The 9th U.S. Circuit Court of Appeals reversed a lower court's granting of summary judgment to Alameda Books and Highland Books, two adult bookstores with video arcades that are now joined under the corporate name Beverly Books.
Alameda and Highlands sued the city of Los Angeles in 1995 for freedom-of-speech violations after officials attempted to enforce an ordinance prohibiting combination adult bookstores and video arcades. The ordinance was passed by city council in 1983 to disperse adult-entertainment businesses from Hollywood, Calif., and its purported high crime rates.
The case has seen its days traveling from one courthouse to another, from U.S. District Court to the 9th Circuit to the U.S. Supreme Court, where justices in 2002 decided the limits of a city's power to force adult-themed businesses to be dispersed instead of concentrated in one area.
On Friday, the 9th Circuit reconstitued the case, finding that the lower court, in ruling on the case for the second time, had considered evidence in favor of the bookstores that was obviously biased and unsupported.
To show that stand-alone bookstore and video-arcade portions of the businesses could not survive if forced apart, Alameda and Highland offered the nearly identical testimony of two longtime adult-entertainment industry mavens, William Andrus and Rick Hinckley, both of whom had close ties to the plaintiffs, according to the ruling.
At the time, Andrus and Hinckley testified that separate adult video arcades are virtually nonexistent in the industry.
But the appeals court, meeting at its Pasadena, Calif., chambers, was unconvinced with the testimony, calling the lower court's willingness to overlook the witnesses' bias "a significant oversight."
"Although we have interpreted the Supreme Court’s Alameda Books decision on several occasions, we have yet to hold that a plaintiff has succeeded in 'casting doubt' on the city’s evidence or rationale," the 9th Circuit said in its ruling.
"We are not satisfied that the plaintiffs’ evidence in this case was 'actual and convincing' enough to justify summary judgment — and we emphasize that the procedural posture here was summary judgment," the ruling said.
The panel, 3-0, reversed the lower court's granting of summary judgment in favor of the plaintiffs and remanded the case, once again, back to U.S. District Court.
Attorney Clyde DeWitt, who represented Alameda and Highland, told XBIZ he will seek rehearing.
. "The court reversed the summary judgment in our favor and ordered the case to remanded to the district court for trial," he said. .
The case is Alameda Books Inc. vs. City of Los Angeles, No. 09-55367.
