Saturday, Jul 19, 2008    Text size: 

The summary judgment by US District Judge Dean D. Pregerson in favor of the plaintiffs in Alameda Books v. City of Los Angeles is the latest action in a case that reaches back 13 years to 1995, when Alameda Books and Highland Books first challenged the ordinance.

Los Angeles Municipal Code section 12.70(C), enacted in 1978, prohibits adult entertainment establishments from operating within 1,000 feet of each other or within 500 feet of a religious institution, school or public park. In 1983, the Los Angeles City Council amended the code to prohibit “the establishment or maintenance of more than one adult entertainment business in the same building, structure or portion thereof.”

Alameda and Highland separately operated adult arcades and bookstores under one roof, and contended that the ordinance impinged on their constitutional right to freedom of expression. The establishments, which have since merged, joined as plaintiffs and sued the city for declaratory and injunctive relief to prevent enforcement of the ordinance. The same court that ruled today also ruled in their favor in 1995, and the 9th U.S. Circuit Court of Appeals affirmed the decision, though on different grounds.

According to Wednesday’s opinion, “The 9th Circuit did not reach the question of whether the ordinance was content neutral. It reasoned that, even if the ordinance was content neutral and therefore subject to intermediate scrutiny, the city had failed to present evidence upon which it could reasonably rely to demonstrate that its regulation of multiple-use establishments is ‘designed to serve’ the city’s substantial interest in reducing crime.”

In 2002, the U.S. Supreme Court granted certiorari in order to clarify the standard for determining whether an ordinance serves a substantial government interest and eventually reversed the 9th Circuit. Though no opinion carried a majority of the justices, Justice Sandra Day O’Connor delivered the plurality opinion, which found that the ordinance was subject to intermediate rather than strict scrutiny, and that the city had succeeded in showing that the ordinance furthered its goal of reducing secondary effects associated with the proliferation of adult businesses.

Justice Anthony M. Kennedy provided the crucial fifth vote in the court’s split decision, but departed from the plurality decision in arguing that while the city has a legitimate interest in crafting a zoning ordinance directed at combating secondary effects, the courts must also consider whether the municipality has advanced a legitimate proposition justifying the ordinance.

“[A] city must advance some basis to show that its regulation has the purpose and effect of suppressing secondary effects,” he wrote, “while leaving the quality and accessibility of speech substantially intact.”

With respect to the Los Angeles ordinance at issue, Kennedy held that the city’s claim “must be that this ordinance will cause two businesses to split rather than one to close, that the quantity of speech will be substantially undiminished, and that total secondary effects will be significantly reduced.”

It was that standard that the U.S. Court in Los Angeles brought to bear when the case was remanded back to it in 2002. After hearing testimony from both city and plaintiff witnesses, the court ruled Wednesday in the plaintiff’s favor. Industry attorney Clyde DeWitt, who represented the plaintiffs in the trial phase of the case after it was remanded back to the federal court, told XBIZ that while he is pleased that the ordinance has been kept at bay for 13 years, the case is apparently not over yet because the city has promised to take an appeal.

“I was delighted to find that the judge was impressed enough with my argument about separating a movie theater from the concession stand that he quoted it almost verbatim in the opinion,” DeWitt said. “But it really makes sense, because separating an adult arcade from the book and video store would bring about the same result as would separating a concession stand from a theater. The concession stand would not be able to sell six-dollar popcorn without the theater any more than the arcade could operate as a stand-alone business. There has never been one.

“I feel quite confident about the outcome of the appeal,” he continued. “Judge Pregerson wrote an excellent, thorough and very will reasoned opinion. I have been fortunate enough to have been before him on several other cases, and he has consistently proven to be an outstanding jurist — not just in First Amendment cases, but also in garden-variety civil cases.”

The city has 30 days from the issuance of the final judgment to appeal.