See also Shuttlesworth, supra, at ure to provide these essential safe- cant's obtaining and maintaining a Court of Appeals determined 155, n 4, 22 L Ed 2d 162, 89 S Ct 935 guards renders the ordinance's li• business, there is every incentive for whether petitioners had standing to (content-neutral time, place, and tensing requirement unconstitu• the applicant to pursue a licensedenial through court. Because of challenge any particular provision of manner regulation must provide for tional insofar as it is enforced these differences, we conclude that the ordinance. Although neither side "expeditious judicial review"); Na- against those businesses engaged in the First Amendment does not re- raises the issue here, we are re- tional Socialist Party of America v First Amendment activity, as deter- quired to address the issue even if quire that the city bear the burden Skokie, 432 US 43, 53 L Ed 2d 96, 97 mined by the court on remand. of going to court to effect the denial the courts below have not passed on S Ct 2205 (1977). g g it, see Jenkins v McKeithen, 395 US The Court also required in Freed- of a license application or that it 411, 421, 23 L Ed 2d 404, 89 S Ct The Court in Freedman also re- man that the censor bear the burden bear the burden of proof once in 1843 (1969), and even if the parties of going to court in order to suppress court. Limitation on the time within fail to raise the issue before quired the censor to go to court and to bear the burden in court andjusti- the speech and the burden of proof which the licensor must issue the fying the denial. once in court. The licensing scheme license as well as the availability of [493 US 231] us. The we examine today is significantly prompt judicial review satisfy the federal courts are under an indepen- "Without these safeguards, it may different from the censorship scheme principle that the freedoms of ex- dent obligation to examine their own prove too burdensome to seek re- examined in Freedman. In Freed- pression must be ringed about with jurisdiction, and standing "is per- view of the censor's determination. man, the censor engaged in direct adequate bulwarks." Bantam Books, haps the most important of [the ju- Particularly in the case of motion censorship of particular expressive Inc. v Sullivan, 372 US 58, 66, 9 L risdictional] doctrines." Allen v pictures, it may take very little to material. Under our First Amend- Ed 2d 584,83 S Ct 631 (1963). Wright, 468 US 737, 750, 82 L Ed 2d deter exhibition in a given local- ment jurisprudence, such regulation Finally, we note that §5 of Ordi- 5560 104 S Ct 3315(1984). ity. The exhibitor's stake in any of speech is presumptively invalid nance No. 19196 summarily states one picture may be insufficient to and, therefore, the censor in Freed, that "[t]he terms and provisions "[of has a a s federal appellate court special obligation to 'satisfy warrant a protracted and onerous man was required to carry the bur- this ordinance are severable, and are itself not only of its own jurisdic- course of litigation. The distribu- den of going to court if the speech governed by Section 1-4 of CHAP- tion, but also that of the lower 620 621 U.S. SUPREME COURT REPORTS 107 L Ed 2d FWfPBS,INC.v DALLAS (1990)493 US 215, 107 L Ed 2d 603, 110 S Ct 596 courts in a cause under review,' Acceptance Corp 298 US 178, 189, 80 der the amended ordinance, once the sexually oriented business. But the even though the parties are pre- L Ed 1135, 56 S Ct 780 (1936), disability wife, although an officer of y g { tioner Bi-Ti Enterprises, Inc., peti- pared to concede it. Mitchell v "clearly to allege facts demonstrat- (as3 US 233] Maurer, 293 US 237, 244 [79 L Ed ing that he is a proper party to period has elapsed, the ap- [493 US 234] 338, 55 S Ct 1621 (1934). See Juid- invoke judicial resolution of the dis- plicant may not be denied a license is not ice v Vail, 430 US 327, 331-332 [51 pute." Warth v Seldin, 422 US 490, on the ground of a former convic- an applicant for a license or a party L Ed 2d 376, 97 S Ct 12111 (1977) 518, 45 L Ed 2d 343, 95 S Ct 2197 tion. to this action. See 12 Record, Evert (standing). 'And if the record dis- (1975). Thus, petitioners in this case [2b, 3b, 4b] Examination of the Affidavit 3-6. Cf. Bender, 475 US, at closes that the lower court was must "allege . . . facts essential to record here reveal that 548, and n 9, 89 L Ed 2d 501, 106 S s a no without jurisdiction this court will show jurisdiction. If [they] fai[1] to party Ct 1326. notice the defect, although the make the necessary allegations, has standing to challenge the provi- „ sion involving those residing with [3d] Even if the wife did have parties make no contention con- [they have] no standing. McNutt, individuals whose licenses were de- standing, her claim would now be cerning it.'" Bender v Williams- supra, at 189, 80 L Ed 1135, 56 S Ct nied or revoked. Nor does any party moot. Her husband's convictions un- port Area School Dist. 475 US 534, 780. have standing to challenge the civil der the Texas Controlled Substances 541, 89 L Ed 2d 501, 106 S Ct 1326 The ordinance challenged here disability provision disabling appli- Act would not now disable her from (1986). prohibits the issuance of a license to cants who were either convicted of obtaining a license to operate a sexu- [11] It is a long-settled principle an applicant who has resided with the specified offenses or whose ally oriented business, because the .-hat standing cannot be "inferred an individual whose license applica- spouses were convicted. city council, following the District argumentatively from averments in tion has been denied or revoked [2c, 3c] First, the record does not Court's decision, deleted the provi- the pleadings," Grace v American within reveal that any party before us was sion disablingthose with convictions Central Ins. Co. 109 US 278, 284, 27 (493 US 2321 under the Texas Controlled Sub- L Ed 932, 3 S Ct 207 (1883), but the preceding 12 months.' living with an individual whose li- stances Act or Dangerous Drugs Act. j rather "must affirmatively appear in The ordinance also has a civil dis- tense application was denied or App H to Pet for Cert in No. 87- the record." Mansfield C. & L. M. R. ability provision, which disables whose license was revoked. There- 2012, p 107. See Hall v Beals, 396 Co. v Swan, 111 US 379, 382, 28 L those who have been convicted of fore, no party has standing with US 45, 48, 24 L Ed 2d 214, 90 S Ct Ed 462, 4 S Ct 510 (1884). See King certain enumerated crimes as well respect to §41A-5(a)(5). Second, 200(1969). Bridge Co. v Otoe County, 120 US as those whose spouses have been §41A-5(a)(10) applies to applicants 225, 226, 30 L Ed 623, 7 S Ct 552 convicted of the same enumerated whose spouses have been convicted 14cj Finally, the record does not (1887) (facts supporting Article III crimes. This civil disability lasts for of any of the enumerated crimes, but reveal any party who has standing the record reveals only one individ- to challenge the provision disabling jurisdiction must "appea[r] affirma- two years i the case of years in ual who could be disabled under this an applicant who was convicted of lively from the record"). And it is meanor convictions and five years in the burden of the "party who seeks the case of conviction of a felony or provision. An individual, who had any of the enumerated crimes. To the exercise of jurisdiction in his of more than two misdemeanors been convicted under the Texas Con- establish standing to challenge that favor," McNutt v General Motors within a 24-month period.' Thus, un- trolled Substances Act, asserts that provision the individual must show his wife was interested in opening a both (1) a conviction of one or more 1. Section 41A-5(aY5) provides as follows: "(i) any of the following offenses as de- 'Vii) sexual assault or aggravated sexual ever is the later date, if the conviction is of a "The chief of police shall approve the issu- scribed in Chapter 43 of the Texas Penal assault as described in Chapter 22 of the felony offense;or ante of a license . . . unless he finds [that] Code: Texas Penal Code; "(iii)less than five years have elapsed since [a]n applicant is residing with a person "(aa)prostitution; "(iv)incest,solicitation of a child,or harbor- the date of the last conviction or the date of who has been denied a license by the city to "(bb)promotion of prostitution; operate a sexually oriented business within "(cc)aggravated promotion of prostitution; ing a runaway child as described in Chapter release from confinement for the last convic- 25 of the Texas Penal Code;or lion,whichever is the later date,if the convic- the preceding 12 months, or residing with a "(dd)compelling prostitution; "(v) criminal attempt, conspiracy, or solici- lions are of two or more misdemeanor offen- person whose license to operate a sexually "(ee)obscenity; oriented business has been revoked within the „M sale,distribution,or display of harmful tation to commit any of the foregoing offenses; sea or combination of misdemeanor offenses preceding 12 months." material to minor; "0 for which: occurring within any 24-month period. 2. Sections 41A-5(al(10), (b), and (c), as "(gg)sexual performance by a child; "(i) less than two years have elapsed since �) The fact that a conviction is being "(hh)possession of child pornography; the date of conviction or the date of release appealed shall have no effect on the disqualifi- amended,provide as follows: a as from confinement imposed for the conviction, cation of the applicant or applicant's spouse. "The chief of police shall approve the issu- scribed any of the y Chapter llo i ghe Texas Pe al whichever is the later date, if the conviction (c)An applicant who has been convicted or is of a misdemeanor offense; whose spouse has been convicted of an offense ante of a license . . . unless he finds [that] Code. p listed in Subsection (aX10) may qualify for a (10)An applicant or an applicant's spouse "(aa)Public lewdness; "(ii) less than five years have elapsed since sexually oriented business license only when the date of conviction or the date of release the time period required by Section 41A-5(a) has been convicted of a crime: "( )indecent exposure; "(A)involving: "(cc)indecency with a child; from confinement for the conviction, which- (100)has elapsed." 622 623 U.S. SUPREME COURT REPORTS 107 L Ed 2d FW/PBS, INC. v DALLAS (1990)493 US 215.107 L Ed 2d 603, 110 S Ct 596 the enumerated crimes, and (2) had their licenses denied based on standing); McNutt, 298 US, at 190, with the Court of Appeals that the :t the conviction or release from criminal conviction." Tr of Oral Arg 80 L Ed 1141, 56 S Ct 785(same)' reasonableness of the legislative ifinement occurred recently 32 See also Foster Affidavit 1 (affida- judgment, combined with the Los )ugh to disable the applicant un- vit filed by the city in its Response IV Angeles study, is adequate to sup- • the ordinance. See §§41A-5(a) to Petitioner's Application for Recall port the city's determination that •)(A), (B). If the disability period and Stay of the Mandate stating The motel owner petitioners chal- motels permitting room rentals for elapsed, the applicant is not that two licenses were revoked on lenge two aspects of the ordinance's fewer than 10 hours should be in- prived of the possibility of obtain- the grounds of a prior conviction requirement that motels that rent cluded within the licensing scheme. a license and, therefore, cannot since the ordinance went into effect rooms for fewer than 10 hours are but failing to identify the licensees). sexually oriented businesses and are, [493 US 2371 injured by the provision. We do not rely on the city's repre- therefore, regulated under the ordi. [6b, 151 The motel owners also "the only party who could plausi- sentations at argument as "the nec- nance. See §41A-18(a). First, they assert that the 10-hour limitation on y claim to have standing to chal- essary factual predicate may not be contend that the city had an insufli- the rental of motel rooms places an nge this provision is Bill Staten, gleaned from the briefs and argu- cient factual basis on which to con- unconstitutional burden on the right ho stated in an affidavit that he ments themselves," Bender, supra, clude that rental of motel rooms for to freedom of association recognized id been "convicted of three misde- at 547, 89 L Ed 2d 501, 106 S Ct fewer than 10 hours produced ad- in Roberts v United States Jaycees, .eanor obscenity violations within a 1326. And we may not rely on the verse impacts. Second, they contend 468 US 609, 618, 82 L Ed 2d 462, 104 aenty-four month period." 7 Rec- city's affidavit, because it is evidence that the ordinance violates privacy S Ct 3244 (1984) ("Bill of Rights . . . -d, Staten Affidavit 2. That clearly first introduced to this Court and "is rights, especially the right to inti- must afford the formation and pres- itisfies the first requirement. Under not in the record of the proceedings ! mate association. ervation of certain kinds of highly ie ordinance, any person convicted below," Adickes v S. H. Kress & Co. personal relationships"). The city f two or more misdemeanors 398 US 144, 157, n 16, 26 L Ed 2d [5b] With respect to the first con- does not challenge the motel owners' within any 24-month period," must 142, 90 S Ct 1598 (1970). Even if we tention, the motel owners assert that standing to raise the issue whether -ait five years following the last could take into account the facts as the city has violated the Due Process the associational rights of their mo- ,)nviction or release from confine- alleged in the city's affidavit, it fails Clause by failing to produce ade- tel patrons have been violated. .lent, whichever is later, before a to identify the individuals whose li- quate support for its supposition There can be little question that the !cense may be issued. See §41A-5(a) censes were revoked and, therefore, that renting rooms for fewer than 10 motel owners have "a live contro- 10)(B)(iii). But Staten failed to state falls short of establishing that any hours results in increased crime or versy against enforcement of the vhen he had been convicted of the petitioner before this Court has had other secondary effects. They con- statute" and, therefore, that they ast misdemeanor or the date of re- a license revoked under the civil tend that the council had before it have Art III standing. Craig v Boren, ease from confinement and, thus, disability provisions. only a 1977 study by the city of Los 429 US 190, 192, 50 L Ed 2d 397, 97 ias failed "clearly to allege facts 7b, 13, 14a] Because we conclude Angeles that considered cursorily S Ct 451 (1976). It is not clear, how- lemonstrating that he is a proper petitioner has shown stand the effect of adult motels on sur. ever, whether they have prudential, that no peon [493 US 2351 rounding neighborhoods. See Defen- jus tertii standing to challenge the party" to challenge the civil disabil- ing to challenge either the civil dis- dant's Motion for Summary Judg- ordinance on the ground that the ity provisions. No other petitioner ability provisions or the provisions ment, Vol 2, Exh 11. The Court of ordinance infringes the associational has alleged facts to establish stand- involving those who live with indi- Appeals thought it reasonable to be. rights of their motel patrons. Id., at ing, and the District Court made no viduals whose licenses have been lieve that shorter rental time eri- 193, 50 L Ed 2d 397, 97 S Ct 451. factual findings that could support denied or revoked, we conclude that p ods indicate that the motels foster But even if the motel owners have standing. Accordingly, we conclude the courts below lacked jurisdiction prostitution and that this type g, we do not believe that the petitioners lack standing to to adjudicate petitioners' claims with criminal activity is what the ordi. that limiting motel room rentals to challenge the provisions. See Warth, respect to those provisions. We ac- nance seeks to sup press. See 837 10 hours will have any discernible 422 US, at 518, 45 L Ed 2d 343, 95 S cordingly vacate the judgment of the F2d, at 1304. Therefore, no more effect on the sorts of traditional per- Ct 2197. Court of Appeals with respect to q extensive studies were required than sonal bonds to which we referred in those provisions with directions to those already available. We agree Roberts. Any "personal bonds" that [12] At oral argument, the city's dismiss that portion of the action. attorney responded as follows when See Bender, supra, at 549, 89 L Ed 3.[7c, 14b]Petitioners also raise a variety procedural safeguards and that no petitioner asked whether there was standing to 2d 501, 106 S Ct 1326(vacating judg- of other First Amendment challenges to the has standing to challenge the residency or challenge the civil disability provi- ment below on i ordinance's licensing scheme. In light of our civil disability sions: I believe that there are Orie [493 US 2361 1 conclusion that the licensing requirement is Provisions, we do not reach " ground of lack of I unconstitutional because it lacks essential those questions. or two of the Petitioners that have 624 625 U.S. SUPREME COURT REPORTS 107 L Ed 2d FW/PBS, INC. v DALLAS 0990)493 US 215,107 L Ed 2d 603,110 S Ct 596 ire formed from the use of a motel senting), and that the ordinance in- specified in Freedman v Maryland, We have never suggested that our •oom for fewer than 10 hours are fringes the motel owners' commer- 380 US 51, 13 L Ed 2d 649, 85 S Ct insistence on Freedman procedures not those that have "played a criti- cial speech rights. Because these is- 734 (1965), not just two of them, and might vary with the particular facts -a] role in the culture and traditions sues were not pressed or passed also to point out that Part III of of the prior restraint before us. To :)f the Nation by cultivating and upon below, we decline to consider Justice O'Connor's opinion reaches a the contrary, this Court has contin- them. See, e. Rogers v Lode question not necessary to the deci. ued to require Freedman procedures transmitting shared ideals and be- US 613, 628,n�10,73 L Ed 2d 1012, liefs." 468 US, at 618-619, 82 L Ed S S , 28, (10, 7 F C v Grolier sion. in a wide variety of contexts. In 2d 462, 104 S Ct 3244. We therefore Inc. 462 32 19, 23, n 6, 76 L Grolier 2d National Socialist Party of America reject the motel owners' challenge to Inc. 103 S Ct 2209 (1983). I v Skokie, 432 US 43, 53 L Ed 2d 96, the ordinance. 97 S Ct 2205 (1977), we held that [493 US 2381 In Freedman v Maryland, supra, even a court-ordered injunction must (16] Finally, the motel owners Accordingly, the judgment below be stayed if a challenge the regulations on the is armed in part, reversed in part, as Justice O'Connor notes, we held Y appellate review is not affirmed round that they violate the consti that three procedural safeguards are expedited. g and vacated in part, and the cases needed to "obviate the dangers of a [as3 US zoo) tutional right to be let alone, Olm- are remanded for further proceed Id., at 44, 53 L Ed 2d 96, stead v United States, 277 US 438, censorship system": f any prior judicial ings consistent with this opinion. straint in advance of a final judicial 97 S Ct 2205. And in Vance v Uni- 478, 72 L Ed 944, 48 S Ct 564, 66 versal Amusement Co. 445 US 308, ALR 376 (1928) (Brandeis, J., dis- It is so ordered. determination on the merits must 63 L Ed 2d 413, 100 S Ct 1156(1980), no longer than that necessary to SEPARATE OPINIONS preserve the status quo pending judi- we held that a general public nui- cial resolution; (2) a prompt judicial sance statute could not be applied to Justice Brennan, with whom Jus- ing the provisions applicable to adult determination must be available; enjoin a motion picture theater's fu- tice Marshall and Justice Black- motels, because I agree that the mo- and determination the would ture exhibition of films for a mum join, concurring in the judg- tel owners' claims are meritless. I censor must based on a presumption that such ment. agree further that it is not necessary bear both the burden of going to films would be obscene merely be- to reach petitioners other First court and the burden of proof in cause [1c] I concur in the judgment in- Amendment challenges. I write sepa- court. 380 US, at 58-59, 13 L Ed 2d Prior films had been, when validating the Dallas licensingprovi- rately, however, .because I believe 649, 85 S Ct 734. Freedman struck such a determination could be Goncon- that our decision two Terms ago down a statute that required motion chic inally made only o acces- sions, as applied to any First Amend in Riley v National Federation picture houses to submit films for dance with Freedman procedures. ment-protected business, because I [493 US 2391 p 445 US, at 317, 63 L Ed 2d 413, 100 agree that the licensing scheme does of Blind of N.C. Inc. 487 US 781, prior approval, without providing S Ct 1156. not provide the procedural safeguards 101 L Ed 2d 669, 108 S Ct 2667 any of these protections. Similar required under our previous cases.' I (1988), mandates application of all cases followed, e.g., Teitel File Corp. Two Terms ago, in Riley, this also concur in the judgment uphold- three of the procedural safeguards v Cusack, 390 US 139, 19 L Ed 2d Court applied Freedman to a profes- 966, 88 S Ct 754 (1968) (invalidating sional licensing scheme because the 1. Justice Scalia's opinion concurring in there is no "obscenity vel non" question in another motion picture censorship professionals involved, charity fun- part and dissenting in part, purportedly this case. ordinance for failure to provide ade- draisers, were engaged in First pn Y grounded in my opinion in Ginzburg v United What Ginzburg did not do, and what this quate Freedman procedures); Blount States, 383 US 463, 16 L Ed 2d 31, 86 S Ct Court has never done, despite Justice Scalia's held activity. We Amendment-protected v Rizzi, 400 US 410, 27 L Ed 2d 498, he that, , even if North Carolina's 942 (1966), does not persuade me otherwise. claims, is to abrogate First Amendment pro- 91 S Ct 423 (1971) (invalidating interest in licensing fundraisers was In Ginzburg, this Court held merely that, in tection for ss entire category of g that postal rules permitting restrictions sufficient t0 justify such a regula- determining whether a given publication was fated businesses.We said in Ginzburg that we P j Y obscene, a court could consider as relevant perceived "no threat to First Amendment on the use of the mails for allegedly tion, it "must provide that the licen- evidence not only the material itself but also guarantees in thus holdingthat in close cases obscene materials because the rules sor 'will within a specified brief pe- � P evidence showing the circumstances of its idence of pandering may be probative with lacked Freedman safeguards); South- riod, either issue a license or go to production, sale, and advertising. Id., at 465- respect to the nature of the material in ques. eastern Promotions, Ltd. v Conrad, court."' 487 US, at 802, 101 L Ed 2d 466, 16 L Ed 2d 31,86 S Ct 942. The opinion tion."383 US,at 474, 16 L Ed 2d 31,86 S Ct concluded: "It is important to stress that this 942.History has proved us right,I think,that 420 US 546, 43 L Ed 2d 448, 95 S Ct 669, 108 S Ct 2667, quoting and analysis simply elaborates the test by which n decision itself left First Amendment guar. g 1239 (1975) (finding unconstitutional applying Freedman, supra, at 59, 13 the obscenity vel non of the material must be the dec judged" Id., at 475, 16 L Ed 2d 31, 86 S Ct antees secure.Justice Scalia's transmogrifica- a city's refusal to rent municipal L Ed 2d 649, 85 S Ct 734. The North 942. As Justice O'Connor's opinion makes tion of Ginzburg,however,is far from innocu- facilities for a musical because Of its Carolina statute did not SO provide, clear, ante at 220, 107 L Ed 2d, at 614.615, ous. content, absent Freedman proce- and we struck it down. 487 US, at dures). 802, 101 L Ed 2d 669, 108 S Ct-2667. 626 627 U.S. SUPREME COURT REPORTS 107 L Ed 2d FW/PBS, INC.v DALLAS (1990)493 US 215,107 L Ed 2d 603, 110 S Ct 596 1 In Riley, this Court, to be sure, tected and unprotected speech. He O'Connor considers at some length claim is rendered redundant by Jus- _ discussed the failure of the North was reviewing applications to prac- [ whether petitioners have made an tice O'Connor's holding in Part II. Carolina statute to set a time limit tice a particular profession, just as adequate showing of standing to for actions on license applications, the city of Dallas is acting on appli. bring their claims against the cohab- The civil disability claim is an but it also held that the licensor cations to operate particular busi. itation and civil disability provisions objection to that part of the licens- must be required to go to court, not nesses. Similarly, the fundraisers in of the licensing scheme. Were it of 1ng scheme which provides for denial the would-be fundraiser. Because I Riley had their entire livelihoods at some precedential value, I would or revocation of a license because of see no relevant difference between stake, just as the bookstores and t question this Court's reversal of the prior criminal convictions, on the others subject to the Dallas ordi- i ground the fundraisers in Riley and the j I findings of both the District Court bookstores and motion picture the- nance. Nonetheless, this Court and the Court of A eals' that [493 US e P aters in these cases, I would hold Placed the burden of going to court PP peti- that these provisions "im- on the State, not the applicant.2 487 tioners had standing to bring their pose an impermissible prior re- that the city of Dallas must bear the US, at 802, 101 L Ed 2d 669, 108 S claims, where the basis for reversal straint upon protected expression." burden of going to court and proving Ct 2667. is an affidavit that is at worst Brief for Petitioners FW/PBS, Inc., its case before it may permissiblymerely ambiguous. But because the et al. 12.1 Because the challenge is deny licenses to First Amendment- Moreover, I believe Riley was discussion is wholly extraneous to based solely on the First Amend- protected businesses. rightly decided for the same reasons the actual holding in this case, I ment, a victory on the merits would that the limitation set forth in Jus- tice O'Connor's opinion is wrong. write only to clarify that Part III is benefit only those otherwise regu- lination to rquire The danger posed by a license that y unnecessar to the decision and is lated businesses which are protected man procedure on two grounds: the prevents a speaker from speaking at � pure dictum. by the First Amendment. Dallas licensing scheme does not in- all is not derived from the basis onThe first claim for which the But since the Court invalidates volve an administrators passing which that license was purportedllyy judgment on whether the content of denied. The danger posed is the un- Court fails to find a petitioner with the application of the entire Dallas particular speech is protected or not; lawful stifling of speech that results. standing—an unspecified objection to licensing scheme to any First and the Dallas scheme licenses en- As we said in Freedman, it is "the the provision denying a license to Amendment-protected business un- tire businesses, not just individual transcendent value of speech" that any applicant residing with someone der the Freedman doctrine, it is un- films. Justice O'Connor finds the laces the burden of persuasion on whose own application has been de- necessary to decide whether some or first distinction significant on the P all of the same provisions are also y the State. 380 US, at he h L Ed 2d niis n revoked within the by ast ythe invalid, as to First Amendment-pro- onlytheory that suppression of speech on sumption against prior restraints re- parties, was not reached by the tected businesses, on other grounds. the ostensible ground of quires no less. Justice O'Connor does court below, and is not among the Justice O'Connor recognizes this and [493 US 2411 not, nor could she, contend that questions on which certiorari was wisely declines to reach petitioners content is those administering this ordinance granted. The second claim for which challenge to various requirements presumptively invalid. She finds the will always act according to their the Court fails to find a under the licensing scheme, other second significant because it antici- own law. Mistakes are inevitable; petitioner than the civil disability and cohabi- pates that applicants with an entire abuse is possible. In distributing the with standing—petitioners' objection tation provisions, on the First burdens of initiating judicial pro- to the ordinance's civil disability Amendment ground that the ordi- business at stake will pursue their provisions—is clearly before this nance impermissibly singles out interests in court rather than aban- ceedings and proof,we are obliged Court, but consideration of this sons and businessesengaged in First don them. [493 US 242] to While Justice O'Connor is cer- 3. Both the District Court and the Fifth as a "classic prior restraint of the type pro- tainly correct that these aspects dis- Place them such that we err, if we ch not on Circuit,after finding that plaintiffs had stand- hibited as facially unconstitutional under the tinguish the facts before us from must, on the side of spee , ing to challenge the ordinance, reached the the side of silence rule of Near v Minnesota [ex rel. Olson], 283 . civil disability question. See 837 F2d 1298. those in Freedman, neither ground 1301, 1304-1305 (CA5 1988); Dumas v Dallas, US 697 [7c L Ed rite ce S Ct 625](r re,,- distinguishes these cases from Riley. II 648 F Supp 1061(ND Tex 1986). and they characterize license denial or revo- cation based on other listed prior offenses as The licensor in Riley was not re- 4. Petitioners M. J. R., Inc., et al. phrase "prior restraints which cannot withstand quired to distinguish between pro- In Part III of the opinion, Justice the same objection slightly differently. They strict scrutiny and are therefore invalid un- characterize license denial or revocation der the first amendment." See Brief for Peti- 2. Vance v Universal Amusement Co. 445 the Court of Appeals which had held that the based on certain listed prior speech offenses tioners M.J.R.,Inc.,et al.22,33. US 308,63 L Ed 2d 413, 100 S Ct 1156(1980), statute was unconstitutional because it]under also involved censorship that threatened pro- the procedural safeguards required prietors'entire businesses,rather than single Freedman. 445 US, at 314, 317, 63 L Fd 2d films. This Court, notwithstanding, affirmed 413,100 S Ct 1156. 628 629 U.S. SUPREME COURT REPORTS 107 L Ed 2d FW/PBS, INC. v DALLAS ' (199W 493 US 215.107 L Ed 2d 603,110 S Ct 596 Amendment-protected activities for (1965); Adderley v Florida, 385 US that the licensing system fails the L Ed 1049, 61 S Ct 762, 133 ALR regulation.° 39, 48, n 7, 17 L Ed 2d 149, 87 S Ct test of content neutrality. The ordi. 1396 (1941); Clark v Community for 242 (1966). Our cases upholding nance in no way is aimed at regulat- Creative Non-Violence, supra, at For reasons unexplained and inex- time, place, and manner restrictions ing what may be sold or offered in 293-298, 82 L Ed 2d 221, 104 S Ct plicable, the opinion separates the on sexually oriented expressive ac- the covered businesses. With a li- 3065. The Dallas scheme regulates prior restraint and singling out tivity are to the same effect. See cense, operators can sell anything [493 US 246] claims and accords them different Renton v Playtime Theatres, Inc. but obscene publications. Without who may operate sexually oriented treatment. Perhaps, if the inquiry 475 US 41, 89 L Ed 2d 29, 106 S Ct one-without satisfying the licensing businesses, including those who sell had reached the merits of the prior 925 (1986); Young v American Mini requirements-they can sell nothing materials entitled to First Amend- restraint claim, one could infer a Theatres, Inc. 427 US 50, 49 L Ed 2d because the city is justified in enforc- ment protection; but the ordinance motive to take the opportunity to 310, 96 S Ct 2440(1976). Time, place, ' ing the ordinance to avoid the likely does not regulate content and thus it offer guidance in an area of the law and manner restrictions are not sub- unfavorable consequences attending is unlike the content-based prior re- badly in need of it. But because the ject to strict scrutiny and are sus- ? unregulated sexually oriented busi. straints that this Court has typically inquiry proceeds no further than tainable if they are content neutral, nesses. scrutinized very closely. See, e.g., jurisdiction, no such explanation is ' Near v Minnesota, ex rel. Olson, 283 i available. Whatever the reason for are designed to serve a substantial including Part III, it is superfluous. governmental interest, and do not Justice O'Connor nevertheless in- US 697, 75 L Ed 1357, 51 S Ct 625 unreasonably limit alternative validates the licensing provisions for (1931); National Socialist Party of [493 US 2441 means of communication. Renton, failure to provide some of the proce- America v Skokie, 432 US 43, 53 L Justice White, with whom The supra, at 47, 89 L Ed 2d 299 106 S Ct dural requirements that Freedman v Ed 2d 96, 97 S Ct 2205 (1977); Vance Chief Justice joins, concurring in 925. See also Heffron v International Maryland, supra, imposed in connec- v Universal Amusement Co. 445 US part and dissenting in part. Society for Krishna Consciousness, tion with a Maryland law forbidding 308, 63 L Ed 2d 413, 100 S Ct 1156 I join Parts I, III, and IV of the Inc. 452 US 640, 647-648, 69 L Ed 2d the exhibition of any film without (1980); Freedman v Maryland, supra. Court's opinion but do not agree 298, 101 S Ct 2559 (1981); Virginia the approval of a board of censors. Pharmacy Board v Virginia Citizens There, the board was approving or Licensing schemes subject to First with the conclusion in Part II that Consumer Council, Inc., 425 US 748, disapproving every film based on its Amendment scrutiny, however, even the Dallas ordinance must include 771 48 L Ed 2d 346, 96 S Ct 1817 view of the film's content and its though purporting to be time, place, two of the procedural safeguards set (1976). Renton and Young also make suitability for public viewing. Absent and manner restrictions, have been forth in Freedman v Maryland, 380 clear that there is a substantial gov- procedural safeguards, the law im- invalidated when undue discretion US 51, 13 L Ed 2d 649, 85 S Ct 734 ernmental interest in regulating sex- posed an unconstitutional prior re- has been vested in the licensor. Un- (1965), in order to defeat a facial ually oriented businesses because of straint on exhibitors. As I have said, bridled discretion with respect to the challenge. I would affirm the Fifth their likely deleterious effect on the however, nothing like that is in- criteria used in deciding whether or Circuit's holding that Freedman is areas surrounding them and that volved here; the predicate identified not to grant a license is deemed to inapplicable to the Dallas scheme. such regulation, although focusing in Freedman for imposing its proce- convert an otherwise valid law into The Court has often held that on a limited class of businesses in- dural requirements is absent in this an unconstitutional prior restraint. when speech and nonspeech ele- volved in expressive activity, is to be case. Shuttlesworth v Birmingham, 394 ments "are combined in the same treated as content neutral. US 147, 150-152, 22 L Ed 2d 162, 89 course of conduct, a sufficiently i Nor is there any other good reason S Ct 935 (1969). Lakewood v Plain [493 US 2451 . for invoking Freedman. The Dallas Dealer PublishingCo. 486 US 750, portant governmental interest inn regulating the nonspeech element Justice O'Connor does not suggest ordinance is in many respects analo- 757, 100 L Ed 2d 771, 108 S Ct 2138 can justify incidental limitations on that the businesses involved here gous to regulations requiring parade (1988); Staub v City of Baxley, 355 First Amendment freedoms." United are immune from the kind of regula- or demonstration permits and impos- US 313, 2 L Ed 2d 302, 78 S Ct 277 States v O'Brien, 391 US 367, 376, tion sustained in Young and Renton. ing conditions on such permits. Such (1958); Niemotko v Maryland, 340 20 L Ed 2d 672, 88 S Ct 1673 (1968). Neither is it suggested that the pre- regulations have generally been US 268, 95 L Ed 267, 71 S Ct 325 See also Clark v Community for Cre- requisites for obtaining a license, treated as time, place, and manner (1951); Kunz v New York, 340 US ative Non-Violence, 468 US 288, 298- such as certificates of occupancy and restrictions and have been upheld if 290, 95 L Ed 280, 71 S Ct 312 (1951); 299, 82 L Ed 2d 221, 104 S Ct 3065 inspections, do not serve the same they are content neutral, serve a Saia v New York, 334 US 558, 92 L (1984); Cox v Louisiana, 379 US 5599 kind of a substantial governmental substantial governmental interest, Ed 1574, 68 S Ct 1148 (1948). That 562-564, 13 L Ed 2d 487, 85 S Ct 476 interest dealt with in those cases nor and leave open alternative avenues rule reflects settled law with respect Of communication. Cox v New to licensing in the First Amendment 5.See Brief for Petitioners FW/PBS,Inc.,et al.21-24. Hampshire, 312 US 569, 574-576, 85 context. But here there is no basis 630 631 U.S.SUPREME COURT REPORTS 107 L Ed 2d { FW/PBS,INC. v DALLAS 0990)493 US 215,107 L Ed 2d 603,110 S Ct 596 for invoking Freedman procedures to Freedman v Maryland, 380 US 51, scheme neither imposes nor results For the foregoing reasons, I re- protect against arbitrary use of the 13 L Ed 2d 649, 85 S Ct 734 (1965), in a ban of any type of adult busi- spectfully dissent from Part II of discretion conferred by the ordi- required that there be provision for ness. Justice O'Connor's opinion. nance before us. Here, the Court of either acting on the license applica- Appeals specifically held that the tion or going to court within a speci- I see no basis for invalidating this Justice Stevens, concurring in ordinance did not vest undue discre- fied brief period of time. ordinance because it fails to include part and dissenting in part. tion in the licensor because the ordi- Contrary to the ordinance in these some prophylactic measures that nance provides sufficiently objective will guard against highly speculative As the Court explains in Part III standards for the chief of police to cases, the Riley licensing require- injuries. As Justice O'Connor notes of its opinion, it is not certain that ment was aimed directly at speech. in the course of refusingto apply an al- apply. 837 F2d 1298, 1305-1306 (CA5 The discretion given the licensors in one of the Freedman procedural len a theio ro has standing c chng 1988). Justice O'Connor's opinion P g provisions li the licensing Riley empowered them to affect the � mandates, the licensing in these scheme that disqualify applicants does not disturb this aspect of the content of the fundraisers speech, cases is required of sexually oriented who are themselves unqualified or Court of Appeals' decision, and be- unless that discretion was suitably businesses, enterprises that will who reside with, or are married to cause it does not, one arguably tena- restrained. In that context, the ' have ever incentive y to pursue the unqualified persons. Given the ble reason for invoking Freedman Court invoked Freedman. That basis license applications vigorously. Ante, breadth of those provisions, the as- disappears. for applying Freedman is not pres- ; at 229-230, 107 L Ed 2d, at 620. The sertions in the Staten and Foster ent here, for, as I have said, the s ordinance re pp , Additionally, petitioners reliance licensor is not vested with undue quires that an a lica- affidavits, and the District Court s on Rile v National Federation of tion be acted on within 30 days. understanding of the relevant facts Blind of N. C., Inc. 487 US 781, 101 discretion. Licensing decisions suspending or however, I cannot join the decision L Ed 2d 669, 108 S Ct 2667 (1988), is Neither is there any basis for revoking a license are immediately to direct dismissal of this portion of misplaced. Riley invalidated a licens- holding that businesses dealing in appealable to a permit and license the litigation. See ante, at 235, 107 L ing requirement for professional fun- expressive materials have been sin- appeal board and are stayed pending Ed 2d, at 624. I would remand for an draisers which prevented them from gled out; all sexually oriented busi- that appeal. In addition, no one sug- evidentiary hearing on the standing soliciting nesses—including those not involved gests that licensing decisions are not issues. [493 US 247] in expressive activity such as escort subject to immediate appeal to the prior to obtaining a li- agencies—are covered, and all other courts. As I see it, there is no realis- I join Parts I, II, and IV of Justice cense, but which permitted nonpro- businesses must live up to the build- tic prospect that the requirement of O'Connor's opinion. With respect to fessionals to solicit while their h- ing codes, as well as fire and health a license will have anything more Justice Scalia's proposed resurrec- cense applications were pending. We regulations. Furthermore, the Court than an incidental effect on the sale tion of Ginzburg v United States, there held that a professional fun- should not assume that the licensing of protected materials. 383 US 463, 16 L Ed 2d 31, 86 S Ct draiser was a speaker entitled to process will be unduly prolonged or Perhaps Justice O'Connor is say- 942 (1966), I have this comment. As First Amendment protection and that inspections will be arbitrarily y- I explained in my dissenting opinion that because "the State's asserted delayed. There is no evidence that ing that those who deal in e power to license professional fun- this has been the case, or that in- sive materials are entitled to sppecialecial in Splawn v California, 431 U5 595, prop- procedures in the course of comply- 602, 52 L Ed 2d 606, 97 S Ct 1987 draisers carries with it (unless P P- spections in other contexts have ing with otherwise valid, neutral (1977), Ginzburg was decided before erly constrained) the power directly been delayed or neglected. Between regulations the Court extended First Amend- and substantially to affect the the time of the District Courts judg- all businesses. I doubt, however, that ment protection to commercial speech they utter," id., at 801, 101 L ment and that of the bookstores or radio or television sta- speech and cannot withstand our Ed 2d 669, 108 S Ct 2667, the re- (493 US 2481 tions must be given special breaks in decision in Virginia Pharmacy Bd. v uirement was subject to First Fifth Circuit, the enforcement of q J Virginia Citizens Consumer Council, Amendment scrutiny to make sure Dallas granted some 147 out of 165 general health, that the licensor's discretion was license requests, and none of the building, and fire regulations. If they Inc. 425 US 748, 48 L Ed 2d 346, 96 suitably confined. Riley thus appears petitioners in making this facial must, why would not a variety of S Ct 1817 (1976). If conduct or com- to be a straightforward application challenge to the ordinance asserts other kinds of businesses, like super- munication is protected by the First of the "undue-discretion" line of that its license application was not markets and convenience stores that Amendment, it cannot lose its pro- cases. The Court went on to say, promptly dealt with, that it was un- sell books and magazines, also be so tected status by being advertised in able to obtain the require however, that even assuming, as d inspec- entitled? I question that there is a truthful and inoffensive manner. North Carolina urged, that the li- tions promptly,or that it was unable authority to be found in our cases Any other result would be perverse: censing requirement was a time, to secure reasonably prompt review for such a special privilege. place, and manner restriction, of a denial. Clearly the licensing [493 US 249] "Signs which identify the 'adult' character of a motion picture the- 632 633 ,..sf U.S. SUPREME COURT REPORTS 107 L Ed 2d FW/PBS, INC. v DALLAS (1990)493 US 215, 107 L Ed 2d 603,110 S Ct 596 ater or of a bookstore convey the material that "treat[s] sex in a man- can Tragedy,' Lawrence's Lady Chat- businesses market are doomed to message that sexually provocative ner appealing to prurient interest," terley's Lover,2 Miller's Tropic of failure by reason of the very strin- entertainment is to be found id., at 488, 1 L Ed 2d 1498, 77 S Ct Cancer and Tropic of Capricorn'and gency of our obscenity test, designed within . . . . Such signs . . . pro- 1304. But for constitutional purposes Joyce's Ulysses, and to many stage to avoid any risk of suppressing so- vide a warning to those who find we have added other conditions to and motion picture productions of cially valuable expression. Commu- erotic materials offensive that that definition, out of an abundance genuine dramatic or entertainment nities cannot close down " �� porn- they should shop elsewhere for of concern that the standards for value that contain some sexually shops" by banning pornography other kinds of books, magazines, judging obscenity safeguard the pro- explicit or even erotic material. (which, so long as it does not cross or entertainment. Under any sen- faction of freedom of speech and Application of these standards (or, the distant line of obscenity, is pro- sible regulatory scheme, truthful press for material which does not I should say, misapplication of them) tected),just as Congress cannot elim- description of subject matter that treat sex in a manner appealing to i has had another effect as well—un- inate specialized "dial-a-porn" tele- is pleasing to prurient interest." Ibid. To begin iintended and most e [493 US 2501 with, we rejected the approach pre certainly not g n- phone services by prohibiting indi- i erally approved. The Dallas ordi- vidual messages that are "indecent" some and offensive viously adopted by some courts, nance at issue in this case is not an but not quite obscene. Id. to others ought to be encouraged, which would permit the banning of , at 131, not punished." 431 US, at 604, 52 an entire literary work on the basis isolated phenomenon. It is one ex- 106 L Ed 2d 93, 109 S Ct 2829. ample of an increasing number of Consequently, communities have re- L Ed 2d 606,97 S Ct 1987. of one or several passages that in I attempts throughout the country, b sorted to a number of other means, isolation could be considered ob Y� Y various means, not to withhold from including stringent zoning laws, see Justice Scalia, concurring in part scene. Instead, we said, "the domi- The- and dissenting in part. nant theme of the material taken as the public any particular book or e. g., Young v American Mini The- a whole" must appeal to prurient performance, but to prevent the ero- atres, Inc. 427 US 50, 49 L Ed 2d I join Part I of the Court's opinion, interest. Id., at 489, 1 L Ed 2d prurient sion of public morality by the in- 310, 96 S Ct 2440 (1976) (ordinance 77 S s t 1304 (emphasis1L added). W, creasingly general appearance of adopting unusual zoning technique Part III, holding that there is no what the Dallas ordinance delicately of requiring sexually oriented busi- standing to challenge certain por- tions of the Dallas ordinance, and have gone on to add other condi Y q g y ; calls "sexually nesses to be dispersed rather than Part IV, sustaining on the merits tions, which are reflected in the [493 US 2521 certain other portions. I dissent from three-part test pronounced in Miller oriented businesses." concentrated); Renton v Playtime the judgment, however, because I v California, 413 US 15, 24, 37 L Ed Such businesses flourish throughout Theatres, Inc. 475 US 86) 89 L na 2d would affirm the Fifth Circuit's hold- 2d 419, 93 S Ct 2607 (1973): the country as they never did before, 29' ric S Ct 9e theaters (ordinance not only restricting theaters that show ing that the ordinance is constitu- [493 US 2511 y in New Yorks Times "adult" films to locations comprising tional in all respects before us. "The basic guidelines for the Square, but in much smaller Commu- about 5% of the community's land trier of fact must be: (a) whether nities from coast to coast. Indeed, as area, where the Court of Appeal I the average person, applying con- a case we heard last Term demon- had found no "commercially able" temporary community standards strates, they reach even the smallest Since this Court first had occasion would find that the work, taken a of communities via telephonic "dial- sites were available), Draconian �. sanctions for obscenitywhich make to apply the First Amendment to whole, appeals to the prurient in. a-porn. Sable Communications of it unwise to flirt with the sale of materials treating of sex, some three terest . . . ; (b) whether the work California, Inc. v FCC, 492 US 115, pornography, see Fort Wayne Books decades ago, we have been guided by depicts or describes, in a patently 106 L Ed 2d 93, 109 S Ct 2829 (1989). Inc. v Indiana, 489 US 46, 103 L Ed the principle that 'sex and obscenity offensive way, sexual conduct spe- While many communities do not 2d 34, 109 S Ct 916 (1989) (state are not synonymous," Roth v United cifically defined by the applicable object to such businesses, others do, Racketeer Influenced and Corrupt States, 354 US 476, 487, 1 L Ed 2d state law; and (c) whether the and have sought to eliminate them. Organizations (RICO) statute), and 1498, 77 S Ct 1304 (1957). The for- work, taken as a whole, lacks seri- Attempts to do so by focusing upon the ordinance we have before us mer, we have said, the Constitution ous literary, artistic, political, or the individual books, motion pic- today, a licensing scheme purport- permits to be described and dis- scientific value." tures, or performances that these edl designed cussed. The latter is entirely unpro- These standards' immediate purpose Y fined to assure that porn- tected, and may be allowed or disal. and effect—which, it is fair to say, I.Held obscene in Commonwealth v Friede, Obscene Books,99 F Supp 760(ND Cal 1951), lowed by States or communities, as have met with general public accep- 271 Mass 318, 171 NE 472(1930). afrd sub nom. Besig v United States,208 F2d the democratic majority desires. tance—have been to guarantee the 2. Held obscene in People v Dial Press, Inc. 142(CA9 1953). Distinguishing the one from the access of all adults to such works of 182 Misc 416, 48 NYS2d 480 (NY Magis Ct 4. Unsuccessfully challenged as obscene in other has been the problem. Obscen- literature, once banned or sought to United States v One Book Called "Ulysses,"5 F Su ity, in common understanding, is be banned, as Dreiser's An Ameri- 3. Held obscene in United States v Two CA2193482 (SDNY 1933), aff'd, 72 F2d 705 634 635 U.S. SUPREME COURT REPORTS 107 L Ed 2d r FW/PBS, INC. v DALLAS (1990)493 US 215, 107 L Ed 2d 603,110 S Ct 596 ops are run by a better class of tolerate businesses that hold them- added)a Other sexually oriented "(D) excretory functions as part •rson. Not only are these oblique selves forth as specializing in such businesses are similarly defined as of or in connection with any of the ethods less than entirely effective material. Because I think that Dal- establishments that "regularly" de- activities set forth in (A) through eliminating the las could constitutionally have pro- } pict or describe specified sexual ac- (C)above." §41A-2(21). [493 US 253] scribed the commercial activities tivities or specified anatomical ar- perceived evil at that it chose instead to license, I do eas.' "Specified sexual activities" Finally, "specified anatomical areas" hick they are directed (viz., the not think the details of its licensing means means "human genitals in a state of pry existence of sexually oriented scheme had to comply with First [493 US 255] sexual arousal." §41A-2(20). usinesses anywhere in the commu- Amendment standards. ! "(A) the fondling or other erotic [493 US 256] ity that does not want them), but touching of human genitals, pubic As I shall discuss in greater detail -fey perversely render less effective region, buttocks, anus, or female presently, this ordinance is unusual ur efforts, through a restrictive defi- II breasts; 1 in that it does not apply "work by ition of obscenity, to prevent the work." It can reasonably be inter- The Dallas ordinance applies to "(B) sex acts normal or per- Y chilling" of socially valuable P preted to restrict not sales of (or peech. State RICO penalties for ob- any sexually oriented business, j vertedg Y Particular actual or simulated, in- businesses that sell) an :cenity, for example, intimidate not which is defined as 'an adult arcade, 1 cludin intercourse, oral copula- adult bookstore or adult video store, tion, or sodomy; book, film, or entertainment, but ust the porn-shop owner, but also adult cabaret, adult motel, adult mo- only businesses that specialize in he general bookseller who has been tion picture theater, adult theater, "(C) masturbation, actual or books, films, or entertainment of a _he traditional seller of new books escort agency, nude model studio, or simulated; or articular t such as Ulysses. i P type. That places the ob sexual encounter center." Dallas 6. "Adult Motion Picture Theater means a larly depicted by other persons who pay It does not seem to me desirable to City Code §41A-2(19) (1986). Opera- commercial establishment where, for any money or any form of consideration. perpetuate such a regime of prohibi- tors of escort agencies and sexual form of consideration, films, motion pictures, "(13)Nudity or a State of Nudity means: tion by indirection. I think the encounter centers are not before us. video cassettes,slides,or similar photographic "(A) the appearance of a human bare but- means of rendering it unnecessary is reproductions are regularly shown which are tock, anus, male genitals, female genitals, or [493 US 2541 characterized by the depiction or description female breast;or available under our precedents and of'specified sexual activities'or'specified ana- should be applied in the present "Adult bookstore or adult video- Comical areas."'§41A-2(5). "(B)a state of dress which fails to opaquely cover a human buttock, anus, male genitals, case. That means consists of recog- store" is defined, inter alia, as a 7. "(3) Adult Cabaret means a nightclub, female genitals, or areola of the female nizing that a business devoted to the "commercial establishment which as bar, restaurant, or similar commercial estab- breast. §41A.2. sale of highly explicit sexual mate- one of its principal business pur- lishment which regularly features: As to nude model studios, the ordinance rial can be found to be engaged in poses offers for sale or rental books ")A) persons who appear in a state of nu. further provides as a defense to prosecution dity;or that the marketing of obscenity, even or other printed matter, or films or '(B)live performances which are character- "a person though each book or film it sells other visual representations, 'which ized by the exposure of'specified anatomical appearing in a state of nudity did Pet so in a modeling class operated: depict or describe 'specified sexual areas'or by'specified sexual activities';or might, in isolation, be considered P "(C) films, motion pictures, video cassettes, "(1)by a proprietary school licensed ge the merely pornographic and not ob- activities or specified anatomical slides, or other photographic reproductions state si Texas; a college, junior college, y scene. It is necessary, to be sure of areas.'" §41A-2(2)(A) (emphasis which are characterized by the depiction or university supported entirely or partly by that we added)° "Adult motion picture the- description of 'specified sexual activities' or taxation; protecting valuable speech, specified anatomical areas."' "(2)by a private college or university which compel all communities to tolerate ater is defined as a commercial es maintains and operates educational programs individual works that have only tablishment where films are regu- .(6)Adult Theater means a theater,concert in which credits are transferrable to a college, mar nal communicative content be- larly shown" that depict specified hall,auditorium,or similar commercial estab- junior college, or university supported en- marginal raw sexual appeal; it is not sexual activities or specified anatom lishment which regularly features persons ttrely or partly by taxation;or who appear in a state of nudity or live rfor- "(3)in a structure: necessary that we compel them to ical areas. §41A-2(5) (emphasis mantes which are characterized by the expo- "(A) which has no sign sure of 'specified anatomical areas' or by exterior of the structure and no other dver- 5. "Adult Bookstore or Adult Video Store which depict or describe 'specified sexual ac- specified sexual activities.' tising that indicates a nude person is avail- means a commercial establishment which as tivities'or'specified anatomical areas';or able for viewing;and one of its principal business purposes offers "a instruments, devices, or paraphernalia "(12) Nude Model Studio means any place "(B)where in order to participate in a class for sale or rental for any form of considera- which are designed for use in connection with where a person who appears in a state of a student must enroll at least three days in tion any one or more of the following: specified sexual activities."'Dallas City Code nudity or displays'specified anatomical areas' advance of the class;and "(A) books, magazines, periodicals or other §§41A-2(2XA),(B)(1986). is Provided to be observed, sketched, drawn, "(C)where no more than one nude model is printed matter,or photographs, films, motion The regulation of businesses that sell the Painted, sculptured, photographed, or simi- on the premises at any one time."§41A-21(d). pictures, video cassettes or video reproduc- items described in subsection (B) raises no tions, slides, or other visual representations First Amendment question. 636 637 U.S. SUPREME COURT REPORTS 107 L Ed 2d FW/PBS, INC. v DALLAS (1990)493 US 215, 107 L Ed 2d 603, 110 S Ct 596 scenity inquiry in a different, and And the circumstances of decided the same day as Ginzburg,we 303-304, 56 L Ed 2d 293, 98 S Ct broader, context. Our jurisprudence presentation and dissemination of overturned the judgment that a par- 1808 (1978). Although Ginzburg nar- supports the proposition that even material are equally relevant to ticular book was obscene, but, citing rowly involved the question whether though a particular work of pornog- determining whether social impor- Ginzburg,made clear that this did not particular publications were obscene, raphy is not obscene under Miller, a tance claimed for material in the mean that all circumstances of its the foundation for its holding is that merchant who concentrates upon courtroom [as in US' h distribution would be constitutionally "the sordid business of pandering," the sale of such works is engaged in circum- protected. We said: Ginzburg, supra, at 467, 16 L Ed 2d the business of obscenity, which may stances, pretense or reality- "On the premise, which we have 31, 86 S Ct 942, is constitutionally be entirely prohibited and hence (a whether it was the basis upon + no occasion to assess, that Mem- unprotected-that the sale of mate- fortiori)licensed as required here. i rial solely to produce sexual ar- which it was traded in the market- oirs has the requisite prurient ap ousal . . . does not escape regulation The dispositive case is Ginzburg v place or a spurious claim for liti- peal and is patently offensive, but because the material United States, 383 US 463, 16 L Ed gation purposes. Where the pur- has only a minimum of social [ has been 2d 31, 86 S Ct 942 (1966). There the veyor's sole emphasis is on the value, the circumstances of pro- dressed up as speech, or in other defendant was convicted of violating sexually provocative aspects of his duction, sale, and contexts might be recognized as the federal obscenitystatute, 18 publications, that fact may be de publicity are speech." Id., at 474, n 17, si L dd 2d cisive in the determination of ob- � relevant in determining whether 31, 86 S Ct 942 (emphasis added). USC §1461 [18 USCS §14611, by or not the publication or distribu- But just as Miller established some mailing three publications which our scenity. Certainly in a prosecution tion of the book is constitutional] opinion assumed, see 383 US, at 465- which, as here, does not necessar- protected. . . . In this proceeding, objective criteria concerning what 466, 16 L Ed 2d 31, 86 S Ct 942, ily imply suppression of the mate- however, the courts were asked to particular 'publications can be re- were in and of themselves not ob rials involved, the fact that they judge the obscenity of Memoirs in garded as appealing to the prurient scene. We nonetheless upheld the originate or are used as a subject the abstract, and interest, it imriteriaffly established conviction, because the evidence of pandering is relevant to the } [493 US 258] some objective criteria as to what showed "that each of the accused application of the Roth test." Id., the declaration stock-in-trade can be the raw mate- publications was originated or sold at 470-471, 16 L Ed 2d 31, 86 S Ct of obscenity was neither aided nor rial (so to speak) of pandering. Giv- as stock in trade of the sordid busi- 942• limited by a specific set of circum- ing this limitation full scope, it 1 seems to me that Ginzburg, read ness of pandering-'the business of We held one of the three publica- stances of production, sale, and together with Miller, establishes at purveying textual or graphic matter tions in question to be, in the cir- publicity. All possible uses of the least the following: The Constitution openly advertised to appeal to the cumstances of its sale, obscene, de- book must therefore be considered, does not require a State or munici- erotic interest of their customers.'" spite the trial court's finding that and the mere risk that the book Id., at 467, 16 L Ed 2d 31, 86 S Ct only 4 of the 15 articles it contained might be exploited by panderers tentio a permit a business that in- 942 (quoting Roth v United States, "predominantly appealed to prurient itself fort specializes thp in, and holds 354 US 476, 495-496, 1 L Ed 2d 1498, because it so pervasively treats itself forth to the public as specializ- interest and substantially exceeded sexual matters cannot alter the ing in, performance or portrayal of 77 S Ct 1304 (1957) (Warren, C. J., community standards of candor," id., fact . . , that the book will have sex acts, sexual organs concurring)). Justice Brennan's opin- at 471, 16 L Ed 2d 31, 86 S Ct 942; a stateof redeeming social importance in arousal, or live human nudity. In my ion for the Court concluded that the and another to be obscene despite the hands of those who publish or view that suffices to sustain the Dal- advertising for the publications, the fact that it previously had been distribute it on the basis of that las ordinance. which "stressed the[ir] sexual can- sold by its author to numerous psy- value." 383 US, at 420-421, 16 L dor," 383 US, at 468, 16 L Ed 2d 31, chiatrists, some of whom testified Ed 2d 1, 86 S Ct 975 (footnote 86 S Ct 942, "resolve[d] all ambigu- that they found it useful in their omitted). [493 US 259] ity and doubt" as to the unprotected professional practice. We upheld the III status of the defendants' activities. convictions because the petitioners Ginzburg was decided before our Id., at 470, 16 L Ed 2d 31, 86 S Ct had "deliberately emphasized the landmark Miller decision, but we In evaluating the Dallas ordinance 942. sexually provocative aspects of the have consistent) lied its holding under the principles I have de- work, in order to catch the sala y applied g scribed, we must of course give it the Post-Miller. "The deliberate representation of ciousl disposed." Id., at 472, 16 L . See Hamling v United benefit of any "limiting construction petitioners' publications as eroti- y P States, 418 US 87, 130, 41 L Ed 2d [that] has been or could be placed" Ed 2d 31, 86 S Ct 942. 590 94 S Ct 2887 (1974); S lawn v on its text. Broadrick v Oklahoma, cally arousing, for example, stimu- � Sp lawn the reader to accept them as In Memoirs v Attorney General California, 431 US 595, 597-599, 52 L 413 US 601, 613, 37 L Ed 2d 830, 93 prurient; he looks for titillation, of Massachusetts, 383 US 413, 16 Ed 2d 606, 97 S Ct 1987 (1977); S Ct 2908 (1973). Moreover, we can- not for saving intellectual content L Ed 2d 1, 86 S Ct 975 (1966), Pinkus v United States, 436 US 293, not sustain the present facial attack 638 639 4, U.S. SUPREME COURT REPORTS 107 L Ed 2d FW/PBS, INC. v DALLAS 1 (1990)493 US 215,107 L Ed 2d 603, 110 S Ct 596 unless the ordinance is "substan- §135.7, p 77 Oth ed 1977), and also nude model studio, while containing The Dallas ordinance's narrow fo- tially overbroad," id., at 615, 37 L "in a . . . methodical way," Web- no such requirement, is subject to a cus distinguishes this case from Ed 2d 830, 93 S Ct 2908 (emphasis ster's Third New International Dic- defense which contains as one of its Schad v Mount Ephraim, 452 US 61, added), that is, "unless it reaches a tionary 1913 (1981). I think it can elements that the structure where 68 L Ed 2d 671, 101 S Ct 2176(1981), substantial number of impermissible reasonably be interpreted the studio is located "has no sign in which we held unconstitutional a [493 US 260] visible from the exterior of the struc- municipal ordinance that prohibited applications," New York v Ferber, n the ture and no other advertising that all businesses offering live entertain- 102 US 747, 771, 73 L Ed 2d 1113, indicates a nude person is available ment, including but not limited to 102 S Ct 3348 (1982), 'judged in present context to mean a continu- relation to the statute's plainly legit- ous presentation of the sexual mate- for viewing." Dallas City Code §41A- nude dancing. That ordinance was imate sweep," Broadrick, supra, at rial as one of the very objectives of 21(dX3xA) (1986). Even the defini- substantially overbroad because, on 615, 37 L Ed 2d 830,93 S Ct 2908. the commercial enterprise. Simi- E tions of the two categories of enter- its face, it prohibited "a wide range larly, the phrase "as one of its prin- 4J prises not at issue in this case, "es- of expression that has long been Favorably construed, the Dallas cipal business purposes" can connote cort agencies" and "sexual encoun- held to be within the protections of ordinance regulates only the busi- that the material containing the i ter centers," contain language that the First and Fourteenth Amend- ness of pandering, as I have defined specified depictions and descriptions arguably requires a "holding forth" ments." Id., at 65, 68 L Ed 2d 671, it above. It should be noted, to begin does not merely account for a sub- (a "primary business purpose" re- 101 S Ct 2176. The Dallas ordinance, with, that the depictions, descrip- stantial proportion of sales volume quirement). Given these indications however, targets only businesses en- tions, and displays that cause any of but is also intentionally marketed as of the importance of"holding forth" gaged in unprotected activity. the businesses before us to qualify as material of that character. contained a "sexually oriented business" must [493 US 2611 Even if it were possible to conceive be sexually explicit in more than a All of the establishments at issue, in all except one of the of a business that could meet the minor degree. What is at issue here therefore, share the characteristics definitions, it seems to me very above-described qualifications and is not the sort of nude photograph that they offer (1) live nudity or likely—especially if that should be yet be engaged in First Amendment that might commonly appear on a hardcore sexual material, (2) as a thought necessary to sustain the activities.rather than pandering, we so-called "pin-up calendar" or constant, intentional objective of constitutionality of the measure— do not invalidate statutes as over- "men's magazine." The mere por- their business. But there is still that the Dallas ordinance in all its broad on the basis of imagination trayal of the naked human body more. With the single exception of challenged applications would be in- alone. We have always held that we does not qualify unless (in the defini- "adult motion picture theater," the terpreted to apply only to businesses will not apply that "strong medi- tion of adult cabaret, adult theater, descriptions of all the establish- that not only (1) offer live nudity or cine" unless the overbreadth is both and nude model studio)it is featured ments at issue contain some lan- hardcore sexual material, (2) as a "real" and "substantial." Broadrick live. Qualifying depictions and de- guage that suggests a requirement constant and intentional objective of v Oklahoma, supra, at 613, 615, 37 L scriptions do not include human gen- that the business hold itself forth to their business, but also (3) seek to Ed 2d 830, 93 S Ct 2908. I think we itals, but only human genitals in a the public precisely as a place where promote it as such. It seems to me must sustain the current ordinance state of sexual arousal, the fondling sexual stimulation of the described that any business that meets these Just as we sustained the statute at of erogenous zones, and normal or sort can be obtained. Surely it would requirements can properly be de- issue in New York v Ferber, perverted sexual acts. be permissible to interpret the scribed as engaged in "the sordid supra, In addition, in order to qualify for phrase "as one of its principal busi- business of pandering," and is not [493 US 262] regulation under the ordinance the ness purposes" in the definition of protected by the First Amendment. which forbade the distribution business that provides such live nu- "adult bookstore or adult video Indeed, even the first two require- of materials depicting minors in a dity or such sexually explicit de- store" to require such holding forth. nients alone would suffice to sustain "sexual performance." The state pictions or descriptions must do so A business can hardly have as a the ordinance, since it is most im- court had applied overbreadth analy- "as one of its principal business pur- principal purpose a line of commerce plausible that any enterprise which sis because of its "understandabl[ej poses (in the case of adult book- it does not even promote. Likewise, has as its constant intentional objec- concern]that some protected expres- sion,stores and adult video stores) or the portion of the definitions of tive the sale of such material does ranging from medical textbooks "regularly" (in the case of adult mo- "adult cabaret" and "adult theater" not advertise or promote it as such; to pictorials in the National graphic would fall prey to the stat- e. Id.,at 773,73 L Ed 2d 1113, 102 Geo- tion picture theaters, adult cabarets, which requires that they regularly if a few such enterprises bent upon ut " and adult theaters). The adverb "feature" the described sexual mate- commercial failure should exist, they S e. Id.,a We said: "regularly" can mean "constantly, rial suggests that it must not merely would certainly not be numerous continually, steadily, sustainedly," be there but must be promoted or enough to render the ordinance of seriously doubt, and it has sub- Roget's International Thesaurus marketed as such. The definition of stantially overbroad. not been suggested, that these ar- 640 641 %rCa U.S. SUPREME COURT REPORTS lu'l 1, t,n ca _ . (1990)493 US 215,107 L Ed 2d 603,110 S Ct 596 .uably impermissible applications stitutionally protected. They did not, S don the "utterly without redeeming sexually oriented businesses, each of f the statute amount to more to be social value" test of the Memoirs which (we assumed) purveyed mate- [493 Us 263) han a tiny fraction of the materi- plurality, but the Court did so never- rial that was not constitutionally theless. Compare 413 US, at 24-25, proscribable. Here I would uphold sure, specifically argue Ginz- :ls within the statute's reach. Nor p � 37 L Ed 2d 419 93 S Ct 2607 with ,ill we assume that the New York burg, or suggest the complete pros- an ordinance that regulates ;ourts will widen the possibly in- cribability of these businesses as a Brief for A the con- basis for sustaining their manner of fornia, OT 9721ee in Miller vCali- centration of sexually oriented mate- :slid reach of the statute by Env- licensing them. But we have often , No: 70 73, pp 26 27. rial in a single business. .ng an expansive construction to the proscription on 'lewd exhibi- sustained judgments on grounds not argued-particularly in the area of The basis of decision I have de- tion[s] of the genitals. UnderThe mode of analysis I have sug- scribed seems to me the proper obscenity law, where our jurispru- these circumstances, §263.15 is dence has been,let us say,not entirely Bested is different from the rigid test means, in Chief Justice Warren's 'not substantial) overbroad and ence a s b In Ginzburg itself, for for obscenity that we apply to the words, "to reconcile the right of the . whatever overbreadth may ex- exam le, the United States did not determination whether a particular Nation and of the States to maintain ist should be cured through a case- P book, film, or performance can be a decent society and, on the other by-caargue that the convictions could be banned. The regulation here is not hand, the right of individuals to ex- tions t analysis of the fact sera- upheld on the pandering theory the directed to particular press themselves freely in accor- tions to which its sanctions, assert- Curt adopted,but only that the mate- edly, may not be applied.' Broa- Court sold were obscene under Roth. (493 US 264) dance with the guarantees of the works or per- First and Fourteenth Amendments." drick v Oklahoma, 413 US, at 615- Brief for United States in Ginzburg v formance, but to their concentration, Jacobellis v Ohio, 378 US 184, 199, 616 [37 L Ed 2d 830, 93 S Ct United States, OT 1965, No. 42, p 18. and the constitutional analysis 12 L Ed 2d 793, 84 S Ct 1676 (1964) 29081." Id., at 773-774, 73 L Ed 2d In Mishkin v New York, 383 US 502, should be adjusted accordingly. (dissenting opinion). It entails no 1113, 102 S Ct 3348. 16 L Ed 2d 56, 86 S Ct 958 (1966), What Justice Stevens wrote for the risk of suppressing even a single one of the companion cases to Ginz- luralit 'he legitimate reach of the Dallas bur the State of New York de P Y in American Mini The- work of science, literature, or art- )rdinance dwarfs its arguably im- fended the convitions under Roth atr s, is applicable here as well: or, for that matter, even a single c )ermissible applications." Id., at 773, "[ ]e learned long ago that broad work of 73 L Ed 2d 1113, 102 S Ct 3348. and explicitly disagreed with those statements of principle, no matter believe pornography. Indeed, I fully i commentators who would determine how correct in the context in which that in the long run it will To reject the present facial attack obscenity by looking to the "intent they are made, are sometimes uali- expand rather than constrict the scope of permitted expression, upon the ordinance is not, of course, of the disseminator," rather than fied by contrary decisions before the ive to deprive someone who is not en- "character of the material." Brief absolute limit of the stated principle to use, as a cause it will eliminate the incentive gaged in pandering and who is some- for Appellee in Mishkin v New is reached." 427 US, at 65,49 L Ed commercial activity of preventing how caught within its provisions (if York, OT 1965, No. 49, p 45, and n. 2d 310, 96 S Ct 2440. The prohibi- Y patently obour that could possibly occur) from as- See also Brief for Appellee in Mem- tion of concentrated society, e large segments of our serting his First Amendment rights. oirs v AttorneyGeneral of Massa pornography society, methods that constrict unob- here is analogous to the prohibition But that eventuality is so improba- chusetts, OT 1965, No. 368, p 17 we sustained in American Mini The- �ectionable activity as well. ble, it seems to me, that no substan- (defending convictions under Roth atres. There we upheld ordinances For the reasons stated, I respect- tial quantity of First Amendment and Manual Enterprises, Inc. v Day, that prohibited the concentration of fully dissent. activity is anticipatorily "chilled." 370 US 478, 8 L Ed 2d 639, 82 S Ct The Constitution is adequately safe- 1432 (1962)). Likewise in Roth, guarded by conducting further re- where we held that the test for ob- view of this reasonable ordinance as scenity was appeal to prurient inter- EDITOR'S NOTE it is applied. est, 354 US, at 489, 1 L Ed 2d 1498, An annotation on "Regulation of hotel, motel, or similar lodging establishment as 77 S Ct 1304, the United States had violating due process clause or equal protection clause of Federal Constitution," Justice O'Connor's opinion cor- argued that obscenity was estab- rectly notes that respondents con- lished if the material "constitutes a appears p 1151,infra. ceded that the materials sold are present threat to the morals of the protected by the First Amendment. average person in the community." Ante, at 224, 107 L Ed 2d, at 617. Brief .for United States in Roth V But they did not concede that the United States, OT 1956, No. 582, p activity of pandering at which the 100. And no one argued that the Dallas ordinance is directed is con- Miller Court should aban- 642 643 U.S. SUPREME COURT REPORTS 115 L Ed 2d { BARNES v GLEN THEATRE, INC. 1 1991)501 US 560, 115 L Ed 2d 504, 111 S Ct 2456 Court of Appeals(1) held that the Indiana statute was an improper infringe- ment of expressive activity, because the statute's purpose was to prevent the message of eroticism and sexuality conveyed by the dancers in question; and (2)enjoined the state from enforcing the statute against the plaintiffs so as to prohibit nonobscene nude dancing as entertainment(904 F2d 1081). On certiorari, the United States Supreme Court reversed. Although unable to agree on an opinion, five members of the court agreed that the Indiana [501 US 560) statute, as applied to prohibit nude dancing performed as entertainment, did not violate the First Amendment. MICHAEL BARNES, Prosecuting Attorney of St. Joseph County, Indiana, et al., Petitioners REHNQUIST,Ch.J., announced the judgment of the court, and in an opinion v joined by O'CONNOR and KENNEDY,JJ.,expressed the view that(1)nude danc- ing as entertainment is expressive conduct within the outer perimeters of the First Amendment; but (2) application of the Indiana statute to such dancing 501 US 560, 115 L Ed 2d 504, 111 S Ct 2456 was justified, despite the statute's incidental limitations on some expressive activity, because (a) the statute was within the state's constitutional power, [No. 90-261 ib) the statute was designed to protect morals and public order and thus furthered a substantial government interest,(c)this interest was unrelated to Argued January 8, 1991. Decided June 21, 1991. the suppression of free expression, in that the perceived evil that Indiana sought to address was not erotic dancing but rather public nudity,and(d)the Decision: Indiana's public indecency law, as applied to prohibit nude danc. requirement that the dancers wear at least "pasties" and a "G-string" was ing performed as entertainment,held not to violate free expression guaran- narrowly tailored to achieve the state's purpose. tee of Federal Constitution's First Amendment. SUMMARY SCALIA, J., concurring in the judgment, expressed the view that (1) the In- An Indiana statute made it a misdemeanor to appear in a public place "in diana statute was not subject to First Amendment scrutiny at all,because the tute was a eneral law ating ct and was not specifically directed a state of nudity." Within the statutory definition of "nudity" was the ataexpr expression; there s no niter edia eulevel of First Amendment scrutiny showing of(1) the female genitals, pubic area, or buttocks with less than a requiring that an incidental restriction on expression be justified by an fully opaque covering, or (2) the female breast with less than a fully opaque important or substantial government interest;and(3)the Indiana statute was covering of any part of the nipple. Two entertainment establishments in valid—even as enforced against those who chose to use public nudity as a South Bend, Indiana wished to provide totally nude dancing as entertain- means of communication—because moral opposition to public nudity supplied ment, although the statute effectively required female dancers to wear at a rational basis for the statute's prohibition. least "pasties" and a "G-string" while dancing. The two establishments, together with individual dancers employed at those establishments, brought suit in the United States District Court for the Northern District of Indiana SoUTER, J., concurring in the judgment, expressed the view that (1) nude against the city of South Bend and various state and local officials to enjoin dancing as a performance carries an endorsement of erotic experience and the enforcement of the statute, on the ground that the statute violated the thus is expressive activity that is subject to a degree of First Amendment Federal Constitution's First Amendment. The District Court, granting an protection; (2)the four-part inquiry applied by the court was the appropriate injunction, held that the statute was facially overbroad. The United States analysis to determine the actual protection required by the First.Amendment; Court of Appeals for the Seventh Circuit, reversing on appeal, remanded the _ (3)the state's interest justifying the statute was not society's moral views,but case to the District Court in order to determine whether the First Amend- rather the interest in combating the secondary effects—such as prostitution ment was violated by the statute as applied to the type of dancing at issue and other criminal activity—of live nude dancing in adult entertainment (802 F2d 287). On remand, the District Court held that such dancing was establishments; and (4) this interest was unrelated to the suppression of free not protected expressive activity, and accordingly judgment was rendered in expression,since such secondary effects would not necessarily result from the favor of the defendants (695 F Supp 414). A panel of the Court of Appeals, persuasive effect of the expression inherent in nude dancing. reversing on appeal, held that the dancing at issue was expressive conduct protected by the First Amendment (887 F2d 826). On rehearing en bane, the tl'xtTE, J., joined by MARSHALL, BLACKMUN, and STEVENS, dissenting, Summaries of Briefs; Names of Participating Attorneys, p 1205, infra. expressed the view that the Indiana statute should have been held invalid 504 505 U.S. SUPREME COURT REPORTS 115 L Ed 2d BARNES v GLEN THEATRE, INC. as applied to nonobscene nude dancing performed as entertainment, because (1991)501 US 560,115 L Ed 2d 504,111 S Ct 2456 (1)such dancing enjoys First Amendment protection;(2)the statute's goal—to Amendment. [Per Rehnquist, Ch.J., whether the incidental restriction on deter prostitution and other associated activities—was not unrelated to the and O'Connor, Kennedy, Scalia, and alleged First Amendment freedoms is suppression of free expression, since the purpose of applying the law to nude Souter, JJ. Dissenting: White, Mar- no greater than is essential to the dancing performances in entertainment establishments was to prevent cus- shall, Blackmun, and Stevens, JJ.] furtherance of that interest. [Per tourers from being exposed to the distinctive communicative aspects of such Constitutional Law §932 — ex- Rehnquist, Ch.J., and O'Connor, Kennedy, Souter, White, Marshall, dancing; and (3) the statute was not narrowly drawn, in that it banned an pressive conduct — nude Blackmun, and Stevens, JJ. Dissent- entire category of expressive activity rather than imposing restrictions that dancing Dissent- did not interfere with the expressiveness of nonobscene nude dancing perfor- g ing in part: Scalia,J.] mances. 2a-2c. Nude dancing performed as entertainment is expressive conduct Indecency,Lewdness,and Obscen- READNOTES for purposes of the Federal Constitu- ity § 1 —consent Classified to U.S.Supreme Court Digest,Lawyers'Edition tion's First Amendment. [Per Rehn- 4a, 4b. Indiana's public indecency Constitutional Law §945 — free- meanor to appear in a state of nu- 5 quist,Ch.J.,and O'Connor,Kennedy, statute, which makes it a misde- Souter, White, Marshall, Blackmun, meanor to appear in a state of nudity dom of expression — nude dity in a public place, and (2) effec dancing tively requires female dancers to and Stevens,JJ.] in a public place, is violated where la-lf. As applied to prohibit nude wear at least "pasties" and a "G- Constitutional Law §932 — regu• 60,000 fully consenting adults display dancing performed as entertain- string" when they dance—does not lation of expressive conduct their genitals to one another in a ment, a state's public indecency stat- violate the free expression guarantee 3a-3c. The appropriate analysis to stadium. [Per Scalia, White, Mar- ute—which (1) makes it a misde- of the Federal Constitution's First determine the limits, under the Fed- shall, Blackmun, and Stevens, JJ.] i CI% REFERENCES Constitutional Law §932 — ex-i Fed- eral Constitution's First Amendment, TOTAL CLIENT-SERVICE LIBRARY of appropriate state action burdening 4 Am Jur 2d, Amusements and Exhibitions §20; 50 Am Jur 2d, expressive acts is a four-part inquiry pressive conduct Lewdness, Indecency, and Obscenity§§ 17, 17.5, 18 as to (1) whether the government 5a, 5b. The United States Supreme USCS, Constitution, Amendment 1 regulation at issue is within the gov- Court will hold a government regula- L Ed Digest, Constitutional Law §945 ernment's constitutional power, (2) *tion invalid under the Federal Consti- whether the regulation furthers an tution's First Amendment,where the = L Ed Index, Adult or X-Rated Business or Movies; Lewdness, important or substantial governmen- regulation prohibits conduct pre- Indecency, and Obscenity; Nude Dancing; Nudity i tal interest, (3) whether the govern- cisely because of its communicative Index to Annotations, Adult or X-Rated Business or Movies; mental interest is unrelated to the attributes. [Per Scalia, White, Mar- Indecent Exposure; Lewdness, Indecency, and Obscenity suppression of free expression,and(4) shall, Blackmun, and Stevens,JJ.] Auto-Citec":Cases and annotations referred to herein can be fur- ther researched through the Auto-Cite@ computer-assisted re- SYLLABUS BY REPORTER OF DECISIONS search service. Use Auto-Cite to check citations for form, paral- Respondents, two Indiana estab- that nonobscene nude dancing per- lel references, prior and later history, and annotation lishments wishing to provide totally formed for entertainment is pro- references. nude dancing as entertainment and tected expression, and that the stat- ANNOTATION REFERENCES individual dancers employed at those ute was an improper infringement of establishments, brought suit in the that activity because its purpose was The Supreme Court and the right of free speech and press. 93 L Ed 1151, District Court to enjoin enforcement to prevent the message of eroticism 2 L Ed 2d 1706, 11 L Ed 2d 1116, 16 L Ed 2d 1053,21 L Ed 2d 976. of the state public indecency law— and sexuality conveyed by the danc- Topless or bottomless dancing or similar conduct as offenses. 49 ALR3d which requires respondent dancers to ers. 1084. wear pasties and G-strings—assert- Held:The judgment is reversed. Criminal offense predicated upon indecent exposure.94 ALR2d 1353. ing that the law's prohibition against 904 F2d 1081, reversed, total nudity in public places violates The Chief Justice, joined by Jus- the First Amendment.The court held tice O'Connor and Justice Kennedy, that the nude dancing involved here concluded that the enforcement of was not expressive conduct. The Indiana's public indecency law to Court of Appeals reversed, ruling prevent totally nude dancing does 506 507 U.S. SUPREME COURT REPORTS 115 L Ed 2d BARNES v GLEN THEATRE, INC. - f (1991)501 US 560, 115 L Ed 2d 504,111 S Ct 2456 not violate the First Amendment's Amendment freedom is no greater hibition on nude dancing, even with- ernmental interest, since pasties and guarantee of freedom of expression. than is essential to the furtherance of out localized proof of the harmful ef- a G-string moderate expression to a _ (a)Nude dancing of the kind sought the governmental interest. Since the fects. See Renton v Playtime The- minor degree when measured against to be performed here is expressive statutory prohibition is not a means atres, Inc. 475 US 41, 50, 51, 89 L Ed the dancer's remaining capacity and conduct within the outer perimeters to some greater end,but an end itself, 2d 29, 106 S Ct 925. Moreover, the opportunity to express an erotic mes- of the First Amendment, although it is without cavil that the statute is interest is unrelated to the suppres- sage. Sion of free expression, since the per- Rehnquist, C. J. announced the only marginally so. See, e.g., Doran v narrowly tailored. nicious effects are merely associated judgment of the Court and delivered Salem Inn, Inc. 422 . 932, 45 L Justice Scalia concluded that the with nude dancing establishments an opinion in which O'Connor and (b) Applying ying the four-part test of Ed 95 S Ct 2561 statute—as a general law regulating and are not the result of the expres- Kennedy, JJ., joined. Scalia, J., and United States v O'Brien, 391 US 367, conduct and not specifically directed sion inherent in nude dancing. Id., at Souter, J., filed opinions concurring 376-377, 20 L Ed 2d 672, 88 S Ct at expression,either in practice or on 48, 89 L Ed 2d 29, 106 S Ct 925. in the judgment. White,J.,filed a dis- 1673—which rejected the contention its face—is not subject to normal Finally, the restriction is no greater senting opinion, in which Marshall, that symbolic speech is entitled to First Amendment scrutiny and than is essential to further the gov- Blackmun, and Stevens, JJ.,joined. full First Amendment protection— should be upheld on the ground that moral opposition to nudity supplies a APPEARANCES OF COUNSEL ARGUING CASE the statute is justified despite its inci- pp Y pp dental limitations on some expressive rational basis for its prohibition. Cf. Wayne E. Uhl argued the cause for petitioners. activity.The law is clearly within the Employment Div., Dept. of Human Bruce J. Ennis, Jr. argued the cause for respondents. State's constitutional power. And it Resources of Ore. v Smith, 494 US Summaries of Briefs; Names of Participating Attorneys, p 1205, furthers a substantial governmental 872, 108 L Ed 2d 876, 110 S Ct 1595. infra. interest in protecting societal order There is no intermediate level of SEPARATE OPINIONS and morality. Public indecency stat- scrutiny requiring that an incidental [501 US 5621 utes reflect moral disapproval of restriction on expression, such as ute regulating public nudity requires I appearing in the nude among that involved here. be justified b an Chief Justice Rehnquist an- people that the dancers wear "pasties" and g g j Y nounced the judgment of the Court "G-strings" when they dance. The strangers in public places, and this important or substantial governmen- and delivered an opinion, in which particular law follows a line of state tal interest. Justice O'Connor and Justice dancers are not paid hourly wage, laws, dating back to 1831, banning Justice Souter, agreeing that the Kennedy join. but work 0n commissss ion. They r 100 n percent commission on public nudity. The States' traditional nude dancing at issue here is subject [1a] Respondents are two establish- the first $60 in drink sales during police power is defined as the author- to a degree of First Amendment pro- ments in South Bend, Indiana, that their performances. Darlene Miller, ity to provide for the public health, tection, and that the test of United wish to provide totally nude dancing one of the respondents in the action, safety, and morals, and such a basis States v O'Brien, 391 US 367, 20 L as entertainment, and individual for legislation has been upheld. See, had worked at the Kitty this for Ed 2d 672, 88 S Ct 1673, is the dancers who are employed at these about two years at the time this ac- e.g., Paris Adult Theatre I v Slaton, appropriate analysis to determine (501 US 563] tion was brought. Miller wishes to 413 US 49, 61, 37 L Ed 2d 446, 93 S the actual protection required, con- establishments. They claim that the Ct 2628. This governmental interest p q First Amendment's guarantee of free- dance nude because she believes she is unrelated to the suppression of free eluded that the State's interest in dom of expression prevents the State would make more money doing so. expression, since public nudity is the preventing the secondary effects of of Indiana from enforcing its public adult entertainment establishments indecency law to prevent this form of Respondent Glen Theatre, Inc. is evil the State seeks to prevent, an Indiana corporation with a place whether or not it is combined with —prostitution, sexual assaults, and dancing. We reject their claim. of business in South Bend. Its expressive activity. The law does not other criminal activity—is sufficient The facts a pri- ppear from the plead- mary business is supplying so-called proscribe nudity in these establish- under O'Brien to justify the law's ings and findings of the District Court adult entertainment through written ments because the dancers are con- enforcement against nude dancing. and are uncontested here. The Kitty and printed materials, movie show- veying an erotic message. To the con- The prevention of such effects Kat Lounge, Inc. (Kitty Kat), is lo- ings, and live entertainment at an trary, an erotic performance may be clearly falls within the State's con- cated in the city of South Bend. It enclosed "bookstore." The live enter- presented without any state interfer- stitutional power. In addition, the sells alcoholic beverages and presents tainment at the "bookstore" consists ence, so long as the performers wear asserted interest is plainly substan- "go-go dancing," Its proprietor de- of nude and seminude performances a scant amount of clothing. Finally, tial, and the State could have con- sires to present "totally nude danc- and showings of the female body the incidental restriction on First eluded that it is furthered by a pro- ing," but an applicable Indiana stat- through glass panels. Customers sit 508 509 U.S. SUPREME COURT REPORTS 115 L Ed 2d ;, BARNES v GLEN THEATRE, INC. (1991)501 US 560, 115 L Ed 2d 504, 111 S Ct 2456 Y, in a booth and insert coins into a tim- of such a challenge,' and remanded y formed for entertainment is expres- as only marginally so.This,of course, ing mechanism that permits them to to the District Court in order for the sion protected by the First Amend- does not end our inquiry. We must observe the live nude and seminude plaintiffs to pursue their claim that ment, and that the public indecency determine the level of protection to dancers for a period of time. One of the statute violated the First statute was an improper infringe- be afforded to the expressive conduct Glen Theatre's dancers, Gayle Ann Amendment as applied to their ment of that expressive activity be- at issue, and must determine Marie Sutro, has danced, modeled, dancing. Glen Theatre, Inc. v Pear- cause its purpose was to prevent the whether the Indiana statute is an and acted professionally for more son, 802 F2d 287, 288-290 (1986). On message of eroticism and sexuality impermissible infringement of that than 15 years, and in addition to her remand, the District Court con- conveyed by the dancers. Miller v protected activity. performances at the Glen Theatre, can be seen in a pornographic movie eluded that Civil City of South Bend, 904 F2d Indiana, of course, has not banned at a nearby theater. App to Pet for [501 US 5651 1081 (1990). We granted certiorari, "the type of dancing 498 US 807, 112 L Ed 2d 15, 111 S Ct nude dancing as such, but has pro Cert 131 133. these plaintiffs wish to perform is not 38(1990),and now hold that the Indi- scribed public nudity across the Respondents sued in the United expressive activity protected by the ana statutory requirement that the board.The Supreme Court of Indiana States District Court for the North- has construed the Indiana statute to Constitution of the United States," dancers in the establishments in- ern District of Indiana to enjoin the and rendered judgment in favor of volved in this case must wear pasties preclude nudity in what are essen- enforcement of the Indiana public the defendants. Glen Theatre, Inc. v and G-strings does not violate the tially places of public accommodation indecency statute, Ind Code §35-45- such as the Glen Theatre and the 4-1 Civil City of South Bend, 695 F Supp First Amendment. Kitty Kat Lounge. In such places, [501 US 5641 414, 419 (1988). The case was again [2a] Several of our cases contain respondents point out, minors are ex- (1988), asserting that its prohibi- appealed to the Seventh Circuit, and language suggesting that nude danc- eluded and there are no nonconsent- tion against complete nudity in pub- a panel of that court reversed the ing of the kind involved here is ex- ing viewers. Respondents contend lic places violated the First Amend- District Court, holding that the nude pressive conduct protected by the that while the State may license es- ment. The District Court originally dancing involved here was expressive First Amendment. In Doran v Salem tablishments such as the ones in- j granted respondents' prayer for an conduct protected by the First Inn, Inc. 422 US 922, 932,45 L Ed 2d volved here, and limit the geographi- injunction, finding that the statute Amendment. Miller v Civil City of 648, 95 S Ct 2561 (1975), we said: cal area in which they do business, it was facially overbroad. The Court of South Bend, 887 F2d 826 (1989). The "[A]lthough the customary 'barroom' may not in any way limit the perfor- Appeals for the Seventh Circuit re- Court of Appeals then heard the case type of nude dancing may involve mance of the dances within them versed, deciding that previous litiga- en bane, and the court rendered a only the barest minimum of pro- without violating the First Amend- tion with respect to the statute in series of comprehensive and thought- tected expression, we recognized in ment.The petitioners contend,on the the Supreme Court of Indiana and ful opinions. The majority concluded California v LaRue, 409 US 109, 118 other hand,that Indiana's restriction this Court precluded the possibility that nonobscene nude dancing per- [34 L Ed 2d 342, 93 S Ct 3901 (1972), on nude dancing is a valid "time, that this form of entertainment place, or manner" restriction under 1.The Indiana Supreme Court appeared to dance in the "Miss Erotica of Fort Wayne" might be entitled to First and Four- give the public indecency statute a limiting contest. Erhardt v State, 468 NE2d 224 (Ind cases such as Clark v Community for construction to save it from a facial over- 1984). The Indiana Supreme Court did not teenth Amendment protection under Creative Non-Violence, 468 US 288, breadth attack: discuss the constitutional issues beyond a cur- some circumstances." In Schad v 82 L Ed 2d 221, 104 S Ct 3065 (1984). "There is no right to appear nude in public. sory comment that the statute had been up- Mount Ephraim, 452 US 61, 66, 68 L Rather, it may be constitutionally required to held against constitutional attack in Ed 2d 671, 101 S Ct 2176 (1981), we [3a] The "time, place, or manner" tolerate or to allow some nudity as a part of Baysinger, and Erhardt's conduct fell within said that "[f]urthermore, as the state test was developed for evaluating some larger form of expression meriting pro- the statutory prohibition. Justice Hunter dis- tection, when the communication of ideas is sented,arguing that"a public indecency scat- courts in this case recognized, nude restrictions on expression taking involved."State v Baysinger,272 Ind 236,247, ute which prohibits nudity in any public place dancing is not without its First place on public property which had 397 NE2d 580,587(1979)(emphasis added),ap- is unconstitutionally overbroad. My reasons Amendment protections from official been dedicated as a "public forum," peals dism'd sub nom.Clark v Indiana,446 US for so concluding have already been articu• Ward v Rock Against Racism 491 931,64 L Ed 2d 783,100 S Ct 2146,and Dove v lated in State v Baysinger,(1979)272 Ind 236, regulation,+ (citations omitted). These g Indiana,449 US 806,66 L Ed 2d 10, 101 S Ct 397 NE2d 580(Hunter and DeBruler,JJ.,dis- statements support the conclusion of US 781, 791, 105 L Ed 2d 661, 109 S 52(1980). renting)." 468 NE2d, at 225-226. Justice De- the Court of Appeals Ct 2746 (1989), although we have on Five years after Baysinger,however,the In- Bruler expressed similar views in his dissent (501 US 5661 at least one Occasion applied it to diana Supreme Court reversed a decision of the in Erhardt.Id.,at 226.Therefore,the Indiana that nude conduct occurring on private prop- Indiana Court of Appeals holding that the stat- Supreme Court did not affirmatively limit the ute did"not apply to activity such as the the- reach of the statute in Baysinger,but merely dancing of the kind sought to be per erty. See Renton v Playtime The- atrical appearances involved herein, which said that to the extent the First Amendment formed here is expressive conduct atres, Inc. 475 US 41, 89 L Ed 2d 29, may not be prohibited absent a finding of ob- would require it, the statute might be uncon- within the outer perimeters of the 106 S Ct 925 (1986). In Clark we scenity," in a case involving a partially nude stitutional as applied to some activities. First Amendment, though we view it observed that this test has been in- 510 511 U.S. SUPREME COURT REPORTS 115 L Ed 2d BARNES v GLEN THEATRE, INC.. (1991)501 US 560,115 L Ed 2d 504,111 S Ct 2456 terpreted to embody much the same Government; if it furthers an im- This public indecency statute fol- morals and public order. The tradi- - standards as those set forth in United portant or substantial governmen- lows a long line of earlier Indiana tional police power of the States is States v O'Brien,391 US 367,20 L Ed tal interest; if the governmental statutes banning all public nudity. defined as the authority to provide 2d 672, 88 S Ct 1673 (1968), and we interest is unrelated to the suppres- The history of Indiana's public inde- for the public health,safety,and mor- turn, therefore, to the rule enunci- sion of free expression; and if the cency statute shows that it predates als, and we have upheld such a basis ated in O'Brien. incidental restriction on alleged barroom nude dancing and was en- for legislation. In Paris Adult The- O'Brien burned his draft card on First Amendment freedoms is no acted as a general prohibition. At atre I v Slaton, 413 US 49, 61, 37 L the steps of the South Boston Court greater than is essential to the fur- least as early as 1831, Indiana had a g Ed 2d 446, 93 S Ct 2628 (1973), we p therance of that interest." Id., at statute punishing "open and notori- house in the presence of a sizable ous lewdness, or . . . any grossly said: crowd, and 167 3(fo 20 L Ed 2d d). 