Federal Court Won’t Rehear Adult Ordinance

Rhett Pardon
SAN FRANCISCO – A federal appeals court on Monday refused a petition to rehear a case seeking to strike the city of Spokane’s ordinances regulating existing adult-oriented businesses.

The case involved World Wide Video, which has four retail shops in the Spokane area that sell all types of adult products, from DVDs to books to adult toys.

In late May, the 9th U.S. Circuit Court of Appeals decided that the city can impose rules on the location of adult businesses by requiring set-back requirements, which prevent them from existing in close proximity to most land-use categories, with the exception of some industrial and commercial properties.

World Wide general manager Dennis Derizzo told XBiz that three adult stores are affected by the ordinance. World Wide has been in the Spokane area for 21 years.

World Wide had petitioned the 9th Circuit to rehear the case en banc, or with the full court. “No further petitions for rehearing or rehearing en banc will be accepted,” the San Francisco-based court said Monday.

The company’s attorney, Gilbert H. Levy of Seattle, was unavailable for comment, and at posting time it was not known whether or not World Wide would challenge the 9th Circuit’s decision to the U.S. Supreme Court.

The 9th Circuit’s court-ruling authority reaches California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, Hawaii, Guam and the Northern Mariana Islands.

Passed in 2001, Spokane’s amended ordinances state that all adult businesses can’t be located within 750 feet of libraries, churches schools and other adult businesses.

But the ordinances go further: They also outlaw the businesses within 750 feet of residential homes, apartment buildings and farmland.

The ordinances give existing adult businesses one year to either relocate or change the nature of their operations.

“[M]unicipalities are allowed to keep the pig out of the parlor by devising regulations that target the adverse secondary effects of sexually oriented adult businesses,” Judge Richard C. Tallman wrote for the court. “This is precisely what Spokane did when it enacted the ordinances.”

In the case, World Wide also took issue with another part of the ordinances, which spelled out what defines an adult store.

The court said that the language of the ordinance had nothing to do with the determination whether adult material constitutes a “significant or substantial” portion of a store’s stock.

“[I]n attempting to extend its right to operate at its present locations, World Wide was afforded – and has availed itself of – the full panoply of due process rights,” Tallman wrote. “We conclude that World Wide received all the process it was due.”

The case is World Wide Video of Washington Inc. vs. City of Spokane, No. 02-35936.