Appendix — Renton v. Playtime Theatres, Inc.
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84-1860 FEB 26 1985
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| CLERK
IN THE :
Suprene Court of the United States
OCTOBER TERM, 1984
THE CITY OF RENTON, et al.,
. Appellants,
PLAYTIME THEATRES, INC.,
a Washington corporation, et al.,
Appellees.
On Appeal from the United States Court of Appeals
for the Ninth Circuit
APPENDIX TO
JURISDICTIONAL STATEMENT
E. BARRETT PRETTYMAN, JR.*
JAMES G. MIDDLEBROOKS
HOGAN & HARTSON
815 Connecticut Avenue, N.W.
Washington, D.C. 20006
(202) 331-4685
LAWRENCE J. WARREN
DANIEL KELLOGG
MARK E. BARBER
ZANETTA L. FONTES
WARREN & KELLOGG, P.S.
100 South Second Street
Renton, Washington 98057
(206) 255-8678
* Counsel of Record Counsel for Appellants
a a UIE APT EEE
WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001
TABLE OF CONTENTS
Appendix A
Decision of United States Court of Appeals for
Ninth Circuit, in Playtime Theaters, Inc. v. City
of Renton, 748 F.2d 527 (9th Cir. 1984), de-
cided November 28, 1984 ............................-..--.-----
Appendix B
Decision of United States District Court for the
Western District of Washington, in Playtime
Theatres, Inc. v. City of Renton, No. C82-59M,
decided February 18, 1983 —......0000000 eee.
Appendix C
Judgment of United States District Court for the
Western District of Washington, in Playtime
Theatres, Inc. v. City of Renton, No. C82-59M,
entered February 18, 1983
Appendix D
Order of United States District Court for the
Western District of Washington, in Playtime
Theatres, Inc. v. City of Renton, No. C82-59M,
entered April 29, 1983, denying Plaintiff’s Mo-
tions to Alter and Amend and For Stay Pending
EER ER EEE eal Oe eR: SR
Appendix E
Order of United States District Court for the
Western District of Washington, in Playtime
Theatres, Inc. v. City of Renton, No. C82-59M,
entered January 13, 1983, denying Defendants’
Motions to Dismiss and For Summary Judgment
and Granting Preliminary Injunction Pendente
Lite
ee ee ee eee eee eee eee
Page
la
23a
33a
34a
ii
TABLE OF CONTENTS—Continued
Appendix F
Report and Recommendation of Hon. Philip K.
Sweigert, Magistrate, United States District
Court for the Western District of Washington,
in Playtime Theatres, Inc. v. City of Renton,
No. C82-59M, entered November 5, 1982 ...........
Appendix G
Order of United States District Court for the
Western District of Washington, in Playtime
Theatres, Inc. v. City of Renton, No. C82-59M,
entered February 23, 1982, adopting the Febru-
ary 3, 1982 Report and Recommendation of
United States Magistrate Philip K. Sweigert __...
Appendix H
Judgment of United States District Court for the
Western District of Washington, in Playtime
Theatres, Inc. v. City of Renton, No. C82-59M,
entered February 23, 1982, denying Plaintiffs’
Motion for a Temporary Restraining Order ......
Appendix I
Report and Recommendation of Hon. Philip K.