88 S Ct scandalous and public indecency." (501 US 5671 1673 (footnotes omitted). Rev Laws of Ind, ch 26, §60 (1831); "In deciding Roth [v United States, was convicted of violat- [1b]Applying the four-part O'Brien Ind Rev Stat,ch 53,§81(1834).A gap 354 US 476[1 L Ed 2d 1498,77 S Ct ing a statute that prohibited the test enunciated above, we find that during which no statute was in effect 1304] (1957)], this Court implicitly knowing destruction or mutilation of Indiana's public indecency statute is was filled by the Indiana Supreme accepted that a legislature could such a card. He claimed that his con- justified despite its incidental limita- Court in Ardery v State, 56 Ind 328 legitimately act on such a conclu- viction was contrary to the First tions on some expressive activity.The (1877), which held that the court sion to protect 'the social interest Amendment because his act was public indecency statute is clearly could sustain a conviction for exhibi- in order and morality.' [Id.], at 485 "symbolic speech"—expressive con- within the constitutional power of tion of "privates" in the presence of [1 L Ed 2d 1498, 77 S Ct 1304]." duct. The Court rejected his conten- the State and furthers substantial others. The court traced the offense (Emphasis omitted.) tion that symbolic speech is entitled governmental interests. It is impos- to the Bible story of Adam and Eve. to full First Amendment protection, sible to discern, other than from the Id., at 329-330. In 1881, a statute was And in Bowers v Hardwick, 478 US ) saying: text of the statute, exactly what gov- enacted that would remain essen- 186, 196, 92 L Ed 2d 140, 106 S Ct ernmental interest the Indiana legis- tially unchanged for nearly a cen- 2841 (1986), we said: "[E]ven on the assumption that the lators had in mind when they enacted tury: alleged communicative element in (501 US 5681 "Whoever, being over fourteen "The law, however, is constantly O'Brien's conduct is sufficient to this statute, for Indiana does not rec- bring into play the First Amend- ord legislative history, and the years of age, makes an indecent based on notions of morality,and if ment, it does not necessarily follow State's highest court has not shed ad- exposure of his person in a public all laws representing essentially place, or in any place where there moral choices are to be invalidated that the destruction of a registra- ditional light on the statute's pur- tion certificate is constitutional) pur- are other persons to be offended or under the Due Process Clause, the y pose. Nonetheless, the statutes annoyed thereby, . . is guilty of » protected activity. This Court has pose of protecting societal order and y y y courts will be very busy indeed. held that when 'speech' and 'non- morality is clear from its text and public indecency . . . 1881 Ind Acts, ch 37, §90. Thus, the public indecency statute speech' elements are combined in history. Public indecency statutes of the same course of conduct, a suf- this sort are of ancient origin and [501 US 569] furthers a substantial government in- ficiently important governmental presently exist in at least 47 States. The language quoted above remained terest in protecting order and moral- interest in regulating the non- Public indecency, including nudity, unchanged until it was simulta- ity. speech element can justify inciden- was a criminal offense at common neously repealed and replaced with [501 US 576] tal limitations on First Amend- law, and this Court recognized the the present statute in 1976. 1976 Ind This interest is unrelated to the ment freedoms.To characterize the common-law roots of the offense of Acts, Pub L 148, Art 45, ch 4, § 12 suppression of free expression. quality of the governmental inter- "gross and open indecency" in Win- This and other public indecency Some .may view restricting nudity est which must appear, the Court ters v New York,333 US 507,515,92 statutes were designed to protect on moral grounds as necessarily has employed a variety of descrip- L Ed 840, 68 S Ct 665 (1948). Public tive terms:compelling;substantial; nudity was considered an act malum 2.Indiana Code§3545-4-1(1988)provides: commits public indecency, a Class A misde- subordinating; paramount; cogent; in se. Le Roy v Sidley, 1 Sid 168, 82 "Public indecency;indecent exposure meanor. "Sec.1.(a)A person who knowingly or inten- (b)'Nudity' means the showing of the hu- strong. Whatever imprecision in- Eng Rep 1036(KB 1664). Public inde- tionally,in a public place: man male or female genitals, pubic area, or heres in these terms, we think it cency statutes such as the one before "(1)engages in sexual intercourse; buttocks with less than a fully opaque cover- clear that a government regulation us reflect moral disapproval of people "(2)engages in deviate sexual conduct; ing,the showing of the female breast with less "(3)appears in a state of nudity;or than a fully opaque covering of any part of the is sufficiently justified if it is within appearing in the nude among Strang- "(4) fondles the genitals of himself or an- nipple,or the showing of the covered male gen- the constitutional power of the ers in public places. other person; itals in a discernibly turgid state." 512 513 U.S. SUPREME COURT REPORTS 115 L Ed 2d BARNES v GLEN THEATRE, INC. (1991)501 US 560, 115 L Ed 2d 504, 111 S Ct 2456 related to expression. We disagree. It governmental interest must be unre- cate frustrated this purpose and held, not because it survives some can be argued, of course, that almost lated to the suppression of free ex- '[fjor this noncommunicative impact lower level of First Amendment scru- limitless types of conduct—including pression. of his conduct, and for nothing else, tiny, but because, as a general law appearing in the nude in public—are he was convicted." 391 US, at 382, 20 regulating conduct and not specifi- "expressive," and in one sense of the But we do not think that when In- L Ed 2d 672, 88 S Ct 1673. It was as- tally directed at expression, it is not word this is true. People who go diana applies its statute to the nude sumed that O'Brien's act in burning subject to First Amendment scrutiny about in the nude in public may be dancing in these nightclubs it is pro- the certificate had a communicative at all. expressing something about them- scribing nudity because of the erotic element in it sufficient to bring into selves by so doing. But the court re- message conveyed by the dancers. play the First Amendment, id., at I jetted this expansive notion of "ex- [501 US 5711 376,20 L Ed 2d 672,88 S Ct 167Z,but Indiana's public indecency statute pressive conduct" in O'Brien, saying: Presumably numerous other erotic it was for the noncommunicative ele- provides: performances are presented at these ment that he was prosecuted. So here "We cannot accept the view that an establishments and similar clubs with the Indiana statute; while the "(a) A person who knowingly or apparently limitless variety of con- without any interference from the dancing to which it was applied had a intentionally, in a public place: duct can be labeled 'speech' when- State,so long as the performers wear communicative element, it was not "(1) engages in sexual inter- ever the person engaging in the a scant amount of clothing. Likewise, the dancing that was prohibited, but course; conduct intends thereby to express simply its being done in the nude. an idea." 391 US, at 376, 20 L Ed the requirement that the dancers don "(2) engages in deviate sexual 2d 672, 88 S Ct 1673. pasties and G-strings does not deprive The fourth part of the O'Brien test conduct; the dance of whatever erotic message requires that the incidental restric- And in Dallas v Stanglin, 490 US it conveys; it simply makes the mes- tion on First Amendment freedom be "(3) appears in a state of nudity; 19, 104 L Ed 2d 18, 109 S Ct 1591 sage slightly less graphic. The per- no greater than is essential to the or (1989), we further observed: ceived evil that Indiana seeks to ad- furtherance of the governmental in- "(4) fondles the genitals of him- "It is possible to find some kernel g, dress is not erotic dancing,but public terest. As above, the indicated in the discussion self or another person; of expression in almost every activ- nudity. The appearance of people of ity a person undertakes—for ex- all shapes, sizes and ages in the nude [501 US 572] commits public indecency, a Class ample, walking down the street or at a beach,for example,would convey governmental interest A misdemeanor. meeting one's friends at a shopping little if any erotic message, yet the served by the text of the prohibition _ mall—but such a kernel is not suf- State still seeks to prevent it. Public is societal disapproval of nudity in (b) Nudity means the showing p public places and among strangers. of the human male or female geni- ficient to bring the activity within nudity is the evil the State seeks to The statutory prohibition is not a tals, pubic area, or buttocks with the protection of the First Amend- prevent, whether or not it is com- means to some greater end, but an less than a fully opaque covering, ment. We think the activity of bined with expressive activity. end in itself. It is without cavil that the showing of the female breast these dance-hall patrons—coming the public indecency statute is "nar- with less than a fully opaque cover- together to engage in recreational This conclusion is buttressed by a rowly tailored"; Indiana's require- ing of any part of the nipple,or the dancing—is not protected by the reference to the facts of O'Brien. An ment that the dancers wear at least g genitals in showing of covered male First Amendment." Id., at 25, 104 Act of Congress provided that anyone pasties and G-strings is modest, and a discernibly turgid state." Ind L Ed 2d 18, 109 S Ct 1591. who knowingly destroyed a Selective the bare minimum necessary to Code §35-45-4-1 (1988). Respondents contend that even Service registration certificate com- achieve the State's purpose. On its face, this law is not directed though prohibiting nudity in public mitted an offense. O'Brien burned at expression in particular. As Judge generally may not be related to sup- his certificate on the steps of the The judgment of the Court of Ap g Easterbrook put it in his dissent pressing expression, prohibiting the South Boston Courthouse to influ- peals accordingly is reversed. below: "Indiana performance of nude dancing is re- ence others to adopt his antiwar be- [501 US 573] lated to expression because the State fiefs. This Court upheld his convic seeks to prevent its erotic message. tion, reasoning that the continued Justice Scalia, concurring in the does not regulate P g g judgment. dancing. It regulates public nudity. Therefore,they reason that the appli- availability of issued certificates . . . Almost the entire domain of cation of the Indiana statute to the served a legitimate and substantial (1c) I agree that the judgment of Indiana's statute is unrelated to ex- nude dancing in this case violates the purpose in the administration of the the Court of Appeals must be re- pression, unless we view nude First Amendment,because it fails the Selective Service System. O'Brien's versed. In my view, however, the beaches and topless hot dog vendors third part of the O'Brien test,viz:the deliberate destruction of his certifi- challenged regulation must be up- as speech." Miller v Civil City of 514 515 U.S. SUPREME COURT REPORTS 115 L Ed 2d BARNES v GLEN THEATRE, INC. J' 119911 501 US 560, 115 L Ed 2d 504,111 S Ct 2456 South Bend, 904 F2d 1081, 1120(CA7 [501 US 5741 t: (4a]The dissent confidently asserts, of these prohibitions should exist 1990). The intent to convey a "mes- the present one, post, at 590-591, 115 L Ed 2d, at 527, (though I have found few ready to sage of eroticism" (or any other mes- have been the same. Were it the case that the purpose of restricting nudity abandon, in principle, all of them), sage) is not a necessary element of that Indiana in practice targeted only in public places in general is to pro- there is no doubt that, absent specific the statutory offense of public inde- expressive nudity, while turning a tect nonconsenting parties from of- constitutional protection for the con- cency; nor does one commit that blind eye to nude beaches and un- fense;and argues that since only con- duct involved, the Constitution does statutory offense by conveying the clothed purveyors of hot dogs and senting, admission-paying patrons not prohibit them simply because most explicit "message of eroticism," machine tools,see Miller,904 F2d,at see respondents dance, that purpose they regulate"morality."See Bowers so long as he does not commit any of 1120, 1121,it might be said that what cannot apply and the only remaining the four specified acts in the pro,;ess.' g purpose must relate to the communi- v Hardwick,478 US I86, 196,92 L Ed posed as a regulation of conduct in cative elements of the performance. 2d 140, 106 S Ct 2841 (1986)(uphold- Indiana's statute is in the line of a general was in reality a regulation of Perhaps the dissenters believe that ing prohibition of private homosexual long tradition of laws against public only communicative conduct.Respon- "offense to others" ought to be the sodomy enacted solely on "the pre- nudity, which have never been dents have adduced no evidence of only reason for restricting nudity in sumed belief of a majority of the elec- thought to run afoul of traditional that. Indiana officials have brought public places generally, but there is torate in[the jurisdiction]that homo- many public indecency prosecutions no understanding of the freedom of sexual sodomy is immoral and speech."Public indecency-including for activities having no communica- [501 US 5751 unacceptable"). See also Paris Adult public nudity-has long been an of- tive element. See Bond v State, 515 basis for thinking that our society Theatre I v Slaton, 413 US 49, 68, n fense at common law. See 50 Am Jur NE2d 856,857(Ind 1987);In re Levin- has ever shared that Thoreauvian 2d,Lewdness,Indecency,and Obscen- son, 444 NE2d 1175, 1176 (Ind 1983); "you-may-do-what-you-like-so-long-as- 15, 37 L Ed 2d 446, 93 S Ct 2628 ity §17, pp 449, 472474 (1970); An- Preston v State,259 Ind 353,354-355, it-does-not-injure-someone-else" beau (1973); Dronenburg v Zech, 239 US not., Criminal offense predicated on 287 NE2d 347, 348 (1972); Thomas v ideal-much less for thinking that it App DC 229, 238, and n 6, 741 F2d indecent exposure, 93 ALR 996, 997- State,238 Ind 658,659-660, 154 NE2d was written into the Constitution. 1388, 1397, and n 6(1984)(opinion of 998 (1934); Winters v New York, 333 503, 504-505 (1958); Blanton v State, The purpose of Indiana's nudity law Bork, J.). The purpose of the Indiana US 507,515, 92 L Ed 840, 68 S Ct 665 533 NE2d 190, 191 (Ind App 1989); would be violated, I think, if 60,000 statute, as both its text and the man- (1948). Indiana's first public nudity Sweeney v State, 486 NE2d 651, 652 fully consenting adults crowded into ner of its enforcement demonstrate, statute, Rev Laws of Ind., ch 26, §60 (Ind App 1985); Thompson v State, the Hoosier Dome to display their is to enforce the traditional moral (1831), predated by many years the 482 NE2d 1372, 1373-1374 (Ind App genitals to one another, even if there belief that people should not expose appearance of nude barroom dancing. 1985); Adims v State, 461 NE2d 740, were not an offended innocent in the their private parts indiscriminately, It was general in scope,directed at all 741-742 (Ind App 1984); State v El- crowd. Our society prohibits, and all regardless of whether those who see public nudity, and not just at public liott, 435 NE2d 302, 304 (Ind App human societies have prohibited, cer- them are disedified. Since that is so, nude expression; and all succeeding 1982); Lasko v State, 409 NE2d 1124, tain activities not because they harm the dissent has no basis for positing statutes, down to 1126(Ind App 1980).2 others but because they are consid- that, where only thoroughly edified 1. Respondents assert that the statute can- claimed to contradict the first(though 1 think ered, in the traditional phrase, "con- adults are present, the purpose must not be characterized as a general regulation of it does not);but it certainly does not waive or tra bonus mores, i.e., immoral. In g i; S be repression of communication.3 conduct, unrelated to suppression of expres- abandon it. In any case, the clear purpose American society, such prohibitions sion, because one defense put forward in oral shown by both the text and historical use of have included, for example, sadomas- argument below by the attorney general re. the statute cannot be refuted by a litigating ochi (501 US 576) (erred to the"message of eroticism"conveyed statement in a single case. cide, d cockfighting, bestiality, Sul- II b respondents.But that argument seemed to cide, drug use, prostitution, and sod- s 2.Respondents also contend that the statute, om . While there may be great [1d Since the Indiana regulation go to whether the statute could constitution- Y Y g ] g as interpreted, is not content neutral in the ally be applied to the present performances, expressive conduct to which it applies,since it diversity of view on whether various is a general law not specifically tar- rather than to what was the purpose of the allegedly does not apply to nudity in theatrical legislation.Moreover,the State's argument be- productions. See State v Baysinger, 272 Ind 3. The dissent, post, at 590, 595-596, 115 L since the common-law offense, and the tradi- low was in the alternative:(1)that the statute 236, 247, 397 NE2d 580, 587 (1979). I am not Ed 2d,at 527,530,also misunderstands what is tional moral prohibition, runs against public does not implicate the First Amendment be- sure that theater versus nontheater represents meant by the term "general law." I do not nudity,not against all nudity. E.g.50 Am Jur cause it is a neutral rule not directed at expres- a distinction based on content rather than mean that the law restricts the targeted con- 2d, Lewdness, Indecency, and Obscenity §17, duct in all places at all times.A law is"gener- pp 472474 (1970)). But that confirms, rather sion, and (2) that the statute in any event format, but assuming that it does, the argu- al" for the present purposes if it regulates than refutes, the general nature of the law: survives First Amendment scrutiny because of ment nonetheless fails for the reason the plu- conduct without regard to whether that con- One may not go nude in public,whether or not the State's interest in suppressing nude bar- rality describes,ante,at 564,n 1,115 L Ed 2d, duct is expressive. Concededly, Indiana bans one intends thereby to convey a message,and room dancing. The second argument can be at 510. nudity in public places, but not within the similarly one may go nude in private, again privacy of the home. (That is not surprising, whether or not that nudity is expressive. 516 517 U.S. SUPREME COURT REPORTS 115 L Ed 2d } BARNES v GLEN THEATRE, INC. o9911501 US 560,115 L Ed 2d 504,ill S Ct 2456 geted at expressive conduct,its appli- 377, 20 L Ed 2d 672, 88 S Ct 1673 tion was the object of the regulation port the conclusion that "the only cation to such conduct does not in my (1968�-that it be justified by an "im- of conduct. Where that has not been First Amendment analysis applicable view implicate the First Amendment. portant or substantial" the case, however-where suppres- to laws that do not directly or indi- The First Amendment explicitly [501 US 577] Sion of communicative use of the con- rectly impede speech is the threshold protects"the freedom of speech [and) government duct was merely the incidental effect inquiry of whether the purpose of the of the press"-oral and written interest. Nor do our holdings require of forbidding the conduct for other law is to suppress communication. If speech-not "expressive conduct." such justification: We have never in- reasons-we have allowed the regula- not, that is the end of the matter so When any law restricts speech, even validated the application of a general tion to stand. O'Brien, supra, at 377, far as First Amendment guarantees20 L Ed 2d 672, 88 S Ct 1673 (law are concerned; if so, the court then for a purpose that has nothing to do law simply because the conduct that with the suppression of communica- banning destruction of draft card up- proceeds to determine whether there pp it reached was being engaged in for held in application against card burn- tion(for instance,to reduce noise,see is substantial justification for the pro- expressive purposes and the govern- ing to protest Saia v New York,334 US 558,561,92 scription." Community for Creative L Ed 1574, 68 S Ct 1148 (1948), to ment could not demonstrate a sufli- (501 US 57s]ciently important state interest. war); FTC v Superior Non-Violence v Watt,227 USApp DC regulate election campaigns, see Court Trial Lawyers Assn., 493 US 19, 55-56, 703 F2d 586,622-623(1983) Buckley v Valeo, 424 US 1, 16, 46 L [Sal This is not to say that the First 411, 107 L Ed 2d 851, 110 S Ct 768 (en bane)(Scalia,J.,dissenting),(foot- Ed 2d 659, 96 S Ct 612 (1976), or to Amendment affords no protection to (1990) (Sherman Act upheld in appli- note omitted; emphasis omitted), prevent littering, see Schneider v expressive conduct. Where the gov- cation against restraint of trade to rev'd sub nom. Clark v Community State (Town of Irvington), 308 US ernment prohibits conduct precisely protest low pay); cf. United States v for Creative Non-Violence, 468 US 147, 163, 84 L Ed 155, 60 S Ct 146 Albertini, 472 US 675, 687-688, 86 L 288, 82 L Ed 2d 221, 104 S Ct 3065 (1939)), we insist that it meet the because of its communicative con- Ed 2d 536, 105 S Ct 2897 (1985)(rule (1984). Such a regime ensures that butes, we hold the regulation uncon barring respondent from military high, First Amendment standard of g p y the government does not act to sup- justification. See, e.g., United States v base upheld in application against q justification. But virtually every law P PP � g press communication,without re uir- restricts conduct, and virtually any Eichman, 496 US 310, 110 L Ed 2d entrance on base to protest war); ing that all conduct-restricting regu- I prohibited conduct can be performed 287, 110 S Ct 2404 (1990) (burning Clark v Community for Creative Ikon- lation for an expressive purpose-if only ex- flag); Texas v Johnson, 491 US 397, Violence,468 US 288,82 L Ed 2d 221, (501 US 5791 { pressive of the fact that the actor 105 L Ed 2d 342, 109 S Ct 2533(1989) 104 S Ct 3065 (1984) (rule barring (which means in effect all disagrees with the prohibition. See, (same);Spence v Washington,418 US sleeping in parks upheld in applica- regulation)survive an enhanced level e.g. Florida Free Beaches, Inc. v Mi- 405, 41 L Ed 2d 842, 94 S Ct 2727 tion against persons engaging in such of scrutiny. ami, 734 F2d 608, 609 (CA11 1984) (1974) (defacing flag); Tinker v Des conduct to dramatize plight of home- less). As we clearly expressed the We have explicitly adopted such a (nude sunbathers challenging public Moines Independent Community point in Johnson: regime in another First Amendment indecency law claimed their "mes- School Dist., 393 US 503, 21 L Ed 2d "The government generally has a context: that of free exercise. In sage" was that nudity is not inde- 731,89 S Ct 733(1969)(wearing black freer hand in restricting expressive Employment Div., Dept. of Human cent). It cannot reasonably be de- arm bands); Brown v Louisiana, 383 conduct than it has in restricting Resources of Ore. v Smith, 494 US manded, therefore, that every US 131, 15 L Ed 2d 637, 86 S Ct 719 the written or spoken word. It may 872, 108 L Ed 2d 876, 110 S Ct restriction of expression incidentally (1966) (participating in silent sit-in); not, however, proscribe particular 1595 (1990), we held that general produced by a general law regulating Stromberg v California, 283 US 359, targeted at reli- conduct pass normal First Amend- 75 L Ed 1117, 51 S Ct 532, 73 ALR conduct because it has expressive laws not specifically elements. What might be termed gious practices did not require ment scrutiny, or even-as some of 1484(1931)(flying a red flag).'In each the more generalized guarantee of heightened First Amendment scru- our cases have suggested, see, e.g., of the foregoing cases, we explicitly freedom of expression makes the tiny even though they diminished United States v O'Brien, 391 US 367, found that suppressing communica- communicative nature of conduct some people's ability to practice 4. It is easy to conclude that conduct has tion, to someone else. I am not sure whether an inadequate basis for singling out their religion. "The government's been conduct for proscription." 491 ability to enforce generally appli- been forbidden because of its communicative dancing fits that description,see Dallas v Stang- attributes when the conduct in question is lin, 490 US 19, 24, 104 L Ed 2d 18, log S Ct US, at 406, 105 L Ed 2d 342, 109 S cable prohibitions of socially harmful what the Court has called"inherently expres. 1591 (1989) (social dance group "doles) not Ct 2533 (internal quotation marks conduct, like its ability to carry out sive,"and what 1 would prefer to call"conven- involve the sort of expressive association that and citations omitted; emphasis in other aspects of public policy, 'can- tionally expressive"-such as flying a red flag. the First Amendment has been held to pro- original). I mean by that phrase(as I assume the Court tect"). But even if it does,this law is directed not depend on measuring the effects means by "inherently expressive') conduct against nudity,not dancing.Nudity is not nor- All our holdings (though admit- of a governmental action on a reli- that is normally engaged in for the purpose of mally engaged in for the purpose of communi- telly not some Of our d1sCUSSIOn)Sup- glows ObjeCtor'S spiritual develop communicating an idea, or perhaps an emo- eating an idea or an emotion. 518 519 U.S. SUPREME COURT REPORTS 115 L Ed 2d BARNES v GLEN THEATRE, INC. (1991)501 US 560,115 L Ed 2d 504,111 S Ct 2456 ment.'" Id., at 885, 108 L Ed 2d 876, terests-and especially of govern- ment has no application to this case how appropriate to the circum- 110 S Ct 1595,quoting Lyng v North- ment interests in various aspects of no more than that is needed. stances. But every voluntary act im- west Indian Cemetery Protective morality. plies some such idea, and the Assn., 485 US 439, 451, 99 L Ed 2d implication is thus so common and 534, 108 S Ct 1319 (1988); see also Neither of the cases that the plu- Indiana may constitutionally en minimal that calling all voluntary Minersville School District v Gobitis, rality cites to support the "impor. force its prohibition of public nudity activity expressive would reduce the 310 US 586,594-595,84 L Ed 1375,60 tance" of the State's interest here, even against those who choose to use concept of expression to the point of S Ct 1010, 127 ALR 1493 (1940) see ante, at 569, 115 L Ed 2d, public nudity as a means of commu- the meaningless. A search for some (Frankfurter, J.) ("Conscientious at 513-514, is in point. Paris nication. The State is regulating con- expression beyond the minimal in the scruples have not,in the course cf the Adult Theatre I v Slaton, 413 US, at duct, not expression, and those who choice to go nude will often yield long struggle for religious toleration, 61, 37 L Ed 2d 446,93 S Ct 2628, and choose to employ conduct nothing:a person may choose nudity, [501 US 581) for example,relieved the individual from obedi- Bowers v Hardwick, 478 US, at 196, p for maximum sunbath- as a means in But when nudity once to a general law not aimed at 92 L Ed 2d 140, 106 S Ct 2841, did g. y is combined of expression must make sure that r the promotion or restriction of reli- uphold laws prohibiting private con- with expressive activity, its stimula- gious beliefs"). There is even greater duct based on concerns of decency ) the conduct they select is not goner- tive and attractive value certainly ally forbidden. For these reasons, I reason to apply this approach to the and morality; but neither opinion can enhance the force of expression, regulation of expressive conduct. held that those concerns were partic- agree that the judgment should be re- and a dancer's acts in going from Relatively few can plausibly assert ularly "important" or "substantial," versed. clothed to nude,as in a striptease,are that their illegal conduct is being en- or amounted to anything more than integrated into the dance and its ex- gaged in for religious reasons; but a rational basis for regulation. Sla- Justice Souter, concurring in the pressive function. Thus I agree with almost anyone can violate almost any ton involved an exhibition which, judgment. the plurality and the dissent that an law as a means of expression. In the since it was obscene and at least to interest in freely engaging in the First one case,as in the other, if the law is some extent public, was unprotected ° First Amendment protection as ex Not all dancing is entitled to nude dancing at issue here is subject to a not directed against the protected by the First Amendment, see Roth v ! pressive activity. This Court has pre- tectiongree of First Amendment pro- j value (religion or expression)the law United States, 354 US 476, 1 L Ed i piously categorized ballroom dancing must be obeyed. 2d 1498, 77 S Ct 1304 (1957); the as beyond the Amendment's protec- [501 US 582) III States prohibition could therefore tion, Dallas v Stanglin, 490 US 19, [1f,3b] I also agree with the plural- be invalidated only if it had no ra- 24-25, 104 L Ed 2d 18, 109 S Ct 1591 ity that the appropriate analysis to [1e] While I do not think the plu- tional basis. We found that the (1989), and dancing as aerobic exer- determine the actual protection re- rality's conclusions differ greatly State's "right . . . to maintain a wouldcise b t the uired b the First Amendment is the from my own, I cannot entirely en- decent society" provided a "legiti- First A Amendment's con ere n. But four-part enquiry described in United dorse its reasoning. The plurality mate" basis for regulation-even as States v O'Brien,391 US 367,20 L Ed to obscene material viewed b dancing as a performance directed to purports to apply to this general law, y con- an actual or h 2d 672, 88 S Ct 1673 (1968), for 'ud insofar as it regulates this allegedly senting adults. 413 US, at 59-60, 37 hypothetical audience g- expressive conduct, an intermediate L Ed 2d 446, 93 S Ct 2628. In Bow- � gives expression at least to general- ing the limits of appropriate state ac- ized emotion or feeling, and where tion burdening expressive acts as dis- level of First Amendment scrutiny: ers, we held that since homosexual the dancer is nude or nearly so the tinct from pure speech or The government interest in the regu- behavior is not a fundamental right, k representation. I nonetheless write ' a Georgia law prohibiting private feeling expressed, in the absence of lation must be "'important or sub g p g p some contrary clue, is eroticism, car- separately to rest my concurrence in stantial,'" ante, at 567, 115 L Ed 2d, homosexual intercourse needed only rying an endorsement of erotic expe- the judgment,not on the possible suf- at 512, quoting O'Brien, supra, at a rational basis in order to comply rience.Such is the expressive content ficiency of society's moral views to 377, 20 L Ed 2d 672,88 S Ct 1673. As with the Due Process Clause. Moral of the dances described in the record. justify the limitations at issue,but on I have indicated, opposition to homosexuality, we said, the State's substantial interest in (501 US 5801 provided that rational basis. 478 US, t Although such performance danc combating the secondary effects of I do not believe at 196, 92 L Ed 2d 140, 106 S Ct ing is inherently expressive, nudity adult entertainment establishments such a heightened standard exists. I 2841. I would uphold the Indiana per se is not. It is a condition, not an of the sort typified by respondents' think we should avoid wherever pos- statute on precisely the same + activity, and the voluntary assump- establishments. sible, moreover, a method of analysis ground: Moral opposition to nudity tion of that condition, without more, that requires judicial assessment of supplies a rational basis for its prohi- apparently expresses nothing beyond It is, of course, true that this justi- the "importance" of government in- bition, and since the First Amend- the view that the condition is some- fication has not been articulated by 520 521 U.S. SUPREME COURT REPORTS 115 L Ed 2d BARNES v GLEN THEATRE, INC. 0 99 1)501 US 560, 115 L Ed 2d UX,I I I S Ct 2456 Indiana's Legislature or by its courts. speech about it." O'Brien, supra, at present enquiry,we held that the city (CA7 1989) (prostitution associated As the plurality observes, "Indiana 384, 20 L Ed 2d 672, 88 S Ct 1673. In of Renton was not compelled to jus- with nude dancing establishment); does not record legislative history, my view, the interest asserted by pe- tify its restrictions by studies specifi- United States v Doerr, 886 F2d 944, and the State's highest court has not titioners in preventing prostitution, cally relating to the problems 949 (CA7 1989) (same). In light of [501 US 5841 shed additional light on the statutes sexual assault,and other criminal ac- that Renton's recognition that legislation purpose," ante, at 568, 115 L Ed 2d9 tivit ,although presumably not a 'us- ! seeking to combat the secondary ef- Y g P Y J would be caused by adult theaters in at 512. While it is certainly sound in tification for all applications of the 1 that city. Rather, "Renton was en- fects of adult entertainment need not such circumstances to infer general statute, is sufficient under O'Brien to i titled to rely on the experiences of await localized proof of those effects, purposes "of protecting societal order justify the State's enforcement of the Seattle and other cities,"id.,at 51,89 the State of Indiana could reasonably and morality . . . from [the statute's] statute against the type of adult en- 1 L Ed 2d 299 106 S Ct 925,which dem- conclude that forbidding nude enter- text and history," ibid., I think that tertainment at issue here. onstrated the harmful secondary ef- tainment of the type offered at the we need not so limit ourselves in fects correlated with the presence"of Kitty Kat Lounge and the Glen The- identifying the justification for the At the outset, it is clear that the even one [adult] theater in a given atre's "bookstore" furthers its inter- legislation at issue here, and may prevention of such evils falls within i neighborhood." Id., at 50, 89 L Ed 2d est in preventing prostitution, sexual legitimately consider petitioners' as- the constitutional power of the State, 29, 106 S Ct 925; cf. Young v Ameri- assault, and associated crimes. Given sertion that the statute is applied to which satisfies the first O'Brien crite- ! can Mini Theatres, Inc. 427 US 50, our recognition that "society's inter- nude dancing because such dancing rion. See 391 US, at 377, 20 L Ed 2d 71,n 34,49 L Ed 2d 310,96 S Ct 2440 est in protecting this type of expres- "encourag[es]prostitution,increases] 672,88 S Ct 1673.The second O'Brien ! (1976)(legislative finding that"a con- Sion is of a wholly different, and sexual assaults, and attracts] other centration of `adult' movie theaters prong asks whether the regulation lesser,magnitude than the interest in criminal activity." Brief for Petition- ,furthers an important or substantial causes the area to deteriorate and untrammeled political debate," ers 37. governmental interest." Ibid. The as- become a focus of crime"); California American Mini Theatres, supra, at This asserted justification for the serted state interest is plainly a sub- v LaRue,409 US 109, 111,34 L Ed 2d 70,49 L Ed 2d 310, 96 S Ct 2440,I do statute may not be ignored merely stantial one; the only question is 342, 93 S Ct 390 (1972) (administra- not believe that a State is required tive findings of criminal activity asso- because it is unclear to what extent whether prohibiting nude dancing of i affirmatively to undertake to litigate this purpose motivated the Indiana the sort at issue here "furthers" that j ciated with adult entertainment). this issue repeatedly in every Legislature in enacting the statute. interest. I believe that our cases have The type of entertainment respon- [501 US 5851 Our appropriate focus is not an em- addressed this question sufficiently to dents seek to provide is plainly of the case. pirical enquiry into the actual intent establish that it does. same character as that at issue in The statute as applied to nudity of of the enacting legislature,but rather { Renton, American Mini Theatres, the sort at issue here therefore satis- the existence or not of a current gov- In Renton v Playtime Theatres, and LaRue. It therefore is no leap to fies the second prong of O'Brien.2 ernmental interest in the service of Inc. 475 US 41, 89 L Ed 2d 29, 106 S say that live nude dancing of the sort which the challenged application of Ct 925 (1986), we upheld a city's at issue here is likely to produce the The third O'Brien condition is the statute may be constitutional. Cf. zoning ordinance designed to pre- same pernicious secondary effects as that the governmental interest be McGowan v Maryland, 366 US 420, 6 vent the occurrence of harmful sec- the adult films displaying "specified "unrelated to the suppression of free L Ed 2d 393, 81 S Ct 1101 ondary effects, including the crime f anatomical areas"at issue in Renton. expression," 391 US, at 377, 20 L Ed (501 US 5831 associated with adult entertainment, f Other reported cases from the Circuit 2d 672, 88 S Ct 1673, and, on its (1961). At by protecting approximately 95% of in which this litigation arose confirm face, the governmental interest in least as to the regulation of expres- the city's area from the placement of the conclusion. See, e.g., United combating prostitution and other sive conduct,' "[w]e decline to void [a motion picture theaters emphasizing States v Marren, 890 F2d 924, 926 criminal activity is not at all inher- statute] essentially on the ground "'matter depicting, describing or re- 2.Because there is no overbreadth challenge Ct 925(1986).It is difficult to see,for example, that it is unwise legislation which lating to."specified sexual activities" before us, we are not called upon to decide how the enforcement of Indiana's statute [the legislature] had the undoubted or "specified anatomical areas" . . . whether the application of the statute would against nudity in a production of "Hair" or be valid in other contexts. It is enough, then, uus" somewhere other than an "adult" power to enact and which could be re- for observation by patrons therein.'" � "� to say that the secondary effects rationale on theater would further the State's interest in enacted in its exact form if the same Id., at 44, 89 L Ed 2d 29, 106 S Ct which I rely here would be open to question if avoiding harmful secondary effects, in the ab- or another legislator made a 'wiser' 925. Of particular importance to the the State were to seek to enforce the statute by Bence of evidence that expressive nudity out- barring expressive nudity in classes of produc- side the context of Renton-type adult enter- 1.Cf.,e.g.,Edwards v Aguillard,482 US 578, grounds due to impermissible legislative in- tions that could not readily be analogized to tainment was correlated with such seconds 96 L Ed 2d 510,10", S Ct 2573(1987)(striking tent). the adult films at issue in Renton v Playtime effects. secondary down state statute on Establishment Clause Theatres,Inc.475 US 41,89 L Ed 2d 29,106 S 522 523 U.S. SUPREME COURT REPORTS 115 L Ed 2d BARNES v GLEN THEATRE, INC. (1991)501 US 560,115 L Ed 2d 504,111 S Ct 2456 ently related to expression. The dis- Because the State's interest in ban- essential to further the governmental ment is expressive conduct protected sent contends, however, that Indiana ning nude dancing results from a interest, requires little discussion. by the First Amendment. The Court seeks to regulate nude dancing as its simple correlation of such dancing Pasties and a G-string moderate the of Appeals held that it is, observing means of combating such secondary with other evils, rather than from a expression to some degree,to be sure, that our prior decisions permit no effects "because . . . creating or em- relationship between the other evils but only to a degree. Dropping the other conclusion. Not surprisingly, phasizing [the] thoughts and ideas and the expressive component of the final stitch is prohibited,but the limi- then,the plurality now concedes that [expressed by nude dancing] in the dancing, the interest is unrelated to tation is minor when measured "nude dancing of the kind sought to minds of the spectators may lead to the suppression of free expression. against the dancer's remaining ca- be performed here is expressive con- increased prostitution," post, at 592, Renton is again persuasive in support pacity and opportunity to express the duct within the outer perimeters of 115 L Ed 2d, at 528, and that regula- of this conclusion. In Renton,we held erotic message. Nor, so far as we are the First Amendment. . . ...Ante,at tion of expressive conduct because of 566, 115 L Ed 2d, at 511. This is no the fear that the expression will that an ordinance that regulated told, is the dancer or her employer more than recognizing, as the Sev- adult theaters because the presence limited by anything short of obscen- prove persuasive is inherently re- of such theaters was correlated with ity laws from expressing an erotic enth Circuit observed,that dancing is lated to the suppression of free ex- an ancient art form and "inherently pression. Ibid. secondary effects that the local gev- message by articulate speech or rep embodies the expression and commu- ernment had an interest in regulat- resentational means; a pornographic nication of ideas and emotions." The major premise of the dissent's ing was content neutral(a determina_ movie featuring one of respondents, Miller v Civil City of South Bend,904 reasoning may be correct, but its mi- tion similar to the "unrelated to the for example, was playing nearby F2d 1081, 1087 (1990)(en bane).' nor premise describing the causal suppression of free expression"deter- without any interference from the theory of Indiana's regulatory justifi urination here, see Clark Commu authorities at the time these cases (501 US 588) cation is not. To say that pernicious nity for Creative Non-Violence, arose.468 I Having arrived at the conclusion secondary effects are associated with US 288, 298, and n 8,82 L Ed 2d 221, that nude dancing performed as en- nude dancing establishments is not Accordingly, I find O'Brien satis tertainment enjoys First Amend- necessarily to say that such effects 104 S Ct 3065 (1984)) because it was fled and concur in the judgment. ment protection, the plurality states !. result from the persuasive effect of Justified without reference to the that it must "determine the level of 925 US,at 48,89 L Ed 2d 29, 106 S Ct 25 Justice White, with whom Justice the expression inherent in nude danc- content of the regulated speech." protection to be afforded to the ex- ing. It is to say, rather, only that the pressive conduct at issue, and must (emphasis in original). We reached Marshall, Justice Blackmun, and effects are correlated with the exis- this conclusion without need to de- Justice Stevensjoin, ditin determine whether the Indiana stat tence of establishments offering such evens sseng' ute is an impermissible infringement dancing, without deciding what the tide whether the cause h the persucorreasive (2c] The first question presented to of that protected activity." Ante, at precise causes of the correlation effect might have been the persuasive us in this case is whether nonobscene 566, 115 L Ed 2d, at 511. For guid- [501 US 586] effect of the adult films that were be- nude dancing performed as entertain- ante, the plurality turns to United ac- ing regulated. Similarly here, the tually are. It is possible, for example, "secondary effects" justification 1. Justice Scalia suggests that performance power of dance was noted by the French poet that the higher incidence of prostitu- means that enforcement Of the Indi- dancing is not inherently expressive activity, St@phane Mallarmt; who declared that the ana statute against nude dancing is see ante,at 577,n 4, 115 L Ed 2d,at 518,but dancer 'writing with her body . . . suggests tion and sexual assault in the V1Cin I the Court of Appeals has the better view: things which the written work could express ity of adult entertainment locations `Justified without reference to the "Dance has been defined as'the art of moving only in several paragraphs of dialogue or de- results from the concentration of content of the regulated [expres- the body in a rhythmical way, usually to mu- scriptive prose."' 904 F2d, at 1085-1086. Jus- crowds of men predisposed to such Sion]," ibid. (emphasis omitted). ! sic,to express an emotion or idea,to narrate a tice Scalia cites Dallas v Stanglin,490 US 19, which is sufficient, at least in the ( story, or simply to take delight in the move- activities,or from the simple viewing 104 L Ed 2d 18, 109 S Ct 1591(1989),but that Context Of sexually explicit ex res ment itself.' 16 The New Encyclopedia Britan- of nude bodies regardless of whether y p p decision dealt with social dancing, not perfor- g y nica 935 119891.Inherently,it is the communi- those bodies are engaged in ex res- sion, to satisfy the third prong of the i mance dancing; and the submission in that p q cation of emotion or ideas. At the root of all O'Brien test. case, which we rejected, was not that social sion Or not. In neither case would the '[tlhe varied manifestations of dancing. . .lies dancing was an expressive activity but that chain of causation run through the [501 US 587 the common impulse to resort to movement to ] externalise states which we cannot externalise Plaintiff's associationnl rights were violated by ex persuasive effect of the expressive The fourth O'Brien condition, that ' eby x rational means.This is basic dame.'Martin, restricting admission to dance halls on the component of nude dancing. the restriction be no greater than ' J. Introduction to the Dance (1939). Aristotle basis of age.The Justice also asserts that even recognized in Poetics that the purpose of dance if dancing is inherently expressive, nudity is 3. I reach this conclusion again mindful,as other forms of expression. See Renton, supra, is'to represent men's character as well as what not.The statement may be true,but it tells us was the Court in Renton,that the protection of at 49,and n 2,89 L Ed 2d 29,106 S Ct 925,cit- { they do and suffer.' The raw communicative nothing about dancing in the nude. sexually explicit expression may be of lesser ing Young v American Mini Theatres,Inc.427 t societal importance than the protection of US 50,70,49 L Ed 2d 310,96 S Ct 2440(1976). 524 525 U.S. SUPREME COURT REPORTS 115 L Ed 2d BARNES v GLEN THEATRE, INC. 099D 501 US 560, 115 L Ed 2d 504,111 S Ct 2456 States v O'Brien,391 US 367,20 L Ed Hardwick, 478 US 186, 92 L Ed 2d 31; Reply Brief for Petitioners 9-11. to protect others from offense. But 2d 672, 88 S Ct 1673 (1968), which 140, 106 S Ct 2841 (1986), involved Petitioners also state that the evils that could not possibly be the purpose held that expressive conduct could be anything less than truly general pro- sought to be avoided by applying the of preventing nude dancing in the- narrowly regulated or forbidden in scriptions on individual conduct. In statute in this case would not obtain aters and barrooms since the viewers pursuit of an important or substan- O'Brien, for example, individuals in the case of theatrical productions, are exclusively consenting adults tial governmental interest that is un- were prohibited from destroying such as "Salome" or "Hair." Id., at who pay money to see these dances. related to the content of the expres- their draft cards at any time and in 11-12. Neither is there any evidence ted to apply The purpose of the proscription in sion. The plurality finds that the any place,even in completely private that the State has attempted PP Y these contexts is to protect the view- Indiana statute satisfies the O'Brien places such as the home. Likewise, in the statute to nudity in performances ers from what the State believes is test in all respects. Bowers, the State prohibited sodomy, such as plays, ballets, or operas. "No the harmful message that nude danc- The plurality acknowledges that it regardless of where the conduct arrests have ever been made for nu- is impossible to discern the exact might occur, including the home as dity as part of a play or ballet." App ing communicates. This is why Clark Non- state interests which the Indiana was true in that case. The same is 19(affidavit of Sgt. Timothy Corbett). v Community for Creative Non- Legislature had in mind when it en- true of cases like Employment Div., Violence,468 US 288,82 L Ed 2d 221, acted the Indiana statute, but the Dept. of Human Resources of Ore. v [3c] Thus, the Indiana statute a 104 S Ct 3065 (1984), is of no help to plurality nonetheless concludes that Smith, 494 US 872, 108 L Ed 2d 876, not a general prohibition a the type the State: "In Clark . . . the damage it is clear from the statute's text and 110 S Ct 1595 (1990), which, though we have upheld in prior cases. Asa to the parks was the same whether result, the plurality and Justice Sca- the sleepers history that the law's purpose is to not applicable here because it did not P were camping P g out for protect"societal order and morality." involve any claim that the peyote us- general s simple referencesneral interest in promoting the State's societal s fun, were in fact homeless,or wished ge b sleeping in the ark to make a Ante,at 568, 115 L Ed 2d,at 512.The ers were engaged in expressive activ Y P g P plurality goes on to ity, recognized that the State's inter- order and morality are not sufficient symbolic statement on behalf of the [501 US 5891 est in preventing the use of illegal justification for a statute which con- homeless." 904 F2d, at 1103 (Posner, conclude that drugs extends even into the home. B of protected reaches a significant amount J., concurring). That cannot be said Indiana's statute "was enacted as a contrast,in this case Indiana does not of prott ected expressive activity. In- in this case:The perceived damage to general prohibition,"ante,at 568, 115 suggest that its statute applies to, or stead, in applying the O'Brien test, the public interest caused by appear- L Ed 2d, at 513 (emphasis added), on could be applied to, nudity wherever we are obligated to carefully examine ing nude on the streets or in the people appearing in the nude among it occurs, including the home. We do the reasons the State has chosen to parks, as I have said, is not what the strangers in public places. The plu- not understand the plurality of Jus- regulate this expressive conduct in a State seeks to avoid in preventing rality then points to cases in which tice Scalia to be suggesting less than general statute. In other ggestin that Indi- nude dancing in theaters and tav- we upheld legislation based on the ana could constitutionally enact such words, when the State enacts a law erns.There the perceived harm is the State's police power, and ultimately an intrusive prohibition, nor do we which draws a line between expres- communicative aspect of the erotic concludes that the Indiana statute think such a suggestion would be ten- sive conduct which is regulated and dance. As the State now tells us, and "furthers a substantial government able in light of our decision in Stan- nonexpressive conduct of the same as Justice Souter agrees; the State's interest in protecting order and mo- ley v Georgia,394 US 557,22 L Ed 2d type which is not regulated, O'Brien goal in applying what it describes as rality." Ante, at 569, 115 L Ed 2d, at 542, 89 S Ct 1243(1969), in which we places the burden on the State to its "content neutral" statute to the justify the distinctions it has made. 513. The Court also holds that the held that States could not punish the j Y nude dancing in this case is deter- basis for banning nude dancing is un- [501 US 590 Closer inquiry as to the purpose of 1 rence of prostitution,sexual assaults, related to free expression and that it mere possession of obscenity in the the statute is surely appropriate. criminal activity, degradation of is narrowly drawn to serve the privacy of one's own home. Legislators do not just randomly women, and other activities which State's interest. We are told by the attorney gen- select certain conduct for proscrip- break down family structure." Reply The plurality's analysis is errone- eral of Indiana that, in State v tion; they have reasons for doing so Brief for Petitioners 11. The attain- ous in several respects. Both the plu Baysinger,272 Ind 236,397 NE2d 580 i and those reasons illuminate the pur- ment of these goals, however, de- rality and Justice Scalia in his opin- (1979), the Indiana Supreme Court pose of the law that is passed. Indeed, pends on preventing an expressive ion concurring in the judgment held that the statute at issue here a law may have multiple purposes. activity. overlook a fundamental and critical cannot and does not prohibit nudity The purpose of aspect of our cases upholding the as a part of some larger form of ex- (501 Us 5911 The plurality nevertheless holds that States' exercise of their police pow- pression meriting protection when forbidding people to the third requirement of the O'Brien ers. None of the cases they rely upon, the communication of ideas is in- appear nude in parks, beaches, hot test, that the governmental interest including O'Brien and Bowers v volved. Brief for Petitioners 25, 30- dog stands, and like public places is be unrelated to the suppression of 526 527 U.S. SUPREME COURT REPORTS 115 L Ed 2d BARNES v GLEN THEATRE, INC. 11991)501 US 560,115 L Ed 2d 504,111 S Ct 2456 free expression,is satisfied because in "conduct." We have previously That fact dictates the level of First content (as viewed by judges) or in ' applying the statute to nude dancing, pointed out that "'[n]udity alone' Amendment protection to be ac- quality (as viewed by critics), it may the State is not "proscribing nudity does not place otherwise protected ;' corded the performances at issue not differ in substance from the dance because of the erotic message con- material outside the mantle of the j here. In Texas v Johnson, 491 US viewed by the person who . . . wants veyed by the dancers." Ante, at 570, First Amendment." Schad v Mt. I 397, 411-412, 105 L Ed 2d 342, 109 S some'entertainment'with his beer or 115 L Ed 2d, at 514. The plurality Ephraim, 452 US 61, 66, 68 L Ed 2d Ct 2533 (1989), the Court observed: shot of rye."Salem Inn, Inc.v Frank, suggests that this is so because the 671, 101 S Ct 2176(1981). "Whether Johnson's treatment of the 501 F2d 18, 21, n 3 (CA2 1974), affd State does not ban dancing that sends flag violated Texas law thus de- in part sub nom. Doran v Salem Inn, an erotic message; it is only nude This being the case, it cannot be pended on the likely communicative Inc. 422 US 922, 45 L Ed 2d 648, 95 S erotic dancing that is forbidden. The that the statutory prohibition is un- impact of his expressive conduct. . . • Ct 2561 (1975). perceived evil is not erotic dancing related to expressive conduct. Since We must therefore subject the State's but public the State permits the dancers to per- - asserted interest in preserving the The plurality and Justice Souter do [501 US 5921 form if they wear pasties and i special symbolic character of the flag not go beyond saying that the state nudity,which may be pro- G-strings but forbids nude dancing, it ii to 'the most exacting scrutiny.' Boos hibited despite any incidental impact f v Barry, 485 US 312 321 99 L Ed interests asserted here are important is precisely because of the distinctive, � y [ ]� [ and substantial. But even if there on expressive activity. This analysis expressive content of the nude danc- 2d 333, 108 S Ct 11571 [(1988)]." Con- were compelling interests, the Indi- is transparently erroneous. ing performances at issue in this case I tent based restrictions "will be up- ana statute is not narrowly drawn. If In arriving at its conclusion, the that the State seeks to apply the held only if narrowly drawn to ac the State is genuinely concerned with plurality concedes that nude dancing complish a compelling governmental prostitution and associated evils, as conveys an erotic message and con- statutory prohibition. It only be cause nude dancing performances interest." United States v Grace, 461 Justice Souter seems to think, or the cedes that the message would be may generate emotions and feelings i US 171, 177, 75 L Ed 2d 736, 103 S Ct type of conduct that was occurring in muted if the dancers wore pasties and of eroticism and sensuality among 1702(1983);Sable Communications of California v LaRue, 409 US 109, 34 L G-strings. Indeed, the emotional or i Cal., Inc. v FCC, 492 US 115, 126, 106 Ed 2d 342, 93 S Ct 390 (1972)9 it can; erotic impact of the dance is intensi- the spectators that the State seeks to regulate Ed 2d 93, 109 S Ct 2829 (1989). fied by the nudity of the performers. regulate such expressive activity, ap I Nothing could be clearer from our adopt restrictions that do not inter 1 g fere with the expressiveness of non- As Judge Posner argued in his parently on the assumption that cre- cases. obscene nude dancing performances. thoughtful concurring opinion in the ating or emphasizing such thoughts E That the performances in the Kitty For instance,the State could perhaps Court of Appeals, the nudity of the and ideas in the minds of the specta Kat Lounge may not be high art, to q performing, nude g y g require that, while erformin dancer is an integral part of the emo- tors may lead to increased prostitu- say the least, and may not appeal to performers remain at all times a cer- tions and thoughts that a nude danc- tion and the degradation of women. the Court, is hardly an excuse for tain minimum distance from specta- 1090-1098. The sight of a fully emotions is the essence of communi- ing performance evokes. 904 F2d, at But generating thoughts, ideas, and distorting and ignoring settled doc- tors,that nude entertainment be lim- � trine. The Court's assessment of the ited to certain hours, or even that clothed, or even a partially clothed, cation. The nudity element of nude artistic merits of nude dancing per- establishments providing such enter- dancer generally will have a far dif- dancing performances cannot formances should not be the deter- tainment be dispersed throughout ferent impact on a spectator than (501 US 593] be mining factor in deciding this case.In the city. Cf. Renton v Playtime The- that of a nude dancer, even if the the words of Justice Harlan: "[I]t is atres, Inc. 475 US 41, 89 L Ed 2d 29, same dance is performed. The nudity neatly pigeonholed as mere "con- largely because governmental offi- 106 S Ct 925 (1986). Likewise, the is itself an expressive component of duct" independent of any expressive cials cannot make principled deci- State clearly has the authority to the dance, not merely incidental component of the dance.' 1 sions criminalize prostitution and obscene 2. Justice Souter agrees with the plurality the State desires to regulate,the State does not [501 US 594) behavior. Banning an entire category that the third requirement of the O'Brien test have even a rational basis for its absolute pro- in this area that the Constitu- of expressive activity, however, gen- is satisfied,but only because he is not certain hibition on nude dancing that is admittedly i tion leaves matters of taste and style erally does not satisfy the narrow that there is a causal connection between the expressive.Furthermore,if the real problem is so largely to the individual."Cohen v tailoring requirement of strict First message conveyed by nude dancing and the the "concentration of crowds of men predis- evils which the State is seeking to prevent.See posed"to the designated evils,ante,at 586,115 California, 403 US 15, 259 29 L Ed 2d Amendment scrutiny. See Frisby v ante, at 585, 115 L Ed 2d, at 523. Justice L Ed 2d, at 524. then the First Amendment 284, 91 S Ct 1780(1971). "[W]hile the Schultz, 487 US 474, 485, 101 L Ed Sauter's analysis is at least as flawed as that of requires that the State address that problem entertainment afforded by a nude 2d 420, 108 S Ct 2495 (1988). Fur- the plurality. If Justice Souter is correct that in a fashion that does not include banning an t there is no causal connection between the mes- entire category of expressive activity. See ballet at Lincoln Center to those who thermore, if nude dancing in bar- sage conveyed by the nude dancing at issue Renton v Playtime Theatres, Inc. 475 US 41, can pay the price may differ vastly in rooms, as compared with other es- here and the negative secondary effects that 89 L Ed 2d 29,106 S Ct 925(1986). 528 i 529 U.S. SUPREME COURT REPORTS 115 L Ed 2d BARNES v GLEN THEATRE, INC. (1991)501 US 560,115 L Ed 2d 504,111 S Ct 2456 tablishments, is the most worrisome plate—is nonexistent in this case. sources of Ore. v Smith, 494 US 872, occurred within the course of an oth- problem, the State could invoke its Reference to Justice Scalia's own hy- 108 L Ed 2d 876, 110 S Ct 1595(1990), erwise protected religious ceremony, Twenty-first Amendment powers and pothetical makes this clear. We agree is likewise not on point. The Indiana but because a general law made it so impose appropriate regulation. New with Justice Scalia that the Indiana law, as applied to nude dancing, tar- and was supported by the same inter- York State Liquor Authority v Bel- statute would not permit 60,000 con- gets the expressive activity itself; in ests in the religious context as in oth- lanca, 452 US 714, 69 L Ed 2d 357, senting Hoosiers to expose them- Indiana nudity in a dancing perfor- ers• 101 S Ct 2599 (1981) (per curiam); selves to each other in the Hoosier mance is a crime because of the mes- Accordingly, I would affirm the California v LaRue,supra. Dome. No one can doubt, however, sage such dancing communicates. In judgment of the Court of Appeals, [501 US 5951 that those same 60,000 Hoosiers Smith,the use of drugs was not trim- and dissent from this Court's judg- As I see it, our cases require us to would be perfectly free to drive to inal because the use was part of or ment. affirm absent a compelling state in- their respective homes all across In- terest supporting the statute.Neither diana and, once there, to parade the plurality nor the State suggest around, cavort, and revel in the nude that the statute could withstand scru- for hours in front of relatives and tiny under that standard. friends. It is difficult to see why the Justice Scalia's views are similar to State's interest in morality is any less j those of the plurality and suffer from in that situation,especially if,as Jus- the same defects. The Justice asserts tice Scalia seems to suggest,nudity is that a general law barring specified inherently evil, but clearly the stat- conduct does not implicate the First ute does Amendment unless the purpose of [501 US 596) the law is to suppress the expressive not reach such activity. As quality of the forbidden conduct, and we pointed out earlier, the State's that, absent such purpose, First failure to enact a truly general pro- Amendment protections are not trig- scription requires closer scrutiny of gered simply because the incidental the reasons for the distinctions the effect of the law is to proscribe con- State has drawn. See supra, at 590, — duct that is unquestionably expres- 115 L Ed 2d, at 527. sive. Cf. Community for Creative Non-Violence v Watt,227 US App DC [5b] As explained previously, the 19, 703 F2d 586, 622-623 (1983) (Sca- purpose of applying the law to the lia, J., dissenting). The application of nude dancing performances in re- the Justice's proposition to this case spondents' establishments is to Pre- is simple to state:The statute at issue vent their customers from being ex- is a general law banning nude ap- posed to the distinctive communica- pearances in public places, including tive aspects of nude dancing. That be- barrooms and theaters. There is no ing the case, Justice Scalia's observa- showing that the purpose of this gen- tion is fully applicable here: "Where eral law was to regulate expressive the government prohibits conduct conduct;hence,the First Amendment precisely because of its communicative is irrelevant and nude dancing in the- attributes, we hold the regulation un- aters and barrooms may be forbid- constitutional." Ante, at 577, 115 L den, irrespective of the expressive- Ed 2d, at 518. ness of the dancing. The O'Brien decision does not help [4b] As I have pointed out, how- Justice Scalia. Indeed,. his posi- ever,the premise for the Justice's po- tion, like the plurality's, would evis- sition—that the statute is a general cerate the O'Brien test. Employ- law of the type our cases contem- ment Div., Dept. of Human Re- 530 531 A'JAI It i'`•'.S^ _ Cite as 989 F2d +324(9tn t lr. "a) where district court either abused its out ">' Nti hs hardship facing opposing party able to believe that it would ever become TOPANGA PRESS, INC.;, Stuart Parr; cretion or based its decision on erront�� "` it injunctat+n is not issued; similarly, mov- available to any commercial enterprise. Brand X Video Inc.; E.W.A.P.,Inc.; Li- legal standard. brary One,Inc.; Hardrock,Inc.; Bever- i�l:party need not demonstrate that he or U.S.C.A. Const.Amend. 1. she++•ill succeed on the merits, but must at 12. Zoning and Planning «573 y ly Books, Inc.; Whitey, Inc.; New 3. Federal Courts a815 kart :how that his or her cause presents Wave, Inc.; N.F.M. Corporation; Plush Under abuse of discretiash, on s -` rious questions of law worthy of litiga- In determining whether particular relo ina ite for ness may be con- Boutique; cJoth, Inc�IJoamare IncSeJanRu• Court of Appeals cannot reversed t r aon s deredcation spart of relelvant rteal estate market, bini; 7180 Sunset Blvd., Inc.; A.L.Q, Court's grant of preliminary injunction tar ;. Zoning and Planning c-573 in action seeking to preliminarily enjoin Corporation, Plaintiffs-Appellees, less it has definite and firm conviction that j Y location-restrictive zoning ordinance, relo- district court committed clear error of'u Question of purely economic injury is V. ment in conclusion it reached. l d`' not relevant to issue of whether party mov- cation sites that are reasonably accessible ing for preliminary injunction faces hard- to general public may be part of market. CITY OF LOS ANGELES, U.S.C.A. Const.Amend. 1. Defendant-Appellant. 4. Zoning and Planning c�5i 1 :hip if location-restrictive zoning ordinance enforced; rather, lower court may only No. 91-55865. Owners of adult businesses had stand, consider whether enforcement of ordinance 13. Zoning and Planning «573 ing to bring action seeking to preliminari!1' is likely to impugn moving party's First In determining whether particular relo- United States Court of Appeals, enjoin enforcement of city zoning ordinance Amendment rights. U.S.C.A. Const. cation site for adult business may be con Ninth Circuit. limiting areas where such businesses could amend. I. sidered part of relevant real estate market be located, where owners claimed that unt; «573 in action to preliminary enjoin location-re- Argued and Submitted Oct. 6, 1992. •% 9. Zoning and Planning strictive zoning ordinance, areas in manu- nance violated their First Amendmt•nt free in determining; whether to preliminari Decided March 22, 1993, expression rights. U.S.C.A. Conct.Amend facturing zones which have proper infra As Amended April 27, 1993. 1. h• enjoin zoning ordinance restricting Iota- structures such as sidewalks, roads and bons of adult businesses, court may not lighting may be included in market. 5. Injunction a157 consider economic impact within actual U.S.C.A. Const.Amend. 1. business real estate market, but may con- i Owners of adult businesses brought Although district court risks reversal t, sider cost when determining whether spe- 14. Zoning and Planning <-573 action challenging city zoning ordinance re- if it fails to set forth basis for its conclu. cific• site is reasonably suitable for opera stricting locations in which such businesses q When relocation site for adult business sion that serious questions of lae• exists cion of:t business. U.S.C.A. Const.Amend. suits some generic commercial enterprise, could be located. The United States Dis when ruling on motion for preliminary in ` 1. although not every particular enterprise, it trict Court for the Central District of Cali. junction, it is not essential that court do so _4 fornia, Richard A. Gadbois, Jr., J., prelimi t 10. Zoning and Planning «76 may be said to be part of real estate mar- - in every case; sometimes record makes ket, in determining whether to preliminari narily enjoined enforcement of ordinance There are two questions that must be and cityappealed. The Court of Appeals, nature of questions that court is rely;rg on anse cried when determining whether adult ly enjoin location-restrictive zoning ordi- pp clear beyond dispute.D.W. Nelson, Circuit Judge, held that: (1) Y p husiness has been given reasonable oppor- Hance. U.S.C.A. Const.Amend. 1. hardship to adult businesses caused by or 6 g tunit.• to relocate under location-restrictive . Zoning and Planning 573 ;c, 15. Zoning and Planning a573 dinance's restrictions on permissible reloca- zoning;ordinance: first question is whether In context of location-restrictive zoning Relocation sites for adult business Lion sites outweighed hardship to city; (2) g relocation sites provided to business may ordinance raised serious question of law as ordinances, preliminary injunction should be considered part of actual business real which are commercially zoned are part of to whether it left adult businesses with issue upon clear showing of either: probe- estate market; second question is whether, relevant real estate market in determining reasonable alternative avenues of expres. ble success on the merits and irreparabk after excluding those sites that may not r, whether to preliminarily enjoin location-re- after thus (3) preliminary injunction was injuries; or sufficiently serious questions properly considered to be part of relevant strictive zoning ordinance. U.S.C.A.Const. warranted. going to merits to make case fair ground real estate market, there are adequate Amend. 1. Affirmed. for litigation and balance of hardships tip- ;� number of potential relocation sites for al ]6. Zoning and Planning 0-76 ping decidedly in favor of part} requesting F� ready-existing businesses. U.S.C.A. Const. Assuming relocation site under zoning Amend. 1.relief. ;' ordinance restricting locations of adult 1. Federal Courts «776 Zoning and Planning «573 businesses is part of relevant market, it is 7. Zoning and Planning 0=573 Court of Appeals reviews standin In determiningwhether articular relo not relevant whether relocation site will questions de novo. g Party seeking to preliminarily enjoin �i catinn site under zoning ordinance restrict result in lost profits,higher overhead costs, location-restrictive zoning ordinance need irlg locations of adult businesses may be or even prove to be commercially infeasible 2. Federal Courts a815 not demonstrate that he or she risks irrrp' considered part of relevant real estate mar. for adult business; issue is whether any District court's grant or denial of pre. rable injury,but must at least show that he in action seeking to preliminarily enjoin site is art of actual market for commercial. liminary injunction will be reversed only or she will suffer degree of hardship slut ordinance's enforcement, property ,is not enterprises generally. U.S.C.A. Const. Pou•ntially available when it is unreason. Amend. 1. may:: 7 1526 989 FEDERAL REPORTER, 2d SERIES TOPANGA PRESS, INC. v. CITY OF LOS ANGELES 1527 17. Zoning and Planning e}76 lionary, court is expected to award such Clle ae 989 F.2d 1524(91h Ctr. 1"3) In determining whether zoning ordi- fees to prevailing party unless there is sponse, the City enacted Municipal Code ment business." A business existing on nance restricting location of adult business- some special circumstance which would J' § 12.70 in 1978. Section 12.70 prohibits March 6, 1986 could continue to operate adult businesses from being established, until March 6, 1991 if the business could r es provided such businesses with sufficient tify court's refusal. 92 U.S.C.A. § ]988.g, relocation sites, land under the ocean, air. substantially enlarged, or subject to trans- establish undue financial hardship based on strips of international airports, sports sta- 22• Zoning and Planning a573 fer of ownership within 500 feet of investment or the existence of a written diums, areas not readily accessible to the Preliminary injunction enjoining en. churches, schools, parks, or within 1,000 lease extending past March 6, 1988. public, areas inadequate for any generic forcement of city zoning ordinance restrict• feet of other adult businesses. The ordi The Adult Businesses' filed a joint com- commercial business and areas lacking ing location of adult businesses was war. nance was enacted to prevent the "contin- plaint and separate individual complaints proper infrastructure could be excluded. ranted; ordinance severely restricted loca. ued erosion of the character of the affected challenging the constitutionality of zoning U.S.C.A. Const.Amend. 1. tions to which such businesses could be neighborhoods of the City" as described by ordinance § 17.70. They also brought located,and raised serious questions of law the 1977 study. three separate motions requesting a prelim- 18. Zoning and Planning <�573 as to whether it restricted businesses'First Effective May 13, 1983, the City enacted In determining whether to preliminari- Y Y inary injunction against the Ciiy's enforce- Amendment free expression rights. Ordinance No. 157,538 which amended s ly enjoin city zoning ordinance restricting U.S.C.A. Const.Amend. 1. ment of the ordinance. location of adult businesses, district court § 12.70B by adding the provision that each Without distinguishing among the three did not abuse its discretion in finding that adult business was to be considered a sepa- motions, the district court ruled from the rate business even if it operated in conjunc- there would be serious hardship to adult James K. Hahn, Claudia McGee Henry bench on June 17, 1991 that plaintiffs had businesses if injunction was not granted; lion with a similar business at the same met the criteria for a preliminary injunc- and L.Wayne Mooney, Deputy City Attys•, establishment. In addition, the ordinance tion, and enjoined the City from enforcing si- although there were only 102 existing bu Los Angeles, CA, for defendant-appellant. amended § 12.70C to prohibit the mainte- nesses in city and ordinance provided for nance of more than one adult business in the ordinance. 120 relocation sites, ordinance's 1,000—foot G. Randall Garrou, John H. Weston, separation requirements severely limited Weston, Sarno, Garrou & DeWitt, Los An. the same building or structure. The ordi- STANDARD OF REVIEW number of businesses that could relocate to geles, CA, for plaintiffs-appellees. nance, however, allowed multiple business- available areas. U.S.C.A. Const.Amend. 1. es established on or after September 1, I1-3] The City raises the preliminary Appeal from the United States District 1978 to continue to operate until March 10, issue of the Adult Businesses' standing to 19. Zoning and Planning e-573 Court for the Central District of California. 1985, with an additional provision respect- assert the First Amendment rights of the Balance of hardships tipped in favor of ing the "grandfathering" of businesses es- general public. We review standing ques- adult businesses in action to preliminarily Before D.W. NELSON, REINHARDT, tablished before September 1, 1978. tions de novo. Conti v. City of Fremont, enjoin enforcement of zoning ordinance Circuit Judges, and CALLISTER, District 1 Effective January 13, 1984,the city coun- 919 F.2d 1385, 1387 (9th Cir.1990). A dis- that severely restricted permissible loca- Judge.' lions of such businesses, where city had cil passed Ordinance No. 158,579, which trict court's grant or denial of a prelimi- not enforced ordinance for long period of D.W. NELSON, Circuit Judge: forbade the establishment of any new adult nary injunction will be reversed only where time, implying that it did not perceive its business within 500 feet of any residential the district court either abused its discre- The City of Los Angeles("City")appeals zone. Finally, Ordinance No. 161, 111, en. tion or based its decision on an erroneous enforcement to be matter of great urgency. the district court's grant of a preliminary acted in 1986, prohibited the continued op- legal standard. Religious Technology U.S.C.A, Const.Amend. 1. injunction prohibiting the City from enforc- eration after March 6, 1988 of adult busi- Center, Church of Scientology Intl, Inc. 20. Zoning and Planning e-573 ing its Adult Entertainment Business Zon- nesses located within 500 feet of a residen- v. Scott, 869 F.2d 1306, 1309(9th Cir.1989). Action brought by owners of adult ing Ordinance, Los Angeles Municipal Code i tial zone. The 1986 ordinance also provid- Under an abuse of discretion standard,this businesses challenging location-restrictive § 12.70, against the Appellees, owners of {{' ed for the continued operation of such busi- court cannot reverse the district court's zoning ordinance presented serious ques- adult entertainment businesses ("Adult 1 nesses whenever "a site consistent with grant of a preliminary injunction unless it tions of law as to whether ordinance violat- Businesses"). We affirm the order of the t 12.70C is not reasonably available else- has a "definite and firm conviction" that ed owners' free expression rights, in deter- district court. where in the City for the establishment or the district court committed a "clear error mining whether to preliminarily enjoin ordi- relocation of the subject adult entertain- of judgment in the conclusion it reached." nance's enforcement, where city may not FACTUAL AND PROCEDURAL 1. Many of the plaintiffs own adult bookstores Whitey,Inc.and Hardrock,Inc.,alleged that the have provided adult businesses with rea BACKGROUND and at least two own an adult cabaret and two portion of§ 12.70 which treats as separate busi- sonable alternative avenues of expression. adult theatres. nesses those stores which the City classifies as In 1977,the City Department of Planning "multi le use" businesses: a) violates the First U.S.C.A. Const.Amend. 1. p conducted a study which found that concen- 2. The first motion joined by all twenty-two Amendment by indirectly outlawing certain 21. Civil Rights a296 plaintiffs argued that the residency restriction: g trations of adult entertainment businesses � a)denied adult businesses a reasonable opportu• forms of expression such as adult arcades that While award of attorneys' fees under were creating blight in the neighborhoods + nity to relocate their businesses and thus in- cannot economically operate except in conjunc- civil rights attorney fee statute is discre- where the businesses were located. In re- fringed upon the plaintiffs'and the public's First tion with a related retail business; and b) vio- Amendment rights; and b) improperly applied lates the Equal Protection Clause. The third retroactively to pre-existing businesses. The motion,joined by all twenty-two plaintiffs, ar- ed Honorable Marion J. Cale Dister,Senior Unit. sitting by designation. j Y ed that the ordinance is unconstitutional) ed States District Judge for the District o[Idaho, t second motion,joined b Brand X Video, Inc., gu Y Stuart Parr, New, Inc., E.W.A.P. Inc., N.F.M. vague in its definition of what constitutes an Corp., Alex Wyszomirski, Beverly Books, Inc., "adult" retail business. 1528 989 FEDERAL REPORTER, 2d SERIES '1.'k)rA.A%,A ..' .. . - .-. Clte as 989 FJd 1524(91h C1r. 1993) Abatt.i v. Commissioner, 859 F.2d 115, 117 case presented serious questions of law Elrod v. Burns, 427 U.S.347,373,96 S.Ct. that render it unavailable for any kind of (9th Cir.1988). since the ordinance in question is constitu. 2673, 2689, 49 L.Ed.2d 547 (1976). development ... may not be considered tional on its face.3 available for constitutional purposes under AA'ALYSIS 1. The Renton Test Renton." 959 F.2d at 1306. I. Adult Businesses' Standing [6] In the context of location-restrictive The test for determining whether the The problem,however,is that the distinc- (41 The City contends the Adult Busi• ordinances, this circuit has determined that ,adult Businesses' First Amendment rights tion between economically unsuitable and a preliminary injunction should issue upon are threatened is whether a local govern- physically or practically unsuitable land is nesses are without standing in this court a clear showing of either: (1)probable suc- since they cannot employ the First Amend- ment has "effectively den[ied] ... [the difficult to maintain. Nearly all forms of ment rights of the public as a ground for cess on the merits and irreparable injury; adult Businesses]a reasonable opportunity physical and legal unsuitability may be or (2) sufficiently serious questions going to open and operate" their enterprise with- couched in terms of economic unsuitability. the issuance of the preliminary injunction. to the merits to make the case a fair While the Adult Businesses argue in their in the city in question. City of Renton, et Conversely, problems of economic suitabili- ground for litigation and a balance of hard. al. a. Playtime Theatres, 475 U.S. 41, 54, ty may be couched in terms of physical first motion for a preliminary injunction ships tipping decidedly in favor of the party that enforcement of the ordinance will deny lOG S.Ct. 925, 932, 89 L.Ed.2d 29 (1985). unsuitability. For example, in the instant requesting relief. .S F.2do 34 Bookstore Again,the possible economic impact upon a case, some of the definitionall available" the public access to the type of entertain- v. City of Fresno. �58 F.2d 1348, 1351 (9th P P P Y ment they sell, the crux of their argument business is not a factor to be considered by land is currently used as runways for the Cir.1985); Ebel i City of Corona, 698 F.2d the courts when determiningwhether a city Los Angeles airport. One could argue that is that the ordinance infringes upon their 390, 392 (9th Cir.1983). Y g P g oun First Amendment rights. They argue has provided a business with a reasonable this land is physically unsuitable for a busi- that § 12.70 suppresses their protected (7] These are not two separate tests, alternate location. Adult businesses: ness. On the other hand, one could argue speech by failing to provide them with rea- but "merely extremes of a single contin- must fend for themselves in the real that it is merely economically unsuitable, sonable alternative relocation sites for their estate market, on an equal footing with since there is nothing to prevent an adult uuso Benda n is & Lodge of Intl other prospective purchasers and les- business from physically relocatingto this businesses. Because the Adult Businesses Assoc. of Machinists & Aerospace 4f�ork- P P P P � � have standing to protect their personal ers, 584 F.2d 308. 315 (9th Cir.1978), cert. sees.... [A]lthough we have cautioned site; rather it is prevented by a consider- First Amendment rights, we need not de- dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 against the enactment of zoning regula- ation of the cost of tearing down part of an tide whether they possess standing to as- L.Ed.2d 667 (1979). Thus, a moving party tions that have the'effect of suppressing airstrip and then building a storefront. In sert the First Amendment rights of the need not demonstrate that he risks irrepa- or greatly restricting access to lawful short, it could be argued that the only public to have access to the types of ex- rable injury,but he must at least show that speech,' ... we have never suggested impediment is the cost of development. pression sold by these businesses. he will suffer a degree of hardship that that the First Amendment compels the This easily blurred line between econom- outweighs the hardship facing the opposing Government to ensure that Adult the- is and physical suitability creates doctrinal II. The Preliminary Injunction party if the injunction is not issued. Simi• aters ... will be able to obtain sites at problems. If the unsuitability of a reloca- [5] In support of their motions for y, g p bargain prices.... tion site always can be couched in terms of PP larl a moving arty need not demonstrate Y preliminary injunction, the Adult Business- that he will succeed on the merits, but Id. at 54, 106 S.Ct. at 932 (citations omit- economic suitability, under Renton no relo- es argue that the City has provided them must at least show that his cause presents ted). This prohibition against consideration cation site could ever be considered unrea- with an insufficient number of possible re- serious questions of law worthy of litiga- of economic impact specifically forecloses sonable. On the other hand, if a court location sites and that therefore enforce. tion. inquiry into whether a relocation site is attempts artificially to maintain the line ment of the ordinance would cause them "commercially viable"or only "potentially" between physical and economic suitability, hardship and irreparable injury. The Adult as opposed to "actually" available. Id. at it may often be led to consider the econom- Businesses also argue that the ordinance A. Economic Impact Under Renton 53, 106 S.Ct. at 932. is factor sub rosa which is forbidden under raises serious questions of law. The City [8] The question of purely economic in- The Supreme Court, however, has not Renton. contends that all the evidence presented by jury is not relevant to the issue of whether stated what sort of factors may be consid- the Adult Businesses regarding their a moving party faces hardship if a restric- ered when deciding whether the relocation 2. The Distinction Between Consideration threat of hardship went to the degree of tive zoning ordinance is enforced. Lydo sites provided by a city. are reasonable. of Economics Within and Without the economic harm they will face if the ordi- Enterprises, Inc. r. City of Las Vegas, 145 Some courts have attempted to draw a Market nance is enforced, and that the district F.2d 1211, 1213 (9th Cir.1984). Rather, a distinction between economically unsuitable A solution to this gordian knot appears court abused its discretion in considering lower court may only consider whether en, land and physically or practically unsuita- once we consider the context in which the this evidence since economic harm is not forcement of the ordinance is likely to im- ble land. See Woodall v. City of El Paso, Renton court forbade consideration of eco- relevant to the issue of whether the Adult pugn the moving party's First Amendment 959 F.2d 1305, 1306 (5th Cir.) (per curiam) nomic factors. Astutely, the Woodall Businesses' First Amendment rights are rights. But, "[a]ny loss of First Amend- modifying 950 F.2d 255 (5th Cir.), cert. court noted that "[t]he Court [in Renton) threatened. The City also contends that ment freedoms,even briefly,can constitute denied, — U.S. —, 113 S.Ct. 304, 121 obviously contemplated that there was a the district court erred in finding that this irreparable injury." Id. 745 F.2d at 1214: L.Ed.2d 227 (1992); Alexander v. City of 'market' in which businesses could pur- 3. The district court's preliminary injunction ex- factual issues" and that "the balance of hard* Minneapolis, 928 F.2d 278, 283 (8th Cir. chase or lease real property on which busi- pressly found that the adult businesses had ships' tips decidedly in favor of plaintiffs. 1991). In Woodall, the Fifth Circuit held ness could be conducted." 959 F.2d at raised "substantial and non-frivolous legal and that "land with physical characteristics 1305. We agree with the observation of 1530 989 FEDERAL REPORTER, 2d SERIES ..__ . _ _ _ Cite as 989 F.2d 1514(9th COr. 1"3) the Woodall court Renton assumed that altering or developing the area to change site may be considered part of the relevant physically or economically unsuitable, it is the relocation sites were already part of its physical characteristics. real estate market when the following con- not reasonable to define these sites as part the relevant real estate market. See e.g., The case law offers clues as to what sort ditions are met. First, although Renton of the real estate market that any business Walnut Properties Inc. v. City o 1d'hitti. stressed that the First Amendment only would chooses P y f be land and/or structures reasonably t may requires a relocation site to be potentially [151 Fifth,and most obvious,those relo- er, S61 F.2d 1102, 1109(9th Cir.1988), cert. be said to comprise the relevant real estate available rather than actually available,the denied, 490 U.S. 1006, 109 S.Ct. 1641, 104 market. Renton found that the cit}• had cation sites which are commercially zoned L.Ed.2d 157 (1989) (forbidding consider- met its obligation to provide alternate loci- requirement of potentiality connotes genu- are part of the market. ation of economic factors that stem from tions by providing 520 acres of land consist• ine possibility. The Fifth Circuit has sug- location site is part of the relevant market "market force") ing of "ample accessible real estate," in. Bested that: [161 We emphasize that assuming a re- [9] Accordingly, we do not think that eluding "acreage in all stages of develol} it is not relevant whether a relocation site Renton forbids a court ment from raw land to developed, industri. to a lease that commits the property to will result in lost profits, higher overhead al, warehouse, office and shoppings the present tenant for its business pur- ics when evaluating whether consider econom-ether a particular pace en costs, or even prove to be commercially that is criss-crossed by freeways, high. poses for a term of years, the property relocation site is in fact part of the real may be effectively unavailable to adult infeasible for an adult business. The issue estate market. For ways,and roads," 475 U.S.at 53, 106 S.Ct. is whether any site is part of an actual 'purposes of Renton, at 932. Renton did not mention, however, businesses or any other business enter- the distinction is between consideration of that part of the 520 acres offered to the prise. market for commercial enterprises genera]- economic impact within an actual business adult businesses consisted of an oil tank 950 F.2d at 262.4; cf. Alexander, 928 F.2d ly' real estate market and consideration of farm, a horse racing track and a sewage 278 ("the record clearly shows that other B. Adult Businesses' Hardship cost to determine whether a specific reloca- treatment facility. owners of adult businesses were able to tion site is part of the relevant market. A find suitable relocation sites"). We need We turn now to the question of whether court may not consider the former, but it Subsequent to Renton, the Eighth Cir• the district court in this case abused its y cult in Alexander refused to consider eco- not determine whether the Fifth Circuit is may consider the latter when determining nomic impact but did consider whether correct. Here we need determine only that discretion when it found that the Adult whether a specific site is reasonably suit- there were potential commercial sites property is not "potentially" available Businesses had met the hardship criterion able for the operation of a business. available. The Alexander court concluded when it is unreasonable to believe that it for a preliminary injunction. The City ar- that "numerous sites were potentially would ever become available to any com- gues that the district court improperly con- 3. The Hardship Inquiry sidered the commercial viability of the po- available ... [since] under the ordinance mercial enterprise. [101 There are two questions then that theaters of this sort have access to at least [12-141 Second and focusing our atten- tential relocation sites for the Adult Busi- must be answered when determining6.6% of the total acreage o commercial nesses. We do not agree. The record in 9 / tion on relocation sites which are within this case indicates that a real question ex- whether an adult business has been given a land; within the available areas are a m)r- i manufacturing or industrial zones, reloca reasonable opportunity to relocate. The iad of block faces, each a potential reloca- ( tion sites that are reasonably accessible to thests about whether the ordinance provides first question is whether relocation sites tion site." 928 F.2d at 283. In Dumas r. the general public may also be part of the the Adult Businesses with constitutionally City o Dallas 648 F.Su 1061, 1071 sufficient alternative relocation sites for provided to a business may be considered y f � PP• � market. Third, areas in manufacturing their businesses. part of an actual business real estate mar. (N.D.Tex.1986), offd, 837 F.2d 1298 (5th , zones which have a proper infra-structure ket. The second question is whether, after Cir.1988), affd in part vacated in part, such as sidewalks, roads and lighting may 1. Excluding Offered Sites under Rentonexcluding those sites that may not properly 493 U.S.215, 110 S.Ct.596, 107 L.Ed.2d 603 be included in the market. Fourth, when a be considered to be part of the relevant (1990), the district court restated the rule , relocation site suits some generic commer- From Relevant Market real estate market, there are an adequate against consideration of economic impact. cial enterprise, although not every particu- [17) The first issue is whether the relo The court then cited with approval Basiar• t lar enterprise, it too may be said to be art cation sites offered by the City are part of number is potential relocation sites for al- danes v. Cityo Galveston, 682 F.2d 1203, p y p the business real estate market. ready existing businesses. f of the real estate market. While it is con- 1214 (5th Cir.1982), which held that area, stitutionally irrelevant whether relocation The Adult Businesses' geographical ex- The first question is the most tricky. located among warehouses, shipyards, un- sites located in industrial or manufacturing pert, Michael Taugher,conducted an exten- For the reasons stated above, we do not developed areas, and swamps did not pro- zones suit the particular needs of an adult sive survey of the City to determine which find the distinction between economic suita- vide adult businesses with a reasonable business, potential sites must be reason- geographical areas within the City would bility and physical suitability helpful in an- opportunity to relocate. 648 F.Supp. at able relocation sites for some commercial be permissible as potential sites for estab- swering this question. Rather, we are left 1071. In contrast, Dumas noted that the enterprise before they can be considered lishing or relocating these adult businesses. to the simple, yet slippery, test of reason• plan before it permitted relocation in areas ableness when attempting to discern with no "impediments" except for the pos- part of the relevant market. Consequent Mr. Taugher found that there are 11,613.1 � ly, whether one defines a warehouse, a acres of what the parties call "definitional- whether land is or is not part of a market sibility that as a "matter of business judg , sw'amp, or a sewage treatment plant as ly available"relocation sites where the City in which any business may compete. In• ment these relocation sites were undesir- quiry into the question of whether it is able." Id.; see also Function Junctioll• 4. Woodall modified its opinion on April 21, reasonable opportunity to relocate if all reloca- reasonable to consider a articular location Inc. v. City of Daytona Beach 705 F.SupP. 1992. The Fifth Circuit, however, did not dis- tion sites are within an industrial zone and no p turb that portion of the original opinion quoted commercial zones are offered; in this case, the site as part of the commercial real estate 544, 552 (M.D.Fla.1987). above. City has offered both commercial and non-com- market may focus either on the physical [111 The courts' findings in these cases 5. We need not answer the question of whether, mercial relocation sites. characteristics of an area or on the cost of lead us to hold that a particular relocation under Renton, a business has been afforded a 1532 989 FEDERAL REPORTER, 2d SERIES Clte as 989 F2d 1524(9th C1r. 1993) would allow an adult business to exist. tion of available relocation sites resulted ment businesses could not meet the re- did not determine whether portions of ex- Out of these 11,613.1 acres, however, Mr. from his reliance on factors other than quirements of the ordinance. isting structures that were within a"defini- Taugher concluded that much of the land commercial viability. At first glance, the 120 sites deemed tionally permissible" area fell within a pro- was not truly available. Applying the factors we have enumerat. practically available by Mr. Bailey would hibited zone. Mr. Taugher based his findings on what ed above, we believe that the areas elimi. appear to be constitutionally sufficient,giv- A corollary point is that there is a possi- he termed "physical" or"practical" consid- nated from consideration by Mr. Taugher en that there are approximately only 102 bility that some of the sites included in the erations. He found the following: 1)thou- and Mr.Bailey are properly excluded under adult businesses now in operation in the relevant market may be included improper. sands of potentially available acres are sub- Renton since these areas do not fall within City of Los Angeles. Yet a more careful ly. If so, this also would reduce the num- merged beneath the Pacific Ocean or the the relevant market. First, much of the analysis of the evidence suggests other- ber of reasonable sites potentially avail- outer harbor of the Port of Los Angeles; 2) land the Adult Businesses' experts consid. wise. First, the number of businesses that able. While Mr. Taugher roughly estimat- some of the land is presently being used as ered unsuitable land is not potentially avail. need to relocate may be well higher than ed the amount of land that could be consid. landing strips for the Los Angeles Airport; able. Land under the ocean, airstrips of 102 since under the ordinance,single stores ered "physically"or"practically"available, 3) two hundred acres are currently being international airports, and sports stadiums that sell two sorts of adult entertainment he did not determine whether there was a used as landfill; 4)600 acres are currently are not relocation sites likely to ever be. are to be considered multiple businesses further decrease in available land due to used as the Van Nuys airport; 5) 4,357.51 come available to the Adult Businesses, or and thus cannot operate at a single loca- factors such as inaccessability, lack of acres are currently used by the Port of Los indeed to any commercial business. Sec. tion. proper infra-structure such as lighting, Angeles and/or oil refineries; and 6)about ond, and turning to those relocation sites Second, the estimation of the quantity of road and sidewalk access, or the presence 230 acres are used for petroleum gas stor- which are located in manufacturing zones, sites available within the market may well of other disabling characteristics of the age. In addition, he found that the ITT many of the areas excluded by Appellees' be inaccurate. Like the ordinance consid- site. In sum, a risk exists that a compari- Gilfillian Defense plant, the General Motor experts are not readily accessible to the ered in Walnut Properties, Inc., 861 F.2d son between the estimation of the total Assembly plant, a portion of Children's public. Third, many of the sites the Adult 1102 (9th Cir.1988), this ordinance imposes number of adult businesses and the total Hospital as well as other large businesses Businesses' experts found to be unsuitable 1 a 1,000 foot separation requirement be. available acreage is misleading. or institutions are located on "definitionally are inadequate for any generic commercial tween any two adult businesses. This Therefore, the district court did not available" sites. He concluded that out of business. While Renton did not consider means,however,that as soon as any partic- abuse its discretion in finding that there the 11613.1 acres of definitionally available undeveloped land to be unsuitable for relo- ular site is occupied by a new adult busi- would be serious hardship to the Adult land, only 7440.9 acres are "realistically cation, the Adult Businesses' experts testi- ness, any other adult entertainment busi- Businesses if an injunction against enforce- available" for an adult business. Only fied that the City here has provided the ness is automatically precluded from relo- ment of the ordinance was not granted. 