Zoning Law Was Prior Restraint for Adult Bookstore, Federal Court Rules

SAN JOSE, Calif. — The U.S. District Court in San Jose has struck down a city zoning law that it found imposed unconstitutional prior restraint on an adult business.

The business in question was a bookstore that was trying expand into vacant space adjacent to its core space but ran afoul of city zoning laws that were enacted after the place was already open for business.

Granting permanent injunction in Seven Cities Enterprises Inc. vs. City of Salinas, the federal court ruled that a section of Salinas municipal code violates the 1st and 14th amendments of the U.S. Constitution.

At the core of the case was the business' attempts to expand the number of private viewing booths, or "arcades," Seven Cities' attorney Clyde DeWitt told XBIZ.

“This case started when the City refused to allow my client to increase his number of arcades to meet demand,” he said. “The city said it would be an illegal expansion of a nonconforming use. After a year and a half of bickering, here we are in federal court.

“This is one of a long series of cases where a city wants to have discretion in deciding whether adult businesses are permissible.”

The zoning requirement is a “constitutional prior restraint because it vests an impermissible level of administrative discretion” in the city’s role as a licensor, U.S. District Judge James Ware wrote in the 11-page decision.

Seven Cities operates L’Amour, an adult book and video store with private viewing stalls.

The shop is located in a part of the city not zoned for adult entertainment and had been open before Salinas enacted zoning laws. But, the restriction to expand arose because the zoning law prohibits “noncomforming use” and therefore, prevented L’Amour from expanding.