Sweigert, Magistrate, United States District
Court for the Western District of Washington,
in Playtime Theatres, Inc. v. City of Renton,
No. C82-59M, entered February 3, 1982
Appendix J
Notice of Appeal, Playtime Theatres, Inc. v. City
of Renton, 748 F.2d 527 (9th Cir. 1984), filed
i... XS
Appendix K
Amended and Supplemental Complaint for Declar-
atory Judgment and Preliminary and Permanent
Injunction, in Playtime Theatres, Inc. v. City of
Pe —EE eee
Page
46a
48a
49a
iii
TABLE OF CONTENTS—Continued
Appendix L Page
Renton, Washington, Ordinance 3526 (April 13,
a ceucecantucescreccees 78a
Appendix M
Renton, Washington, Ordinance 3629 (May 3,
Cee ccschescucececwereces 8la
Appendix N
Renton, Washington, Ordinance 3637 (June 14,
SESSA 90a
Appendix O
Detroit, Michigan, Ordinance 742-G (Nov. 2,
A TS 99a
Appendix P
Detroit, Michigan, Ordinance 743-G (Nov. 2,
a ceenees A 113a
Appendix Q
Detroit, Michigan, Ordinance 891-G (May 2,
AES SII ci -- 118a
- Appendix R
Seattle, Washington, Ordinance No. 105565 (May
Te cscccseceacnecccece 126a
Appendix S
Seattle, Washington, Ordinance No. 105584 (June
ae ee 138a
Appendix T
Trial Exhibit A-1, Map of Renton, Washington,
Detailing Zoned Areas ............-0.0..000020.00-.- 20 oce ee ennee 140a
Appendix U
Trial Exhibit A-2, Enlarged Area of Trial Ex-
EE ... 14la
Appendix V
Trial Exhibit A-3, Aerial Photo with Overlay of
Area Shown in Trial Exhibit A-2 . 2.000000... 142a
la
APPENDIX A
UNITED STATES COURT OF APPEALS
NINTH CIRCUIT
Nos. 83-3805, 83-3980
PLAYTIME THEATERS, INC.,
a Washington corporation, et al.,
Plaintiffs-A ppellants,
V.
THE CITY OF RENTON, et al.,
Defendants-A ppellees.
THE CITY OF RENTON,
a municipal corporation, et al.,
Plaintiffs-A ppellants,
V.
PLAYTIME THEATERS, INC.,
a Washington corporation, et al.,
Defendants-A ppellees.
Argued and Submitted May 9, 1984
Decided Nov. 28, 1984
Robert Eugene Smith, Encino, Cal., for Playtime Thea-
ters, Inc.
Lawrence J. Warren, Daniel Kellogg, Warren & Kel-
logg, Renton, Wash., for City of Renton.
2a
Appeal from the United States District Court
for the Western District of Washington
Before FLETCHER and FARRIS, Circuit Judges, and
JAMESON,” District Judge.
FLETCHER, Circuit Judge:
These consolidated cases are declaratory judgment ac-
tions involving the constitutionality of the City of Ren-
ton’s zoning ordinances regulating the location of adult
motion picture theaters.
In case number 83-3805, Playtime Theaters, Inc.
(“Playtime’’) appeals the district court’s order denying a
permanent injunction and finding that the ordinance fur-
thers a substantial governmental interest, is unrelated to
the suppression of speech, and is no more restrictive than
necessary to further that interest. Case number 83-3980
is a declaratory action involving the same parties and is-
sues, filed by the City of Renton in state court after fed-
eral proceedings had begun. This action was twice re-
moved to federal court and twice remanded to state court.
Renton appeals the district court’s denial of its motion for
fees and costs on the second removal. We reverse in num-
ber 83-3805 and affirm in number 83-3980.
I
BACKGROUND
In April, 1981, the City of Renton enacted ordinance
number 3526 which prohibited any “adult motion picture
theater” * within one thousand feet of any residential
* Hon. William J. Jameson, Senior United States District Judge
for the District of Montana, sitting by designation.
1 The first ordinance defined an “adult motion picture theater” as
an enclosed building used for presenting motion picture films,
3a
zone or single or multiple family dwelling, any church or
other religious institution, and any public park or area
zoned for such use. The ordinance further prohibited any
such theater from locating within one mile of any public
or private school. At the time this ordinance was en-
acted, no adult theaters were located in Renton, although
there were other theaters within the proscribed area.