0.187o of this realistically available land is Adult Businesses relocation sites that are cating upon any other definitionally avail- in acommercial zone. developed in a manner totally incompatible able plot within a contiguous 72 acre circle C. City's Hardship Bruce Bailey, a real estate expert em- with any average commercial business. around the first business. [191 Given that the Adult Businesses ployed by the Appellees, used criteria simi- Fourth, many of the excluded relocation Mr. Taugher did not work out how much must not only show hardship, but that lar to Mr. Taugher's. Mr. Bailey excluded sites appear to lack a proper infra-struc- acreage was available after the 1,000 foot hardship tips in their favor,we turn now to those relocation sites that he considered ture. In short, aside from the question of restriction was factored in to his evalua. the question of the potential injury to the physically inadequate such as parcels of commercial viability, it is unreasonable to tion. However, since many of the defini- City if the ordinance is not enforced. In land now occupied by junk yards, steel consider the acreage eliminated from con- tionally available areas were adjacent to Lydo Enterprises, this court presumed yards and car storage lots. He also exclud- sideration by the Adult Businesses'experts each other,he concluded that acreage avail- that an injunction which prevents a city ed parcels of land that were occupied by as relocation sites that fall within the busi from enforcingits ordinances a fortiori $ purpose g P 1 rellocatee to twould be "dramatically less business than Y Y' "sin le ur ose buildings" such as ship- ness real estate market. �� causes the City harm since"the cit s inter- ping yards, the Los Angeles airport, and a the percentage of area definitionally avail- est in attempting to preserve the quality of large oil refinery complex(id.). Mr.Bailey 2. The Sufficiency of the Relocation able to the first adult business. We have urban life is one that must be accorded er o- respect." concluded that there were perhaps 120" Sites Within the Market high " 745 F.2d at 1213 P P P not estimated the number of sites available g P (quoting tentially viable" relocation sites that met [181 Once the areas that are not part of in either the commercial or the manufactur- Young v. American Mini Theatres, Inc., the requirements of the zoning ordinance. the market are excluded, the question be- ing zones of the city. However, it is clear 427 U.S. 50, 71, 96 S.Ct. 2440, 2452, 49 The City contends that these experts ar- comes whether the remaining acreage pro- from the map in the record that once the L.Ed.2d 310 (1976) (plurality opinion)). In rived at their conclusions by considering: vides the Adult Businesses with a reason- 500 foot residential restriction is factored this instance, however, the district court 1)the commercial viability of the relocation able opportunity to relocate. The parties in, the definitionally available locations are found that any harm the City might suffer sites; and 2)whether these sites were actu- agree that there are presently 102 different clustered together in several parts of the was slight. The court noted that there had ally as opposed to potentially available. adult entertainment businesses in the cite City. There is no doubt that the 1000 foot already been a "forbearance of enforce. The City is correct that at times Mr. Bailey of Los Angeles. Of these 102 existing restriction between any two adult business- ment of this regulation for a long time," improperly considered factors such as businesses, the City located five which it es would severely reduce the actual num- implying that the City itself did not per- whether relocation sites were operatively believed to be in compliance with all of the ber of potentially available relocation sites. ceive enforcement of the regulation to be a expensive or whether adult businesses various restrictions of § 12.70. The Adult In addition, Mr. Taugher testified that he matter of great urgency. would not be welcomed by landlords. Not- Businesses' expert Mr. Taugher concluded was not sure of the accuracy of his esti- On this record, we cannot say that the withstanding this,Mr.Bailey's final estima- that all but one of the 102 adult entertain- mate of definitionally available sites. He district court abused its discretion in find- 1534 989 FEDERAL REPORTEK, 2d 't✓Kir.6 l'lle tss Yoe ,.emu ,..., „.._... -..-• - ing that the balance of hardship tipped issue a preliminary injunction is affirmed. their officers, alleging,inter alia,breach of 6. Labor Relations <-104 '' } sharply in the Adult Businesses' favor. The Adult Businesses are to be awarded contract and illegal attempts to stifle dis- Statute allowing union dues increase attorneys' fees. sent. The United States District Court for only upon majority vote of local members D. Serious Questions of Law AFFIRMED. the Southern District of California,Rudi M. was not offended by union president's exer- [201 Next, we turn to the question of Brewster, J., granted summary judgment cise of his constitutional authority to veto whether the district court erred in conclud ell IYNUMBIRSYSIIM and directed verdict on some claims for dues decrease voted on by local members; ing that this case presents serious ques defendants, and entered judgment on jury statute applied only to dues increases. La- tions of law. The City argues that the verdict for member on remaining claims. bor-Management Reporting and Disclosure district court erred because the ordinance On cross appeals, the Court of Appeals, Act of 1959, § 101(a)(3), 29 U.S.C.A. is constitutional on its face and plaintiffs Lawrence MOORE, Plaintiff-Appellam, Aldisert, Senior Circuit Judge, sitting by § 411(a)(3). have failed to present evidence to raise any V. designation, held that: (1) international un- serious doubt to the contrarv. We dis T ion resident could properly veto proposed 7. Labor Relations <-758.1 LOCAL UNION 569 OF THE I\TER\:1• p P P y P P Union member's claim that union offi- agree. We have already concluded that the TIONAL BROTHERHOOD OF ELEC• amendment that would reduce local mem- cials had breached contractual duty im- record indicates that the City may not have TRICAL WORKERS; International bers' monthly dues; (2) international did posed b union constitution was governed provided the Adult Businesses with reason. Brotherhood of Electrical Workers; not improperly fail to investigate member's P y P Paul Blackwood; Wayne Lovin; James grievances; (3) international was not liable by federal six-month statute u ]imitations able alternative avenues of expression. period, rather than state statute of limita- This is a constitutional question which by Westfall; Tom Pridemore; Baker Elec• for local's misconduct on agency theory; tions governing breaches of contract. Na- definition is a "fair ground for litigation." tric, Inc., Defendants—Appellees, and(4)evidence supported jury's finding of tional Labor Relations Act, § 10(b), as Adultworld Bookstore, 758 F.2d at 1351. local union's misconduct. amended,29 U.S.C.A. § 160(b); Labor A4an- Moreover, this circuit considers,zoning or- Lawrence MOORE, Plaintiff—Appellee, dinance cases such as this to"present com- V. Affirmed. agement Relations Act, 1947, § 301, 29 plex constitutional problems." Id. In this LOCAL UNION 569 OF THE I\'TERNA- U.S.C.A. § 185. particular instance, the presumption of TIONAL BROTHERHOOD OF ELEC. 8. Labor Relations e-778 complexity is justified given that the an- TRICAL WORKERS; Robert Flowers; 1. Federal Courts e-776 Generally,remedy for breach of collec- swer to the question of what constitutes a Joseph Heisler, Defendants-Appellants, Grant of summary judgment is re- tive bargaining agreement is limited to "reasonable opportunity to open and oper- viewed de novo; viewing evidence in light award of compensatory damages. Baker Electric, Inc., Defendant-Appellee. ate" an adult business is not free from � most favorable to nonmovant, appellate 9 ambiguity. - Lawrence MOORE, Plaintiff-Appellee, court must determine whether there are Labor Relations V. any genuine issues of material fact and Genera] rule is thhatat punitive damages III. Attorneys' Fees whether district court correctly applied rel- are not allowed in union member's action INTERNATIONAL BROTHERHOOD[21] The Adult Businesses request an OF ELECTRICAL WORKERS; evant substantive law. against union for breach of contract. La- award of attorneys fees pursuant to 42 Defendant-Appellant, bor Management Relations Act, 1947, U.S.C. § 1988 should they prevail on ap- 2. Federal Courts c}776 § 301, 29 U.S.C.A. § 185. peal. Section 1988 provides that attorney Baker Electric, Inc., Defendant—:Appellee. 1 District court's grant of directed ver- 10. Labor Relations <-144 fees may be awarded to a prevailing party Lawrence MOORS, Plaintiff—Appellant. diet is reviewed de novo to determine International union's dismissal of in an action to enforce a provision of 42 whether evidence permitted only one rea- member's charges that local union had at- U.S.C. § 1983. While the award of fees is V. sonable conclusion as to verdict. tempted to suppress dissent did not violate discretionary, a court is expected to award LOCAL UNION 569 OF THE INTERNA member's statutory free speech right ab- such fees to the prevailing party unless TIONAL BROTHERHOOD OF ELEC- 3. Federal Courts 8-776 TRICAL WORKERS; International there is some special circumstance which o Ruling on appropriate statute of limiter- in bad faith; international could not be held Brotherhood of Electrical Workers,De- would justify the court's refusal. .No such tions is question of law reviewed de novo. liable on theory it had ratified local's al- special circumstances exist in this case. fendants-Appellees. Accordingly, we award the Adult Business Nos. 90-55557 thru 90-55559 4. Federal Courts 0-776 leged misconduct absent clear and convinc- ing evidence that it had affirmed local's es attorneys' fees. and 91-55411. Interpretation of statute is question of i P q actions with full knowledge that it was part United States Court of Appeals, ` law reviewed de novo. of overall scheme to suppress dissent. La- CON'CLUSION Ninth Circuit. ' bor-Management Reporting and Disclosure [221 We conclude that the district court j S. Federal Courts <-813 Argued and Submitted Dec. 8, 1992. Act of 1959, § 101(a)(2), 29 U.S.C.A. did not abuse its discretion in finding that District court's denial of Rule 11 sane § 411(a)(2). the balance of hardships tips sharply in Decided April 1, 1993. tions is reviewed for abuse of discretion; favor of the Adult Businesses. We agree As Amended June 28, 1993. reviewing court cannot reverse unless it 11. Labor Relations <-144 with the district court that the ordinance has definite and firm conviction that court International union could not be held presents serious questions of law. Accord- Local union member brought action below committed clear error of judgment. liable on agency theory, as matter of law, ingly, the decision of the district court to against local and international unions, and Fed.Rules Civ.Proc.Rule 11, 28 U.S.C.A. for. local union's alleged scheme to sup- , � , v v J "1.4tn 803 i J l:al.4ttt 632 Cite as 12 Cal.Rptr.2d 701 (Cal. 1992) dental to the judgment. The Court of Ap- We must not lose sight of the fact that a financial incentive to make reasonable LUCAS, C.J., and MOSK, PANELLI, peal in this case correctly explained that, we are dealing with a statutory question j settlement offers.) The Legislature made KENNARD,ARABIAN and GEORGE,JJ., "Expert witness fees, like attorneys' fees, and that we must attempt to reach a result ! this even more clear in 1987 when it added concur. are not ordinarily a part of costs awarded comporting with the_L8o4Legislature's in- f subdivision(e)to the statute. "[T]tie costs at trial. Further, the award of expert wit- tent, (Webster v. Superior Court (1988) under this section shall be deducted from w ness fees(1)is not the type of cost included 46 Cal.3d 338, 344, 250 Cal.Rptr. 268, 758 any damages awarded in favor of the plain. o Tr[Y NUMB(R SYSIlM in virtually every case and(2)was a direct- P,2d 596.) The Court of Appeal's decision tiff. If the costs awarded under this sec- ly litigated issue, as opposed to being an in this case achieves this goal in several tion exceed the amount of the damages incidental matter. Specifically, the record respects. I awarded to the plaintiff the net amount reflects that two separate hearings were shall be awarded to the defendant and First, a judgment directing the payment judgment shall be entered accordingly." 838 P.2d 223 conducted, involving two motions. Formal 7 g g p S' discovery was also undertaken relating to of expert witness fees is—by any practical (Stats.1987, ch. 1080, § 8, p. 3655.) 3 Cal.4th 832 this issue. Additionally, expert witness or semantic measure—a judgment directing � t32CITY OF NATIONAL CITY,Not to require an undertaking in this fees are rarely awarded, and then only the payment of money and is therefore case would further thwart the policy of Plaintiff and Appellant, when the special factual prerequisites of consistent with the language of section section 998 by creating an anomalous dis• V. section 998, subdivision (c) have been ful- 917.1, subdivision (a) which provides that parity between plaintiffs and defendants. filled. It would be a distortion of reality to such a judgment is not automatically A defendant against whom a money judg Steven D. WIENER et al., Defendants classify expert witness fees as [routine] stayed. A judgment within the plain lan- ment is entered must provide an undertak- and Respondents. costs." We agree.' guage of the statute is presumptively with- i ing to obtain a stay of enforcement pend- No. S020887. Expert witness fees awarded under sec in the Legislature's intent absent ashow- in appeal, and the amount of that under- in to the contrar g pp. Supreme Court of California, tion 998,subdivision(c)are nonroutine in at g y taking includes any award against defen- In Bank. least two key respects. First,routine costs Second,we reiterate that the only reason dant under section 998. (§ 917.1, subd. under section 1032, subdivision (b) are we initially declined to construe literally (d).) This result maintains, perhaps even Oct. 29, 1992. awarded only to the prevailing party. Un- section 917.1 (actually its predecessor, for- increases, the defendant's incentive to ac- As Modified on Denial of Rehearing der section 998, subdivision (c), however, a mer section 942)to require undertakings to cept a section 998 settlement offer. When, Jan. 21, 1993. losing defendant can recover its costs. stay judgments for nothing more than rou- as in this case, a money judgment reflect- When a defendant's settlement offer is not tine costs was that such construction would ing an award of expertLso5witness fees is accepted and the plaintiff fails to obtain a have removed nearly all cases from the against the plaintiff as a result of section Municipality brought action to enjoin more favorable judgment, the defendant is scope of the automatic stay. That result 998, we see no reason why the opposite continued operation of adult bookstore in entitled to its costs from the time of the would have virtually eviscerated section result should obtain. Allowing the plain- alleged violation of municipal ordinance. offer and,subject to the trial court's discre- 916 and therefore could not reflect the tiff to avoid the need for an undertaking Owners of bookstore defended based on tion, also may be awarded costs from the Legislature's intent. That concern, as not- would diminish the plaintiff's incentive to alleged unconstitutionality of ordinance. date the complaint was filed. (Conversely, ed above,does not arise when the costs are settle and therefore would thwart the poli- The Superior Court,San Diego County,No. the plaintiff is denied costs.) Thus, even a nonroutine, as are expert witness fees un- cy of section 998. An evenhanded applica- 578784, Vincent P. Di Figlia, J., entered defendant against whom a money judg- der section 998, subdivision(c). (See ante, tion of the requirement for an undertaking judgment in favor of city, and defendants ment is entered can recover costs under pp 699-700, 12 Cal.Rptr.2d, pp. 221-222 of on appeal best effectuates the policy of appealed. The Court of Appeal reversed. section 998, subdivision (c). (§ 998, subd. 838 P2d.) encouraging settlements under section 998. Review was granted,superseding the opin- (e).) Recovery of costs by a losing party is We hold that a judgment awarding ex- ion of the Court of Appeal. The Supreme hardly a routine result. Third and most important, the policy be g g Court, Arabian J. held that: (1) municipal hind section 998, subdivision (c) must be pert witness fees under section 998, other ordinance prohibiting any adult entertain. Second, even when a defendant is enti- vision (c), even in the absence of an other tled as a matter of right to other costs effectuated. That policy is plain. It is to monetary relief,is a judgment that'directs ment business from locating within 1,000 under section 998,subdivision(c),an award encourage settlement by providing a strong the payment of money"within the scope of feet of residentially zoned property, unless of expert witness fees is always within the financial disincentive to a party—whether it was located within enclosed mall, quali- section t is thersubdefore (a) and that such fied as content-neutral time,place and man- trial court's discretion. This is in contrast it be a plaintiff or a defendant—who fails judgment is therefore not automatically to the costs awarded under section 1032, to achieve a better result than that party stayed by the perfecting of an appeal. An ner regulation, and (2) ordinance provided subdivision(b)which costs are awarded"as could have achieved by accepting his or her undertaking consistent with the relevant defendants with "reasonable alternate ave. a matter of right." This difference further opponent's settlement offer. (This is the statutes is required to effect a stay pend- nues of communication." reflects that expert witness fees under sec- stick. The carrot is that by awarding costs ing appeal. Judgment of Court of Appeal reversed; tion 998 are not routine. to the putative settler the statute provides matter remanded with instructions. 4. In Pecsok v. Black (1992) 7 Cal.App.4th 456. nonroutine costs. We disapprove Pecsok to the DISPOSITION Baxter,J.,concurred and filed opinion. 461,9 Cal.Rptr.2d 12,the Court of Appeal noted extent it is contrary to our decision in the pres- The judgment of the Court of Appeal is Mosk, J., concurred in part and filed our grant of review in the present case but ent case. rejected any distinction between routine and affirmed. opinion in which Kennard, J., joined. 702 12 CALIFORNIA Rl•VOKfEtc, cu or,icin 3 Cal.4th 832 3 Cal.4th 836 Cite as 12 Cal.Rptr.2d 701 (Cal. 1992) .. •. 1. Constitutional Law «90.4(3) business was located within enclosed mall, Joseph M. Schilling, Deputy City Atty., that significantly affects the area in terms' r Obscenity a2.5 provided owners with"reasonable alternate David L. Llewellyn,Jr., H. Robert Showers of traffic, public resources, and crime. Municipal ordinance prohibiting any avenues of communication" sufficient to and Gene L. Malpas, as amici curiae on r .tdult entertainment business from locating satisfy their First Amendment rights, not behalf of plaintiff and appellant. or 5The536 city's Onl total area is 8.6 3,196 acres, or square miles .t•ithin 1,000 feet of residentially zoned withstanding mall owners' alleged unwill- , gross acres. y toperty, unless it was located within en- ingness to rent to adult businesses and ARABIAN, Justice. 58 percent of the city's land, are available .dosed mall, qualified as content-neutral economic difficulties of locating business at i The question we consider is the constitu- for any land use purpose whatsoever. Of those 3,196 acres,572 acres,or 17.9 percent :ime, place and manner regulation, which any other available sites. U.S.C.A. Const. tionality of a municipal zoning ordinance :ould be upheld from First Amendment Amend. 1. 1 that regulates adult entertainment estab. of the total net acres, are zoned for com- challenge as long as it served substantial See publication Words and Phrases lishments. The precise issue is whether a mercial use; 1,296 acres, or 40.6 percent, government interest and allowed reason- for other judicial constructions and zoning ordinance that combines both dis- are zoned for residential use; 541 acres,or able alternate avenues of communication; definitions. tance regulations and an exception for loca- 16.9 percent, are zoned for industrial use; 1 ordinance was not designed to eliminate 6. Constitutional Law a90(3) tion of adult businesses in certain shopping and 787 acres, or 24.6 percent, are zoned adult businesses within city, but merely to malls conforms with First Amendment for institutional, including military, use. Y Y In deciding whether time, place and regulate them in order to combat second- manner regulation provides regulated busi- principles under the standard set forth in In December 1986, respondents Steven ary effects of adult businesses on Sur- ness with "reasonable alternate avenues of City of Renton v. Playtime Theatres, Inc. D. Wiener, individually and doing business rounding community. U.S.C.A. Const. communication," court is not concerned i (1986) 475 U.S. 41, 106 S.Ct. 925, 89 as Chuck's Bookstore, and his sister Patri- Amend. 1. with regulation's economic impact on busi- i L.Ed.2d 29(Renton). We conclude that the cia Sanders (respondents) 8360pened 2. Constitutional Law e:-70.3(2) nesses. U.S.C.A. Const.Amend. 1. i ordinance is constitutional. Chuck's Bookstore, an adult bookstore and Courts will not strike down an other- See publication Words and Phrases arcade, at 929 National City Boulevard in for other judicial constructions and I. FACTS AND PROCEDURAL the city.' Shortly thereafter, the city wise constitutional statute on basis of al- definitions. j BACKGROUND brought an action in superior court seeking leged illicit legislative motive. f Cit. of National City the cif or Nation- a preliminary and permanent injunction 7. Constitutional Law <�90.4(1) � Y ( Y P t'Y P J 3. Constitutional Law a-90(3) Reluctance or outright refusal of pri- al City) is located approximately five miles against the continued operation of Chuck's Government regulation of expressive ( from downtown San Diego. It is highly Bookstore by respondents pursuant to vate owners of available sites to rent to i activity is"content-neutral" as long as it is adult businesses was not dispositive of is- accessible, crisscrossed by two major free- chapter 18 of the city municipal code regu- justified without reference to content of sue of whether zoning ordinance provided ways,several major arterials,and an abun- lating adult establishments. The city regulated speech. U.S.C.A. Const.Amend. reasonable opportunity for such busi- dance of surface street traffic. To the claimed that the bookstore constituted a 1' nesses to locate within city; while city west lies San Diego Bay. Its three other common law and statutory nuisance,' and See publication Words and Phrases borders lie adjacent to property belonging that the store was operating in violation of for other judicial constructions and could not suppress protected speech, nei definitions. ther was it compelled to act as broker for to other cities and the County of San Die certain sections of the municipal code, in 4. Constitutional Law «90.4(3) adult entertainment establishments. go. It is home to a large naval installation cluding section 18.69.030.3 Respondents ul- U.S.C.A. Const.Amend. 1. 1. Prior to opening the Chuck's Bookstore at 929 to resolve this action on the ground of common Municipal ordinance prohibiting any National City Boulevard, Wiener had operated law public nuisance, and conclude that it is adult entertainment business from locating 8. Constitutional Law e;90.40) another adult bookstore and arcade at 829 Na- appropriate for us to reach the constitutional within 1,000 feet of residentially zoned Number of adult businesses located tional City Boulevard. After the earlier store issue. property, unless it was located within en- within city is of no particular significance was closed by the city during redevelopment, respondents opened Chuck's Bookstore at 929 3. Section 18.69.030 provides in relevant part: closed mall, furthered city's substantial in- in evaluating validity of municipal time, National City Boulevard, where it became the "A. No person or entity shall own,establish, terest in reducing secondary effects of place and manner regulation restricting 10• i subject of the current action. operate, control or enlarge, or cause or permit adult businesses and in relieving city of cation of such businesses. U.S.C.A. Const. the establishment, operation, enlargement or regulatory burden of policing such busi- Amend. 1. 2. Although the city's action was for both statuto- transfer of ownership or control,except pursu. nesses by shifting it to mall management; ry and common law public nuisance,the superi- ant to Section 18.69.060,of any of the following ordinance could be u held from First or court's statement of decision relied solely on adult entertainment establishments if such adult P the statutory basis for imposing the requested entertainment establishment is within one thou- Amendment challenge as long as it provid- _IpsNorman R. Atkins, Weston & Sarno, injunctive relief. On appeal, the Court of Ap- sand five hundred feet of another adult enter- ed reasonable alternate avenues of eommu• John H. Weston and G. Randall Garrou, I peal also addressed only the statutory public tainment establishment or within one thousand nication. U.S.C.A. Const.Amend. 1. Beverly Hills, for defendants and reapon- 1 nuisance issue and denied the city's petition for five hundred feet of any school or public park rehearing (opposed by respondents) requesting within the city or within one thousand feet of 5. Constitutional Law e;-90.4(3) dents. a ruling on the issue of common law public any residentially zoned property in the city, Obscenity <-2.5 George H. Eiser III, CityAtty., and Lin- nuisance. Finally,at oral argument before this measured along street frontages: y'' court, respondents urged the court that given "1. Adult bookstore; Municipal ordinance which prohibited da Kaye Harter, Asst. City Atty., National what they characterized as a lack of evidence in "3. Adult mini-motion picture arcade (peep owners of adult entertainment business City, for plaintiff and appellant. the record on the issue of common law public shows); . from locating business within 1,000 feet of John W. Witt, City Atty., San Diego, nuisance,and the failure of the lower courts to "C. Nothing in this chapter prohibits the lo- an residentially zonedproperty, unless Stuart H. Swett, Chief Deputy City Att rule on the issue, it would be inappropriate for cation of adult entertainment establishments Y Y p y y Y•' us to reach the issue. Accordingly,we decline . within retail shopping centers in all commercial 3 Cal.4th 836 3 UalAln bJY Cite as 12 Cal.ltptr.2d 7U1 (Cal. 1992) ;. timately conceded that Chuck's Bookstore These problems were widely publicized in a Town and Country conformed to the speci- nance] requirements."s The court further violated the ordinance by virtue of its prox- series of articles appearing in the local focations of the ordinance. It was estimat. found that the operation of Chuck's Book- imity to both another adult entertainment newspaper, the Star News. ed that only 5,000 to 6,000 square feet of store at its present location was in violation establishment and a residential area, but The city employs "strip zoning," or com- ? space at Sweetwater Town and Country, of the ordinance. On that basis, the court . claimed that section 18.69.030 was uncon- mercial zoningon either side of heavily and Plaza square feet di space at South 1 �xsygranted the city's request fora declara- y Bay Plaza, met the ordinance's criteria. stitutional. tion that Chuck's Bookstore constituted a trafficked arterials; thus its commercial Moreover, respondents' expert witness tes- Municipal Code section 18.69.030 (the or- zones are generally in close proximity to i tified that none of these three malls would public nuisance, and permanently enjoined dinance) prohibits an adult business from residential areas. As a result, only 4.5 of 1 rent space to an adult entertainment busi- respondents from establishing, maintain- locating within 1,500 feet of another adult the 572 commercially zoned acres not al- j ness. The witness recounted telephone ing, and operating an adult business, in- business, 1,500 feet of a school or public ready developed into a shopping mall lie conversations with leasing agents from two cluding an adult bookstore, at 929 National park, or I,000 feet of any residentially beyond the distance requirements of the i of the malls during which the witness in- City Boulevard. zoned property. The ordinance limits nei- ordinance. This parcel of land is located in 1 quired generally whether those malls ther the total number of adult businesses the southern portion of the city, fronting would rent space to an adult business, The Court of Appeal reversed. While that may locate in the city, nor the hours on National City Boulevard. There was i without identifying a particular business. the court found that the ordinance was they may operate. It"grandfathers"exist- evidence that it currently contains a 9,000- In addition,new shopping centers may be constitutional on its face, and served a sub- ing adult businesses, and hence does not square-foot building and a motorcycle built or existing malls may be modified in stantial government interest, it concluded apply to another adult business in the city, sho . conformance with the ordinance to accom- that the ordinance as applied failed to pro- the Pussycat Theater. P i modate adult businesses. Although there vide reasonable alternative avenues of com- To allow for a greater number of alterna i was testimony as to the cost and expertise munication under Renton, supra,, 475 U.S. ��7Mr. Post, the city's Planning Director, tive sites for adult businesses while still ' testified that the ordinance was enacted required for such construction, no direct 41, 106 S.Ct. 925. Specifically, the court th di e d t as c id vene w presented regarding e eco- found that the distance regulations after the city had performed a study and attempting to minimize their negative im- e g ations allowed conducted one or more public hearings be Pact, the ordinance also provides that adult I nomic viability of such an enterprise,or the too few alternative sites for adult business- fore the city's Planning Commission, and businesses are not subject to the distance ability of respondents to undertake such es,and that the"purported"opportunity to requirements, and may locate anywhere development. was part of a comprehensive scheme of locate in enclosed malls was "illusive." i h h id h ll city's 572 acres of commercially Finally, there was evidence that there s urban redevelopment. According to Mr. within the cit This finding of illusiveness derived from � zoned property, if they are located in a currently a trend toward developing small Post, the city suffers the second highest both "the apparent aversion shopping mall crime rate in San Diego County, and urban retail shopping center. Under this excep- i retail shopping centers in Southern Califor- landlords have toward the presence of decayis rife throughout the city. Its o u- tion, either the frontage of the business nia, and that it is relatively easy to under- g t P P must be oriented to an enclosed mall or the take this type of development in the city. adult entertainment shops on the at con- income is largely transient,and its per capita Mr. Post testified that "developing a es,"and the court's determination that con- - income is one of the lowest in the county. business must be in a mall isolated from P g direct view from public streets, arks, church would actually be more difficult struction of a new shopping facility"would Because re low property values r its t on P P than developing an adult entertainment en- not be economically feasible for the typical dentia] area, the city is heavily reliant on schools, churches, and residentially zoned terprise in National City." adult business entrepreneur." The court its commercial tax base for revenue, and property. there was testimony that the area zoned Three existing shopping centers were After a three-day trial,the superior court also took into consideration counsel's repre- 1t found that the ordinance was a reasonable sentation at oral argument that the city for commercial use is proportionately larg- identified as fulfilling the enclosed mall time, place, and manner regulation de- "has a population of over 57,000 and has er than in other cities. requirements: the Plaza Bonita Shopping signed to serve a substantial government only one adult entertainment business in Moreover, there was testimony that the Center, South Bay Plaza, and Sweetwater interest. The court also found that the neighborhood surrounding Chuck's Book. Town and Country. While vacancies exist operation. The court stated that while g g ordinance provided reasonable alternative ,not controlling, this factor does indicate store has experienced deleterious effects as ed at all three of these malls, not all por- avenues of communication, noting that a result of respondents' current location.' tions of South Bay Plaza or Sweetwater "there are shopping centers in existence in that as a practical matter the ordinance is [National City] which could accommodate highly restrictive." Accordingly, the court zones wherein such activities will have their longer allows him to play in the backyard. Pri- held that the city"has not shown there are only frontage upon enclosed malls or malls iso- or to June of 1988,when lockable doors on the [respondents'] business and Comply With lated from direct view from public streets, respondents'viewing booths were removed,one the [o]rdinance, and that the city had practical alternative locations for adult en- parks, schools, churches or residentially zoned Star News reporter, Mr. Dane David Schiller, "demonstrated that an abundant amount of tertainment establishments, and thus ordi- property." testified that he observed a patron placing his land exists for development of commercial nance 18-69.030 is an impermissible restric- The parties stipulated that Chuck's Bookstore penis in a"glom hole"in a viewing booth,and edifices which would conform to the [ordi- tion on protected speech." is an"adult entertainment establishment"with- on numerous occasions observed puddles of re- in the meaning of the municipal code, men on the Floor of the booths. Mr. Rich 5. We note that the trial court's statement of the record reveals uncontroverted evidence that Chriss,.circulation manager and part-time re- decision characterizes the 572 acres of commer- the commercially zoned property was substan. 4. Following the opening of respondents' busi• porter for the Star Kews,testified that also prior ciall zoned property as "vacant." Moreover, ness at its current location, one neighbor, Ms. to the removal of the lockable doors,on four or y p p y Bally developed. Since neither party has courts' the Court of Appeal stated in its opinion that the ed to, or appeared misled by,the lower courts' Janice Martinelli, observed men urinating in five occasions, he observed male patrons plat- "evidence[was)undisputed that under the ordi- her backyard. Her nine-year-old son found ing their penises in the "glory holes." Mr. nance a new or relocating adult entertainment mistaken characterizations of the property,and we used condoms and pornographic reading mate- Chriss further testified that he observed acts of business would be limited to locating'in certain conclude there are reasonable alternative rial in her yard,and was once chased by one of oral and anal sex in the booths,and anal sex in locations, including "572 acres of undeveloped avenues of communication, the discrepancy is respondents customers. Ms. Martinelli no the alley behind respondents' business. commercial land ..." However,our review of of no significance. vu - 3 Cal.4th 842 3 Cal.4th 845 ate as 12 Cal.Rptrad 701 (Cot. 1"2) Playtime Theatres contended, however, nomic impact.' ... In our view, the First _L9441. Content-Neutrality was to prohibit the establishment of any~ that "some of the land in question [was] Amendment requires only that Renton re- ! [1] Since the National City ordinance, adult business. In support of this conten- already occupied by existing businesses, frain from effectively denying respondents j like the one in Renton, does not ban adult tion, respondents rely on evidence they that 'practically none' of the undeveloped a reasonable opportunity to open and oper• 1 businesses altogether, but merely provides claim establishes that the city knew or` land [was] currently for sale or lease, and ate an adult theater within the city,and.the that such businesses may only be located in should have known owners of Shopping that in general there [were] no 'commer- ordinance before us easily meets this re- PP g certain areas, the ordinance is properly an- centers would be either reluctant or would cially viable' adult theater sites within the quirement." (Renton, supra, 475 U.S. at i alyzed as a form of time,place,and manner 520 acres left open by the Renton ordi- p. 54, 106 S.Ct. at p. 932, quoting Young, outright refuse, torent toan adult busi- regulation. (Renton, supra, 475 U.S. at p. Hess. The factual predicate for this ar u nance." (Renton, supra, 475 U.S.at p. 53, supra, 427 U.S. at p. 78, 96 S.Ct. at p. ! P g - 46, 106 S.Ct. at p. 928.) ment is unsupported b the record, since 106 S.Ct. at p. 932.) Specifically, "[a]sub- 2456.) { PP Y � Moreover, we conclude that the ordi- Mr. Post stantial part of the 520 acres [was] occu- categorically denied that city plan- Thus the court held that "the Renton Hance is content-neutral since the ordi- pied by: V(I) a sewage disposal site and ordinance represents a valid governmental nance is, as in Renton, supra, 475 U.S. at ners were aware ofL&sany reluctance to treatment plant; 11(2) a horseracing track rent.8 More importantly, Mr. Post denied response to the 'admittedly serious prob- j p. 47, 106 S.Ct. at p. 928, aimed not at the and environs; it(3)a business park contain- lems'created by adult theaters." (Renton, j content of materials sold,but rather at the any motivation on the part of the city to ing buildings suitable only for industrial eliminate adult businesses. Rather, Mr. use it(4) a warehouse and manufacturing supra, 475 U.S.at p.54, 106 S.Ct.at p.932, secondary effects of adult businesses on g quoting Young,supra,427 U.S.at 71 96 the surrounding community.? While the Post testified that the purpose of the ordi- facilities; 11(5)a Mobil Oil tank farm; and, q g g' p p' 11(6) afully-developed shopping center." S.Ct. at p. 2452.) "Renton has not used I superior court did not expressly address nance was to alleviate the secondary ef- the power to zone as a pretext for sup- this issue, in its discussion of the evidence fects of adult businesses, while allowing (Playtime Theaters, Inc. v. City of Renton pressing expression,, ... but rather has ! in support of its finding that the ordinance reasonable alternative locations for those (9th Cir.1984) 748 F.2d 527, 534.) The sought to make some areas available for i was designed to serve a substantial govern- businesses. The trial court apparently Ninth Circuit "accepted these arguments, adult theaters and their patrons, while at concluded that the 520 acres was not truly P ment interest, the court noted that there credited this testimony, and we see no rea 'available'land,and therefore held that the the same time preserving the quality of life ! was testimony that the ordinance "was en- son to question its ruling. (See Renton, Renton ordinance 'would result in a sub- 1n the community at large by preventing acted as part of a comprehensive scheme of supra, 475 U.S.at p.48, 106 S.Ct.at p.929, stantial restriction' on speech." (Renton, those theaters from locating in other areas. ( urban redevelopment" in an effort to com- quoting United States v. O'Brien (1968) supra, 475 U.S. at pp. 53-54, fn. omitted, This, after all, is the essence of zoning. i bat blight in National City, and that "the 391 U.S. 367, 383, 88 S.Ct. 1673, 1682, 20 I (Ibid.) "Here, as in [Young], the city has resence of Chuck's Booksore ... has led 106 S.Ct. at p. 932.) enacted a zoning ordinance that meets to 'secondary effects' on the community L.Ed.2d 672 ["'It is a familiar principle of 1s49The Supreme Court held unequivocal- these goals while also satisfying the dic- Moreover, the court's ruling uphold- constitutional law that this Court will not ly to the contrary: "That respondents must tates of the First Amendment." (Id. 475 ing the constitutionality of the ordinance strike down an otherwise constitutional fend for themselves in the real estate mar- U.S. at pp. 54-55, 106 S.Ct. at p. 932.) under Renton constitutes an implied find. statute on the basis of an alleged illicit ket,on an equal footing with other prospec- ing that the ordinance is content-neutral. legislative motive.'"]; Ward, supra, 491 tive purchasers and lessees, does not give B. APPLICATION OF THE RENTON The record amply supports this implied U.S. at p. 791, 109 S.Ct. at p. 2753, quoting rise to First Amendment violation. And ANALYSIS finding. Clark v. Community for Creative Non- although we have cautioned against the Violence(1984 468 U.S.288, 293, 104 S.Ct. [2,3] Respondents devote much of their ) enactment of zoning regulations that have In applying the Renton analysis to the argument to the proposition that the city's 3065, 3069, 82 L.Ed.2d 221 ["Government 'the effect of suppressing, or greatly re- ordinance here, we determine as a prelimi- ordinance is content-based, and that the regulation of expressive activity is content stricting access to, lawful speech, ... we nary matter whether the ordinance is a "predominant censorial purpose" behind it neutral so long as it is 'justified without have never suggested that the First content-neutral time, place, and manner Amendment compels the Government to en- regulation. If so, we then determine 7. We note that the written stated purpose of the judge. Hence, we conclude that both purposes sure that adult theaters,or any other kinds whether the ordinance, and in particular ordinance is to"prevent problems of blight and of the ordinance are supported by substantial of speech-related businesses for that mat the shopping Center exception, is designed deterioration which accompany and are brought evidence, and that we may rely on both pur- P PP g P g about by the concentration of adult entertain- poses in determining that the ordinance is con- ter, will be able to obtain sites at bargain to serve a substantial governmental inter- ment establishments:' However,there was also tent-neutral. prices.... 'The inquiry for First Amend- est, and allows for reasonable alternative evidence that under the shopping center excep- meet purposes is not Concerned with ee0 tion,adult businesses could be concentrated so avenues of Communications long as they were located in a mall. Hence, it 8. Rather, respondents' evidence in this regard appears that the written stated purpose of the essentially consists of testimony that it is gener- 6. Respondents attempt to raise in this court amendment to the ordinance. Once again,how- ordinance has not been amended to conform ally known among realtors that shopping cen- several arguments under the California Consti• ever, respondents failed to raise these argu• with the addition of the shopping center excep- ters do not usually rent to adult businesses. tution. Respondents failed to raise these argu- ments in the Court of Appeal,and we therefore tion,and the purpose underlying that exception. Such generalized, speculative evidence, not ments in the Court of Appeal. Accordingly,we decline to consider them here. Moreover, we However, we note that respondents have never linked to any city representative, fails to even do not reach these claims,or decide whether the note that respondents appear to largely rely on contended,and in particular did not contend at rise to the level of an illicit"motivating factor." California Constitution provides greater protec- the amendment as further evidence of an al- the trial level,that the written stated purpose of (See Renton, supra, 475 U.S. at pp. 47-48, 106 tion to respondents than the federal Constitu- le ed impermissible government intent, an ar• the ordinance failed to support the cif 's testi- lion. (Ca1.Rules of Court, rule 29.) g p g pp y S.Ct. at pp. 928-929 (distinguishing generally In addition, respondents raise i) this court gument we consider post and reject. mony as to the purpose of the shopping center between an illicit "motivating factor"and a lc- In exception, despite the fact that the issue was arguments regarding a conditional use permit gitimate "predominant purpose").) 8u g B P brought to the parties' attention by the trial 710 12 CALIFORNIA REPORTER, 2d SERIES t V„1 yr All lA vi.n►. Vlll ,. ,,...... `L1., 3 Cal.4th us ' 3 Ca1.4th 848 Cite as12 Cal.Rptrid 701 (Cal. 1"2) r reference to the content of the regulated tec[t] and preserve] the quality of [the Finally, there was testimony that the re- supra, 427 U.S.at p.78,96 S.Ct.at p.2456. speech.'"].) city's] neighborhoods, commercial districts, sult of reducing the secondary effects of See City of Vallejo v. Adult Boodx(2985) Respondents also rely on evidence that and the quality of urban life'"].) We also i adult businesses,and freeing up public pro- 167 Cal.App.3d 1169, 1180, 213 Cal.Rptr. :. they claim demonstrates that the city knew find that the city's shopping mall exception tection resources,is IL847healthier economic 143) ["[E]vddence of the considerable eco- or should have known that it would not be is narrowly tailored, since the "'regulation { base. As noted above, National City is nomic difficulty of locating 'adult' uses at economically feasible for an adult business promotes ... substantial government inter. { particularly reliant on its commercial tax many legally permissible sites within the to build its own shopping center. Howev- estls]that would be achieved less effective- ? base, and hence has a substantial interest City of Vallejo.... falls far short of estab- er, as we discuss more fully in our evalua- ly absent the regulation."' (Ward, supra in its preservation. lishing that appellant is foreclosed or un tion of whether the ordinance allows for 491 U.S. at p. 799, 109 S.Ct. at p. 2758, Therefore, placing adult businesses in reasonably restricted by the ordinance reasonable alternative avenues of commu 1 from effectively operating within the city quoting United States u. Alberttni, supra, malls furthers the city's substantial inter- nication' the ordinance does not limit re- l limits."] cert. den. (1986) 475 U.S. 1064, 472 U.S. at p. 689, 105 S.Ct. at p. 2906.) ests in reducing the secondary effects of spondents' alternatives to such construc- adult businesses, relieving the city from 106 S.Ct. 1374, 89 L.Ed.2d 601. As noted tion. First' some of the regulatory burden by shifting under the ordinance, the malls in earlier, Renton refused to sustain an eco- Finally, respondents argue that since the which adult businesses are permitted to be j it to the private sector, and protecting the nomic viability argument on a record dem- effect of the ordinance is to eliminate all established are either inward looking con- commercial tax base. onstrating that a substantial part of the adult businesses, that must be its underly- figurations, or those "isolated from direct 520 acres zoned for adult businesses was ing intent. Since we conclude, post, that view from public streets, parks, schools, ; 3. Reasonable Alternate Avenues of occupied by a sewage disposal site, race the ordinance does not have this effect, we churches or residentially zoned property." I Communication track, and other uses restricting, as a prac- likewise reject respondents' suggestion of Access is by a pedestrian walkway, not a tical matter, available sites. Similarly, we illicit intent. } [5] We also conclude that the ordinance decline to find on this record that A48Na- public street. This configuration reduces } provides reasonable alternative avenues of -1- In sum,we conclude that the ordinance is the secondary effects associated with adult communication. The ordinance makes tional City's ordinance fails to provide rea- content-neutral, and proceed to evaluate businesses by segregating such businesses sonable alternative avenues of communica- available the entire commercially zoned to the constitutionality of the ordinance under away from residential areas and schools tion. Re�zton's two-part test. area of the city, or 572 acres of land, on and placing them in a location where they which to locate an adult business. This [7] Moreover, Renton explicitly reject- 2. Substantial Government Interest do not affect the moral climate of the com- i area is highly accessible by major freeways ed the argument that because "'practically i munity as a whole. Specifically,it decreas- i and arterials. In addition, the ordinance none' of the undeveloped land [was] cur- [4] We find, as did the two lower es the problems of harassment of neighbor- I limits neither the total number of adult rently for sale or lease" the ordinance courts, that the first prong of "substantial hood adults and children litteringof sexu "'would result in a substantial restriction' governmental interest" is easily satisfied. 1 businesses that may locate in the city, nor ally explicit reading material and parapher- the hours they may operate. Finally, the on speech." (Renton, supra, 475 U.S. at The city presented substantial evidence at nalia loitering, and visual blight from ordinance does "'not affect the operation pp. 53-54, 106 S.Ct. at p. 932, citations trial that adult businesses are a source of urban decay, and that the location of the bright colors and explicit signage associat• of existing establishments but only the lo- omitted.) The record here in fact reveals adult business at issue in this case has in ed with adult businesses. cation of new ones.'" (Young, supra, 427 that vacancies existed at all three shopping fact led to the secondaryeffects the ordi- U.S.at p. 71, fn.35, 96 S.Ct. at p.2453, fn. centers, and that the evidence of landown- Second, placing adult businesses in shop H 35, citation omitted.) ers unwillingness to rent consisted essen- ance seeks to curtail. Moreover, the city ping centers promotes the city's interests ( tially of generalized responses by leasing _Ls46demonstrated that both the distance reg- by shifting part of the regulatory burden Respondents contend, however, that the ulation and the shopping center exception agents to respondents' experts telephone pp g p to the private sector. A shopping center availability of sites under the ordinance is inquiry, and testimony that it is generally are designed to serve substantial govern- has its own si a e,paint,and landscaping "illusory" because of the lack of sites cur- interests in decreasingblight andp g known among realtors that shopping cen- g restrictions. A all arrangement also ad- rently for rent, the unwillingness of own- crime, shifting art of the regulatory bur- g ters do not usually rent to adult business- crime, p g rY dresses such factors as hours of operation, ers of available sites to rent to them, and den to the private sector,by either dispers- p es. Nor, in this case, is any reluctance or parking, and security. Thus a shopping the considerable cost of building their own ing adult businesses, or by placing them in p g' pp g outright refusal of private land owners to center generally exercises a high degree of shopping center in compliance with the or. such as enclosed shopping malls g y g g rent to adult businesses dispositive of the designed to minimize the occurrence of control over its tenants. This benefits the establish constitutdinance. We find none of these arguments issue of whether the ordinanceional infirmit provides a negative secondary effects, and protecting city, as Mr. Post testified, by removing it y reasonable opportunity for such businesses the city's tax base. (See Renton, supra, from"the enforcement business. We don't [6] The high court in Renton made to locate within National City. While a city 475 U.S. at p. 48, 106 S.Ct. at p. 929 [up- have to expend the amount of resources clear that "'The inquiry for First Amend- may not suppress protected speech, neither holding ordinance "designed to prevent that we typically would if the shopping ment purposes is not concerned with eco- is it compelled to act as a broker or leasing crime, protect the city's retail trade, main- center itself is doing some of the policing in nomic impact.'" (Renton, supra, 475 U.S. agent for those engaged in the sale of it. tain property values, and generally 'pro- terms of these various factors."9 at p.54, 106 S.Ct.at p.932,quoting Young, We decline to hold local governments re- 9. Moreover,there was testimony that adult busi- require"high visibility"locations. "Destination 10. Respondents assert that if we uphold this zoning ordinance could mandate economic re- nesses are considered "destination retail," i.e., retail"businesses are such that if they do relo- ordinance, we approve in advance any and all strictions so severe as to amount to an outright they deal in goods that consumers specifically cate, their clientele will typically follow. economic restrictions on adult businesses in vio- prohibition of First Amendment speech,that is seek out wherever they are located,and do not lation of Renton. While it is conceivable that a not the case here. 712 12 CALIFORNIA REPORTER, 2d SERIES I CITY OF NATIONAL CITY Y. WIENER 413 a 3 Cal.4th 848 r 3 CalAth 851 Ctte as 12 Cal.Rptr2d 701 (Cal. 1992) sponsible for the business decisions of pri- only alternative under the ordinance. I that the trial court judgment rested solely law, will not be disturbed on appeal merely vate individuals who act for their own eco- Hence,we conclude that the ordinance pro- on the theory of statutory public nuisance. because given for a wrong reason. If right nomic concerns without any reference to vides reasonable alternative avenues of This court may not affirm the judgment on upon any theory of the law applicable to the First Amendment. The Constitution communication. a theory that a U50common law public nui- the case,it must be sustained regardless of does not saddle municipalities with the task i sance was established. The rule which re- the considerations which may have moved of ensuring either the popularity or eco CONCLUSION quires that a reviewing court sustain a the trial court to its conclusion. [n] ... [1) nomic success of adult businesses. judgment if the result is correct even if the In other words, it is judicial action,and not We hold that National City's ordinance is - trial court based its decision on an errone- judicial reasoning or argument, which is [8] Respondents' reliance on the fact constitutional under the First Amendment. I{I ous legal theory, has no application here. the subject of review; and, if the former be . that only one other adult business current- Accordingly, the judgment of the Court of 1 International etc. Workers v. Landow- correct, we are not concerned with the ly operates within the city is also mis- Appeal is reversed,and the matter remand- itz (1942) 20 Cal.2d 418, 126 P.2d 609, on faults of the latter." placed. The number of adult businesses is, ed with instructions to reinstate the trial which Justice Mosk relies,was an action in This rule may not be used to uphold a without more, of no particular significance court's judgment. which plaintiffs sought an injunction judgment granting relief on the basis of in evaluating the validity of the ordinance. against future violations of a local ordi- only one of two or more counts pleaded in We find no authority that mandates a con- LUCAS, C.J., and PANELLI, BAXTER, j nance. The trial court sustained a demur- the complaint,each of which counts asserts stitutional ratio of adult businesses to a and GEORGE, JJ., concur. { rer on the ground that the statute was a different basis for relief. particular population figure." We note j constitutionally invalid. This court disa- "Exceptions exist to the rule of nonre- that at the time the Renton ordinance was BAXTER, Justice, concurring. i greed but nonetheless affirmed the judg- viewability of a trial court's reasons for its enacted "no adult theaters were located in I concur fully in the reasoning and judg- ment of dismissal because subsequent to decision. The exception ... most germane -u9Renton...." (Playtime Theaters, Inc. ment of the majority. I do so because the the entry of judgment the enabling legisla- to this appeal allows for reversal where the v. City of Renton, supra, 748 F.2d at P. evidence does not support a conclusion that j tion which authorized adoption of the local trial court has refused to pass on an issue 530.) Moreover,nothing in this record indi- no bookstore handling "adult" materials { ordinance had been repealed. There being and disposes of the case on an entirely cates whether similar enterprises have at- would be able to rent space in National no other basis for the action, we applied different ground. If the trial court thus tempted to locate in the city and have been City. No evidence was offered that would the rule of Sewell v. Johnson (1913) 165 chose an s51improper ground, an appellate thwarted by virtue of unreasonable restric- support a conclusion that a bookstore Cal.762,769, 134 P.704: "[W]here matters court will not uphold the judgment on the tions, or simply found it economically less which is clean, is well maintained and su- of which the court has judicial knowledge . ground not addressed by the trial court, if advantageous than other localities. pervised, and which expects both staff and occur subsequent to the trial court's action resolution of that issue depends upon con- It is also inaccurate to characterize the customers to abide by the law and socially and have the effect of destroying the basis nicting evidence." (United Pacific Ins. ordinance as forcing respondents to build acceptable norms of public conduct Nation- I for the plaintiff's cause of action, it has Co. v. Hanover Ins. Co. (1990) 217 Cal. their own shopping mall at prohibitive cost. be unable to rent space in a mall in been held that the appellate court may App.3d 925, 933, fn. 9, 266 Cal.Rptr. 231, Rather,this is merely one option under the al City. dispose of the case upon those grounds." italics in original. See also, Zak v. Stale m(International etc. Workers v. LandoWitz, Far etc. Ins. Co. (1965) 232 Cal.App.2d ordinance. The city has demonstrated that While I also agree with Justice Mosk there are three shopping centers, and a that the evidence in this case would sup supra, 20 Cal.2d at p. 423, 126 P.2d 609.) 500, 506, 42 Ca1.Rptr. 908; Kyne v. Kyne partially developed 4.5-acre area, where an port a judgment that Chuck's Bookstore The rule that an appellate court will af. (1943)60 Cal.App.2d 326,332, 140 P.2d 886; adult business may seek to rent an existing was a common law public nuisance, the firm a correct judgment even if the trial 9 Witkin, Cal. Procedure (3d ed. 1985) Ap- location. Moreover, certain malls may be trial court did not make such a finding. In court's reasoning was faulty was adopted peal, § 262, p. 269.) modified in conformance with the ordinance its statement of decision,the court express- by this court in Davey v. Southern Pacific The trial court in this case did make to accommodate adult businesses. It is ly noted that the decision would focus on Co. (1897) 116 Cal. 325, 329-330, 48 P. 117: factual findings that might also support a respondents, not the city, who define con- the cty's claim that defendant's operation "The fact that the action of the[trial]court conclusion that Chuck's Bookstore was a struction of a new shopping center as their violated the municipal code. This confirms may have been based upon an erroneous common law public nuisance. It did so theory of the case, or upon an improper or only insofar as that evidence was relevant 11. We also reject the analysis suggested by the motion to strike the factual material filed in unsound course of reasoning, cannot deter- to determining that the bookstore had un- City of San Diego,and the 36 cities joining in its support of San Diego's argument, as well as mine the question of itspropriety. No rule desirable "secondary" effects, however. amicus curiae brief, that we look to the avail- certain factual material attached to the Western q ability of adult materials in surrounding com• Center for Law and Religious Freedom et alas of decision is better or more firmly estab- The court did not make the findings neces- munities in determining whether the National amicus curiae brief. We share respondents' lished by authority,nor one resting upon a sary to resolve whether Chuck's Bookstore City ordinance provides reasonable alternative concern that none of this material was intro- avenues basis of reason and propriety,than was, at the time the action was brought, a avenues of communication. In general,"Iolne duced below,and hence has not been subjected is not to have the exercise of his[or her)liberty that a ruling or decision, itself correct in common law public nuisance.' It would not of expression in appropriate places abridged on to the rigors have the adversarial process. Accord' g the plea that it may be exercised in some other ingly, we have not considered this material in 1. Two of the three witnesses who testified re• bookstore. Subsequent to their observations a place."' (Schad v. Borough of Mount Ephraim reaching our decision. (See Bily v. Arthur garding the activities and conditions described fence had been constructed to separate the rear (1981)452 U.S.61, 76-77, 101 S.Ct.2176,2187, Young&Company(1992)3 Cal.4th 370,405,fn. in footnote 4 of the majority opinion, ante, alleyway from the rear yard of the home direct- 68 L.Ed.2d 671, quoting Schneider v. Stare 14, 11 Cal.Rptr.2d 51, 834 P.2d 745 [court may made their observations a year or more prior to ly behind the bookstore. Therefore, although (1939) 308 U.S. 147, 163, 60 S.Ct. 146, 151, 84 choose to ignore improper material filed in ap- trial. Both acknowledged that prior to trial their testimony was uncontradicted, it was not L.Ed. 155.) Moreover,respondents have filed a pellate brief rather than strike it from the file).) changes had been made in the interior of the adequate to establish that either the bookstore 714 12 CALIFORNIA REPORTER, 2d SERIES ! CITY OF NATIONAL CITY v. WIENER 3 Cal.4th 851 i 3 Ca1.4th 854 Cue as a cal.Rptr.2d 701 (cal. 1992) .)e appropriate, therefore, to uphold the its neighbors. The basis for the statutory i leaves no doubt whatever that defendant constitutionality, judgment must be sus- udgment on the basis suggested by Justice claim was that Chuck's violated a National did not manage the property properly. tained because it was correct on other Aosk. City ordinance: it was too close to resi- �g�Th{ us there was ample evidence to sus- grounds).) Therefore the majority opinion - dences and the adult theater, and it did not j tain the trial court's judgment that the is correct that the Court of Appeal's judg- MOSK, Justice, concurring and come within any exception to the distance ! bookstore was a public nuisance. The merit must be reversed. lissenting. rules because it was not in an enclosed or judgment did not specify, however, wheth- Alas, in their eagerness to comment on There are nine words in the majority inward-facing mall. ! er Chuck's was a statutory or a common the constitutionality of the ordinance—in )pinion with which I agree: "the judgment It was uncontested that Chuck's enjoys law nuisance,and the statement of decision actuality not at issue—the majority ignore the Court of Appeal is reversed." How- First Amendment protection and therefore i discussed only the statutory claim. Per- the common law nuisance claim. Thus in over, because the bulk of the opinion pro- the city must provide reasonable alterna- haps for this reason, the Court of Appeal my view their discussion becomes purely poses to give effect to a city ordinance that tive avenues of communication,as constitu- focused on the constitutionally infirm stat- advisory. unconstitutionally bans the dissemination tionall required.' But much of the cit y's ! utor claim, rather than the strong evi- of First Amendment-protected material, I y q y g It is axiomatic that we may not address must distance myself from its reasoning. case focused on its allegation that Chuck's Bence that Chuck's was a common law pub constitutional questions when there is an- was a common law public nuisance. It is to lie nuisance. other ground on which to reach a decision. First, the facts. this theory that I turn first. Assuming arguendo that the trial court's Such is the rule we have previously im- At the time of trial, Chuck's Bookstore judgment declaring Chuck's a public nui- posed on ourselves. (Amador Valley was the only adult bookstore in National I lance was rendered on the constitutionally Joint Union High Sch. Dist. v. State Bd. City—a city of more than 57,000—although infirm statutory ground,rather than on the of Equalization (1978) 22 Cal.3d 208, 233, there is one other sexually oriented busi- The city could properly seek to have the sound basis of the Civil Code, nevertheless 149 Ca).Rptr. 239, 583 P.2d 1281 [stating ness, a movie theater. bookstore abated as a common law public the trial court's decision was correct be- general rule]; People v. Williams(1976) 16 Purporting to rid itself of urban blight, nuisance. (Civ.Code,§ 3491,subd.3; Code cause there was sufficient evidence of a Cal.3d 663, 667, 128 Cal.Rptr.888, 547 P.2d the city enacted an ordinance prohibiting Civ.Proc., § 731.) The city alleged, and i common law public nuisance to support it. 1000.) It is also part of the self-discipline sexually oriented businesses like Chuck's provided strong evidence at trial, that + (Nestle v. City of Santa Monica (1972) 6 of the United States Supreme Court, which from locating within 1,500 feet of each Chuck's is a classic public nuisance. (Civ. Cal.3d 920,925, 101 Cal.Rptr. 568, 496 P.2d calls it a "'fundamental rule of judicial other, 1,500 feet of a school or park, or Code, §§ 3479, 3480.) The store had front 480.) The judgment should therefore have restraint.'" (Jean v. Nelson (1985) 472 1,000 feet of a residential zone. Strip de- and rear entrances. The management j been sustained, for a reviewing court must U.S. 846, 854, 105 S.Ct. 2992, 2997, 86 velopment dominates the city's commercial would leave the rear door open, evidently i sustain a judgment if the result was cor- L.Ed.2d 664.) The federal high court zones; therefore, as the city conceded at without proper supervision, and patrons S rect,no matter that the trial court gave the Jg54has commanded all federal courts to fol- - trial,the distance rules are an effective ban would wander between Chuck's and the wrong legal reason for its decision. (Inter- low the rule. (Ibid.) And it is a principle JE52on places like Chuck's. But the law also back alley, which ineffectually separated I national etc. Workers v. Landowitz(1942) of decisionmaking to which the appellate provides that Chuck's may operate in any the store from a historically distinguished 20 Cal.2d 418, 423, 126 P.2d 609 [even if courts of every other state in the United commercial zone, regardless of the afore- row of residences. Chuck's patrons would, court erred in its analysis of ordinance's States subscribe.' Finally, a restrained mentioned distance requirements, as long among other activities, have sex in the as it is in an enclosed mall or an unenelosed bushes, wander into neighboring residents' the first cause of action as one for common law 119 Colo. 335, 203 P.2d 730, 731; City of Hart. nuisance, to distinguish it from the second ford v. Powers (1981) 183 Conn. 76, 438 A.2d mall in which it faces inward so as to be backyards,bother the neighbors with unsa- cause of action under the National City ordi- 824, 828; Agostini v. Colonial Trust Co. (1945) invisible from the street. vory requests, and discard condoms and nance, which is also statutory. 28 Del.Ch. 360, 44 A.2d 21, 22, fn. 1; State v. The city sought abatement of Chuck's as pornographic material on or near neigh- 3. The bookstore's First Amendment-protected Tsavaris (F1a.1981) 394 So.2d 418, 421-422; 1 a common law and statutory public nui- hors' residential property. Store workers status does not shield it from California's com- Farmer v. Stare(1971)228 Ga.225, l8a s.E.2d sance. The common law claim rested on an would slop buckets of pungent cleaning mon law public nuisance Taws. .(Arcara v. 647, 648; Doe a Roe (1984) 67 Haw. 63, 677 Cloud Books, Inc. (1986)478 U.S.697. 707, 106 P.2d 468,471; Poesy v.Bunney(1977)98 Idaho allegation that Chuck's was pestiferous to fluid into the back alley 2 The record S.Ct. 3172, 3177, 92 L.Ed.2d 568 [plur. opn.); 258 561 P.2d 400, 406; Haughton v. Haughton accord,AL at p. 708, 106 S.Ci.at p.3178[cone. (1979) 76 III.2d 439, 31 III.Dec. 183, 187, 394 employees or the patrons currently engaged in 2. Also see the portion of footnote 4 of the major- opn. of O'Connor,JJ; see also Grayned v. City N.E.2d 385, 389; Board of Com'rs v. Kokomo the objectionable conduct. The third witness, ity opinion describing neighbors'injuries. It is of Rockford(1972) 408 U.S. 104,92 S.Ct. 2294, City Plan Com'n(1975)263 Ind.282,330 N.E.2d who lived behind the bookstore, testified that important to note,however,that the references 33 L.Ed.2d 222; cf. People ex rel. Arcara v. 92, 96; In Interest of Chad (Iowa 1982) 318 she continued to be bothered by patrons even in that footnote to indoor conduct,distasteful as I Cloud Books, Inc. (1986) 68 N.Y.2d 553, 510 N.W.2d 213, 216, fn. 2; State er rel. Fatzer v. after the fence was constructed and that her that conduct might be to most people, do not N.Y.S.2d 844,503 N.E.2d 492[closing bookstore Barnes(1951) 171 Kan.491, 233 P.2d 724,726; neighbors were also bothered. Her testimony describe a nuisance, for the actionable injury as nuisance impermissibly burdened freedom of Preston v. Clements(Ct.App.1950) 313 Ky. 479, did not establish a common law nuisance as a presumably would be neither to others on their expression under New York Constitution if less- 232 S.W.2d 85, 88; Benson&Gold Chev. v. La. matter of law, however. own property nor to the possessor of the indoor er sanctions would end nuisance]; but see fn. Motor Veh. Com n (La.1981) 403 So.2d 13, 23; 1. The First Amendment does not prevent the premises. (See Mangini v. Aerojet-General 12,post.) State v.Com r of assford(Me.1982)440 A.2d 1059,1061; state from suppressing obscenity(Roth v.United Corp. l.Rptr.230 Ca1.App.3d 1125, 1133-1137, 4, (Love v. Fulfard(A1a.1983) 442 So.2d 29, 33; App.1977)80or and Md. 14,371stry v.A.2d 137, 140 Fitzwater Comt. States (1957) 354 U.S. 476, 485, 77 S.Ct. 1304, 281 Cal.Rptr. 827.) Perry v. State(Alaska 1967)429 P.2d 249, 252; v. Loretta(1982)386 Mass.794, 438 N.E.2d 56, 1309, 1 L.Ed.2d 1498),but there was no conten- The common law of nuisance has been codi- State v. Church (1973) 109 Ariz. 39, 504 P.2d 59; Snyder v. Charlotte P. School Dist., Eaton tion in this case that Chuck's was selling ob- fied in our Civil Code. Thus it has a statutory 940,942[usual rule]; Bell v.Bell(1971)249 Ark. Cry.(1984)421 Mich.517,365 N.W.2d 151, 158: scene material. basis. Nevertheless,1 shall continue to refer to 959,462 S.W.2d 837,840; Lipset v.Davis(1949) Complaint Concerning Winton (Minn.1984) 350 16 12 CALIFORNIA REPORTER, 2d SERIES I , 1.11 1 yr """"i•na. w a i V. ��iL... I 1%1 3 Cal.4th 854 ( 3 Cal.4th 857 Cite ez 12 Cal.Rptr.2d 701 (cal. 1992) t iew of a reviewing court's role would as- City of Renton v. Playtime Theatres, ( opportunity—much less a reasonable one— somewhat rhetorical remark to counsel, "Is ribe no importance to a party's desire to Inc. (1986) 475 U.S. 41, 106 S.Ct. 925, 89 for Chuck's to operate in National City. there any question in your mind that not in esolve the case on constitutional grounds L.Ed.2d 29 (Renton), the leading case in ! Because such a ban is patently unconstitu• a million years would Plaza Bonita, or T& r lower courts' failure to address the com• this areas held that an ordinance that regu• ; tional, the city also purported to give sexu- C, or South Bay Plaza rent to Mr. Wiener ion law claim. (See United States v. lates sexually oriented but First Amend- I ally oriented businesses the opportunity to [defendant] ...?"e ocke 1985) 471 U.S. 84, 92, 105 S.Ct, locate in an unobtrusive mall location. But ( ment-protected establishments must pro- � The unavailability of the city's entire 785, 1791,85 L.Ed.2d 64; United States v. vide for alternative avenues of communica- i as the record reveals,the city's exception is commercial area, including the three en- '.I.O. (1948) 335 U.S. 106, 110, 68 S.Ct. tion, and that these avenues must be rea- meaningless—the opportunity it provides is closed malls,left only the possibility of new 349, 1351 92 L.Ed. 1849; TroyState Uni ! purely chimerical. sortable. (Id. at p. 50, 106 S.Ct. at p. 930.) ; construction that would fulfill the city's •ersity v. Dickey (5th Cir.1968) 402 F.2d Moreover, the burden lies with the govern- i j1s6The record discloses that there were concealment requirements. In that regard, ",15, 516.) ment to show that the reasonable alterna- only three existing locations that could ful- defendant's expert witness Clifford Beck— The constitutional discussion is not nec- tives exist. (Ibid.; see also Playtime The- fill the mall requirements: the Plaza Boni- a redevelopment consultant with 40 years' .�ssary to reach the result that the Court of aters, Inc. v. City of Renton(9th Cir.1984) ` ta,Sweetwater Town&Country,and South construction experience in shopping centers kppeal's judgment must be reversed. It 748 F.2d 527,538.) Though Renton upheld Bay Plaza shopping centers. A witness for and an expert in mall development—testi- :herefore may be deemed a�55dictum, un- that city's dispersal ordinance, it made ! defendant, Tony Solis, testified that none tied it would cost $6.5 million to build a necessary to the judgment. (Bakke v. St. clear, in line with its general statement at I of the three shopping centers would lease small inward-facing mall that would meet Thomas Public Sch. Dist. No. 48 (N.D. page 50 of 475 U.S., at page 930 of 106 to an adult bookstore. At South Bay Plaza the requirements? More significant yet 1984) 359 N.W.2d 117, 120.) S.Ct.,that the First Amendment requires a the leasing agent told him that the center was Beck's uncontradicted testimony that II city to "refrain from effectively denying would not rent to a business like Chuck's. in National City it would require two to . a reasonable opportunity to open and At Town & Country he found out from five yearS_LR57merely to assemble the prop- As indicated above, the constitutional is- operate an adult theater within the realtors that an existing lease to Circuit erty—from thirty different landowners— sue should be of no precedential impor- city...." (Id. 475 U.S. at p. 54, 106 S.Ct. City specified either that Circuit City was and financing needed to build the most tance. But because the majority opinion at p. 932, italics added.) forbidden to sublet to an adult bookstore or uncomplicated and minimally sized mall contains a gratuitous commentary on the that the mall was forbidden to lease any that would meet the city's rules. constitutionality of the National City ordi- With these principles in mind, let us ex- space to such a business. At the third and nance,I offer my own views on the subject. amine in greater detail the facts of this final possible location, Plaza Bonita the In sum, defendant proved that the city j The record establishes conclusively that case as revealed at trial. � had effectively denied him 'a reasonable character of the mall was apparently suffi- opportunity to open and operate an adult as applied to a sexually oriented business The city's planning director testified that ciently genteel that Solis did not even in- [business]...." (Renton, supra, 475 U.S. the National City ordinance cannot pass the distance requirements, taken by them- quire about the possibility of entering into at p. 54, 106 S.Ct. at p. 932.)8 To reach constitutional muster. selves,imposed a de facto ban,denying any a lease but merely surveyed the site and y any other conclusion is to ignore commer• N.W.2d 337. 343. fn. 9; Kroll v. Van Cleave Transit Management Co. (1971) 224 Tenn. 721. took photographs of existing businesses. cial reality as well as the First Amend• (Miss.1976) 339 So.2d 559, 563; State ex ref. 462 S.W.2d 495,498; Courtney v. State(Tex.Ct. In sum, no existing site was available to ment's command. "There can be no doubt Union Elec. v. Pub. Serv. Com n (Mo.1985) 687 App.1982)639 S.W.2d 16, 17; Goodsel v.Depart- Chuck's, a fact that led to the trial court's that bookselling is a constitutionally pro- S.W.2d 162, 165 & fn. 4; Board of Com rs of ment of Business Regulation (Utah 1974) 523 Flathead County v.Eleventh Judicial Dist. Court P.2d 1230, 1232; Watkins v.Ford(1918) 123 Va. 6. At times the witnesses seemed bemused or (Maj.opn.,ante,p.705 of 12 Cal.Rptr.2d,p.227 (1979) 182 Mont.463,597 P.2d 728,731; State, .268,96 S.E. 193, 194; State v.Clarke(1985) 145 incredulous at the kinds of questions they were of 838 P.2d.) This conclusion implies that the Department of Motor Vehicles v. Lessert (1972) Vt.547,496 A.2d 164, 167; Tommy P. v. Board being asked, because the shopping centers un- burden lies on the bookseller, not the city, to 188 Neb. 243, 196 N.W.2d 166, 169; Spears V. of County Com'rs (1982) 97 Wash.2d 385, 645 willingness to rent to an adult bookstore seemed show that the ordinance does not offend the Spears (1979) 95 Nev. 416, 596 P.2d 210, 212; P.2d 697, 700; Priester v. Hawkins (1981) 168 self-evident to them. Solis testified: First Amendment. The law, however, is other- State v.Hodgkiss(1989) 132 N.H.376,565 A.2d W.Va. 569, 285 S.E.2d 396, 398; Labor&Farm "0. In your experience in the commercial wise. (Morscott, Inc. v. City of Cleveland 1059, 1061; Donadio v. Cunningham (1971) 58 Parry v.Elections Bet of Wis. (1984) 117 Wis.2d real estate business, is it expected that retail (N.D.Ohio 1990) 781 F.Supp. 500, 503; World NJ.309,277 A.2d 375,384; Property Tax Dept. 351, 344 N.W.2d 177, 179; Stambaugh V. State shopping centers such as the ones I've men- Wide Video v. City of Tukwila (1991) 117 v. Molycorp., Inc. (1976)89 N.M.603, 555 P.2d (Wyo.1977) 566 P.2d 993, 996.) tioned would not rent to adult entertainment Wash.2d 382,389-390,816 P.2d 18,21; see also 903, 905-906; Peters v. New York City Housing businesses? Renton,supra, 475 U.S.at p.50, 106 S.Ct.at p. Authority(1954) 307 N.Y. 519. 121 N.E.2d 529, 5. The majority opinion refers both to Renton "A. That's correct. They ordinarily wouldn't 930.) 531; Williams v. Williams(1980)299 N.C. 174, and to Young v. American Mini Theatres, Inc. rent. 261 S.E.2d 849, 859; Murie v. Cavalier County (1976)427 U.S.50,96 S.Ct.2440,49 L.Ed.2d 310 "Q. Would not rent? 8. There was one other possibility for relocation: (1938) 68 N.D. 242, 278 N.W. 243, 246; Green- as landmark cases. But Young was a plurality "A. Would not rent to an adult bookstore. the addition,to an existing strip mall of the type hills Home Own. Corp. v. Village of Greenhills opinion,and the high court recently disparaged "Q. And is that generally known by people ubiquitous in southern California,of an inward- (1966) 5 Ohio St.2d 207, 215 N.E.2d 403. 407; it. (R.A.Y. v. City of St. Paul (1992) 505 U.S. who are in the commercial real estate business? facing adult bookstore. Ironically, the city es- Schwartz v.Diehl(Okla.1977)568 P.2d 280,283; — —,112 S.Ct.2538,2546.120 L.Ed.2d 305, "A. Well, if you don't know it, you'll soon tablished through defendant's witness Beck that State v.House(1985)299 Or.78,698 P.2d 951, 322.) Also,in diametrical contrast to this case, find out." this too was impossible: the loss of parking space would make the entire mall uneconomical 496 Ballow v. State Ethi186. 1 Commission Town o Young considered a dispersal ordinance pp.71- 7. The majority opinion indirectly acknowledges and might violate zoning laws,and the existing 496 Pa.127,436 A.2d 186, 187&fn.2; Town of many locations available. (427 U.S. at pp. 1 Barrington v. Blake (R.I.1987) 532 A.2d 955; 72,En.35,96 S.Ct.at p.2453,fn.35.) For these this testimony, but then states that "no direct tenants would 'beef like mad" about the ob- Floyd v. Thornton Blake (R .19 S.C. 32 68 S.E.2d955; reasons, I shall concentrate f n Renton as the evidence was presented regarding the economic struction of their all-important exposure to the 334,339 [general rule]; State v. Big Head(S.D. significant United States Supreme Court author* viability of such an enterprise,or the ability of street. In sum,such a modification would not 1985) 363 N.W.2d 556, 559; Watts v. Memphis ity. respondents to undertake such development." be feasible. 12 CALIFORNIA REPORTER, 2d SERIES Vk;UrLZ V. 1V1CCLANAriAA 718 3 Cal.4th 857 3 Ca1.4th 860 Clle as 12 Ca1.Rptr2d 719(Cal. 1992) tected activity or that closing a bookstore But the Renton ordinance did not limit The complete cynicism of National City's concurring and dissenting opinion in People for a year may have a substantial impact the location of adult bookstores to specific ordinance is easily exposed. For the ordi- v. Superior Court (Lucero), supra, 49 on that activity." (People ex rel. Arcara v. physical facilities, as does the ordinance at nance permits adult bookstores to locate Cal.3d at pp. 28-34, 259 Cal.Rptr. 740, 774 Cloud Books, Inc., supra, 68 N.Y.2d 553, bench: it merely specified certain distance precisely where the values the ordinance is P.2d 769.) 558,510 N.Y.S.2d 844,847, 503 N.E.2d 492, requirements. (Renton, supra, 475 U.S.at ostensibly designed to protect—what the The judgment of the Court of Appeal 495 [interpreting New York Constitution].) p. 43, 106 Ls5sS.Ct. at p. 926; see also Play- majority opinion refers to as "the moral should be reversed on the basis of common time Theaters, Inc. v. City of Renton, climate of the community as a whole"(maj. tx Relying on Renton, supra, 475 U.S. 41, law public nuisance. The balance of the 106 S.Ct. 925, the majority opinion implies supra, 748 F.2d at pp. 529-530.) Within opn., ante, p. 710 of 12 Cal.Rptr.2d, p. 232 majority opinion cannot be supported. that defendant's inability to locate his busi- the 520 acres not occupied by the incompa- of 838 P.2d)—are entirely vulnerable. A tible existing facilities, an adult bookstore family-oriented shopping mall, _L959with ness anywhere in National City does not owner was free to build or buy a small small children wandering about and adoles- KENNARD, J., concurs. violate the First Amendment because the mom-and-pop store, for example, and there cents congregating after school would only impediments to doing so are economic. ' w (Maj.opn.,ante, p.712 of 12 Cal.Rptr.2d,p. operate the book business. Renton's ordi- seem t0 be the last place the city would O SKEY NUNBIA SYSTEM 234 of 838 P.2d["The Constitution does not nance, in sum, provided for "'[a]mple, ac- prefer an adult bookstore to locate, even if T saddle municipalities with the task of en- cessible real estate."' (475 U.S. at p. 53, city officials truly believed the mall owner suring either the popularity or economic 106 S.Ct. at p. 932.) The United States i would permit it. 838 P.2d 241 In conclusion, the record shows National success of adult businesses."].) That state- Supreme Court was declaring only that the 3 Cal.4th 860 'Cit s ordinance to be in effect a complete ment betrays a fundamental misunder- city need not locate economically advanta- Ys�The PEOPLE, Plaintiff geous sites for an adult bookstore, any standing of Renton's teaching. more than it need do so for a Shakespeare- proscriptions First Amendment-protected and Respondent, p an festival an art museum, a symphony adult businesses. The bookstore cannot The Ninth Circuit explained that the Ren locate anywhere now, and it would take V. ton ordinance set aside 520 acres on which hall, or a repertory movie theater. several years for its owners to be able to Wayne Russell McCLANAHAN, an adult bookstore could be located, but That is not the situation before us. The build an entire commercial mall, assuming Defendant and Appellant. noted that the district court had found that city conceded the distance rules ban adult it is feasible and they can afford to do so. No. S021913. "a substantial part" of the 520 acres was bookstores. The record reveals the alter- Therefore, under the First Amendment as occupied by existing businesses or industri- natives to be purely illusory. Alas, those interpreted in Renton, the ordinance can- Supreme Court of California, al facilities not easily adapted—if adaptable facts do not appear to perturb the majority. not stand:" In Bank. at all—to an adult bookstore. (Playtime If the law's majestic equality can forbid Oct. 29 1992. Theaters, Inc. v. City of Renton, supra, rich and poor alike to sleep under bridges,9 III ' 748 F.2d 527,534.) The high court rejected then apparently in the majority's view the National City is said to be a venerable the Ninth Circuit's view that these impedi- law may with equally lofty impartiality per- munickQality more than 100 years old. No Defendant was convicted in the Superi- ments amounted to a substantial restriction mit an adult bookstore to locate anywhere doubt. I must add that the First Amend- or Court, Kern County,Nos. 38452, 38708, on speech. The court stated: "That re- available to Saks Fifth Avenue. Renton, ment is also venerable,it being the founda 38925, Richard J. Oberholzer,J., of narcot spondents must fend for themselves in the however, does not countenance such prohi- tion of a free society. (See generally my ics offenses,some of which defendant com- real estate market, on an equal footing bitions disguised as mere restrictions: im w•ith other prospective purchasers and les- mediately after the statement that the law ton,475 U.S.at 53-54. 106 S.Ct.at 932." (Id.at Moreover, I find irrelevant Justice Baxter's sees, does not give rise to a First Amend- does not require cities to guarantee sites at P. 1109.) statement that there was no evidence a clean, ment violation.... Me have never sug bargain prices, the court held that a city This court's recent decision in People v.Supe- well maintained bookstore would be unable to rior Court (Lucero) (1989) 49 Cal.3d 14, 259 acquire space in a mall. He fails to consider gested that the First Amendment compels must"refrain from effectively denying ... Cal.Rptr.740,774 P.2d 769 adds nothing to the that the burden is on the city to show that the Government to ensure that adult the- a reasonable opportunity to open and oper- majority's constitutional surmises. The opinion reasonable alternative avenues of communica- aters, or any other kinds of speech-related ate an adult theater within the city...." only briefly alludes to the economic-impact dis- tion exist. The city offered no evidence that a businesses for that matter, will be able to (475 U.S.at p.54, 106 S.Ct.at p.932,italics cussion in Renton and does not contravene my mall would lease space to an adult bookstore. discussion of that issue here. (See 49 Cal.3d at obtain sites at bargain prices." (Renton, added)—an opportunity to obtain "'Calm- p. 25, fn. 6, 259 Cal.Rptr. 740, 774 P.2d 769.) 12. In stating that the Court of Appeal's judgment be reversed,I do not mean to sanction th supra, 475 U.S.at p.54, 106 S.Ct.at p.932, ple, accessible real estate'" (id. at p. 53, 11. Justice Baxter's own reference to the third uses of the Civil Code's restatement of the come italics added.) 106 S.Ct. at p. 932, italics added).10 witness's testimony in footnote I of his concur- mon law of nuisance as a pretext for ridding a ring opinion, ante, makes unpersuasive his community of First Amendment-protected activ- 9. Anatole France, Le Lys Rouge (as printed by adult businesses to operate(see particularly pp• statement that the neighbors did not establish ity. The federal high court has also cautioned Calmann-Levy, Editeurs (1918)), chapter 7, 1107-1109). The court concluded,"To hold ... an abatable common law nuisance as a matter that it would take a dim view of any such page 118. that there are adequate alternatives available for of law. But if he is correct on this point, then action. (Arcara v.Cloud Books,Inc.,supra,478 expression of this sort would make a mockery Renton,supra,475 U.S.41,106 S.Ct.925,applies U.S.697, 707,fn.4, 106 S.Ct.3172, 3178, fn.4; 10. See also Walnut Properties, Inc. v. City of of First Amendment protections and would ren- squarely; and without state law complications accord id at p. 708, 106 S.Ct.at p.3178[cone. Whittier (1988) 861 F.2d 1102, in which the der meaningless the Supreme Court's admoni- there can be no obstacle to the United States opn. of.O'Connor, J.).) There is no such risk Ninth Circuit held unconstitutional a city ordi- tion that an ordinance must not 'effectively Supreme Court hearing the case and correcting here, however: Chuck's was proven to be a nance that was more generous than is National den[yj ...a reasonable opportunity to open and the majority opinion's faulty constitutional rea. common law public nuisance and the city's ac- City's in that it would at least allow a handful of operate an adult theater within the city.' Re- soning. tion was not pretextual in that regard. 49 CaUd 12 + 49 ual.3d 19 PEOPLE v. SUPERIOR COURT (LUCERO) 740 259 CALIFORNIA REPORTER 1 Cite as 259 Cal.Rptr.740(Cal. 1989) investigate a workers' compensation claim, adult bookstores within a certain distance nesses do not contribute to the blighting of is such a person. Moreover, in Unruh we 774 P.2d 769 of any other two regulated uses or any surrounding neighborhoods. (See Chap' held the agents of the insurer were also residential zone. 21.51.010, "Purpose.") It was patterned a9 Cal.3d 1a liable for civil damages. See publication Words and Phrases after a Detroit adult entertainment zoning ! for other judicial constructions and �aThe PEOPLE, Petitioner, J ordinance upheld in Young t. American It seems unavoidable to me that the hold- ( definitions. Mini Theatres, Inc. (1976) 427 U.S. 50, 96 ing of the majority that"the workers'com- V. if 3. Constitutional Law 0-90.4(4) S.Ct. 2440, 49 L.Ed.2d 310. pensation system encompasses all disputes The SUPERIOR COURT of Los Angeles Zoning ordinance regulating adult the The question before us concerns the a ret over coverage and payment" (maj. opn., County, Respondent; aters would be unconstitutional if inter iate constitutional standard b h ante, at p.736 of 259 Cal.Rptr.,at p.765 of i P p ro r p y which 774 P.2d)is contrary to Unruh. In Unruh Jose Ronillo Abogado LUCERO et al., ed so as to prohibit a single use or single to define the "use" necessary to make a as well pas in this case, the worker had j showing of an adult motion picture. U.S. movie theater an "adult motion picture the- L Real Parties in Interest. been awarded compensation. The claims C.A. Const.Amend. 1. ater"within the meaning of the ordinance.' made by the worker in Unruh arose out of No. S002438. 9. Constitutional Law <-90.4(4) In Pringle v. City of Covina (1981) 115 the acts of the investigator in the course of Ca1.App.3d 151, 171 Cal.Rptr.251 the Court attempting to cast doubt on the worker's Supreme Court of California. I Antiskid row ordinance regulating of Appeal held that an adult entertainment claim for compensation. She allegedly suf- adult movie theaters is constitutional if in- June g y June 29, 1989. ; zoning ordinance cannot be enforced fered mental distress when the films taken terpreted to prohibit a regular and substan- against an adult motion picture theater un- durin the surveillance were shown at a Rehearing Denied Aug. 24, 1989. tial course of conduct, which does not nec , g , less a preponderance' (meaning "more of- hearing in the workers' compensation pro- t essarily require that they be used over 50% ceeding. These acts were clearly"disputes People sought writ of mandate to com- ? of the time for that conduct. U.S.C.A. ten than not") of the "adult" films shown over coverage and payment" of workers' pel Superior Court to vacate judgment i Const.Amend. 1. by the establishment have as their domi- compensation benefits, yet they were which had granted peremptory writ of r nant theme the depiction of the ordinance's t nevertheless held to be cognizable in a civil mandate directing municipal court to sus- enumerated sexual activities.i action against the insurer's agents and the tain demurrers to charge of violation of i __UTJohn A. Vander Lans, City Prosecutor, In following Pringle, subsequent cases investigator hired by the insurer. How can adult theater zoning ordinance. The Court ± Robert R. Recknagel, Asst. City Prosecu- interpreting adult entertainment ordi� it be said, therefore, as do the majority, of Appeal, 244 Cal.Rptr. 502, denied re- tor,and Gerry L. Ensley,Deputy City Pros- nances have required "use" to be defined that "all disputes over coverage and pay quest for writ of mandate. Review was ecutor Long Beach, for petitioner. as "over 50 percent." (Strand Property ment" of benefits must be brought under granted, superseding opinion of Court of ' _LisNo appearance for respondent. Corp. v. Municipal Court (1983) 148 Cal. the workers' compensation system? App.3d 882, 889, 200 Cal.Rptr. 47 [constru- - Appeal. The Supreme Court, Lucas, C.J., i Fleishman, Fisher & Moest, Stanley Fle- Finally, the majority unjustifiably take held that: (1) ordinance would not be con ishman, Barry A. Fisher, Robert C. Moest ing "use" defined under the ordinance as a judicial notice of the "fact" that the "firms stitutional if interpreted to apply to a sin- and David Grosz, Los Angeles, for real "substantial or significant portion of the often use the appellations 'administrator' le use of a theater for showing adult total presentation time to mean a "prepon and 'adjuster'interchangeably and that the g g parties in interest. g films, but (2) ordinance was constitutional derance" that must be defined as "over 50 activities of the two types of businesses if applied to a regular and substantial I LUCAS, Chief Justice. percent"]; Kuhns v. Board of Supervisors often overlap.' (Maj. opn., ante, fn. 9, at (1982) 128 Cal.App.3d 369, 376, 181 Cal. course of conduct. This case involves the enforcement of a p. ?36 of 259 Cal.Rptr., fn. 9, at p. 765 of , ftptr. 1 [construingL9'use" defined as a 774 P.2d.) These matters are not "[f]acts Affirmed, i Long Beach zoning ordinance that prohibits "substantial or significant portion of stock and propositions of generalized knowledge Mosk,J.,filed an opinion concurring in ? the location of "adult entertainment busi- in trade" in adult bookstore ordinance to that are so universally known that they part and dissenting in part. ; nesses"(including adult motion picture the- mean "over half of a bookstore's stock"].) cannot reasonably be the subject of dis aters) within 500 feet of residential areas, Moreover, the present Court of Appeal be- pate." (Evid.Code, § 451, subd. M.) In Kennard, J., filed an opinion concur or 1,000 feet of public schools or churches lieved the People were bound by Pringle's the absence of evidence, the subject was ring in part and dissenting in part in which (Long Beach Mun. Code, ch. 21.51, hereaf- preponderance standard. (Post, at p. 742- apparently unknown to the trial judge and Broussard, J., joined. j ter Chapter 21.51). The ordinance is de- 743 of 259 Cal.Rptr., at p. 771-772 of 774 to the justices of the Court of Appeal—and ! scribed as a "non-cluster" or "Anti-skid P.2d.) We disagree. As we explain, al- I confess it is not within my "generalized 1. Judgment a648 j Row" ordinance because it is designed to though municipalities are free to adopt knowledge." Prior civil action challenging applica- discourage development of a "skid row" such a test in defining "use" under an I would hold that the Court of Appeal tion of zoning ordinance to adult motion area by limiting the harmful secondary ef- adult entertainment ordinance,we conclude correctly denied the petition for a writ of picture theater would not be given collat- fects of adult entertainment businesses on Pringle's preponderance standard is not mandate. eral estoppel effect in subsequent criminal adjacent areas, and by insuring such busi- constitutionally compelled. In place of prosecution. 1. The ordinance defines an adult motion picture lacing to specified sexual activities or specified W theater as"an enclosed building with a capacity anatomical areas for observation by patrons O SI([YNUNB[ASYTItN 2. Zoning and Planning e-290 T of fifty or more persons used for presenting therein:' (Chapter 21.51, § 21.51.020, subd. "Anti-skid Row ordinance" is one material distinguished or characterized by their (A)(2).) Chapter 21.51 is set forth in the appen• which prohibits local adult theaters and emphasis on matter depicting,describing or re- dix. 742 259 CALIFORNIA REPORTER 49 Cal.3d 19 i 49 Cal.3d 22 PEOPLE v. SUPERIOR COURT (LUCERO) '74`,� Cite as 259 Cal.Rptr.740(Cal. 1989) such a test, we adopt a constitutional stan- theater in violation of Chapter 21.51 by 1 the Court of Appeal cited with approval in the revocation of Walnut's operating li- dard similar to that recently approved by exhibiting an X-rated movie on a particular I Tollis, Inc. v. San Bernardino County cense. Walnut sued the city, challenging the United States Supreme Court and sev. day within the distances proscribed by the (9th Cir.1987) 827 F.2d 1329, which held the constitutionality of the ordinance. eral state courts: cities may zone the loca- ordinance. i that a "single use" interpretation of an (Walnut Properties, supra, 100 Cal.App.3d Lion of theaters that show, on a regular Real parties filed demurrers to the com- adult entertainment zoning ordinance was at p. 1020, 161 Cal.Rptr. 411.) After con- basis, films characterized by an emphasis plaints on the ground that exhibition of a unconstitutional in the absence of evidence ceding that its theater was an "adult enter- on the "specified sexual activities" or single adult film, as alleged in the com- "that a single showing of an adult movie tainment business" as defined by the ordi- "specified anatomical areas" identified in plaints, did not make the theater an adult would have any harmful secondary effects nance, Walnut argued the ordinance violat- the ordinance, where such films constitute entertainment business under the prepon- on the community." (Id. at p. 1333.) The ed the First Amendment's freedom. of a substantial portion of the films shown or derance standard established by Pringle, Court of Appeal then denied the People's speech clause as an unconstitutional regu- account for a substantial part of the reve- supra, 115 Cal.App.3d 151, 171 Cal.Rptr. petition for writ of mandate because the lation of constitutionally protected conduct. complaints "did not allege, in accordance In addition, Walnut claimed that the ordi- court overruled , Hues derived from the exhibition of films 251. After the municipalP g (hereafter "the regular and substantial the demurrers, real parties petitioned the with the requirements of Pringle, that the nance was vague, overbroad and vested course of conduct" standard). (See, e.g., superior court for a peremptory writ of I preponderance of films exhibited and ob Public officials with impermissible discre Renton v. Playtime Theatres, Inc. (1986) mandate directing the lower court to sus- i served by patrons at the Lakewood Theater tion to enforce its terms. (Id. at p. 1021, 475 U.S.41, 55,fn.4, 106 S.Ct.925,933,fn. tain the demurrers. The superior court were 'distinguished or characterized by 161 Cal.Rptr. 411; see,e.g.,Burton v. Mu- 4,89 L.Ed.2d 29; Young, supra,427 U.S.at granted the writ with leave to amend. The 1 their emphasis on matter depicting,describ- nicipal Court(1968) 68 Ca1.2d 684, 68 Cal. p. 59,96 S.Ct. at p. 2447; see also Town of People declined to amend and instead re- ! ing or relating to specified sexual activities Rptr. 721, 441 P.2d 281.) The ordinance Islip v. Caviglia (1988) 141 A.D.2d 148, quested the Court of Appeal to issue a writ or specific anatomical areas' (Chapter 21.- survived constitutional scrutiny, however, 151,fn.2,532 N.Y.S.2d 783,784-785,fn.2.) of mandate to compel the superior court to 51.020(A) ...)as those terms are defined in after the Court of Appeal found Young, vacate its judgment. Chapter 21.51.020(B)(1-7) and (C)(1-2) of supra, 427 U.S. 50, 96 S.Ct. 2440, disposi- I. Facts [1] The Court of Appeal denied the the Long Beach Municipal Code." In re tive of the constitutional issues. (Walnut 1. pp Properties, supra, 100 Cal.App.3d at p. Real parties in interest Jose Ronillo Abo- writ and rejected the People's contention viewing the Court of Appeal opinion, we i examine the People's argument requesting 1023, 161 Cal.Rptr. 411.) gado Lucero, Walnut Properties, Inc., and that a single showing of an adult film ; Jimmie Johnson (hereafter real parties) makes the theater an adult motion picture we affirm as constitutionally permissible a [21 The two Detroit ordinances at issue were charged in separate misdemeanor theater within the meaning of the zoning "single use" standard. in Young were termed "Anti-skid Row" complaints with numerous counts of unlaw- ordinance. The court first rejected the ordinances because they prohibited (except fully establishing an adult entertainment People's argument that the "single use" _L1II. Background where a special waiver was obtained)locat- business in violation of Chapter 21.51. standard adopted by the Court of Appeal in i A. Constitutionality of adult entertain- ing adult theaters and adult bookstores Walnut Properties v. Ussery (Cal.App.)s ; ment zoning within 1,000 feet of any two other"regulat- ed uses" or within 500 feet of any resi- wood Theater, has two screens: one screen should control the outcome of the present In August 1977 Walnut Properties, Inc. litigation under the law of the case and dential zone. The ordinances definition of shows genera]release films and one screen g (hereafter Walnut) obtained a business li- an"adult motion picture theater"was iden- shows adult films. Each count of the mis collateral estoppel doctrines.5 cense to operate a motion picture theater tical to that of the Long Beach ordinance demeanor complaints specifically alleged Next,in rejecting the People's contention 1 on the representation that it intended to we discuss here. (Young, supra, 427 U.S. real parties unlawfully established an adult that a "single use" standard should apply, i exhibit nonadult films. (Walnut Proper- at pp. 53-54, fn. 5, 96 S.Ct. at pp. 2444- i ties v. City Council of the City of Long 2445, fn. 5.) 2. We ordered the opinion not published in the Court of Appeal's decision not to apply the col- Official Reports b order dated June 24, 1986 lateral estoppel doctrine to defendants. First,it Beach (1980) 100 Cal.App.3d 1018, 1024, p y PP i The plurality, led by Justice Stevens, up (B005781). is highly questionable whether a prior determi• ; 161 Cal.Rptr. 411.) In November of that 3. The Ussery case involved the same parties, nation against a party in a civil action may be � year, following the high eourt's decision in held the ordinances on the basis they were applied as a collateral estoppel against that Young supra 427 U.S. 50 96 S.Ct. 2440, not directed at restricting speech, but rath- theater and ordinance as in the present case. same parry in a criminal action. (See Ashe v. er were reasonable time, place and manner The court in Ussery observed that the only way Swenson (1970) 397 U.S. 436, 90 S.Ct. 1189, 25 the city enacted Municipal Code Chapter regulations necessary to further the city's to prevent the undesirable effects of adult the- 0 L.Ed.2d 469.) In addition, as the Court of Ap 9120.41, which was amended in 1979' to aters on the surrounding neighborhoods,and tSignifiCant interest in preserving the im lement the zoning ordinance according to peal observed: "[I]f Ussery were given collateral become Chapter 21.51, the ordinance at is- implement g g estoppel effect in this case, the single instance ii character of its neighborhoods. The the intent of its drafters,was to prohibit any use PPe t sue in the present case. The 1979 ordi- of the theater for showing adult motion pie- standard would apply to Lakewood Theater and '` nance ]s substantially Similar t0 the 1977 Young Court concluded that as long as Lures. the preponderance standard enunciated in Prin- y such ordinances were enacted to regulate 1n rejecting the People's law-of-the-case and gle [115 Cal.App.3d 151. 