The 9th U.S. Circuit Court of Appeals on Wednesday affirmed a lower court’s grant of summary judgment against Déjà Vu and its landlord on their claim that the ordinance violated a state law requiring ordinances to be consistent with a county’s general plan.
The 9th Circuit said that plaintiffs had failed to raise the claim in their complaint and that San Diego County’s ordinance is constitutional.
Jurists, however, reversed the lower court’s decision to sever the time period for reviewing permits under the ordinance because the decision raised other constitutional problems.
The San Diego County Board of Supervisors adopted a comprehensive zoning ordinance in June 2002 to regulate the operation of adult entertainment businesses within unincorporated portions of the county.
The law took effect the following month and restricted the hours in which businesses could operate, required the removal of doors on peep show booths, and mandated that the businesses disperse to industrial areas of the county.
Supervisors’ rationale was purportedly to combat negative secondary effects — crime, noise, disorderly conduct, blight, traffic, property value depreciation and unsanitary behavior — that concentrated in and around adult businesses.
Déjà Vu and its landlord Tollis Inc. initiated federal and state constitutional challenges against the ordinance in the district court, seeking declaratory and injunctive relief.
The 9th Circuit granted summary judgment to the county, upholding the requirement that adult establishments locate only in industrial zones and dismissing a claim that the ordinance violated state law requiring ordinances to be consistent with a county’s general plan.
The court, however, also found that the county’s permitting regime for adult establishments unconstitutionally granted the licensing body an unreasonably long period of time to consider permit requests, and severed the time limits from the ordinance.
Judge Barry G. Silverman, who wrote Wednesday’ ruling, rejected the plaintiff’s argument that the list of available sites did not allow them a reasonable opportunity to operate their business because the sites were zoned only for industrial — not commercial — use.
“So long as there are a sufficient number of suitable relocation sites,” Silverman wrote, “the county could reasonably assume that, given the draw of pornographic and sexually explicit speech, willing patrons would not be measurably discouraged by the inconvenience of having to travel to an industrial zone.”
“Whether or not an industrial zone permits generic commercial business within its borders rests on a legislative policy judgment. Asking whether an industrial zone is suitable for generic commercial activity examines the physical characteristics and infrastructure of the land within the zone,” he wrote.
The 9th Circuit has jurisdiction over courts in Alaska, Arizona, California, Hawaii, Idaho, Montan, Nevada, Oregon and Washington.
The case is Tollis Inc. vs. County of San Diego, No. 05-56300.