In January, 1982, Playtime acquired two existing thea-
ters in Renton with the purpose of exhibiting adult mo-
tion pictures in at least one, the Renton Theater, which is
video cassettes, cable television, or any other such visual media,
distinguished or characterized by an emphasis on matter de-
picting, describing or relating to “specified sexual activities”
or “specified anatomical areas” as hereafter defined, for ob-
servation by patrons therein.
The ordinance defined these terms as follows:
2. “Specified Sexual Activities”:
(a) Human genitals in a state of sexual stimulation or
arousal;
(b) Acts of human masturbation, sexual intercourse or
sodomy ;
(c) Fondling or other erotic touching of human genitals,
pubic region, buttock or female breast.
3. “Specified Anatomical Areas” :
(a) Less than completely and opaquely covered human
genitals, pubic region, buttock, and female breast below a
point immediately above the top of the areola; and
(b) Human male genitals in a discernible turgid state,
even if completely and opaquely covered.
The second ordinance expanded the defined term of “used” as:
a continuing course of conduct of exhibiting “specific [sic
specified ?] sexual activities” and “specified anatomical area[”’ ]
in a manner which appeals to a prurient interest.
4a
locaied within the area proscribed by ordinance number
3526.7
Just prior to closing the sale of the theater, on Janu-
ary 20, 1982, Playtime filed an action in federal court,
seeking a declaration that the ordinance was unconstitu-
tional and a permanent injunction against its enforce-
ment.
A month later, on February 19, 1982, Renton brought
suit in state court seeking a declaratory judgment that
the ordinance was constitutional on its face and as ap-
plied to Playtime’s proposed use. The complaint alleged
that an actual dispute existed because of the pending fed-
eral lawsuit and because Playtime asserted that the ordi-
nance was unconstitutional. On February 22, 1982, Ren-
ton moved to dismiss Playtime’s federal action on the
grounds that the federal court should abstain in favor of
the state action, citing Younger v. Harris, 401 U.S. 37,
91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Huffman v.
Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482
(1975).
On March 8, 1982, Playtime removed the state action
to federal court and Renton moved to remand. On March
25, the magistrate filed his recommendation that absten-
tion was improper in the first action and on April 9, he
recommended that the removed state action be remanded
for lack of jurisdiction because the complaint failed to
state a claim upon which relief could be granted. The
district court approved both recommendations, denying
the motion to dismiss the federal action on May 5, 1982,
and remanding the state action on January 13, 1983.
2 For the purposes of this opinion, “adult motion picture theater”
or “adult theater” refers to the definition used by the City. See
supra note 1. We express no view as to the effect of this definition
on the constitutionality of the ordinance. See infra note 18.
5a
On May 3, 1982, Renton passed an emergency ordi-
nance, amending ordinance number 3526. The new ordi-
nance added an elaborate statement of reasons for the
enactment of the ordinances,* it further defined the word
3 The City gave the following reasons in the amended ordinance:
1. Areas within close walking distance of single and multiple
family dwellings should be free of adult entertainment land
uses.
2. Areas where children could be expected to walk, patronize
or recreate should be free of adult entertainment land uses.
3. Adult entertainment land uses should be located in areas
of the City which are not in close proximity to residential
uses, churches, parks and other public facilities, and schools.
4. The image of the City of Renton as a pleasant and attrac-
tive place to reside will be adversely affected by the pres-
ence of adult entertainment land uses in close proximity to
residential land uses, churches, parks and other public fa-
cilities, and schools.
5. Regulation of adult entertainment land uses should be
developed to prevent deterioration and/or degradation of
the vitality of the community before the problem exists,
rather than in response to an existing problem.
6. Commercial areas of the City patronized by young people
and children should be free of adult entertainment land
uses.
7. The Renton School District opposes a location of adult
entertainment land uses within the perimeters of its policy
regarding bussing of students, so that students walking to
school will not be subjected to confrontation with the
existence of adult entertainment land uses.