171 Cal.Rptr. 2511 version—its primary purpose being to reg picture the location of adult theaters in order to collateral estoppel arguments, the Court of Ap- which is the only published decision on this ulate the location of adult motion issue would apply to all other theaters. Such a protect neighborhoods from deterioration, peal observed,"[t]he cases before us are crimi- PP Y theaters. After the ordinance was passed nal ones instituted well after Ussery,a civil case, result would clearly be unjust and would dis- Walnut began showing adult films. increased crime and other harmful second- became final. Because the criminal cases pres- serve the public interest. (See Consumers Lobby g g ary effects, they did not offend either the ently before us and Ussery are not the 'same Against Monopolies v. Public Ulds. Com. (1979) In December 1977, shortly after Walnut First Amendment or the Equal Protection case' the doctrine of law of the case does not 25 Cal.3d 891,902 [160 Cal.Rptr. 124,603 P.2d opened its theater, the Long Beach City Clause of the Fourteenth Amendment. apply." We agree. We also agree with the 411.)" Council instituted culminatin proceedings g (Young, supra, 427 U.S. 50, 68-73,96 S.Ct. 744 rrvr>.n v. �urnntux t.vux'i tLu�>:xvt 259 CALIFORNIA HEYOH'1'!~:K 49 Ca1.3d 22 Clte as 259 CalAptr.740(Cal. 1989) 1 were too vague and chilled freedom of ex 171 Cal.Rptr. 251, shed further light on the 2440, 2451-2454; see Developments in the enacted a "non-cluster" zoning ordinance Law—Zoning (1978) 91 Harv.L.Rev. 1427, prohibiting location of adult entertainment pression." (Pringle, supra, 115 Ca1.App.3d interpretation of language similar to that 1557-1559.)4 theaters within 500 feet of residential and at p. 155, 171 Cal.Rptr. 251.) The defen- at issue here. Both involved constitutional Based on the high court's reasoning in other enumerated areas. The ordinance dant city argued that the ordinance was challenges to adult entertainment zoning Young, supra, 427 U.S. 50, 96 S.Ct. 2440, employed a substantially similar definition valid under Young, supra, 427 U.S. 50, 96 ordinances similar to the one examined by I S.Ct. 2440, and asserted that the term the court in Young. the Walnut Properties Court of Appeal of an adult theater as the Long Beach I rejected Walnut's First Amendment argu• ordinance we review herein. (Post, at fn. ; "use" should be construed as meaning In Renton v. Playtime Theatres, Inc., ment. The court reasoned, "It is clearly 1; see Covina Mun.Code, § 17.04.026.2.) i "`[o]ne showing of a film described in the supra, 475 U.S. 41, 106 S.Ct. 925, two the- within the power of the City to provide that ordinance." (Pringle, supra, 115 Cal. ater operators whose theaters exhibited P Y P The ordinance declared its purpose was P no motion picture theatre can be operated " to insure that adverse effects [arising App.3d at p. 156, 171 Cal.Rptr. 251.) adult films and were located within an area in a residential area or near a public school. from the "serious objectionable operational j The Pringle court recognized that it was proscribed by adult entertainment zoning The thrust of Justice Stevens' opinion in characteristics" of adult theaters] will not faced "with an actual, not hypothetical, restrictions challenged the Renton ordi- Young was that it was also within the contribute to the blighting or downgrading claim of uncertainty deterring the exercise nance under the First and Fourteenth City's power to classify theatres according of protected speech" (115 Cal.App.3d at p. Amendments. The high court determined to the content of the films exhibited, so of the surrounding neighborhood and will 160, 171 Cal.Rptr. 251), and that it was that the ordinance was a valid "time, place long as that classification has a reasonable not unreasonably interfere with or injure bound to construe the legislation "if rea- and manner" measure because it did "not basis. The 'adult entertainment' classifica nearby properties."' (Id. at p. 154, 171 sonably possible to preserve its constitu- ban adult theaters altogether, but merely lion is a reasonable one. [11] Walnut has Ca1.Rptr. 251, quoting from Covina Mun. tionality." The court first construed the provide[d]that such theaters[could]not be presented no evidence that the City's ordi- Code, § 17.04.026.2.) ordinance's applicability regarding the located within 1,000 feet of any residential nance in any way restricts or eliminates the The plaintiffs, a neighborhood theater j dominant or essential theme of the movie. zone, single- or multiple-family dwelling, access to the 'adult entertainment' for owner and a patron,instituted an action for (At p. 160, 171 Cal.Rptr.251.) It concluded church, park, or school." (Id. at p. 46, 106 those persons who desire to patronize it. declaratory and injunctive relief "alleging that "adult films under the ordinance in- S.Ct. at p. 928.) Next, while recognizing In fact, Walnut operates another such the- that the ordinance violated federal and i elude only films whose dominant or pre- that the Renton ordinance treated "the- ater in a different part of the City. From state guarantees of freedom of speech,due dominant character and theme is the de- aters that specialize in adult films differ records which we may judicially notice, it process and equal protection. The piction of the enumerated sexual activities ently from other kinds of theaters" (id. ai appears that Long Beach has a number of P q P y `adult' forms of entertainment operating claimed that the ordinance was unconstitu- or anatomical areas." (Ibid.) p. 47, 106 S.Ct. at p. 929), the court ob- within its boundaries." (Walnut Proper- tional on its face and, as construed to apply i Next,the court determined that the word served that the regulation "was unrelated ties, supra, 100 Cal.App.3d 1018, 1023, 161 'to the operation of a neighborhood theatre j "used" in the "ordinance's definition of an to the suppression of free expression" be- Cal.Rptr. 411.) which shows a variety of films including a i adult theatre as a building 'used for cause it did not proscribe the content of the few films which, although not obscene, ex- presenting' sexually explicit material" ren- films, but rather was concerned predomi- _L23B. Pringle's "preponderance" stan- plicitly depict sexual activity arguably with- dered the ordinance vague—and hence con. nately with the deleterious secondary ef- dard in the scope of the ordinance.' They fur- t stitutionally infirm—because it failed to in- fects of adult theaters on the neighboring In Pringle, supra, 115 Cal.App.3d 151, ther argued that the terms 'distinguished dicate "what proportion of a theatre's pro- community. (Ibid.) 171 Cal.Rptr. 251, the City of Covina had or characterized by an emphasis'and'used' gramming would constitute 'use.'" (Prin- In concluding that the ordinance was gle, supra, 115 Cal.App.3d aLL24p. 161, 171 "designed to serve a substantial govern- 4. The Young court noted that under the ordi- er of the restriction as applied to its theater." ! 251.Cal.Rptr. To reserve the Constitu nances"adult films may only be exhibited com• (Young, supra, 427 U.S. at p. 59, 96 S.Ct. at p. P ) P ment interest and allow[ed] for reasonable tional validity of the ordinance (id. at pp. alternative avenues of communication,"the mercially in licensed theaters." (Young, supra, 2447.) The court observed that"the only vague- 427 U.S.at p.62,96 S.Ct.at p.2448.) The court ness in the ordinances relates to the amount of 158, 162, 171 Cal.Rptr. 251), the Pringle Renton court stated that the Cty's sub- observed, however,that the"city's general zon- sexually explicit activity that may be portrayed " in laws require all motion picture theaters to p y y p y f court defined use' under the ordinance to stantial interest in preserving' the quality g 9 before the material can be said to be'character- mean "to practice customarily," but uali- satisfy certain locational as well as other re- ized b an emphasis'on such matter. For most P y 9 of urban life'" justified the enactment. uirements; we have no doubt that the munici• y P fied the phrase to mean "more often than Renton supra, 475 U.S. at . 50, 106 S.Ct. q films the question will be readily answerable; i ( P P pality may control the location of theaters as to the extent that an area of doubt exists,we see not.' Based on the foregoing, the court at p. 930.) Moreover, the court observed well as the location of other commercial estab- no reason why the ordinances are not 'readily adopted a "preponderance" standard. Id. lishments, either by confining them to certain y P ( that it was appropriate for Renton to have specified commercial zones or by requiring that subject to a narrowing construction by the state I at . 162 171 Cal.Rptr. 251. they be dispersed throughout the city. The courts'.... [W)e think this is an inappropriate P P ) relied on relevant studies conducted by oth- mere fact that the commercial exploitation of case in which to adjudicate the hypothetical ! er cities on the need for zoning controls of material protected by the First Amendment is claims of persons not before the Court." (ld.at C. Post-Young federal cases adult theaters in order to establish its"sub- subject to zoning and other licensing require- p. 61, 96 S.Ct. at p. 2448.) Two federal decisions decided after stantial government interest" in regulating these is not a sufficient reason for invalidating Finally, the court held that the Detroit " Young, supra, 427 U.S. 50, 96 S.Ct. 2440, adult theaters. (Id. pp. 51-52, 106 S.Ct. at these ordinances." (Ibid.) nance created no "significant deterrent effect" The Young court also rejected the theater that would justify invocation of the First and Pringle, supra, 115 Cal.App.3d 151, pp. 930-931.)5 owner's vagueness attack on the ordinances on Amendment "overbreadth" doctrine. (Young, S. The Renton court specifically stated that"Ren- 'detailed findings' summarized in the Washing- the basis that "Neither respondent ... alleged supra, 427 U.S. at pp. 59-60, 96 S.Ct. at pp• ton was entitled to rely on the experiences of ton Supreme Court's Northend Cinema [Inc. v. any basis for claiming or anticipating any waiv- 2446-2447.) Seattle and other cities,and in particular on the Seattle,90 Wash.2d 709, 585 P.2d 1153 (1978)1 746 259 CALIFORNIA REPORTER 49 cal3d 25 49 Cal.3d 27 PEOPLE v. SUPERIOR COURT (LUCERO) 747 ..USThe court further noted that the Ren- [3] The Ninth Circuit agreed with the Cite as259 Ca1.Rptr.740(Cal. 1989) ton ordinance left approximately 520 acres theater owner and found that a "single on the community arising out of a single ples, established a standard that is too showing of an adult film. We also agree high a open to use as potential adult theater loca. use' standard could not pass "constitution—with the Tollis court that a single showing tions. Accordingly, the court determined al muster as a content-neutral time, place, �rThe question then becomes whether we t ate the 'logical relationship between the the ordinance would allow "for reasonable and manner regulation" because it could of adult movie does not necessarily ere- can articulate a constitutional standard alternative avenues of communication."6 not be justified as serving a substantial evil feared and the method selected to com- that will both implement the purpose of the (Renton, supra,475 U.S. at p. 53, 106 S.Ct governmental interest in preserving the bat it." (Id. at pp. 1332-1333.)T ordinance and abide by the requirements of at p. 932.) Thus, the court concluded, the quality of urban life. (Tollis, supra, 827 Young, supra, 427 U.S. 50, 96 S.Ct. 2440, F.2d at 1332-1333. As we explain Nor do we believe, however, that Prin- and Renton, supra, 475 U.S. 41, 106 S.Ct. ordinance represented a valid governmen pp ) P gle s preponderance standard is constitu tat response to the serious problems ere- below, we believe, like the Tollis court, tionally compelled. As stated above,Prin- 925 (i.e. that an ordinance be content-neu- ated by adult theaters and met the goals of that so construed the Long Beach ordi gle would allow the zoning of adult the tral and narrowly tailored to minimize only the city in preserving the quality of life Hance would be unconstitutional. aters only if a preponderance(construed the adverse secondary effects related to "satisfying the mean "more often than not" or "most of adult entertainment establishments). The within the community while (Id. at 1,6III. A constitutional zoning Long Beach ordinance was passed specifi- dictates of the First Amendment ten") of the films shown have as their standard ten") because "[T]he city council [found] pp. 54-55, 106 S.Ct. at pp. 932-933.) dominant theme the depiction of the ordi that adult entertainment businesses be Thereafter, in 1987, an operator of an Although Tollis, supra, 827 F.2d 1329, is nance's enumerated sexual activities. not dispositive, we believe it applied the (Pringle, supra, 115 Cal.App.3d at p. 162, cause of their very nature, are recognized adult motion picture establishment cha] correct constitutional principle first articu 171 Ca1.Rptr. 251.) We find nothing in the as having objectionable operational charac- lenged, in federal court, the constitutionali- lated in Young, supra,427 U.S. 50,96 S.Ct. hi h court s cases suggesting tenstics,particularly when several of them g ggesting such a stan- ty of a San Bernardino County ordinance 2440, and developed by Renton, supra, 475 dard is required. Indeed, a preponderance are concentrated under certain circum- similar in language and substance to the U.S. 41, 106 S.Ct. 925. As Tollis recog standard violates the spirit of the high stances,thereby having a deleterious effect "Anti-skid Row" ordinances discussed nized, Renton requires the court to deter court's cases. Those decisions expressly upon the adjacent areas. Special locational above, with the exception that the ordi- mine whether the ordinance, as implement recognize a slate's legitimate interest in regulation of these businesses is necessary nance was silent as to its predominate pur- ed, is designed to serve a substantial gov- regulating adult entertainment establish. to insure that these adverse effects will not pose. (Tollis, Inc. v. San Bernardino ernmental interest and allows for reason- i ments, and accord local governments sub- contribute to the blighting or downgrading County, supra, 827 F.2d 1329, 1332.) The able alternative avenues of communication. stantial discretion in defining the scope and of the surrounding neighborhoods. The county argued that the ordinance should be (Tollis, supra, 827 F.2d at pp. 1332-1333.) nature of such regulation. (Young, supra, Primary purpose of the regulation is to construed so as to prohibit even a "single Like the. Ninth Circuit, we find a "single 427 U.S. at p. 61, 96 S.Ct. at p. 2448; Prevent the concentration or clustering of showing" of an adult motion picture. The use" standard is insufficiently tailored to i Renton, supra, 475 U.S. at pp. 51-52, 106 these businesses in any one area." (Long theater owner responded that such con- serve Long Beach's stated purpose of pre- S.Ct. at pp. 930-931.) Beach Mun. Ord. C-5487 § 1 (1979).) struction would be unconstitutionally over- venting the clustering or concentration of Accordingly, we conclude that Pringle, (41 Because adult entertainment ordi- broad on its face under Young, supra, 427 adult motion picture theaters in any one ! in striving to construe the term "used" nances are aimed at regulating the clus- U.S. 50, 96 S.Ct. 2440, and Renton, supra, area. Nothing in the Long Beach ordi within the confines of constitutional princi- tered establishment of adult entertainment 475 U.S. 41, 106 S.Ct. 925. (Tollis, Supra, nanee's statement of purpose discloses the �, Real parties argue that if we were to impose a text. Nonetheless, so long as the theater does 827 F.2d at p. 1331.) presence of significant deleterious effects single use standard in this case, the procedures not "preponderantly"or"more often than not" opinion, in enacting its adult theater zoning admittedly serious problems.'" (Id. at p. 52, for obtaining a waiver would operate as an exhibit adult movies,Pringle's test allows adult ordinance. The First Amendment does not re- 106 S.Ct. at p. 931, quoting Young, supra, 427 invalid prior restraint on theater owners. Be- entertainment theaters to be established in con- quire a city,before enacting such an ordinance, U.S.at p.71.96 S.Ct.at p.2453,original brack- cause we reject the "single use" standard as travention of the purpose of the ordinance. to conduct new studies or produce evidence ets.) 1 unconstitutional on other grounds,we need not Moreover,to the extent Pringle may be inter- independent of that already generated by other 1 consider the merits of this claim. cities, so long as whatever evidence the city 6. In response to the theater owners' (respon- t p read as an exercise a simple statutory con- relies upon is reasonably believed to be relevant dents) argument that there were no "commer- I S. The exact basis of the Pringle decision is not court on, correctly find it equally flawed. The Pringle to the problem that the city addresses." Id.475 ciali viable" adult theater sites within the 520 1 g court correctly noted that vague st ambiguous P y ( y � entirely clear. To the extent Pringle may be terms in a legislation are to be construed,where U.S. at pp. 50-52, 106 S.Ct. at pp. 930-931.) acres left available by the Renton ordinance,the interpreted as a constitutional "floor" in the i. Finally, the court observed that the method court observed that "we have never suggested traditional sense(i.e.,that the municipalities are Possible, le as to preserve their constitutional 1 1 chosen by a city to further its substantial inter- that the First Amendment compels the Govern- P ty. (Pringle,supra, o doing, owe at p.160,court p � constitutionally precluded from regulating the. Ca1.Rptr.251.) In so doing,however,the court eels-e.g.,cluster as opposed to noncluster zon- ment to ensure that adult theaters,or any other i aters showing less than a preponderance of must give the ordinance a construction which ing—would not affect its holding. The court kinds of speech-related businesses for that mat- adult films), we believe it to be inconsistent conforms both to the dictates of the Constitu. noted that"cities may regulate adult theaters by ter,will be able to obtain sites at bargain prices. 1 with the basic principles of Young and Renton tion and to the purposes of the enactment. In. dispersing them,as in Detroit, or by effectively ... In our view, the First Amendment requires and unduly restrictive of the municipalities'le- deed, we believe the "regular and substantial concentrating them,as in Renton,'It is not our only that Renton refrain from effectively deny- gitimate interest in regulating adult entertain- course of conduct" is a reasonable interp reta function to appraise the wisdom of [the city's] ing respondents a reasonable opportunity to ment establishments. (See post,fn. 10.) It de- lion of"use" under the Long Beach ordinance decision to require adult theaters to be separat• open and operate an adult theater within the fies common sense to hold that a theater exhib- because it more closely conforms to the purpose ed rather than concentrated in the same ar- city, and the ordinance before us easily meets iting"adult"films during less than 51 percent of of the ordinance than did Pringle's preponder- eas.... [T]he city must be allowed a reason- this requirement." (Renton, supra, 475 U.S. at its total operating time must be treated as some. ante (over 50%) test. Accordingly, we must able opportunity to experiment with solutions to p. 54, 106 S.Ct. at p. 932.) thing other than an adult establishment as that reject Pringle on statutory construction grounds term can be reasonably understood in this con. as well. 259 CALIFORNIA REPORTER 49 Cal.3d 27 49 Cal.3d 28 PEOPLE v. SUPERIOR COURT (LUCERO) 749 748 Cite as 259 CaLRptr.740(CaL 1989) businesses and not at prohibiting theater 1V, Disposition (38)APPENDIX—Continued 1. Less than completely and opagtwly owners from occasionally exhibiting an The People, having alleged multiple vio- SECTION 21.51.020 DEFINITIONS. covered human genitals, pubic region, but- "adult' film, we conclude a "regular and lations of Chapter 21.51, section 21.51.030 A. For purposes of this chapter, the tock, and female breast below a point im- substantial course of conduct" standard of the Long Beach Municipal Code, each adult entertainment businesses are defined mediately above the top of the areola; and most appropriately defines the constitution- based on the unconstitutional "single use" as follows: al level of"use" for purposes of such ordi- standard, are not entitled to proceed with 2. Human male genitals in a discernibly nances. In so doing, we allow cities a the action as pleaded. Accordingly, the turgid state, even d. completely and seater flexibility in the zoning of adult judgment of the Court of Appeal is af- 2• Adult motion picture theater" opaquely covered. (Ord. G5487 § 1 (part), g Y g j g means an enclosed building with a capacity 1979: prior code § 9120.17(b)). entertainment theaters, thereby construing firmed." of fifty or more persons used for present- the ordinance in a constitutional manner ing material distinguished or characterized SECTION 21.51.030 LOCATION RE- while allowing a reasonable and practical PANELLI, EAGLESON and by their emphasis on matter depicting, de. STRICTED. construction in conformity with the pur- KAUFMAN, JJ., concur. scribing or relating to specified sexual ac A. In those land use districts where the pose of the enactment. (Welton v. City of tivities or specified anatomical areas for adult entertainment businesses regulated Los Angeles (1976) 18 Ca1.3d 497, 506, 134 APPENDIX (38) observation by patrons therein. by this chapter would otherwise be permit- Cal.Rptr. 668, 556 P.2d 1119; Shea v. ted uses, it shall be unlawful to establish Board of Aledical Examiners (1978) 81 LONG BEACH MUNICIPAL CODE B. For purposes of this chapter, "speci_ any such adult entertainment business if Cal.App.3d 564, 574, 146 Cal.Rptr. 653.) CHAPTER 21.51 fied sexual activities" shall include the fol- the location is: By interpreting the term "used" in this SECTION 21-51.010 PURPOSE. lowing: 1. Within five hundred feet of any area case to mean a "regular and substantial The city council finds that adult enter- ? 1. Actual or simulated sexual inter- zoned for residential use; course of conduct,"we give the ordinance a tainment businesses, because of their very course, oral copulation, anal intercourse, 2. Within one thousand feet of any oth- construction that is rationally tailored to nature, are recognized as having objection- oral anal copulation,bestiality,direct physi- er adult entertainment business; or support its asserted purpose of preventing able operational characteristics, particular- cal stimulation of unclothed genitals, fla- i neighbor tood2s blight without allowing ly when several of them are concentrated i gellation or torture in the context of sexual 3. Within one thousand feet of any pub- Long Beach to use "the power to zone as a under certain circumstances, thereby hav- relationship, or the use of excretory func- lie or private school,park, playground,pub- pretext for suppressing expression," ing a deleterious effect upon the adjacent tions in the context of a sexual relation lie building, church, any noncommercial es- (Young, supra,427 U.S.at P.84,96 S.Ct.at areas. Special locational regulation of ship, and any of the following depicted tablishment operated by a bona fide reli- p. 2459.) Under this standard, zoning re- these businesses is necessary to insure that sexually oriented acts or conduct: analin. gious organization, or any establishment strictions such as contained in the ordi- these adverse effects will not contribute to I gus,buggery,coprophagy,coprophilia,can likely to be used by minors. nance at issue here would apply to all adult the blighting or downgrading of the sur- ( nilingus,fellatio,necrophilia,pederasty,pa- B. The establishment of any adult en- entertainment theaters offering adult fare rounding neighborhoods. The primary pur- ! dophilia, piquerism, sapphism, zooerasty; tertainment business shall include the as a substantial part of their regular busi- pose of the regulation is to prevent the or opening of such a business as a new busi- ness,but would not apply to theaters show- concentration or clustering of these busi- 2. Clearly depicted human genitals in a ness, the relocation of the business, or the ing only occasional or incidental adult mov- nesses in any one area. This chapter shall ': state of sexual stimulation, arousal or conversion of an existing business location ies.' To the extent Pringle, supra, 115 be deemed a reenactment of the preexist- tumescence; or to any adult entertainment business use. Cal.App.3d 151, 171 Cal.Rptr. 251, conflicts ing ordinance on this subject matter. (Ord, ! 3. Use of human or animal masturba (Ord. G5487 § 1 (part), 1979: prior code with the foregoing standard, the case is G5487 § 1 (part), 1979: prior code tion, sodomy, oral copulation, coitus, ejacu- § 9120.17(c)). disapproved.10 § 9120.17(a)). lation; or SECTION 21.51.040 VARIANCE. 9. We recognize that although our definition is percent adult movies before a theater can be 4. Fondling or touching of nude human not exact,it is"reasonably specific and precise, labeled an adult theater: Kuhns v. Board o/ genitals, pubic region, buttocks or female A. Any property owner or his autho. bearing in mind that unavoidable imprecision is Supervisors, supra, 128 Cal.App.3d 369,376, 181 I breast; or sized agent may apply for relief from the not fatal and celestial precision is not neces- Cal.Rptr. 1; Strand Property Corp. v. Municipal + loeational provisions of this chapter by ap- sary." (Hart Book Stores, Inc. v. Edmisten(4th Court, supra, 148 Cal.App.3d 882, 889-890, 200 5. Masochism, erotic or 5exua1l orient- Cir.1979)612 F.2d 821,833,cert.den.(1980)447 Cal.Rptr. 47. These cases predate Renton, su• Y plying for a standards variance as provided U.S.929, 100 S.Ct.3028,65 L.Ed.2d 1124.) We pra,475 U.S.41, 106 S.Ct.925,and merely rely or torture, beating or the infliction of pain; in this title. To grant such a request the emphasize Long Beach is free to further define on Pringle. To the extent they interpret Pringle following •additional findings must be the standard—for example,by making reference as imposing a constitutional floor,we find they ' 6. Erotic or lewd touching, fondling or made: to a percentage of films shown,or the percent- are no more persuasive than Pringle,supra,and other contact with an animal by a human age of revenue received by the adult entertain- are likewise disapproved. i 1. That the proposed use will not be being; or ment business. it may also amend its ordi- f contrary to the public interest or injurious nance to impose less restrictive standards. 11. Of course,our disposition does not preclude 7. Human excretion, urination, menstr- to nearby properties and that the spirit and the People from prosecuting future violations of uation, vaginal or anal irrigation. intent of this chapter will be observed; 10. As stated above Pringle's "preponderance" Chapter 21.51 under the "regular and substan- standard has been interpreted in Court of Ap- tial course of conduct" standard discussed C. For purposes of this chapter, "speci- 2. That the proposed use will not en. peal cases as requiring the showing of over 50 above. fied anatomical areas" shall include the large or encourage the development of a following: �V;d .,,.. .,_- 750 259 CALIFORNIA REPORTER 49 Cal.3d 28 49 Cal.3d 31 PEOPLE v. SUPERIOR COURT (LUCERO) 751 Cite as 259 Cal.Rptr.740(Cal. 1989) (38)APPENDIX-Continued course of conduct" standard is unjustified Amend.) The California Constitution de- theater owners lacked standing to raise,the 3. That the establishment of an addi- because we have been presented with no clares the same right in the affirmative: challenge because they plainly intended to tional regulated use in the area will not be evidence that the new untested standard "Every person may freely speak,write and exhibit the type of motion pictures clearly contrary to any program of neighborhood would ameliorate the secondary effects of publish his or her sentiments on all sub- covered by the definition, i.e., conservation nor will it interfere with any adult-oriented businesses while accommo- i jects...." (Cal. Const., art. I, § 2, subd. _Lp"distinguished or characterized by an em- program of urban renewal; and dating individuals' access to communica- (a).) That the communication involved here phasis on"certain listed sexual activities or 4. That all applicable regulations of the tions protected by the free speech provi- pertains to sex does not mean that it de- anatomical areas. (Id. at p. 59, fn. 16, 96 sions of the federal and state Constitutions, serves less than full constitutional protec- S.Ct. at p. 2447, fn. 16.) municipal code will be observed. tion.' Sex and obscenity s ] Y are not non- Y Turning to the merits, the court relied on B. The procedure for this hearing shall II ymous.... The portrayal of sex, e.g., in three factors in rejecting the plaintiffs be the same as that provided for a stern- art, literature and scientific works, is not Bards variance in this title. (Ord. C-5487 Two interests collide when a city under- equal protection challenge. One, the ordi- takes to pass zoning laws regulating so ! itself sufficient reason to deny material the nance did not greatly restrict access to § 1 (part), 1979: prior code § 9120.17(d)). constitutional protection of freedom of "lawful speech." (Young, supra, 427 U.S. called "adult entertainment businesses": speech and press. Sex,a great and myste at p. 71, fn. 35, 96 S.Ct. at p. 2453, fn. 35 MOSK, Associate Justice, concurring (1)individuals'right to receive,and owners' l speech motive force in human life has indis and dissenting. right to convey,nonobscene communication (plur. opn.),pp. 77, 79, 96 S.Ct. at pp. 2455, rott to c b the state and federal Constitu putably been a subject of absorbing inter- 2456 (cone. opn. of Powell, J.).) Two, the I P Y I est to mankind through the ages; it is one intent of the city in passing the ordinance I concur in the judgment. Lions, and(2)the city's interest in eradicat + of the vital problems of human interest and was to ameliorate the negative secondary ing urban blight. Among the more serious public concern." (Roth v. United States effects of adult entertainment businesses, The majority correctly strike down the perceived negative secondary effects of ; (1957) 354 U.S. 476, 487, 77 S.Ct. 1304, not to suppress "offensive"speech. (Id. at "single use" standard as unconstitutional. such entertainment businesses are in. j 1310, 1 L.Ed.2d 1498 fn. omitted.) These p. 71, fn. 34, 96 S.Ct. at p. 2453, fn. 34 They err, however,by jettisoning the "pre- creased crime, particularly prostitution, de- words,although written over three decades (plur.opn.),pp. 80-81,96 S.Ct. at pp. 2457- ponderance" standard in use for the past teriorating neighborhoods,and economic in- ago, still have relevance today, although to 2458 (cone. opn. of Powell,J.).) Three, the eight years and creating an entirely new u to nearby businesses. (See generally, , jury Y g Y, the examp,es must be added stage and record disclosed a factual basis for tAe and vague "regular and substantial course Developments in the Lain--Zoning (1978) screen presentations.P city's conclusion that the type of restriction of conduct" standard. I therefore dissent 91 Harv.L.Rev. 1427, 1551 (hereafter Zon- Neither of the conflicting interests, the it imposed would have the desired effect. from that portion of the opinion. ing).) No one can doubt that these serious , Supreme Court has explained, is absolute. (Id.at p. 71,96 S.Ct.at p. 2452(plur. opn.), The majority read the decision of Prin- problems are a legitimate subject of local � 1 A city may, under certain circumstances, P• 82, 96 S.Ct. at p. 2458 (cone. opn. of gle v. City of Covina(1981)115 Cal.App.3d government concern. Mangy cities across i 151, 171 Cal.Rptr. 251, too broadly; it does the nation are expending considerable re- pass zoning regulations that impair the Powell, J.).) First Amendment rights of theater owners In dictum, a majority of this court now not establish the preponderance standard sources to rejuvenate long-neglected down + r and their customers. In the seminal create a new standard that does violence to as the limit of regulatory power for every town areas. These efforts take a variety + Young case, supra, 427 U.S. 50 96 S.Ct. both frees speech principles and cities'inter- locality in the state. Moreover, it is inap- of forms: some cities pass zoning laws that i P P P ro rate to weave a new standard-one disperse regulated uses throughout the lo- i troit a sharply divided court upheld a he- cir in tailoring zoning regulations to local sub- which apparently is meant to set a state- cality; other zoning laws are aimed at clus- i ater ordinance that prohibited adult the- circumstances. If the "regular and sub wide regulatory floor-out of whole cloth. tering the uses in limited areas; some cities aters from locating within 1,000 feet of any stantial course of conduct" standard were 2 other "regulated uses," such as motels, adopted by a legislative body in the same To do so the majority must reach out to regulate the operating hours and store liquor stores and adult bookstores, or with- unstudied manner as it is suggested b the decide this issue without the benefit of a front advertising of so-called adult-oriented gg Y in 500 feet of a residential area. Prelimi- majority,courts would be required to strike developed record, without the benefit of businesses; still others rely on public nui- Warily, the court refused to consider a it down because it fails to meet the Young briefing, and, most importantly, in contra- sane laws. The Supreme Court has re- vagueness challenge to the ordinance's def- criteria. Because the case comes to us on vention of the spirit of United States Su- peatedly emphasized that courts must al- inition of adult motion picture: the plaintiff demurrer there is no evidence in the record preme Court decisions that emphasize the low cities "'a reasonable opportunity to importance of allowing cities to experiment experiment with solutions to (these] admit- 1. Some commentators argue that constitutional differently under First Amendment principles with various solutions to the serious prob- tedly serious problems.'" (Renton, supra, protection should be afforded only to explicitly from other forms of protected expression. (427 lems created by urban blight. (See, e.g., 975 U.S. at 52, 106 S.Ct. at 931, political speech,and not to scientific or literary U.S. at p. 73, fn. 1, 96 S.Ct. at p. 2453, fn. 1 p• P. speech. (See,e.g.,Bork,Neutral Principles and (Powell, J., concurring), pp. 85-87, 96 S.Ct. at Renton v. Playtime Theatres, Inc. (1986) _Uoquoting Young, supra,427 U.S. at p. 71, Some First Amendment Problems(1971)47 Ind. pp,2459-2461 (Stewart,J.,dissenting,joined by 475 U.S. 41, 52, 106 S.Ct. 925, 931, 89 96 S.Ct. at p. 2452 (plur. opn.).) L.J.1.) Justice Stevens,writing for the plurality Brennan, Marshall and Blackmun, JJ.).) This in Young, suggested that"erotic materials"were latter position is consonant with the state consti- L.Ed.2d 29 (hereafter Renton); Young v. But courts must also protect individuals' not entitled to the same measure of constitution- Amertcan Mini Theatres (1976) 427 U.S. rights to freedom of speech, the corner- al protection as"political debate." (427 U.S.at ton alll dictate that persons may speak freely g P pp. 61, 70, 96 S:Ct. at pp. 2448, 2452.) Fortu• on all subjects." (Cal.Const.,art.I,§ 2,subd. 50,71,96 S.Ct.2440,2452-2453,49 L.Ed.2d stone of a democratic society. The federal (a).) The Oregon Supreme Court reached the nately, these views have not prevailed. 1.) A same conclusion in its colorful opinion in State 310 (hereafter Young).) Constitution guarantees that "Congress mer on Freedom of Speech (1984) § 3.01.) A The result is judicial legislating. Cre- shall make no law ... abridging the free- majority of justices in Young concluded that v Henry (1987) 302 Or. 510, 525, 732 P.2d 9. ation of the "regular and substantial dom of speech...." (U.S. Const., 1st nonobscene erotic materials may not be treated 17-18. 752 259 CALIFORNIA REPORTER 49 Cal.3d 31 49 Cal.3d 34 PEOPLE v. SUPERIOR COURT (LUCERO) 753 Cite as 259 Cal.Rptr.740(Cal. 1989) that the new standard would allow substan- den of proof is on the city to show that (1982) 128 Cal.App.3d 369, 181 Cal.Rptr. 1, decisions of the courts below, or indeed, in tially unimpeded access to protected more than a rational relationship exists be- decided just one year after Pringle, the any of the reported cases in this state. speech. Moreover, there is absolutely no tween the ordinance and this government Court of Appeal applied the predominance While we cannot insist on "celestial preci- factual basis for the majority's surmise interest. [Citation.] In the case at hand, standard in defining the proportion of a sion," as the majority put it, because the bookstore's stock that would render the ordinance touches on free speech rights that a "regular and substantial course of the district court's opinion notes only that conduct" standard will substantially assist the city 'has asserted that its purpose in store an "adult bookstore" for purposes and because violation of the ordinance can Long Beach or any other city to fight ur- passing this ordinance is to prevent the of a similar zoning ordinance, but at the subject a theater owner to criminal penal- ban blight. concentration of adult businesses and re- same time explicitly recognized that a local ties,both the locality's interests and consti- sultant urban blight.' Citation. Upon legislative body retained the authority to tutional values would be better served by a In most cases, courts are not required re g [Citation.] P adopt an alternative standard, stating: "If more precise definition of "adult motion examine the legislative record or to inquire careful review of the record in this case, the board of supervisors intended to allow Prop- into legislators' motives when reviewing a we find no such 'assertion,' nor do we find P picture theater"—(see,Municipal e.g., Strand Prop- g g an evidence of a legitimate government a lesser portion it behooves them to quanti- erty Corp. v. Municipal Court, supra, 148 statute or ordinance. When the legislation y g g impairs the right to freedom of speech, objective for the passage of this zoning f Y the phrase and make findings g showing Cal.App.3d 882, 889, 200 Cal.Rptr. their figure is consonant with the govern- 97}—that is, a definition that can be under- however, "courts should continue to under- ordinance." (Christy V. City of Ann Ar- take more than a cursory, deferential ex- bor, supra, 824 F.2d at p. 493, italics add mental interest being protected." (128 Cal. stood and easily applied by all parties with- amination of the factual bases of the mu ed.) App.3d at p. 376, 181 Cal.Rptr. 1.) And in out engendering endless court controversy ami alit 's decision. Courts sensitive u- Strand Property Corp. v. Municipal and without deterring constitutionally pro- p y If a legislative body is constitutionally Court (1983) 148 Cal.App.3d 882, 200 Cal. the first amendment issues at stake should prohibited from zoning adult entertainment Rptr. 47 the Court of Appeal, while apply- danger tected speech that poses no substantial insist upon a fairly complete record of the businesses absent findings that the ordi- PP of adverse secondary effects. The g ing the Pringle standard to the version of evidence available to municipal legislators nance is directed to ameliorating secondary a San Diego adult entertainment zoning choice among a variety of reasonable,alter- at the time they acted and of the facts on effects, then a fortiori this court may not g g native standards that could be used to de- at ordinance before it noted that the city which they relied...." (Zoning, op. cit. "legislate" a new standard absent a record council had amended the ordinance after fine an "adult motion picture theater" is supra, 91 Harv.L.Rev. at p. 1559; see also from which it can be fairly inferred that the suit in that case had been filed to clearly a legislative policy decision. The Schad v. Mount Ephraim (1981) 452 U.S. such a standard will substantially serve the define an adult motion picture theater as a appropriate legislative body, not this court, 61, 69-70, 101 S.Ct. 2176, 2183-2184, 68 government objective. theater that presents sexually explicit films is in the best position to assess the circum- L.Ed.2d 671.) In Christy v. City of Ann stances likely to create adverse secondary c Arbor(6th Cir.1987)824 F.2d 489,I ce ertiora- The majority's incursion into the ]egisla- or shows "for viewing on more than 7 days effects in its own community. tive realm is as unnecessary as it is mis- within any 56-consecutive-day period,"and ri denied (1988) — U.S. —, S.Ct stated approvingly that while "this r 1013, 98 L.Ed.2d 978, the court examined chievous. The majority complain that p ovi- "[t]he exact basis of the Pringle decision is Sion is not in issue here, ... we may ob- �4III an ordinance that defined an adult book- serve it operates in aid of the Code's cer- not entirely clear while suggesting that it P I must acknowledge that I share the store as an establishment having as a sets a constitutional] based regulatory tainty." (148 Cal.App.3d at p. 889, fn. 9, principal activity the sale of books or Y g Y 200 Cal.Rptr. 47.) majority's concern that the preponderance floor for all localities in the state, i.e., that P test might result in too high a standard. films characterized by an emphasis on cer- g g twin enumerated sexual activities. "Princi- no city may constitutionally define an adult Thus, Pringle, supra, 115 Cal.App.3d The solution, however, is not to invent a pal activity" was in turn defined as a "use motion picture theater as a building used to 151, 171 Cal.Rptr. 251, should not be, nor "regular and substantial course of con. accounting for more than 20 per cent of a exhibit anything less than 50 percent adult has it been,interpreted as preventing a city duct" standard, of dubious context and un- business." The court ofi2appeals vacated films,no matter what evidence is presented from holding public hearings and exam- supported by legislative findings. To do so the district court's order denying the plain- to the legislative body. (Maj.opn.,ante, at fining studies, based either on its own or is to usurp the legislative role. In my view tiff bookseller's motion for preliminary in- P• 747, fn. 8 and p. 748, fn. 10 of 259 other cities' experiences, and enacting an the proper course is to allow municipalities, junction and remanded the case for further Cal.Rptr.,at p. 776, fn. 8 and p. 777, fn. 10 ordinance that explicitly defines adult mo- which "often employ planning experts who proceedings. of 774 P.2d.) To the contrary, Pringle, ; tion picture theaters as those exhibiting can prepare studies of the probable effects After carefully examining the record,the supra, 115 Cal.App.3d 151, 171 Cal.Rptr. numerically more or less than a preponder- of a proposed zoning ordinance" (Zoning, court appeals held, "Although both the 251,did not purport to hold that its prepon- ance of adult films. At that point, a city op.cit.supra,91 Harv.L.Rev.at p. 1560),to 106 S.Ct.at 931, derance standard represented any sort of may be in the correct posture to raise the analyze, to consider and possibly to experi- Supreme Court in Renton, and the Sixth Circuit in 106 [Corp.] v. constitutional floor for adult entertainment claims Long Beach attempts to litigate in ment with various standards and, most im- Henline [6th Cir.1983] 702 F.2d [637] at I zoning ordinances in general or that a local this case. portantly, to create a record for judicial 639, have stated that a city need not con- entity was precluded from adopting any That the majority's "regular and sub- review. If an ordinance based on such a duct new independent studies to justify definition of an adult theater that was stantial course of conduct" standard is record is thereafter challenged, we would adult business zoning ordinances, both more restrictive than the preponderance i vague and untailored to the governmental have a sound basis for determining wheth- courts have required some relevant evi standard. interest at stake is hardly surprising. It er the standard violates free speech princi dence to demonstrate that the zoning ordi- Indeed, two Court of Appeal decisions ` does not appear in the parties' briefs, in ples.z nance was intended to address the second- cited by the majority make this point very j 2. It appears that the majority do not propose that their new standard should be applied retro- ary effects of adult businesses. The bur- clear. In Kuhns v. Board of Supervisors 754 259 CALIFORNIA REPORTER 49 Cal.3d 34 49 Cal.3d 37 PEOPLE v. SUPERIOR COURT (LUCERO) 7 V-5 Cite as 259 Cal.Rptr.740(Cal. 1989) KENNARD, Associate Justice, an intent. Thus, I concur in the majority's Counsel responded he was going "for test. Under the somewhat indefinite "reg- concurring and dissenting. rejection of the city's contention that the broke," and he did in fact argue only for a ular and substantial course of conduct' ordinance embodies a "single use" stan- "single use' standard. Under these cir- standard proposed by the majority,an ordi- dard. cumstances, we should not devise a com- nary theater(see, e.g., Pringle, supra, 115 1 promise interpretation of our own design. Cal.App.3d at p. 153 & fn. 1, 171 Cal.Rptr. I concur in the majority's conclusion that II P 1 the Long Beach adult entertainment zoning Also, in reaching out to overturn Prin- 251), which in good faith wishes to comply ordinance at issue here cannot properly be Like Justice Mosk,however,I cannot join gle, supra, 115 Cal.App.3d 151, 171 Cal, with the law, may have difficulty in deter- interpreted to classify a theater as an in that portion of the majority opinion Rptr• 251, the majority opinion ignores the mining whether it may show a popular, "adult motion picture theater" within the which goes beyond the city's "single use" fact that, in the span of eight years since nonobscene—but sexually explicit—film meaning of the ordinance (Long Beach contention and undertakes to fashion an that decision, the City of Long Beach has once a week, once a month, or even once Mun.Code, § 21.51.020, subd. A.2.)' solely entirely new standard for defining an taken no action to modify the Pringle every two months without facing criminal on the basis of the theater's single showing "adult motion picture theater" for purposes _Ls6test. If, in the city's view, the "prepon- charges of having turned its theater into a of a sexually explicit film. This conclusion of the Long Beach ordinance. In so doing, derance" standard is too easily evaded and Prohibited "adult motion picture theater." would follow even under ordinary princi. the majority discards the Court of Appeal's does not adequately identify those theaters Even if the majority's proposed standard is ples of statutory interpretation,without re- interpretation of a virtually identical provi- which produce detrimental secondary ef- sufficiently definite to survive a constitu- sort to constitutional considerations. sion in Pringle V. City of Covina(1981)115 fects on the surrounding neighborhoods in tional vagueness challenge—a question on Cal.App.3d 151, 171 Cal.Rptr. 251. This its community,the city could have amended Which I would reserve judgment—it still The ordinance in question is a zoningP the language of its zoning ordinance to appears unwise to thrust such a standard ordinance, not an obscenity ordinance. As venture by the majority is, in my view, on a locality which has not itself opted for d unwarrante . adopt an alternative, more stringent defini- the United States Supreme Court said in tion of adult theaters.2 Both Kuhns and such an opaque definition. As Justice Renton v. Playtime Theatres, Inc. (1986) In Pringle, the appellate court construed Strand, which were decided in 1982 and Mosk observes, such a standard will inevi- 475 U.S. 41, 47, 106 S.Ct. 925, 929, 89 the challenged adult entertainment zoning 1983,hold that a locality is free to adopt an tably engender"endless court controversy" L.Ed.2d 29, such an ordinance "is aimed ordinance as applying only to theaters alternative to the preponderance standard. (see ante, p. 753 of 259 Cal.Rptr., p. 782 of, not at the content of the films shown at which showed"a preponderance"of sexual- (See Kuhns, supra, 128 Cal.App.3d at p• 774 P.2d) as to how many films must be 'adult motion picture theaters,' but rather ly explicit films. Other appellate courts 376, 181 Cal.Rptr. 1; Strand, supra, 148 shown over what period of time to satisfy at the secondary effects of such theaters have followed Pringle in interpreting sim- Cal.App.3d at p. 889, 200 Cal.Rptr. 47.) the "regular and substantial course of con- duct" test. Such litigation would ill-serve on the surrounding community. (Empha- ilar zoning ordinances which did not con- Indeed, the Strand decision specifically sis in original.) tain a precise or definite standard for de noted that the City of San Diego had opted not only the administrative and financial �5`[It] is difficult to imagine that only a termining whether a theater or bookstore for this approach in September of 1982, interests of the localitL 7but also the legit- single showing ever, or only one in a year, fell within the reach of the ordinance. when it amended its adult entertainment imate constitutional interests of theater (See, e.g•� fp Kuhns v. Board o Supervisors zoning ordinance to specifically define an owners and theater patrons. would have any meaningful secondary ef- fects" on the community surrounding a (1982) 128 Cal.App.3d 369, 376, 181 Cal. adult theater as one which exhibits the There are numerous methods by which a R tr. 1; Strand Property Corp.V.Munici- described type of sexually explicit films city could reasonably define the category motion picture theater. (Tollis, Inc. v. San al Court (1983) 148 Cal.App.3d 882, 889— "'on more than 7 days within any 56—con- of theaters whose presence is likely to have Bernardino County (9th Cir.1987) 827 p detrimental secondary effects on the sur- F.2d 1329, 1333.) Therefore, it would not 890, 200 Cal.Rptr. 47.) secutive—day period. (See Strand, su- Y be reasonable to ascribe to the drafters of During oral argument in this case,coup, pra, 148 Cal.App.3d at p. 889, fn. 9, 200 rounding community without creating the the Long Beach ordinance an intent to in- sel for the city was asked several times i Cal.Rptr. 47.) enforcement problems which are likely to elude a theater within the ordinance's whether, in the event the court disagreed Here, in discarding Pringle's "pre on- arise under the majority's view. For in- s P stance a citycould define such a theater "adult motion picture theater" category on with his "single use" contention, he was derance standard, the majority opinion by reference to (1) the proportion of the the basis of a single showing of a sexually urging the court to interpret the ordinance fails to give adequate deference to the theater's films which are sexually explicit, explicit film, particularly in the absence of as embodying some form of intermediate city's legislative prerogative. (2) the number of sexually explicit films any indication on the face of the ordinance standard between a "single use" standard Finally,there is an additional reason why which are shown at the theater each week, or any legislative history suggesting such and Pringle's "preponderance" standard. we should leave to the city's legislative each weekend or each month,(3)the nature actively to these defendants(see maj.opn.,ante, "A. For purposes of this chapter, the adult body the task of modifying the Pringle of the films which receive top billing on the at p.748,fn.I of 259 Cal.Rptr.,at p.777,Fn.11 entertainment businesses are defined as follows: 2. Contrary to the implication in the majority use (Pringle, supra, 115 Cal.App.3d at pp. 161- of 774 P.2d). Criminal prosecution based on 1 the past conduct of defendants—like the theater "2. 'Adult motion picture theater' means an + opinion (see ante, p. 747 & fn. 8 of 259 Cal. 162, 171 Cal.Rptr.25]),the court did not in any ' Rptr., p. 776 & fn. 8 of 774 P.2d), there is way intimate owners in this case—who may well have con• enclosed building with a capacity of fifty or nothing in Pringle which suggests that its "pre. that local adentapting any constion ducted their theaters operations in reliance more persons used for presenting material dis- i ponderance" standard represented an sorts of tionall prohibited from ado tin an definition both on the Pringle decision and on subsequent tin ished or characterized b their emphasis P y of an adult theater that was more restrictive gu Y � constitutional "floor" for adult entertainment than a California cases that followed Pringle, would on matter depicting, describing or relating to zoningordinances in preponderance standard. And,as noted undoubted) raise serious ex post facto rob• general. Although the y Po P specified sexual activities or specified anatomi- Pringle court did hold that the term "used" in hereafter in the body r courts concurring and lems. cal areas for observation by patrons therein." � the ordinance at issue in that case could not dissenting opinion,other courts have not inter. 1. Section 21.51.020 provides in relevant part: 1 constitutionally be interpreted to mean a"single Preted Pringle as adopting such a restriction. 756 259 CALIFORNIA REPORTER 49 Cal.3d 37 CITY OF SANTEE v. COUNTY OF SAN DIEGO 211 Ca1.App.3d 1009 Cite as 259 Cal.Rptr.737(Cal.App.4 Dlst. 1989) theater's marquee or in its advertisements, use" contention and in the affirmance of express promise that future assistance or(4)the percentage of the theater's reve- the Court of Appeal judgment,I respectful- 211 Cal.App.3d 1006 would be forthcoming. nues which are attributable to the showing ly dissent from the majority opinion insofar _LmGCITY OF SANTEE et al., 3. Automobiles <-279 of sexually explicit films. as it ventures beyond the city's "single Cross—Complainants and Even if deputy sheriffs' discretionary, A local legislative body is better use" claim. Respondents, voluntary acts of reporting street light out- equipped than this court to determine, in V. ages to city created special relationship be- light of local conditions, how best to iden- BROUSSARD, J., concurs. COUNTY OF SAN DIEGO, tween city and those deputies, city could tify those theaters which are likely to be- Cross—Defendant and not expect the same assistance from all come a "blight" on the local community, Appellant. sheriff's deputies; only the individual vol- and to frame a definition which local au- w unteers, not every member of employing thorities can enforce and which will provide O TAlYNUMBLASYS1tM To. D006953. agency, would be obligated by that rela adequate guidance to those who wish to Court of Appeal, Fourth District, tionship. comply with the law' ' Division 1. Accordingly, although I concur in the May 23, 1989. 4. Automobiles a279 majority's rejection of the city's "single Public policy precluded extension of As Modified June 21, 1989. good Samaritan duties to future aid by law 3. Unlike Justice Mosk,I do not read the govern- Lions to admittedly serious problems." Of enforcement officers in reporting of street ing federal decisions as requiring a local entity course,any definition which is chosen must not County appealed from judgment of the to point to specific empirical evidence to sup- be"'a pretext for suppressing expression'"(see light Outages. Superior Court,San Diego County,Barbara port its choice of one particular.definition of Renton, supra,475 U.S.at p. 54, 106 S.Ct.at p. "adult theater"over another. The lead opinion 932(quoting Young,supra,427 U.S.at p.84,96 T. Gamer,J., requiring it to indemnify city in Young v.American Mini Theatres(1976)427 S.Ct.at p.2459(Powell,J.conc.)1).but must be and signal company for 97c of settlement _LlmyLloyd M. Harmon, Jr., County Coun- U.S.50,71,96 S.Ct.2440,2453,49 L.Ed.2d 310, selected as a reasonable means of protecting the sum aid to bicyclist who was injured in makes it clear that a city "must be allowed a community from adverse secondary effects. p y sel, Daniel J. Wallace, Chief Deputy Coun- reasonable opportunity to experiment with solu- accident that was allegedly caused by im- ty Counsel, San Diego, Richard W. Milli', proper lighting at intersection. The Court gan, Deputy County Counsel, for cross-de-I of Appeal, Froehlich, J., held that county fendant and appellant. did not owe duty in tort to city and signal Stutz, Rentto, Gallagher & Artiano and company by virtue of alleged special rela- Mitchell S. Wagner, San Diego, for cross- tionship" between sheriff's department and complainant and respondent City of Santee. city arising out of prior voluntary reporting by a few deputies of street light outages, McInnis, Fitzgerald, Rees, Sharkey & Reversed. McIntyre and George Fleming, San Diego, for cross-complainant and respondent 1. Automobiles a279 Southwest Signal Co. Failure of sheriff's department or indi- Gilson and Heaton and Virginia R. Gil- vidual deputies to report street light out. son, San Diego, for cross-complainant and age, allegedly responsible for bicycle-auto- respondent Southwest Signal Service Co. mobile accident, to city was nonactionable nonfeasance in absence of special relation- FROEHLICH, Associate Justice. ship imposing affirmative duty to provide Cross defendant County of San Diego assistance. (County) appeals from a judgment in favor 2. Automobiles (3:-279 of cross-complainants City of Santee (San- Deputy sheriffs'past voluntary acts of tee)and Southwest Signal Company(South- reporting street light outages to city did Vest) and from the order denying County's I not impose continuing obligation on those motion for judgment notwithstanding the deputies as "good Samaritans" to render verdict. The judgment required County to i future acts of assistance, notwithstanding indemnify cross-complainants,jointly, in an city's claimed detrimental reliance; depu- amount representing 9 percent of the set- ties' failure to report outage only failed to tlement sum paid to plaintiff Fleming by decrease risk imposed by inoperative light, cross-complainants. rather than increasing that risk, and city The sole issue necessary to disposition of was not entitled to expect those deputies to this case is whether County owed a duty in report outages on other occasions, absent tort to cross-complainants. In light of our 167 Cal.App.3d 1169 CITY OF VALLEJO v. ADULT BOOKS i :3 142 213 CALIFORNIA REPORTER 167 Cal.App.3d 310 Clleas213CalApir.143(Cal.App.I Dist. 1995) 1 8)." (Id., at pp.243-244, 193 Cal.Rptr.547, al validity of the ordinance, and busim. ss being given to the diminished ability of "best evidence." (Lab.Code,§ 5700.) That i 666 P.2d 989.) Thus, any permanent dis- operators appealed. The Court of Appeal, such injured employee to compete in an hoary doctrine has only to do with proof of ability award made before the Bureau de- Newsom,J., held that: (1)operators lacked open labor market." Moreover, the Su- the contents of writings (see Evid.Code, termines the injured worker's eligibility for standing to challenge ordinance on grounds preme Court was unequivocal on the issue § 1500), not evidentiary rulings grounded rehabilitation benefits is subject to later of vagueness, and(2) ordinance was not so in LeBoeuf "A permanent disability rating on preconceived notions of the superiority review by either side. In the meantime, pervasive in its constraints as to violate :hould reflect as accurately as possible an of one sort of evidence over another. ! however, the injured worker is entitled to a operators' First Amendment rights. injured employee's diminished ability to While the judge's personal"better evidence I permanent disability rating which "accu- compete in the open labor market. The rule"—which we assume is what he meant rately reflects" her medical and vocational Affirmed. fact that a worker has been precluded from to say—may affect the weight he might !! disabilities. Racanelli, P.J., concurred and filed vocational retraining is a significant factor have accorded to the testimony and reports I opinion. to be taken into account in evaluating his of the counselor, it could not preclude their The order is annulled. The matter is remanded to the or her potential employability." (Id., at pp. admissibility. in which evidence from from for a new hearing J qualified rehabilita• 1. Constitutional Law (9=42(1) 245-246, 193 Cal.Rptr. 547, 666 P.2d 989.) [51 One final point deserves comment. ! tion counselors shall be permitted on the Litigant whose conduct is precisely The court concluded, "This is to ensure The employer and workers compensation '1' issue of the applicant's permanent disabili- proscribed by statute has no standing to that the permanent disability rating upon carrier concede Gill is still medically eligi- I ty argue that law is vague as applied to oth- which an award is based accurately reflects ble for rehabilitation benefits because she i ers. both the permanent medical and vocational is unable to return to her former occtl a- I p SONENSHINE, Acting P.J., and WAIr 2. Constitutional Law (8=420) disabilities. (1d., at p. 243, 193 Cal.Rptr. tion (Cal.Admin.Code, tit. 8, § 10003, subd. } LIN, J., concur. One will not be heard to attack statute 547, 666 P.2d 989.) (c); Lab.Code, § 139.5). But medical eligi- I [3] A previous determination by the Bu- bility is only one prong of the test: An 1 o ENIYNUMBIBSVSI[M on grounds that are not shown t0 be appli- reau of Rehabilitation that an employee is employee who is"unable to be_jreturned to �i1 III T cable to himself. not entitled to vocational benefits is not a suitable gainful employment through voca- ` 3. Constitutional Law a47 prerequisite to evidentiary relevance, how- tional rehabilitation services [is] 'not ... a i Court will not consider every conceivivaa ever. Indeed, that was the procedural pos- Qualified Injured Worker' [under the com- 167 Cal.App.3d 1169 ble situation which might arise underlan- guage of LeBoeuf itself. There, testimony pensation laws, and does not] qualify for tics _LCITY OF VALLEJO, Plaintiff of statute and will not consider and reports of rehabilitation counselors vocational rehabilitation benefits." (Le- and Respondent, question of constitutionality with reference concerning the employee's "future employ- Boeuf v. Workers' Comp. Appeals Bd., V. to hypothetical situations. ability in the open labor market" were re- supra, 34 Cal.3d at p. 240, 193 Cal.Rptr. ceived in evidence, although the Bureau of 547, 666 P.2d 989.) Thus,should Gill apply ADULT BOORS, etc., et al., Defendants 4. Constitutional Law a42.2(1) Rehabilitation had, by written order to for vocational rehabilitation benefits in the and Appellants. Exception to general rule requiring which LeBoeuf did not object, deferred a future, as the employer acknowledges she A021042. that persons whose conduct is precisely determination as to whether he qualified may,she will not be entitled to them Court o unless proscribed by statute lacks standing to ar- for rehabilitation benefits. (Id., at p. 238, she establishes the likelihood theN will en- f Appeal, First District, gue law as vague as applied to others 193 Cal.Rptr. 547, 666 P.2d 989.) The situ- able her to return to the labor force. If Division 1. exists if statute may.cause persons not ation here is analogous: At the employer's she eventually secures a determination by April 25, 1985. before the court to refrain from engaging request, the Bureau of Rehabilitation the Bureau that she has no right to rehabil- As Modified on Denial of Rehearing in constitutionally protected speech or ex- closed its file because Gill was not medical- itation benefits, she xvill be in the same May 22, 1985. pression; First Amendment extending ex- ly able to participate in the program—a position as the applicant in LeBoeuf and ception applies only if statute's deterrent decision Gill did not oppose. entitled to reopen the compensation case, Review Denied July 17, 1985. effect on legitimate expression is both real [41 We find nothing in the LeBoeuf provided.she timely appeals the Bureau's Operators of business selling and substantial and if statute is not readily opinion to support the notion that an in- decision pursuant to section 10008 of Title books and showing"adult"movies brought subject to narrowing construction by state jured worker must obtain a concededly pre- 8 of the California Administrative Code. action challenging constitutional validity of courts. U.S.C.A. Const.Amend. 1. mature finding from the Bureau before (1d., at p. 245, 193 Cal.Rptr. 547, 666 P.2d zoning ordinance restricting "adult book- 5. Constitutional Law «90.4(1) evidence of her vocational, as opposed to 989.) stores" and "adult theaters" to operate "Other sexual excitement and sexual medical, disability is admissible in the dis- [6,71 Conversely, if Gill applies for and only in certain zoning classifications and conduct"as used in zoning ordinance defin- ability proceedings. Both factors are es completes :i vocational rehabilitation pro subject to certain linear distance require- ing"adult bookstores"and theaters subject sential to an accurate assessment of the gram, the "employer may challenge [the] ments in relation to each other and other to zoning restrictions was not so vague as employee's permanent disability. (Lab. prior award of permanent disability ... enumerated uses. The Superior Court, So- to pose a real and substantial threat to free Code, § 4660, subd. (a).) Thus, evidence since[Gill's]permanent disability may have lano County, Michael L. McInnis, J., en- exercise of First Amendment rights, al- "pertinent" to this issue is relevant and been reduced. (See Tangye v. Henry C. tered judgment upholding the constitution- though it lacked specificity, since most may not be rejected because it is not the Beck and Co. [1978]43 Cal.Comp.Cases[3,] 144 213 CALIFORNIA REPORTER 167 Cal.App.3d 1169 ! 167 Cal.App.3d 1174 CITY OF VALLEJO v. ADULT BOOKS :. ] rj Cite as 213 CalAptr.143(Cal.App.1 Dist. 1985) ,00ks and films would either clearly fall tion which is alleged to regulate or infringe 15. Constitutional Law e-90.40) adult theatres to obtain conditional use per- vithin scope of ordinance or not, where upon First Amendment rights will be sub- Zoning ordinance restricting operation mits, obtainable only upon a showing tPSat xamples of "sexual excitement or sexual jetted to closest scrutiny and government of"adult" bookstores and theaters was not the business was"compatible with adjacent onduct" were specifically enumerated, has burden of showing not only that law so pervasive in its constraints as to violate uses"and consistent with the city's general providing guidelines which could be used to furthers some important or substantial owner's First Amendment rights, although plan. After trial of this action, respondent onstrue it, and ordinance was susceptible government interest unrelated to suppres- ordinance was broad and contained no amended the ordinance to eliminate the per- o narrowing constructions to remove any sion of free expression but also that it is grandfather clause to permit preexisting mit requirement. (Vallejo Municipal Ordi- emaining ambiguity. U.S.C.A. Const. narrowly fashioned to ensure least possible nonconforming uses to continue, since ordi- nance No. 693 N.C. (2d).) emend. 1. restrictions on First Amendment rights. nance was a content-neutral regulation of The ordinance requires "adult book- Constitutional Law 0-90.4(4) U.S.C.A. Const.Amend. 1. time, place and manner and did not impose stores" and "adult theatres" in operation Provision of zoning ordinance subject- an outright ban where permissible locations as of its effective date to comply with the 10. Constitutional Law c=90(3) available to adult uses were restricted, but I)g theaters showing films"25��or more of new zoning provisions within one year, but he number of which" depicted sexual con- To be reasonable, time, place, manner not legislated out of existence. U.S.C.A. allowed the city's planning commission to luct did not so threaten First Amendment restrictions not only must serve significant Const.Amend. 1. grant a one-year extension upon a showing -fights as to permit challenge to its clarity state interest but also must leave open of extreme hardship. )y an enterprise which uncontestably fell adequate channels of communication. U.S. Wells &Shiffman,Arthur Wells,Jr.,San Appellant's business location is both within its regulatory scope, although ordi- C.A. Const.Amend. 1. Francisco, for defendants and appellants. within 500 feet of a residential zone and ,ante failed to specify whether 257o figure applied to films containing only isolated 11. Zoning and Planning a76 John M. Powers, City Atty., Michael H. 1000 feet of another 'adult bookstore," iepictions of sexual conduct or those distin- Justification for zoning laws locating Roush, Asst. City Atty., Vallejo, for plain- Bachelor Books.2 Appellant has neither ;uished or characterized by such de- adult businesses in specified areas can be tiff and respondent. brought an action to contest the ordinance nor sought a zoning variance. Neverthe- ,ictions, after court construed it narrowly based upon past experience and evidence �t72_LNEWSOM, Associate Justice. less, appellant admits for purposes of test- is to apply only to films falling within the offered in similar cases. Since at least July 1, 1976, appellants ing the constitutional validity of the ordi- atter description. U.S.C.A. Const.Amend• nance that the "meet the definition 'of • 12. Zoning and Planning a76 have conducted a business of selling adult Y City's interest in maintaining quality books and showing adult movies at 540 'adult' use set out in the (ordinance)." Zoning and Planning«23 Georgia Street, Vallejo, California.' At trial, appellant offered the testimony Enterprise lacked standing chal- of its civic life must be accorded high re- P g to spect in consideration of its regulation of � In February of 1978, respondent city of John Flanders, a real estate broker and_ enge local zoning ordinance restricting i council, perceiving an "adverse impact" qualified expert on commercial property, 'adult bookstores" on grounds that defini- "adult" businesses. i upon the city from "adult bookstores" and who conducted a survey to determine loca- ion of adult bookstore was vague where 13. Zoning and Planning«647 ; 1r73 "adult theatres" (Va�lejo Municipal Code, tions for adult bookstores and adult the !nterprise admitted that its business fell § 16.57.020Q), enacted ordinance no. 411 1 atres which are both legal under the ordi- a-ithin the definitions of the ordinance and Record was sufficient to justify - tion of "adult bookstores" and "adultlt the- V.C. (2d); hereafter the "ordinance"), nance and economically feasible. Accord- lefinitions were not so vague as to cause j" which provides that such establishments, ing to Flanders, the three-block downtown ,ersons not before court to refrain from aters, restricting them to certain zoning i classifications and prohibiting them from defined elsewhere in the ordinance, can be area, although zoned C—P and containing a ;.3rotected activities. U.S.C.A. Const. located only in three zoning districts: Lin- few available sites, cannot accommodate Amend. 1. locating within 1,000 feet of one another,or ear Commercial Districts(C—L); Pedestrian appellant's business due to the presence of within 500 feet of certain enumerated uses, i Shopping and Service Districts (C—P); and another adult bookstore, Bachelor Books, Constitutional Law a90.10, 6) PP g although ordinance failed to show any fat I Intensive Use Districts (I—V). The ordi- within 100 feet of all other downtown busi- Distribution of books or operation of tual basis for its finding or otherwise sup nance also directs that no "adult 'book- nesses. )icture arcade is an activity entitled to port its claimed purpose by proof in the First Amendment protection; fact that record, in view of absence of motives of store" or 'adult theatre', may be located In the remaining districts zoned to ac- uch businesses operate to make a profit or censorship or suppression and where ordi- within 500 feet of a residential zone, park, commodate appellant's enterprise under Libra or school, or within nay exhibit pictures which are offensive or playground, rY the ordinance, Flanders found a number of nance was actuated by legitimate concerns acking in social worth does not deprive over proper city planning. 1000 feet of another such business. legally available sites in south and north- :hem of First Amendment rights. U.S.C.A. Additionally,as originally enacted the or- west Vallejo. But in Flanders' opinion, �onst.Amend. 1. 14. Constitutional Law 0=90(3) dinance required adult bookstores and none of these loca ions would be economi- c. Constitutional Law «900) Legislation affecting freedom of ex- 1. While a number of appellants have joined in 2. Bachelor Books and Funville Amusement The- Any law which imposes prior restraint pression must be narrowly drawn, test be- this appeal, we will hereafter refer to the ap• atre and Bookshop are appellants in another )n exercise of First Amendment rights ing whether there are less drastic means pealing parties in the singular to describe the action before this Division (A014416) in which business affected by one ordinance here under the ordinance is challenged on constitutional omes to court with a heavy presumption available to accomplish the government's scrutiny. grounds. against its constitutional validity; legisla- purpose. U.S.C.A. Const.Amend. 1. 146 213 CALIFORNIA REPORTER 167 Cal.App.3d 1174 i 167 Cal.App.3d 1176 CITY OF VALLEJO v. ADULT BOOKS 147 Cite as 213 Cal.Rptr.143(CalApp.1 Dist. 1985) (ally suitable for use as an adult theatre or shows or provides for a fee, films, twenty- i courts.'" (Young, supra, 427 U.S. at p. (51 While the phrase "other sexual ex adult bookstore. Each of the legally avail- five percent or more of the number of 60, 96 S.Ct. at p. 2447; see also Erznozzi.ik citement and sexual conduct" similarly able sites was, according to Flanders, ei- which show any of the acts described in v. City of Jacksonznlle(1975)422 U.S. 205, lacks specificity, we do not find it so inher ther unavailable for rental, without suffi- section 16.04.011. This includes any video 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125; ently vague as to pose a "real and substam cient pedestrian traffic to attract custom- tape system which displays on a viewer, Purple Onion, Inc. v. Jackson (N.D.Ga. tial" threat to the free exercise of Firsl ers, or lacking a building suited to appel- screen, or television set. This section in- 1981) 511 F.Supp. 1207, 1218.) Amendment rights. As in Young, moss lant's business. Flanders also testified eludes any motel which provides any such The language of the ordinance which ap- books and films will either clearly fall with- that it would not be economically feasible films, video tape, cartridges,or other view- pellant challenges is the phrase "other sex- in the scope of the ordinance or not. Ex for an adult theatre or adult bookstore to ing system for the use of guests or custom- ! ual excitement or sexual conduct." Appel. amples of "sexual excitement or sexua! purchase a vacant lot and construct its own ers in individual rooms, or otherwise." lant maintains that such language, used conduct" are specifically enumerated in the building in compliance with the Vallejo Respondent contends that appellants, J1175 together with other specifically identified ordinance, providing guidelines which car,. building code. having admitted that their business falls sexual acts to describe the nature of "vis_ be used to construe the more general lam On the other hand, a number of legally within the definitions of "adult bookstore" ' ual representations" which, if found to guage of the law. (People v. Hernandez available and vacant sites in the Larwin and "adult theatre," lack standing to chal- comprise 25 percent or more of a mer (1978)90 Cal.App.3d 309,315, 155 Cal.Rptr Plaza Shopping Center, Vallejo Industrial lenge the ordinance on vagueness grounds. chant's stock, qualifies the business as an 1.) And any remaining ambiguity can, ir. Park, and the downtown area were sug- "adult bookstore" or"adult theatre" under our view, be readily clarified by a "narrow gested by respondent. While the evidence I1-31 It is the rule that a litigant whose i the ordinance, is impermissibly vague. ing construction" in the state courts with indicates that the owners of many legal conduct is precisely proscribed by a statute out insuperable difficulty. sites,such as in the Larwin Plaza Shopping has no standing to argue that the law is In Young, a vagueness challenge was Center, would not rent space to an adult vague as applied to others. (Basia.rdanes made to ordinances which classified a the- [6,71 We perceive other ambiguities it bookstore or adult theatre, other permissi- v. City of Galveston(5th Cir.1982)682 F.2d I atre as "adult" if it presented ' material the ordinance. For instance, a theatre distinguished or characterized by an em- showing films "twenty five percent or b1e locations were not, at least according to 1203, 1210; Duffy 1'. Stale Bd. of Equa.li phasis on matter depicting, describing or more of the number of which" depict sexu our review of the record, established as zation (1984) 152 Cal.App.3d 1156, 1171, unavailable or unsuitable for adult uses. 199 Cal.Rptr. 886; Gates v. Municipal relating to "Specified Sexual Activities" or al conduct, qualifies as an "adult theatre' Court 1982 135 Cal.App.3d 309. 312-313, "Specified Anatomical Areas" [as specif- and is subject to the zoning provisions of Appellant has challenged the constitu ( ) Pp (ally defined elsewhere in the law].'" (Id., the ordinance. The ordinance, however tionality of the ordinance on grounds that 185 Cal.Rptr. 330.) _As noted in In re Cre- 427 U.S. at p. 53, 96 S.Ct. at p. 2444.) The fails to specify whether the 25 percent fig it is vague and violative of the First filer(1961) 56 Cal.2d 308, 313, 14 Cal.Rptr. 1 Amendment. Appeal has been taken from 289, 363 P.2d 305, "one will not be heard to court found that the phrase "characterized ure applies to films containing only isolate( a judgment of the trial court upholding the attack a statute on grounds that are not � ,L1,e by an emphasis"on sexually1explicit activi- depictions of sexual conduct or those distin shown to applicable himself and ... a 1 ties would not have a sufficient deterrent guished or characterized by an emphasis constitutionality of the ordinance. a PP r effect upon the exercise of protected ex- upon depictions of such conduct. While th( conceivable I Appellant complains that the ordinance is court will not consider every pression to permit a party plainly falling ambiguity is troubling, we construe it nar unconstitutionally vague. The new zoning situation which might arise under the tan within the coverage of the ordinances to rowly as applying only to films which fal provisions apply to "adult bookstores" and guage of the statute and will not consider + assert a vagueness challenge. The court within the latter description (Kuhns v "adult theatres," terms which appellant ar the question of constitutionality with refer ` explained: "For most films the question Board of Supervisors (1982) 128 Cal ues are not defined with sufficient cer- ence to hypothetical situations." (See also g Gates, supra, 135 Cal.App.3d at pp. 312 will be readily answerable; to the extent App.3d 369, 375, 181 Cal.Rptr. 1). So do - tainty in the ordinance. that an area of doubt exists, we see no ing, we conclude that the challenged ]an The ordinance, in section 16.04.011 of the 313, 185 Cal.Rptr. 330.) 1 reason why the ordinances are not'readily guage does not so threaten First Amend Vallejo Zoning Code, defines "adult book- [41 An exception is recognized if the subject to a narrowing construction by the ment rights as to permit a challenge to it! store" as follows: "'Adult bookstore'" statute "may cause persons not before the state courts.' Since there is surely a less clarity by an enterprise such as Adul means any commercial establishment that Court to refrain from engaging in constitu- vital interest in the uninhibited exhibition Books,Inc.,which uncontestably falls with has twenty-five percent or more of its stock tionally protected speech or expression." of material that is on the borderline be- in its regulatory scope. We according]) in books, magazines, photographs, draw- (Young v. American Mini Theatres (1976) tween pornography and artistic expression' find that appellant lacks standing to chal ings, motion pictures, films or other visual 427 U.S. 50, 60, 96 S.Ct. 2440, 2447, 49 than in the free dissemination of ideas of lenge the ordinance on vagueness grounds representations which describe or depict L.Ed.2d 310; see also Ghafari r. ?l,'unici- � social and political significance, and since (Young, supra, 427 U.S. at p. 61, 96 S.Ct sexual intercourse, homosexual acts, mas- pal Court (1978) 87 Cal.App.3d 255, 263, the limited amount of uncertainty in the at p. 2448; Basiardanes v. City of Galves turbation, fellatio, cunnilingus, bestiality, 150 Cal.Rptr. 813.) The First Amendment ordinances is easily susceptible of a nar- ton, supra, 682 F.2d 1203, 1211-1212 sodomy, sadomasochistic abuse or other standing exception applies only if the stat- rowing construction, we think this is an Castner v. City of Oakland (1982) IT sexual excitement or sexual conduct. (Ord. ute's deterrent effect on legitimate expres- inappropriate case in which to adjudicate Cal.App.3d 94, 98, 180 Cal.Rptr. 682; Wal 558 N.C. (2d) Sec. 2 (part), 1980.)" sion is"'both real and substantial,'"and if the hypothetical claims of persons not be- nut Properties, Inc. v. City Council(1980 An "adult theatre" is defined in section the statute is not "'readily subject to a fore the Court." (Id., at p. 61, 96 S.Ct. at 100 Cal.App.3d 1018, 1072, 161 Cal.Rptr 16.04.12 as 11any establishment which narrowing construction by the state p. 2448.) 411.) ] iS 213 CALIFORNIA REPORTER 167 Cal.App.3c1 1177 I 167 Cal.App.3d 1179 CITY OF VALLEJO v. ADULT BOOKS S 4 Cite as 213 Cal.Rptr.143 (Cal-App.I Dtst. 1985) _LAppellant also contends that the ordi- City of 14,741tier v. 14alnut Properties. I however, complains that respondent has the test being "whether there are 'lee nance violates its First Amendment rights. Inc. (1983) 149 Cal.App.3d 633, 641, 197 failed to show any factual basis for its drastic means' available to accomplish=th The basis of this argument is that the Cal.Rptr. 127). And the government has finding or otherwise support its claimed government's purpose." (People V. Glaz zoning provisions of the ordinance are over- the burden of showing not only that such a purpose by proof in the record. The law supra, 27 Cal.3d 841, 847, 166 Cal.Rpt ly broad in scope and effect and hence law furthers some important or substantial does not require such proof. The justifica- 859, 614 P.2d 291.) "An ordinance must L unduly restrictive of public access to pro- governmental interest unrelated to the sup- tion for zoning laws locating adult busi- narrowly kected at the evil being attacke tected material.3 pression of free expression, but also that it nesses in specified areas can be based upon if First Amendment activity is involved. [8] It is of course established beyond is narrowly fashioned to ensure the least past experience and evidence offered in (Id., at p. 848, 166 Cal.Rptr. 859, 614 P.2 cavil that the distribution of books or oper- Possible restriction on First Amendment similar cases. (Strand Property Corp. V. 291.) ation of a picture arcade is an activity rights in the protection of the governmen- Municipal Court (1983) 198 Cal.App.3d In Young v. American Mini Theatre entitled to First Amendment protection. tal interest. (United States v. O'Brien. 882, 887, 200 Cal.Rptr. 47; County of Sac- supra, 427 U.S. 50, 96 S.Ct. 2940, 9 (Schad v. Mount Ephraim (1980) 452 U.S. (1968) 391 U.S. 367, 377, 88 S.Ct. 1673, ramento v. Superior Court, supra, 137 L.Ed.2d 310, the United States Suprem 61,65, 101 S.Ct. 2176,2180,68 L.Ed.2d 671: 1679, 20 L.Ed.2d 672; People 7,. Glaze, Cal.App.3d 448, 455, 187 Cal.Rptr. 154.) A Court was called upon to determine th People v. Glaze (1980) 27 Cal.3d 841, 846, supra, 27 Cal.3d at p. 846, 166 CaLRptr, city's interest in maintaining the quality of 5 , . _ ; County Sacramento its civic life "must be accorded high re- constitutionality a Detroit zoning ord 166 Cal.Rptr. 859, 614 P.2d 291; Osnrond 89 614 P.2d �91 C t✓o f v. Superior Court (1982 137 Cal.App.3d spect"(Young v.American Mini Theatres, nance which provided that adult movie the z.�. EIiAP Inc. (1984) 153 Cal.App.3d 892, p ) pp' atres could not locate within 1000 feet ( 853,200 Cal.Rptr.674.) The fact that such 448, 454, 187 Cal.Rptr. 154; People v. Ka- supra, 427 U.S. 50, 71, 96 S.Ct. 2440, 2453, operate to make a profit or may trinak, supra, 136 Cal.App.3d at p. 151, 49 L.Ed.2d 310). Since in our view the any other two regulated ordinance The Cost businesses o p I held that Detroit's zoning ordinance was 185 Cal.Rptr. ; , Inc. v. y of "exhibit pictures which are offensive or 869 ElFAP I City assertion of that interest by the City of lacking in social worth" does not deprive Los Angeles (1979) 97 Cal.App.3d 179, 189, Vallejo in the present instance is free from legitimate "limitation on the place whet 158 Cal.Rptr. 579.) As the court noted in motives of censorship or suppression, and adult films may be exhibited,"(id., at p. 7. them of First Amendment rights. (People P 96 S.Ct. at 2453), explaining that th v. Glaze, supra, 27 Cal.3d at p. 846, 166 Schad v. Mount Ephraim, supra, 452 U.S. is actuated by legitimate concerns over p P g P 61, at pp. 75-76, 101 S.Ct. 2176 at p. 2186, proper city planning,we find in the present 'market for this commodity is essential] Cal.Rptr. 859 614 P.2d 291• see also Os record sufficient justification for the chat unrestrained" (id., at p. 62, 96 S.Ct. at 1 mond,supra, 153 Cal.App.3d at p.843, 200 68 L.Ed.2d 671: "To be reasonable, time, 2448. The plurality opinion acknowledge( Cal.Rptr. 674.) place, and manner restrictions not only lenged regulations. (Ibid.; see also ) P Y P g must serve significant state interests but 1;t7s Strand, supra, 148 Cal.App.3d at p. 887, however, that "[t]he situation would L [9,10] Any law which imposes a prior J'" 200 Cal.Rptr. 47; County of Sacramento, quite different if the ordinance had t[ also must leave open adequate alternative p PP P effect of suppressing, greatly restraint on the exercise of First Atnend supra, 147 Cal.App.3d at 455, 187 Cal. PP g,or reatl restrictin Rptchannels of communication." (See also access to lawful speech." (Id., at 71, fi ment rights comes to the court with a City of Whittier v. Walnut Properties, ; 115 154; Pringle v. City of Covina(1981) P P• "heavy presumption against its constitu 115 Cal.App.3d 151, 162, 171 Cal.Rptr. 251; 35, 96 S.Ct at p. 2453, fn. 35; see al: Inc., supra, 149 Cal.App.3d 633, 641, 197 tional validity." (Vance v Universal Cal.Rptr. 127.) j Walnut PropertiesInc.17c. v. City Council, Ba side Enterprises, Inc. v. Carson (M.I Amusement Co. (1980) 445 U.S. 308, 317, supra, 100 Cal.App.3d 1018, 1023, 161 Cal. F1a.1978) 450 F.Supp. 696, 701.) The col 100 S.Ct. 1156, 1162, 63 L.Ed.2d 413; Ro- [11-131 We readily acknowledge the le- 1 Rptr. 411.) curring opinion of Mr. Justice Powell B fi sen v. Port o Portland (9th Cir.1981 641 itimate and substantial concern the City i cused upon the effect of the legislatia f ) g i [14] It remains for us to examine the F.2d 1243, 1246-124 7; Kuhns v. Board of of Vallejo has in protecting the moral effect of the challenged legislation upon concluding that the impact of the Detro Supervisors, supra, 128 Cal.App.3d 369, aesthetic and commercial quality of its freedom of expression. (Schneider v, ordinance was merely "incidental and min 374, 181 Cal.Rptr. 1.) Freedom of speech neighborhoods and commerce by restrict- Stale(1939)308 U.S. 147, 161, 60 S.Ct. 146, mat"not having the"effect f suppressjn enjoys a"preferred position"under the law ing"adult"businesses to designated areas. 150, 84 L.Ed. 155; Basiardanes v. City of Production of or, to any significant degre (People v. Glaze,supra, 27 Cal.3d 841,845, Contained within the ordinance is a finding Galveston, supra, 682 F.2d 1203, 1214; restricting access to adult movies." (Io 166 Cal.Rptr. 859, 614 P.2d 291; People n b respondent city council that the purpose 427 U.S. at pp. 77-79, 96 S.Ct. at pp. 245C P P Y P P P Strand Property Corp. v. Municipal Katrinak (1982) 136 Cal.App.3d 145, 151, of the new zoning provisions is to "allevi- Court, supra, 148 Cal.App.3d 882, 887, 200 2456.) 185 Cal.Rptr. 869). Legislation which is ate" the "adverse impact" of "adult the- i Cal.Rptr. 47.) As we have said, legislation Subsequently, in Schad v. Mount Ephn alleged to regulate or infringe upon First atres and adult bookstores ... on the tone of this character must be narrowly drawn, ins, supra, 452 U.S. 61, 101 S.Ct. 2176, Amendment rights will be subjected to clos- of commerce in the city generally." (Valle- i est scrutiny (Rosen, Supra, at p. 1246; jo Mun.Code, § 16.57.020Q.)4 Appellant, 1 placed on major thoroughfares, tend to down- shine parlors and taxi dance halls. (Your grade the image of the City and to make it a less supra, 427 U.S. at p. 52, 96 S.Ct. at p. 244- ISince appellants are challenging the impact of 4. Section 16.57.0200 states: 'The Cily council i desirable place to work and live." the ordinance upon their own rights of ex res- finds that adult bookstores and adult theaters ! 6. Since there is no majority without Mr.Justi, P g P , 5. The zoning ordinance was an amendment to sion. they have undisputed standing to argue ... have an adverse impact on the tone of an anti-skid row ordinance that had been Powell's vote, his views and criteria must I that the ordinance is invalid under the First commerce in the city generally. They cause adopted 10 years earlier by the Detroit Common satisfied if a zoning ordinance is to withstar Amendment. (Schad v.Mount Ephraim,supra, mental distress and anguish to nearby residents-, Council. The amendment added adult business- First Amendment scrutiny,as subsequent cas 452 U.S.61,66, 101 S.Ct.2176.2181.68 L.Ed.2d they attract undesirable persons who pose dan- es to a group of previously regulated uses such have acknowledged. (Avalon Cinema Corp. 671; Basiardanes v.City of Galveston,supra,682 gers to school children and who interfere with as cabarets,hotels,bars,pawn shops,pool halls, Thompson (8th Cir.1981) 667 F.2d 659, 66: F.2d 1203, 1210.) adjoining businesses; adult bookstores, when public lodging houses,second-hand stores,shoe- - 50 213 CALIFORNIA REPORTER 167 Cal.App.3d 1179 PACIFIC COAST SHIPPING v. FRANCHISE TAX BD. -51 167 Cal.App.3d 312 Cite as 213 CalApir.151 (CalApp.1 Dist. 1985) ..Ed.2d 671, the high court struck down a Still, the ordinance does not impose an pra, 100 Cal.App.3d 1018, 1023, 161 Cal. flag vessels. The San Francisco Superior oning ordinance which had the effect of outright ban; "[i]t is a content-neutral reg- Rptr. 411.) Court, Stuart R. Pollak, J., rendered s lm- xcluding all non-obscene nude dancing in ulation of the time, place, and manner of Appellant's final contention is that the mary judgment for taxpayer, and.appeal :te Borough of Mount Ephraim. The court protected speech,not a direct abrogation or conditional use permit requirements of the was taken. The Court of Appeal, Newsom, Mere emphasized that legislation regulat- infringement of First Amendment rights." ordinance are unconstitutionally broad, J., held that exemption provision of federal ig free expression "must not only assess (County of Sacramento v. Superior i vesting excessive discretion in municipal Internal Revenue Code fell within scope of to substantiality of the governmental in Court, supra, 137 Cal.App.3d 948,453, 187 authorities, but this issue has been mooted the "treaty or agreement" required to ex- :rests asserted but also determine wheth Cal.Rptr. 154; see also El1'AP, Inc. v. City by an amendment to the ordinance elimi- empt corporation such as plaintiff from r those interests could be served by means of Los Angeles, supra, 97 Cal.App.3d 179, nating the permit requirement. We thus California income taxation provided reci- hat would be less intrusive on activity 188-190, 158 Cal.Rptr. 579.) Permissible decline to consider it. (Paul v. Milk De- procity is granted as to taxation of United .rotected by the First Amendment." (Id., locations available to adult uses are re- pots, Inc. (1964) 62 Cal.2d 129, 132, 41 States corporations. t p. 70, 101 S.Ct. at p. 2183.) Distinguish- stricted by the ordinance,but not legislated i Cal.Rptr. 468, 396 P.2d 924; Consol. etc. Affirmed. :tg Young on the ground that the Detroit out of existence. Corp. v. United A. etc. Workers (1946) 27 ,rdinance "did not affect the number of Cal.2d 859 863 167 P.2d 725.) 1. Taxation «1049 Ault movie h theatres that could operate in While evidence of the impact of the ordi- he city," at p. a S. at p. nance upon public access to adult theatres The judgment is affirmed. The "agreement" contemplated by 2184.), the court concluded that"[t]he Bor- and bookstores was disputed, we think re- statute exempting from corporate income ugh has not established that its interests spondent established without doubt the ex- HOLMDAHL, J., concurs. taxation income derived from operation of :ould not be met by restrictions that are istence within the city of reasonably avail- RACANELLI, Presiding Justice, concur- aircraft or ships by foreign corporation pro- ess intrusive on protected forms of expres- able sites conforming to the zoning and rin vided the corporation's income is exempt ;ion." (Id., at p. 74, 101 S.Ct. at p. 2186.) distance requirements of the ordinance for g' from national income taxes by reason of a operation of "adult bookstores" and "adult Since it is clear that appellants lack the treaty or agreement with the United States [15I Thus, the crucial inquiry here be theatres," thereby meeting its burden of i necessary standing to challenge the ordi- providing for equivalent exemption to Unit- :omes: what impact will the ordinance demonstrating the absence of a govern- nance on grounds of vagueness and over- ed States corporations is an international :lave upon access to protected expression. ! breadth, I do not interpret the majority understanding between sovereign nation- lmon relevant factors In measuring that mental attempt at suppression of First g factors - g Amendment activity. We are mindful that ; opinion as having decided that constitution- states and reciprocity is not required to be mpact, the following are significant. al issue; with that reservation, I join in the achieved solely by a treaty. West's Ann. First, respondent's ordinance is broad—fa appellant produced by expert testimony evi- fa-cially broader than the Detroit zoning law dence of the considerable economic difficul- result reached by the majority. Cal.Rev. S T.Code § 24320. tv of locating "adult" uses at many legally See publication Words and Phrases at issue in Young. An "adult bookstore" O SA[rNUNAtASYSILM for other judicial constructions and or "adult theatre" is not only prohibited permissible sites within the City of Vallejo. r definitions. within 1000 feet of another such regulated Such evidence, however, falls far short of use but must be located within one of establishing that appellant is foreclosed or 2. Taxation a1049 three specified zoning districts and cannot unreasonably restricted by the ordinance Implicit in phrase "treaty or agree- operate within 500 feet of numerous other from effectively operating within the city 167 Cal.App.3d 312 ment," as used in statute providing for enumerated uses, such as playgrounds, limits. The issue is one of degree, and we Ltz PACIFIC COAST SHIPPING exemption from corporate income taxation parks, libraries, schools or residential are satisfied that the limitations based COMPANY, Plaintiff and of income derived by foreign corporation zones. Such zoning and linear distance upon prospective relocation are not oner- Respondent, from operation of an aircraft or ship pro- requirements are rather more restrictive ous. We are also convinced that the ordi- v vided the income is exempt from national than those prescribed by the Detroit ordi. nance will not result in an oppressive and FRANCHISE TAX BOARD, income taxes by reason of a treaty or nance. (Bayside Enterprises, Inc. v. Car. hence unconstitutional restriction of public Defendant and Appellant. agreement between the foreign countr} son, supra, 450 F.Supp. 696.) Moreover, access to adult material as found, for ex- and United States providing for reciprocit' the ordinance has no grandfather clause ample, in Alexander v. City of Minne- A021789. to United States corporations, is a modus permitting preexisting nonconforming uses apolis (D.C.Mn 1982) 531 F.Supp. 1162, af- Court of Appeal, First District, vivendi whereby nation-states manifest an to continue operations, as do most of the firmed 698 F.2d 936, and Purple Onion, Division 1. intent to effect a workable compromise on valid zoning regulations enacted in the Inc. v. Jackson, supra, 511 F.Supp. 1207, issues of contention and provision of Inter. wake of Young. (Avalon Cinema Corp. v. cases relied upon by appellant. We accord- April 25, 1985. nal Revenue Code governing exemption of Thompson, supra; 667 F.2d 659,662; Pur- ingly conclude that the ordinance is not so earnings derived by a foreign corporation. ple Onion, Inc. v. Jackson, supra, 511 pervasive in its constraints as to violate Liberian corporations deriving their from operation of a ship documented under F.Supp. 1207, 1224.) Here,the ordinance is appellant's First Amendment rights. earnings from operation of Liberian flag laws of a foreign country which gran; applicable to all existing businesses, mak- (Castner t:City of Oakland, supra, 129 vessels in international commerce sought equivalent exemption to United States citi ing its impact upon access to protected Cal.App.3d 94, 98, 180 Cal.Rptr. 682; Wal- refund of deficiency income tax assess- zens and corporations provides the mecha material more substantial. (Ibid.) nut Properties, Inc. v. City Council, su- ment, claiming an exemption for foreign nism for such a modus vivendi. 26 U.S 1254 973 FEJ)ERAL HEPUii'l-En, 2a St m.EJ Cite as 973 Fad zzss(Sib Ctr. 1992) cording to the defendants, the FDIC did nal of an unendorsed note payable to the the copies of the Vernon Notes and Guar- point to any summary judgment proof tc not prove that the notes and guaranties order of another is not alone sufficient anties were true and correct copies of the establish their legitimate fear that the were transferred from Old Vernon to Ver- evidence under Texas law to prove that one originals. FDIC-Receiver is not the owner and holder non,F.S.A.10 At oral argument,the FDIC- is the owner and holder."11 The court, The defendants contend that, although of Vernon Note =2. Therefore, we find - Receiver conceded that the Purchase&As- however, also acknowledged the jurispru• there are several indorsements on Vernon the affidavits are sufficient with respect to sumption Agreement verifying the transfer dence of this circuit which seeks not to Note = 1, because none of those is to the Vernon Note #2 and we affirm the grant from the FSLIC as receiver for Old Vernon impose a standard so strict that summary FDIC-Receiver in the capacity in which it of summary judgment on Vernon Note#2. to Vernon, F.S.A. is not in the record, but judgment would be all but impossible for now sues, the defendants are at risk of asserted that there is nonetheless suffi. plaintiffs in cases such as these. Id. at 29, multiple exposure on the same claim. The III cient evidence to establish that the FDIC- The court then remarked that it"would not most recent indorsement on Vernon Note For the foregoing reasons, we AFFIRM Receiver is the owner and holder of the hesitate to reverse summary judgment had =1 does contain the following language: in part and REVERSE in part and RE- Notes and Guaranties. Appellants pointed to evidence in the "Pay to the order of Federal Deposit Insur• MAND for further proceedings. record to the effect that they had a legit. ance Corporation as Manager of the FSLIC [81 In order to recover under the Ver• imate fear that the RTC was not the owner Resolution Fund as Receiver of Vernon non Notes and Guaranties, the FDIC-Re- and holder of the note in question and that Sayings & Loan" (Old Vernon). The O S[Fr NUMBIR SYSIFM center must establish that: the some other entity might later approach FDIC-Receiver asserts, however, that all r dams signed the notes and the guarantyranty them demanding payment." Id. In that that is missing from this indorsement are agreements; (2) the FDIC-Receiver is the event, affidavits attesting that the RTC the words "Association"and"F.S.A." The present owner or holder of the notes and had taken possession of the assets of the FDIC-Receiver also notes that the entity LAKELAND LOUNGE OF JACKSON, the guaranty agreements; and(3)the notes failed institution would be insufficient to "the FDIC as Manager of the FSLIC Reso- INC., Plaintiff-Appellee, are in default. See RTC v. Marshall, 939 support the summary judgment. Id. lution Fund as Receiver for Vernon Sav- F.2d 274, 276 (5th Cir.1991); see also B.L. However, because the defendants in Camp { ings& Loan" does not and never has exist- V. 1ltelson & Assocs. v. Sunbelt Say., 733 failed to point to anything in the record to F.Supp. 1106, 1109-10 (N.D.Tex.1990); establish their legitimate fear that an enti• ; ed. Appellee's Brief, at 17 n. 11, FDIC v. CITY OF JACKSON, MISSISSIPPI, FSLIC v. Atkinson-Smith Univ. Park ty other than the RTC owns and holds the Selaiden Builders, Inc., No. 91-1815 (5th Defendant-Appellant. Joint Venture, 729 F.Su 1130 1132 1 Cir.filed Nov.27,1991). However,there is T A o. 92-7291. Pp• note, summary judgment was appropriate. no summary judgment evidence to support (N.D.Tex.1989). Id. at 29-30. the FDIC's contention regarding the non- United States Court of Appeals, Recently, in RTC v. Camp, 965 F.2d 25 [9) Applying the Camp standard to this existence of this entity. We hold that the Fifth Circuit. (5th Cir.1992), this court addressed an ap- case, we find that, with respect to one of indorsement to the "Federal Deposit Insur- Oct. 5, 1992. peal from a summary judgment on a note the Vernon Notes, the defendants have 1 ance Corporation as Manager of the FSLIC in favor of the RTC. In Cam the RTC p judgment t Rehearing and Rehearing En Bane p, pointed to some summary eyi• Resolution Fund as Receiver of Vernon did not produce the original note upon dence to establish their legitimate fear that Savings & Loan" is the type of evidence Denied Nov. 4 1992. which it sought recovery, but rather it sub- the FDIC-Receiver is not the holder of the ' contemplated by Camp which establishes a mitted a copy of the note,along with sever notes and guaranties. Robert St.John, an € real question as to the identity of the own- Adult business challenged city's al affidavits. One affiant testified that the asset manager of the FDIC-Receiver,testi• er and holder of Vernon Note # 1. See id amendment to zoning ordinance to restrict photocopy was a true and correct copy of fied that the FDIC-Receiver is the owner at 29 n. 1. Therefore,we reverse the grant such businesses to areas zoned for light the note. The other affidavits submitted and holder of both the Vernon Notes and 1 of summary judgment on Vernon Note#1. industrial use and, with use permit, to by the RTC contained statements that the Guaranties, Wilma How), a documentation f [101 Regarding Vernon Note #2, how- some of the central business district. The RTC took possession and ownership of the supervisor for the FDIC-Receiver,testified i failed institution's assets, including the that the FDIC-Receiver is the current own- I ever, the defendants failed to produce or United States District Court for the South- note in question. In examining whether er of the Vernon:Votes and Guaranties and � ever, recently sanctioned the proffer of affida- the FSLIC as receiver for Vernon,F.S.A.,and as the RTC had met its summaryjudgment that the were t] g y previously Owned by the 1 tits supporting a summary judgment, against a a result of her position as assistant compliance burden, the court initially "acknowledge[d] FSLIC as receiver, by Vernon, F.S.A., and challenge to the affidavits which stated that, officer for Vernon, F.S.A. and for Old Vernon. the fact that mere possession of the on t b Old Vernon. = Howl also testified that because"while the affiants had personal knowl• Howl also states that she is the custodian of the P g Y I edge that RTC took over assets of the failed records and that she has held that position con- institutions, they had no precise personal tinuously since 1984. Moreover, Howl specifi- 10. The defendants suggest that the notes and statements,and are based on hearsay—and knowledge of[the]particular note[sued upon]:' tally referenced each of the Vernon Notes and guaranties may have remained with the FSLIC on the personal knowledge of the affiants. Rule RTC v.Camp,965 F.2d 25,29(5th Cir.1992). In Guaranties in question. We find that,based on as receiver for Old Vernon. 