The ruling is significant in California because it spells out that all potential sites — including those that are not available because they are already occupied — must be considered by litigants suing municipalities.
Pomona’s ordinance in question bans adult businesses within 300 feet of a residential zone or 1,000 feet from “sensitive uses” such as churches, schools and parks.
In its unpublished decision, the state Court of Appeal said that a Los Angeles Superior Court judge decided in error and “did not follow the legal standards” set forth in rulings of the U.S. Supreme Court.
Presiding Justice Roger Boren said “the question is not whether any particular site is appropriate for an adult business. Rather, the issue is whether there are any sites appropriate for a generic commercial enterprise, regardless of current occupancy, landlords’ unwillingness to rent, physical characteristics, or economic unfeasibility.
“By this standard, Pomona has established that there are numerous sites available within the city, and respondents failed to carry their burden of proving nonavailability of alternative sites.”
Boren said that “virtually every purported flaw in the [locations] analyzed by the referee was constitutionally irrelevant.”
“The primary defect identified by the referee was that many of the potential sites are not currently for rent,” Boren said. “The controlling cases emphasize that it is irrelevant whether suitable sites are currently under lease or owner-occupied, for purposes of constitutional review.
“The referee focused improperly on ‘economic impact’ problems. It is irrelevant that many of the sites are economically unfeasible because they are too large, too small, or poorly shaped.”
The appellate jurist quoted a 5th U.S. Circuit Court of Appeals ruling that said the physical aspect of potential sites may exclude them from consideration only if they are “under the ocean, airstrips of international airports, sports stadiums, areas not readily accessible to the public, areas developed in a manner unsuitable for any generic commercial business, areas lacking in proper infrastructure, and so on.”
In 1998, a jurist held that the activities of the Baby Dolls Theater enjoyed constitutional protections and remanded the case to the trial court for a determination as to whether there were alternatives sites in Pomona where such a business might be operated.
The City of Pomona indicated 31 such sites but a judge found that none of those sites were actually available and, based on that finding, enjoined the city from enforcing its ordinance against the strip club, which was represented by Santa Monica, Calif.-based attorney Roger Jon Diamond.
Last week’s ruling overturned that decision.
The case is Kozub vs. City of Pomona, No. B174501.