56(e) of the Federal Rules of Civil Procedure his affidavit, St. John states that the facts con* the affiants' personal knowledge and on their 11. Id. at 29, citing Jernigan v. Bank One, 803 provides,in pan,that"affidavits shall be made cerning the FDIC-Receiver's ownership of the positions for the FDIC-Receiver and its prede- S.W.2d 774, 776-77 (Tex.App.—Houston 114th on personal knowledge, shall set forth such Vernon Notes and Guaranties are based on his cessors,the affiants were competent to testify as Dist.] 1991, no writ). facts as would be admissible in evidence, and review of the FDIC-Receiver's business records. to the FDIC-Receiver's status as owner and shall show affirmatively that the affiant is com- Howl states in her affidavit that the statements holder of the Vernon Notes and Guaranties. 12. The defendants contend that the district petent to testify to the matters stated there• made therein are within her personal knowl• See Camp, 965 F.2d at 29; see also FSLIC v. court erred in not striking the Affidavits be- in...." Id, see also Cordon v. Watson,622 F.2d edge as a result of her position as documenta- Atkinson-Smith Univ. Park Joint Venture, 729 cause they contain unsupported conclusory 120, 123 (51h Cir.1980). This court has, h0w' tion supervisor for the FDIC-Receiver and for F.Supp. 1130, 1132 (N.D.Tex.1989). 1256 973 FEDERAL REPORTER, 2d SERIES LAftr LAA1) Lul ..uc %✓Ili %jr f iGU C1te as 973 F.2d 1255(5th C1r. 1992) ern District of Mississippi at Jackson, Wil- 4. Constitutional Law a90.40) cause of great public uproar,but failed. A F.Supp. 455. Lakeland Lounge opened ft liam Henry Barbour, Jr., Chief Judge, 800 Zoning and Planning e7167 few weeks later, another club opened. business soon afterward. F.Supp. 455, declared ordinance unconstitu- City provided sufficient alternative ar. In September, the mayor had directed tional and permanently enjoined its en- enues of expression for adult businesses in the zoning administrator to begin the II forcement. City appealed. The Court of amending zoning ordinance to restrict process for the adoption of some measure Appeals, Jerry E. Smith, Circuit Judge, those businesses to areas zoned for light to address the public concern. The city [1,2] The Jackson ordinance does not held that: (1) city council properly consid- industrial use and, with use permit, to attorney's office and the planning depart- ban adult businesses outright but merely ered secondary effects of adult businesses some of the central business district; sub. ment began to assemble materials concern- limits the areas of the city in which they in amending zoning ordinance, and (2) city stantial number of potential sites existed ing adult entertainment and to draft a new may operate. It is thus properly analyzed provided sufficient alternative avenues of for those businesses, and there was no regulation. They received examples of oth- as a form of time, place, and manner regu- expression for those businesses. requirement that specific proportion of mu- er communities' zoning ordinances regulat- lation. City of Renton v. Playtime The- Reversed and remanded. nicipality be open for adult businesses or ing adult businesses, studies about the ef- atees, 475 U.S.41,46, 106 S.Ct.925,928,89 that certain number of sites be available. fects of such establishments upon their L.Ed.2d 29 (1986) (citing Young v. Anaeri- Politz, Chief Judge,dissented and filed U.S.C.A. Const.Amend. 1. communities, and legal opinions. Several can Mini Theatres, 427 U.S.50,63&n. 18, opinion. public hearings were held to discuss the 96 S.Ct. 2440, 2449 & n. 18, 49 L.Ed.2d 310 Craig E. Brasfield and Leyser Q. Morris, matter, including an open meeting of the (1976)). As such a regulation, it presump- Deputy City Atty. Office City orris j planning board on January 21, 1992, to tively violates the First Amendment if it 1. Constitutional Law a90.4(1) Att , which five of the seven members of the city was "enacted for the purpose of restrain- Jackson, Miss., for defendant-appellant. i council were invited and five attended. Im- in speech on the basis of its content," and City zoning ordinance which did not � g P Matthew M. Moore, Jackson, Miss., for mediate] following that meeting, and also g ban adult businesses outright but merely plaintiff-a ellee. j y g g� it must be"designed to serve a substantial limited areas of city in which they might p pp i on January 21,the city council met,and the government interest and may "not unrea- operate was properly analyzed as form of Appeal from the United States District ordinance was presented but held for final sonably limit alternative avenues of com time, place, and manner regulation. Court for the Southern District of Missis- i adoption a week later. munication." Id. 475 U.S. at 47, 106 S.Ct. U.S.C.A. Const.Amend. 1. sippi, In January 1992, Lakeland Lounge of at 928. Cities may not regulate sexually, Jackson was incorporated, for the purpose oriented establishments out of mere dis; 2. Constitutional Law e-90.40) Before POLITZ, Chief Judge, SMITH of operating a restaurant/lounge with top- taste for the message they communicate While cities may not regulate sexually and BARKSDALE, Circuit Judges. less dancing, It received beer licenses that would be content-based infringement oriented establishments out of mere dis- from the city and state and executed a upon expression entitled to at least some - taste for message they communicate, local JERRY E. SMITH, Circuit Judge: i lease for a property in an area zoned "gen- protection under the First Amendment, governments can restrict adult businesses The City of Jackson, Mississippi ("Jack- era] commercial." See, e.g., Barnes it Glen Theatre, —U.S. in order to control the bad "secondary ef. son"), amended its zoning ordinance to re- On January 28, 1992, the city council —, 111 S.Ct. 2456, 2460, 115 fects" such as crime, deterioration of retail strict adult businesses to areas zoned for adopted an amendment to Jackson's zoning L.Ed.2d 504 (1991) (recognizing that nude trade, and decrease in property values that light industrial use and, with a use permit, ordinance, seeking to disperse adult enter- dancing is "expressive conduct within the the establishments bring. U.S.C.A. Const. some of the central business district. The tainment establishments. Such establish- outer perimeter of the First Amendment") Amend. 1, Lakeland Lounge of Jackson ("Lakeland"). ments were relegated to "light industrial" (plurality opinion); see Renton, 475 U.S. at which is such an establishment, challenged zoned areas, and also could be located in 46-49, 106 S.Ct. at 928-30 (discussing re- 3. Constitutional Law e=90.40) the ordinance, and the district court de- the central business district if they ob- quirement of content-neutrality). Local Zoning and Planning e-167 clared it unconstitutional because the mem- twined use permits. Additionally, adult es. governments, however, can restrict adult City council properly considered sec- bers of the city council had not properly tablishments could not be within 250 feet businesses in order to control the bad "sec- ondary effects of adult businesses in considered the secondary effects of sexual- from each other or within 1,000 feet of any ondary effects"—such as crime, deteriora- amending zoning ordinance to restrict such ly oriented businesses, so the ordinance residentially zoned property, church, tion of their retail trade, and a decrease in businesses to areas zoned for light industri- was not content-neutral. Alternatively,the school,park, or playground. The provision property values—that the establishments al use and, with use permit, to some of the court found that the ordinance did not pro- also gave pre-existing establishments three bring. See id. at 46, 106 S.Ct. at 928. central business district; drafters of ordi- vide reasonable alternative avenues of com- years to comply. In determining whether the amended or- nance relied upon studies of secondary ef- munication. Finding no constitutional in- Lakeland filed a complaint in February dinance was actually content-neutral, the firmit in what the city did, we reverse. fects,majority of council members received y Y 1992, seeking to have the ordinance de- district court followed the analysis laid out some information about those effects dur- j clared unconstitutional and its enforcement in United States v. O'Brien, 391 U.S. 367, ing open hearing of planning board, record 1. i enjoined. The district court denied Lake- 376-77, 88 S.Ct. 1673, 1678-79, 20 L.Ed. 2d did not suggest impermissible motive on In September 1991, a nightclub offering )and's motion for a temporary restraining 672(1968). The court stated that it needed part of council members,and preamble lan- topless dancing opened in Jackson. The order. After a bench trial, the court de- to determine the predominant factor moti- guage took note of secondary effects. city acknowledges that it tried to close the clared the ordinance unconstitutional and vating the city council in passing the ordi- U.S.C.A. Const.Amend. 1. club down for technical code violations, be- permanently enjoined its enforcement. 800 nance; it concluded that the city.had not 1258 y',s rr,uCntc, ICbI VIIt — .Ju city council were present at that meeting; missible motives on the part of the courict:- shown that that factor was concern over Noting that it was a close question, the as the ordinance passed by a six-to-one members, the language of the preamble secondary effects. court concluded that the city council should vote, a majority of the council must have shows the city council's awareness of the The court first observed that the ordi. have allowed at least some presentation both voted for the ordinance and attended studies upon which the planning staff re+•+ nance obviously, in its preamble, took note summarizing the secondary effects upon the meeting. lied when framing the ordinance and re- of the secondaryeffects. Second, it stated which the council purported to rely and Third, the language of the amendment fleets that a reasonable legislature with that the city had attempted to regulate, that the council had not produced any evi• constitutional motives could have enacted rather than prohibit, the adult business. dence that "it relied upon any formal stud• indicates the council's concern with the sec ondary effects. The preamble states as the ordinance. See SDJ, Inc. v. City of Third,though,the court stated that the city ies to reach the conclusion that there would follows: Houston, 837 F.2d 1268, 1274 (5th Cir. did not show whether the existence of sec. exist secondary effects if these businesses 1988),cert. denied, 489 U.S. 1052, 109 S.Ct. ondary effects had a basis in fact or, more would be allowed to continue to operate." [T]he Planning Board and City Council of 1310, 103 L.Ed.2d 579 (1989).2 importantly here,"whether that factual ba- Concluding that the city had not shown the City of Jackson,Mississippi,find that sis was considered by the (c]ity in passing that the amendment was content-neutral, ; there is substantial evidence, including the ordinance." The court held that the the court held it unconstitutional. I numerous studies, reports, and findings IV. city council had an insufficient factual on the potential harmful effect of adult [41 Having decided that the city council predicate by which to base its ordinance t entertainment uses made by other cities, III. had not properly considered the ordinance, upon secondary effects; therefore, the city experts, city planners, etc., which doc- the district court did not need to determine had not shown that the ordinance was con- [31 We believe that the district court 1 ument that such uses adversely affect whether the zoning plan provided sufficient tent-neutral. clearly erred and that the record shows I property values, cause an increase in alternative opportunities for the regulated The district court based its analysis of that the city council had sufficient informa• 1 crime, encourage businesses to move expression. It did so nevertheless, appar- the bases for the ordinance upon Renton, tion before it to enact a permissible ordi- I elsewhere, and contribute to neighbor P 1 ently foreseeing possible reversal on the in which the Court stated that a citynance. First, the office of planning, city 1 hood blight. may first issue or seeking to guide the city establish its interest in a regulation b attorney's office, and the ordinance review I It then asserts that it was " g Y I necessar Y, ex council's future deliberations. relying upon evidence"reasonably believed committee (a subcommittee of the planning pedient and in the best interest" of the to be relevant to the problem that the city board) drafted the ordinance, and they un- citizenry The court stated that any regulation addresses." 475 U.S.at 51-52, 106 S.Ct,at questionably considered, and relied upon, to regulate the operation and location of must provide reasonable alternative ave- 931. The Renton Court held that in enact- the studies as to the secondary effects of adult entertainment establishments for noes of communication for the protected ing an adult business regulation, a city's sexually oriented business while they were the purpose of stemming a potential in expression. Renton, 475 U.S. at 54, 106 justifications were not necessarily "conclu- drafting the amendment. Further, the crease in the criminal activities and dis- S.Ct.at 932. Basing its analysis upon Ren- sory and speculative"where the municipali- council could properly place some reliance turbances of the peace and good order.of ton and Woodall v. City of El Paso, 950 ty based its opinion that such businesses upon others to do research, as state law the community,maintaining property val- F.2d 255(5th Cir.), modified, 959 F.2d 1305 had bad secondary effects upon studies of requires that the planning board make rec (5th Cir.1992), cert. denied, — U.S. —, ues, preventing injuries to residential — L.Ed.2d 1992 other communities. Id. at 50, 106 S.Ct. at ommendations to the council regarding zon 113 S.Ct. 304 ( ), it 930. ing amendments. We perceive no constitu neighborhoods and commercial districts, asserted that a court must consider wheth- tional requirement that the council mem• and protecting and preserving the quali- er the regulation leaves available land that In the instant case,the district court held bets personally physically review the stud ty of life through effective land use plan, is physically, legally,and economically suit that the city had to show that it properly ies of secondary effects; such a holding; ntng' ed for adult entertainment businesses. adopted the zoning ordinance. It stated would fly in the face of legislative reality.' This language might not save a statute The court found that most of the land that there is no testimony that the mem- that was formulated without specific atten- zoned for adult businesses was actually bers of the city council ever looked at the Second, although the city council never tion to secondary effects. Nevertheless,in unavailable; it then mentioned that four studies about secondary effects or that received a written report or summary of context here, where (1) the drafters of the areas with eight to ten locations were avail- they received any summary of those stud- the studies, the city planning board held a ordinance did rely upon studies of second- able and suitable. Noting that Lakeland ies from their staff. Although one council public meeting at which the planning di � ary effects, (2) a majority of the council- argued that, under Renton, large available member testified that she had received ma- rector and other city staff members and terials about such studies, they came from citizens discussed secondary effects and 1 members did receive some information . acreage and a substantial number of sites constituents; she did not testify that she the work that had gone into the prepara- about the secondary effects during an open are required in order reasonably to offer had received copies of the material that the lion of the proposed ordinance. As testi• hearing of the planning board, and(3)noth- alternative avenues of expression, the ing in the record otherwise suggests imper court held that those sites did not provide city staffs used or that she had provided mony and the official minutes of the meet her materials to her colleagues. ing show, five of the seven members of the 2. "[We]do not ask whether the regulator subjec• studies,or the experiences of other cities." See tively believed or was motivated by other con- also 11126 Baltimore Blvd. v. Prince George's 1. In light of Renton's holding that a municipali• U.S,at—. I I I S.Ct. at 2470(opinion of Sout• cerns,but rather whether an objective lawmak- County, 886 F.2d 1415. 1420 (4th Cir.1989) (in- ty may rely upon other cities'studies of second- er,J.),one might argue that legislative findings er could have so concluded, supported by an tent as set out in legislation's preambles relevant ary effect,475 U.S. at 50, 106 S.Ct.at 930, and are no longer necessary, as the record as to f actual basis for the conclusion. Legitimate pur• to determination of content neutrality), vacated discussion in Barnes of the possibility that ordi- secondary effects has already been made. We tt1 pose may be shown by reasonable inferences on other grounds, 496 U.S. 901, 110 S.Ct. 2580, nances may be justified by their secondary ef• need not reach such a conclusion to decide this from specific testimony a individuals, local I10 then grounds, n (196 fects.without any actual legislative finding,— case, however. 1260 y/J (ate as Y73 F.2d 1255 151h Gr. IYY2) Lakeland with sufficient alternative sites 1991) (city not obliged to provide commer• REVERSED,and this matter is REMAND- place, and manner restriction unrelated`fk =.. for the carrying on of its business; if other cially desirable land). ED for further proceedings as appropriate. the suppression of free expression.' To`- current and future adult entertainment es- assess the regulators' predominant con- Nothing in the instant record indicates POLITZ, Chief Judge, dissenting: tern, "we intrude into the regulatory deci-11 lus, the number of available sites would be that all or even most of the locations are I must respectfully dissent because I Sion process to the extent that we insist inaccessible, unsafe, or without utilities or reduced proportionately. find that the ordinance of the City of Jack- upon objective evidence of purpose--a t infrastructure or that legal obstacles exist son, Mississippi violates the first amend- study or findings."6 Jackson had the bur- Vl a disagree. First, the district court � their use. See Woodall, 950 F.2d at stated that an unspecified number of the to the; Bas. See v. City of Galveston, ment. The ordinance defines its regulatory den of establishing that evidence before the locations were inadequate be scope on the basis of"adult"content and is city council entitled the council to reach its proposed q alt F.2h t203, 1214 dots not p82). Thus, therefore not content-neutral; it may only conclusion? The test does not inquire into cause they were "in remote areas of the although the record does not permit us to city and are not in any area where other be accorded the deferential review given the council members'subjective beliefs but, say with precision how many additional content-neutral regulations if it meets the rather, searches the legislative history of retail or commercial development is locat- � g , g� Y sites exist, a substantial number of poten- �� ed. Clearly this type of area would not be requirements of a time, place, and manner the ordinance for "an actual basis upon reasonable from any macroeconomic analy• tial sites do. restriction.5 In my view, these require- which an objective regulator could assess sis standpoint for any type of retail busi- Moreover, there is no requirement in ments are not met. The Jackson City the purported secondary effects.10 Al- ness,which would be the general classifica. Renton, Woodall, or elsewhere that a spe- J Council has not demonstrated that its pre- though the City need not conduct its own tion of topless cabarets." cific proportion of a municipality be open dominant intent was to control negative independent study and is certainly entitled This analysis is based upon an incorrect for adult businesses or that a certain num- secondary effects of sexually oriented busi- to rely upon empirical data from other mu- view of which legal standard to apply. The ber of sites be available. According to the nesses. In addition, even assuming the nicipalities, the regulators must have such initial pane] opinion in Woodall laid out a record, two adult entertainment clubs and ordinance to be acontent-neutral restraint studies—and not just the ordinance itself— doctrine of economic impracticality, essen- three adult bookstores were operating in of free speech, it fails because alternative before them." tially stating that a site was impractical if Jackson at the time of the trial; so includ- t channels of communication of the protected Uncontroverted testimony before the dis no adult business possibly could expect to 1ng Lakeland Lounge, there are six such speech at issue here are unavailable. trict court reveals that the Jackson Plan- establishments in the city. As a matter of The ordinance-does not qualify for the nin Board submitted no written materials Plan- profit by opening there. 950 F.2d at 2G1 n. 1 q Y g 5. That section of the opinion, which pre- arithmetic, even without the sites the dis- deferential review accorded content-neutral to the city council. The ordinance pream- sumably was the source of the district trict court stated were remote, there are restraints because it was not "designed to ble declares that the City of Jackson in- !, court's "macroeconomic" language, has more "reasonable" sites available than { combat the undesirable secondary effects" tended to regulate secondary effects, yet been withdrawn and thus has no prece- businesses with demands for them, even if I of the regulated business.6 Unless the pre- the city council members did not see— dential value. With that discussion delet- the five previously existing businesses de- 1{ dominant concern of the regulators was to much less rely upon—the data which pur- ed, Woodall merely states that "land can- tided to move into the zoned areas (which ! prevent these alleged secondary effects,we portedly engendered their alleged"predom- not be found to be reasonably available if they need not do for three years under the i should not base our review of the ordi- inant" concerns. According to the record, its physical or legal characteristics made it amortization provisions of the ordinance). nance on the presumption that it is a time, four of the seven city council members who impossible for any adult business to locate Given the limited demand for sites for sex- P � J a ually oriented businesses, this ordinance 5. See City of Renton v. Playtime Theatres, Inc., decision even states that the time, place, and there. 950 F.2d at 263. The fact that 475 U.S.41, 106 S.Ct.925,89 L.Ed.2d 29 0986); manner test was originally developed for ex- these locations do not seem particularly does not reduce the number of establish- see also SDJ, Inc. v. City of Houston, 837 F.2d pression taking place in a "public forum" and desirable for economic reasons does not ments that can open in Jackson, so it does 1268, 1273 (5th Cir.1988) ('The Menton]Court that Renton was "at least one occasion" in matter. As the Supreme Court has noted, not limit expression a When the "remote" submitted the Renton ordinance to the analysis which the Court deviated from this applica- areas of the city are included, it is plain reserved for content-neutral restraints,although tion. — U.S. —, I I I S.Ct. at 2460. "The inquiry for First Amendment put the ordinance marked businesses by the content that Lakeland has many alternative IOCa- of their product."); Note, The Content Distinc• 6. City of Renton,475 U.S.at 49,106 S.Ct.at 929. poses is not concerned with economic im- pact." Renton, 475 S.Ct. at 54, 106 S.Ct. tions for its business. Lion in Free Speech Analysis after Renton, 102 Harv.L.Rev. 1904, 1907-08 (1989) (explaining 7. Id. at 47,48, 106 S.Ct.at 928, 929; SDJ, Inc., at 932, (quoting Young v. American Mini that Renton applies a"content-neutral"standard 837 F.2d at 1273(quoting City of Renton refer- Theatres, 427 U.S. 50, 78, 96 S.Ct. 2440, V. of review to "content-based time, place, and ence to the legislatures' "predominant con. 2456, 49 L.Ed.2d 310 (1976) (Powell, J., manner regulations"). tern"). concurring)). As we have noted, "alterna- We thus find that the Jackson City Court- The Supreme Court in Barnes v.Glen Theatre, tive sites need not be commerciallyviable." ci] properly considered the secondary ef- Inc., — U.S.—, I I I S.Ct. 2456, 115 L.Ed.2d 8. SDJ, Inc., 837 F.2d at 1274. P P Y 504 (1991), analyzed a public exposure statute SDJ, 837 F.2d at 1276-77 (citing Renton). fects of adult business and provided suffi- pursuant to the four-part test enunciated in 9. City of Renton, 475 U.S.at 51-52, 106 S.C1.at See also D.G. Restaurant Corp. v. City of cient alternative avenues of expression for United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 931; SDJ, Inc., 837 F.2d at 1274. Myrtle Beach, 953 F.2d 140, 147 (4th Cir. them. The judgment of the district court is 1673, 20 L.Ed.2d 672 (1968). The O'Brien test applies to statutes without content-based refer- 10. SDJ, Inc., 837 F.2d at 1274. 3. See also the modified Woodall opinion, 959 (1981) (ordinance banning nude dancing in ences; it includes an analysis of the extent to F.2d at 1306. American Mini Theatres distinguished, because which the governmental interest is related to the 11. Id.("[W)e are persuaded that the City Council it "did not affect the number of adult movie suppression of free expression. The Barnes de- considered those studies themselves and not 4. See Schad v.Borough of Mt.Ephraim,452 U.S. theaters that could operate in the city)". cision did not suggest an expansion of Renton's merely the ordinances for which the studies 61, 71, 101 S.Ct. 2176, 2183. 68 L.Ed.2d 671 looser scrutiny for content based statutes; the provided support." (emphasis added)). voted for the ordinance did attend a public Basiardanes 21. City of Galveston 15 court City, as compared with the more than 5 dall. The record clearly shows that`pli i- meeting of the Jackson Planning Board, objected that "there [was] no evidence in percent which was available in Renton. 19 cal impossibility, rather than the Worrdall but the minutes of that meeting and the the record that the Galveston City Council In the district court the City argued that 21 macroeconomics theory, occasioned a`"dis- testimony before the trial judge did not passed[the ordinance]after careful consid• general areas were available; it presented counting of a majority of the City's pk- reflect that any empirical study data were eration or study of the effects of adult testimony regarding 32 specific sites. By posed 879 acres. The district court de- orally recited or meaningfully discussed.12 theaters on urban life."16 contrast, the SDJ, Inc. court, which admit- scribed one 300-acre site which lacked One city council member, Margaret C. Bar- In addition, I am not persuaded that the Z tedly analyzed an ordinance in the much physical access as "swampland." Another rett, did receive some materials regarding Jackson ordinance passes constitutional larger city of Houston, nonetheless re- large site in the northwest sector of the secondary effects from her constituents, muster even as a time, place, and manner i Viewed stronger evidence. One expert re- City was described as a floodplain. The but she did not circulate this data to her restriction. Even a content-neutral ordi- 1 sponsible for analyzing only 20 percent of testimony of Lakeland's expert also re- colleagues on the council. Because the nance regulating protected speech must be the City specified 40 available sites in this vealed that other alleged sites were adja- council did not examine even an extract of narrowly tailored to serve a substantial portion alone. Other evidence demonstrat- cent to high voltage power lines or within the studies upon which its predominant governmental interest and must allow for ed that at least 100 and, perhaps, up to 1,000 feet of a prohibited use. I therefore concerns purportedly rested, I find no basis reasonable alternative avenues of commu- tens of thousands of alternative sites exist- must disagree with the majority's conclu- to justify reviewing this ordinance as a nication.'- The Jackson ordinance bans ed.70 Accordingly, accepting Jackson's ar- sion that "nothing in the instant record content-neutral regulation. The City used "[a]dult arcades, adult bookstores, adult gument at full face value, its list of the indicates that all or even most of the loca- the pretext of technical code violations to cabarets, adult entertainment establish- available sites is less than impressive. tions are inaccessible, unsafe, or without attempt to close Jackson's first adult enter- ments, adult motels, and adult motion pic- From my review of the record I cannot, utilities or infrastructure or that legal ob- tainment club. It would appear that the ture theaters" from all areas except those however, accept the City's list of sites. I stacles exist to their use." ordinance's preamble is but another such. zoned as light industrial. In the light in ; cannot because I cannot justifydismissing g I respectfully dissent. The facts of this case stand in stark dustrial zones such establishments may not the district court's factual findings in this contrast to those reviewed by the SDJ, Inc. be located within 250 feet of each other or case. The district court found only four w court, wherein a specially compiled report 1,000 feet from any residentially zoned available areas containing eight to ten pro o SAlY NUMBLA SYSIIM of community effects was filed with and property, church, school, park, or play spective sites. This finding is manifestly r adopted by the city council.13 Similarly, ground. By the City's own account to the not clearly erroneous. Although the court the Renton Court quotes the material be- district court, only 879 acres of Jackson's makes one reference to macroeconomics, fore the Renton City Council which de- approximate 70,460 acres are available for which was discussed in the vacated portion scribed secondary effects of adult enter- adult entertainment uses.18 This is approx• of Woodall v. City of El Paso,21 the trial tainment and study results.14 Indeed, the imately 1.2 percent of the land mass of the court also discounted proposed sites due to Marilyn WILSON, Plaintiff-Appellant, - 12. The Minutes of the January 21, 1992 Jackson by the American Planners Association nor any physical impossibilities. The district court City Planning Board Public Nearing reflect that other type of material that either the City does not in apply each reason for V. N Quintus Greene, Director of the Office of Plan- Planning and Zoning people had or that Mrs. unavailability to each site rejected. But UT HEALTH CENTER, UT System ning, made the following comments: Barrett herself had.... the district court's detailed discussion of Police Department, Etc., et al., Mr. Greene gave a brief summary of the re- There is no testimony whatsoever that the City p search and intent that have gone into drafting Council members themselves ever looked at the available locales nonetheless reveals pp Defendants-A ellees. the proposed adult entertainment amend- the studies relied upon by its staff, or received that it did not place upon the City a duty of ments to the Zoning Ordinance. He men- any written summary of those studies, or re- i providing "sites at bargain prices."22 For No. 91-4618 tioned that adult entertainment establish• ceived any oral summary of those studies. Summary Calendar. ments would be permitted by right in I-1 (Emphasis added.) The majority would ignore example, the trial Court Considered ware- Y (Light) Industrial Districts and would be per- these factual findings which wear the buckler houses as available because they could be United States Court of Appeals, mitred by Use Permit in the C-4 Central Busi- and shield of Fed.R.Civ.P. 52(a). Converted to lounges. It also considered a Fifth Circuit. ness District. He noted these regulations - lot next to a slaughterhouse an available would prohibit such uses within 1000 feet of 13. See SDJ, Inc., 837 F.2d at 1272. any residentially zoned property, church, 1 adult entertainment site. Referencing the Oct. 6, 1992. school, park or playground. Also, no adult 14. See City of Renton,475 U.S.at 51, 106 S.Ct.at Renton economic rule, the trial court spe- entertainment establishment could be located 931• cifically discounted Lakeland's arguments within 250 feet of any other such use. He I5. 682 F.2d 1203 (5th Cir.1982). i that lack of parking rendered certain busi- Officer with university health center's displayed a map of the e which depicts all ness district sites inadequate. of the I-1 Districts and the C-4 District,where � Police force brought g action against center such uses could be allowed. 16. Basiardanes, 682 F.2d at 1215. At the very least, I must conclude that officials, alleging they demoted and dis- The district court very accurately described the ! this case should be remanded for considera• charged her in retaliation for her reports of testimony evidence regarding the hearing: 17. City of Renton, 475 U.S. at So. 106 S.Ct. at g P The only testimony that the Court has con. 930; SDJ, Inc., 837 F.2d at 1273. tion pursuant to our modifications of Woo- sexual harassment, that her discharge vio- cerning what went on at the hearing came from the testimony of Quintus Greene of the 18. The City had originally argued that a ceiling 19. City of Renton, 475 U.S. at 53, 106 S.Ct. at 21. 950 F.2d 255 (5th Cir.), modified, 959 F.2d City Planning and Zoning staff,and Mrs.Bar. of 1,043 acres were available but retreated from j 932. 1305 (5th Cir.1992). rest, the councilwoman. This testimony this position when faced with evidence regard* 22. City of Renton. 475 U.S. at 54, 106 S.Ct. at showed no consideration of the materials sent ing a restrictive covenant on 163 acres. 20. SDJ, Inc., 837 F.2d at 1277. 932. -- Cite as65 Fad 1248(SthClr. 1993) y v 1G4y' - sions on individual privacy and free move- (finding arrival from known "source city" to hibited touching between nude performers bar's dancers did not wish litigation to go -W" ment. There is a line, dim though it be, be a factor supporting reasonable,articulable and customers in adult cabarets, violated forward and no indication that bar's interest and we are satisfied that here it was suspicion for detention of luggage), cert. de- First, Fourth, and Fourteenth Amendments in litigation diverged from that of its dancers, crossed. On the objective criteria articu- nied, — U.S. —, 114 S.Ct.. 393, 126 to United States Constitution, Equal Rights and city could not dispute that its ordinance lated by the police for the detention of this L.Ed2d 342(1993); (2)she was travelling all amendment of Texas Constitution, and Tex- had direct financial impact on bar,as well as citizen, we conclude that his seizure was the way from New York City to Burlington, as .alcohol Beverage Code. After city re- bar's employees. Vernon's Ann.Texas Const. impermissible under the fourth amend- North Carolina, without knowing anyone in moved case to federal court, the United Art. 1, § 3a; Arlington, Tx., Ordinance No. ment. Burlington other than an individual nick. Mates District Court for the Northern Dis- 92-117. named "Bookie"; (3) she was instructed to trio of Texas,John H. McBryde,J., n G95 F.2d at 84 (citations omitted). granted 4. Federal Civil Procedure 0a2481 Because Torres's conviction was obtained call a non-local phone number when she ar. citi's motion for summary judgment. Bar by the use of illegally seized evidence, we rived in Burlington that proved to be listed appealed. The Court of Appeals, Patrick E. Claims that ordinance is facially invalid therefore vacate the judgment and remand to a hotel in Raleigh, North Carolina, a city Higginbotham, Circuit Judge, held that: (1) are better candidates for summary disposi- for a new trial if the government would through which she had already passed; (4) bar had standing to assert its employees'and tion than claims that ordinance was unconsti- Torres became defensive and claimed that patrons' rights; (2) ordinance did not crimi- tutionally applied. U.S.CA Const.Amend. 1. re17ACAuE p g p nalize accidental or inadvertent touching; (3)she had been asleep during the entire trip VACATED AND REMANDED. from New York Cityto Burlington when the 5. Constitutional Law �90.4(5) ordinance did not violate equal protection by investigators asked for permission to search criminalizing touching in adult cabarets but City ordinance's "no touch" provision, WILLIAMS, Circuit Judge, dissenting: touching the duffel bag, see id. (finding nervousness not in other adult entertainment establish- which prohibited g between nude per- Because I believe that the temporary de- when speaking to law enforcement officers to ments; (4) ordinance did not violate Equal former and customer,was not unconstitution- tention of Torres's duffel bag was fully sup- be a factor supporting reasonable,articulable Rights Amendment by excluding male ally overbroad in violation of First Amend- ported by a reasonable, articulable suspicion suspicion); (5) she stated that she was stay- breasts from its definition of nudity; and (5) ment; such contact was beyond expressive of criminal activity, I must respectfully dis- ing in Burlington only"a couple of days'; (6) ordinance did not violate Alcoholic Beverage scope of dancing itself, patrons had no First sent. she did not know"Bookie's" surname or ad- Code. Amendment right to touch nude dancer, and The determination of whether a reason- dress; (7)she paid cash for her tickets; and even though ordinance applied to all employ able, articulable suspicion exists to support a Affirmed. (8) she was in possession of two tickets is- ees in state of nudity, not just dancers, em- limited detention of an individual's luggage sued in different names. Taken together, ployees not engaged in expressive conduct employs a common sense approach. Sec these facts clearly established the "minimal I. Constitutional Law a42.1(6) such as dancing had no First Amendment United States v. Lender, 985 F.2d 151, 154 level of objective justification" required to Topless bar had standing to challenge right to appear in nude. U.S.CA. Const. Oth Cir.1993). The court must consider"the support the investigative detention of Tor- city ordinance's "no touch" provision as vio- Amend. 1; Arlington, Tx., Ordinance No. 92- totality ei the circumstances"the whole pie- res's bag. See INS v. Delgado, 466 U.S.210, lating First Amendment rights of bar's em- 117. lure,"weighing the evidence"not in terms of 217, 104 S.Ct. 1758, 1763, SO L.Ed?d 241 )>loyees and customers; bar's employees and 6. Constitutional Law a90.4(5) library analysis by scholars, but as under- (1984). Accordingly, I must dissent* customers could encounter practical difficul- Topless-bar patrons have no First stood by those versed in the field of law w ties in asserting their own rights, which, at Amendment right to touch nude dancer. enforcement" United. States v. Cortez, 449 o S�trnu+atRsrsnw minimum, reinforced close relationship pre- U.S.C.A Const.Amend. 1. U.S. 411, 417-18, 101 S.Ct 690, 694-95, 66 r L.Ed.2d G21 (1981). That the facts support- requisite to surrogate standing. U.S.C.A ing the reasonable, articulable suspicion,tat- Conct.Amend. 1; Arlington, Tx., Ordinance 7. Constitutional Law C'90.4(5) No. 92-117. Nonperforming nude employees of top- en singly, do not support an inference of HANG ON, INC., d/b/a Hardbody's of less bar could not claim First Amendment criminal activity is of little or no conse- Arlington, Plaintiff-Appellant, 2. Constitutional Law (S=42(1) protection solely by virtue of their nudity. quence; the relevant question is whether V. Assuming that case or controversy re- U.S.C.A ConstAmend. 1. what the law enforcement officers observed, quirements of Article III are met, Constitu- taken as a whole and includingany reason- CITY OF ARLINGTON, � lion does not universally forbid art from 8• Constitutional Law G'90.4(5) Defendant-Appellee. g City or " provision, able inferences therefrom, gives rise to a asserting rights of others; rather, eneral y dinance's "no touch' reasonable, articulable suspicion of criminal No. 94-10959. rule prohibiting such surrogate claims is pru- which prohibited touching between nude per- activity. See United States v. Colyer, 878 United States Court of Appeals, dential. U.S.C.A Const Art. 3, § 1 et seq. former and customer, did not burden more F.2d 469, 480 (D.C.Cir.1989). Fifth Circuit. protected expression than was essential to Here, the decision to detain Tamer's lug- 3 Constitutional Law a42.2(2) further city's interest in preventing prostitu- Sept. 20, 1995. Topless bar had standing to assert its tion,drug dealing,and assault,and ordinance gage was supported by eight factors: (1) employees' lights with respect to claim that was thus not unconstitutionally overbroad, Torres had departed from New York City, a that citJ' cih• P "source city"for narcotics, see United States Topless bar sued city, alleging ordinance's "no touch"provision violated despite topless bar's claim that,because ordi- v. McFarley, 991 F.2d 1188, 1192 (4th Cir.) ordinance's "no touch" provision, which PM Equal Rights Amendment of Texas Constitu- nance did not specifyrequisite mental state, od of time. See United Scares v.Alper+.816 F•- n 'd t"' by excluding male breasts from defini- it criminalized accidental or inadvertent 'In addition, 1 would conclude that Torres's bag was not detained for an unreasonably long peri• 958, 961-63 (4th Cir.1987). °pn of nudity; there was no suggestion that touching; under Texas law, ordinance re- quired culpable mental..state and, thus, did cabarets were not subject to"no touch"pro_ lishments to promote the health,safety,mor- Arlington removed the case to the Unitedere als and general welfare of the citizens of the States District Court for the No Dis- not criminalize inadvnt or negligent vision, while adult cabarets not required to touching. U.S.C.A. '-Const.Amend. 1; have alcoholic beverage licenses were still City." The Ordinance expressly disclaimed trict of Texas. On September 21, 1994, the V.T.C.A.,Penal Code§ 6.02(b,c); Arlington, subject to ordinance. V.T.C.A., Alcoholic intent to"restrict or deny access by adults to district court granted summary judgment for Tx., Ordinance No. 92-117. Beverage Code § 109.57; Arlington,Tx.,Or- sexually oriented materials protected by the Arlington on all of Hang On's claims and dinance No. 92-117. First Amendment or to deny access by the awarded costs and attorney's fees to Arling- !1. Constitutional Law C-230.3(6) distributors and exhibitors of sexually orient- ton. Hang On has timely appealed, and we City ordinance's "no touch" provision, 12. Searches and Seizures a79 ed entertainment to their intended market." now affirm the judg ment gment of the district court. which prohibited touching between nude per- Adult cabaret failed to show that city's The Ordinance created a comprehensive former and customer, did not violate equal enforcement of"no touch" ordinance, which regulatory scheme for adult entertainment II. protection clause of Federal Constitution, precluded intentional touching between nude establishments in the City of Arlington. We first examine whether Hang On has even though it applied to adult cabarets but performer and customer, was conducted in Among its provisions, the Ordinance provid- standing to bring these claims. "The federal not to other adult entertainment establish- harassing and offense manner in-violation of ed: merits; city could rationally conclude that its Fourth Amendment rights; although bar courts are under an independent obligation Section 5. adult cabarets, which typically serve alcohol presented evidence of pattern or practice by Additional Regulations for to examine their own jurisdiction,and stand- and attract large crowds, were more likely city of conducting allegedly unconstitutional Adult Cabareett ing 'is perhaps the most important of [the venue than nude modeling studios for evils of searches, bar failed to present any evidence A. appearing employee of an adult cabaret,while Hays,jurisdictional] doctrines."' United States v. prostitution, drug dealing, and sexual Ao- that policy-making officials in city had any appearing in a state of nudity, com- Hays, — U.S. —, 115 S.Ct 2431, lence that "no touch" provision sought to knowledge, actual or constructive, of police mits an offense if he touches a custom- 2435, 132 L.Ed.2d 635 (1995) (quoting FW/ eliminate. U.S.CA Const.Amend. 14; Ar- officers'actions during investigative searches er or the clothing of a customer. PBS, Inc. v. City of Dallas, 493 U.S. 215, lington, Tx., Ordinance No. 92-117. of cabaret. U.S.CA Const.Amend. 4; Ar- B. A customer at an adult cabaret com- 231, 110 S.Ct. 596, 607, 107 L.Ed.2d 603 lington, Tx., Ordinance No. 92-117. mits an offense if he touches an em- (1990) (citations omitted)). 10. Constitutional Law <-224(2) ployee appearing in a state of nudity A ply seeking to enlist the court's juris- Intoxicating Liquors a15 or clothing of the employee. diction"must assert his own legal rights and Municipal Corporations c-120, 121 John L.Gamboa,Acuff,Gamboa& Moore, interests, and cannot rest his claim to relief The Ordinance defined a"state of nudity" as Cityordinance's "no touch" provision Ft. Worth, TX, for appellant. on the legal rights or interests of third par- p a state of dress that fails to opaquely cover a „ which prohibited intentional touching be- Thomas Phillip Brandt, Sharon Hauder, human buttock, anus, male genitals, female ties. Warth v. Seldin, 422 U.S.490,499,95 tween nude performer and customer,did not Fanning, Harper & Martinson, Dallas, TX. genitals, or female breast. S.Ct.2197,45 L.Ed.2d 343 (1975). Hang On violate Equal Rights Amendment of Texas for appellee. On December 17 1993, Han On which asserts that the intrusive searches by the Constitution,even though ordinance excluded g � Arlington police have violated its own right Appeals from the United States District operates a topless bar in Arlington,filed suit to be free from unreasonable searches. Sim- male breasts from its definition of nudity; against Arlin evidence showed that city council considered Court for the Northern District of Texas. g gton in Texas state court pursu- ilarly, Hang On asserts its own rights when ant to 42 U.S.C. § 1983, alleging that the it claims that Arlington's ordinance violates physiological and sexual distinctions between Ordinance violates the Firs Fourth and female and male breasts,and topless bar that Before REYNALDO G. GARZA, KING the Texas Alcoholic Beverage Code. Its Fourteenth Amendments to the United standing to assert these two claims is plain. challenged ordinance presented no evidence and HIGGINBOTHAM, Circuit Judges. States Constitution. In particular, Hang On that ordinance discriminated against women charged that the Ordinance's"no touch"pro- Hang On's claim that the"no touch"provi- solely on basis of gender. Vernon's PATRICK E. HIGGINBOTHAM, Circuit l•ision is unconstitutionally overbroad be- sion violates the First Amendment implicates Ann.Texas Const. Art. 1, § 3a; Arlington, Judge: cause it criminalizes casual or inadvertent the general requirement that a litigant assert Tx., Ordinance No. 92-117. Hang On, Inc. appeals from the judgment touching and unconstitutionally vague be- its own lights. Hang On does not claim any of the United States District Court dismiss- cause it does not define"touches". In addi- denial of its own First Amendment rights. 11. Intoxicating Liquors <-11 ing Hang On's federal constitutional, state tion, Hang On argued that Arlington's en- The specific prohibition of the ordinance at City ordinance's "no touch" provision, constitutional,and state law challenges to the foreement of the Ordinance had been con- issue in this case is part of a general regula- which prohibited touching between nude per- City of Arlington's Adult Entertainment Or- ducted in a harassing and discriminatory tion of adult cabarets, including Hang On, former and customer, did not violate Texas dinance No. 92-117. manner. Finally, Hang On alleged that the but the no touchprovision regulates danc- Alcoholic Beverage Code, even though "no Ordinance's exclusion of male breasts from ers and customers, not the bar itself. touch" provision applied to adult cabarets I the definition of nudity violates the Equal [l,21 Assumingthat the case or contro- which normally have alcoholic beverage li- s Rights tenses but not to nude modeling studios After amassing studies describing n°�011- tion, n � Amendment of the Texas Constitu- versy requirements of Article III are met, (which do not have such licenses); ordinance secondary effects of adult entertainment a Tex. Const. art I, § 3a, and that the the Constitution does not universally forbid a did not impose stricter standards on alcohol- tablishments, the Arlington city council Ordinance violates the Texas Alcoholic Bev- party from asserting the rights of others.ra related businesses than on nonalcohol-related passed Ordinance No. 92-117 on November ge Code by discriminating against busi- Rather, the general rule prohibiting such businesses,as businesses with alcohol bever- 17, 1992. The Ordinance's stated purpose ness with alcoholic beverage licenses. Tex. surrogate claims is prudential. Whitmore v. age licenses that did not qualify as adult was"to regulate Adult Entertainment Estab• A1co.Bev.Code Ann. § 109.57. Arkansas, 495 U.S. 149, 161 n. 2, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). Accordingly, breasts from its definition of "seminudity" dancers' First Amendment and state consti- sary to the adjudication of its facial chal- we examine exceptions to this general rule. and "simulated nudity". In MD 11, we dis- tutional rights. lenges. One exception allows a litigant to assert the tinguished SDJ, Inc. v. City of H0ust014 g0,7 There is much to be said for shifting the rights of individuals with whom she has a F.2d 1268 (5th Cir.), reh g denied, 841 F.2d analysis from judicial justifications for assert- A. close relationship. See Pierce n Society of 107 (5th Cir.1988), cert. denied, 489 U.S. the Sisters, 268 U.S.510,535,45 S.Ct.571,69 1052, 109 S.Ct. 1310, 103 L.Ed.2d 579(1989), ing the rights of others to a direct inquiry [5] Hang On argues that the "no touch" into the rights of the plaintiffs in those rela- provision is unconstitutionally overbroad in L.Ed.1070(1925)(holding that organization's on the ground that SDJ did not purport to tionships, but we do not reach those ques- violation of the First Amendment. Barnes v. interest in preserving its own business per- hold that club owners ",must be allowed to tions today. See Henry P. Monaghan, Glen Theatre, Inc., 501 U.S. 560, 566, ill mitted it to assert rights of patrons). The raise their dancer's rights." MD II, 28 F.3d •'Third Party Standing," 84 Colum.L.Rev. S.Ct.2456,2460,115 L.Ed2d 504(1991),held history of this exception is checkered. Com- at 498(emphasis added). Prudential consid- 277, 299 (1984). pare McGowan v. Maryland, 366 U.S. 420, erations such as the failure of MD I1 to that nude dancing itself"is expressive con- 429-30, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961) explain the absence of its dancers from the duct within the outer perimeters of the First with Craig v. Boren, 429 U.S. 190, 97 S.Ct_ litigation led us in MD 17 to conclude that III. however, that It does not inevitably follow, 451, 50 L.Ed.2d 397 (1976) and Secretary of "[g]ranting standing to MD II may,however, however, that touching between a nude per- Hang On urges that summary judgment former and a customer is protected expres- Sta.te of Md v. Joseph H. Munson Co., In.c.> result in the unnecessary litigation of a ques- teas inappropriate because facial constitution- sion. 467 U.S. 947, 954-58, 104 S.Ct. 2839, 81 tion those parties most immediately affected al challenges "require a review of the a li- L.Ed2d 786 (1984). Ordinarily, a business may not dispute." Id at 497. cation of a statute to the conduct of the party We recognize that the theater of expres- like Hang On may properly assert its em- sive dancing may be limited only by the art ployees' or customers' First Amendment Here,unlike in MD 11, there is no sugges• before the court and this review "is a fact and creativity of the performers. "It is pos- rights where the violation of those rights tits that Hang On's dancers do not wish this question for the trier of fact to evaluate at sible to find some kernel of expression in adversely affects the financial interests or indication to go forward, and there is is tune of trial.' We disagree. almost eve activity a patronage of the business. That Hang On's indication that Hang On's interest in this r1' Y person undertakes litigation diverges from that of its dancers. [41 We note that claims that an ordinance • but such a kernel is not sufficient to employees and customers could encounter is facial] invalid are better candidates for bring the activity within the protection of the practical difficulties in asserting their own See 13 Wright, Miller & Cooper, Federal Y First Amendment." Cityo Dallas v. Stang- rights Practice and Procedure: Jurisdiction 2d summary disposition than claims that an or- f 104 rights may place this case within a distinct gu g P dinance was unconstitutionally applied. liry 490 U.S. 19,25, 109 S.Ct. 1591, 1595, 104 exception; at minimum, this fact reinforces § 3531.9,at 579(arguing that employers ers may assert rights of their employees where there Claims of facial invalidity do not depend upon L.Ed.2d 18 (1989). This said, intentional it the close relationship prerequisite to surro- the development of a "complex and volumi- contact between a nude dancer and a bar gate standing here. See Spiegel v. City of is is congruence rather than conflict of inter P"); see also Craig v. Boren, 429 U.S. at nous" factual record. Keystone Bituminous patron is conduct beyond the expressive Houston, 636 F.2d 997,1001 (5th Cir.Unit A ests 195, 97 S.Ct. at 456 (noting "vendors and Coal Assn v. DeBenedictis, 480 U.S. 470, scope of the dancing itself. The conduct at Feb.1981); Gojjon Bar&GrUl, Inc.v.Kelly, 493, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987). that point has overwhelmed any expressive 508 F.2d 1317, 1322 (2d Cir.1974) (upholding those in like positions have been unifot•mly permitted to resist efforts at restricting their The essence of a facial challenge usually is strains it may contain. That the physical standing of corporation to assert First P that the statute on its face-without regard contact occurs while in the course of protect- Amendment rights of its employees and pa- operations by acting as advocates of the trons); Black Jack Distributors, Inc. V. rights of third parties who seek access to to how it affects the particular litigants- of activity does not bring it within the scope Beame, 433 F.Supp. 1297, 1303 (S.D.N.Y. their market or function'). Significantly,Ar violates the law. See, e.g., Johnson v.Am U.S. at 577, 111 S.Ct. at 2466 (Scalia, J.,er- of the First Amendment. Cf. Barnes, 501 ., 1977) (upholding vendor's standing to assert lington cannot dispute that its ordinance has icon Credit Co. of Georgia 581 F.2d 526,533 First Amendment right of patrons' to pur- a direct financial impact on concurring in the judgment) (noting that the Hang On,as well (5th Cir.1978). Court has "never invalidated the application g On's argument chase sexually explicit material). We are as Hang On's employees. Injury is essential Likewise, Han O ' that fur- of a general law simply because the conduct persuaded that this exception is applicable to meeting the threshold case or controversy ther discovery and trial are necessary to that it reached was bein en and that Hang On has standing to challenge requirement of Article 111, and injury of this permit it to develop its claims of facial inval- expressive purposes"). g gaged in for the "no touch" provision as violative of the type is usually a component of a relationship idity misses the mark. Claims of statutory P First Amendment rights of its employees and sufficiently"close" to meet prudential stand- overbreadth like that alleged by Hang On do [61 Similarly, patrons have no First in requirements. not resent fact disputes regarding the ef- Amendment right to touch a nude dancer. customers. g q P [3] We are also persuaded that Hang On BY contrast, the causal link between the fects of an allegedly overbroad statute on a Cf. Geaneas v. Willets, 911 F.2d 579, 586 may assert its employees' rights under the injury to the club owners in MD 11 and L}1e plaintiff. See Village of Schaumburg v. Citi- (11th Cir.1990) (holding that bar patrons �t5 f have no First Amendment light to wear re- Texas Equal Rights Amendment. Tex. Dallas ordinance's exclusion of male brew-- =ens or a Better Environment 444 U.S.620, Texas art.I, § 3A We are cognizant of our from its definition of semi-nudity was attenu 634, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980) vealmg clothing), cert. denied, 499 U.S. 955, Const.holding in MD II Entertainment Inc.V. City ated at best. It was difficult to see anp (aMrming summary judgment on over- 111 S.Ct. 1431, 113 L.Ed2d 484 (1991); of Dallas, Tex., 28 F.3d 492, 497 (5th Cir. injury to MD II from the underinclusne breadth challenge while noting that such a Dodger's Bar & Grip Inc, v. Johnson Cty. 1994),that a dance hall did not have standing character of the challenged regulations. The challenge was "a question of law that in- Bd of Commis, 32 F.3d 1436, 1443 (10th to raise its employees'rights under the Tex- asserted defect was a failure to regulate the volved no dispute about the characteristics of Cir.1994) (same). as Equal Rights Amendment to challenge a exposure of male breasts. We are persuaded [the plaintiff)"). Hang On does not tell us [7] Hang On's argument that the "no municipal ordinance that excluded male that Hang On has standing to assert how'further time and proceedings are neces- touch" provision is overbroad because it ap- plil slto all employees in a state of nudity,not writ denied) (holding municipality's police did not specify a required mental state). No which terms in Arlington's ordinance are jut dancers,is without merit. It is true that power encompassed authority to enact ordi- evidence suggests that the City of Arlington vague. Hang On appears to claim that Ar- dancers possess First Amendment rights, nance regulating sexually oriented busi. has sought to enforce the Ordinance against lington's ordinance is unconstitutionally and u e have discussed their limits. Nonper- nesses). Similarly, there is no dispute that persons unintentionally touching one another. vague because it fails to define "dancer", forming nude employees, however, cannot the "no touch" provision furthers a substan- Given the limiting construction imposed by which the Kitsap County ordinance did de- claim First Amendment protection solely by tial governmental interest and is unrelated to Texas law,'we conclude that Arlington's "no fine. The significance of this allegation vir,tue of their nudity. Rather, "nudity is the suppression of free expression. Al- touch" provision does not burden more pro- eludes us, particularly given that Arlington's protected as speech only when combined though the Arlington city council did not tected expression than is essential to further ordinance criminalizes touching between a vvith some mode of expression which itself is make specific legislative findings regarding substantial governmental interests.2 We customer and an "employee", which includes entitled to first amendment protection." the"no touch"provision,it now suggests that perceive no material difference between A, dancers. Sott.th Florida Free Beaches, Inc. v. City of the Ordinance serves to prevent prostitution, lington's "no touch" provision and the "no Yliaini, Fla, 734 F.2d G08, G10 (llth Cir. drug dealing and assault. These justifica• tions were offered for a similar "no touch" touch" provision upheld against a similar at- C. 1994) (alteration and internal quotes omit- tack in Kev, Inc. v. Kitsap County, 793 F.2d ted)l Since employees not engaged in ex- provision upheld in Ket, Inc. v. Kitsap Cottr• 1053 (9th Cir.1986). In Kitsap County, the [9I Hang On argues that Arlington's de- pressive conduct such as dancing have no ty, 793 F.2d 1053 (9th Cir•.1986), and Hang Ninth Circuit upheld an ordinance that in cision to criminalize touching in adult caba- 1 Amendment right to appear in the On does not suggest that any alternative. addition to prohibiting topless dancers and rets but not in other adult entertainment i content-oriented interest motivated Arling- establishments renders the ordinance uncon- nud�, applying the "no touch" provision to customers from fondling or caressing one i ton. To the contrary, the Ordinance dis- non,performing nude employees does not another, required dancers to remain at least stitutional on its face. Hang On does not i I claims any intent to infiinge upon protected prohibited specify whether this feature of the ordinance m i kI it overbroad. ten feet from the customers and expression. patrons from tipping dancers. Referring to violates state or federal law. [le Even r intentional contact between a The essence of Hang On's overbreadth the"no touch" p provision,the court concluded To the extent that Hang On relies upon topless dancer and a customer is not inev�ita- P claim appears to be that Arlington's "no that"because of the Count. 's le bly and always beyond the umbrella of the Y legitimate and equal protection rights guaranteed by the touch' provision is unconstitutionally over- substantial interest in preventing the demon- state constitution, its argument Fir t Amendment, Arlington's "no touch" broad because the ordinance criminalizes ac- p g gtunent is without prIovision is not facially overbroad. The strated likelihood of prostitution occurring in merit. The Texas Court of Appeals in 2300, cidental or inadvertent touching and, there- erotic dance studios,the County may prevent Inc. V. City of Arlington, Tex., 888 S.W.2d Fitt Amendment "does not guarantee the fore, burdens more protected expression I right to [engage in protected expression] at dancers and patrons from sexually touching 123, 129 (Tex.App.—Fort Worth 1994, no I than is necessary to further the city's inter- each other while the dancers are acting in writ), held that Arlington's decision to apply all Limes and places or in any manner that est in preventing prostitution, drug dealing. may, be desired." Heffron u International the scope of their employment." Id at 1061 the "no touch" provision only t0 adult cab a- and assault. This argument rests on a prem- n. 11. Arlington's "no touch" Sochi for Krishna Consciousness, Inc., 452 ise that we reject. namely that Arlington's touch" provision does refs did not violate the cabarets equal pro- not criminalize more conduct than Kitsap tection rights guaranteed by the state consti- U�S1 640, 647, 101 S.Ct. 2559, 2564, 69 no touch" provision criminalizes any contact did 2d 298 (1981). The Court held in between nude employees and customers. County's. We are persuaded that Arling- tution. Tex. Const. art. I, § 3. Barnes that content-neutral regulations of The State of Texas has provided that"[ilf the ton's ordinance burdens no more protected expression than is essential to further Arlin The district court did not address the mer- tune,place,or manner are permissible where definition of an offense does not prescribe a g- its of this argument because Hang On failed the(regulations satisfv culpable mental state,a culpable mental state the four-part test an- ton's interest in preventing prostitution drug to include it in its complaint and raised this i npurced in United States v. OB»ett, 391 is nevertheless required unless the definition dealing, and assault II U.S. 3G 7, 88 S.Ct. 1673, 20 L.Ed.2d G72 any mental element.- claim for the fast time in its response to plainly dispenses with any motion for summa ry judgment. 668). The regulation is valid"if it is within Tex.Penal Code Ann. § 6.02(b). Texas lave B. Although Hang On renews this allegation on the I constitutional power of the Government; further provides that"[i]f the definition of an Hang On's contention that Arlington's "no appeal,we agree with the district court that, ifl it furthers an important or substantial offense does not prescribe a culpable mental touch" provision is void for vagueness is because Hang On did not raise the state governmental interest; if the governmental state but one is nevertheless required[under without merit. Hang On has not specified constitutional claim in its complaint nor pro- interest is unrelated to the suppression of the foregoing provision], intent, knowledge. 1. We express no opinion on the constitutionality ing,without prior state court decisions for gird- f ieC expression; and if the incidental restric- or recklessness suffices to establish criminal of an ordinance prohibiting all touching between ante, that provision of state criminal code ti A on alleged First Amendment freedoms is responsibility." Tex.Penal Code Ann- patrons and nude dancers. We do not offer preempts parts of city ordinance). no greater than is essential to the further- § 6.02(c). The Arlington ordinance does not narrowing interpretations of a state regulation. ante of that interest" O'Brien, 391 U.S. at sec requisite mental state,but the Ordi- That is the task of the state courts. See Goodin specify a re h q 8 2. In Ward v.Rock Against Racism,491 U.S.781, 377' 88 S.Ct. at 1679. V. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 31 798-99, 109 S.Ct. 2746, 2757, 105 L.Ed.2d 661 nance does not dis ense v�ith any mental L.Ed.2d 408 (1972); United Stares v Hang On does not dispute nor is there any element. Under Texas law, the Ordinance . Tltirry Sev (1989), the Court noted that a time, place, or c en Photographs,402 U.S.363,369,91 S.Ct.1400, manner restriction"need not be the least restric. doubt that Arlington possessed the authority requires a culpable mental state and, thQ1e arse no P 1404-1405.28 L.Ed.2d 822(1971). We tive or least intrusive means"of serving the gov- t4 enact the "no touch" provision as part of fore,does not criminalize inadvertent or n19- words or otherwise engage in the interpretive i enterprise. Rather•we simply apply all the rele. greateni s interest. Rather,the restriction is no P PP Y greater than essential where the governmental its adult entertainment ordinance. See ligent touching. See Pollard vState,writ t'ant statutes. See also City of Houston, Tex. v. interest "would be achieved less effectively ab- MJR's Fare of Dallas, Inc. v. City of Dallas, S.W.2d 373,374(Tex.App.—Dallas 1985, Hill. 482 U.S. 451, 462 n. 10, 468, 107 S.Ct. sent the regulation." Id. at 799, 109 S.Ct. at 792 S.W.2d 569, 576 (Tex.App.-Dallas 1990, refd) (applying § 6.02 to city ordinance that 2502. 2510 n. 10. 96 L.Ed.2d 398 (1987)(hold- 2758 (internal quotation marks omitted). vide any authority for its allegation, we basis of gender. The court notea that the animus, utsunguisnes this case from related business to have two fire extin- should not address its merits. city introduced evidence showing that physio_ lt'illianzs• guishers and only requiring a non-alcohol To the extent that. Hang On asserts a logical and sexual distinctions exist between We cannot let pass without comment the related business with the same kind of violation of the Fourteenth Amendment, it male and female breasts; that female breasts energy expended in the"trial"of such issues. premises to have one fire extinguisher has failed to demonstrate that Arlington's differ internally and externally from male Courts need no evidence to prove self-evident would violate section 109.57(a). - decision to apply the "no touch" provision breasts; and that the female breast, unlike truths about the human condition—such as Id. at 492 n. 5. only to adult cabarets is an invidious classifi- the male breast, is a mammary gland. Id. water is wet. Nor should they tarry long cation or burdens a fundamental right. The court concluded that the definition of with such foolishness and, in the process, Arhngton's "no touch" provision does not Here, Arlington could rationally conclude nudity excluded male breasts on grounds trivialize constitutional values intrinsic to our run afoul of § 109.57(a) because, unlike the that adult cabarets,which typically serve al- other than simply gender. society. The district court correctly conclud- fire extinguisher example from Dallas Mer- cohol and attract large crowds, are a more ed that Arlington's definition of nudity did chants, its coverage of the set of businesses likely venue than nude modeling studios for Similarly, Arlington presented evidence to not discriminate against women solely on the with alcoholic beverage licenses is both un- the district court showing that the Arlington derinclusive and overinclusive. Application the evils prostitution, drug dealing, and city council considered the physiological and basis of gender. of Arlington's "no touch" provision to adult sexual violence that the"no touch"provision sexual distinctions between the female and B. cabarets is underinclusive in that there are seeks to eliminate. male breasts. In sworn testimony presented many businesses with alcoholic beverage li- Nor does the Equal Protection Clause re- [11] Hang On also claims that the adult q to the city council, Dr. J. Douglas Crowder cation of the "no touch" provision to adult tenses that do not qualify as adult cabarets quire Arlington to prohibit touching between concluded that distinguishing between male and, therefore, are not subject to the "no nude employees and customers in every field and female breasts in defining nudity is"cer- cabarets violates § 109.57 of the Texas Alco- touch" provision. The scope of Arlington's in which it occurs. C. SDJ, Inc. v. City o holic Beverage Code because Arlington's"no f y f tainly consistent with what we know medical- "no touch" regulation is also overinclusive in Houston, 837 F.2d 1268 1279 (5th Cir.) (re_ touch" provision applies to adult cabarets, ly about human sexual response." Moreover, which normally have alcoholic beverage li- that adult cabarets not required to have alco- jecting similar underinclusive argument), the preamble of the Ordinance itself pro• holic beverage licenses are still subject to relzg denied, 841 F.2d 107 (5th Cir.1988), claimed that the city council reviewed"[c]on- tenses, but does not apply to nude modeling Arlington's "no touch" provision. This loose cert. denied, 489 U.S. 1052, 109 S.Ct. 1310, studios, which do not have such licenses. vincing documented evidence regarding the Holding that Hang On never presented evi- fit between the regulatory scope of the "no 103 L.Ed.2d 579 (1989). Rather, "reform physiological and sexual distinctions between touch"provision and businesses serving alco- may take one step at a time,addressing itself male and female breasts." By contract, dence to substantiate its claim, the districthol leads us to conclude that Arlington's ordi- to the lase of the problem which seems court granted summary judgment to Arling- P P Hang On presented no evidence to the dis- ton on this issue. We agree that Arlington is nance does not impose stricter standards on I most acute to the legislative mind." Wil- trict court that Arlington's ordinance dis- alcohol-related businesses than it does on liamson v. Lee Optical o Oklahoma, Inc., entitled to summary judgment, not because P f criminated against women solely on the basis Hang On failed to produce any evidence indi- non-alcohol related businesses. Indeed, this 348 U.S.483,489, 75 S.Ct.461,465,99 L.Ed. of gender. loose fit is a far cry from the Dallas ordi- 563 (1955). eating a genuine issue of material fact, but Han On relies heavily on the Texas Court because Hang On's legal theory is without nance invalidated in Dallas Merchants,which g regulated businesses if and only if they were IV. of Appeals' holding in Williams that the roertt• in the business of selling alcohol. Arlington's exclusion of male breasts from the definition In Dallas Merchant's & Concessionaire's decision to hint the application of the "no A. of nudity discriminated against women solely Ass'n v. City o Dallas, 852 S.W.2d 489,492 g y f touch" provision to adult cabarets does not [10] Hang On contends that excluding on the basis of gender. In Williams the (Tex.1993), the Texas Supreme Court held violate § 109.57(a) of the Texas Alcoholic male breasts from the ordinance's definition court of appeals noted that the plaintiff suc- that § 109.57 preempted a municipal ordi- Beverage Code.° of nudity violates the Equal Rights Amend- cessfully carried its burden of proof to shove nance prohibiting the sale of alcoholic bever- ment of the Texas Constitution a Under that the definition discriminated against ages within 300 feet of a residential area. Texas law, we must first determine whether women solely on account of gender because The court was quick to point out that munici- V. the ordinance discriminates against one sex the city offered"no evidence about the differ- palities retained the power to regulate busi- [12] Finally, Hang On argues that Ar- "simply on the basis of gender." Williams v. ences in physical characteristics or how such nesses with alcoholic beverage licenses as lington's enforcement of the Ordinance has City of Fort Worth, 782 S.W2d 290, 296 differences relate to the ordinance's goal of long as those regulations did not discriminate been conducted in a harassing and offensive (Tex.App.—Fort Worth 1989, writ denied). preventing secondary neighborhood effects.• against such businesses. The court ex- manner in violation of its Fourth Amendment In MJR's fare of Dallas v. City of Dallas, 782 S.W.2d at 296 n.2. Hang On's failure to plained: rights. The district court rejected Hang 792 S.W.2d Fd9, 575(Tex.App.—Dallas 1990, offer any evidence regarding Arlington's de- [A]n ordinance requiring all businesses On's claim, holding that Hang On presented writ denier.), the Texas Court of Appeals cision to exclude male breasts from the defi with the same kind of premises to have a no evidence that it was the policy of Arling- held that he exclusion of male breasts from nition of nudity, coupled with Arlington's in- fire extinguisher on their premises would ton to enforce the Ordinance in a manner the defrAtion of nudity did not constitute troduction of evidence showing that Ailing- not violate section 109.57(a). On the other that violates Hang On's constitutional rights. discrir;oration against women "solely on the ton's decision was not motivated by gender hand, an ordinance requiring an alcohol We review the district court's grant of sum- 3. "'quality under the law shall not be denied or national origin." Tex. Const. art. 1, 4 3a. 4• Arlington's reliance on§ 109.57(d)is unavail- ented business. It does not purport to permit the al-ridged because of sex, race, color, creed, or ing since that provision only permits a munici- regulation of the manner in which a sexually pality to regulate the location of a sexually ori- oriented business operates. z. mary )uuginent ue nuuv, „GN1116 ......b , ...-.- 1, a--- r --- dence in the light most favorable to Hang tween a motion to dismiss and a motion for fective assistance; (2) attorneys should not Amend. 6. _ On. Richardson v. OIAa.m 12 F.3d 1373, summary judgment. enter into literary and media rights fee ar- 1376 (5th Cir.1994). rangements with clients during pendency of 5. Criminal Law C=641.130) Han On does not claim that it is the Vl. representation; (3) finding that defendant g was not prejudiced by fact that attorneys son of Sixth Amendment is not pri- official policy of Arlington to harass adult We agree with the district court that Hang son was given media rights by defendant as mari] to police attorneys' ethical standards cabarets and their patrons. Indeed, Arling- On's facial challenges to Arlington's "no and create constitutional code of professional expresses ton's ordinance ea the exact opposite payment of attorneys fee was supported; conduct but, rather, is to assure fair trial p pp touch' provision are without merit and that policy. "[I]t is not the intent nor effect of there was no genuine issue of material fact. and (4) attorneys failure to withdraw and based on competent representation. this Chapter to restrict or deny access by testify for defendant was not professionally U.S.C.A. Const.Amend. 6. We AFFIRM the judgment of the district unreasonable and did not defen- adults to sexually oriented materials protect- court,including its award of costs and attor- prejudice ed by the First Amendment or to deny ac- ney's fees to Arlington. dant. 6. Criminal Law C-641.5(.5), 641.13(1) cess by the distributors and exhibitors of Reversed. Counsel owes defendant duty to avoid sexually oriented entertainment to their in- TWVETZI­�­­ Patrick E. Higginbotham,Circuit Judge, conflict of interest, but that is just one of tended market" Instead, Hang On claims filed a concurring opinion in which W. Eu- many duties, which also include advocating that Arlington s policy may be inferred from gene Davis and Emilio M. Garza, Circuit defendant's cause, consulting with him and the police officers'repeated visits on a night- Judges, concurred. keeping him informed, and employing skill ly basis. Although the district court found that King, Circuit Judge, dissented and filed and knowledge on defendant's behalf. g U.S.C.A. Const.Amend. 6. Hang On had presented evidence of a pattern an opinion in which Polite, Chief Judge, and or practice by Arlington of conducting the Betty Lou BEETS, Petitioner-Appellee, Garwood, Jerry E. Smith, and Wiener, Cir- 7 allegedly unconstitutional searches,the court cuit Judges, concurred. . Criminal Law «641.5(.5) To prevail under Strickland standard correctly concluded that Hang On failed to v present any evidence that policy-making offi- Wayne SCOTT, Director Texas Depart- on claim of ineffective assistance based on ment of Criminal Justice, Institutional 1. Criminal Law C�641.5(.5), 641.13(1) counsel's son taking assignment of media or c n Arlington had any knowledge, actual Division Res ondent-A ellant. In most Sixth Amendment ineffective- rights and failing to withdraw and test' for d constructive, st the police officers actions p 6. ness cases, defendant must show that coun- defendant,defendant had to show that attor- during the investigative searches of Hang No. 91-4606. sel's errors fell below objective standard of ney's performance fell below objective stan- On's cabaret. The only evidence presented by Hang On to rebut Arlington's motion for United States Court of Appeals, reasonableness and prejudiced his case, dard of reasonableness and that it prejudiced Fifth Circuit. which usually means establishing reasonable the defense, undermining reliability of pro- summary judgment was the affidavit a Andy probability that counsel's errors changed the ceedin U.S.C.A. Const.Amend. 6. Anderson, alleging that"defendant's agents" Sept. 22, 1995. g g• have entered its business "on multiple occa- p results of the proceedings; in some cases, sions" and that the officers' manners and prejudice is presumed if defendant shows 8. Attorney and Client 0-143 actions became "more disruptive and abu- After defendant's conviction for capital that actual conflict of interest adversely af- Attorneys should not enter into literary sive"5 Mr. Anderson's affidavit noticeably murder of her husband for remuneration was fected counsel's performance. U.S.C.A. and media rights fee arrangements with omits any allegation that the principal of the Const.Amend. 6. g p P affirmed by the Texas Court of Criminal client-,during pendency of representation, as "defendant's agents,"i.e., the City of Arling- Appeals, 767 S.W.2d 711, she sought habeas 2. Criminal Law 0=641.5(.5) they may encourage counsel to misuse judi- ton, had any knowledge of the action and corpus, claiming ineffective assistance based cial process for sake of enrichment and pub- behavior on counsel's son taking assignment of media Strickland superior test, rather than Cuyler licity seeking and they necessarily trade on behavior of its"agents". We find no record g gn test, offers superior framework for address- evidence that Arlington knew of and was rights and failing to withdraw and testify for ing conflicts outside the multiple or serial misery of victim and his family. deliberately indifferent to its police officers' defendant. The United States District Court conduct. for the Eastern District of Texas, Robert M. client context when considering claime of d.6. 9. Criminal Law C�641.5(.5) fective assistance. U.S.C.A.Const.Amend.6. Hang On responds that the district court's Parker,J.,granted relief,and state appealed. Finding that defendant was not preju- grant of summary judgment to Arlington The Court of Appeals reversed, 986 F2d 3. Criminal Law «641.5(.5, 3) diced by fact that attorney's son was given dismissing Hang On's harassment claim was 1478. On rehearing en bane, the Court of Not every potential conflict,even in mul- media rights by defendant in payment of erroneously based on the heightened plead- Appeals,Edith H.Jones, Circuit Judge,held tiple representation cases is an actual con- attorne 's fee was supported p Y by lack of show- ing requirement invalidated in Leatherman that: (1)Strickland test,rather than Cuyler fliet for Sixth Amendment purposes. ing of any actual influence on the conduct of v. Tarrant County Narcotics Unit, —U.S. test, offers superior framework for address- US.C.A. Const.Amend. 6. the defense,lack of any allegation of manipu- -, 113 S.Ct. 1160, 122 L.Ed.2d 517(1993). ing conflicts outside the multiple or serial 1. Criminal Law a641.i3(1) lation of the case to enhance publicity, and s. The district court did not rule on Arlington's en our disposition of the matter,we do not reach cocounsel's affidavit that no action was affect- numerous objections to the Anderson affidavit. the issue whether the district court abused Sixth Amendment assures defendants of ed by the assignment. U.S.C.A. Const. On appeal,Arlington renews its objections. Giv- discretion in considering the Anderson affida`it- legal counsel whose reasonably effective as- Amend. 6. Cite as 10 F.3d 123 (3rd Cir. 1993) v ,N9oreover, as obseli'ed in Fredericks, 578 convincing evidence that his release would i;,cu: on improper considerations, the judge Secretary, Delaware Department of F 2d at 936 n. 15,"it, .i not at all clear" that not create a substantial risk of bodily injury <1lould be wary about giving the instruction. Health&Social Services,an entity with- jurors are generally ignorant of the fact that to another person or serious damage to the in the State of Delaware, in his official NGI acquittees may be civilly committed. property of another, a jury in an insanity 111] In this case, the district court did capacity; Delaware Department of - On the contrary, highly publicized cases, defense case will often have no tray of pre- 11„t abuse its discretion in refusing to give Health K Social Services,an entity with- such as that involving John Hinckley, have dieting whether or when the defendant will Cite requested instruction. As the district in the State of Delaware, Appellees. dramatized the possibility of civil commit- be able to meet this standard. Although the t court noted in denying Fisher's new trial No. 92-7508. went following an NGI verdict. jury in such a case will presumably hear motion, it is unlikely that the jury assumed Finally, we have some reservations about testimony concerning the defendant's sanity Mat Fisher would be immediately released if United States Court of Appeals, the effectiveness for antidotal purposes of an at the time of the offense, it will not neces- lie eras acquitted of the offenses charged. In Third Circuit. accurate instruction concerning the conse- sarily hear any testimony bearing on the the district court's words,"the jury necessar- quences of an NGI verdict. As previously separate question whether the defendant ih knew that the defendant was incarcerated Argued June 22, 1993. noted,the main argument in favor of such an would pose a danger if released after the ;it the time of trial," and it would therefore Decided Nov. 24, 1993. instruction hypothesizes jurors who are will- verdict. be "illogical to assume that they would con- ing to convict the defendant, even though In sum, while we believe that the tipe of elude that he would be released into society Delaware corporation which owned and they believe him to be NGI, solely to ensure .,hould they return a verdict of not y that he is not released. But if the members instruction at issue may be helpful in some guilty by operated adult entertainment establishment, of a ury, are so fearful of a gar ticular defen- cases,we are sufficiently apprehensive about reason of insanity." Furthermore, it does and its principal stockholder, brought suit of a j release that they wouldai violate their its possible side effects and sufficiently un- not appear that any witness or attorney sug- challenging Delaware statute limiting hours dancertain about its usefulness that sufficiently are not Bested that Fisher would pose a danger to of operation of such establishments and im- oaths by convicting him solely in order to willing to adopt a blanket rule requiring that the community if found NGI. Under these posing an open-booth requirement. On cross ensure that he is not set free,it is questiona- circumstances,we hold that the district court. ble whether they would be reassured by any- such an instruction always be given when the motions for summary judgment, the United thin short of an instruction strongly su - defense so requests. Instead, we think that did not abuse its discretion in refusing to States District Court for the District of Dela- gestnthat the defendant, if found NGI, it is preferable to leave the decision whether trive the instruction requested by the de- ware, Murray M. Schwartz, J., 802 F.Supp. g fense. would very likely be civilly committed for. a to give such an instruction within the sound 1112,upheld constitutionality of statute. Ali- lengthy period. An accurate instruction discretion of the trial judge. The judge peal was taken. The Court of Appeals, about the consequences of an NGI verdict, should seriously consider an appropriate in- V. Hutchinson, Circuit Judge, held that: (1) however, cannot provide such assurance. A struction 8 in those cases in which the judge provision limiting hours of operation was con- defendant found NGI is entitled to a release has a particularized reason for believing that For the reasons explained above,we affirm tent-neutral, furthered a substantial govern- hearing within 40 days after the verdict and the instruction will prevent the jury from 1'i.her's conviction. ment interest, and ]eft alternate channels of may be released as soon as the hearing is being influenced by improper consider- community open, and (2) same was true of completed. 18 U.S.C. § 4243(a)—(e). "The ations—for example, if a witness or attorney provision requiring that viewing booths be only mandatory period of confinement,there- intimates during trial that an NGI verdict VV O SK[YNOMBERSYSIEM completely open on one side to a public room. fore, is the period between the verdict and would endanger the community or if the `! Affirmed. the hearing, which may be held at any time nature of the evidence suggests to the judge within fortv claws." United States v. Blaine, that the jury is likely to entertain that. 967 F.2d at 54 (Winter, J., concurring). thought on its own. On the other hand, 1. Federal Courts e=766 While it is true that the defendant, in order where the judge believes that the instruction District court's gn•ant of summary judg- to be released, must prove by clear and is likely on balance to encourage the jury to Francis R. MITCHELL; Bob's Discount inent is subject to plenary review. be similar to the civil commitment that would as a model. By stating that an NGI acquittee is Adult Books, Inc., appellants, 2• Constitutional Law E-90.4(3, 4, 6) result from an NGI verdict. Finally, to take the resumed insane"and "may be confined," this example we noted in Fredericks,578 F.2d at 936, instruction incorrect] suggests that the tests for Sexual] explicit nonobseene films, live"[a]juror that is convinced that a defendant is insanity and civil commitment are the same. t' presentations, and printed matter are enti- dangerous but who believes that he did not, in Compare 18 U.S.C. § 17(a) u•iih 18 U.S.C. CO.ILIIISSION ON ADULT ENTERTAIN- tied to First Amendment protection. fact, commit the acts charged, might be willing § 4243(d). Furthermore, we do not think that U.S.C.A. Const.Amend. 1. to compromise on a verdict of not guile• by Fisher's instruction adequate]• paraphrases the \LENT ESTABLISHMENTS OF the reason of insanity rather than insist on an acquit- standard for commitment under 18 U.S.C. STATE OF DELAWARE; Charles M. 3• Constitutional Law a90.4(1) tal." In these circumstances and perhaps others, § 4243(c). Whereas this provision requires com- Oberl.•, III; Commissioners of the Com- Although First Amendment will not to- the effect of instructing the jury concerning the consequences of an NGI verdict would dissen•e mitment unless the acquittee proves that h erate total e mission on Adult Entertainment Estab. l suppression of erotic material "Would not create a substantial risk of bodily the interests of justice. lishments of the State of Delaware, an that has some arguably artistic value, soci- injun• to another person or serious damage of 8. We have not attempted in this opinion to speci- property of another due to a present mental entity within the State of Delaware, De- ety's interest in protecting this type of ex- fy precisely what should be included in such an disease or defect," Fisher's instruction broadly partment of administrative Services,Di- pression is of wholly different, and lesser, instruction. We do note, however, that the in- states that an NGI acquittee could be confined vision of Business and Occupational magnitude struction requested by Fisher should not be used "as long as public safety and welfare require." Regulation, in their official capacities €i de than its interest in untrammeled P political debate. L.S.C.A. Const.Amend. 1. Cite as 10 F.3d 123 Ord Cir. 1993) 4. Constitutional Law 0-90.4(1) cient evidence that alleged secondary prob- 14. ('(Institutional Law C-90.4(3) Amendment protection afforded to political If regulation of sexually explicit mater•i- lems connected with operation of adult enter- Obscenity a2.5 debate, "the cloth need not be cut quite so als is aimed primarily at suppression of First tainment business.such as traffic congestion, There was adequate factual basis for close" to meet requirement that the restric- Amendment rights, then it is content-based parking pr•oblelns.performance of sexual acts ti„n that statute regulating hours of bon be "narrowly tailored" to governmental and presumptively violates First Amend_ in public, and littering of discarded sexually „rw1.;,1iUn of adult entertainment centers was objective. U.S.C.A. Const.Amend. 1. meat. U.S.C.A. Const.Arnend. 1. explicit materials. actually existed; time, i,,:�•,I on Ieldtinrate government interest in place and manner r•egtrlation of such busi- 19. Constitutional Law <y9U.4(3) 5. Constitutional Law a90.40) rnirinrizint disruptive effect of such centers In tailoring remedy for disruptive effect nesses could be supported by studies from ,,I'. )),.i,.hbor hood. and was thus content-neu- If regulation of sexually explicit material other localities. and did not require separate on neighborhood, caused by adult as tr:d reasonable time restriction under First nett center, restriction must be fitttedeed s so as has as its primary purpose amelioration of study or independent evidence. U.S.C.A. A1,,c•rxhnent; proponents of hours limitations socially adverse secondary effects of speech- Const.Amend. 1. ),;,,1 ,lisc•1lssecl rrith sponsor of bill problems to ameliorate secondary effects of such places related activity, regulation is content-neutral „I 1;,ise. excessive parking• performance of deemed to be undesirable. U.S.C.A. Const. and court must measure it against traditional 11. Constitutional Law af)0(3) Amend. 1. g' .\s;,al surfs in public glares, and presence of content-neutral time,place and manner stan- State's interest in preserving character ,li:(:;,r red sexually oriented material on resi- 20. Constitutional Law <-90.4(3) dar•d. U.S.C.A. Const.Amend. 1. and preventing deterioration of its neighbor- ,venial lawns.and there had been references Obscenity 0-2.5 hood is a **substantial government interest", t„ problems caused by adult entertainment 6. Constitutional Law a9U(3) Statute limiting hours of operation of for purposes of determining whether other- centers in other parts of country. U.S.C.A. Reasonable time,place and manner reg wise content-neutral time. place and manner 0,n:t..Atnend. 1; 24 Del.C. § 1625(b). adult entertainment center would be deemed ulations of speech protected by First Amend- restriction oil freedom of speech advances to have been narrowly drawn to meet objec- ment are valid if they are justified without such interest. U.S.C.A. Const.Amend. 1. 15. Constitutional Law Ca90(3) tion that such facility had disruptive effect on reference to content of regulated speech, Restriction on speech or expressive ac- residential neighborhoods, even though par- See publication Words and Phrases q tieular adult facility challenging statute was they are narrowly tailored to serve signifi- for other judicial constructions and def- ti��ity is narrowly tailored, as required by � g cant or substantial government interest, and initions. Fil•st Amendment, if its effect on First located in building two miles away from any they leave open ample alternative channels of Ainendnrent freedoms is essential to further residential area on three sides and was sepa- communication. U.S.C.A. Const.Amend. 1. 12. Constitutional Lary 0-90.4(3) 9..V rninental interest that justifies inciclen- rated from residential area on its fourth side Legislature passing statute limiting tal interference with First Amendment rights by eight lane highway lacking any convenient 7. Constitutional Law 0-90(3) hours and operation of adult entertainment in fit,st place. U.S.C.A. Const.Amend. 1. pedestrian crossover points. U.S.C.A.Const. Principal inquiry in determining content center had before it sufficient preenactment Amend. 1; 24 Del.C. § 1625(b). neutrality, in free speech cases generally, evidence of disruptive effect of such business- N. Constitutional Law a-90(3) and in time,place or manner cases in panic- es on neighborhoods to permit conclusion 1t7ren regulation affects content of 21. Constitutional Law 0-90.4(1) ular•, is whether government has adopted that bill had been]sussed to further•"substan- �peec'h•means chosen to accomplish r•egulato- Obscenity «2.5 regulation of speech because of disagreetnent tial government interest", for purposes of r;x purpose cannot be substantially broader Statute limiting hours of operation of with message it conveys. U.S.C.A. Const. determining whether First Amendment than necessary to achieve government's in- adult bookstore satisfied First Amendment Amend. 1. rights of operators were violated: sponsor of ter•est. U.S.C.A. Const.Amend. 1. requirement that restriction on speech be S. Constitutional Law a90(3) bill had stated that similar legislation had 17. Constitutional Law 0-90(3) narrowly tailored to meet governmental ob- been found constitutional in other states, jective as applied to incidental time, place Content-neutral speech regulations must based on disruptive impact and member of Requirement for narrow tailoring re- and manner regulation of marginally protect- be justified without reference to content of -tr•ic•tion on speech, that "least restrictive regulated speech. U.S.C.A. Const.Amend. 1. state police had been made available to legis- lrlcans" of obtaining objective be followed, ed speech or expressive conduct; hours re- lators for questioning as to impact as they str•iction supported substantial government 9. Constitutional Law a90(3) deliberated on bill. U.S.C.A. Const.Amend. does not apply when content-neutral time, interest in avoiding disruptive impact on r•esi- lilace and manner restrictions are at issue; dential areas that would be achieved less 1; 24 Del.C. § 1625(b). , Regulation that series purpose ed net- rather such restrictions are "narrowly tai- effectively absent regulation. U.S.C.A. ed to content of expression is deemed neu- 13. Constitutional Law c-90.4(3) 1"r'ed" so long as regulation promotes sub- Const.Amend. 1; 24 Del.C. § 1625(b). tral,for purposes of First Amendment viola- st:crrtial government interest that would be tion analysis, even if it has incidental effect Evidence of the disruptive effect on achieved less effectively absent regulation. 22. Constitutional Law 0-90.4(3) on some speakers or messages but not oth- neighborhood.of adult entertainment center, (••S.C.A. Const.Amend. 1. errs. U.S.C.A. Const.Amend. 1. can be introduced in proceeding to determine Obscenity a2.5 See publication Words and Phrases constitutionality of statute limiting hours of for other judicial constructions and def- Statute limiting hour's of operation of 10. Constitutional Law C-90.4(3) operation under First Amendment, even if inilions, adult entertainment facility from 10:00 to Statute limiting hours of adult entertain- evidence was not considered by state legisla 1� 10:00 p.m. Mondays through Saturdays, and ment center was content-neutral, for purr- ture in adopting statute, provided some evi Constitutional Law e�90.4(1) requiring closure on Sundays and 12 desig- poses of determining whether it violated dense of disruption was considered by legis- \\•hen potential for overbr•eadth burdens nated state holidays, left open alternate First Amendment, even though it was lature. U.S.C.A. Const.Amend. 1; 24 Del.C. `•"t"gcrr'J'of speech,such as sexually oriented channels of communication, as required un- claimed that state had not produced suffi- § 1625(b). `-xPr•cssion, that enjoys less than full First der First Amendment to support content- neutral restrictions on sexually explicit ence for open booths or because legislature •'•t ..'• ...• --- speech,even though facility challenging stat- arbitrarily tool irrationally believed that :: ]t'+tl'i• 1t1:,8(1,). The 1991 amendments limit the hours during ute claimed that mach of its business had closed booths contributed to serious public which adult entertainment establishments , (,(,list Law c=90.d(3) can be open and require such establishments peen obtained in period after 10:00 p.m. and health problem; there was indication in ()b,cenity C12.5 on Sunday: statute allowed for 3,600 hours a preamble to amendment adding requirement eliminate all c booths from which year of exposure to sexually explicit materi- that it was necessary in order to prevent the `t,,tote requiring that adult entertain- patrons could view live ive and video entertain- - als. U.S.C.A. Const.Amend. 1: 24 Del.C. spread of communicable diseases, and there rn•,,t establishments have one side of viewing ment in seclusion. The district court held § 1625(b). had been testimony from state police officer I„„tlt,,)nrr to public room satisfied require- that these amendments were constitutional working in area that closed booths promoted tneot, fin'imposing restriction upon constitu- content-neutral,time,place,and manner reg- 23. Constitutional Law a90.40) sexual activity. U.S.C.A. Const.Amend. 1; t:,,ll:tlly protected speech, that alternative ulations. We will affn•m.2 Obscenity C=2.5 24 Del.C. § 1633(b). t I.mttels of communication be left open; Statute imposing limitation on number tlmre%tits no restrictimr whatsoever on types 1. Fachial and Proreduml History of hours that adult entertainment center 26. Constitutional Law a90.4(4) i nlatel•ials which patron of establishment could be open was a valid restriction on Obscenity «2.5 c,,ulc!view in booth. U.S.C.A. Const.Amend. A. secondary effect of such facility,disruption of 1 l: 24 Del.C. § 1633(b). Statute requiring that viettirrg booths in Adult Books is a Delaware corporation residential neighborhoods,which was permit- adult entertainment facilities have side facing which owns and operates an adult entertain- ted under First Amendment; statute was public room completely open, so as to dis- content-neutral, remedy was nar•ro�vly tar- 1 1 P l.c�ttis H. Robertson (argued), Evans, Os- ment establishment at 174 South DuPont courage sexual activity leading to the spread i,,niv & Kr•eizman, Red Bank, NJ,for appel- Highway in New Castle,Delaware. Mitchell lored to serve substantial governmental in- of Acquired Immune Deficiency Syndrome ter•est, and hours during which facility was q hint:-- is an officer,director,and the principal stock- still open insured that alternative channels of (AIDS)and other sexually communicated die- Jailics J. Hanley(argued),John K.Welch, holder of Adult Books. eases, satisfied requirement for imposing re- ]:c•t-itr R. Slattery, Dept. of Justice Vi?ilmin communication remained available. U.S.C.A 1 g- Adult Books' entertainment facility is lo- striction on constitutionally protected speech, t,m. DE, for appellees.Const.Amend. 1; 24 Del.C. § 1624. 11 cated on the northbound side of South Du- that means used in furthering government interest be narrowly tailored to that interest, T t pont Highway, an eight-lane highway with a 2-t. Constitutional Law «90.-1(3) F r•c•se)rt: STAPLETO:�, MAASMANI� four-foot concrete barrier dividing the Obscenity a was even though it as claimed that there were ;,ird H1'TCHINSON, Circuit Judges. north- better means to deter sexual conduct without bound and southbound lanes. Zoning laws Statute prohibiting closed area for view- con- ing ex limit Adult Books' property, as well as sexually licit materials in adult enter- inhibiting freedom of expression,such as use OPINION OF THE COURT p tiguous properties nithin two miles in either tainment center satisfied requirement for of partial doors open at bottom, booths y HUTCHINSON, Circuit Jud direction on the northbound side,to commer- r•egulation of constitutionally protected spaced further apart. or booths with bottom ge' cial use. Nearby are a Delaware State Po- speech, that regulation be content-neutral, two feet of door removed; alternatives would Appellants Francis R.Mitchell("Mitchell") 1 not achieve desired goal of deterring promis- and bolls Discount Adult Books, Inc.(collec- lice Barracks and a gasoline station. Direct- even though it was claimed that requirement ly across the highway from Adult Books is was designed to restrict content of films be- cuous sexual contacts that could spread dis- ;i�-(l�• •.�clult Books") appeal an order of the g Midvale, a residential community. None of in shown; avowed purpose of requirement ease,invoking persons in adjacent booths,or l•nited States District Court for the District g p 1 q inhibit masturbation, and in any event legis- of Delaware granting judgment in the Midvale residences front on South Du- was to cut down on transmission of Acquired g summary J pont Highway,but some of them share their latur•e was not required to choose least-re- fat•+,r•of appellees, Delaware's Attorney Immune Deficiency Syndrome (AIDS) and PP t Gen- rear lot lines eith the highway's southbound other diseases transmitted as a result of strictive or least-intrusive means of achieving c•r•al Charles M. Oberly, III,the Secretary of right-of-way line. No paths or walkvt•ays sexual activity accompanying as a result such objective. U.S.C.A. Const.Amend. 1; 24 its Department of Health and Social Sertic- g connect the northbound and southbound materials in private, and there was no ex- De1.C. § 1633(b). ts, and the Commissioners of Delaware's lanes of the divided highway. Commission ore Adult Entertainment Estab- press limitation on type of materials that 27. Constitutional Law (3-240(1) lishinents (collective) "the Commission"). Since March 1976, Adult Books has sold could be shown in open booth. U.S.C.A. Y cold Amend. n n Den § 1633(U. Obscenity «2.5 Adult Books claims that the 1991 amend- books, magazines, films, and novelties of an Statute limiting hours of operation of nrents to the Delaware Adult Entertainment adult nature at retail and provided adult 25. Constitutional Law 0=90.4(4) adult entertainment center, and requiring Establishments Act ("the Act"), De1.Code films and video presentations for viewing Obscenity G-2.5 that viewing booths within center have one .ern. tit. 24, §§ 1601-1635 (1987 8. Supp. from within completely enclosed booths. It Statute requiring that vietc•ing booths side open to public room, did not violate 1992) are unconstitutional restrictions of also provided enclosed booths for viewing live located in adult entertainment centers be equal protection rights of adult entertain- I. ••Coneress shall make no law ... abridging the 2. Adult Books' related appeal docketed at our open on side facing public room satisfied ment center operators: states and local gov- fieudom of speech, or of the press...." U.S. No. 92-7507 from the district court's denial of First Amendment requirement that statutes ernments may regulate such establishments c,+n.t amend. I. This amendment is made ap- costs and fees against the Commission under 42 restricting protected speech be supported by differently from other business establish- pl,cable to the states by the Due Process Clause U.S.C.A. § 1988 (West Supp.1993), had been „I the Fourteenth Amendment. Edwards r• consolidated with this appeal for oral argument. substantial government interest,even though ments, as long as regulation was content- ti,,,,,, Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 The motion for counsel fees was based on a it was claimed that statute had been enacted neutral and aimed at ameliorating secondary L Ed.2d 697 (1963). claim of partial success. It will be decided in a separate opinion. out of mere unsupported legislative prefeprefer- effects caused by such establishments. entertainment between Nlarcn 1rt,a ano ue- cu,c, cember 1985. and again during the first half associated with it, i.e.• the commission of tt•:,I14. Y Adult Books lYktl a clauu uuuu of 1991. various sex-related crimes. In attempting to - �� l;ei'„rc•the 1991 amendments,Adult Books U.S.C.A. § 1983 (West 1981) seeking a de- In 1977, the Delaware General Assembly curb these secondary effects. the Act serves ;i•r,rl Nith live and video performances for claratory judgment that both the closing- adopted the Adult Entertainment Establish- the government's Substantial interest in 'the i•wuv_1rn nr enclosed booths. A patron who hours and the open-booth amendments were ments Act. The Act defined "adult enter- health, safety and welfare of the people of tc, use the booth deposited tokens to unconstitutional. It also sought a temporary imposed establishments" subject to the Art, the State."' Mitchell 1. slip op. at S-9. Each booth had a door that let restraining order("TRO") and a preliminary imposed a requirement that persons who en- gage in the operation of such establishments On June 5. 1991. the Delaware General ;:t� 1,:,ttc,n screen out unwanted light, noise, injunction against their enforcement. rivet obtain a license and comply with certain Assembly enacted Senate Bill No. 163 (the 0A „11rer• distractions and afforded privacy tl;,,:�, who would otherwi se be too The district court denied Adult Books' ap- other provisions, and established the Conn- "closing-hours amendment") which added to mission on Adult Entertainment Establish- § 1625 of the.act a subsection restricting the t,r• inhibited to view a sexually ex- plication for a TRO, holding that it was un- ments to oversee compliance. The Act also operating hours of adult entertainment es- provided lien l,t rformance while others watched or likely to succeed on the merits. Adult Books provided criminal penalties for those who tablishments to the hour;between 10:00 a.m. "1.(X"c'`l. then withdrew its motion for a preliminary operate an adult entertainment establish- and 10:00 p.m. Monday through Saturday injunction. Later, Adult Books amended its pe 1 g �inc•e enactment of the 1991 Amendments; complaint to add the Delaware Department went without a license or in contravention of and requiring them to remain closed on all Adult ]looks has limited its hours of opera- p the requirements of the Act. The Act de- Sundays and legal holidays. The Delaware ;i„n;,n(1 has removed the doors of its booths of Health and Social Services as a defendant, fines"adult entertainment establishment"as: General Assembly also enacted Serrate Bill t t•4,11"11•,ly with the Act. Based upon a com- alleging that the Department was the state any commercial establishment, business or No.164(the"open-booth amendment")which n,;,rizo n of revenues, Adult Books estimates agency with authority to enforce the Act. service, or portion thereof, which offers amended the Act by adding § 1633(b). Sec- that these two new restrictions have caused Both Adult Books and the Commission sexually oriented material, devices, para- tion 1633(b) prohibits booths used for the I.,t+•tttrage to decrease to one-third or one- moved for summary judgment. phernalia or specific sexual activities, ser- vievking of motion pictures or other forms of ±(qul•th its previous level. Mitchell and Adult On August 27, 1992, the district court aces, performances or any combination entertainment in adult entertainment estab- 1;,,„ks did not produce any cash receipt en- thereof, or in any other form, whether lishments from having doors unless one side trie< for January through December 1991 in Wanted the Commission's motion for sun printed, filmed, recorded or lire.... is open to an adjacent public room so that.the ,,Ipp,i•t of the alleged decrease in patronage. mary judgment holding that both the closing- Del.Code.Ann. tit. 24, § 1602(2) (Supp.199.2). area inside is visible to persons in that adja- in n-puntse to the Commission's, amended hours and open-booth requirements were The Act further provides that the term cent room:' rvquest for production of documents, Mitch- constitutional. Mitchell v. Cont.tlti.xsionci's of "adult entertainment establishment"shall in- ,•II anted that he maintains no token counts Corrt1rt'rt. on Adult Entettailtnrent Est., 802 elude, but not be limited to, adult book Before enactment of the 1991 amendments, for individual booths, nor any, daily cash F.Supp. 1112, 1126 (D.Del.1992) ("Mitchell stores, conversation parlors, adult shows or Adult Books served about 200-500 patrons %.\"(-rk=beets showing token counts for the II"). On September 17, 1992, Mitchell and adult peep shows, adult motion picture the- per day. Its business hours were typically 6,,,ths. Adult Books filed a timely notice of appeal. atres, and massage establishments. Id. from 10:00 a.m. until 3:00 a.m. oil Monday Adult Books does not dispute the Act's a pli_ through Saturday, and from 10:00 a.m. until The express purpose of the open-booth P 11 :amendment was to prevent high-risk sexual II. Jurisdiction and Standard. of Review cation to its business; it has been properly 2:00 a.m. on Sunday. On Christmas Eve it 1 c,.nt:tct. Adult Books therefore asked the licensed since the effective date of the Act. closed at 6:00 p.m. and remained closed until The district court had subject matter juris- 10:00 a.m. oil the day after Christmas. It (•"nmr„ron to rule that booths equipped diction over Adult Books'action alleging vio- This Court has previously upheld the con- .-ith doors that would conceal a patron's stitutionality of the Act as originally enacted. also closed at 6:00 p.m. on New Years Eve. v lations of 4 U.S.C.A § 1983 (West 1981) '.ward arms and torso but expose his legs See Mitchell v. Com.ntission on Adu t Enter- According to 'Mitchell. it was busiest on tt•„uld comply with the new open-booth re- and the First and Fourteenth Amendments ), tailintent Est. ("Mitchell I" C.A. No. 86- weekends and holidays. On any given day, to the United States Constitution under 28 became heavier after the end of kind a dt. According to Adult Books, this U.S.C.A. §§ 1331 and 1343(a)(3), (4) (West 5519 (3d Cir. Jan. 30, 1987), 1987 U.S.App. patronage kmtl of a door would serve the purpose of the LENS 1917, reported as table case at 810 the work day and steadily increased through 1993). We have appellate jurisdiction under F.2d 1164 (not-for-publication o .). In the early, morning hours. On a number of --mil-booth amendment by revealing whether F p p m„re than one person was in the booth and 28 U.S.C.A. § 1291 (West 1993) over Adult Mitchell I we applied the test the Supreme occasions,Adult Books had to ask patrons to >till meet the viewer's desire for privacy. Books' timely appeal from the final decision Court set forth in City of Renton n Playtime leave at the 3:00 a.m. closing time. There The Secretary of the Delaware Health and of the district court granting summary judg- Theatres, Iris., 475 U.S. 41, 47-48, 106 S.Ct. has been only one criminal complaint or re- Sr,eial Services Department notified Adult ment in favor of the Commission. 925, 928-9-9, 89 L.Ed.2d 29 (1986), and held corded incident about a patron's conduct out- llonks, by letter dated August 12, 1991, that that "[tlhe licensing statute is content-neu- side Adult Books, business prernises. In it. "*Dutch doors,' saloon style swinging doors, Ill A district court's grant of summary tral,since it aims not at the content of adult one patron complained that another had as- :+ncl cluors with a 24-inch plexiglass panel at 3. Reported cases show several counties, cities ture prescribed for state-wide application. See, tlne bottom are not 'open to an adjacent Tic Interest Reseateir of N.J. v. Powell Dtif_ judgment is subject to plenary review. Pub- and and localities have adopted ordinances or provi- e.g.•Doe v.Cite o}:Annapolis,898 F.2d 612(8th l,uNic room,"' as the text of the open-booth frytt Terminals, Inc., 913 F.2d 64 (3d Cir. sions similar to the closing-hours and open-booth Cir.1990); Bere_ v. Health & Hosp. Cog%, 865 :,mendment requires. Appellants' Appendix 1990), veil. denied 498 U.S. 1109, 111 S.Ct. requirements involved in this case; however. F.2d 797 Mh Cir 1989); Star Sarellue, Jnc. v. none of them involved restrictions a state legisla- Cir.• of Biloxi. 779 F.2d 1074 (5th Cir.1986) ' at 249-50. 1018, 112 L.Ed.2d 1100 (1991). III. Over•r•ierr• of First Amendment 310 (1976) (footnote added). In Yomig, a �.('t. :it :r:3- 6(4. (,t,,u +lulu 1. ­ Jarr'isprudence plurality of the Supreme Court held that :irt(rir,.st Racisrrr, 491 U.S. 781, 789-91, 109 1992) (effective July 9, 1991)6 [2,31 The United States Supreme Court even though such sexually explicit films are 1: (. Li.46, 2751, 105 L.Ed.2d 661 (1989); A. Content Neutrality has afforded First Amendment protection to protected from total suppression, "the State )'n,,,,f/. 427 U.S.at 63 n. 18,96 S.Ct. at 2449 s,exually explicit non-obscene r films,iive pre- may legitimately use the content of these ❑ Is. A.c the amendments are directed at [G-S] "The principal inquiry in determin- sentations, and printed matter. See, e.g., materials as the basis for placing them in a t•ttt•I,ing the side effects of Adult Books' ing content neutrality,in speech cases gener- different classification from other motion pic- „velr related activity, we judge this case ally and in time, place or manner cases in F;crr•rres r. Glen Theatre, Irrc, — U.S. —, '1 ""' -• particular, is whether the government has —, III S.Ct. 2456, 2463, 115 L.Ed.2d 504 tures." Id. at 70-71, 96 S.Ct. at 2452. ur,ler• Renton, as did the district court, and l�r g of (19111) (live nude dancing in adult bookstore "Even within the area of protected speech, a v.ili.,eparatel•analyze both the closing-hours adopted a regulation of speech because ." and nightclub); Schad r. Bomagh or Mt. difference in content may require a different ;,tnenclment and the open-booth amendment Warddisagreement .at the message it . at 2 s." Ephraim. 452 U.S. 61, 66, 101 S.Ct. 2176, governmental response." Id. at fib, 96 S.Ct. t;n(ler its three-part test, considering first (citing Cl U.S. at i Community ity S.Ct. at live at 2450. Thus,the Supreme Court has indi- ;i)e dosing-hours amendment. (citing Clark r. CU.S. 88, for 04 S.Ct. . re 2181,G8 L.Ed.2d G71(1981)(live nude dancer � p in adult book store); Er•:nozrrik v. City of cated that some sexually explicit material Non,3070,ttc� .E U.S. 1 (1 4)). Co tent- �� � o may be only marginally protected. 30G5,3070,82 L.Ed.2d 2_`�l (1984)), Content- Jacksonville, 4_2 U.S. 205. _11-12, 95 S.Ct. Kr protected. IN'. Closing-Hoitrs Requirerrr.ent— neutral speech regulations must be`justified 2268.2273-74,45 L.Ed.2d 125(1975)(motion [4,51 Nevertheless, if the regulation of h 1625(b) Without reference to the content of the regu- pictures portraying nudity); Kois n 11•tiscon- sexually explicit materials is aimed primarily The Act provides: lated speech." Renton, 475 U.S. at 48, 106 sirs, 408 U.S. 229, 231-32, 92 S.Ct. 2245, at suppression of First Amendment rights, 1625. Rules and prohibitions relating S.Ct.at 929(quoting Virginia Pharmacy Bd. 2246-47. 33 L.Ed.2d 312 (1972) (sexually ex- then it is thought to be content-based and so to adult entertainment establish- v. Virginia Citizens Consumer Cor(7r.ctl, Inc., elicit poetry). In Barnes,however,a plurali- presumptively violates the First Amendment. ments. 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 ty of the Supreme Court concluded that the See Renton, 475 U.S. at 46-48, 106 S.Ct. at _ a , , L.Ed.2d 346 (1976)) (emphasis in original). First Amendments guarantee of free expres- 928-29. But if the regulation's predominate "A regulation that serves purposes unrelated .,ion only"marginally'protects nude dancing. purpose is the amelioration of socially ad- rbl No adult entertainment establish- to the content of expression is deemed neu- Bar nes, — U.S. at—, —. 111 S.Ct. at Averse secondary effects of speech-related ac- ment shall open to do business before tral, even if it has an incidental effect on 2460, 2463. In a case challenging a local tivity, the regulation is content-neutral and 10:00 a.m.,Monday through Saturday; and some speakers or messages but not others." zoning ordinance that required adult theatres the court must measure it against the tradi- no adult entertainment establishment shall Word, 491 U.S.at 791, 109 S.Ct.at 2754. In to be dispersed and not concentrated in limit- tional content-neutral time, place, and man- remain open after 10:00 p.m., Monday Renton, the Supreme Court looked to the ed zones, the Court has also stated: ner standard. See Barnes. —U.S. at—, through Saturday. No adult entertain- predominate concern of the city council in [Elven though Ave recognize that the First 111 S.Ct.at 2460; Renton. 475 U.S.at 46-8, meat establishment shall be open for busi- passing the enactment and stated that if an Amendment will not tolerate the total sup- 106 S.Ct. at 928-29. Young. 427 U.S. at 70- ne.,s on any Sunday or a legal holiday as ordinance does "not ban adult theatres alto- pression of erotic materials that have some 72,96 S.Ct. at 2452-53. Under Renton, rea- designated in §§' 501 of Title 1. gether,"9 but merely bans them from some arguably artistic value, it is manifest that sonable time, place, and manner regulations go%cinment interest: if the governmental in. is applied to the case at hand, that the result society's interest in protecting this type of of protected speech are valid if: (1)they are serest is unrelated to the suppression of Gee would be the same. Furthermore, the parties expression is of a wholly different, and justified without reference to the content of e\pre-,sion; and if the incidental restriction on concede Renton's applicability. Sex Brief for Ap- lesser, magnitude than the interest in un_ alleged First Amendment freedoms is no great- pellants at 33-35; Brief for Appellees at 22-23. gn the regulated speech; (2) they are narrowly rr than is essential to the furtherance of that Therefore we will analyze the case under Renton. trammeled political debate that inspired tailored to serve a significant or substantial +merest. Voltaire's immortal comment 5 government interest;6 and (3) they leave 0.Brrerr, 391 U.S. at 376-77, 88 S.Ct. at 1679. 8. Courts have sustained regulatory restrictions Young r.American Mini Theatre,% Inc, 427 open ample alternative channels of communi- In adopting this analysis in Barnes,the Supreme on the hours of operation for man•businesses; Luurt indicated that it parallels the analysis ap- but most of these cases applied the deferential U.S. 50, 70, 96 S.Ct. 2440, 2452, 49 L.Ed.2d cation.' Renton, 475 U.S. at 47-48, 106 plied in Renton. See Barnes, — U.S. at —, rational basis test because no fundamental right 4. The Commission does not contend that the 29 ("substantial") ++itlr Clark +. Corrrrrttrrrtrr for I I I S.Ct. at 2460. Courts which have consid- was involved. See,e.g.,Cash Inn of Dade,Inc.+v. materials sold and viewed in adult entertainment Creative Non-Violence. 468 U.S. 288. 293, 104 need the have applied boal th O'Brienopen-booth ordi. (IlthMetropor.19 Dade h orin" under r r ional 1241 nances have applied both O and Renton. (Ilth Cir.1991) (upholding under rational basis establishments are obscene or that their content S.Ct.3065,3069,82 L.Ed.2d 221 (1984)("stgnif- indicating that the outcome is the same regard- test ordinance limiting hours of operation of is undesenine of any First Amendment pro[cc- icant"). lebs of which analytical framework is applied pawnshops to 7:00 a.m.to 5:00 p.m.,seven days tion. See,e.g.,11126 Bahirrrore Blvd.v.Prince George's a week); Pollard v.Cnckrell,578 F.2d 1002,1014 7. More recentiv, in Burnes, the Supreme Court ('r+...ild.,886 F.2d 1415, 1420-21 (4th Cir.1989). (5th Cir.1978) (upholding ordinance regulating 5. Voltaire,referring to a suggestion that the Avio- indicated that the applicable analysis for evaluat- ;uc;ned ors other rottrrds,496 U.S.901, 110 S.Ct. hours of massage parlors); Patch Enter., Inc. t. lent overthroxv of tyranny might be legitimate, ing restrictions on nude dancing is the analysis 2�3(t. I10 L.Ed.2d 261 (1990); Afotvre & Video hours!(, 447 ageF.S pa 10); tch (Dena . c. v. said: "I disapprove of r rig you say,but I will formulated in United States+v. O'Brien, 391 U.S. llr,rlcl, Irrc. v. Board o Cn•. Connn'rs, 723 (upholding regulation on hours of bars). The defend to the death your right to say it." Young 367, 88 S.Ct. 1673,20 L.Ed.2d 672 (1968). See F.Su f P g v.Arrrer•icarr Aoirrt Theatres,Inc.,427 U.S.50,63 pP• 695, 698-701 (S.D.FIa.1989) (consider- closing-hours restriction in the case before us Bastes,—U.S.at—, I I I S.Ct.at 2460. The ing both O'Brien and Renton analyses and con. must be given heightened First Amendment scru- &n. 19,96 S.Ct.2440,2449&n. 19,49 L.Ed.2d O'Brien Court established a four-prong test to be cludin that "the result under either of these tiny. 310 (1976) (citing S. Tallentrye, The Friends of applied in determining whether a government g Voltaire 199 (1907)). PP g g tests is the same"). We agree with the Afo+vie d regulation of conduct violated the First Amend- I t,It.World.Inc.court that regardless of wheth- 9. The challenged ordinance in Renton "pro- 6. Supreme Court jurisprudence uses "substan- ment. This test considers whether the regulation Lr the analytical fi•amework of O'Brien or Renton vide[d] that such theatres may not be located tial" and "significant" interchangeably to de- is scribe the governmental interest at stake. Com- within the constitutional power of the Govern- pare Renton,475 U S.at 47-48.106 S.Ct.at 928- ment; if it furthers an important or substantial parts of the city,it is properly analyzed as a Books' argument is reminiscent of one the ��1leurcr �� -• -• form of time, place, anclinanner regulation. Supreme Court rejected in Renton, a case I,,•,q�tr and adequately supported is usually it undertake an official study to determine Renton, 475 U.S. at 4(i'106 S.Ct. at 928. that involved a zoning ordinance regulating anal.Zed in terltrs of whether the enactment how the licensed establishments' operating " [9] Adult Books argue- that these the location of adult motion picture theaters, narrowly tailored to achieve this interest, hours affect the welfare of the neighbor- In Renton, the Supreme Court held that a t::c 4ec•ond prong of the Renton test. See hoods. Cf. Star Satellite, Inc. u. Biloxi, 779 amendments are content-specific because city enacting an adult theatre zoning ordi- 1;,„t ,. 475 U.S. at 49-51, 106 S.Ct. at 929- F.2d 1074, 1077 (5th Cir.1986) (ordinance they affect speech directly, not just inciden- nance is entitled to rely on the experiences, :;1. Therefore,we conclude that the closing- adopted after extensive study by City includ- tally, and are aimed only at adult entertain- evidence and studies of other cities enacting .tent establishments. Adult Books concedes g ,.t:1 amendment is content-neutral in na- ing committee recommendations and public similar ordinances. Renton, 475 U.S. at 50, ,me. and turn now to analysis of whether it hearings). Therefore, Adult Books argues that a the predominate concern - the leand 51, 106 S.Ct. at 930. 931. In so holding, the ,. 11:i1.1•ew•ly tailored. This,the second prong that pre-enactment factual support for the later a in enacting the closing-hours and Supreme Court specifically rejected the idea „i Rt'„torr's tripartite test, itself has two legislation was insufficient open-booth amendments was the adverse see- that the government need produce its own part. ondar;y effects of its speech-related activity, studies or independent evidence to justify its Under Renton, a city or state may rely the regulation must be analyzed as a reason- conclusions."' Id. D. .Vurroirly Tailored to Scree Substantial heavily on the experience of, and studies able time, place, or manner restriction. The Governmental Interest produced by, other cities and states, as well Commission responds that both amendments There t no evidence that the legislature e adopted the closing-hours amendment be- { We will first discuss the sufficiency of the as on court opinions from other jurisdictions. are aimed primarily at curbing adverse see- cause of disagreement with the message the a,.,�er•ted governmental interest and then con- See Renton, 475 U.S. at 50-51, 106 S.Ct. at ondarp effects of adult entertainment estab- speech conveys. See Ward, 491 U.S.at 791- -icier the other edge of Renton's second dou- 930-31. In Renton, the Court held that the lishments and the nuisance-like disruptive 94, 109 S.Ct. at 2754-55. The closing-hours Hie edged prong—whether the regulation is city could rely upon the opinions expressed activity they occasion in residential areas. amendment only limits adult entertainment narrowly tailored to serve that interest. in court decisions of other jurisdictions to The state must also be prepared,however,to establishments' hours of operation to twelve establish that the location of adult entertain- articulate and support its argument with a hours per day excluding Sundays and legal ]. Substantial Government Interest merit establishments has a harmful effect on reasoned and substantial basis demonstrating holidays. It does not affect the content of [10-11] The Supreme Court has recog- an area, and thus, an important governmen- the ]ink between the Interest. and the as- speech directly, but only incidentally for the nized that a state's interest in preserving the tal interest justifying its passage. Id. at 51, sorted U.S. at 6940, 1 interest. See Schad, avowed purpose of decreasing traffic conges- character and preventing the deterioration of 106 S.Ct. at 931. But Renton also requires 452 . at 69-7a, 101 S.Ct. at tun.J., id. tion, parking problems. the performance of its neighborhoods adequately supports 're- st 77, 101 S.Ct. at 2187 (Blackmun, J., cord- p g 1 1 g q pp the legislative body to tell upon the evidence curving). sexual acts in public. and the littering of <tric•tions on adult entertainment establish- of incidental adverse social effect that pro- ! discarded sexually explicit materials near nients. See Young. 427 U.S. at 71, 96 S.Ct. vides the important governmental interest Thus, Adult Books does not appear to residential communities. See Renton, 475 at 2452; see.also Renton, 475 U.S. at 50, 106 justifying reasonable time,place and manner question the legislature's intent that the clos- U.S.at 48, 106 S.Ct.at 929. Furthermore,it �.Ct. at 930 (city or state's "interest in at- restrictions on speech or expressive conduct. ing-hours amendment serves a substantial appears that the content of the sexually ex- tempting to preserve the quality of urban life As we have seen in our analysis of Rentot's governmental interest. Instead,Adult Books plicit speech and expressive activity that i4 one that must be accorded high respect•') threshold test of content neutrality, these argues that the legislature did not have an businesses like :adult Books purvey permits quoting Yonng, 427 U.S, at 71, 96 S.Ct. at adverse effects must be the legislature's pre- adequate factual basis to support its conclu- legislative bodies to put adult entertainment 2452). We have ah•eady concluded that the dominate purpose in enacting the incidental -ion that the asserted undesirable secondary establishmerrt� in a different category than dosing-hours amendment can be justified if it restriction the statute imposes. Id. at 51-52, effects it seeks to regulate resulted from the other entertainment establishments. See i,intended to reduce the undesirable second- 106 S.Ct. at 930-31. protected activity or, if it did, that the clos- Youvg. 427 U.S. at 70-71, 96 S.Ct. at 2452. ary effects of adult entertainment establish- ing-hours amendment would reduce them. In determining whether a lel;i-lative enact- ?iient- and to promote the welfare of the The First Amendment does not require a Because the closing-hours amendment was ment meets the threshold test of content olinmunity's neighborhoods; however,before city, before enacting such an ordinance, to passed without adequate factual support, neutrality, courts typically look only to the i'a;,king Senate Bill 163 embodying the conduct new studies or produce evidence Adult Books says it is presumptively content- predominate concern of the enacting body. amendment,the full Senate received no docu- independent of that already generated by specific and so unconstitutional. Adult Ren.t.ou, 475 U.S. at 48, 106 S.Ct. at 929. agents not-any sworn testimony in support of other cities, so long as whatever evidence tlrc iti11.11 In addition,the General Assembly the city relies upon is reasonably believed within tiple-feet v any residential zone,single- that t tone ennui.•for First Amendment purposes (hd not conduct public hearings at which to be relevant to the problem that the city or multiple-family dwelling, church, park or is not concerned+cell economic impact; rather, school." Reniou, 475 U.S. at 46, 106 S.Ct. at it looks only to the effect of this ordinance upon adult entertainment establishments could addresses. 928, freedom of expression" .,cone 427 li S.at 78, also If. Legislative bodies•in enacting statutes•do not ric, not proven through the admission of evi- 96 S.Ct.at 2456(Powell,J.,concurring); see also p g 10. Adult Books also contends that the closing- Movie& Video iforld, 723 F.Supp. at 700(First 1—we evidence or take sworn testimony in the dence. In Delaware it appears, however, that hours requirement abridges its First Amendment Amendment does not euarantee anyone a profit; manner of courts. Legislative committees some- testimony can also be given when a Bill is on the freedom of expression because it is busiest after all it requires is that speech, expression, and tim+'s conduct hearings on pending bills,but the floor. The judgment of the members of Dela- c,tiut+my the+• take is often unsworn and the ware's General Assembly,like that of other legis- 10:00*vs a on olidaweekdays and Saturdays,and at ideas be allot at m adequate forum). Adult documents they receive unauthcnticated. The lators,is exercised on the basis of their personal Sundays and holidays. It hour on to admen that Books has not attempted to rho++• that it is not prn,ciples embodied in bills on the floor of a experience and the experience of their constitu- caused t to to the tremendous amendment has possible for adult entertainment centers to coin- 4 "ll:uive body are generally debated more or cnis; their judgment is not limited by the record caused it to lose a Court, however, amount of fated ply with the restriction on business hours and r I+•„of accord++ith principles of logic and rheto- resented to the assembled body. mess. Tltc Supreme Court, however, has stated su.•ivc cconomicalh. P• p p y' Id. In Renton, therefore, the Supreme Senate Bill No. 16.1, accompanying § 1625, ter also have a right to set some reason- wu et•uteuee ai,ui.,r bu Muhl,,,:,,,,,,. „ ._b.... Court noted that the"detailed findings"sun- specifically stated: al,lc hours of operation so that the neigh- five record or explain the stated interests marized in another state s court opinion were This Act provides certain time restric- lioi ode can get some peace and quiet at behind challenged regulations. It would ap- before Renton's City Council when it passed tions for adult entertainment establish- )rant part of the day. If there are any pear from reviewing the Renton case, for it, ordinance. Id. at 51. 106 S.Ct. at 931. ments. In addition, this Act limits the iltt(.•�6011.1, 1 have with us today a gentle- example, that testimony of this nature was Logically, reliance on the governmental pur- operation of adult entertainment establish- Man from the Delaware State Police who admitted at trial and considered on appeal."), pose of ameliorating the adverse effects of ments to the hours of 10:00 a.m. and [sic] )t,,� worked very closely with us on these vacated oit other grounds, 496 U.S. 901, 110 marginally protected speech or expressive 10:00 p.m.Mondays through Saturdays; it ],,ratters and I would like to thank the S.Ct. 2580, 110 L.Ed.2d 261 (1990); 15191 activity presupposes knowledge of them. requires such business to remain closed on State Police for their help. Thirteen.Mile Road, Inc. v. City of Warren, Adult Books'argument that Renton:is distin- Sundays and holidays. Ill. it 1116 (footnote renumbered).13 626 F.Supp. 803, 816-17(E.D.Mich.1985); cf, guishable therefore seems to be based on the Courts have upheld such time restric- 1121 -- 'ter the district court determined Contractors Assn of Easterrt Pennsylvania, premise that reliance can only be shown by lions, and found that they may, in fact, that Senator McBride's statement, coupled Inc. v City of Philadelphia, 6 F.3d 990, 1003 pre-enactment evidence that the legislature further a significant community interest in ti•ith the synopsis. was sufficient to demon- (3d Cir.1993)(recognizing that several courts knew about the adverse effects which supply promoting the welfare of a community's .Irate that Delaware's Senate passed Senate have held post-enactment evidence admissi- the required substantial government interest neighborhoods. One court [Star Satellite] kill 163 to regulate the undesirable incidental ble in determining whether an ordinance and therefore considered or relied on these noted that such time restrictions, which vi eet that the expressive activity of an estab- with racial classifications meets Equal Pro- effects in the law•'s enactment. Adult Books permit an adult entertainment establish- iislunent like Adult Books has on the commu- tection Clause). But see 15192 Thirteen. points out that the Delaware Senate had no ment to remain open fourteen hours per rrity,it permitted the state to submit supple- Mile Road, 626 F.Supp. at 825 (taking trial evidence of adverse incidental effects before day,six days per week,did not suppress or inental materials about the need for Senate testimony into account in considering legisla- it prior to the passage of Senate Bill No. 163 ban sexually-explicit materials from the Lill No. 163. We think the district court was five intent underlying statute, but dictating other than the conclusory statements of its community, and were not manifestly arbi_ rr tifiec] in finding that the synopsis of the that such post hoc justification should be sponsor, while other cities and localities toy. ::nrendnnent, referring to other jurisdictions' considered suspect). whose incidentally restrictive enactments recognition and treatment of the problem, Mitchell 11, 802 sponsor oF.Sup . at legislation. Senator t•rru pled with Senator McBride's statements [131 The ordinance upheld in Star Satel- hate been judicially upheld against colrstitu- McBride, the sponsor• of the legislation, ex- l p tional attack had before them more or less plained the rationale of Senate Bill No. 163 ::ncl hi: willingness to put forth testimony lire, like Delaware's closing-hours amend- elaborate studies about the adverse inciden- to the Senate as follows: from the State Police, was pre-enactment ment, limited adult bookstores to the hours tal effects of the activities they sought to evidence of need and effect sufficient to justi- of 10:00 a.m. to 12:00 midnight, Mondays Senate Bill No. 163 is an attempt ... by regulate when enacting such legislation. See, iy the district court's further consideration of through Saturdays, and required them to e.g.. 11126 Baltimore Blvd. c. Prince legislators from affected areas and others the Commissioners' post-enactment deposi- remain closed on Sundays.15 Star Satellite, to allow the citizens in their community, if Georges Cty., 31d., 886 F.2d 1416, 1423 (4tln rum testilnonty.lt Therefore, the district 779 F.2d at 1077,1079.16 Factual support for you will, to recapture their community. Cir.1989),vacated on other gmunds, 496 U.S. murt's use of this post-enactment evidence the need and effect of the ordinance in Star The adult entertainment establishments, was proper. See 11126 Baltimore Blt•d., 886 Satellite was somewhat stronger than that 901, 110 S.Ct. 2580, 110 L.Ed.2d 261 (11268, particularly ones in my Senatorial District F.2d at 1425("[C]ourts have routinely admit- which the Senate of Delaware had before it SDJ, Inc. v. City of Hotrxtou, f:37 F.2d 12GS, and nearby, unfortunately, were put into 1274 (5th Cir.1l188), ecri. denied ,web itont., place and established before the adult en- 13. There is no evidence on this record that Scna- 15. The city zoning ordinance in Star Satellite also M.E.F. Enter. v. Honston. 489 U.S. 1052, 109 wi McBride's purpose,as sponsor of Senate Bill rebtricted the locution and operation of adult tertainment laws were re-written by try- \„ 163.was anything other than what he stated bookstores, massy parlors, bars. nightclubs S.Ct. 1310, 103 L.Ed.2d 579 (1989). s• p self, Representative Spence and others or that he was unfamiliar with the facts the state and pool halls that serve liquor. Star Satellite. The district court acknowledged that the back in the early '80s and in several cases puliee had presented to him. Likewise, we do 779 F.2d at 1077 & n. 2. General Assembly "considered the relation- they abut residential communities. In "i,t suppose Adult Books would have us infer ship between sexually-oriented businesses fact, our neighbors,if you will, of r esiden- t%nhout evidence that the statements a memberof a legislative body makes on the floor about the 16. The United States coup of Appeals for the and their effects on the surrounding commu- 1! Fifth Circuit noted that the Star Satellite ordi. g tiny homes where families(inaudible) the ptii puss and effect of pending legislation arc pities" "in a cursor fashion" and observed ouu'umvtorthy. Such a presumption nance restricting the operation of regulated busi. Y establishments have become an absolute p sum tion would seem nesses to fourteen hours a day six days a wreck that "the record is not replete with re- unt,orkable as a matter of parliamentary proce- p p nuisance to the community in the form of dur'c and could serve to invalidate cvm,enact- did not suppress all sexually-explicit speech with- enactment evidence to support the chal- additional traffic and many, many other r'tcnt that must constitutionall have the support in the city, and so distinguished it from the of a substantial or significant-a.overnmental inter- ordinances in Schad v.Borough of Alount Ephra- lenged regulations." Mitchell 11, 802 activities that take place unfortunately in g F.Supp. at 1120. Nevertheless, it held that the area because of these establishments. `'s] inn,452 671U.S 61, 1) lot r Satellite, 2176,779 F.2 6t L.Ed.2d 671 (]981). Star Satellite, 779 F.2d at there were sufficient facts before the Dela- This bill before us now attempts to regu- 14. The district court relied upon the post-enact- 1079-80; see also Broadivar Books, Inc. v.Rob- ware Senate when it enacted Senate Bill No. late, if you will, the hours of operation ment depositions of two of the Commissioners as erts,642 F.Supp.486,493,504(E.D.Tenn.1986) 163 to satisfy Renton. from in the morning until 10:00 p.m.to be supplemental evidence. This evidence speaks to (upholding hours of operation provision requir- 6,th Penton's requirements that incidental re- ing adult-oriented establishments to remain As pre-enactment evidence,the Senate had closed Sundays and on legal holidays. We inclions on speech must be justified by a sub- closed between 3:00 a.m.and 8:00 a.m.on week- before it a synopsis of the Bill and a state- believe that while the law allows these 'tantial governmental interest and that the gov- days and between 3:00 a.m.and 12:00 noon on ment by its chief sponsor. The synopsis to establishments to operate,we believe that Linmcnt interest must be the predominate pur- Sundays); Elhirst Stereo Theater, hic. v. Boner, Pow for passage. 718 F.Supp. 1553, 1577(M.D.Tenn.1989)(same). 12. Proceedings of the Delaware Senate and House are tape recorded. 136 111 . . -- lnior to enactment of the closing-hours and purpose. See Lakeland Lounge r•. City pp,l,et•purpose for the closing-hours amend- tion affects content,the means chosen cannot _ :mrendlnent in question in this case. In Star of Jackson, .'Mississippi, 973 F.2d 1255, 1258 tlit•nt and,when coupled with the post-enact- be substantially broader than necessary to vaicllite, a committee appointed by the may- n. 1 (5th Cn•.1992) (recognizing, but not rx nt supplemental evidence and the experi- achieve the government's interest. Ward, 11•had conducted an extensive study and held reaching, argument that in light of Renton e;;te (+f other jurisdictions. amply demon- 491 U.S. at 796-98, 109 S.Ct. at 2757. This three public hearings during which citizens and Barnes. legislative findings may no long- su•ated that the amendment was passed to "least restrictive means" analysis, however, raised a number of concerns and problems er be necessary in addressing certain prob- c„rtrtd the socially undesirable effects inci- does not apply when content-neutral time, ❑llegedly caused by the regulated establish- lems of national concern), cent. denied, — i.aral to the operation of adult entertain- place, and manner restrictions are at issue. nit•nts. Sce Stur Sutc W(% 779 F.2d at 1077- 11.R, —, 11:4 S.O. 1s1n, 12:4 l..Ed:_'d •169 n,+nt -�iahli.,hments. Id., 491 U.S. at 796-800, 109 S.Ct. at 2757- 7s. In evaluating the importance of the gov- 0993). The Delaware legislature had before •f],tt., we helieve the evidence on this rec- fit(; see also New Jersey Citireu Action r. ernmental interest justiAring a particular or- it some basis for deciding the closing-hours ,,1•,1 is sufficient to -how Delaware had a Edison. Township, 797 F.2d 1250, 1255 (3d tlinance that incidentally restricts speech in amendment was needed to culls the unw•ant- 1;1,-tantial governmental interest in regulat- Cir.1986), cert. denied, 479 U.S. 1103, 107 under to curb the adverse effects of marginal- ed incidental effects of businesses like Adult tl,t• incidental adverse effects of Adult S.Ct, 1336, 94 L.Ed.2d 186 (1987). Rather, 1y protected activity,we do not think a court Books. This basis included the amendment's }.' speech-related activity and that its such restrictions are"narrowly tailored""'so ]]lust close its eyes to evidence that has been stated purpose, Senator McBride's state- ,;c.ci.lon to impose the restriction the closing- long as the ... regulation promotes a sub- presented and considered in other similar meats to the General.k sembly including his 11,airs amendment entails was for that pu•_ stantial government interest that would be cases, reference to the fact that a state police offi- l,,,se and not for the purpose of regulating achieved less effectively absent the regula- cer was on hand to provide supporting testi- ;l;e content of the sexually explicit speech or tion."' Ward, 491 U.S. at 799, 109 S.Ct. at 1'l'hen the First Amendment protection af- p p forded the expressed activity is only "mar- mony, and experiences of other jurisdictions expressive activity Adult Books purveys. 2758(quoting United States v.Albertini, 472 grinal." Ba,nrex — U.S. at —, —, 111 concerning such restrictions. •fhc•perceived effects are akin to those treat- U.S. 675, 689, 105 S.Ct. 2897, 2906, 86 S.Ct.at 2460,2463,some courts have attenu- The question remain_, however, whether ed by a public nuisance. The operation of an L.Ed.2d 536 (1985)). Moreover, when the ated the requirement of pre-enactment legis- the pre-enactment and post-enactment evi- eAahlishment like Adult Books may have a potential for overbreadth burdens a category lative evidence of the undesirable side effects dende, taken together, were sufficient to p'.:tc•e in our society but like the proverbial of speech, such as sexually-oriented expres- of expressive activity and a reasonable likeli- shove that the legislature's predominate pur- 1+'•F. it can be regulated out of the parlor and sion, that enjoys less than the full First hood that the proposed bill will reduce them pose in passing the cloying-hours amendment .,ti' the lawn• Amendment protection afforded to political by adopting a"legislative notice"theory that was regulation of the incidental effects of the debate, the cloth need not be cut quite so [l�l In summary,we hold that the under- close. See Barnes, — U.S. at is said to he analogous to the concept of activities of establishments like Adult Books ]vine governmental interest of Delaware's S.Ct, at 2470 (Sourer, J., concurring). judicial notice. See Wall Distrib., Inc•. n and that those effects involved a substantial el-+sing-)lours amendment, which does not City of Newport News, 782 F.2d 1165,1169 n. governmental interest. After passage of regulate or restrict the content of any 7(4ti1 Cir.1986)(adopting"legislative notice" Senate Bill No. 163.Pasqualine Robison, one ,1,ecc•h, idea or exp pp expression. is supported by [19] Still, the legislative cloak must be theory which allows legislative bodies to take of the members of the Commission and a fitted so as to "affect only that category of notice or assume matters of common know•]- resident of Midvale. testified that before the an adequate factual basis.'' [adult entertainment establishments] shown edge and experience). see also Postscript passage of Senate Bill No. 163 she had dis- ? Narmwly Tailored Requirement to produce the unwanted secondary* effects, Enter. r. City of Bridgeton. 905 F.2d 223, cussed with Senator McBride the valious thus avoiding the flaw that proved fatal to 226-27 (8th Cir.1990) (upholding legislation problems adult entertainment establishments I15-181 We must still address whether the regulations in Schad[,452 U.S.at 63,101 ]restricting operations of adult movie arcade in that community cause including noise,traf- the closing-hours amendment is narrowly tai- S.Ct. at 2179-801 and Emnoznik[, 422 U.S. based on Wall Distributors theory of legisla- fie congestion,parking problems and the per- 1111'ed to serve the substantial governmental at 213-14, 95 S.Ct. at 2274-75]." Rentoll, interests that justify its enactment. See. 475 U.S. at 52 [106 S.Ct. at 931]; see Tollis, rive notice). Justice Souter's concurring formance of sexual acts in public places. F,',;,to,,, 475 U.S. at 47-48, 52 lOG S.Ct. at Itr.c. v. Sari Bernardino Corrtr.tJ 827 F.2d opinion in Barnes also suggests a diminished ]Mitchell. 11, 802 F.Supp. at 1116. Joann + need for pre-enactment evidence. See Christian, another mernber of the Commis- 92,­24• 931; Ward, 491 U.S. at 789-91, 795- 1329, 1332-33 (9th Cir.1987) (county's pre- Baraes, — U.S. at—, 111 S.Ct. at 2470 sion,also a resident of Midvale.testified that `00.109 S.Ct.at 2753,2756-58. A restriction dominant concern in prohibiting businesses r+n speech or expressive activity is narrowly purveying sexually explicit expressive mate- recognition that legislation seeking to combat problems of noise.excessive parking,and the (Souter•,J.,concurring)("In light of Rerrtolr's she too had discussed with Senator McBride tailored if its effect on First Amendment rials within one thousand feet of any residen- the secondary effects of adult entertainment presence of discarded sexually oriented ma- freedoms is essential to further the govern- tial use or some other business and recre- need not await localized proof of those ef- terial on residential lawns that adult erlter- mental interest that justifies incidental inter- ational uses with amelioration of secondary fects.... I do not believe that a State is tainment establishments cause. Id. Ms. ference with First Amendment rights in the effects does not save ordinance interpreted required to undertake to litigate this issue Christian testified that she and Senator t''st place. O'Brien, 391 U.S. at 377, 88 to include any theater that showed a single repeatedly in every case."). McBride had specifically considered curtail- S.Ct- at 1679. Generally, where the regula- sexually explicit adult movie). Here, it is unnecessary for us to reach or ing the hours of adult entertainment estab- 17, see Renton,475 U.S, at 48, 106 S.Ct.at 929; content-neutral, as long as the regulations are decide whether the doctrine of legislative lishments as a means of reducing these inci- <i also Bu171011 COT t•.Cir, of Dayron,923 F.2d justified without reference to the content of that dental problems. Id. inn•473 (6th Cir.1991)("Regulations that apply speech.") (citing Boos v. Barrv, 485 U.S. 312, notice of the incidental activities common to a Particular category of speech because the 320, 108 S.Ct. 1157, 1163, 99 L.Ed.2d 333 adult book stores can save a statute passed The pre-enactment evidence before the n";atlatory targets happen to be associated with (1988)), without any pre-enactment evidence of need Delaware Senate was sufficient to show a ,,at t.`pe of speech arc properly characterized as 135 rtr t,:u.:..:... ..... .. ... 12111 Adult Books :nguLs that its location at gal (legislative restriction must be de- ,i,• Delaware's decision to regulate the 10:00 p.m, except on holidays. Even when ,n the northbound side of-iffi eight-lane divid- signed "to affect only that eategory of tht:- cb, inp hours of adult hook shores instead of the closing-hours amendment's weekday re- :•d highway, without any residences on that atres shown to produce the unwanted sec- ,.,,ntentruting them in a single area is also an strictions are coupled with the prohibition on ,isle -within two miles of it, and its practical ondary effects"). We think Renton leaves a ;,l l t"l�tiate exercise of the legislative power their operations on sixty-four days of the Inaccessibility to pedestrians preclude the legislative body free to classify and draw ,,,chwio e a particular means to accomplish a year(fifty-two Sundays and twelve designat- - closing-lrour•s amendment's application to it lines,provided it does not wholly or•practical- i,.vrit niate legislative end. Because Dela- ed state holidays), the closing restrictions 1,ecause the amendment's purpose of abating ly prevent access to the expressive material ,,•-;,,•c', closing-hours amendment promotes a cannot be considered to suppress or unduly late night noise levels, crime, and sexually whose sale and distribution the ordinance or .,th-t:tntial government interest that would restrict the dissemination of sexually-explicit offensive materials and activities in residen- statute incidentally regulates. I,e achieved less effectively absent the regu- materials in that state. The amendment al- tial areas is lacking in Adult Books' particu- Thus, we agree with the district court's lation.it meets the narrowly tailored require- lows those who choose to hear, view or par•- lar• case. conclusion that the state need not prove that nrent. the second prong of the Renton test, ticipate publicly in sexually explicit expres- It is thus on the Basis of its own particular Adult Books'particular ability to disseminate :,< it is applied to incidental time, place and sive activity more than thirty-six hundred location that Adult Books argues the closing- its materials needs restriction in order to t11annur• regulation of marginally protected hours per year to do so. We think the hours amendment is not narrowly tailored prevent the undesirable impact on its neigh- peeeh or expressive conduct. Constitution requires no more. See Star because it regulates the closing hours of all bars that justified the closing-hours amend- C. Attcrnative Channels Satellite, 779 F.2d at 1079. adult book stores. even those that can have ment. We think, rather, that it need only of Comninvieatlon 1231 Because the third and final prong of none of the adverse effects on residential show that adult entertainment establish- 1221 We come now to the final prong of the Rentov.test has been met,we have dem- commundties which justified the restriction in ments as a class cause the unwanted second- the Rc Oou test, as it applies to the closing- onstrated that the closing-hours amendment the first place. Adult Books points to Sta.1• ary effects the statute regulates.rs I;utt:s amendment. Adult Books argues that meets all the Renton requirements. Accord- Satellite in support of this argument. In the clo.in liours amendment does not leave in 1� the district court did not err in uphold- different In Renton, the Supreme Court also g- g.•, p Accord- that case, the challenged ordinance imposed 1 open adequate alternative channels of com- in the closing-hours hours amendment against cliffer•ent restrictions on residential and non- rejected an argument that a city had failed to 1 q ' g g- g ' residential areas. See Star Satellite, 779 prove narrow tailoringbecause it did not munication because it prohibits adult enter- constitutional attack. F.2d at 1077; ef. lormrg, 427 U.S. at 82, 96 show its legislative decision to concentrate winnient during the time of greatest custom- S.Ct. at 2458 (Powell, J., concurring) ("The businesses that deal in sexually explicit mate- er demand. It cites, by analogy, several V. Ope1t—Booth Requirement—Q 1633(b)(2) rial in a designated use zone was a better cases in which courts have invalidated regu- i case would present a different situation had >m latirurs prohibiting door-to-door canvassing We mill again, as with the closing-hours i Detroit brought within the ordinance types of means of reducing their undesirable second- 1 g g amendment, apply each of Renton's three theatres that had not been shown to contrib- ary effect than dispersing them throughout after 5:00 p.m. or 8:00 p.m. for lack of ade- the city. Id at 52-53, lOG S.Ct. at 931-32. quate alternatives. See, e.g., New Jersey tests to the open-booth amendment. With ute to the deterioration of surrounding ar- respect to wieiting booths in adult entertain- eas."). Adult Books' argument confuses the Instead,it determined that the city's decision �'iti;t',1 Action, 797 F.2d at 1 60-62; City of requirement that judicial resolution of indi- to concentrate establishments like Adult ll'ufscka r. Illinois Public Action. Comicil, ment establishments, the Act provides: vidual disputes must be based on evidence Books in one area .was a legislative choice 796 F.2d 1547, 1557-58 (ith Cir•.1986), q#d, $ 1633. Building standards. -1�4 U.S. 1043, 107 S.Ct. 919, 93 L.Ed.2d 972 material to the situation of the parties to the among competing means for which a court 47.9 . . 1048. 10t Action Coalition L. t+. City of case With the requirement that a legislature cannot substitute its own judgment. It stat- Kenosha. 767 F.2d 1248, 1-956, 1258(7th Cir•. (b) No person shall own, operate, man- to restrict the time, manner or ed: 1985): of Pennsylvau.ia Allian-ce for Jobs & age, rent, lease or exercise control over means of speech or expressive activity must It is not our function to appraise the Nis-show that it had a any commercial building, structure, prem- ro err )ui ose." dom of[tire city's]decision to ire g require adult l • t 1'. Council of Munhall 743 F.2d 182, proper purpose." q 1,874S (3d Cir•.1984). It is, of course, clear ises or portion or part thereof, which con- Rerltoll. indicates that a state legislature theatres to be separated rather than con- that"a restriction o»expressive activity may twins: centrated in the same areas.... Mite considering an ordinance or a statute de- reasonable signed to regulate the incidental undesirable city he invalid if the remaining modes of commu- (1) Partitions between subdivisions of 11t1tst be allowed opportat nication are inadequate." Members of City a room, portion or part of a building, effects of marginally protected expressive ac- ttity to experiment ivi.th solutions to ad �'u,r,rcil c. Tavpayels fu1 1%ilaceltt 466 U.S. structure or premises having an aper- tivity does not need to surrey every adult nlittedly serious problems. -NA.512,104 S.Ct.2118.2132,80 L.Ed.2d 772 tur•e which is designed or constructed to book store in the state to determine the Id. at 52, 106 S.Ct. at 931 (quoting Young, 119,S41; New Jersey Citi<eu Action, 797 F.2d facilitate sexual activity between persons effect the statute or regulation %till have on 427 U.S. at 71, 96 S.Ct. at 2452) (plurality at 1261. We think,however,that Delaware's on either side of the partition; or each. See Relrtov, 475 U.S. at 52, 106 S.Ct. opinion)(brackets in original)(emphasis add- restriction on the hours during which busi- (2) Booths, stalls, or partitioned por- 18. while the effect of the Bill on the class of ment directly across the street on the southbound nesses like Adult Books can operate leaves lions of a room or individual rooms,used persons it affects is often a sub'ect of legislative side of the hiehway where the residents are not adequate alternative channels of eommunica- p r g for the vie%ving of motion pictures or debate, the debate is not normally focussed on immune to the nuisance of night noise and dis- tion open. other forms of entertainment, having the Bill's effect on a particular person. turbances. in addition, there is evidence that nmen g I patrons are known to park in the residential area rrcler the closing-hours amendment adult doors, curtains or portal partitions, un- 19. Adult Books' argument that its particular lo- and walk to the book store so that their cars honk stores are free to operate six days per less such booths, stalls, partitioned par- cation eliminates many of the undesirable effects would not be recognized at the book store. week for twelve hours per day Monday Lions of a room or individual rooms s0 the legislature wanted to regulate also overlooks the location of the Midvale residential develop- through Saturday, between 10:00 a.m. and used shall have at least one side open to 140 .� (JIItl AS IU 1'.�U ILD IJf"l.l l-. ,oro, an adjacent public-room so that the area trol crime. The record does not support 1 pbuildings- inside . is risible tp.persons in adjacent any intention to suppress the content of :(isle regardless of tyre of film shown duct. The commercial remises, public rooms. Such areas shall be light- the films on to suppress ves. Ordinance 88-31 Ix 1(1 content-neutral manner regulation). and structures where persons might place l.i ed in a manner that the persons in the does not ban the showing of sexually ex- kr the closing-hours restriction, the open- themselves at risk any infection from this iwoth amendment affects only the manner in disease, or from an other communicable- areas used for viewing motion pictures plicit%ideas and in no way limits access to ;;;yic•h an expressive performance is viewed, disease facilitated by high-risk sexual con- or other forms of entertainment are%isi- or availability of such videos. It merely ble from the adjacent public rooms,but regulates the manner in which the films I:,It it,sub�tunre. Therefore,we also review duct, should as public policy be regulated rile open-booth amendment under the stan- and standards for the prevention of the such lighting shall not be of such intensi- can be viewed. Additionally,the court will I1,,rds applicable to a content-neutral time, spread of these communicable diseases ty as to prevent the viewing of the mo- not strike down otherwise constitutional place. and manner regulation of expressive should be established for the protection of tion pictures or other offered entertain- legislation on the basis of a "speculated activity the public health, safety and welfare. ment. illicit legislative motive." Id. (emphasis added). The Synopsis accom- Del.Code Ann.tit. 24, & 1633(b)(West Supp. Id.at 700(citations omitted); see also Subur- It. .Yorroirly Tailored to Serve Substantial panying Senate Bill No. 164 provides: 1992) (effective July 9, 1991). ban Video, lue. r. City of Delaield, 694 Governmental Interest Magazine and newspaper articles, from F.Supp. 585, 589 (E.D.lNris.1988). 1. Substantial Gorernment Interest time to time, contain articles relating to A. Content Areutrality The record in this case does not show that "anonymous sex"which takes lace within id.i] The purpose of § 1633(b)(2), the 3 p [24] Delaware's open-booth amendment Delaware intended to suppress the content of „pen-booth requirement, as stated in the certain adult entertainment establishments does not ban films or other entertainment. any films. The Act and its amendments statute itself at § 1631. is to "eliminate the or similar places. It is the basic premise It merely regulates the place where the view- apply to all "adult entertainment establish- 1,,,:sil,ility of the spread of, or infection by, of this Act that such conduct is conducive ing occurs. It is not directed at limiting the ments." They are defined as any "commer- to the spread of communicable disease; c"mmunieable diseases." De1.Code Ann. tit. content of the films or performances patrons cial establishment ... which offers sexually , and is not only a danger to persons fre- •N. . 1631(a) (Supp.1992) It provides in can view from within the booths, but rather oriented material. devices, paraphernalia or nrla•e detail: quenting the adult entertainment estab- at curbing the undesirable incidental effects specific sexual activities, services. perfor- lishment, or those engaged in such con- that are perceived to result from the use of mantes or am combination thereof," Del. s. Statement of purpose; find- duct,but it is also of danger to the pubic ing closed booths in adult entertainment estab- Code Ann. tit. 24. § 1602(2) (Supp.1992), as (a) It is hereby found that there are [public].... lishments. These effects are thought to in- well as massage parlors, conversation par- Mitchell 11, 802 F.Supp. at 1116. elude the spread of AIDS and other commu- lors, and call services which have no First certain commercial premises, buildings, ` structures or parts thereof which, by r•ea- As it did with the closing-hours restriction, nicable diseases through the unprotected, Amendment protection. Cf. Mini Spas Inc. .nn of the designp and use of such remises, Adult Books asserts that the factual record promiscuous sexual activity that can occur v. South Salt Lake City Corp., 810 F.2d 939, does not show the Delaware General Assem- within the privacy of closed booths. The 940-42(loth Cir.1985) (city's interest in reg- buildings or structures are conducive to the spread of communicable disease to per- bly passed the open-booth amendment for elimination or reduction of this adverse inci- ulating prostitution through ordinance pre- the ur-pose it set forth. It ruts to the dental effect of Adult Books' business of scribing dress code for massage parlors was slnrs frequenting such premises, buildings p p points and structures; and also to the public record of the proceedings on the floor of the prodding its patrons With sexually explicit unrelated to inhibiting freedom of expres- health, safety and welfare. The General Delaware House of Representatives on final materials appears to be a substantial govern- sion). assembly declares that the health, safety passage of the open-booth amendment. A mental interest. Like the ordinance in Beim v. Health & and welfare of all persons in this State review of this record reveals a reading of the Adult Books,however,argues that the pre- Hospital Corp. of_Clarion County, Indiana, .hould be protected through the applica- bill by title and a brief oral description of its dominate purpose of the Legislature was to 865 F.2d 797, S02 (7th Cir.1989), Delaware's tion and enforcement of standards regulat, purpose by the sponsoring member immedi- restrict the content of the films Adult Books open-booth amendment ing such premises, buildings and %true- ately preceding the vote. In the Senate be- offers for dewing by its patrons rather than would apply to a showing of "Rebecca of tures,in order to eliminate the possibility fore enactment Senator McBride, the spon- to curb the unwanted secondary effects of Sunnybrook Farm" as well as any other ()f'the spread uf, or infection by, comnumi- soring senator,informed the Senate from the making it available in closed booths. We film or performance. The [county ordi- ruble diseases. floor: reject that argument. In doing so, we note nance regulating doors on individual enter- (b) The sexually transmittable disease of This is a very serious piece of legislation our agreement with the district court in Mov- tainment enclosures] regulates only the Acquired Immune Deficiency Syndrome, for a number of reasons. And we did a lot ie & Video World. v. Board of Commission- non-communicative aspects relating to the currently found to be irreversible and uni- of research with it and got a lot of help in ers, 723 F.Supp. 695, 700 (S.D.Fla.1989). It environment in which such material may developing the legislation and there has fot•rnly fatal• is found to be of particular reasoned: be disseminated or received, and thereby been some question in the past in other %lunge%• to persons who frequent adult en- The Plaintiff suggests that the legislature's "imposes only an incidental burden" on tertaimnent establishments or other prem- states about whether or not an open booth true intent is, not to curb the "secondary plaintiffs' first amendment rights. ises, when they are in violation of state law ... is constitutional and we have found effects," but rather to close the establish- Id. at 802 (citation and internal quotations law•. A high incidence of this and other through research that that has been up- ment and suppress the content of the films omitted); see also Ellrvest Stereo Theatres, communicable diseases is found to occur in held in federal courts. it offers for dewing. However,on its face Inc v. Wenner. 6S1 F.2d 1243, 124546 & n. (liscernable population groups. The risk Id. (emphasis omitted). the statute's stated reasons are to combat 2 (9th Cir.1962) (city ordinance requiring f'a AM$ for obtaining or spreading A.I.D.S. Too close a concentration on the proceed- the possible spread of disease and to con- that viewing booths be visible from contiu- are associated with high-risk sexual con- ings in the General Assembly on final pas- t' 144 sage would improperly=;overlook other eta- the regulation itself), cert. denied 484 U.S. Z �n closed booths was stronger than that removed would adequately accomplish the. deice that the Delaw•arV General Assembly 1059, 108 S.Ct. 1013, 98 L.Ed.2d 978 (1988). , _ had a proper propose for passing the open- trhieh is present in this case. We are upper- legislative goal of deterring promiscuous sex- booth amendment. On two separate ocea- The introductory clause of the Postscript .waded. This record shows that the open- ual contacts that can spread deadly disease. lions the General Assembly heard testimony Enterprises ordinance stated: "the City i,,,,,th amendment was not enacted out of a Doors of this kind would not inhibit sexual- Council finds that the viewing of movies p,ere unsupported legislative preference for activity between two individuals in adjacent from Captain Hancock of the Delaware State Police. The minutes of the House Sunset within closed booths tends to promote crime, the open booths or because the legislature booths through the use of holes in the com- and Overview Committee for June 27, 1991 unsanitary conditions, and a pattern of con- ;nLivarily and irrationally believed that mon di�4ding partitions, or inhibit masturba- show that Captain Hancock testified on be- duet inimical to public health, decency and elua•d Booths contribute to a serious public tion within the partially enclosed booths." half of Senate Bill a ock the open-booth order." Postscript Enter., 905 F.2d at 228. health problem. Instead, the record shows Therefore,we reject Adult Books'contention amendment, and l provided graphic o n-bodescroth There was no other factual support in Post- that the concerns expressed in the preamble that the legislative purpose of preventing f the behavior which the bill hopes to script's record. The Postscript court, in up- ti, the open-booth amendment when the De- unprotected sexual activity arguably could be bons o control Abe behavior 305. Captain Hancock holding an open-booth amendment on the w:u e House and Senate were considering served by spacing the booths one foot apart also addressed the full Senate n June 19, basis of this clause,also recognized that oth- it, passage are not arbitrary, irrational or as well as its suggestion that this spacing, er courts which had considered the validity of pectilative and that the predominate moti- combined with partial doors, would reduce 1991, after Senator McBride introduced the ordinances combating g lose the dangers posed by voting factor that. led the Delaware legisla- undesirable sexual conduct within the booths bill, when a senator asked for further expla- nation of the purposes of the bill. Captain closed viewing booths have uniformly upheld tore to pass the open-booth amendment was with less impairment of the privacy that en- them as valid place or manner restrictions on the reduction of these adverse with ef- coura es persons using the booths to engage Hancock explained that as head of the Dela- g p g ware State Police's Financial Crime and Or- protected speech. Id. at 227 (citations omit- feets. The Delaware General Assembly had in the kind of expressive activity Adult Books ganized Crime Unit he had many contacts red), it artnrent of the open-booth amendment. It is p legislatively adequate basis to support en- seeks to promote. Moreover' Delaware did with adult entertainment establishments Indeed,Adult Books acknowledges that all not up to this Court to question the wisdom not have to adopt the means Adult Books statewide. He described the booths com- federal courts that have addressed this issue preferred to regulate the undesirable health monly used and said that it was police experi- have unanimously upheld the open-booth re- ,r its decision. effect of the marginally protected speech and ence "that the booths are little more than quirement as a valid exercise of state police >>, \'ar,ot<,ly Tailored Regztirenrertt expression it purveys. The state must be masturbation booths" and that seminal fluid power. See, e.g., Bain.on Co))). v. City of 121i.27] Although we have determined allowed a reasonable opportunity to experi- was commonly found dripping down the walls Dayton, 923 F.2d 470 (6th Cir.1991); Doe v. ment with solutions to problems,Renton, 475 and on the floor in puddles. A at 316-18. Cityo Minneapolis, 898 F.2d 612 (8th Cir. there v sufficient factual support to justify U.S. at 52, 106 S.Ct. at 931 (quoting Young, p pp' f- p the government's asserted interest and tu•- q g ' Senator McBride then added that the legisla- 1990); Postscript Enter., 905 F.2d 223; Berg g p 427 U.S. at 71, 96 S.Ct. at 2452), and the tion was intended to stopthe spread of sexu_ tt Health &Hospital Corpf Marion Coun- booth we must determine whether the open- p p p booth requirement is narrowlytailored to regulation "need not be the least-restrictive ally related diseases and that similar legisla- ty, 865 F.2d 797 (7th Cir.1989); Fl1`1PBS, serve th governmental objective of prevent- or least-intrusive means of doing so." Ward, tion in other jurisdictions had been upheld. In.c. t% City of Dallas, 837 F2d 1298 (5th ing the spread ead of AIDS and other sexually 491 U.S. at 798, 109 S.Ct. at 2757-58 (foot- In Postscript Enterprises, the United Cir.1988), vacated in paid oil other grounds. transmitted diseases. Adult Books' argu- note omitted); see also Ba.nion Corp., 923 States Court of Appeals for the Eighth Cir= 493 U.S.215, 110 S.Ct. 596, 107 L.Ed.2d 603 meat that there are better means to deter F.2d at 473-74. But see Berg, 865 F.2d at cuit upheld an open-booth requirement for a (1990); Wall Distrib., 782 F.2d 1165: Ellzuest sexual contact in the booths without inhibit- 803-04 (requiring least restrictive means movie arcade on the theory of "legislative Stereo Theatres, 681 F.2d 1243; Granberg n ing freedom of expression is rejected for analysis but concluding it was easily met with notice" adopted by the United States Court Town of East Hartford, Connecticut, 736 much the same reasons that we rejected its open-booth ordinance). "So long as the of Appeals for the Fourth Circuit in Wall F.Supp. 430 (D.Conn.1989), Off"d, 901 F.2d similar argument against the closing-hours means chosen are not substantially broader Distributors. Postscript Enter., 905 F.2d at 297 (2d Cir.1990) (per curiam); 31orie & amendment. The choice of one among sever- than necessary to achieve the government's 226-27 (quoting Wall Distrib., 782 F.2d at Video World, 723 F.Supp. 695; Suburban al legitimate Statutory means to obtain a interest ... the regulation will not be invalid 1169-70 n.7)20 The court of appeals upheld Video, Inc. v. City of Delafield, 694 F.Supp. legitimate end is a matter for the legislature simply because a court concludes that the the open-booth ordinance based solely upon 585(E.D.Ris.1988); Broadway Books, Ine. v. not the judiciary. Moreover, it does not government's interest could be adequately the and need for an open-booth re- , . p. . . . . purpose Roberts 642 F.Supp. 486 (EDTenn1986) P appear that use of partial doors open only at served by some less-speech-restrictive alter- quhement that was stated in the enactment's Adult Books contends that these cases are the bottom, booths spaced further apart, or native." Ward, 491 U.S.at 800, 109 S.Ct. at introductory clauses. Id. at 227; cf. Christy distinguishable. It points out that in each of booths with the bottom two feet of the door 2758. v. City of Aim Arbor, 824 F.2d 489,493 (6th them, with the exception of the Court of Cir.1987) (insufficient factual support be- Appeals for the Eighth Circuit's decision in 21• See Wall Distrib., 782 F.2d at 1169(recogniz- be spread by masturbation, or by semen on the ire prevention of masturbation within booths walls or floors of booths, [the State]has a sub- cause there was no evidence of need and Postscript Enterprises, factual support of a and the unsanitary conditions that result as sub- stantial ... interest in ensuring sanitary,not just purpose,not even a preamble or statement in proper need and purpose for the prohibition slamial government interest justifying closed safe, public places.'). Furthermore, a partial booth ordinance); Movie & Video World. 723 door would not necessarily prohibit an individual 20. See supra Part IV. B. 1. for our previous the open-booth amendment is stronger than that F.Supp.at 699(recognizing possibility that AiDS from engaging in sexual intercourse with others discussion of Postscript and the adequacy of the which we held sufficient to support the closing- and other diseases could be spread by masturba- in the same booth because he could simply hold legislative record in support of the closing-hours hours amendment. Therefore,it is again unnec- lion or by ejaculated semen left exposed on into- his or her partner so that his or her legs would amendment. The record of pre-enactment evi- essary for us to reh_-on an unlimited doctrine of rior of booths). But see Sube,rban Video, 694 not be exposed. deuce in support of the need for and purpose of legislative notice. F.Supp.at 590('•[W]hile AiDS apparently cannot Thus,Delaware's officers.and the Commis- VI. Goners did not have to shoo that"[tlhe open r 1. Federal Courts C-766 tions and on state of mind. Fed.Rules Civ. booth regulation appears to be the least bur- For the foregoing reasons the order of the (•ourt of Appeals' standard of review on Pr'oc.Rule 56(c), 28 U.S.C.A. densonre means of controlling offensive and district court granting summary judgment in ;tppeal from grant of summary judgment is favor of the Commission in No. 92-7508 will k n u 8. Insurance «252.1, 271.1 illegal activity within the booths that can be I' ' ' imagined." 6Ya11 Dish lb., 'i82 F.2d at 1170. be affirmed. t r Federal Courts a802 Under Pennsylvania law,for life insurer The Delaware patrons of establishments like to prove that policy was void as result of Court of Appeals, reviewing grant of view Books may still vie what they desire w privately in then homes or publicly in places O 5[[YNUMBfr5Y5TEM G111111:11?' lodgment, reviews facts in light misrepresentations on application, it must show that insured's representations were that provide the material they seek. There- ' to,a favorable to party against whom sum- false, that insured knew they were false or judgment was entered. made them in bad faith,and that representa- fore, we hold the open-booth amendment is narrowly tailored under the standards Word t'njted States Magistrates 0-27 trans were material to risk being insured; and 1'ovng instruct us to apply to non-con- De novo review of magistrate judge's fraud is presumed from knowledge of falsity. tent based restrictions on the manner and rip rt requires, at least, reading transcripts 9. Federal Civil Procedure a2501 place for the distribution of speech-related COOLSPRING STONE SUPPLY, .t,testimony that relates to objected-to por- materials.'-'- INC., Appellant tions of report. 28 U.S.0 a. § 636(b)(1). Genuine issues of material fact existed as to whether insured had knowledge of liver C. Alternative Channels V. a. insurance «22S(3) disorder at time he filled out life insurance LIFE of Communication AMERICAIV STATESES E INSURANCE Under Pennsylvania law, failure of life application,whether he believed he drank to CO LIF in uranee policy to include statutorily man- excess, and whether failure to mention blood [281 The open-booth amendment leaves dated incontestability clause, which would test was deliberate and material, precluding ample alternative channels of communication. No. 93-3170. preclude insurer from challenging validity of summary judgment denying coverage under Nothing in it limits the number of viewing „oh y on any ground other than nonpayment life insurance policy for insured's failure to booths or the type of material that can be United States Court of Appeals, (d'premiums after two years,would not war- disclose liver problem, drinking, and blood shown within the booths. Because the stat- Third Circuit. rant barring insurer from challenging policy test on application. ute does not bar people from entertaining on misrepresentation grounds before two themselves by viewing sexually explicit films Argued Nov. 3, 1993. \-vars: instead, policy would be read as if it 10. Federal Civil Procedure 0-2534 within individual booths or from renting,pur contained required incontestability clause, Decided Nov 24, 1993. Plaintiff opposing summary judgment chasing, or privately displaying any film or t�ith result that it would not limit insurer's for defendant did not waive claim that there video,the availability of films or other enter- defenses when insured died within two-year were genuine issues of material fact preclud- tainment to the public is not significantly Beneficiary brought action against insur- period. ing summary judgment for defendant by fil- impaired, So long as this is so, the amend- er seeking benefits under life insurance poli- 5. Federal Civil Procedure C-2470.1 ing its own motion for summary judgment; ment's effect on Adult Books'revenues from cy. The United States District Court for the plaintiff argued that there was no genuine the purchase of the tokens needed to gain Summary judgment is only appropriate l g access to the booth is not material to a First Western District of Pennsylvania,Maurice B. where there is no genuine issue of material issue of material fact only for purposes of its Amendment analysis. See 1 ontrg, 427 U.S. Cohill,Jr.,J.,entered summary judgment for fact for jury to decide. Fed.Rules Civ.Proc. own motion, and adequately preserved its at 78, 96 S.Ct. at 2456 (Powell, J., concur- insurer, and beneficiary appealed. The Yule 56(c), 28 U.S.C.A. objection to granting summary judgment for ring); Movie R Video WorK 723 F.Su at Court of Appeals. Sloviter,Chief Judge,held defendant. g pp' that genuine issues of material fact existed as 6. Federal Civil Procedure Ca2470.1 700. "The viewing public is in no way 'de- to alleged fraudulent misrepresentations For issue to be "genuine," to preclude nied access to the market ... or ... unable made on application for insurance which pre- entry of summary judgment, nonmovant to satisfy its appetite for sexually explicit eluded grant of summary judgment. Gregg M. Rosen(argued),Robert G.Bello, needs to supply more than scintilla of evi- fanfare. ' Berg. 865 F.2d at 803 (quoting d(nee in support of its position—there must Sable, Makoroff & Gusky, Pittsburgh, PA, )ouug, 427 L.S. at 62, 96 S.Ct. at 2448). Vacated and remanded. he sufficient evidence (not mere allegations) for appellant. 22. We also reject Adult Books'argument that the ent classification from other motion fur reasonable jury to find for nonmovant. j g pictures."); j y Wendelynne J. New•Wn (argued), Anthony two amendments violated the Equal Protection see also Renton, 475 U.S.at 49-50, 106 S.Ct. at Fed-Rules Civ.Proe.Rule 56(e), 28 U.S.C.A. J.Guida,Jr., Buchanan Ingersoll Profession- Clause of the Fourteenth Amendment. The Unit- 929-30; Star Satellite,779 F.2d at 1080. We do See publication Words and Phrases ed States Supreme Court has held that states and not address Adult Books' argument that the P al Corp., Pittsburgh, PA for appellee. local governments may regulate adult entertain- open-booth provision is unduly vague, Although for other judicial constructions and def- ment establishments differently than other busi- it was raised in the district court, Adult Books muttons. Hess establishments if the regulation is content- did not brief it on appeal and it is therefore Before: SLOVITER, Chief Judge, neutral and aimed at ameliorating secondary ef- waived or abandoned. See Institute for Scientific �• Federal Civil Procedure <�2465.1 STAPLETON, Circuit Judge, and fects caused by such establishments. See l'oang, Info., Inc. v. Gordon d Breach, Science Publish- Summary judgment is inappropriate RESTANI*, Judge, United States Court of 427 U.S.at 70-71,96 S.Ct.at 2452 C[T]he State ers, Inc., 931 F.2d 1002, 1011 (3d Cir.), cent. Where case will turn on credibility determina- International Trade. may legitimately use the content of these[motion denied,—U.S.—• 112 S.Ct.302, 116 L.Ed.2d pictures]as the basis for placing them in a differ- 245 (1991). Hun. Jane A. Restani, sitting by designation. 1674 779 FEDERAL REPORTER, 2d SERIES STAR SATELLITE, INC, v. CITY OF BILOXI 1075 Cite u 779 F2d 1074(Sth CIT. 1996) District Court for the Southern District of 4. Constitutional Law C-42.20) pages of trial transcript. No witnesses laws cannot be fulfilled by permitting Lit- Aiississippi, Walter L. Nixon, Jr., Chief Third party standing is not permitted were presented. The debtor was afforded tle Creek to stave off foreclosure y C°rn. Judge,denied operator's motion for prelim- when potentially overbroad statute is sub- no prior notice of the issue, which had not monwealth, then it makes no difference inary injunction, and operator appealed. ject to a narrowing construction. U.S.C.A. been specifically raised by Commonwealth whether Little Creek had, or has, a cause The Court of Appeals, Jerre S. Williams, Const.Amend. 1. in its motion for relief from the stay. of action for damages against Common. CircuitJudge, held that: (1) operator had 5. Constitutional Law e-42.1(1) The abrupt ruling of the bankruptcy wealth in state court. Additionally, as the standing to challenge time restrictions of court here contrasts with the approach of issue of good faith arose during a hearing ordinance; (2)operator did not have stand- Fact that a number of other businesses the Ninth Circuit Bankruptcy Appellate on a motion to lift the stay, Little Creek ing to assert rights of third parties who had become parties to suit recently did not Panel in Thirtieth Place, which "consid- will not be permitted to undermine the ex. may have been affected by ordinance but grant adult bookstore standing to chal- er[s] the determination of this question pedited treatment of this motion, see 11 who were not parties to the suit; (3) ordi- lenge all provisions of city ordinance re- [whether to dismiss a case for bad faith]to U.S.C. § 362(e), by interposing the state Hance, limiting operations of bookstore to striding location and operation of various require an examination of all the particular court issues. See In re Johnson, 756 F.2d hours of 10 A.M. to 12 midnight, Mondays commercial establishments in city, in that facts and circumstances in each case." 30 738, 740 (9th Cir.), cert. denied, --- U.S. through Saturdays, and requiring book bookstore operator was only party of B.R. at ter In reversing d rejected a —, 106 S.Ct 88, 88 L.Ed.2d 72(1985); In stare to remain closed on Sundays, did not record at time it sought to preliminarily court determination that had rejected a re Born, 10 B.R. 43,48-50(Bankr.S.D.Tex. volate either First Amendment or equal enjoin enforcement of ordinance. creditor's motion to dismiss the case or lift 1981). The bankruptcy court was correct protection principles; and (4) ordinance did the stay, the Bankruptcy Appellate Panel in striking the extrinsic state law defenses p 6. Injunction c�135 not violate Mississippi blue laws. Decision to issue or not to issue a thoroughly analyzed the debtor's condition, from the debtor's response to the motion to which amounted to a "new debtor" bank- lift the stay. Affirmed. preliminary injunction is subject to consid- ruptcy filing on the eve of foreclosure, and erable, though not unbridled, discretion in concluded: For these reasons, the judgments of the the district court. bankruptcy court and the district court are 1. Constitutional Law ca42.1(1) The predominant purpose in filing the REVERSED and this cause is REMAND petition was to prevent foreclosure upon ED for further proceedings not inconsist Adult bookstore operator had standing 7. Zoning and Planning c=6 the heavily encumbered property. It ent herewith. to challenge time restrictions set forth in Community's zoning authority is a val- must be noted that there was no plan city ordinance, limiting bookstore opera- id exercise of its police power. contemplated for the infusion of capital, tions to hours of 10 A.M. to 12 midnight, 8 Zoning and Planning e-605 no gain in managerial expertise,no histo- o EKEYNUMBERSYS11M Mondays through Saturdays,and requiring T bookstore to remain closed on Sundays. Generally, zoning decisions are afford- ry of past business conduct, no employ U.S.C.A. Const.Amend. 1. ed considerable deference. ees and indeed,no current business activ- ity on the date of the commencement of 2. Constitutional Law a42.20) 9. Constitutional Law e.-90.1(1) the case nor are there any reasonable Statute's overbreadth must not only be Where community's zoning plan in- prospects for the conduct of future busi. real,but substantial as well,judged in rela- fringes upon First Amendment rights, zon- ness. tion to statute's plainly legitimate sweep,in ing plan must be narrowly drawn in fur- Id. STAR SATELLITE, INC., a Mississippi P Y g P� Corp., d/b/a Satellite News, order to permit plaintiff to assert challenge therance of a substantial governmental in- parties to the statute. U.S.C.A. terest. U.S.C.A. Const.Amend. 1. [6] We do not, in reversing the bank- Plaintiff-Appellant, of third ruptcy court's somewhat hasty conclusion Const.Amend. 1. 10. Constitutional Law C=90(3) in this case, imply that a finding of lack of v' 3. Constitutional Law «42.20) Reasonable time, place, and manner good faith would be improper after fuller CITY OF BILOXI, A Mississippi regulation of protective s eech, when nec- consideration of the issue on remand. Un- Municipal Corporation, Adult bookstore operator was not enti P p less facts appear in the record that clearly Defendant-Appellee. tled to assert rights of third parties who essary to further a significant governmen- may have been affected by city ordinance tal interest, is permitted. U.S.C.A. Const. warrant a finding of bad faith, however, a No. 85-4068.debtor should ordinarily be given an oppor- restricting location and operation of vari- Amend. 1. tunity to respond to a charge of abuse of United States Court of Appeals, ous commercial establishments in city, but 11. Constitutional Law «90.2 the bankruptcy Fifth Circuit. who were not parties to the action, in that P y process. ordinance did not present in its overall ap- Subjecting commercial exploitation of (7-91 From the foregoing discussion, it Jan. 3, 1986. First Amendment materials to reasonable plication substantial restraints upon First zoningregulation does not constitute a should clear that a debtor may not n- Amendment liberty, ordinance did not im- "prior restraint." U.S.C.A. Const.Amend. ter allegg ations of bad faith solely withh an plicate First Amendment ri hts for some attempt to relitigate the issues presented in Adult bookstore operator brought suit g 1. P regulated uses and sweep of ordinance its state court case. If the circumstances challenging zoning ordinance restricting to was subject to state interpretation. U.S. See publication Words and Phrases surrounding Little Creek's filing demon- cation and operation of various commercial ) 1 P for other judicial constructions and strate that the goals of the bankruptcy establishments in city. The United State-' C A Const.Amend. 1. definitions. + i 1074G 779 FEDERAL REPORTER, 2d SERIES STAR SATELLITE, INC. v. CITY OF BILOXI Cite-779 F.2d 1074(5th Clr. 1986) 12. Constitutional Law e+90.40) 16. Sunday c-2 nance's restrictions on the hours of opera- -p (3) A regulated use located within a resi- City ordinance, limiting operations of Under Code 1972, § 97-23-75, city of, tion and on the resale of the business. The dential or limited commercial zoning dis- adult bookstore to hours of 10 A.M. to 12 ficials could prescribe hours on Sunday district court denied Star Satellite's motion trict and within 100 feet of any exclusive midnight, Mondays through Saturdays,and during which businesses otherwise exempt for a preliminary injunction as to these residential or medical services district, or PP requiring bookstore to remain closed on from Mississippi blue laws had to close, so provisions. Star Satellite appeals the dis- within 1600 feet of Keesler Air Force Base, Sundays, did not violate bookstore opera- that city ordinance, requiring adult book• trict court's denial of the injunction. 28 may not remain open for business past 12 store to remain closed on Sundays, did not U.S.C. § 1292(b); Fed.R.App.P. 5. midnight nor open before 10 A.M., Mon- restrictions Amendment rights, in that time P restrictions did not suppress all sexually violate Mississippi blue laws. days through Saturdays, and not at all on explicit speech within city. U.S.C.A.Const. 17. Sunday a I. FACTS Sundays.2 Star Satellite operates an adult bookstore Amend. 1. Fact that Mississippi law allowed mov- (4) No regulated use may locate within 500 ie theaters to operate after 1 p.m. on Sun. in Biloxi. It sells sexually explicit books, feet of any church, other established place 13. Obscenity a2 days did not mean that Mississippi Code magazines, films, video tapes, and video of worship, or school.5 Community's interest in furthering § permitting Y recordings. Star Satellite is located within Y g 1972 97-23-75 ermittin city officials an area zoned neighborhood commercial, (5) No certificate of zoning compliance or welfare of its neighborhoods justifies its to prescribe hours on Sundays during certificate of occupancy may be issued to a regulation of sexually explicit commercial and it has been at its present location for g Y P which businesses otherwise exempt from twenty years. regulated use located within a residential speech so long as such regulation is re- Mississippi blue laws had to close,discrimi or limited commercial zoning district and stricted to protect designated neighbor- nated against adult bookstore, after city On August 7, 1984, the City of Biloxi within 100 feet of any exclusive residential hoods justifiably and does not constitute adopted ordinance requiring bookstore to adopted Ordinance Number 1366.1 The or- or medical services district, or within 1600 broad ban on availability of such material remain closed on Sundays, in that book- dinance restricts the operations of a variety feet of Keesler Air Force Base, from and throughout the community. U.S.C.A. store was not a movie theater but only sold of businesses in Biloxi characterized as after three years of the date of the ordi- Const.Amends.1,14. films, videotapes, and video recordings. "regulated uses." Appellant's business nance's official adoption. This provision clearly falls within the defined regulated not only prohibits the establishment of new 14. Constitutional Law e=296(1) uses.2 These restrictions are of several regulated uses in these areas after the City ordinance, limiting operations of George F. Bloss, III, Gulfport, Miss.,for kind. a three year period has elapsed, but it also adult bookstore to hours of 10 A.M. to 12 plaintiff-appellant. (1) No building housing a regulated use bars the sale of existing ones at that time. midnight,Mondays through Saturdays,and Ronald G. Peresich, Tere R. Richardson, y locate within 100 feet of an exclusive may The ordinance was adopted after exten- requiring bookstore to remain closed on Biloxi, Miss., for defendant-appellee. residential zoning district' or Keesler Air Sundays, did not violate equal protection sive study by the City of Biloxi. A commit- Appeal Base. Appeal from the United States District tee specially appointed by the mayor made principles by allegedly singling out busi use(2) No regulated may locate within a the original recommendations in November, nesses which provided sexually explicit ma Court for the Southern District of Missis• g Y 500 foot radius of any other regulated use. 1983. These recommendations were re- terialS, in that ordinance's time of opera sippi. 1. Biloxi, Miss., Code of Ordinances of 1959, guished or characterized by the emphasis on tion restrictions may have furthered signif- Before RUBIN, RANDALL and WI1, §§ 21-11.6,21-5.12,21-5.13. matter depicting, describing, or relating to icant community interest and may well sexually explicit material as defined in Sec. have been no more restrictive than reason LIAMS, Circuit Judges. ; 2. Regulated uses are defined in § 21-11.6(a) tion 12-24.1(b)(1)of the Code of Ordinances and include: able. U.S.C.A.Const.Amends.1,14. JERRE S. WILLIAMS, Circuit Judge. of the City of Biloxi,or(2)selling or display. IAn adult bookstore which is an establish- in and film,video tape or other video recordings 15. Zoning and Planning«167 This case involves a challenge by appel- meet,or a segment or section of an establish- and customarily not open to the public gener. Under Mississippi law,city had reason- lant Star Satellite, Inc., against a zoning ment,(1)having as a substantial or significant ally but only to one i more classes of the ordinance of the City of Biloxi, Mississippi• public excluding any minor by reason of age able justification for rezoning certain areas Y ) Portion of its sock and trade, books, maga- as a prevailing J g s zines and other periodicals which are distin• . P g Practice. to impose more stringent restrictions upon The ordinance restricts the location and the operation of various commercial establish- guished or characterized by the emphasis on operation and location of various commer- P matter depicting, describing, or relating to Other regulated uses include bars, nightclubs, cial establishments within city, where con- ments in Biloxi,including those that deal in sexually explicit materials as defined in Sec. and pool halls that serve liquor, and massage gestion and number of calls for police as- adult books, magazines, and films. Star lion 12-24.1(b)(1) of the Code of Ordinances parlors. Satellite contends that the ordinance vio- of the City of Biloxi,or(2)selling or display- sistance had increased in areas in which ing books,magazines or other periodicals and 3. Biloxi Code of Ordinances at§ 21-11.6(b}(f). regulated uses had concentrated, demon- lates the First Amendment,the Fourteenth customarily not open to the public generally stratin that character of zoned areas and Amendment, and Mississippi state law. but only to one or more classes of the public 4. This restriction may be waived by the City g - excluding any minor by reason of age as a Council upon receipt and verification of a peti. surrounding neighborhoods may have Star Satellite sought a preliminary prevailing practice. tion requesting a waiver by at least sixty percent changed,and mistake may have been made junction against the enforcement of the 4. An adult video recording store which is an of the property owners within a 500 foot radius in prior zoning regulations by permitting ordinance pending the outcome of its suit- establishment or a segment of an establish- of the proposed location of a regulated use. regulated uses to concentrate within neigh- The district court found that Star Satellite ment(1)having as a substantial or significant had standing only to challenge the ordi- Portion of its stock and trade,film,video tape, 5. The second and fourth restrictions may be borhoods. g Y Or other video recordings which are distin- waived by the City Council. 1078 779 FEDERAL REPORTER, 2d SERIES STAR SATELLITE, INC. v. CITY OF BILOXI r 07 Cite as 779 F2d 1074(5th Clr. 1986) viewed by the Biloxi Planning Commission through Saturdays, and by requiring it to contends, however, that the Mississippi Su- has not met the requisites with regard e and the ordinance was developed from this remain closed on Sundays. We find that preme Court will not provide such a con- ther to its claim under the United State review. Three public hearings were held Star Satellite has standing to challenge struction. It argues that Mississippi courts Constitution or under state law. during this period as well. these time restrictions. Star Satellite has will choose, instead, to place this responsi- At the public hearings a number of con. made no showing that its owners intend to bility on the legislature. ABC Interstate A. Constitutional Challenges cerns were raised about the concentration sell the business now or in the foreseeable Theatres, Inc. v. State, 325 So.2d 123, 126 [7_91 A community's zoning authorit of regulated uses within the city. It was future. While the district court found that (Miss.1976). We do not accept this antici- mentioned that congestion and crime tend- Star Satellite had established standing to patory defeat of whatever legitimate claims is a valid exercise of its police power. Bo stardanes v. City of Galveston, 682 F.2 challenge the ordinance's resale restriction, other businesses may have. In Interstate ed to increase as the concentration of regu- g lated uses rose. Concern was also voiced we see no need to resolve that issue at this Theatres, the Mississippi Supreme Court 1203,1212(5th Cir.1982). Generally zoninidecisions are afforded considerable defer over the effect of these businesses upon preliminary injunction phase of the case. was asked to construe "authoritatively" a children and family life in surrounding Star Satellite, nonetheless, contends that Mississippi statute prohibiting the showing, ence. Village of Belle Terre v. Boraas neighborhoods. These concerns were sum- it has standing to challenge the resale pro- owning,or operating of any"obscene,inde- 416 U.S. 1, 8, 94 S.Ct. 1536, 1540, 3', marized in the ordinance's preamble. The visions and also the other cent, or immoral" picture. The Mississippi L.Ed.2d 797 (1974). When, however, , p provisions be- P PP ordinance appears to be a comprehensive cause the ordinance is overbroad on its Supreme Court refused to do so in large First Amendment rights, its validity b community's zoning plan infringes upon attempt by Biloxi city officials to control a face. It seeks to assert the rights of third part because the state constitution mandat- comes subject to greater concern. Zoning particular kind of problem which many per- parties who may be affected by the ordi- ed that the state legislature determine the laws which implicate First Amendment con sons believe is common to urban communi- nance but who are not parties to this ac- meaning of criminal statutes. This conclu- ties today. It is not directed solely against tion. sion, however,does not mean that the Mis- siderations must be narrowly drawn in fur adult bookstores and theaters, but it also sissippi Supreme Court has abdicated its therance of a substantial governmental in regulates a variety of businesses serving [2,31 Because an overbroad statute responsibility to interpret legislative enact- terest. Schad v. Borough of Moun alcohol that do not deal in First Amend- may deter people from engaging in consti- ments. It will do so when it can ascertain Ephraim, 452 U.S. 61, 68, 101 S.Ct. 2176 Y P Y the intent of the legislature and impose a 2182, 68 L.Ed.2d 671 (1981 . ment materials. tutionall protected activity, have g P ) been willing to relax to some extent tradi- reasonable construction upon a statute to Star Satellite brought suit to challenge P [10-12] Reasonable time, place, ant tional standing restrictions. Broadrick v. save it from unconstitutionality. See Bak- manner regulation of protected speech the ordinance in the United States District Oklahoma, 413 U.S. 601, 611 93 S.Ct. s g P P Court for the Southern District of Missis er v. State, 327 So.2d 288, 291 (Miss.1976). when necessary to further a significant 2908, 2915, 37 L.Ed.2d 830 (1973). The governmental interest sippi on August 20, 1984. It requested g is permitted declaratory relief, injunctive relief, and exception is limited, however. A statute's III. HOURS OF OPERATION Young v. American Mini Theatres, Inc., damages. On September 21, 1984, Star overbreadth "must not only be real, but RESTRICTIONS 427 U.S. 50, 63 n. 18, 96 S.Ct.2440 2449 n substantial as well, judged in relation to (61 A preliminary injunction may be is- 18, 49 L.Ed.2d 310 (1976). Subjecting thi Satellite moved for a preliminary injunction the statute's plainly legitimate sweep.to bar the ordinance's enforcement. The P g P sued only after the moving party has estab- commercial exploitation of First Amend Broadrick, 413 U.S. at 615 & n. 4, 93 S.Ct. lished four prerequisites: first, there is a ment materials to reasonable zoning re u district court found that Star Satellite did at 2918 & n. 4. The ordinance before us P q g g not have standing to challenge the ordi substantial likelihood it will ultimately suc- lation does not constitute a prior restraint does not present in its overall application teed on the merits; second the movingYoung, 427 U.S. at 62 96 S.Ct. at 2448 nance except with regards to the hours of substantial restraints upon First Amend- g' ' operation and Sunday closing restrictions, P party will suffer irreparable harm if the The ordinance here questioned restricts th( ment liberty. The ordinance, indeed, does injunction is not issued; third, the threat- operation of regulated uses to fourtee, and the resale limitation. Star Satellite not even implicate First Amendment rights ened harm to the moving Par will out- hours a daysix days a week. The time originally had filed this suit on behalf of a for some regulated uses. There are,more- � Y class of businesses affected by the ordi g weigh any potential injury the injunction restrictions do not suppress all sexua\1y nance. The district court, however,denied over, many locations in Biloxi unaffected may cause the opposing party; and finally, explicit speech within Biloxi. The ordi b the ordinance where First Amendment Star Satellite class certification. Star Sat Y the injunction,if issued,will not be adverse nance thus does not provide for the tota ellite's appeal of the denial of class certifi- materials of the kind carried by Star Sate)- to public interest. Canal Authority v. exclusion of some kinds of speech, as di( cation has been dismissed by this Court. lite'may be sold. Callaway, 489 F.2d 567 572(5th Cir.1979). the ordinance in Schad. In Schad th( Star Satellite v. Biloxi, No. 85-4068 (5th [4,5] Third party standing is also not The decision to issue or not to issue an challenged ordinance prohibited all live en Cir. June 17, 1985). Star Satellite appeals permitted when a potentially overbroad injunction is subject to considerable, tertainment within Mount Ephraim. 453 the denial of its motion for a preliminary statute is subject to a narrowing construe- though not unbridled, discretion in the dis- U.S.at 63, 101 S.Ct.at 2180. The Suprem( trict court. Id. The district court has not Court held that this exclusion went beyon( 42 injunction. t2n. Young v. American Mini Theater,7 U.S. 50, 60, 96 S.Ct. 2440, 2447, 49 abused its discretion here. Star Satellite reasonable zoning regulation, and it strut} II. STANDING L.Ed.2d 310. The sweep of this ordinance 6. Star Satellite also urges us to grant it standing ties to this suit have standing to contest othe. (1] The ordinance affects Star Satellite is subject to state interpretation. Cf. Red to challenge all the ordinance's provisions be- provisions of the ordinance is of no avail to Stai only by limiting its operation to the hours Bluff Drive-In, Inc. v. Vance, 648 F.2d cause a number of other Biloxi businesses have Satellite. Star Satellite was the only party o of 10 A.M. to 12 midnight, Mondays 1020, 1034 (5th Cir.1981). Star Satellite become parties to this suit recently. We reject record at the time it sought a preliminary in this entreaty as well. Whether or not new par. junction. . 108(r '779 FEDERAL REPORTER, 2d SERIES BOLIVAR COUNTY BD. OF SUP'RS v. FORUM INS. CV• 1Ui51 Cite as 779 FZd 1081 (5th Cir. 1986) s down the ordinance. Appellant has not tends that Biloxi has violated Mississippi lite also argues that§ 97-23-81 of the Mis- been filed, during which period actiori had established the likelihood of success on this law by rezoning without proving that there sissippi Code discriminates against it by been litigated by county's chosen counsel, issue. was either a mistake in the city's original allowing movie theaters to operate after 1 and not by insurer's counsel as would have Our decision in Beckerman v. City of zoning plan or that the character of the P.M. on Sundays. This argument does not been the case if notice was timely, was Tupelo, 664 F.2d 502, 512 (5th Cir.1981), neighborhood to be rezoned has changed persuade. Star Satellite is not a movie unreasonable; (2) county's delay in notify- involving restrictions on parades, does not sufficiently to warrant such rezoning. theater. It only sells films, video tapes, ing its insurer of civil rights lawsuit require us to invalidate the restrictions at Cloverleaf Mall Ltd. v. Conerly, 387 So.2d and video recordings. against it was not excusable; and(3)under issue,here. We did not void the ordinance 736,740(Miss.1980). Second,Star Satellite Mississippi law,insurer was not required to in Beckerman that prohibited the issuance argues that the ordinance violates Missis- IV. CONCLUSION prove that it suffered actual prejudice from si is blue laws. Neither of these claims, unreasonably delayed notice of claim. of permits for parades held after 6 P.M. pp Star Satellite has standing to challenge because it was unconstitutional to regulate however, supports Star Satellite's motion the hours of operation and Sunday closing Affirmed. parades. Rather, we held that the 6 P.M. for a preliminary injunction. restrictions. A preliminary injunction is restriction in Beckerman was arbitrary. It [151 In urging application of Mississip- not warranted as to these provisions. Star was not related to Tupelo's concern for pi's mistake or change rule in zoning, Star Satellite has not demonstrated a substan- 1. Insurance a544.1 parade security during evening hours be- Satellite has failed to show either a sub. tial likelihood of prevailing on the merits. Under Mississippi law, county's failure cause for much of the year it is daylight in stantial likelihood of success on the merits The judgment of the district court denying to notify its insurer of civil rights lawsuit Tupelo until well past 6 P.M. or irreparable injury. Biloxi officials care- the preliminary injunction was correct. against it until five months after suit had [13,141 Star Satellite also contends that fully studied the effects of regulated uses AFFIRMED. been filed, during which period action had the ordinance's hours of operation restric. upon surrounding neighborhoods. There is been litigated by county's chosen counsel, tions violate the Equal Protection guaran ample evidence indicating an increase in and not by insurer's counsel as would have congestion and in the number of calls for O EREY HUMOR SYSTEM been the case if notice was timely, was tees of the Fourteenth Amendment in sin s gling out businesses that provide sexually police assistance in areas where regulated r unreasonable. explicit materials. A community's interest uses concentrate. These developments in j residential and limited commercial zoning 2. Insurance a544.1 in furthering the welfare of its neighbor- districts throughout Biloxi show that the County's delay in notifying its insure) hoods justifies its regulation of sexually character of the zoned areas and surround- of civil rights lawsuit against it was no explicit commercial speech so long as such ing neighborhoods may have changed. excusable; county's only excuse was it regulation is restricted to protect designat- Moreover, the reasonable possibility is BOLIVAR COUNTY BOARD OF SU- reliance upon equivocal belief of insuranc ed neighborhoods justifiably and does not raised that under Mississippi law a mistake PERVISORS, Plaintiff-Appellant, agent, who had no authority to bind insul constitute a broad ban on the availability of was made in prior zoning regulations when v. er, that there was no coverage under pol such material throughout the community, regulated uses were permitted to concen FORUM INSURANCE COMPANY, cy. Young, 427 U.S. at 66, 96 S.Ct. at 2450. trate within these neighborhoods. These Defendant-Appellee. Because the ordinance's time of operation grounds appear sufficient to raise reason- 3. Insurance 4­539.8 restrictions may further a significant com- able justification for rezoning these areas No. 85-4220. Under Mississippi law, insurer was n( munity interest and may well be no more to impose more stringent restrictions upon required to prove that it suffered actu; restrictive than reasonable, we find that United States Court of Appeals, the location of regulated uses to the benefit Fifth Circuit. prejudice from unreasonably delayed notil Star Satellite has not shown the requisite of those areas and surrounding areas as of claim. likelihood of prevailing on this issue. well. Star Satellite, moreover, also has Jan. 6, 1986. As Star Satellite has not demonstrated a failed to show any injury other than mere probability of success on the merits of its financial loss because of this rezoning. As Jacobs, Griffith,Eddins &Povall, Ben' constitutional challenges, we must reject this injury is compensable,it does not qual- County brought action against its in- its motion for a preliminary injunction. It ify as irreparable. min E. Griffith, Cleveland, Miss., for pla' surer to recover costs,expenses, and attor- tiff-appellant. is,therefore, unnecessary for us to consid- ney fees incurred in defending a civil rights [16,17] Star Satellite's contention that lawsuit The United States District Court W.O. Luckett, Jr., Clarksdale, Miss., f er the remaining three prerequisites for the the ordinance violates Mississippi's blue issuance of such an injunction. pp for the Northern District of Mississippi, defendant-appellee. laws is without merit. Biloxi city officials William C. Keady, Senior District Judge, B. Pendent State Claims may prescribe the hours on Sundays during entered summary judgment in favor of in- Appeal from the United States Distr which businesses otherwise exempt from Court for the Northern District of Mis: surer, and county appealed. The Court of Star Satellite also presents two state the state's blue laws must close. Miss. Appeals,Johnson, Circuit Judge,held that- sippi. challenges to the ordinance.? First,it con- Code Ann. § 97-23-75 (1972). Star Satel- (1) under Mississippi law, county's failure 7. We consider these claims under the federal ers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. to notify its insurer of civil rights lawsuit Before GOLDBERG, RANDALL, 1 courts'pendent jurisdiction. United Mine Work. 1130, 16 L.Ed.2d 218(1966). against it until five months after suit had JOHNSON, Circuit Judges. INTERN. EATERIES OF AM. v. BROWARD COUNTY .,157 :0 1156 `941 FEDERAL REPORTER, 2d SERIES Cite as%I F.2d 1157(1lth Cir. 1"1) this select group of defendants is, in my serve government interest at issue. from a final judgment.""' Lauro Lines, other requirements of Cohen, [cases allow.. opinion, unnecessary and unwise. I would U.S.C.A. Const.Amend. 1. 490 U.S. at 498, 109 S.Ct. at 1978 (quoting ing the collateral order exception have] in. instead reinstate the original panel opinion. 2 Constitutional Law C-90.4(5) Richardson, 472 U.S. at 431, 105 S.Ct. at volved 'an asserted right the legal and I therefore respectfully dissent. Zoning and Planning «76 2761 (quoting Coopers&Lybrand v. Live- practical value of which would be de. w For purposes of First Amendment say, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, stroyed if it were not vindicated before p SREYNUMBERSYSTEM challenge, Florida county's distance ordi 57 L.Ed.2d 351 (1978))). trial."') (quoting U.S. v. MacDonald, 435 T nances,prohibiting location of"adult night The Supreme Court applied this test in U.S. 850, 860, 98 S.Ct. 1547, 1552, 5G clubs" within prohibiting feet of residentially Mitchell v. Forsyth and found a denial of L.Ed.2d 181225(s; Cohen, t c U.S.at 546,an zoned district or 1,000 feet of church, fur- qualified immunity to be appealable under ex eptiS.Ct at the(stating that creation of he thered substantial governmental interest in the collateral order exception. Mitchell, exception to the final judgment rule for the protecting the quality of urban life from 472 U.S.at 530,105 S.Ct.at 2817. Mitchell lower court ruling in question is necessary differs significantly from the case at bar, because, "it will be too late effectively to INTERNATIONAL EATERIES OF secondary effects of adult businesses. however, in that in Mitchell appeal review the present order, and the rights AMERICA, INC., Plaintiff- U.S.C.A. Const.Amend. 1. conferred by the statute if it is applicable, Appellant, the qualified immunity issue had the poten- 3. Constitutional Law e.90.4(5) tial of bringing the litigation to an end. In will have been lost, probably irreparably"l, V. g g g The Supreme Court has recognized that Zoning and Planning e-76 its examination of the qualified immunity "[a]dmittedly, there is value—to all but the BROWARD COUNTY, FLORIDA, For purposes of First Amendment denial, the Mitchell court emphasized the most unusual litigant—in triumphing be. Defendant-Appellee. challenge, Florida county's distance ordi- comparison between qualified immunity fore trial,rather than after it,regardless of No. 90-5076. nances,prohibiting location of"adult night- and absolute immunity. Id. at 526, 105 the substance of the winning claim. Butlubs" within 500 feet of residentially this truism is not to be confused with the Eleventh Circuit. S.Ct. at 2815. In fact, the Court stated, United States Court u AlAppeals, zoned district or 1,000 feet of church, were "the heart of the issue before us is the inter- question whether quite distinct proposition that certain narrowly tailored to further county sinter- q qualified immunity claims (because of the substance of the Sept. 12, 1991. est in combating secondary effects of adult shares [the] essential attribute of absolute rights entailed, rather than the advantage entertainment establishments, even if immunity—whether qualified immunity is to a litigant in winning his claim sooner) neighboring property values actually in- in fact an entitlement not to stand trial should be resolved before trial." Mac- Action was brought challenging Flor- creased at higher rate after opening of under certain circumstances." Id. at 525, Donald, 435 U.S. at 860 n. 7, 98 S.Ct. at ida county's ordinances prohibiting location particular establishment. U.S.C.A. Const. 105 S.Ct. at 2815. It is because this "im- 1552 n. 7. Whether the case at bar in- of "adult nightclub" within 500 feet of Amend. 1. munity from suit" would be "effectively volves one of those "certain claims," id., residentially zoned district or 1,000 feet of lost if a case is erroneously permitted to go depends on whether the "practical value" church. The United States District Court 4. Constitutional Law 0=90.4(5) to trial"that the Court deemed it appropri- of the right asserted, Hollywood, 458 U.S. for the Southern District of Florida, No. Zoning and Planning e-76 ate to apply the collateral order exception. at 266 102 S.Ct. at 3083 i.e. the "entitle- 88-6472-CIV-SMA,Sidney M.Aronovitz,J., Valid requirement as to distance sepa- Id. at 526-27, 105 S.Ct. at 2815-16(empha- ment not to stand trial" because of quali. 726 F.Supp. 1568, upheld constitutionality rating adult nightclubs from residence sis in original). fied immunity, Mitchell, 472 U.S. at 525, of ordinances. On appeal, the Court of zones or churches cannot become invalid by Because of the peculiar procedural pos- 105 S.Ct. at 2815, may be lost unless imme- Appeals, Kravitch, Circuit Judge, held that adding opportunity, albeit a difficult one to ture of the instant case, however, trial will diately appealed. In this particular in- ordinances furthered substantial govern- meet, for requirement to be waived, on proceed whatever the disposition of the ap- stance,because of the defendants'choice to mental interest in protecting quality of ur- theory that difficulty of waiver means ordi- peal. This fact distinguishes the instant appeal only denial of immunity as to the ban life from secondary effects of adult nance is not narrowly tailored to further case from Mitchell. The consideration of plaintiff's property interest claim, no such businesses,were narrowly tailored to serve governmental interest. U.S.C.A. Const. whether the "entitlement not to stand tri- right is at risk. Trial will proceed whatev- that interest, and allowed for reasonable Amend. 1. al" may be preserved through immediate er the disposition of this appeal. If the alternative avenues of communication. appeal is of utmost importance in deciding defendants lost an "entitlement not to Affirmed. 5. Constitutional Law a90.4(5) whether the trial judge's ruling in this case stand trial," it was by their own choice to Zoning and Planning e-76 falls within the collateral order exception. appeal but one issue, not because of an For purposes of First Amendment Before Mitchell and since, the Court has unwarranted stinginess of the original pan- L Constitutional Law 48-90.4(2) challenge, Florida county's distance ordi- emphasized the importance of this consider- el opinion in refusing to create an exception "Secondary effects test" must still be nances,prohibiting location of"adult night- ation. See Lauro Lines, 490 U.S. at 499, to the final judgment rule unprecedented in met in order to uphold statute regulating clubs" within 500 feet of residentially 109 S.Ct.at 1978(stating"we have insisted any circuit. nude dancing under First Amendment chal- zoned district or 1,000 feet of church, al- that the right asserted be one that is essen- Nothing is gained by the majority's di,, lenge; this test requires that statute fur- lowed for reasonable alternative avenues tially destroyed if its vindication must be position of this case,but much is lost. The thers substantial governmental interest, al- of communication, where there were 26 Postponed until trial is completed"); Holly- final judgment rule is the foundation Of lows for reasonable alternative avenues of sites in unincorporated county where adult wood, 458 U.S. at 266, 102 S.Ct. at 3083 federal appellate procedure. To open the communication, and is narrowly tailored to entertainment establishment could be locat- (stating that"[i]n addition to satisfying the door of the appellate courts so casually to 1158 941 FEDERAL KEPUK'1'LU, ;a anniza Clteas 941 FId 1157(11th Ctr. 1"1) ed without violating distance ordinances. residential properties are less than 500 feet area, the County denied the petition be- federal courts to the regulation nude," U.S.C.A. Const.Amend. 1. away. It is also undisputed that a church cause it interpreted the ordinance as also dancing. See, e.g., International Food & is located approximately 885 feet from requiring signatures of operators and man- Beverage Systems v. City of Fort Lauder- Thee Dollhouse III. Finally, it is undisput. agers of businesses within the area. Inter- dale, 794 F.2d 1520 (11th Cir.1986); SDJ, Richard L. Wilson, Orlando, Fla., for ed that Thee Dollhouse III is not within the plaintiff-appellant. special uses zoning district. national Eateries also requested waivers of Inc. v. City of Houston, 837 F.2d 1268(5th Tracy Lellan chlager, Ft. Lauderdale, the distance ordinances from the County's Cir.1988); Envy Ltd. v. City of Louisville, International Eateries filed an action in planning and Zoning Board and from the 734 F.Supp. 785 (W.D.Ky.1990). Fla., for defendant-appellee. federal district court seeking to enjoin the County Commission, but these requests Appeal from the United States District County from enforcing the ordinances. were denied. A Court for the Southern District of Florida. The district court stayed the proceedings In June 1988, International Eateries This term, the Supreme Court squarely until International Eateries had pursued again filed an action in district court seek- addressed the protection afforded to nude Before KRAVITCH and COX, Circuit administrative remedies with the County, ing to enjoin enforcement of the distance dancing under the first amendment. In Judges, and HENDERSON, Senior Circuit International Eateries then applied to the ordinances. The district court again denied Barnes v. Glen Theatre, Inc., — U.S. Judge. County for a rezoning of the property and relief,this time finding the ordinances valid —, 111 S.Ct. 2456, 115 L.Ed.2d 504 to the County Board of Adjustment for a as applied. International Eateries v.Bro- (1991), respondents sought to enjoin en- KRAVITCH, Circuit Judge: variance from the distance requirements. ward County, 726 F.Supp. 1568 (S.D.Fla. forcement of Indiana's public indecency Appellant International Eateries of The County denied the application for re- 1989)("Dollh.ouse II"). International Eat- statute. Respondents contended that the America, Inc. challenges Broward County, zoning and therefore had no reason to act eries now appeals the district court's deci- statute, which prohibited "appear[ing] in a Florida's adult entertainment zoning ordi- on the variance application. sion in Dollhouse 11. state of nudity" in a public place, was nances as violative of the first amendment. In its first opinion, International Eater. invalid as applied to the nude dancing per- Because we hold that the ordinances satis- ies v. Broward County, 726 F.Supp. 1556 II formed at two establishments. Although fy the standard set out by the Supreme (S.D.Fla.1987) ("Dollhouse I"), the district The regulation of non-obscene t nude the Court upheld the statute, the effect of Court in City of Renton v. Playtime The- court held that the special uses ordinances dancing often has been addressed in the the Court's plurality holding on our case is atres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 as applied to International Eateries violated federal courts. On several occasions, the not readily apparent. Keeping in mind that L.Ed.2d 29 (1986), we reject International the first amendment because the ordi- Supreme Court has assumed, without de- "[w]hen a fragmented Court decides a case Eateries' challenge and affirm the decision nances did not advance a substantial ciding, that nude dancing is protected ex- and no single rationale explaining the re- of the district court. government interest and did not leave pression under the first amendment. See sult enjoys the assent of five Justices, 'the available alternative channels for Interna- Schad v. Borough of Mount Ephraim, 452 holding of the Court may be viewed as that I tional Eateries to conduct its business. U.S.61, 66, 101 S.Ct.2176,2181, 68 L.Ed.2d position taken by those Members who con- International Eateries operates a night- Dollhouse 1, 726 F.Supp. at 1566-67. As 671 (1981)("nude dancing is not without its curred in the judgments on the narrowest club known as "Thee Dollhouse III" in for the distance ordinances, the court held First Amendment protections from official grounds,'" Marks v. United States, 430 unincorporated Broward County, Florida. that they were not unconstitutional on their regulation"); see also Southeastern Pro- U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d The parties have stipulated that the pri- face, and that International Eateries' as- motions, Ltd. v. Conrad, 420 U.S. 546, 95 260(1977),we examine in greater detail the mary form of entertainment at Thee Doll- applied challenge was premature because S.Ct. 1239, 43 L.Ed.2d 448(1975); Doran v. three opinions that made up the five-mem- house III is non-obscene nude dancing. In the County had not yet ruled on the appli- Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. her majority. April 1986, appellee Broward County cation for a variance. Id. at 156344. 2561, 45 L.Ed.2d 648 (1975); California v. Chief Justice Rehnquist, writing for Jus- served two notices of violation upon Inter- International Eateries then filed a peti- LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 tices O'Connor and Kennedy, began his national Eateries, informing it that Thee tion with the County's Building and Zoning L,Ed.2d 342 (1972). In a related context, analysis by noting that the statements in Dollhouse III was operating in violation of Enforcement Division, seeking an automat- the Supreme Court has held that under Schad, Doran, and LaRue discussed above several Broward County zoning ordinances. is waiver of the 500-foot residential district some circumstances cities may enact zon- "support the conclusion of the Court of The first notice stated that Thee Dollhouse prohibition. That ordinance states that the ing ordinances that require adult movie Appeals that nude dancing of the kind III was in violation of the County's dis- 500-foot requirement shall be waived upon theatres to locate only in certain areas, sought to be performed here is expressive tance ordinances, which prohibit the loca- presentment of"a written petition request- provided that the purpose of the regulation conduct within the outer perimeters of the tion of adult nightclubs within 500 feet of a ing the waiver, signed by 51 percent of all is to control the "secondary effects" of First Amendment, though we view it as residential district and 1000 feet of a those persons owning real property, resid- these businesses. See City of Renton v. only marginally so." Id. at 2460 (opinion church. The second notice stated that ing or operating or managing a business Playtime Theatres, Inc., 475 U.S. 41, 106 of Rehnquist, C.J.). In order to determine Thee Dollhouse III was in violation of the within 500 feet of the proposed location of S.Ct. 925, 89 L.Ed.2d 29 (1986); Young v. "the level of protection to be afforded to County's special uses ordinances, which the designated use." International Eater. American Mini Theatres, Inc., 427 U.S. the expressive conduct at issue," the opin- permit operation of adult nightclubs only ies' petition contained the names of eight �O, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). ion analyzed the statute under the four- within a special zoning district. It is undis- persons residing or owning property in the These cases have been applied by the lower part inquiry of United States v. O'Brien, puted that Thee Dollhouse III is within 500 residential district. Although this was 9 1. Obscenity,s p y feet of a residential district and that three majority of the owners and residents of the y' not protected b the first amend- S.Ct. in t 37 caL.se. 419(1973),and is not at ment, see Miller v. California, 413 U.S. 15, 93 issue in this case. 1160 941 FEDERAL REPORTER, 2d SERIES INTERN. EATERIES OF AM. v. BROWARD COUNTY > 1161 Cite as 941 F2d 1157(l lth Cir. 1991) 391 U.S. 367, 377,.;88 S.Ct. 1673, 1679, 20 lyzed under O'Brien. He further stated, [1] Prior to Barnes, our decision would dancing rather than broadly prohibiting all L.Ed.2d 672 (1968), the framework applied however, that "I nonetheless write sepa. have been guided by the secondary-effects public nudity. to symbolic speech. The second prong of rately to rest my concurrence in the judg. analysis of Renton, 475 U.S. 41, 106 S.Ct. Although this discussion does not explain that test requires that the statute further ment, not on the possible sufficiency of 923 89 L.Ed.2d 29 (1986). Having exam- how the Supreme Court would rule in the an important or substantial government in- society's moral views to justify the litnit, ined the opinions in Barnes, we conclude, instant case, it does make clear that the terest. Although the Chief Justice's opin- tions at issue, but on the State's substan- for two reasons, that this is still the case. judgment reached by a majority of the Jus ion noted that"Lilt is impossible to discern, tial interest in combating the secondary other than from the text of the statute, effects of adult entertainment establish. First, Justice Souter, whose vote was nec- tices in Barnes does not directly govern exactly what governmental interest the ments of the sort typified by respondents' essary to uphold the statute, stated that our case. This being so, we conclude that Indiana legislators had in mind," the opin- establishments." Id. 111 S.Ct. at 24GS morality justifications were not a substan- Renton still controls our analysis. ion nevertheless concluded that "the stat- (Souter, J., concurring) (emphasis added). tial government interest, but that control Justice Souter explained his difference with of secondary effects did constitute such an B ute's purpose of protecting societal order P and morality is clear,"Barnes, 111 S.Ct.at the plurality as follows: interest. Thus,in order to uphold a statute In Renton, the Supreme Court addressed It is, of course, true that this justifica. regulating nude dancing, it is still neces- the validity of an ordinance that prohibited subs and that such a purpose furthers a adult motion picture theaters from locating substantial governmental interest. Id. at tion has not been articulated by Indiana's sary after Barnes that the statute meet the P g 2462. legislature or by its courts. As the plu• secondary effects test of Renton. within 1,000 feet of any residential zone, rality observes, "Indiana does not record single- or multiple-family dwelling, church, O'Brien's third prong requires that the legislative history, and the state's high. Second, the statute at issue in Barnes park, or school. Relying on Young v. interest to be protected is unrelated to the est court has not shed additional light on and the ordinance at issue in this case are American Mini Theatres, Inc., 427 U.S. suppression of free expression. Here, the the statute's purpose." While it is cer. different in a significant respect. In 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), opinion stated that because the statute did tainly sound in such circumstances to Barnes, the statute prohibited all public which upheld a zoning ordinance that limit- not prohibit nude dancing, but rather all infer general purposes "of protecting so- nudity,regardless of its expressive content. ed the showing of adult films to certain public nudity,the statute was not intended cietal order and morality ... from [the Here, Broward County's distance ordi- locations, the Court noted that "zoning or- to suppress expression. Id. 111 S.Ct. at statute's] text and history," I think that nances only apply to "designated uses," dinances designed to combat the undesir- 2463. Finally, O'Brien requires that the we need not so limit ourselves in identify- which include the "adult nightclub" in- able secondary effects of such businesses; restriction on free expression be no greater ing the justification for the legislation volved in this case. Justice Scalia, whose are to be reviewed under the standards than is essential to the furtherance of that here, and may legitimately consider peti. vote was also necessary to uphold the stat- applicable to 'content-neutral' time, place, interest. Here, Chief Justice Rehnquist tioners' assertion that the statute is ap• ute in Barnes, based his analysis on the and manner regulations." Renton, 475 concluded that Indiana's requirement of plied to nude dancing because such danc- "general"nature of the statute and specifi- U.S. at 49, 106 S.Ct. at 929-30. The Court pasties and a G-string was the "bare mini- ing "encourag[es] prostitution, in- tally noted that "[w]here the government stated that the inquiry, therefore, was mum" necessary to achieve the state's in- creases] sexual assaults, and attracts] prohibits conduct precisely because of its whether "the ordinance is designed to terest. Id. other criminal activity." communicative attributes, we hold the serve a substantial governmental interest Justice Scalia concurred in the judgment, Id. at 2469 (ellipses and brackets original, regulation unconstitutional." Barnes, 111 and allows for reasonable alternative ave- but not the reasoning,of the plurality. Ac- citations omitted). The only legally signifi- S.Ct. at 2466 (Scalia, J., concurring) (em- nues of communication. Id. at 50, 106 cording to Justice Scalia, "the challenged cant difference between the opinions of the phasis original). Thus, Justice Scalia's S.Ct. at 930.1 regulation must be upheld, not because it Chief Justice and of Justice Souter is the analysis would not apply to a statute like Before applying this test, we note that survives some lower level of First-Amend- societal interest viewed as sufficient to al- the one in this case that singles out nude although the Court in Renton stated the ment scrutiny, but because, as a general low the government regulation. Thus, in applying the second prong of O'Brien— 2. It might be argued that because we are ad- apply. In recent years,however,the Court has law regulating conduct and not specifically dressing a regulation of nude dancing, as was stated several times that "in the last analysis directed at expression, it is not subject to furtherance of a substantial government the Court in Barnes, rather than a regulation of [the O'Brien test]is little,if any,different from First-Amendment scrutiny at all." Id. interest—according to the plurality,society' motion pictures,as was the Court in Renton,we the standard applied to time, place, or manner has a substantial interest in protecting or- should apply the OBrien "symbolic conduct" restrictions." Clark v. Community for Creative (Scalia, J., concurring). Because the stat- der and morality; according to Justice analysis rather than the Court's "time, place, Non-Violence,468 U.S.288,298, 104 S.Ct.3065, ute was not covered by the first amend- Souter, moralitymay not be a substantial and manner" analysis. In OBrien, the Court 3071, 82 L.Ed.2d 221 (1984); see also Barnes, ment, it only needed to survive rational- y stated that a statute regulating symbolic conduct Ill S.Ct. at 2460 (opinion of Rehnquist, C.J.) basis review to be valid under the Due government interest, but combatting the was valid (noting the similarities and applying O'Brien); 109 Process Clause—a test that was easily met secondary effects of adult entertainment if it is within the constitutional wet of the Ward v.Rock Against Racism,491 U.S. (n ing establishments is. As for the third song, p° S.Ct.2746,2757, 105 L.Ed.2d 661 (1989)(noting accordingto Justice Scalia. Id. 111 S.Ct.at P Government; if it furthers an important or the similarities and applying time, place, and content neutrality, the plurality found that substantial government interest; if the gov- manner analysis). Although the wisdom of this 2468. the statute was neutral because it was ernmental interest is unrelated to the suppres• trend toward a single standard has been ques- Justice Souter,the fifth Justice to uphold aimed at all public nudity, rather than only sion of free expression; and if the incidental tioned,see S.Williams, Content Discrimination restriction on alleged First Amendment free- and the First Amendment, 139 U.Pa.L.Rev. 615, the statute, agreed with Chief Justice nude dancing; Justice Souter found this doms is no eater than is essential to the greater 636-54 (1991), it is sufficient for our purposes Rehnquist's opinion that nude dancing is prong satisfied because the statute 's furtherance of that interest. that the Supreme Court has determined that subject to first amendment protection, and aimed at secondary effects, rather than at OBrien, 391 U.S. at 377, 88 S.Ct. at 1679. under current Court doctrine the answer should also agreed creed that the statute should be ana nude dancing r itself. C There has been considerable confusion in the be the same regardless of which analysis is ourt's cases as to when each analysis should used. Because we conclude that the ordinance 1162 941 FEDERAL REPORTER, 2d SERIES INTERN. EATERIES OF AM. v. BROWARD COUNTY ' 111Z3 Cite as 941 F2d 1157 01th Cir. 1991) inquiry as containing two elements(serving government interest. In Renton, the ies argu es, however, that because the these property uses. So long as the dis- m a substantial government interest and al- Court recognized that a city's interest County's ordinances were not modeled ex- tance requirements are not greater than lowing for reasonable alternative avenues protecting the quality of urban life frorn ctly after those of Detroit, Detroit's stud- necessary to prevent the secondary effects, of communication), the Court's time, place, the secondary effects of adult businesses is ies should not suffice to justify the Coun- they are narrowly tailored to serve their and manner cases generally have required indeed substantial. Renton, 475 U.S, at ty-'s ordinances. The Supreme Court an- purpose. In this case, the distances re- a third element: the regulation must be 50, 106 S.Ct. at 930. The distance ordi• swered this argument in Renton: quired by the ordinances are no farther narrowly tailored to serve the government nances prohibit the location of an "adult Nor is our holding affected by the fact than those approved by the Court in Ren- interest at issue. In fact, when the Ren- nightclub"within 500 feet of a residentially are not narrow] tailored. ton Court enunciated the test as containing zoned district or 1000 feet of a church. method of adult theater zoning than that Y two parts, it cited two cases,both of which chosen by Renton, since Seattle's choice International Eateries further argues addressed the narrow-tailoring require- The ordinances also specifically state that certain businesses have a "deleterious ef. of a different remedy to combat the sec- that there is uncontradicted evidence in the ment. See Clark v. Community for Crea ondary effects of adult theaters does not record that Thee Dollhouse III has not in tive Non-Violence, 468 U.S. 288, 293-96, feet on the residential and business areas call into question either Seattle's identifi- fact caused any adverse effects on sur- 104 S.Ct. 3065, 3069-70, 82 L.Ed.2d 221 around them and that the purpose of the ordinance is to "ensure that these adverse cation of those secondary effects or the rounding property values and that property (1984); Heffron v. International Soc y for relevance of Seattle's experience to Ren- values have actually increased at a higher Krishna Consciousness,Inc., 452 U.S.640, effects will not contribute to the blighting ton rate than before the opening of Thee Doll- 654, 101 S.Ct. 2559, 2567, 69 L.Ed.2d 298 and downgrading of the surrounding neigh. house III. This argument holds no weight. (1981). Moreover, the Court has required borhood." Thus, the ordinances are aimed Renton, for U.S. at 52, 106 Broward at 931. g g S1'e therefore conclude that Broward Coun- As discussed above, Broward County ap- the narrow-tailoring element in cases decid- at the very type of harm that the Renton tv's distance ordinances further a substan- propriately tailored its distance ordinances ed after Renton. See, e.g., Ward v. Rock Court found to create a substantial govern• tial government interest. to further its substantial government inter- Against Racism, 491 U.S. 781, 109 S.Ct. ment interest.3 est. If the decision was valid ex ante, 2746, 2756-60, 105 L.Ed.2d 661 (1989); The Renton Court also recognized, how. B International Eateries cannot justify violat- Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. ever, that the enacting body must have a [31 We next address whether the dis- ing the ordinances by showing that they 2495, 2502-04, 101 L.Ed.2d 420 (1988). Fi- reasonable basis for its belief that the tance ordinances are narrowly tailored to were unwise ex post. nally, although the Renton Court did not harm to be protected against in fact exists. further the County's interest in combatting (41 International Eateries also chal- specifically include narrow tailoring in its The city need not conduct its own studies the secondary effects of adult entertain- lenges the waiver provision of the resi- formulation of the standard to be applied, the Court later examined "the method cho to make this determination. According to ment establishments. In Renton, the dential distance requirement That provi sen by Renton to further its substantial the Court: Court stated that the ordinance was nar- sion allows the residential distance require- „ rowly tailored because it affected "only ment to be waived upon presentment of a interests, and found that that method was The First Amendment does not require a "narrowly tailored" to further the govern- city, before enacting such an ordinance, that category of theaters shown to produce petition signed by "51 percent of all those ment interest in that case. Renton, 475 to conduct new studies or produce evi- the unwanted secondary effects...." persons owning real property, residing or U.S. at 52, 106 S.Ct. at 931. Thus we do dence independent of that already gener- Renton, 475 U.S. at 52, 106 S.Ct. at 931. operating or managing a business within not believe that the Renton Court intended ated by other cities, so long as whatever Here, the ordinances are of a similarly lim- 500 feet of the proposed use. Although to eliminate the narrow-tailoring require- evidence the city relies upon is reason- ited scope,focusing only on those business- International Eateries presented a petition es likely to produce secondary effects. containing the signatures of a majority of ment from time, place, and manner analy- ably believed to be relevant to the prob International Eateries argues, however, those persons owning real property or re- sis,and we therefore consider that require- lem that the city addresses. that there is no indication that a single siding within 500 feet of Thee Dollhouse ment in our analysis below. Id. at 51-52 106 S.Ct. at 931. Here the g III, the County interpreted the ordinance > nude dancing establishment causes deterio- III district court found that Broward County ration of the surrounding area. According as requiring a majority of all the persons relied on the experiences of Detroit in en- to International Eateries, the ordinances listed in the provision and therefore denied A acting its ordinances. Detroit's distance are designed to prevent the concentration the waiver request. [21 We first address whether Broward ordinances were upheld in Young v. Amer- of such establishments. While it is true International Eateries contends that the County's ordinances further a substantial ican Mini Theatres. International Eater- that the ordinances prohibit the location of waiver provision is not narrowly tailored at issue in this case more closely resembles the articulated by Indiana's legislature or by its an adult nightclub within 1,000 feet of an- because the ordinance is designed to pro- ordinance in Renton than the statute in Barnes, courts."). The ordinance at issue in Renton other adult business,the ordinances are not teet property values of residents, yet it we follow Renton and apply time, place, and specifically stated that adult businesses"would only concerned with concentrations of adult allows businesses to block a waiver. Inter- manner analysis. have a severe impact upon surrounding busi• establishments. The ordinances separately national Eateries notes that if residential nesses and residences." Renton,475 U.S.at 44, 3. Justice Souter, the only Justice to rely on 106 S.Ct.at 927. Because Justice Souter wrote prohibit adult businesses from locating property was not located in the vicinity, Renton in Barnes, found that secondary effects only for himself in Barnes, we continue to fol- near other uses such as residential areas, those businesses would have no right to were a substantial government interest despite low the Renton Court's approach of gleaning the churches, and schools. The County obvi- object to the location of the establishment. the fact that the statute was silent as to its government interest at stake from the ordinance ousl determined that even a single adult Thus according to appellant 1t is absurd t0 purpose. See Barnes, I I I S.Ct.at 2469("It is,of itself rather than implying one where none is Y g g pP t+ course,true that this justification has not been evident in the ordinance. business could have deleterious effects on allow an unprotected group to thwart the 1164 941 FEDERAL REPORTER, 2d SERIES BAUER LAMP CO., INC. v. SHAFFER Cite as 941 F.2d 1165(11th Cir. 1"1) waiver when a majority of the very group has not provided a sufficient justification requirement. After remand to the district the ordinance was designed to protect has for why the requirement needs to be twice court,the district court again held the ordi- BAUER LAMP CO., INC., given its consent. the distance of the 500—foot residential r, nance invalid, and the Ninth Circuit af- Plaintiff—Appellee, We are unpersuaded by this argument. quirement. International Eateries points firmed. Walnut Properties,Inc.v. City of First,appellant has pointed to no authority to Walnut Properties, Inc. v. City of lihittier, 861 F.2d 1102, 1107-10 (9th Cir. v' indicating that the County is even required Whittier, 808 F.2d 1331 (9th Cir.1987), to 1988),cert. denied, 490 U.S. 1006,109 S.Ct. Martin SHAFFER, Howard Levi, Shaffer to provide a waiver opportunity. The support its argument. That opinion arose 1641, 104 L.Ed.2d 157 (1989). The appel- & Levi, Inc., a Florida Corp., Court in Renton upheld similar distance out of a dispute involving an ordinance,like ]ate court specifically limited its holding, Defendants—Appellants. requirements and made no mention of any the one at issue in this case,that prohibited stating that it was based entirely on the No. 89-6209. opportunity for a party to have the require- the location of an adult business within fact that there were not adequate alterna- ments waived. Also, the other ordinance 1,000 feet of a church. The district court tive locations in the city for adult business- United States Court of Appeals, at issue in this case, the church distance originally held that the ordinance was in. es. Id. Thus, contrary to International Eleventh Circuit. requirement, does not have a waiver provi- valid, and the Ninth Circuit affirmed. Eateries' assertion,the case does not stand Sept. 12, 1991. sion, and International Eateries has not Walnut Properties, Inc. v. City of li hitti. for the proposition that a 1,000—foot church argued that one is required. Thus,we fail er, 762 F.2d 1020 (9th Cir.1985). The Su. distance ordinance is excessive. Rather, to see how a valid distance requirement can preme Court, however, issued its opinion in l the case simply follows the Renton analy- Lamp manufacturer brought trade become invalid by adding an opportunity, Renton shortly thereafter and then re- sis, holding that where there are not suffi 1 dress infringement and tortious interfer- albeit a difficult one to meet, for the re- manded the case for reconsideration in cient alternative locations, an ordinance ence action against former sales represent quirement to be waived.' Moreover, the light of Renton. City of Whittier v. ll'al- ) zoning adult businesses is invalid. We fact that the ordinance prohibits adult en- nut Properties, Inc., 475 U.S. 1042, 106 therefore hold that in this case the ordi atives for manufacture of lamps that were E identical to its neoclassic line of lamps. tertainment within 500 feet of a residential S.Ct. 1255, 89 L.Ed.2d 566 (1986). The nances are narrowly tailored to serve their Jury returned verdict for manufacturer area does not mean that the ordinance is opinion cited by International Eateries was purpose. concerned only with residents. The ordi- the order by the Ninth Circuit remanding and representatives'ps District Court motions were States nance specifically addresses the secondary the case to the district court. In its in- denied by the United St C for the Southern District of Florida, effects of adult businesses "upon the adja- structions to the district court, the court Rep- cent business and residential areas" (em- stated: "[T]he City's interest in preventing resent lives ppeSM,Stanley Marcus,J. Rep- hasis added). Certain businesses are [�) Finally,unlike the ordinance in Wal- resentatives appealed. The Court of Ap- p urban blight and downgrading of resi- nut Properties, the Broward County ordi- peals held that: (1) adequate evidence of more likely to locate near residential areas dential and commercial properties might nances allow for reasonable alternative av- secondary meaning and distinctiveness of than are other businesses, and those bust logically support the ordinance's require enues of communication. It is undisputed nesses may be more likely to be injured by ment that adult businesses be 1,000 feet lamps was presented; (2) refusal to allow the proximity of adult entertainment. The that there are twenty-six other sites in evidence that lamp design failed to be reg- P Y apart,but it might not support the require- 1 unincorporated Broward County where In- istered under Copyright Act was not error' County was entitled to take this into ac- ment that they be 1,000 feet from a ternational Eateries could locate an adult (3 count.' church." Walnut Properties, 808 F.2d at ; entertainment establishment without violat ) representatives could be held respon Finally, International Eateries argues 1335. This statement was merely one of ing the distance ordinances. International Bible as joint tort feasors for contributory infringement; (4) evidence supported find that the church distance ordinance is not several comments made by the court to Eateries does not argue that the ordinances narrowly tailored because it has a distance guide the district court's analysis. The ing of likelihood of confusion; and (5) al requirement of 1,000 feet, and the County court was not ruling on the church distance i are invalid in this respect. lowing punitive damages award was not error. 4. Of course,a waiver provision that allowed for sion. According to International Eateries, the IV arbitrary enforcement would be invalid. See use of the term "or" in the provision indicates ; Affirmed. City of Lakewood v.Plain Dealer Publishing,Co., that a majority of any of the groups listed in the i In view of the above discussion we hold 486 U.S.750, 108 S.Ct.2138,2143, 100 L.Ed.2d provision is sufficient to obtain a waiver. �1 c P have no power to decide this issue. The inter- that the Broward Count distance ordi- licensing(1988) ("iIjn the area of free expression a � Y P 1. Federal Courts a764, 765 licensing statute placing unbridled discretion in pretation of the County ordinance is purely a j nances are valid under the Supreme the hands of a government official or agency matter of state law. So long as the County 4 Court's analysis in Renton. Standard of review of order granting constitutes a prior restraint and may result in applies the ordinance consistently, we arc cm- motion for directed verdict or judgment censorship."); see also Shuttlesworth v. City of powered only to determine whether that inter- AFFIRMED. Birmingham,394 U.S. 147, 150-51,89 S.Ct.935, pretation withstands constitutional scrutim- E notwithstanding verdict is same as Stan 938,22 L.Ed.2d 162 (1969). In this case, how" See Schad v. Borough of Mount Ephraim, 452 dard applied in district court. ever, the waiver provision leaves no room for U.S.61,65,101 S.Ct.2176,2181,68 L.Ed.2d 671 arbitrary enforcement. It specifically states or/;rich• w 2. Federal Courts e-798, 801 that a waiver "shall" be anted upon the (1981); HefJron v.International Socj'l p na Consciousness, Inc., 452 U.S. 640, 643, 101 O S KEY XUMRIR SYSTEM resentment of the requisite number of si na- r When reviewing the granting of ma tures. g S.Ct. Con ituti 69 L.Ed.2d 1 23 (1981); G.tun- tion for directed verdict or judgment not- S. International Eateries also argues that the 1985). withstanding the verdict evidence must be County improperly interpreted the waiver provi- viewed in light most favorable to nonmov- ing party. 1 ( t• 1 ` f . Conducted by: ?LA:NNING DEPARTMENT may 25, 1979 CITY OF ?HOENIX ADULT BUSINEE SS- ST DY INTRODUCTION necessary premise for regulating, adult businesses by zoning is that a land use relation or i=oact results from this for-m of business. Many zoning ordinances throughout r-he nation now have provisions based on one of two basic approaches =o control tha location of adult businesses. One a?proach, sometimes kno:.- as t::e Detroit Model, divides or prevents the concentration of adult businesses in an area. A certain distance from residential neighborhoods , churches , and schools is also maintained. Another approach, or the Boston Model, Fosters the concen- tration of adult businesses in one area of the City. The latter a?proach has resulred in the more noteworthy prob'-EMS. For ins tance , in Boston's concentrated adult business area there is control of signs, _og=ad_:g of streets and sidewalks, renovation of store fronts , and ever the co s__uct_on Of a new _+ar :his scheme has not affected the high ni=Der or StEDDinTS , =ur:ers, and -mugg_ngs a;.ich take place in the district. Also, at one time, New York City had concentrated adult business distric=s. However, the police department re?orted that crime complaints were alr.ost :0% higher on police posts with adult businesses, as opposed to posts without them. The reports showed higher rates of ra?e, robbery and assault. in one acu'_t bus=mess concentration around Times Square , sales taxes drooped by 63% in a two-year =eriod, due to the loss of 2.5 times as many retail jobs as the rest of the City. Few York soon dropped its original adult business ordinance and adopted an, amend- ment which was ?atterned after the Detroit model. The .rew ordinance also went one step further than any other in the :ration when suggestion was made to a=ort_=e a1_ nonconforming adult businesses :thin one year. Thus, up to 80% of t::e existing SEX businesses were ter--inated. f 1 In the ?hoenix Zoning Ordinance an a=endment concerning adult businesses `-•:ca-e effective on :;ove=ber S. 1977. It too is patter:;ed after the Detroit model. Briefly, the a=endrent in Section 417 states that : 1. No adult business is to be within 1,000 feet or any use in the same category. 2. An adult business is not permitted within 500 feet of a school or a residential zone unless approved by City Council and area residents. A petition which is signed by 51% of the residents in the 500-foot radius who do not object must be filed and be verified by the Planning Director. after the petition is completed the City Council may consider :.giving the 500- foot require-gent. Adult businesses are being created as a land use issue by their relationship to impacts on their surrounding properties and on adjacent neighborhoods. Are the crime impacts noted in Boston and ;.ew York's districts directly related to the adult business being there, or to some other societal variables in the neighbor- hood? Are they identifiable, and thus a probable cause for negative neighborhood reactions to nearby adult businesses? The phoenix Ordinance was based on two hypotheses: first, that there are direct impacts .-hich uniquely relate to this class of land use; and second, t`ac there are indirect, but equally potent, attitudinal concerns which result from proximity to an adult business. Examples of the former are possible traffic congestion, unusual hours of operation, litter, noise, and criminal activity. Illustrating the latter is substantial testimony that has indicated that many neighborhood residents dislike living near an area containing an adult business. Also, financial institutions take nearby adult businesses into account when financing -3- residential properties. finally, people's perceptions of criminal acti•.ity is ' reinforced by a greater incidence of se.,cua1 crises in areas or c---=ercial districts containing adult businesses. In this study ue will show that there is a relationship between arrests for sexual crimes and locations of adult businesses. This relation will correlate with concerns which have been expressed by residents of nearby residential neighbor- hoods of the nature of crimes associated with adult businesses. Sex crimes appear to generate substantial fears for the safety of children, women, and neighborhoods in general. Their association with adult businesses generates negative images (as well as real or porcential hazards) and results in a lowering of the desirability and livability of an impacted neighborhood. This study specifically shows that there is a higher amount of sex offenses committed in neighborhoods in ?hoenix containing adult businesses as opposed to neighborhoods without them. In this project three study areas- were chosen -- neighboncc with adult businesses, and three control areas -- neighborhoods without adult businesse which were paired to certain population and lard use characteristics. The mount of property crimes, violent crimes, and sex offenses from the year 1978 are compared in each study and control area. TAB STUDY A+YD COS TROL ARr.•�S Three different study areas containing adult businesses were selected to collect crime data. The east side of Central Avenue was chosen for the location of two study areas, while the crest side has the third study area. Appendix I describes a more detailed process of how each study area was derived. A control area has no adult business, but generally speaking, has similar popula- tion characteristics of a matched study area in terms of: f -a- 1. :Iu..ber of residents 2. x1edian family income 3. Percentage of non-white population 4. median age of the population 5. Percentage of duelling units built since 1950 6. Percentage of acreage used residentially and non-resident: Appendix II states a more detailed Process of how each control are: Adult business locations are based on information furnished by the Department and verified by the Planning Department. i i z -5- r ' TAB LE I o THE STUDY AND CONTROL AREA LOCATIONS STUDY AREA I CONTROL AREA I Roosevelt Street - Oak Street Starting at 47th Avenue, east on Osborn Road, 16th Street - 32nd Street South on 35th Avenue , west on Tho—,.a s Road, South on 39th avenue, crest on Roosevelt Street North on 43rd Avenue, ;;est on McDowell Road, and North on 47th ?.venue, to the point of beginning. STUDY AREA II CONTROL AREA II Oak Street - Osborn Road Osborn Road - Campbell avenue 32nd Street - 40th Street 32nd Street - '•Oth Street. STUDY AREA III CONTROL AR—EA III Missouri avenue - Campbell -.venue Hissouri avenue - Campbell Avenue 19th Avenue - 27th avenue 27th avenue - 35th Avenue Figure 1, following shows the boundaries of the three study and control areas. I I I I •' � ! � 1 I � I � - • 1� . ' ;.CI I S •0 I I � � y� IcICT�!_ �1 rL I . .CA ■l.Y V-'. A• Jvt J I � I 1II OI., of / a Avc lecT.n.• Itrc �•P I DkTOCL AREA 31I (ST�OT APES 3) A 1 I .C .. •�� I I I � � I � �A�a ��1 �vE I ► i � -:rcu.C. I no I I y I i I ICoIra0L AREA 21 :uPoc I L lvFI •'•C•Ara EA ScScwc L au I I (CChTaOI . 11 ''•J I 1 'c•a°aN Mo. I i twOr A, (MOM AREA 2) �i �o• �.. .: .s. `. •:rse: -i• IC•�% ':.?CCSEvEIT' SL / (STUOT APEA 1) i. till .� I st• I I 1 i I IF I u�evEllslTT ;,�• L. � {VA:JAT al � f0i � 4 � •S � wj • •.• � �i C ��„� 1•� , 't �•a yrr ■• r w � M � � � :I � � — uRE I - .• r.r . wa■ S;-dv A=ea I contains two square Miles and One of the City's larder concentra- tions of adult businesses. These !.cations are : 1702 E. "cDo ell Road; 2339 E'. McDowell Road; 2133 Z. xcDowell Road, and 3155 E. :•:cro•.:ell Road. The catching population characteristics of Study and Control area I are listed below in Table II. (Appendix III provides a more detailed process of how this data vas derived.) TABLE II ?OPULATION MkRACTERISTICS OF STUDY AND CONTROL ROL AREA I Building/ Median Land Use 7. Von-','bite I950-I970 Income Awe Cor- ercial/Rcsidential Study I 247, 577. $7,675 29 31% 69% Control I 24% 937. $9,885 26 387. 62% The only substantial population characteristic differences in these two areas are in the age of hones built between 1950 and 1970. The concentrated adult business district has a little over half of its hones built after 1950. whereas the control area has almost 931". of its housing built after 1950. Study Area II is one square mile on the east side of the City, and contains only one adult business within the square mile, at 3640 East Thorax s Road. Its control area is to the north side of the Study Area. The comparison of population characteristics are shown in Table III. -7- Ta3L III POFLLITIO" CL%FLACiERISTICS OF STL7Y AN CONTROL AR; II Building/ Median Land Use :Ion-:White 1950-1970 Income Age Cor—ercial/Residencial Study II 7-4 88.0 $10,779 36 181.7 82° Control II 4.4 92.5 $12,013 38 11% 89% Study area III also contains one adult business at 2103 Id. Camelback Road. It is one square pile located on the west side of the City. Its Control area is directly to the west. The comparison of population characteristics are shown below: TA B LE IV POFULITION CtiARACTERISTICS OF STUDY AND CO:iROL AREA III Building/ Median Land Use % ion-*,bite 1950-1970 Income Age Cor—nercial/Residential Study 111 8.2 83% $9,829 29 29% 71% Control III 8.8 93% 10,559 28 28% 72 TABLE V PROPERTY , VIOLENT, AND SEX CRIMES I_N ADULT BUSINESS AREAS AND TICEIR CONTROL AREAS 1978 STUDY I CONTROL I STUDY II CONTROL II STUDY III CWrROL III A 0/1000 pop.* 0 //1000 pop.* //1000 PO .* / 8/1000 Log.* / !/1000 pop.* # #/1 0 .* Property 1616 130.05 1176 88.48 753 107.5 363 62.2 780 125.8 575 116.8 CCLoss violent 89 7. 16 66 4.96 21 3.0 21 3.6 39 6.29 36 7.3 Crimea 'Sax 127 10.22 12 .90 43 6.1 13 2.2 71 11.5 14 2.84 Offenses Rape 14 1.13 5 .38 S .71 1 .17 5 .80 2 .41 1 Indecent 107 8.61 6 .43 37 5.3 to 1.7 60 9.7 9 1.83 Exposure LeW41 4 2 .16 0 0 1 '.14 1 .17 4 .64 1 .20 1A sclvlous C1411'd 4 .32 1 .08 0 0 i ].17 2 .32 2 .41 Iwlaac Property Crimes - purglary, Larceny, Auto Theft vlolenc Celwas - Nurdar, Rape, Robbery, Assault Sex of fci,a;a - Rapes, Indecent Exposure, Lewd and L.aacivlous. Child Molest * 1478 ERLLlnntefl of I)opLilatlon at the enumeration district level were derived by the riannlni; 11olwtinew (te5enrch Section. • -3- C0::CLUSIG':S • Table V _rooerty, Violent, and Sex Cries in Selected Study Areas--19731 is a tabulation of the nt -ber of cries cor--pitted and the rate of those cri=es per 1,000 people living in each area. This table .is on the following page. There appears to be a significantly greater difference between the study and control areas for sex cries than for either property or violent crises. The following table illustrates a comparison of the ratio of the crir..e rate of the study area to the control area: TABLE VI CRDE RATES AS A PERCENTAGE OF STUDY AREA TO CONTROL AREA Study Property Violent Sex Sex Cries Area Crimes Crimes Crimes (Less indecent Exposure j 14777. 144% 1135% 358% II 173 83 277 160 III 108 86 405 178 Average 143% l 1047. 606% 27. It is observed that there are about 407. more property crimes and about the same rate of violent crises per 1,000 persons in the Study Areas as compared to the Control Areas. On the other hand there is an average of.six times the sex cri=e rate in the Study Areas as compared with the Control Areas. Although the majority of sex able V Property, Violent, and Sex Crimes in Selected Study Areas--1978, was derived from information provided by the City of Phoenix Police Departrent's Crime Analysis Unit and Planning and Research Bureau. The data from these two sections was compiled by adding the number by type of crimes committed in police grids , which are quarter mile neighborhoods. Crimes are based on arrest records and do not reflec . ultimate convictions. It has been assumed that conviction rates will be proportional to arrest rates. crimes are Indecent Exposure, the fourth column illustrates that the re=ainder ;v of the sea crimes also exhibit a significantly higher rate in the study areas. A detective from the police department stated that most indecent exposure crimes were coamitted on adult business premises. An example of this finding is in Study Area I. In that location, 89% of the reported indecent exposure crimes were co=itted at the addresses of adult businesses. Where there is a concentration of adult businesses, such as in Study Area I, the difference in sex offense rates is cost significant. As stated earlier in the report this location has four adult businesses which are less than 1000 feet ava y from each other and less than 500 feet away from a residential district. There is also a higher nunber of sex offenses coe=itted--84 more crimes than in Study Area II, and 56 core crimes than in Study Area III. Similarly, w':en cor..pared to its Control Area, the sex crime rate, per. 1,000 residences is over 11 tires as great in Study Area I. In the remaining study areas, which each contain a single adult business, their rates are four and almost three tires as great. r ESTA3LIS:_E:N OF STUDY AR=1 BOUNDARIES The process of defining the Study Area 3oundaries was conducted in the follo-:ns canner: 1. Locations of adult businesses in Phoelli:c -ere plotted. 2. The prirary concentration of adult businesses was identified. 3. Preliminary decision vas &.ade to choose three study areas -based on concentration and geographic isolation from each other. 4. Establishment of boundaries for each Study Area so that the adult businesses were approximately centered in each study area , and so that each Study Area had an area of at least one square mile , but not more than t::o square miles . APPE`.DE: II HTABLISIrDENT OF CC\T'ROL AR FA BOU^MARIES The process of defining the Control Area boundaries was conducted in the follc:.-ing =anner 1. Identification of potential control areas based on the absence of adult businesses. 2. Delineation of possible Control Areas equal in size to the Study Areas. 3. Determination of population and land use characteristics of each possible control area using the same weighted-proportionality method used for the Study Areas (See Appendix III for Population Characteristi.:s and method- ology) . 4. Selection of a Control Area to match each Study Area as closely as possible in size, number of residents, and all other selected character- istics listed in Appendix III. r • A??F:.7i IX III �rtT:'.000 OF '••cIGHTI::G ?O?LZ;TION C"AR:s.CTFRTc-rTrS OF STUDY AND CON-LROL Av1S The characteristics used in weighting the similarities bet-ween the Study and Control areas were : 1. . Percentage non-white population 2. Percentage of dwelling units built since 1950 3. Median income 4. ;;edian age of the population 5. Percentage of acreage used residentially Infor:.ation about the above characteristics was available at the Centus Tract level. Since the Study Area boundaries did not al .a ys align with Census Tract boundaries , it necessary to "average" Census Tract values to simulate the characteristics of the Study Areas. The contribution of each Census Tract characteristic value was Mathe- matically weighted, proportional to the amount of population that the Census Tract contributed to the Study Area population. Number 5, or the percentage of acreage ::sad residentially, was attributed proportionally to the geographic area rather thar. to population. The weighting of each Study and Control Area is tabulated in the following table : f WEIGirrING OF POPULATION CHARACTERISTICS BY CENSUS TRACT FOR STUDY AND CONTRO�_AREAS Ccnstu x Non-trliite % DwIling WiLta hadian Family Median Aga of Z of Acreage Tract Po ulal:Lo�nn-� Built Since 1950 ncome Population Used Residentially studx I 1115 8. , 67 $8.741 32 82 1116 14."1 54 8.191 30 80 1133 45.0 50 5.451 27 58 1135 25.0 61 8.990 27 57 Control i 1100 L3.0 98 10,992 24 88 1101 18 100 11.202 26 45 1122 25 90 8.751 27 74 1123 30 99 10.179 22 52 U 26 35 72 8,361 29 68 S,O 1 I 11"4 7.9 85 11,119 33 79 1109 6.9 91 10,469 38 85 Control II 1 , 1109 6.9 91 10.469 38 92 1083 2.3 94 13.345 38 85 i 5tuJy 1(1 1077 7.8 82 9.996 32 74 1090 8.7 83 9.609 26 68 • 1072 9.2 90 10,570 27 66 1091 8.5 96 10,550 29 78 t. 10/e2/91 14:29 Chi I LD:REN'S i Er- FOU WWT I GN MAy-22-IM 09:�'$ FROM TLP=MN C I TY PRCSEC UTOR To 97915.11 a P.03 MEMORANDUM DATE: May 1, 1990 Tot Xr. William Call TROXI XiChael J. Leverenz14� City Prosecutor Assistant Chist of Police Investigative services Ext. 4480 AtWZCTt ADULT LNTBRTA1k=Vr ORDINMCD Per your reguost, the following inrormation dascribes some of the events and activities that ware occurring in adult entertainment bookstores and sstablithnents that clearly demanded the need for a stronger ordinance. BAUGROM In late 1986, the Police Department received numarous complaints of illegal sexual activity and unsanitary conditions occurring in many of the adult entertainment bookstores and establishments. Initial. reports indicated that sexual activity was occurring on the premises between customers and prostitutes, customers and the entertainers and between the customers themselves. Through Covert investigations At Was soon discovered that many of these allegations ware in fact true. investigating officers toured that many or the dancers were prostitutes who were offering private shows where customers could, for a price, observe theta performing live sex acts. One of thesw acts was the "double Bong" show. This show Consisted of two females using a double headed dildo simultaneously. In a similar act dancers would perform oral sax on each other. Many times the dancers would require customers to expose themselves before they would perform. At several of the businesses, customers were allowed inside the booths with the dancer and were encouraged to undress and masturbate. For a lizzle more money, the dancers would help the customer masturbate. Nearly all of the dancers engaged in sexually explicit conversations with the customers, ror the right price customers would be allowed to touch the dancer in every place that bikini panties did not cover and if enough money was paid the Customers would be allowed to insert their tingers into the vagina 10/02i91 14:30 CH I L.DRE 1'S L_EGPL FOUNDRT I UI 006 FR0M TUCM1 CITY PROSEC.JTCR -C 9".L5410 P.04 ADULT ft?TERTA1NYJXT ORDIHMCi Page 2 of the dancer. Undercover officers also learned that customers could hire the dancers to engage in sots of prowtitution. Confidential sources indicated that, in some inntfth0*S, these acts actually occurred on the premises with the knowledge of the management. Investigating officers also discovered that underage femalea were being hied to dance nude. The youngest person known to have been korking in one of these businesses was a fifteen year old female, Ths business that the was working at required that she dance itvtral times an hour and perform what are known as spread shows. In these type of show& a female masturbates either manually or with a vibrator in front of a customer. In most cases those minors were in posse6Rion of false identification which they were assisted in obtaining by the older dancers and, in one case, allegedly by the business manager. "Glory holes" were discovered in the walls of adjoining booths in some of the bo,oksto>res and adult entertainment establishmantt. These holes were used by malt customers to facilitate aexual acts with the occupant of the neighbori.nq booth. Additionally, certain book stores were found to be frequented by homosexuals and it was not unusual to have men standing around the booth areas attempting to pick each other up. It was also obvious to anyone who went into these businesses that there vas a problem with the sanitary conditions. Upon entering the viewing booths, investigators often found puddles of semen on the floors and/or hanging on the walls. If the customer did use a tissue these were also usually found on the floor of the booth and in some cases in the hallways. In order to verity the aocuracy of their observations, investigating officers collected samples on two separate occasions. Between April and August or 1987, .investigators collected 26 random samples at eight separate adult entertainment bookstores and establishments. of these 26 samples the TIM Crime Lab reported that 21 (ell) tested positive for semen. The second collection occurred between October and Deoamber of 198a. This time invastigators collected 27 random samples at ten separate adult entertainment bookstores and establishments. of these 27 samples, 26 (964) tested positive for **none At virtually every adult entertainment bookstore and establishmsne employeas Were arrested for prostitution or obscene sex shows. At one of these businesses a nationally known porn star Wa* seen on ;. 1e/o2/91 14:30 011 L DR&I S LEGAL FDIt-IDAT 104 007 nAY-2?-1^00 0S-156 FP.OM TUCSON CITY PRCSECUTOR TO 97915410 P.05 ADVLT 0=RTAz)=KT ORDIMLNCZ Page 3 stage in front of approximately twenty people inserting her tonquo and finger Into the vagina and anum of another performer. At another business, a dancer wag arrested after she performed oral/anal sex on another female. At the and of her show she blew air out of her vagina in order to make. noise. As a result of arrangements that were easily made at these businesses, dancers verge etlso arrested for performing sex shows and other acts of prostitution at other locations. xzzp FOR A STRONGER ORDIN"02 During the tiiae that we were conducting thane criminal investigations, the Health Department began investigating the sanitary ccnditions in these businesses. The Health Department recognized, as we did, - that many of the activities that were occurring were made possible by the doors on the booths. When it was suggested that their removal would substantially reduce the opportunity for people to have anonymous sax, the Adult Entertainment Industry quickly joined forces with a common goal in mind. That goal was to keep the doors on the booths. In order to demonstrate that a health ordinance was not needed these businesses began cleanLnq the booths and, in some instances, the entire premises. Whole businesses suddenly were painted and in some cases remodeled. Signs started being displayed discouraging loitering and asking customers to place their tissues its trash cans. The whole industry began changing due to the fact that they were trying to convince the Health Department and the public that they could police themselves and that the doors did not have to coZA off. In an attempt to diffuse the cry for the removal of the doors the bottom part of the doors were cut off. Shortly thereafter, City Ordinance 7299 was enacted xhich provided for the liconsinq of employees and established . requlations regarding the operation and location of adult entertainment cntarprises. On November 1, 1999, Mr. Michael J. bloc=, attorney for several of the enterprises affected by the ordinance, tiled a law suit in the united states District court challenging this ordinance. Sines then a series of meetings occurred between Mr. Bloom, the Police Department, and the City Attorney'& office to determine if compromise was possible. As a result, we round that a major issue of contention was whether the doors should come off or be allowa4 to stay on. Durinq an on-site inspection of these booths with xX. bloce, he advised us that his clients position vas 'r• 10i02/91 14:31 CH I Lr J'S LE3q_ FCLMaT I CH 008 s toRe-22—!T50 05:tT FPQM TL;c=i .r.I TY Pft=fflrm To 2"15410 P.06. ADULT IMJtTXII=NT C)"XI NCt Past 4 that the doors had to stay on. He stated that his clients war* very concerned of the possibility of non-paying customers congregating around the booth of a paying customer. Mr. Bloom also indicated that his clients would be agreeable to wording in the ordinance that require. the bottom of the doors to be raised to a height that would permit all the interior floor space (of the booth) to be visible from the public hallway. The idea Ming that this would allow anyone to count the number of feet in the booth thereby insuring that there was only one, person in there. D19cussicnv occurred with supervisors and officers of the police Department's vice Detail pertaining to the alternatives. After these discussions, and recognising that although Mr. Bloom's position has some merit, our first recommendation was that the doors be removed from the viewing booths for the following reasons. 1. "Glory Holes" - even if the doors were raised to knee level, they would still provide customers with enough shielding to encourage and permit illegal sex acts to continua. 2. Xasturbation - doors encourage and facilitate this act and we do not feel the community believes this should be an acceptable or sanctioned practice in a city licensed business open to the public. , . sanitation - as previously stated random inspections of booths by investigators found some rather offensive conditions. Although there has been significant charsges in tba operation or these businesses, recent spot checks indicates that this problem persists. 4 . Booths - the viewing booths can be configured in a manner that will preclude viewing by non-paying customers. S. Court D*cisions - the removal of doors has been upheld by the courts. Since then several beatings with Mr. Bloom have taken place regarding this issue. On April 30, 1990, the Police Department was advised that lair, bloom, in a letter to Kr. wi121au call, indicated that his clients would agree to raising the bottom of the doors to a height or 30 inches frob the floor* subsequent to this compromise offer, the Police Departnent agrees to recommend that the doors ramain on the booths under the following condititmog 1 a/02r91 14:31 CHILDREN'S LECA- FQ1NDAT I O1 009 - f MqY•u-i�'9G' _C:00 9'*31 TLCE- N C:r;1 EMIR TO 91r4lo P.O" ADULT ZVTZRTAn0MVT 0J DINVICE Page 5 1 . The bottom of the door must.be ■ minimum or 30 inches from the floor, so that th• occupant of the booth is visible from the waist dorm when seated. 2. The booth can not be modified nor can a chair be used that will circumvent the intent of condition it We feel that thie compromise answers the privacy issues raised by Mr. bloot and his clients, ae well as, providing a deterrent effect against the type of behavior that we originally cited for the doors coming off entirely. Additionally, we believe Uat the proposed ordinance will also benefit the busineasea that it regulates because: 1. Employee licensing obligates the Police Department to conduct background investigations on all applicants. This will ultimately result in the selection of better employees. 2. if the denial or revocation of a license is recommended a . hearing is required before any action is taken. 3. The proccnoe of partial doors should not reduce business. 4 .� The pr•a.nee of partial doors will a*sist the businesses in maintaining a cleaner environment and maoting the regulation set forth in the ordinancs. It is for these reasons and the belief that the ordinance will not adversely affect these business establishuents that the Police Department recommends the ordinance ba adopted in its present form. ✓If<7#j ORDINANCE NO. 3378 - AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING CHAPTERS 204, 211, 212, 231 AND 236 OF THE HUNTINGTON BEACH ZONING AND SUBDIVISION ORDINANCE CHANGING THE ZONING DESIGNATION FOR SEX ORIENTED BUSINESSES (ZTA NO. 97-4) WHEREAS, pursuant to the State Planning and Zoning Law, the Huntington Beach Planning Commission and Huntington Beach City Council have held separate public hearings relative to Zoning Text Amendment No. 974 wherein both bodies have carefully considered all information presented at said hearings, and after due consideration of the findings and recommendations of the Planning Commission and all evidence presented to said City Council, the City Council finds that such zoning text amendments are proper, and consistent with the General Plan. NOW, THEREFORE, the City Council of the City of Huntington Beach does ordain as follows: SECTION 1. That Huntington Beach Zoning and Subdivision Ordinance, Chapter 204, Use Classifications, is hereby amended by deleting Adult Businesses as a use classification and adding"Sex Oriented Business," as contained in Exhibit "A" attached hereto. SECTION 2. That the Huntington Beach Zoning& Subdivision Ordinance, Chapter 211, Commercial Districts, is hereby amended by deleting Adult Businesses from the commercial zone, as contained in Exhibit "B" attached hereto. SECTION 3. That Huntington Beach Zoning & Subdivision Ordinance, Chapter 212, Industrial Districts, is hereby amended by adding Sex Oriented Businesses as permitted uses in the industrial zone, as contained in Exhibit "C" attached hereto. SECTION 4. That Huntington Beach Zoning& Subdivision Ordinance Chapter 231, Off-Street Parking and Loading Provisions, is hereby amended by deleting parking requirements for"Adult Businesses" and adding parking requirements for"Sex Oriented Businesses, as contained in Exhibit "D" attached hereto. SECTION 5. That Huntington Beach Zoning & Subdivision Ordinance Chapter 236, Non-conforming Uses and Structures, is hereby amended by adding"Sex Oriented Businesses," as contained in Exhibit "E" attached hereto. SECTION 6. That after careful consideration of the locational criteria for sex oriented businesses, those parcels which are in substantial compliance with the locational criteria as of the effective date of this ordinance have been designated as available sites on the map attached hereto as Exhibit"F." Further, Claremont School closed on or about September 15, 1997. The map further identifies those parcels which will become available sites if the School remains closed through September 15, 1998 and the Conditional Use Permit for Claremont School expires. 1 jmp/jmp/sobzn/1 l/4/97 3378 SECTION 7. This ordinance shall take effect 30 days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 5t:h day of January , 1998. ATTEST: . . /-. oe &R)tiv� Mayor City Clerk APPROVED AS TO FORM: REVIEWED AND APPROVED: it Attorney '�g City Adininistrator INITIATED AND APPROVED: Director of Commq4ity Development Exhibits: A: Chapter 204, Use Classifications B: Chapter 211, Commercial Districts C: Chapter 212, Industrial Districts D: Chapter 231, Off-Street Parking and Loading Provisions E: Chapter 236, Non-conforming Uses and Structures F: Map of Available Industrial SOB Sites 2 jmprmp/sobm/11/4/97 3378 Chapter 204 Use Classifications Sections: 204.02 Applicability 204.04 Uses Not Classified 204.06 Residential Use Classifications 204.08 Public and Semipublic Use Classifications 204.10 Commercial Use Classifications 204.12 Industrial Use Classifications 204.14 Accessory Use Classifications 204.16 Temporary Use Classifications 204.02 Applicability Use classifications describe one or more uses having similar characteristics,but do not list every use or activity that may appropriately be within the classification. The Director shall determine whether a specific use shall be deemed to be within one or more use classifications or not within any classification in this Title. The Director may determine that a specific use shall not be deemed to be within a classification, if its characteristics are substantially different than those typical of uses named within the classification. The Director's decision may be appealed to the Planning Commission. (3334) 204.04 Uses Not Classified Any new use, or any use that cannot be clearly determined to be in an existing use classification,may be incorporated into the zoning provisions by a Zoning and Subdivision Ordinance text amendment, as provided in Chapter 247. Such an incorporation shall not be effective unless certified by the Coastal Commission as a Local Coastal Program amendment. (3334) 204.06 Residential Use Classifications A. Day Care- Limited or Small-Family). Non-medical care and supervision of six or fewer persons on a less than 24-hour basis. This classification includes nursery schools,preschools,and day-care centers for children and adults. B. Group Residential. Shared living quarters without separate kitchen or bathroom facilities for each room or unit. This classification includes boarding houses,but excludes residential hotels or motels. 1 JM/s:JM:204-Fin 10/30/97 EXHIBIT A 3378 C. M_ultifamily Residential. Two or more dwelling units on a site. This ' classification includes manufactured homes. D. Residential Alcohol Recovery. Limited. Twenty-four-hour care for no more than six persons suffering from alcohol problems in need of personal services, supervision, protection or assistance. This classification includes only those facilities licensed by the State of California. E. Residential Care. Limited. Twenty-four-hour non-medical care for 6 or fewer persons in need of personal services, supervision, protection, or assistance essential for sustaining the activities of daily living. This classification includes only those services and facilities licensed by the State of California. F. Single-Family Residential. Buildings containing one dwelling unit located on a single lot. This classification includes manufactured homes. 204.08 Public and Semipublic Use Classifications A. Cemetery. Land used or intended to be used for the burial of human remains and dedicated for cemetery purposes. Cemetery purposes include columbariums, crematoriums, mausoleums, and mortuaries operated in conjunction with the cemetery, business and administrative offices, chapels, flower shops, and necessary maintenance facilities. B. Clubs and Lodges. Meeting, recreational, or social facilities of a private or nonprofit organization primarily for use by members or guests. This classification includes union halls, social clubs and youth centers. C. Community and Human Service Facilities. 1. Drug Abuse Centers. Facilities offering drop-in services for persons suffering from drug abuse, including treatment and counseling without provision for on-site residence or confinement. 2. Prim= Health Care. Medical services, including clinics, counseling and referral services,to persons afflicted with bodily or mental disease or injury without provision for on-site residence or confinement. 3. Emergency Kitchens. Establishments offering food for the "homeless" and others in need. 4. Emergency Shelters. Establishments offering food and shelter programs for "homeless" people and others in need. This classification does not include facilities licensed for residential care, as defined by the State of California, which provide supervision of daily activities. 5. Residential Alcohol Recovery, General. Facilities providing 24-hour care for more than six persons suffering from alcohol problems, in need of personal services, supervision, protection or assistance. 2 JM OM:204-Fin 10/30/97 3378 These facilities may include an inebriate reception center as well as facilities for treatment, training, research, and administrative services for program participants and employees. This classification includes only those facilities licensed by the State of California. 6. Residential Care, General. Twenty-four-hour non-medical care for seven or more persons, including wards of the juvenile court, in need of personal services, supervision,protection, or assistance essential for sustaining the activities of daily living. This classification includes only those facilities licensed by the State of California. D. Convalescent Facilities. Establishments providing care on a 24-hour basis for persons requiring regular medical attention, but excluding facilities providing surgical or emergency medical services. E. Cultural Institutions. Nonprofit institutions displaying or preserving objects of interest in one or more of the arts or sciences. This classification includes libraries, museums, and art galleries. F. Dav Care. Large-Family. Provision of non-medical care for 7 to 12 children on a less than 24-hour basis. G. Day Care. General. Provision of non-medical care for 13 or more persons on a less than 24-hour basis. This classification includes nursery schools, preschools, and day-care centers for children or adults. H. Emergency Health Care. Facilities providing emergency medical service with no provision for continuing care on an inpatient basis. I. Government Offices. Administrative, clerical, or public contact offices of a government agency, including postal facilities,together with incidental storage and maintenance of vehicles. J. Heliports. Pads and facilities enabling takeoffs and landings by helicopter. K. Hospitals. Facilities providing medical, surgical, psychiatric, or emergency medical services to sick or injured persons,primarily on an inpatient basis. This classification includes incidental facilities for out-patient treatment, as well as training, research, and administrative services for patients and employees. L. Maintenance and Service Facilities. Facilities providing maintenance and repair services for vehicles and equipment, and materials storage areas. This classification includes corporation yards, equipment service centers, and similar facilities. M. Marinas. A boat basin with docks, mooring facilities, supplies and equipment for small boats. N. Park and Recreation Facilities. Noncommercial parks, playgrounds, recreation facilities, and open spaces. 3 JM/s:JM:204-Fin 10/30/97 3378 O. Public Safety Facilities. Facilities for public safety and emergency services, including police and fire protection. P. Religious Assembly. Facilities for religious worship and incidental religious education, but not including private schools as defined in this section. Q. Schools. Public or Private. Educational institutions having a curriculum comparable to that required in the public schools of the State of California. R. Utilities. Major. Generating plants, electrical substations, above-ground electrical transmission lines, switching buildings, refuse collection, transfer, recycling or disposal facilities, flood control or drainage facilities, water or wastewater treatment plants, transportation or communications utilities, and similar facilities of public agencies or public utilities. S. Utilities. Minor. Utility facilities that are necessary to support legally established uses and involve only minor structures such as electrical distribution lines, underground water and sewer lines, and recycling and collection containers. 204.10 Commel•cial Use Classifications A. Ambulance Services. Provision of emergency medical care or transportation, including incidental storage and maintenance of vehicles as regulated by Chapter 5.20. B. Animal Sales and Services. 1. Animal Boarding. Provision of shelter and care for small animals on a commercial basis. This classification includes activities such as feeding, exercising, grooming, and incidental medical care, and kennels. 2. Animal Grooming. Provision of bathing and trimming services for small animals on a commercial basis. This classification includes boarding for a maximum period of 48 hours. 3. Animal Hospitals. Establishments where small animals receive medical and surgical treatment. This classification includes only facilities that are entirely enclosed, soundproofed, and air- conditioned. Grooming and temporary (maximum 30 days)boarding of animals are included, if incidental-to the hospital use. 4. Animals: Retail Sales. Retail sales and boarding of small animals, provided such activities take place within an entirely enclosed building. This classification includes grooming, if incidental to the retail use, and boarding of animals not offered for sale for a maximum period of 48 hours. 5. Equestrian Centers. Establishments offering facilities for instruction in horseback riding, including rings, stables, and exercise areas. 4 JM/s:JM:204-Fin 10/30/97 3378 6. Pet Cemetery. Land used or intended to be used for the burial of animals, ashes or remains of dead animals, including placement or erection of markers, headstones or monuments over such places of burial. C. Artists' Studios. Work space for artists and artisans, including individuals practicing one of the fine arts or performing arts, or skilled in an applied art or craft. D. Banks and Savings and Loans. Financial institutions that provide retail banking services to individuals and businesses. This classification includes only those institutions engaged in the on-site circulation of cash money. It also includes businesses offering check-cashing facilities. 1. With Drive-up Service. Institutions providing services accessible to persons who remain in their automobiles. E. Building Materials and Services. Retailing,wholesaling, or rental of building supplies or equipment. This classification includes lumber yards, tool and equipment sales or rental establishments, and building contractors' yards, but excludes establishments devoted exclusively to retail sales of paint and hardware, and activities classified under Vehicle/Equipment Sales and Services. F. Catering Services. Preparation and delivery of food and beverages for off- site consumption without provision for on-site pickup or consumption. (See also Eating and Drinking Establishments.) G. Commercial Filming: Commercial motion picture or video photography at the same location more than six days per quarter of a calendar year. (See also Chapter 5.54, Commercial Photography) H. Commercial Recreation and Entertainment. Provision of participant or spectator recreation or entertainment. This classification includes theaters, sports stadiums and arenas, amusement parks, bowling alleys, billiard parlors and poolrooms as regulated by Chapter 9.32; dance halls as regulated by Chapter 5.28; ice/roller skating rinks, golf courses, miniature golf courses, scale-model courses, shooting galleries, tennis/racquetball courts, health/fitness clubs, pinball arcades or electronic games centers having more than 4 coin-operated game machines as regulated by Chapter 9.28; card rooms as regulated by Chapter 9.24; and fortune telling as regulated by Chapter 5.72. 1. Limited. Indoor movie theaters, game centers and performing arts theaters and health/fitness clubs occupying less than 2,500 square feet. 1. Communications Facilities. Broadcasting, recording, and other communication services accomplished through electronic or telephonic mechanisms, but excluding Utilities (Major). This classification includes 5 JM/s:JM:204-Fin 10/30/97 3378 radio, television, or recording studios; telephone switching centers; and telegraph offices; and cellular telephone facilities.J. Eating and Drinking Establishments. Businesses serving prepared food or beverages for consumption on or off the premises. 1. With Fast-Food or Take-Out Service. Establishments where patrons order and pay for their food at a counter or window before it is consumed and may either pick up or be served such food at a table or take it off-site for consumption. a. Drive-through. Service from a building to persons in vehicles through an outdoor service window. b. Limited. Establishments that do not serve persons in vehicles or at a table. 2. With Live Entertainment/DanciU. An eating or drinking establishment where dancing and/or live entertainment is allowed. This classification includes nightclubs subject to the requirements of Chapter 5.44 of the Municipal Code. K. Food and Beverage Sales. Retail sales of food and beverages for off-site preparation and consumption. Typical uses include groceries, liquor stores, or delicatessens. Establishments at which 20 percent or more of the transactions are sales of prepared food for on-site or take-out consumption shall be classified as Catering Services or Eating and Drinking Establishments. 1. With Alcoholic Beverage Sales. Establishments where more than 10 percent of the floor area is devoted to sales, display and storage of alcoholic beverages. L. Food Processing. Establishments primarily engaged in the manufacturing or processing of food or beverages for human consumption and wholesale distribution. M. Funeral and Interment Services. Establishments primarily engaged in the provision of services involving the care, preparation or disposition of human dead other than in cemeteries. Typical uses include crematories, columbariums, mausoleums or mortuaries. N. Horticulture. The raising of fruits, vegetables, flowers, trees, and shrubs as a commercial enterprise. O. Laboratories. Establishments providing medical or dental laboratory services; or establishments with less than 2,000 square feet providing photographic, analytical, or testing services. Other laboratories are classified as Limited Industry. P. Maintenance and Repair Services. Establishments providing appliance repair, office machine repair, or building maintenance services. This 6 JM/s:JM:204-Fin 10/30/97 3378 classification excludes maintenance and repair of vehicles or boats; see (Vehicle/Equipment Repair). Q. Marine Sales and Services. Establishments providing supplies and equipment for shipping or related services or pleasure boating. Typical uses include chandleries, yacht brokerage and sales, boat yards, boat docks, and sail-making lofts. R. Nurseries. Establishments in which all merchandise other than plants is kept within an enclosed building or a fully screened enclosure, and fertilizer of any type is stored and sold in package form only. S. Offices. Business and Professional. Offices of firms or organizations providing professional, executive, management, or administrative services, such as architectural, engineering, graphic design, interior design, real estate, insurance, investment, legal, veterinary, and medical/dental offices. This classification includes medical/dental laboratories incidental to an office use, but excludes banks and savings and loan associations. T. Pawn Shops. Establishments engaged in the buying or selling of new or secondhand merchandise and offering loans secured by personal property and subject to Chapter 5.36 of the Municipal Code. U. Personal Enrichment Services. Provision of instructional services or facilities, including photography, fine arts, crafts, dance or music studios, driving schools, business and trade schools, and diet centers, reducing salons, and fitness studios. V. Personal Services. Provision of recurrently needed services of a personal nature. This classification includes barber and beauty shops, seamstresses, tailors, shoe repair shops, dry-cleaning businesses (excluding large-scale bulk cleaning plants),photo-copying, and self-service laundries. W. Research and Development Services. Establishments primarily engaged in industrial or scientific research, including limited product testing. This classification includes electron research firms or pharmaceutical research laboratories, but excludes manufacturing, except of prototypes, or medical testing and analysis. X. Retail Sales. The retail sale of merchandise not specifically listed under another use classification. This classification includes department stores, drug stores, clothing stores, and furniture stores, and businesses retailing the following goods: toys, hobby materials,handcrafted items,jewelry, cameras, photographic supplies, medical supplies and equipment, electronic equipment, records, sporting goods, surfing boards and equipment, kitchen utensils, hardware, appliances, antiques, art supplies and services, paint and wallpaper, carpeting and floor covering, office supplies, bicycles, and new automotive parts and accessories (excluding service and installation). Y. Secondhand Appliances and Clothing Sales. The retail sale of used appliances and clothing by secondhand dealers who are subject to Chapter 7 JM/s:JM:204-Fin l 0/30/97 3378 5.36. This classification excludes antique shops primarily engaged in the ' sale of used furniture and accessories other than appliances, but includes junk shops. Z. Sex Oriented Businesses. Establishments as regulated by Chapter 5.70; baths, sauna baths and massage establishments, as regulated by Chapter 5.24; and figure model studios as regulated by Chapter 5.60. AA. Swap Meets, Indoor/Flea Markets. An occasional,periodic or regularly scheduled market held within a building where groups of individual vendors offer goods for sale to the public. BB. Swap Meets. Recurring. Retail sale or exchange of handcrafted or secondhand merchandise for a maximum period of 32 consecutive hours, conducted by a sponsor on a more than twice yearly basis. CC. Tattoo Establishment. Premises used for the business of marking or coloring the skin with tattoos as regulated by Chapter 8.70. DD. Travel Services. Establishments providing travel information and reservations to individuals and businesses. This classification excludes car rental agencies. EE. Vehicle/Equipment Sales and Services. 1. Automobile Rentals. Rental of automobiles, including storage and incidental maintenance, but excluding maintenance requiring pneumatic lifts. 2. Automobile Washing. Washing, waxing, or cleaning of automobiles or similar light vehicles. 3. Commercial Parking Facility. Lots offering short-term or long-term parking to the public for a fee. 4. Service Stations. Establishments engaged in the retail sale of gas, diesel fuel, lubricants, parts, and accessories. This classification includes incidental maintenance and minor repair of motor vehicles, but excluding body and fender work or major repair of automobiles, motorcycles, light and heavy trucks or other vehicles. 5. Vehicle/Bquipment Repair. Repair of automobiles, trucks, motorcycles, mobile homes, recreational vehicles, or boats, including the sale, installation, and servicing of related equipment and parts. This classification includes auto repair shops, body and fender shops, transmission shops, wheel and brake shops, and tire sales and installation, but excludes vehicle dismantling or salvage and tire retreading or recapping. a. Limited. Light repair and sale of goods and services for vehicles, including brakes, muffler, tire shops, oil and lube, and accessory uses, but excluding body and fender shops, 8 JWOM:204-Fin 10/30/97 3378 upholstery, painting, and rebuilding or reconditioning of vehicles. - 6. Vehicle/Equipment Sales and Rentals. Sale or rental of automobiles, motorcycles, trucks, tractors, construction or agricultural equipment, manufactured homes, boats, and similar equipment, including storage and incidental maintenance. 7. Vehicle Storage. Storage of operative or inoperative vehicles. This classification includes storage of parking tow-aways, impound yards, and storage lots for automobiles,trucks, buses and recreational vehicles, but does not include vehicle dismantling. FF. Visitor Accommodations. 1. Bed and Breakfast Inns. Establishments offering lodging on a less than weekly basis in a converted single-family or multi-family dwelling or a building of residential design, with incidental eating and drinking service for lodgers only provided from a single kitchen. 2. Hotels and Motels. Establishments offering lodging on a weekly or less than weekly basis. Motels may have kitchens in no more than 25 percent of guest units, and "suite" hotels may have kitchens in all units. This classification includes eating, drinking, and banquet service associated with the facility. (3334) GG. Warehouse and Sales Outlets. Businesses which store large inventories of goods in industrial-style buildings where these goods are not produced on the site but are offered to the public for sale. HH. Quasi Residential 1. Residential Hotels. Buildings with 6 or more guest rooms without kitchen facilities in individual rooms, or kitchen facilities for the exclusive use of guests, and which are intended for occupancy on a weekly or monthly basis. 2. Single Room Occupancy. Buildings designed as a residential hotel consisting of a cluster of guest units providing sleeping and living facilities in which sanitary facilities and cooking facilities are provided within each unit; tenancies are weekly or monthly. 3. Time-Share Facilities. A facility in which the purchaser receives the right in perpetuity, for life or for a term of years, to the recurrent exclusive use or occupancy of a lot,parcel, unit or segment of real property, annually or on some other periodic basis for a period of time that has been or will be allocated from the use or occupancy periods into which the plan has been divided. A time-share plan may be coupled with an estate in the real property or it may entail a 9 JM/s:JM:204-Fin 10/30/97 3378 license or contract and/or membership right of occupancy not coupled with an estate in the real property. (3334) ' 204.12 Industrial Use Classifications A. Industry. Custom. Establishments primarily engaged in on-site production of goods by hand manufacturing involving the use of hand tools and small- scale equipment. 1. Small-scale. Includes mechanical equipment not exceeding 2 horsepower or a single kiln not exceeding 8 kilowatts and the incidental direct sale to consumers of only those goods produced on- site. Typical uses include ceramic studios, candle-making shops, and custom jewelry manufacture. B. Industry, General. Manufacturing of products, primarily from extracted or raw materials, or bulk storage and handling of such products and materials. Uses in this classification typically involve a high incidence of truck or rail traffic, and/or outdoor storage of products, materials, equipment, or bulk fuel. This classification includes chemical manufacture or processing, food processing and packaging, laundry and dry cleaning plants, auto dismantling within an enclosed building, stonework and concrete products manufacture (excluding concrete ready-mix plants), small animal production and processing within an enclosed building, and power generation. C. Industry. Limited. Manufacturing of finished parts or products, primarily from previously prepared materials; and provision of industrial services,both within an enclosed building. This classification includes processing, fabrication, assembly, treatment, and packaging, but excludes basic industrial processing from raw materials and Vehicle/Equipment Services, but does allow food processing for human consumption. D. Industry. Research and Development. Establishments primarily engaged in the research, development, and controlled production of high-technology electronic, industrial or scientific products or commodities for sale, but prohibits uses that may be objectionable in the opinion of the Director, by reason of production of offensive odor, dust, noise, vibration, or in the opinion of the Fire Chief by reason of storage of hazardous materials. Uses include aerospace and biotechnology firms, and non-toxic computer component manufacturers. This classification also includes assembly,testing and repair of components, devices, equipment, systems, parts and components such as but not limited to the following: coils, tubes, semi-conductors; communication, navigation, guidance and control equipment; data processing equipment; filing and labeling machinery; glass edging and silvering equipment; graphics and art equipment; metering equipment; optical devices and equipment; photographic equipment; radar, infrared and ultraviolet equipment; radio and television equipment. 10 JM/s:JM:204-Fin 10/30/97 3378 This classification also includes the manufacture of components, devices, equipment, parts and systems which includes assembly,fabricating, plating and processing,testing and repair, such as but not limited to the following: machine and metal fabricating shops, model and spray painting shops, environmental test, including vibration analysis, cryogenics, and related functions,plating and processing shops, nuclear and radioisotope. This classification also includes research and development Iaboratories including biochemical and chemical development facilities for national welfare on land, sea, or air; and facilities for film and photography, metallurgy; pharmaceutical, and medical and x-ray research. E. Wholesaling. Distribution and Storage. Storage and distribution facilities without sales to the public on-site or direct public access except for recycling facilities and public storage in a small individual space exclusively and directly accessible to a specific tenant. This classification includes mini- warehouses. 204.14 Accessory Use Classifications Accessory Uses and Structures. Uses and structures that are incidental to the principal permitted or conditionally permitted use or structure on a site and are customarily found on the same site. This classification includes detached or attached garages, home occupations, caretakers' units, and dormitory type housing for industrial commercial workers employed on the site, and accessory dwelling units. 204.16 Temporary Use Classifications A. Animal Shows. Exhibitions of domestic or large animals for a maximum of seven days. B. Circuses and Carnivals. Provision of games, eating and drinking facilities, live entertainment, animal exhibitions, or similar activities in a tent or other temporary structure for a maximum of seven days. This classification excludes events conducted in a permanent entertainment facility. C. Commercial Filming, Limited. Commercial motion picture or video photography at a specific location six or fewer days per quarter of a calendar year. (See also Chapter 5.54, Commercial Photography) D. Personal Property Sales. Sales of personal property by a resident ("garage sales") for a period not to exceed 48 consecutive hours and no more than once every six months. E. Real Estate Sales. An office for the marketing, sales, or rental of residential, commercial, or industrial development. This classification includes "model homes." 11 JM/s:JM:204-Fin 10/30/97 3378 F. Retail Sales. Outdoor. Retail sales of new merchandise on the site of a legally established retail business for a period not to exceed 48 consecutive hours no more than once every 3 months. G. Seasonal Sales. Retail sales of seasonal products, including Christmas trees, Halloween pumpkins and strawberries. H. Street Fairs. Provision of games, eating and drinking facilities, live entertainment, or similar activities not requiring the use of roofed structures. I. Trade Fairs. Display and sale of goods or equipment related to a specific trade or industry for a maximum period of five days per year. J. Temporary Event. Those temporary activities located within the coastal zone that do not qualify for an exemption pursuant to Section 245.08. (3334) 12 JWOM:204-Fin 10/30/97 3378 lfC_hapter,211CCO_ mmereial Districts- ' _ Sections: 211.02 Commercial Districts Established 211.04 CO, CG, and CV Districts: Land Use Controls 211.06 CO, CG and CV Districts: Development Standards 211.08 Review of Plans 211.02 Commercial Districts Established The purpose of the Commercial districts is to implement the General Plan and Local Coastal Program commercial land use designations. Three(3) commercial zoning districts are established by this chapter as follows: (3334) A. The CO Office Commercial District provides sites for offices for administrative, financial, professional, medical and business needs. B. The CG General Commercial District provides opportunities for the full range of retail and service businesses deemed suitable for location in Huntington Beach. C. The CV Visitor Commercial District implements the Visitor Serving Commercial land use designation within the coastal zone and provides uses of specific benefit to coastal visitors. More specifically,the CV district provides opportunities for visitor-oriented commercial activities, including specialty and beach related retail shops, restaurants,hotels, motels,theaters,museums, and related services. (3334) 211.04 CO, CG, and CV Districts: Land Use Controls In the following schedules, letter designations are used as follows: "P" designates use classifications permitted in commercial districts. "L" designates use classifications subject to certain limitations prescribed by the "Additional Provisions" that follow. "PC" designates use classifications permitted on approval of a conditional use permit by the Planning Commission. "ZA" designates use classifications permitted on approval of a conditional use permit by the Zoning Administrator. "TU" designates use classifications allowed upon approval of a temporary use permit. 1 JM/s:JM:211-Fin EXHIBIT B 10/30/97 3378 . "P/U" for an accessory use means that the use is permitted on the site of a permitted use, but requires a conditional use permit on the site of a conditional - - use. Use classifications that are not listed are prohibited. Letters in parentheses in the "Additional Provisions" column refer to provisions following the schedule or located elsewhere in the Zoning Ordinance. Where letters in parentheses are opposite a use classification heading, referenced provisions shall apply to all use classifications under the heading. P = Permitted CO, CG, L = Limited (see Additional Provisions) and CV PC = Conditional use permit approved by Planning Commission Districts ZA = Conditional use permit approved by Zoning Administrator Land Use TU = Temporary Use Permit Controls P/U = Requires conditional use permit on site of conditional use Not Permitted CO CG CV Additional Provisions Residential (J)(Q)(R)(V) (3334) Group Residential PC PC PC (3334) Multifamily Residential - - PC (3334) Public and Semipublic (A)(J)(Q)(R)(V) (3334) Cemetery - - - Clubs and Lodges ZA ZA - (3334) Community and Human Services Drug Abuse Centers - PC - Primary Health Care L-2 L-2 - Emergency Kitchens - L-2 - Emergency Shelters - L-2 - Residential Alcohol Recovery, General - PC - Residential Care, General PC PC - Convalescent Facilities PC PC - Cultural Institutions PC PC PC Day Care, General L-2 L-2 - Day Care, Large-Family L-2 L-2 - Emergency Health Care L-2 L-2 - (3334) Government Offices P P PC (3334) Heliports PC PC PC (B) Hospitals PC PC - (3334) Park & Recreation Facilities L-9 L-9 L-9 Public Safety Facilities PC PC PC Religious Assembly PC PC - Schools, Public or Private PC PC - Utilities, Major PC PC PC Utilities, Minor P P P (L) 2 JM/s:JM:211-Fin 10/30/97 3378 P — Permitted CO, CG, L = Limited(see Additional Provisions) and CV PC = Conditional use permit approved by Planning Commission Districts ZA = Conditional use permit approved by Zoning Administrator Land Use TU = Temporary Use Permit Controls P/U = Requires conditional use permit on site of conditional use Not Permitted CO CG CV Additional Provisions Commercial Uses (J)(Q)(R) (3341-10/96) Ambulance Services - ZA - Animal Sales & Services Animal Boarding - PC - Animal Grooming - P - Animal Hospitals - PC - Animals: Retail Sales - P - Equestrian Centers - PC - (S) Pet Cemetery - PC - Artists' Studios P P P Banks and Savings & Loans P P P With Drive-Up Service ZA ZA ZA Building Materials and Services - P - Catering Services P P P Commercial Filming P P P (F) Commercial Recreation and Entertainment - PC PC (D) Communication Facilities P P P Eating and Drinking Estab. L-4 L-4 L-4 (N) w/Fast-Food or Take-Out Service ZA ZA ZA Drive Through - L-4 L-4 w/Live Entertainment/Dancing PC PC PC (H) Food & Beverage Sales - P L-2 w/Alcoholic Beverage Sales - ZA ZA (N) Funeral & Internment Services - ZA - Laboratories L-1 L-1 - Maintenance & Repair Services - P - Marine Sales and Services - P P Nurseries - ZA - Offices, Business & Professional P P P (3334) Pawn Shops - ZA - Personal Enrichment Services L-2 L-2 - Personal Services P P P Research & Development Services L-1 ZA - Retail Sales - P P (U)(V) (3265-6/95,3334) Secondhand Appliances/Clothing - P - 3 JM/s:JM:211-Fin 10/30/97 6� 3378 P = Permitted - CO, CG, L = Limited (see Additional Provisions) and CV PC = Conditional use permit approved by Planning Commission Districts ZA = Conditional use permit approved by Zoning Administrator Land Use TU = Temporary Use Permit Controls P/U = Requires conditional use permit on site of conditional use Not Permitted CO CG CV Additional Provisions Tattoo Establishments - PC - Automobile Washing - L-7 - Commercial Parking - PC PC (P) Service Stations - PC PC (E) Vehicle Equip. Repair - L-5 - Vehicle Equip. Sales & Rentals - PC - VehicIe Storage - - - Visitor Accommodations Bed & Breakfast Inns PC PC PC (K) Hotels, Motels - PC PC (I) (3334) Quasi Residential (3334) Time Shares - PC PC (I)(J) (3334) Residential Hotel - PC PC (J) Single Room Occupancy - PC PC (J)(0) Industrial (J)(Q)(R)(V) (3334) Industry, Custom - L-6 L-6 Accessory Uses (J)(V) (3334) Accessory Uses & Structures P/U P/U P/U Temporary Uses (F)(J)(V) (3334) Animal Shows - TU - Circus and Carnivals - TU - Commercial Filming, Limited - P P (M) Real Estate Sales ZA ZA ZA Retail Sales, Outdoor - P P (M) Seasonal Sales P P P (M) Trade Fairs - TU - Nonconforming Uses (G)(J)(V) (3334) 4 JM/s:JM:211-Fin 10/30/97 3378 CO, CG, and CV Districts: Additional Provisions L-1 Permitted if the space is 2,500 square feet or less; allowed with a conditional use permit from the Zoning Administrator if the laboratory space exceeds 2,500 square feet. L-2 Allowed with a conditional use permit from the Zoning Administrator if the space is 2,500 square feet or less; allowed with a conditional use permit from the Planning Commission if the space exceeds 2,500 square feet. L-3 Repealed (3334) L-4 Permitted with a maximum seating capacity of 12; allowed with a conditional use permit from the Zoning Administrator if seating capacity exceeds 12. L-5 Only "limited" facilities are allowed subject to approval of a conditional use permit from the Planning Commission, and body and fender shops are permitted only as part of a comprehensive automobile-service complex operated by a new vehicle dealer. L-6 Only "small-scale" facilities, as described in Use Classifications, are allowed with a conditional use permit from the Zoning Administrator and maximum 7 persons may be employed full time in processing or treating retail products, limited to those sold on the premises. L-7 Attended facilities allowed with a conditional use permit from the Planning Commission; unattended facilities allowed with a conditional use permit from the Zoning Administrator. L-8 On-site storage limited to two rental cars. L-9 Public facilities permitted, but a conditional use permit from the Zoning Administrator is required for commercial facilities. (A) Limited to facilities on sites 2 acres or less. (B) See Section 230.40: Helicopter Takeoff and Landing Areas. (C) Repealed. (D) See Section 230.38: Game Centers; Chapter 5.28: Dance Halls; Chapter 9.24: Card Rooms; Chapter 9.32: Poolrooms and Billiards; and Chapter 9.28: Pinball Machines. (E) See Section 230.32: Service Stations. (F) See Section 241.20: Temporary Use Permits (G) See Chapter 236: Nonconforming Uses and Structures. 5 JM/s:JM:21 1-Fin 10/30/97 C: 3378 (H) For teen dancing facilities, bicycle racks or a special bicycle parking area shall ' be provided. These may not obstruct either the public sidewalk or the building entry. See also Chapter 5.28: Dancing Halls; Chapter 5.44: Restaurants - Amusement and Entertainment Premises, and Chapter 5.70: Adult Entertainment Businesses. (3341-10/96) (I) Only permitted on a major arterial street, and a passive or active outdoor recreational amenity shall be provided, subject to approval of the Planning Commission. (J) In the CV District the entire ground floor area and at least one-third of the total floor area shall be devoted to visitor-oriented uses as described in the certified Local Coastal Program Land Use Plan. Any use other than visitor serving commercial shall be located above the ground level, and a conditional use permit from the Planning Commission is required. Any use other than visitor serving commercial uses shall only be permitted if visitor serving uses are either provided prior to the other use or assured by deed restriction as part of the development. No office or residential uses shall be permitted in any visitor serving designation seaward of Pacific Coast Highway. (3334) (K) See Section 230.42: Bed and Breakfast Inns. (L) See Section 230.44: Recycling Operations. (M) Subject to approval by the Police Department, Public Works Department, Fire Department and the Director. See also Section 230.86 Seasonal Sales. (N) The following businesses proposing to sell alcoholic beverages for on-site or off-site consumption are exempt from the conditional use permit process: (1) Retai 1 markets with no more than 10 percent of the floor area devoted to sales, display, and storage of alcoholic beverages provided the sale of alcoholic beverages is not carried on in conjunction with the sale of gasoline or other motor vehicle fuel. (2) Restaurants, bars, and liquor stores that are located 300 feet or more from any R or PS district, school, church, or public use. (3) Florist shops offering the sale of a bottle of an alcoholic beverage together with a floral arrangement. (0) See Section 230.46: Single Room Occupancy. (P) See Chapter 231 for temporary and seasonal parking. (Q) Development of vacant land or initial construction of a building for permitted use requires approval of a conditional use permit from the Zoning Administrator. (R) Projects within 500 feet of a PS District see Chapter 244. (S) See Section 230.48: Equestrian Centers (T) See Section 230.50: Indoor Swap Meets/Flea Markets 6 JM/s:JM:21 1-Fin 10/30/97 3378 (U) . See Section 230.94: Carts and Kiosks (Note:Not certified by the California Coastal Commission;however, these provisions are in effect and will be enforced by the City Council of Huntington Beach.) (3248-6i95,3334) (V) In the coastal zone,the preferred retail sales uses are those identified in the Visitor Serving Commercial land use designation which provide opportunities for visitor-oriented commercial activities including specialty and beach related retail shops, restaurants, hotels, motels, theaters, museums, and related services. 211.06 CO, CG and CV Districts: Development Standards The following schedule prescribes development standards for the CO, CG and CV districts. The first three columns prescribe basic requirements for permitted and conditional uses in each district. Letters in parentheses in the "Additional Requirements" column refer to standards following the schedule or located elsewhere in the zoning ordinance. In calculating the maximum gross floor area as defined in Chapter 203, the floor area ratio is calculated on the basis of net site area. Fractional numbers shall be rounded down to the nearest whole number. All required setbacks shall be measured from ultimate right-of-way and in accordance with definitions set forth in Chapter 203, Definitions. (Rest of page not used) 7 JM/s:JM:211-Fin 10/30/97 3378 CO, CG and CV DISTRICTS DEVELOPMENT STANDARDS CO CG CV Additional Requirements Residential Development (A)(B) Nonresidential Development (B) Minimum Lot Area(sq. ft.) 10,000 10,000 10,000 (C) Minimum Lot Width (ft.) 100 100 100 Minimum Setbacks Front (ft.) 10 10 - (D)(E)(0) Side (ft.) 5 - - (F) Street Side (ft.) 10 10 - (E) Rear (ft.) 5 - - (F) Maximum Height of Structures (ft.) 40 50 50 (F)(G) Maximum Wall Dimensions (N) Maximum Floor Area Ratio (FAR) 1.0 1.5 1.5 Minimum Site Landscaping (%) 8 8 8 (H)(I) Building Design Standards (0) Fences and Walls (J)(K) Off-Street Parking/Loading (L) Outdoor Facilities See Section 230.74 Screening of Mechanical Equipment See Section 230.76 (M) Refuse Storage Areas See Section 230.78 Underground Utilities See Chapter 17.64 Performance Standards See Section 230.82 Nonconforming Structures See Chapter 236 Signs See Chapter 233 CO, CG, and CV Districts: Additional Development Standards (A) Dwelling units shall be subject to the standards for minimum setbacks, height limits, maximum density, open space, balconies and bay windows, and parking for the RMH District. The setback standards shall apply only to the stories of a building that are intended for residential use. (B) See Section 230.62: Building Site Required and Section 230.64: Development on Substandard Lots. (C) The minimum site area for a hotel or motel is 20,000 square feet. (D) See Section 230.68: Building Projections into Yards and Required Open Space. Double-frontage lots shall provide front yards on each frontage. (E) A minimum 50-foot setback is required along Beach Boulevard, Pacific Coast Highway and Edinger Avenue or 25-foot setback with the setback area entirely landscaped. 8 JM/s:JM:21 1-Fin 10/30/97 3378 (F) Along a side or rear property line abutting an R district, a 10-foot setback is required, and structures within 45 feet of the district boundary shall not exceed 18 feet in height. (G) See Section 230.70: Measurement of Height and Section 230.72: Exceptions to Height Limits. (H) Planting Areas: (1) Required front and street side yards shall be planting areas except properties with 50 foot setback shall provide a minimum 10 foot wide planting area along street frontages. (2) Required side and rear yards shall be planting areas or shall be enclosed by a solid concrete or masonry wall at least 6 feet in height. (3) Hotels and Motels. A 15-foot wide landscaped strip shall be provided along all street frontages, except for necessary driveways and walks. (I) See Chapter 232: Landscape Improvements. (J) See Section 230.88: Fencing and Yards. (K) A solid masonry or concrete wall at least 6 feet in height shall adjoin the site of an existing ground-floor residential use. However, where the portion of the site within 10 feet of the front property line is occupied by planting area or by a building having no openings except openings opposite a street property line, the Director may grant an exception to this requirement. A wall within 15 feet of a street property line shall not exceed 3.5 feet in height. (L) See Chapter 231: Off-Street Parking and Loading. (M) See Section 230.44: Recycling Operations and Section 230.80: Antennae. (N) A front or street side wall surface shall be no longer than 100 feet without a break, a recess or offset measuring at least 20 feet in depth and one-quarter of the building length, or a series of offsets, projections or recesses at intervals of not more than 40 feet that vary the depth of the building wall by a minimum of 4 feet. The Director may grant exceptions or allow these standards to be modified for exceptional or unique structures subject to Design Review, Chapter 244. (Rest of page not used) 9 JM/s:JM:21 1-Fin 10/30/97 3378 2 ft 20ft. � Max.I00 ft..— t00 ft. � � - unbroken wall—' t 25 ft. or more I Single Horizonal Offsets: 20ft. Max. 100 ft. unbroken wall 2 ft. 20ft. 40FT. Min. 4 ft. recess 25 ft. 25% of wall or more must be varied I Variable Offsets: 20 ft.. and 4 ft.. 211-OFFS MAXIMUM WALL LENGTH AND REQUIRED BREAK (0) Two building design standards are established to make commercial areas more attractive and provide a unified streetscape: (1) In the CV District a 10-foot minimum upper-story setback is required above the second story. (Rest of page not used) 10 JM/s:JM:21 1-Fin 10/30/97 3378 Required Setback Max.two stories without vertical break 211-cvse. CV DISTRICT: UPPER-STORY SETBACK (2) In the CO and CV Districts, and on frontages adjacent to major or primary arterials in the CG District at least 40 percent of a building surface may be located at the minimum setback line if additional landscaping is provided on the site. Min. 40 percent of front building elevation at setback line Setback line - - - - - - - - - - - - - - - - 211-FACE.BMP BUILDING FACE AT SETBACK LINE 211.08 Review of Plans All applications for new construction, initial establishment of use, exterior alterations and additions shall be submitted to the Community Development Department for review. Discretionary review shall be required as follows: A. Zoning Administrator Review. Projects requiring a conditional use permit from the Zoning Administrator;projects on substandard lots; see Chapter 241. B. Design Review Board. Projects within redevelopment project areas and areas subject to specific plans; projects within 500 feet of a PS District; see Chapter 244. C. Planning Commission. Projects requiring a conditional use permit from the Planning Commission; see Chapter 241. D. Projects in the Coastal Zone. A Coastal Development Permit is required unless the project is exempt; see Chapter 245. 11 JM/s:JM:21 1-Fin 10/30/97 3378 Chapter 212 1 Industrial Districts Sections: 212.02 Industrial Districts Established 212.04 IG and IL Districts: Land Use Controls 212.06 IG and IL Districts: Development Standards 212.08 Review of Plans 212.02 Industrial Districts Established Two (2) industrial zoning districts are established by this chapter as follows: A. The IG General Industrial District provides sites for the full range of manufacturing, industrial processing, resource and energy production, general service, and distribution. B. The IL Limited Industrial District provides sites for moderate- to low-intensity industrial uses, commercial services and light manufacturing. 212.04 IG and IL Districts: Land Use Controls In the following schedules, letter designations are used as follows: "P" designates use classifications permitted in the I districts. "L" designates use classifications subject to certain limitations prescribed by the "Additional Provisions" which follow. "PC" designates use classifications permitted on approval of a conditional use permit by the Planning Commission. "ZA" designates use classifications permitted on approval of a conditional use permit by the Zoning Administrator. "TU" designates use classifications allowed upon approval of a temporary use permit by the Zoning Administrator. "P/U" for an accessory use means that the use is permitted on the site of a permitted use, but requires a conditional use permit on the site of a conditional use. Use classifications that are not listed are prohibited. Letters in parentheses in the "Additional Provisions" column refer to requirements following the schedule or located elsewhere in this ordinance. Where letters in parentheses are opposite a use classification heading, referenced provisions shall apply to all use classifications under the heading. 1 jmp/k/ordmance/sob212/11/4/97 EXHIBIT C r 3378 IG AND IL P - Permitted DISTRICTS: L - Limited (see Additional Provisions) LAND USE PC - Conditional use permit approved by Planning Commission CONTROLS ZA - Conditional use permit approved by Zoning Administrator TU - Temporary Use Permit P/U -Requires conditional use permit on site of conditional use - - Not Permitted Additional IG IL Provisions Residential Group Residential PC PC W Public and Semipublic (A)(M) Community and Human Service Facilities PC PC (L) Day Care, General PC PC Heliports Maintenance & Service Facilities PC PC (0) Public Safety Facilities P P Religious Assembly L-10 L-10 Schools, Public or Private L-6 L-6 Utilities, Major PC PC Utilities, Minor L-7 L-7 (P) Commercial Uses (D)(M) Ambulance Services ZA ZA Animal Sales and Services Animal Boarding - PC Animal Hospitals - PC Artists' Studios P P Banks and Savings and Loans L-1 L-1 Building Materials and Services P P Catering Services - P Commercial Filming ZA ZA Commercial Recreation and Entertainment L-2 L-2 Communication Facilities P P Eating & Drinking Establishments L-3 L-3 Food & Beverage Sales PC PC Hospitals and Medical Clinics - PC Laboratories P P Maintenance & Repair Services P P Marine Sales and Services P P Nurseries P P Offices, Business & Professional L-1 L-1 (H) 2 jmp/k/ordina nce/sob212/11/4/97 3378 7" IG AND IL P - Permitted DISTRICTS: L - Limited (see Additional Provisions) LAND USE PC - Conditional use permit approved by Planning Commission CONTROLS ZA - Conditional use permit approved by Zoning Administrator TU - Temporary Use Permit P/U -Requires conditional use permit on site of conditional use - Not Permitted Additional IG IL Provisions Personal Enrichment L-9 L-9 Personal Services L-1 L-1 Research & Development Services P P Sex Oriented Businesses (regulated L-11 L-11 by HBMC Chapter 5.70) Sex Oriented Businesses (regulated by HBMC Chapters 5.24 and 5.60) PC PC (R) Swap Meets, Indoor/Flea Markets PC PC (Q) Vehicle/Equipment Sales & Services . Service Stations L-4 L-4 Vehicle/Equipment Repair P P Vehicle/Equip. Sales/Rentals L-5 L-5 Vehicle Storage P ZA (1) Visitor Accommodations PC PC (K) Warehouse and Sales Outlets L-8 L-8 Industrial (See Chapter 204) (B)(M)(N) Industry, Custom P P Industry, General P P Industry, Limited P P Industry, R & D P P Wholesaling, Distribution & Storage P P Accessory Uses Accessory Uses and Structures P/U P/U (C) Temporary Uses Real Estate Sales P P Trade Fairs TU TU (E) Nonconforming Uses (F) 3 jmp/k/ordinance/sob212/11/4/97 3378 IG AND IL Districts: Additional Provisions L-1 Only allowed upon approval of a conditional use permit by the Planning Commission for a mixed use project, subject to the following requirements: Minimum site area: 3 acres Maximum commercial space: 35 percent of the gross floor area and 50 percent of the ground floor area of buildings fronting on an arterial highway. Phased development: 25 percent of the initial phase must be designed for industrial occupancy. For projects over 500,000 square feet, the initial phase must include 5 percent of the total amount of industrial space or 50,000 square feet of industrial space, whichever is greater. L-2 Allowed upon approval of a conditional use permit by the Planning Commission when designed and oriented for principal use by employees of the surrounding industrial development or when designed for general public use, after considering vehicular access and parking requirements. L-3 Allowed upon approval of a conditional use permit by the Planning Commission when in a free-standing structure or as a secondary use in a building provided that no more than 20 percent of the floor area is occupied by such a use. L-4 Only stations offering services primarily oriented to businesses located in an District are allowed with a conditional use permit by the Planning Commission. L-5 No new or used automobile, truck or motorcycle retail sales are permitted. L-6 Only schools offering higher education curriculums are allowed with conditional use permit approval by the Planning Commission. No day care, elementary or secondary schools are permitted. L-7 Recycling Operations as an accessory use are permitted; recycling operations as a primary use are allowed upon approval of a conditional use permit by the Planning Commission. L-8 Allowed upon conditional use permit approval by the Planning Commission when a single building with a minimum area of 100,000 square feet is proposed on a site fronting an arterial. The primary tenant shall occupy a minimum 95% of the floor area and the remaining 5% may be occupied by secondary tenants. L-9 Allowed by conditional use permit approval by the Zoning Administrator if the space is 2,500 square feet or less; allowed by conditional use permit approval by the Planning Commission if the space is over 2,500 square feet. L-10 Allowed by conditional use permit approval by the Zoning Administrator as a secondary use; allowed by conditional use permit approval by the Planning Commission as a primary use for a period of time not to exceed five (5) years. 4 jmp/k/ordinance/sob212/11/4/97 u2 3378 L-11- Allowed subject to the following requirements: A. A proposed sex oriented business shall be at least five hundred feet (500') from any residential use, school, park and recreational facility, or any building used for religious assembly (collectively referred to as a"sensitive use") and at least seven hundred fifty feet (750') from another sex oriented business. For purposes of these requirements, all distances shall be measured from the lot line of the proposed sex oriented business to the lot line of the sensitive use or the other sex oriented business. The term "residential use"means any property zoned RL, RM, JUNIH, RH, RMP, and any properties with equivalent designations under any specific plan. To determine such distances the applicant shall submit for review a straight Iine drawing depicting the distances from the lot line of the parcel of land on which the sex oriented business is proposed which includes all the proposed parking and: 1. the lot line of any other sex oriented business within seven hundred fifty feet (750') of the lot line of the proposed sex oriented business; and 2. the lot line of any building used for religious assembly, school, or park & recreational facility within five hundred (500') feet of the lot line of the proposed sex oriented business; and 3. the lot line of any parcel of land zoned RL, RM, RMH, RH, and RMP and any parcels of land with equivalent designations under any specific plans within hundred feet(500')of the lot line of the proposed sex oriented business. B. The front facade of the building, including the entrance and signage, shall not be visible from any major, primary or secondary arterial street as designated by the Circulation Element of the General Plan adopted May, 1996, with the exception of Argosy Drive. C. Prior to or concurrently with applying for a building permit and/or a certificate of occupancy for the building,the applicant shall submit application for Planning Department Staff Review of a sex oriented business zoning permit with the drawing described in subsection A, a technical site plan, floor plans and building elevations, and application fee. Within ten (10) days of submittal, the Director shall determine if the application is complete. If the application is deemed incomplete, the applicant may resubmit a completed application within ten (10) days. Within thirty days of receipt of a completed application,the Director shall detennine if the application complies with the applicable development and performance standards of the Huntington Beach Zoning and Subdivision Ordinance. Said standards include but are not limited to the following: jmp/1egdraft/212rev/12/1/97 I' 2 3378 1�! 1. Chapter 203, Definitions; Chapter 212, Industrial Districts; Chapter 230, Site Standards; Chapter 231, Off-Street Parking & Loading Provisions; Chapter 232, Landscape Improvements; and Chapter 236, Nonconforming Uses and Structures. 2. Chapter 233.08(b), Signs. Signage shall conform to the standards of the Huntington Beach Zoning and Subdivision Ordinance Code except: a. that such signs shall contain no suggestive or graphic language, photographs, silhouettes, drawings, statues, monuments, sign shapes or sign projections, or other graphic representations, whether clothed or unclothed, including without limitation representations that depict"specified anatomical areas" or "specified sexual activities;" and b. only the smallest of the signs permitted under Chapter 233.08(b) shall be visible from any major, primary or secondary arterial street, such streets shall be those designated in the Circulation Element of the General Plan adopted May, 1996, with the exception of Argosy Drive. 3. Compliance with Huntington Beach Municipal Code Chapter 5.70. D. The Director shall grant or deny the application for a sex oriented business zoning permit for a sex oriented business. There shall be no administrative appeal from the granting or denial of a permit application thereby permitting the applicant to obtain prompt judicial review. E. Ten(10) working days prior to submittal of an application for a sex oriented business zoning permit for Staff Review, the applicant shall: (i) cause notice of the application to be printed in a newspaper of general circulation; and (ii) give mailed notice of the application to property owners within one thousand (1000') feet of the proposed location of the sex oriented business; and the City of Huntington Beach, Department of Community Development by first class mail. The notice of application shall include the following: 1. Name of applicant; 2. Location of proposed sex oriented business, including street address if knovai) and/or lot and tract number; 3. Nature of the sex oriented business, including maximum height and square footage of the proposed development; 4. The City Hall telephone number for the Department of Community Development to call for viewing plans; jmpAegdraft/212rev/12/1/97 33-IY f 5. The date by which any comments must be received in writing by the Department of Community Development. This date shall be ten (10) working days from staff review submittal; and 6. The address of the Department of Community Development. F. A sex oriented business may not apply for a variance pursuant to Chapter 241 nor a special sign permit pursuant to Chapter 233. G. A sex oriented business zoning permit shall become null and void one year after its date of approval unless: 1. Construction has commenced or a Certificate of Occupancy has been issued, whichever comes first; or 2. The use is established. H. The validity of a sex oriented business zoning permit shall not be affected by changes in ownership or proprietorship provided that the new owner or proprietor promptly notifies the Director of the transfer. I. A sex oriented business zoning permit shall lapse if the exercise of rights granted by it is discontinued for 12 consecutive months. jmpAegdraft/212rev/12/1/97 I' 33�5 IG AND IL Districts: Additional Provisions(continued) (A) Limited to facilities on sites of 2 acres or less. (B) A conditional use permit from the Zoning Administrator is required for any new use or enlargement of an existing use, or exterior alterations and additions for an existing use located within 150 feet of an R district. The Director may waive this requirement if there is no substantial change in the character of the use which would affect adjacent residential property in an R District. (C) Accessory office uses incidental to a primary industrial use are limited to 10 percent of the floor area of the primary industrial use. (D) Adjunct office and commercial space, not to exceed 25 percent of the floor area of the primary industrial use, is allowed with a conditional use permit from the Zoning Administrator, provided that it is intended primarily to serve employees of the industrial use, no exterior signs advertise the adjunct use, the adjunct use is physically separated from the primary industrial use, any retail sales are limited to goods manufactured on-site, and the primary industrial fronts on an arterial. (E) See Section 2.41.22: Temporary Use Permits. (F) See Chapter 236: Nonconforming Uses and Structures. (H) Medical/dental offices, insurance brokerage offices, and real estate brokerage offices, except for on-site leasing offices, are not permitted in any I District. Administrative, management, regional or headquarters offices for any permitted industrial use, which are not intended to serve the public, require a conditional use permit from the Zoning Administrator to occupy more than 10 percent of the total amount of space on the site of the industrial use. (1) Automobile dismantling, storage and/or impound yards may be permitted subject to the approval of a conditional use permit by the Planning Commission and the following criteria: (a) The site shall not be located within 660 feet of an R district. (b) All special metal cutting and compacting equipment shall be completely screened from view. (c) Storage yards shall be enclosed by a solid 6-inch concrete block or masonry wall not less than 6 feet in height and set back a minimum 10 feet from abutting streets with they entire setback area permanently landscaped and maintained. (d) Items stacked in the storage yard shall not exceed the height of the screening walls or be visible from adjacent public streets. (J) Limited to facilities serving workers employed on-site. 7 jmp/k/ordinance/sob212/11/5/97 33-78 IG AND IL Districts: Additional Provisions - (continued) (K) See Section 230-46: Single Room Occupancy. (L) Limited to Emergency Shelters. (M) New construction and initial establishment of a permitted use shall be subject to the approval of a conditional use permit by the Zoning Administrator unless Planning Commission approval is required. Change of use shall be subject to the approval of the Director unless the new use requires approval of a conditional use permit. (N) Major outdoor operations require conditional use permit approval by the Planning Commission. Major outside operations include storage yards and uses utilizing more than 1/3 of the site for outdoor operation. (0) See Section 230.40: Helicopter Takeoff and Landing Areas. (P) See Section 230.44: Recycling Operations. (Q) See Section 230.50: Indoor Swap Meets/Flea Markets (R) See L-11(A) relating to locational restrictions. 212.06 IG AND IL Districts: Development Standards The following schedule prescribes development standards for the I Districts. The first two columns prescribe basic requirements for permitted and conditional uses in each district. Letters in parentheses in the "Additional Requirements" column reference requirements following the schedule or located elsewhere in this ordinance. In calculating the maximum gross floor area as defined in Chapter 203, the floor area ratio is calculated on the basis of net site area. Fractional numbers shall be rounded down to the nearest whole number. All required setbacks shall be measured from ultimate right-of-way and in accordance with definitions set forth in Chapter 203, Definitions. Additional Requirements IG IL Residential Development (M) Nonresidential Development Minimum Lot Area (sq. ft.) 20,000 20,000 (A)(B)(N) Minimum Lot Width (ft.) 100 100 (A)(B) Minimum Setbacks (A)(C) Front (ft.) 10;20 10;20 (D) Side (ft.) - 15 (E)(F) Street Side (ft.) 10 10 8 jmp/k/ordinance/sob212/11/5/97 33 3 Rear (ft.) - - (E) Maximum Height of Structures (ft.) 40 40 (G) Maximum Floor Area Ratio (FAR) 0.75 0.75 Minimum Site Landscaping (%) 8 8 (H)(1) Fences and Walls See Section 230.88 Off-Street Parking and Loading See Chapter 231 (J) Outdoor Facilities See Section 230.74 Screening of Mechanical Equipment See Section 230.76 (K) Refuse Storage Area See Section 230.78 Underground Utilities See Chapter 17.64 Performance Standards See Section 230.82 (L) Nonconforming Uses and Structures See Chapter 236 Signs See Chapter 233 (rest of page not used) 9 jmp/k/ordinance/sob212/11/4/97 33-78 IG AND IL Districts: Additional Development Standards (A) See Section 230.62: Building Site Required and Section 230.64: Development on Substandard Lots. (B) Smaller lot dimensions for new parcels may be permitted by the Zoning Administrator with an approved development plan and tentative subdivision map. (C) See Section 230.68: Building Projections into Yards and Required Open Space. Double-frontage lots shall provide front yards on each frontage. (D) The minimum front setback shall 10 feet and the average setback 20 feet, except for parcels fronting on local streets where only a 10 foot setback is required. All I Districts: An additional setback is required for buildings exceeding 25 feet in height (1 foot for each foot of height) and for buildings exceeding 150 feet in length (1 foot for each 10 feet of building length) up to a maximum setback of 30 feet. (E) In all I districts, a 15-foot setback is required abutting an R district and no openings in buildings within 45 feet of an R district. (F) A zero-side yard setback may be permitted in the I districts, but not abutting an R district, provided that a solid wall at the property line is constructed of maintenance- free masonry material and the opposite side yard is a minimum of 30 feet. Exception. The Zoning Administrator or Planning Commission may approve a conditional use permit to allow a 15-foot interior side yards opposite a zero-side yard on one lot, if an abutting side yard at least 15 feet wide is provided and access easements are recorded ensuring a minimum 30-foot separation between buildings. This 30-foot accessway must be maintained free of obstructions and open to the sky, and no opening for truck loading or unloading shall be permitted in the building face fronting on the accessway unless a 45-foot long striped areas is provided solely for loading and unloading entirely within the building. (G) See Section 230.70: Measurement of Height. Within 45 feet of an R district, no building or structure shall exceed a height of 18 feet. (H) Planting Areas. Required front and street-side yards adjacent to a public right-of- way shall be planting areas except for necessary drives and walks. A 6-foot wide planting area shall be provided adjacent to an R district and contain one tree for each 25 lineal feet of planting area. (1) See Chapter 232: Landscape Improvements. (J) Truck or rail loading, dock facilities, and the doors for such facilities shall not be visible from or be located within 45 feet of an R district. (K) See Section 230.80: Antennae. 10 jmp/k/ordinance/sob212/11/4/97 33iP IG AND IL Districts: Additional Development Standards - (continued) (L) Noise. No new use shall be permitted, or exterior alterations and/or additions to an existing use allowed, within 150 feet of an R district until a report prepared by a California state-licensed acoustical engineer is approved by the Director. This report shall include recommended noise mitigation measures for the industrial use to ensure that noise levels will conform with Chapter 8.40 of the Municipal Code. The Director may waive this requirement for change of use or addition or exterior alteration to an existing use if it can be established that there had been no previous noise offense, that no outside activities will take place, or if adequate noise mitigation measures for the development are provided. (M) Group residential or accessory residential uses shall be subject to standards for minimum setbacks and height of the RH District. 212.08 Review of Plans All applications for new construction and exterior alterations and additions shall be submitted to the Community Development Department for review. Discretionary review shall be required as follows: A. Zoning Administrator Review. Projects requiring a conditional use permit from the Zoning Administrator; projects including a zero-side yard exception; projects on substandard lots. B. Design Review Board. Projects within redevelopment project areas and areas within 500 feet of a PS district; see Chapter 244. C. Planning Commission. Projects requiring a conditional use permit from the Commission. D. Projects in the Coastal Zone. A Coastal Development Permit is required unless the project is exempt; see Chapter 245. 11 jmp/k/ordinance/sob212/11/4/97 33-78 Chapter 231 Off-Street Parking andloading Provisions,- Sections: 231 02 Basic Requirements for Off-Street Parking and Loading 231 04 Off-Street Parking and Loading Spaces Required 23106 Joint Use Parking 231 08 Reduced Parking for Certain Uses 231 10 Parking In-Lieu Payments Within Downtown Specific Plan Area 231 12 Parking Spaces for the Handicapped 231 14 Parking Space Dimensions 231 16 Application of Dimensional Requirements 231 18 Design Standards 23120 Compact Parking 23122 Driveways; Visibility 23124 Landscape Improvements 231 26 Parking Area Plan Required 23128 Oceanside or On-Street Parking within the Coastal Zone 231.02 Basic Requirements for Off-Street Parking and Loading A. When Required At the time of initial occupancy of a site, construction of a structure, or major alteration or enlargement of a site or structure, off-street parking facilities and off-street loading facilities shall be provided in accord with this chapter and parking area landscaping shall be provided in accord with Chapter 232 For the purposes of these requirements, "major alteration or enlargement" shall mean a change of use, an expansion of greater than 50 percent of the existing space in a non-residential budding or an addition of bedrooms or units in a residential building A change in occupancy that does not involve a change in the use classification is not considered a change in use for purposes of this requirement unless the change in occupancy involves an intensification of use or an increase in parking demand B Nonconforming Parking or Loading No existing use of land or structure shall be deemed to be nonconforming solely because of the lack of off-street parking or loading facilities required by this chapter, provided that facilities being used for off-street parking and loading as of the date of adoption of this chapter shall not be reduced in number to less than that required by this chapter Expansion of a use with nonconforming parking shall be subject to the following requirements 1. A multi-family residential use with nonconforming parking may be expanded by adding bedrooms or additional units provided that the expansion complies with current standards contained in this chapter, 1 jmp/k/ordinance/sob231/11/4/97 EXHIBIT D 33,78 2. A single-family residence with nonconforming parking may be expanded by adding bedrooms provided the dwelling complies with current standards contained in this chapter; and 3. A nonresidential use with nonconforming parking may be expanded less than 50 percent of the existing square footage or intensified if additional parking is provided for the expansion or intensification. Expansions of 50 percent or more of the existing square footage require the site to be in total compliance with the:current parking standards contained in this chapter. C. -Spaces Required for Alteration or Enlargement. The number of parking spaces or loading spaces required for an alteration or enlargement of an existing use or structure, or for a change of occupancy, shall be in addition to the number of spaces existing prior to the alteration, enlargement, or change of occupancy unless the preexisting number is greater than the number prescribed in this chapter. In this case, the number of spaces in excess of the prescribed minimum shall be counted in determining the required number of parking or loading spaces. D. Spaces Required for Multiple Uses. If more than one use is located on a site, the number of off-street parking spaces and loading spaces to be provided shall be equal to the sum of the requirements prescribed for each use. This requirement applies not only to multiple uses under separate ownership but also to multiple uses in the same ownership. If the gross floor area of individual uses on the same site is less than that for which a loading space would be required by Section 231.06A, but the aggregate gross floor area of all uses is greater than the minimum for which loading spaces would be required, the aggregate gross floor area shall be used in determining the required number of loading spaces. E. Location and Ownership. Parking facilities required by this chapter shall be on the same site as the use served, except that an adjacent lot may be used which is in the same person's possession as the structure or use. Such possession may be by deed or long-term lease, approved as to form by the City Attorney, and recorded in the Office of the County Recorder. A copy of the recorded document stipulating the reservation of the property for parking purposes shall be filed with the City prior to issuance of a building permit and/or certificate of occupancy, whichever occurs first. No use shall be continued if the parking is removed from the adjacent lot unless substitute parking is provided. Parking facilities provided by a parking district or parking authority are not subject to these locational requirements. 1. Parking in Yards in R Districts. The parking of motor vehicles, trailers, campers and boats shall be prohibited on all landscaped areas within the front one-half of the lot except as provided below. (a) Oversized vehicles (see Definitions Chapter 203), campers, trailers and boats on trailers may be parked on the paved driveway area or on a paved area between the driveway and the nearest side property line provided that they do not project over any property line and that the area is kept free of trash, debris and parts. 2 jmp/k/ordinance/sob231/11/4/97 3 37R (b) Commercial oversized vehicles (see Definitions Chapter 203) or special purpose machines shall be prohibited in any yard area. 2. Parking in Yards in C or I Districts. Required yards may be used for required parking, subject to the landscaping standards of Chapter 232. 3. Access. When a lot abuts an arterial highway and a local street, access to on-site parking shall be from the local street. When a lot abuts an alley, then access to parking shall be provided from the alley unless the Planning Commission approves a different access. When a lot abuts two arterial highways or two local streets, access shall be subject to the approval of the Director of Public Works. 4. Non-residential Parking in R Districts. Non-residential parking serving adjacent commercial or industrial uses shall not be located in any R zoned property. F. Computation of Spaces Required. If, in the application of the requirements of this chapter, a fractional number is obtained, one additional parking space or loading space shall be required. G. Other Requirements 1. Any off-street parking or loading facility which is permitted but not required shall comply with all provisions of this chapter governing location, design, improvement and operation. 2. Any motor vehicle incapable of movement by its own power and/or not licensed to operate on California streets shall be stored either in an enclosed building or entirely screened from view. 231.04 Off-Street Parking and Loading Spaces Required A. Non-residential uses shall provide one loading space (minimum fourteen [14] feet in width, twenty [20] feet in length, and fourteen (14] feet in height) for each 20,000 square feet, or fraction thereof, of gross floor area; however, a maximum of three (3) such spaces are required for buildings exceeding 60,000 square feet. No loading space is required for non-residential uses with less than 20,000 square feet of gross floor area. B. Off-street parking spaces shall be provided in accord with the following schedule. References to spaces per square foot are to be computed on the basis of gross floor area, unless otherwise specified. Where the use is undetermined, the approving body shall determine the probable use and the number of parking and loading spaces required. In order to make this determination, the Director may require the submission of survey data prepared by a state-registered traffic engineer for the applicant or collected at the applicant's expense. Parking spaces over and above the minimum number specified in this section may be required by the body responsible for reviewing the use itself based on the intensity of the use. 3 jmp/k/ord inance/sob231/11/4/97 I 3 3-7 OFF-STREET PARKING SPACES REQUIRED: SCHEDULE A Use Classification Spaces Residential Single-family Dwellings New construction 0-4 bedrooms 2 enclosed and 2 open 5 or more bedrooms 3 enclosed per unit and 3 open per unit Existing Dwellings 0-4 bedrooms 2 enclosed and 2 open' 5 or more bedrooms 2 enclosed per unit and 3 open per unit' In the RMH-A district 2 enclosed spaces per unit with up to three bedrooms, and 1 space for each additional bedroom; 1 additional space per dwelling where no on-street parking is allowed Multi-family Dwellings Studio/one bedroom 1 enclosed space per unit 2 bedrooms 2 spaces (1 enclosed) per unit 3 or more bedrooms 2.5 spaces (1 enclosed) per unit Guests 0.5 space per unit 'Open spaces may be behind any required spaces and/or on a street adjacent to the property. On-street parking may not be reserved for residents and/or guests but must be available to the general public on a first-come, first-serve basis. (Rest of page not used) 4 jmp/k/ord ina nce/sob231/11/4/97 3378 OFF-STREET PARKING SPACES REQUIRED: SCHEDULE A Use Classification Off-Street Parking Spaces Senior Studio/one bedroom 1 covered space per unit Two bedrooms 1.5 spaces per unit (1 covered) Manufactured Homes 2 spaces per unit; one covered, and one may be behind the first Guest 1 per 3 manufactured homes Rooming House 1 space per guest room plus 1 space per owner/manager plus 1 space per each 10 guest rooms Residential Care, Limited 1 per 3 beds Public and Semi-public Clubs and Lodges 1 per 35 sq. ft. used for assembly purposes of 1 per 3 fixed seats (18 inches = one seat), whichever is greater Cultural Facilities 1 per 300 sq. ft. gross floor area Day Care, General 1 per staff member plus one per classroom Government Offices 1 per 250 sq. ft. gross floor area Heliports As specified by use permit Hospitals 1 per 1.5 beds Maintenance and Service Facilities 1 per 500 sq. ft. Park and Recreation Facilities As specified by conditional use permit for private facilities Public Safety Facilities As specified by the conditional use permit Religious Assembly 1 per 35 sq. ft. of public assembly area, or 1 per 3 fixed seats (18 inches = 1 seat), whichever is greater Residential Care, General 1 per 3 beds; plus additional spaces, as specified by conditional use permit Schools, Public or Private Preschools, nursery day 1 per staff member, plus one per classroom care Elementary, junior high 1.5 per classroom High school/college 7 per classroom 5 jmp/k/ordinance/sob231/11/4/97 3378 OFF-STREET PARKING SPACES REQUIRED: SCHEDULE A (continued) Use Classification Off-Street Parking Spaces Trade schools, music 1 per 35 sq. ft. of instruction area conservatories Utilities, Major As specified by conditional use permit Commercial Ambulance Services 1 per 500 sq. ft.; plus 2 storage spaces Animal Sales and Services Animal boarding 1 per 200 sq. ft. Animal grooming 1 per 200 sq. ft. Animal hospitals 1 per 200 sq. ft. Animal, retail sales 1 per 200 sq. ft. Artists' Studios 1 per 1,000 sq. ft. Banks and Savings & Loans 1 per 200 sq. ft. Drive-Up Service Queue space for 5 cars per teller Building Materials and Services 1 per 1,000 sq. ft. of lot area; minimum 10 plus 1/300 sq. ft. office area Catering Services 1 per 400 sq. ft. Commercial Recreation and Entertainment Bowling Alleys 3 per lane, plus 1 per 250 sq. ft. of public assembly and retail areas Electronic Game Centers 1 per 200 sq. ft. Health Clubs 1 per 200 sq. ft. Stables 1 per 3 corrals plus 1 horse trailer space for each 10 corrals plus 2 for caretaker's unit Tennis/Racquetball 3 per court Theaters 1 per 3 fixed seats, or 1 per 35 sq. ft. seating area if there are no fixed seats Other Commercial As specified by the Zoning Administrator or Recreation and Planning Commission Entertainment Communications Facilities 1 per 500 sq. ft. Eating and Drinking Establishments with less than 12 seats 1 per 200 sq. ft. with more than 12 seats 1 per 60 sq. ft. or 1 per 100 sq. ft. when on a site with 3 or more uses 6 jmp/k/ordinance/sob231/11/4/97 3 3�8 OFF-STREET PARKING SPACES REQUIRED: SCHEDULE A (continued) Use Classification Off-Street Parking Spaces with dancing Plus 1 per 50 sq. ft. of dancing area with drive through service Plus queue space for 5 cars per service window Food and Beverage Sales 1 per 200 sq. ft. Furniture and Appliance Stores 1 per 500 sq. ft. excluding areas used for storage or loading, but not less than 5 Funeral and Interment Services 1 per 35 sq. ft. of seating space Hardware Stores 1 per 200 sq. ft. excluding areas used for storage or loading, but not less than 5 Horticulture, Limited 1 per 2 acres Laboratories 1 per 500 sq. ft. Maintenance and Repair Services 1 per 500 sq. ft. Marine Sales and Services 1 per 500 sq. ft. Nurseries 1 per 1,000 sq. ft. of indoor/outdoor sales and/or display lot area accessible for public viewing, but no less than 10; plus 1 per 300 sq. ft. office area Offices, Business and Professional 1 per 250 sq. ft. for less than 250,000 sq. ft.; 1 per 300 sq. ft. for 250,000 sq. ft. or more Offices, Medical and Dental 1 per 175 sq. ft. (includes out-patient medical/surgery centers) Pawn Shops 1 per 200 sq. ft. Personal Enrichment Services 1 per 35 sq. ft. of instruction area Personal Services 1 per 200 sq. ft. Research and Development 1 per 500 sq. ft. Services Retail Sales Not Listed Under 1 per 200 sq. ft. Another Use Classification Sex Oriented Business Cabaret with less than 12 seats, 1 per 200 sq. ft.; with 7 jmp/k/ordina nce/sob231/11/4/97 33-7S? 12 seats or more, 1 per 60 sq. ft. or 1 per 100 sq. ft. if on a site with three or more uses Encounter center 1 per 35 sq. ft. of instruction area Escort bureau 1 per 250 sq. ft. Hotel/Motel 1.1 per guest room; plus 1 per passenger transport vehicle (minimum of 2 stalls) and 2 spaces for any manager's unit and parking for other uses as required by this schedule Mini-motion picture 1 per 3 fixed seats, or 1 per 35 sq. ft. seating theater, motion area if there are no fixed seats picture theater or motion picture arcade Retail sales 1 per 200 sq. ft. Swap Meets, Indoor/Flea Markets 1/100 sq. ft. except as may be modified by the Planning Commission through the conditional use permit process, after submittal, review and approval of a traffic engineering study (Rest of page not used) 8 jmp/k/ordina nce/sob231/11/26/97 3378 OFF-STREET PARKING SPACES REQUIRED: SCHEDULE A (continued) Use Classification Off-Street Parking Spaces Vehicle/Equipment Sales and Services Automobile Rentals 1 per 1,000 sq. ft. of indoor/outdoor sales and/or display lot area accessible for public viewing, but no less than 10; plus 1/300 sq. ft. office area; 1/200 sq. ft. auto service area Automobile Washing (Car Wash) Full-service 10 (attended) With fuel sales 12 Self-service (unattended) 1.5 per wash stall Service Stations full-serve/repair garage 1 per 500 sq. ft. but no less than 5 self-serve 2 with convenience 1 per 200 sq. ft. of retail space but no less markets than 8 with self-serve car wash 4 with self-serve car wash 10 and convenience market Vehicle/Equipment Repair 1 per 200 sq. ft. but no less than 5 Vehicle/Equipment Sales 1 per 1,000 sq. ft. of indoor/outdoor sales and Rentals and/or display lot area accessible for public viewing, but no less than 10; plus 1 per 300 sq. ft. office area; 1 per 200 sq. ft. auto service area Vehicle Storage 1 per 5,000 sq. ft. lot area; no less than 5 Visitor Accommodations: Bed and Breakfast 1 per guest room plus 1 guest and 1 manager/owner space Hotels, Motels 1.1 per guest room; plus 1 per passenger transport vehicle (minimum of 2 stalls) and 2 spaces for any manager's unit and parking for other uses as required by this schedule Single Room Occupancy, 0.5 per unit if project is within 2,000 feet of Residential Hotels public bus stop; 1.0 per unit if project is not within 2,000 feet of public bus stop; plus 1.0 per each resident staff member and 0.5 per all remaining personnel Warehouse and Sales Outlets 1 per 200 sq. ft. Industrial 9 jmp/k/ord in ante/sob231/11/4/97 337.P Speculative buildings 1 per 500 sq. ft. (maximum 10% office area) Manufacturing, research assembly, 1 per 500 sq. ft. packaging Wholesaling, warehousing and 1 per 1,000 sq. ft. distributing space (Rest of page not used) 10 jmp/k/ordinance/sob231/11/4/97 3 37R 7" OFF-STREET PARKING SPACES REQUIRED: SCHEDULE A (continued) Use Classification Off-Street Parking Spaces Offices 1 per 250 sq. ft. if office area exceeds 10 percent of gross floor area Outside uses: Storage, wrecking/ 1 per 5,000 square feet of lot area, but no salvage and lumber yards less than 5 Mini-storage facilities Single-story 1 per 5,000 square feet Each additional story 1 per 2,000 square feet plus 2 spaces for any caretaker's unit 231.06 Joint Use Parking In the event that two (2) or more uses occupy the same building, lot or parcel of land, the total requirement for off-street parking shall be the sum of each individual use computed separately except as provided in this section. The Planning Commission or Zoning Administrator may grant a reduction in the total number of required spaces as part of the entitlement for the use or uses, or by conditional use permit when no other entitlement is required, when the applicant can demonstrate that the various uses have divergent needs in terms of daytime versus nighttime hours or weekday versus weekend hours. Such joint use approvals shall be subject to the following: 1. The maximum distance between the building or use and the nearest point of the parking spaces or parking facility shall be 250 feet; and 2. There shall be no conflict in the operating hours based on parking space requirements for the different uses on the parcel; and 3. Evidence of an agreement for such joint use shall be provided by proper legal instrument, approved as to form by the City Attorney. The instrument shall be recorded in the Office of the County Recorder and shall be filed with the City prior to issuance of building permit and/or certificate of occupancy, whichever occurs first. 231.08 Reduced Parking for Certain Uses A. The Planning Commission may approve a conditional use permit reducing the number of spaces to less than the number specified in the schedule in Section 231.04, provided that the following findings are made: 1. The parking demand will be less than the requirement in Schedule A; and 2. The probable long-term occupancy of the building or structure, based on its design, will not generate additional parking demand; and 11 jmp/k/ordinance/sob231/11/4/97 33�5 3. A Transportation Demand Management plan which exceeds the minimum required by Section 230.36 has been approved by the Director. B. In reaching a decision, the Planning Commission shall consider survey data prepared by a state-registered traffic engineer that is submitted by an applicant or collected at the applicant's request and expense. 231.10 Parking In-Lieu Payments Within Downtown Specific Plan Area Parking requirements for private property uses within the Downtown Specific Plan Area may be met by payment of an "in-lieu" fee for providing parking in a parking facility subject to conditional use permit approval by the Planning Commission. Said fee may be paid in multiple installments. The first installment in an amount established by City Council Resolution for each parking space shall be paid prior to the issuance of building permits or of a certificate of occupancy, whichever comes first. Any successive installments shall be paid and secured by a mechanism established in the conditions of approval. 231.12 Parking Spaces for the Handicapped New and existing parking facilities shall comply with the State Handicapped Regulations as mandated in State law. 231.14 Parking Space Dimensions Required parking spaces shall have the following minimum dimensions in feet. Striping requirements are depicted,in Diagram A. Directional signs and/or pavement markings shall be provided in any facility in which one-way traffic is established. Angle of Stall Stall Aisle Width' Parking Width Depth 1-way 2-way 00 9 19 (with 8 ft. Striped 12 20 (Parallel) maneuvering area between every 2 spaces) 300 9 19 14 20 450 9 19 15 20 600 9 19 20 20 900 9 19 26 26 Residential 9 19 25 25 Compact 8 17 subject to Section 231.20 12 imp/k/ordinance/sob231/11/4/97 33-7k 'Minimum 24 feet when determined by Fire Department to be a fire lane. _ 300 ,45° & 60°Parking oa 2 O 4�* rg o v, A' i' o� 040 40.1- F 90° Parking 24 In. Exterior i Dimension 0 19 Ft. i 18 In. Interior Dimension I Parallel Parking 9 ft. \ I, 8 ft. I_ 19 ft. _I_ 19 ft. _I_ 8 ft�l O:%Dr"DRAWW1STRP.BM STRIPING REQUIREMENTS DIAGRAM A 13 jmp/k/ord inance/sob231/11/4/97 33�8 231.16 Application of Dimensional Requirements A. Relation to Walls and Posts/Columns. A parking space on a site with more than five (5) parking spaces and which is adjacent to a wall over twelve (12) inches in height shall be increased in width by three (3) feet. Post/columns may be permitted along the side of each space only within three (3) feet of the head and foot of each stall. B. Vertical Clearance. Vertical clearance for parking spaces shall be 7 feet, except that an entrance may 6.67 feet. When handicapped parking is provided, vertical clearance shall comply with California Code of Regulations (Title 24, Part 2, Chapter 2-71). For residential uses, non-structural improvements including wall-mounted shelves, storage surface racks, or cabinets may encroach into the vertical clearance, provided a minimum 4.5 feet vertical clearance is maintained above the finished floor of the garage within the front 5 feet of a parking space. C. Wheel Stops. All spaces shall have wheel stops 2.5 feet from a fence, wall, building or walkway. D. Parking Space Dimension Reduction. When a parking space abuts a landscape planter, the front 2 feet of the required 19 foot length for a parking space may overhang the planter as provided in Chapter 232. 231.18 Design Standards A. Public Works Requirements. Drive entrances on arterial highways shall be located in a manner to coordinate with future median openings and in accord with Department of Public Works standards. The paved surface of driveways and drive entrances shall comply with Department of Public Works specifications. Parking facilities shall be prepared, graded, and paved to ensure that all surface waters will drain into a public street, alley, storm drain, or other drainage system approved by the Department of Public Works. Aisle ways without adjacent parking shall be a minimum 24 feet in width. B. Circulation Design. All off-street parking spaces shall have access to a public street or alley, and shall have internal circulation, safe entrances and exits, drives, and aisles in conformance with City standards. Every required parking space shall have unobstructed access from an aisle without moving another vehicle. All parking spaces,'except residential garages and carports for single- family dwellings and duplexes, shall have forward travel to and from parking facilities when access is to a dedicated street. Traffic circulation shall be designed so that no vehicle need enter a public street in order to progress from one aisle to any other aisle within the same development. Commercial centers which have 200 parking spaces or more shall have at least one main entrance designed as depicted in Diagram B. 14 jmp/k/ordinance/sob231/11/4/97 I I I I I 4% I I 724L P4ft.4ft ' G.1DM170RAIY{771{/IrdY COMMERCIAL CENTER MAIN ENTRANCE FOR PARKING LOTS WITH OVER 200 SPACES DIAGRAM B A minimum 3-foot-by-3-foot-wide maneuvering area shall be provided at the end of dead-end parking aisles less than 150 feet in length. A vehicle turnaround space shall be provided at the end of all dead-end parking aisles which exceed 150 feet in length (measured from the closest intersecting aisle with complete circulation). The maneuvering area and turnaround space shall be designed as depicted in Diagram C. Other turnaround arrangements providing the same maneuverability are subject to approval by the Director. 2 ft. Wheel I Maneuvering 19 ft. I, stop I area I 9 ft. 26 ft. }} I aft aft 12"Step off area G:1DMDMYM31-MD.BMP TURN-AROUND SPACE AND MANEUVERING AREA DIAGRAM C 15 jmp/k/ordinance/sob231/11/4/97 .33-7,P C. -Illumination. All parking area lighting shall be energy-efficient and designed so as not to produce glare on adjacent residential properties. Security lighting shall be provided in areas accessible to the public during nighttime hours, and such lighting shall be on a time-clock or photo-sensor system. D. Residential parking, 1. Garages and Carports. All required garages and carports, permitted as accessory structures, shall be constructed at the same time as the main building and shall be used only by persons residing on the premises for storage of personal vehicles and other personal property. 2. Assignment of Spaces. Each studio and one bedroom dwelling unit shall have a minimum of one assigned parking space and each two or more bedroom units shall have a minimum of two assigned parking spaces. Each dwelling unit shall have an enclosed, assigned space which shall be within 200 feet walking distance of that unit and designated as such. The assigned spaces shall be provided with the rental of a dwelling unit without any additional cost. All unassigned spaces provided on site shall be open and only used for the parking of vehicles by persons residing on the property or their guests. 3. Turning Radius. The minimum turning radius for any garage, carport or open parking space, entered directly from an alley or driveway, shall be 25 feet. (See Diagram D) STREET It.2GA AGE - -- - --- 10 --------AL-LEY-- L F; DRIVEWAY STREET STREET G:lDIV9DRAW1231-TUR N.BMP TURNING RADIUS DIAGRAM D 16 jmp/k/ord ina nce/sob231/11/4/97 -3 4. Driveway Width. Length of Drive Minimum Driveway Width 150 feet or less 10 ft. for single family dwellings 20 ft. for multi-family dwellings Greater than 150 feet 20 feet clear width Exception: when designated as fire lane, all Fire Department requirements shall apply. 5. Guest Parking.. All guest parking shall be fully accessible. 6. Coastal Zone. Each dwelling unit located in the Coastal Zone shall have a minimum of 2 on-site parking spaces. If the total coastal parking requirements exceed the total minimum parking as required by this chapter, the additional required parking spaces may be in tandem with enclosed spaces, provided the tandem space is assigned to an enclosed space and complies with the required turning radius. 7. Planned Residential Developments. In a planned residential development where a garage is constructed a minimum of 20 feet from the curb, the driveway in front of the garage may be used to provide one of the required uncovered spaces. 8. Driveway Air Space. The air space above all driveways which exceed 150 feet in length shall remain open to the sky, except that eaves or roof overhangs with a maximum 4-foot projection may be permitted above a height of 14 feet. 9. Storage Space. 100 cubic feet of enclosed storage space for each unit shall be provided in a secured parking area where there is no private garage. 10. Accessory Dwelling. One additional off-street parking space shall be required for an accessory dwelling, except that in the coastal zone there shall be a minimum of four (4) parking spaces on-site. E. Non-residential Parking and Loading. 1. Designated Parking_ Parking spaces within an integrated, non-residential complex shall not be designated for exclusive use of any individual tenant except as authorized by a parking management plan approved by the Director. 2. Parking Controls. Parking controls, such as valet service, gates or booths, and/or collection of fees may be permitted when authorized by conditional use permit approval by the Planning Commission. 3. Minimum Driveway Width, 25 feet when providing access to the rear of a structure. 17 jmp/k/ordinance/sob231/11/4/97 33-7? 4. _ Reciprocal Access. Reciprocal ingress/egress access with adjacent properties shall be provided for all commercial properties. 5. Loadina Location. On a site adjoining an alley, a required loading space shall be accessible from:the alley unless alternative access is approved by the Director. An occupied loading space shall not prevent access to a required parking space. ;Truck or rail loading, dock facilities, and doors for such facilities shall not face or be located within 45 feet of property zoned or general planned residential. 6. Loading Design. Any loading facility shall be designed and located so that vehicles need not extend onto the public sidewalks, streets or alleys during loading activities.: 7. Landscape Buffer, Where the side or rear yard of a parcel is used for loading activities and abuts an R District, a landscaped buffer along the property line shall be provided. F. Seasonal and Temporary Parking Lots. Seasonal and temporary parking lots may be allowed upon approval of a conditional use permit by the Zoning Administrator. Seasonal lots may operate only from Memorial Day through the third weekend in September and shall be located within 1,000 yards of the mean high tide line of the Pacific Ocean. Temporary and seasonal commercial parking lots may be permitted for a maximum of five years. The design and layout of seasonal and temporary parking lots shall comply with this chapter, Fire Department requirements, and the following standards: 1. Paving shall be 2 inches of asphalt over compacted native soil, or as approved by the Department; except seasonal parking lots shall be surfaced to meet minimum specifications for support of vehicles and to provide dust control as required by the Zoning Administrator. 2. Boundaries of such lots shall be marked off and secured by chain or cable, with posts a minimum of 3 feet in height, solidly built. At a minimum, posts shall consist of 4" x 4" wood or equivalent metal posts a minimum of 1-1/2 inches in diameter securely set in the ground and placed 8 feet on center. The posts shall be connected with at least 1 strand of 1/2-inch cable or chain securely fastened to each post. An opening shall be provided to accommodate vehicle access during business hours. Seasonal lots shall be secured to prevent overnight parking between the closing hour on one business day and the opening hour the-following business day. 3. Temporary parking lots shall have landscaped planters with an inside dimension of 3 feet along street-side property lines excluding driveways. Landscaping shall be protected from vehicle and pedestrian damage by wheel bumpers (asphalt, concrete, or wood), or asphalt or concrete curbs, or any other design that will provide adequate protection. 4. Seasonal parking lots are exempt from landscaping requirements of Chapter 232. 5. Directional and informational signs shall be displayed on-site to identify the entrance(s), fees, and hours of operation. Such signs shall be located 18 jmp/k/ordina n ce/sob231/11/4/97 33-78 at the entrance of the parking lot and shall not exceed 12 square feet and shall be 6 feet high. Signs for seasonal parking lots shall be removed from the site each season no later than the third weekend in September. 6. Automatic entry devices or fee collection points shall be set back a minimum of 20 feet from the public right-of-way, or at a distance recommended by the Department of Public Works and approved by the Director. 7. An attendant shall be on duty at all times during business hours of seasonal parking lots. 8. An approved fire extinguisher shall be provided on the premises during business hours. 9. The site shall be maintained in a clean condition, free from trash and debris. Trash containers shall be placed on the site to accommodate and store all trash that accumulates on the lot. For seasonal parking lots, a certificate of insurance for combined single limit bodily injury and/or property damage including products liability in the amount of$1,000,000 per occurrence shall be filed with the Department of Administrative Services. A hold harmless agreement holding the City harmless shall also be filed with the Department of Administrative Services. Subsequent to approval of an application for any seasonal or temporary parking lot, the applicant shall meet all standards and requirements and install all improvements. The parking lot shall then be inspected and approved by the Director prior to issuance of a Certificate to Operate. G. Parking Structures. Parking structures above or below grade shall be subject to conditional use permit approval by the Planning Commission when no other entitlement is required. In addition, parking structures proposed within the coastal zone shall be subject to approval of a coastal development permit. All parking structures shall comply with the following requirements: 1. Transition ramps which are also used as back-up space for parking stalls shall have a maximum slope of 5 percent. The maximum slope for transition ramps with no adjacent parking spaces shall be 10 percent. A ramp used for ingress and egress to a public street shall have a transition section at least 16 feet long and a maximum slope of 5 percent. 2. Parking structures with over 300 spaces shall provide secondary circulation ramps and additional ingress and egress if deemed necessary by a traffic study prepared by a state-registered traffic engineer. 3. Parking structures shall be provided with a minimum 10-foot-wide perimeter landscape planter at ground level. Parked cars shall be screened on each level through landscape planters or trellises and/or decorative screening wall or railings. The Design Review Board shall approve the landscaping plan. 4. All parking structures shall be architecturally compatible with existing or proposed structures and shall be subject to review and approval by the 19 jmp/k/ordinance/sob231/11/4/97 33�1� Design Review Board prior to hearing. The Design Review Board shall consider the following factors in reviewing a proposal: bulk, scale, proportion, building materials, colors, signage, architectural features, and landscaping. 5. All parking structures proposed for conversion to a fee parking arrangement shall be subject to conditional use permit approval by the Planning Commission. Public parking structures within the coastal zone proposed for conversion to a fee parking arrangement shall be subject to approval of a coastal development permit.(3334) 231.20 Compact Parking The Planning Commission, City Council, or Zoning Administrator, whichever is the review body, may allow use of compact parking to satisfy a portion of the required parking upon finding that compact parking will result in a more effective and efficient circulation pattern and parking layout and enhance the general appearance of the development and its surroundings..: Compact spaces shall be distributed throughout the parking area and have the same aisle width as full-size spaces. Compact spaces shall be marked "COMPACT" on the foot of the stall. The number permitted shall be subject to the following standards: A. Non-residential developments with a minimum of 20 spaces shall be permitted to have 20 percent of the total spaces as compact parking. B. Residential developments with a minimum of 50 units may have 20 percent of the non-guest parking spaces as compact provided that an equitable system of assignment and distribution has been established. 231.22 Driveways; Visibility Visibility of a driveway crossing a street or alley property line or of intersecting driveways shall be consistent with the requirements of Section 230.88. 231.24 Landscape Improvements Landscape, planting and irrigation plans shall be prepared consistent with the requirements of Chapter 232. 231.26 Parking Area Plan Required Prior to the construction, reconstruction, or restriping of an off-street parking area, a parking area plan shall be submitted to the Director for the purpose of indicating compliance with the provisions of this section. This plan shall include: A. Location and description of fencing and architectural screen walls. B. Location and placement of parking stalls, including bumpers, striping and circulation, all dimensioned to permit comparison with approved parking standards. C. Location and placement of lights provided to illuminate the parking area. 20 jmp/k/ordinance/sob231/11/4/97 3.3�8 D. A drainage plan showing drainage to a public way in accordance with accepted standards or practices. E. A landscape, planting and irrigation plan prepared consistent with the requirements of Chapter 232. Single-family dwellings on pre-existing lots are exempt from this requirement. 231.28 Oceanside or On-Street Parking within the Coastal Zone If any existing oceanside or on-street parking within the coastal zone is removed, it shall be replaced on a one for one basis in an area that would not result in the loss of any sandy beach area and within walking distance of the existing site. Replacement parking shall be assured prior to the issuance of the coastal development permit and shall be provided before any existing parking is removed so that there will be no reduction in the number of parking spaces available. 21 jmp/k/ord inance/sob231/11/4/97 3378 Chapter 236 Nonconforming Uses and Structures Sections: 236.02 General Provisions. 236.04 Destruction of a Nonconforming Structure or Use. 236.06 Alterations to a Nonconforming Structure or Use. 236.08 Sex Oriented Businesses 236.02 General Provisions A. A nonconforming structure or use shall not be enlarged, increased or intensified except as provided in this chapter. If any such use ceases,the subsequent use of such land, structure or building site shall be in conformance with the regulations specified by this code. B. A nonconforming use shall not be resumed,reestablished, or reopened after it has been abandoned,discontinued or changed to a conforming use. C. A nonconforming use shall be deemed to be discontinued or abandoned when such use has ceased to operate or to exist for a period of six (6) months. D. A nonconforming use which is not housed in any structure,but occupies a lot or portion of a lot, shall not be enlarged or extended to any other portion of the lot or any other lot not so occupied at the time the use became classified as nonconforming. E. A nonconforming use occupying either a conforming structure or nonconforming structure or portion thereof shall not be extended to any portion of the structure not so occupied at the time the use became nonconforming. 236.04 Destruction of a Nonconforming Structure or Use These provisions shall govern reconstruction of the nonconforming structures and/or uses listed below after such structure or use is destroyed by fire, explosion, act of nature or act of the public enemy by the percentage of value specified. A. Nonconforming structures and nonconforming uses destroyed 50% or less of the value prior to damage may be completely rebuilt. B. Nonconforming residential uses consisting of 10 or less units destroyed more than 50% of the value may be completely rebuilt. Chapter 236 236-1 10/3/94 EXHIBIT E 3378 C. Nonconforming residential uses consisting of more than 10 units destroyed more than 50% of the value may be completely rebuilt subject to conditional use permit approval by the Planning Commission provided current requirements for setback and parking are met. 236.06 Alterations to a Nonconforming Structure or Use A. Interior alterations and/or repairs may be made which do not enlarge the square footage or increase the height of a nonconforming use. Reroofing for health and safety purposes may also be permitted. B. A structure for a nonconforming use shall not be enlarged or altered on the exterior in any manner unless: 1. All aspects of the existing structure and the proposed addition are made to conform to applicable provisions of this Code, or 2. The Planning Commission permits such alteration subject to approval of a conditional use permit with the following findings: a. That the alteration is necessary to secure added safety or reduce the fire hazard or to improve the aesthetic appearance of the structure's architecture by bringing the design into greater conformance with the surrounding neighborhood. b. That the alteration or addition will not increase the number of stories. C. That the alterations will not cause the floor area to exceed more than ten(10%) percent of the floor area the structure contained at the time the use became nonconforming. C. Nonconforming structures may be altered or enlarged provided that the alteration or enlargement is in conformance with applicable provisions of Titles 21 and 22. D. Additions to nonconforming structures proposed to be constructed at the existing nonconforming yard setbacks shall be subject to approval of a conditional use permit by the Zoning Administrator. E. The area of enlargement to a nonconforming structure in any five year period shall not exceed 50% of the area of the structure as it exists on the effective date of this ordinance. 236.08 Sex Oriented Businesses A. Any sex oriented business lawfully operating on the effective date of the Ordinance No3378that is in violation of Section 212.04 of this Code shall be deemed a non-conforming use. A non-conforming use will be Chapter 236 236-2 10/3/94 = Available Industrial SOB Sites - 500 ft from Sensitive Uses South of Bolsa Ave BONA Ar DOLS AV , quNOI AAGWY r. . ... .,.... _ i •'• a ..•' — C I i 3 ti Y tL _,. ... �............ i _.. ..._... . ..... w F. I c:.:..._.. _.:... . — I inch 300 feet .•�hkcbd f'uedt for Merino-Nw bw W BOB Silo A-B.6M SW SIN O-uds7 fW&otl SM N 6a-fedBw they .•••_.•� October 31,1997 "rrc&Ad*.M b AftoW R.M.m Boom Ar, d WWW►—Is ld le"750 B b-n Whet$oBu wBucjtrof�an c,md r SM B Bulls Arowal U.e Cla-1 H10 Xhw sw . LAJ .. .. WI 337P permitted to continue for a period of three years with possible one year extensions (maximum extensions of five (5) years) to be granted by the Planning Commission only upon a convincing showing by the applicant of extreme financial hardship which is defined as the recovery of the initial financial investment in the non-conforming use, unless sooner terminated for any reason or voluntarily discontinued for a period of thirty (30) days or more. Such non-conforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two (2) or more sex oriented businesses are within 750 feet of one another and otherwise in a permissible location, the sex oriented business which was first established and continually operating at the particular location is the conforming use and the later established business(es) is non-conforming. B. A sex oriented business lawfully operating as conforming use is not rendered a non-conforming use by the location, subsequent to the grant of a sex oriented business zoning permit, of a building used for religious assembly, school, park and recreational facility or any property zoned RL, RM, RMH, RH, RMP, and any properties with equivalent designations under any specific plan within five hundred feet (500') of the sex oriented business. C. Any application for a building permit to operate a sex oriented business in a location that is in violation of Section 212.04 that is filed prior to, but approved after the effective date of Ordinance No3378.shall be deemed a nonconforming use pursuant to Section A. Any such building permit shall be in effect subject to the applicable zoning regulations in effect prior to the effective date of Ordinance No. 3378 Chapter 236 236-3 10/3/94 �? Available Industrial SOB Sites - 500 ft from Sensitive Uses East of Gothard Ave Y lam' SI.ATEII AV SLArEA AY , 1 1 I I f I � : .,.......... 3 TALBERr AV aq ........... . I : IMM 1 inch=200 feet ❑^%jL Wh06 pwceb n we.sawn..u.AWfI&A, ►.d Lh. -- — - - �•� k.H.Mr SoE Fro W+d/r w 1-0 IN i..sa.le.e u.-t _S i,:':�; ; • a SdRhd rseb bMW:�-nN-:isd son Fw lOtYC�wVncSOQ�RM>a� October 31,1997 Q r fi AUPca.A ro M1arW■'ar+m wn-.M-N S�MaroA hrt'di w�-a rs�n h.n.Wr fO�U SURFCRV Ga , i W Uj Ord. No. 3378 7' STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) I, CONNIE BROCKWAY, the duly elected, qualified City Clerk of the City of Huntington Beach, and!extofficio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing ordinance was read to said City Council at a regular meeting thereof held on the 15th of December, 1997, and was again read to said City Council at a regular meet)ag thereof held on the Sth of January, 1998, and was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council. AYES: Julien, Harman, Green, Dettloff, Bauer, Sullivan, Garofalo NOES: None ABSENT: None ABSTAIN: None I,Connie Brockway CITY CLERK of the City of Huntington Beach and ex-officio Clerk of the City Council,do hereby certify that a synopsis of this ordinance has been published in the Independent on IS 19 9R In accordance with the City Charter of said City City Clerk and ex-offlcio Clerk Connie Brockway City Clerk of the City Council of the City e .. Deputy City Clerk of Huntington Beach, California G/ordinanc/ordbkpg 1/29/98 i NECEIVEP is TY LTA OF HU411W T1"NTAM CITY OF HUNTINGTON BEACH imi -A, ► �j '"� INTER-DEPARTMENT COMMUNICATION TO: CAROL GIBBONS, Deputy City Clerk FROM: JENNIFER MC GRATH, Deputy City Attorney DATE: January 29, 1998 SUBJECT: Ordinance No. 3378, Sex Oriented Businesses, Amending Chapters 204,.211, 212, 231, and 236 of.the Huntington Beach Zoning and Subdivision Ordinance Code Regarding the changes requested to the Sex Oriented Business Ordinance, only those changes properly noticed may be implemented. The changes indicated to Chapter 211 C Commercial Districts on page 3, inadvertently omitted categories, must be reinstated into the codified version of the ordinance; however,.the changes indicated to Chapter 211, page 6, Chapter 212, pages 8, 9, and 10, should not be implemented as these changes were not properly noticed. NIFER MC GRATH, Deputy City Attorney JMP/k jmp✓I coff=J13 7_ P — Permitted CO, CG, L = Limited (see Additional Provisions) and CV PC = Conditional use permit approved by Planning Commission Districts ZA = Conditional use permit approved by Zoning Administrator Land Use TU = Temporary Use Permit Controls P/U = Requires conditional use permit on site of conditional use = Not Permitted CO CG CV Additional Provisions Commercial Uses (J)(Q)(R) (3341-10196) Ambulance Services - ZA - Animal Sales& Services Animal Boarding - PC - Animal Grooming - P - Animal Hospitals - PC - Animals: Retail Sales - P - Equestrian Centers - PC - (S) Pet Cemetery - PC - Artists' Studios P P P Banks and Savings &Loans P P P With Drive-Up Service ZA ZA ZA Building Materials and Services - P - Catering Services P P P Commercial Filming P P P (F) Commercial Recreation and Entertainment - PC PC (D) Communication Facilities P P P Eating and Drinking Estab. L-4 L-4 L-4 (1) w/Fast-Food or Take-Out Service ZA ZA ZA Drive Through - L-4 L-4 w/Live Entertainment/Dancing PC PC PC (FD Food &Beverage Sales - P L-2 w/Alcoholic Beverage Sales - ZA ZA (I) Funeral& Internment Services - ZA Laboratories L-1 L-1 - Maintenance&Repair Services - P - Marine Sales and Services - P P Nurseries - ZA - Offices, Business& Professional P P P (3334-6/9) Pawn Shops - ZA - Personal Enrichment Services L-2 L-2 - Personal Services P P P Research& Development Services L-1 ZA - Retail Sales - P P (U)(V) (3285-6/95,3334-6/97) Secondhand Appliances/Clothing - P - Swap Meets, Indoor/Flea Markets - PC - (T) Swap Meets, Recurring - ZA - Tattoo Establishments - PC - (C) Travel Services P P P Vehicle Equipment/Sales & Services Automobile Rentals - L-8 L-8 Huntington Beach Zoning and Subdivision Ordinance Chapter 211 211-3 2/98 lk (H) For teen dancing facilities, bicycle racks or a special bicycle parking area shall be provided. These may not obstruct either the public sidewalk or the building entry. See also Chapter 5.28: Dancing Halls; Chapter 5.44: Restaurants - Amusement and Entertainment Premises, and Chapter 5.70: Sex Oriented Businesses. (3341-10/96) 'L- (I) Only permitted on a major arterial street, and a passive or active outdoor recreational amenity shall be provided, subject to approval of the Planning Commission. (J) In the CV District the entire ground floor area and at least one-third of the total floor area shall be devoted to visitor-oriented uses as described in the certified Local Coastal Program Land Use Plan. Any use other than visitor serving commercial shall be located above the ground level, and a conditional use permit from the Planning Commission is required. Any use other than visitor serving commercial uses shall only be permitted if visitor serving uses are either provided prior to the other use or assured by deed restriction as part of the development. No office or residential uses shall be permitted in any visitor serving designation seaward of Pacific Coast Highway. (333"/97) (K) See Section 230.42: Bed and Breakfast Inns. (L) See Section 230.44: Recycling Operations. (NJ) Subject to approval by the Police Department, Public Works Department, Fire Department and the Director. See also Section 230.86 Seasonal Sales. (I) The following businesses proposing to sell alcoholic beverages for on-site or off- site consumption are exempt from the conditional use permit process: (1) Retail markets with no more than 10 percent of the floor area devoted to sales, display, and storage of alcoholic beverages provided the sale of alcoholic beverages is not carried on in conjunction with the sale of gasoline or other motor vehicle fuel. (2) Restaurants, bars, and liquor stores that are located 300 feet or more from any R or PS district, school, church, or public use. (3) Florist shops offering the sale of a bottle of an alcoholic beverage together with a floral arrangement. (0) See Section 230.46: Single Room Occupancy. (P) See Chapter 231 for temporary and seasonal parking. (Q) Development of vacant land or initial construction of a building for permitted use requires approval of a conditional use permit from the Zoning Administrator. (R) Projects within 500 feet of a PS District see Chapter 244. (S) See Section 230.48: Equestrian Centers Huntington Beach Zoning and Subdivision Ordinance Chapter 211 211-6 5/97 IG AND EL Districts: Additional Provisions(continued) (D) Adjunct office and commercial space, not to exceed 25 percent of the floor area of the primary industrial use, is allowed with a conditional use permit from the Zoning Administrator, provided that it is intended primarily to serve employees of the industrial use, no exterior signs advertise the adjunct use, the adjunct use is physically separated from the primary industrial use, any retail sales are limited to goods manufactured on-site, and the primary industrial fronts on an arterial. (3254-10/94) (E) See Section 241.22: Temporary Use Permits. (3254-10/94) (F) See Chapter 236: Nonconforming Uses and Structures. (3254-10/94) (G) Medical/dental offices, insurance brokerage offices, and real estate brokerage offices, except for on-site leasing offices, are not permitted in any I District. (3254-10/94) Administrative, management, regional or headquarters offices for any permitted industrial use, which are not intended to serve the.public, require a conditional use permit from the Zoning Administrator to occupy more than 10 percent of the total amount of space on the site of the industrial use. (3254-10/94) (I� Automobile dismantling, storage and/or impound yards may be permitted subject to the approval of a conditional use permit by the Planning Commission and the following criteria: (3254-10/94) (a) The site shall not be located within 660 feet of an R district. (3254-10/94) (b) All special metal cutting and compacting equipment shall be completely screened from view. (3254-10/94) (c) Storage yards shall be enclosed by a solid 6-inch concrete block or masonry wall not less than 6 feet in height and set back a minimum 10 feet from abutting streets with the entire setback area permanently landscaped and maintained. (3254-10/94) (d) Items stacked in the storage yard shall not exceed the height of the screening walls or be visible from adjacent public streets. (3254-10/94) (1) Limited to facilities serving workers employed on-site. (3254-10194) (n See Section 230.46: Single Room Occupancy. (3254-10/94) (K) Limited to Emergency Shelters. (3254-10/94) (L) New construction and initial establishment of a permitted use shall be subject to the approval of a conditional use permit by the Zoning Administrator unless Planning Commission approval is required. Change of use shall be subject to the approval of the Director unless the new use requires approval of a conditional use permit. (3254-10/94) Huntington Beach Zoning and Subdivision Ordinance Chapter 212 212-8 10/94 IG AND IL Districts: Additional Provisions(continued) (M) Major outdoor operations require conditional use permit approval by the Planning Commission. Major outside operations include storage yards and uses utilizing more than 1/3 of the site for outdoor operation. (3254-10/94) (l) See Section 230.40: Helicopter Takeoff and Landing Areas. (3254-10/94) (0) See Section 230.44: Recycling Operations. (3254-10194) (P) See Section 230.50: Indoor Swap Meets/Flea Markets (3254-10/94) (Q) See L-11(A) relating to locational restrictions. (3254-10/94,3378-2/98) 212.06 IG AND IL Districts: Development Standards (3254-10194) The following schedule prescribes development standards for the I Districts. The first two columns prescribe basic requirements for permitted and conditional uses in each district. Letters in parentheses in the "Additional Requirements" column reference requirements following the schedule or located elsewhere in this ordinance. In calculating the maximum gross floor area as defined in Chapter 203, the floor area ratio is calculated on the basis of net site area. Fractional numbers shall be rounded down to the nearest whole number. All required setbacks shall be measured from ultimate right-of- way and in accordance with definitions set forth in Chapter 203, Definitions. (3254-10/94) Additional IG EL Requirements Residential Development (NI) Nonresidential Development Minimum Lot Area(sq. ft.) 20,000 20,000 (A)(B)(1) Minimum Lot Width (ft.) 100 100 (A)(B) Minimum Setbacks (A)(C) Front (ft.) 10;20 10;20 (D(F) Side (ft.) - 15 Street Side (ft.) 10 10 Rear(ft.) - - (E) Maximum Height of Structures (ft.) 40 40 (G) Maximum Floor Area Ratio (FAR) 0.75 0.75 Minimum Site Landscaping (%) 8 8 Mi) Fences and Walls See Section 230.88 Off-Street Parking and Loading See Chapter 231 U) Outdoor Facilities See Section 230.74 Huntington Beach Zoning and Subdivision Ordinance Chapter 212 212-9 2/98 rye ` IG AND IL Districts: Development Standards(continued) Additional IG II. Requirements Screening of Mechanical Equipment See Section 230.76 (K) Refuse Storage Area See Section 230.78 Underground Utilities See Chapter 17.64 Performance Standards See Section 230.82 (L) Nonconforming Uses and Structures See Chapter 236 Signs See Chapter 233 IG AND IL Districts: Additional Development Standards (A) See Section 230.62: Building Site Required and Section 230.64: Development on Substandard Lots. (3254-10/94) `= (B) Smaller lot dimensions for new parcels may be permitted by the Zoning Administrator with an approved development plan and tentative subdivision map. (3254-10/94) (C) See Section 230.68: Building Projections into Yards and Required Open Space. Double- frontage lots shall provide front yards on each frontage. (3254-10/94) (D) The minimum front setback shall be 10 feet and the average setback 20 feet, except for parcels fronting on local streets where only a 10 foot setback is required. (3254-10/94) All I Districts: An additional setback is required for buildings exceeding 25 feet in height(1 foot for each foot of height) and for buildings exceeding 150 feet in length (1 foot for each 10 feet of building length) up to a maximum setback of 30 feet. (3254-10/94) (E) In all I districts, a 15-foot setback is required abutting an R district and no openings in buildings within 45 feet of an R district. (3254-10/94) (F) A zero-side yard setback may be permitted in the I districts, but not abutting an R district, provided that a solid wall at the property line is constructed of maintenance-free masonry material and the opposite side yard is a minimum of 30 feet. (3254-10/94) Exception. The Zoning Administrator or Planning Commission may approve a conditional use permit to allow a 15-foot interior side yard opposite a zero-side yard on one lot, if an abutting side yard at least 15 feet wide is provided and access easements are recorded ensuring a minimum 30-foot separation between buildings. This 30-foot accessway must be maintained free of obstructions and open to the sky, and no opening for truck loading or unloading shall be permitted in the building face fronting on the accessway unless a 45-foot long striped area is provided solely for loading and unloading entirely within the building. (3254-10/94) Huntington Beach Zoning and Subdivision Ordinance Chapter 212 212-10 10/94