8. The Renton School District finds that location of adult
entertainment land uses in areas of the City which are in
close proximity to schools, and commercial areas patronized
by students and young people, will have a detrimental effect
upon the quality of education which the School District is
providing for its students.
9. The Renton School District finds that education of its
students will be negatively affected by location of adult
entertainment land uses in close proximity to location of
schools.
10. Adult entertainment land uses should be regulations [sic]
by zoning to separate it from other dissimilar uses just as
11.
12.
13.
14.
15.
16.
6a
any other land use should be separated from uses with
characteristics different from itself.
Residents of the City of Renton, and persons who are
non-residents but use the City of Renton for shopping and
other commercial needs, will move from the community or
shop elsewhere if adult entertainment land uses are allowed
to locate in close proximity to residential uses, churches,
parks and other public facilities, and schools.
Location of adult entertainment land uses in proximity
to residential uses, churches, parks and other public facili-
ties, and schools, may lead to increased levels of criminal
activities, including prostitution, rape, incest and assaults
in the vicinity of such adult entertainment land uses.
Merchants in the commercial area of the City are con-
cerned about adverse impacts upon the character and
quality of the City in the event that adult entertainment
land uses are located within close proximity to residential
uses, churches, parks and other public facilities, and schools.
Location of adult entertainment land uses in ciose proximity
to residential uses, churches, parks and other public facili-
ties, and schools, will reduce retail trade to commercial
uses in the vicinity, thus reducing property values and tax
revenues to the City. Such adverse affect [sic] on property
values will cause the loss of some commercia) establish-
ments followed by a blighting effect upon the commercial
districts within the City, leading to further deterioration
of the commercial quality of the City.
Experience in numerous other cities, including Seattle,
Tacoma and Detroit, Michigan, has shown that location of
adult entertainment land uses degrade the quality of the
area of the City in which they are located and cause a
blighting effect upon the City. The skid row effect, which
is evident in certain parts of Seattle and other cities, will
have a significantly larger affect [sic] upon the City of
Renton than other major cities due to the relative sizes
of the cities.
No evidence has been presented to show that location of
adult entertainment land uses within the City will improve
the commercial viability of the community.
Location of adult entertainment land uses within walking
distance of churches and other religious facilities will have
an adverse effect upon the ministry of such churches and
<r
Ta
“used,” * and it reduced the required distance from
schools from one mile to 1000 feet. The ordinance also
contained a clause stating that the federal litigation cre-
ated an emergency making immediate adoption of the
new ordinance necessary.’ The ordinance was reenacted
on June 14, 1982, without the emergency clause.
will discourage attendance at such churches by the prox-
imity of adult entertainment land uses.
17. A reasonable regulation of the location of adult enter-
tainment land uses will provide for the protection of the
image of the community and its property values, and pro-
tect the residents of the community from the adverse effects
of such adult entertainment land uses, while providing to
those who desire to patronize adult entertainment land uses
such an opportunity in areas within the City which are
appropriate for location of adult entertainment land uses.
18. The community will be an undesirable place to live if it is
known on the basis of its image as the location of adult
entertainment land uses.
19. A stable atmosphere for the rearing of families cannot be
achieved in close proximity to adult entertainment land
uses. f
20. The initial location of adult entertainment land uses will
lead to the location of additional and similar uses within
the same vicinity, thus multiplying the adverse impact of
the initial location of adult entertainment land uses upon
the residential, [sic] churches, parks and other public facili-
ties, and schools, and the impact upon the image and quality
of the character of the community.
* See supra note 1.
5 The emergency clause stated :
The City Council of the City of Renton finds and declares that
an emergency exists because of the pendency of litigation
against the City of Renton involving the subject matter of this
ordinance, and potential liability of the City of Renton for
damages as pleaded in that litigation, and that the immediate
adoption of this ordinance is necessary for the immediate
preservation of public peak [sic], health, and safety or for the
support of city government and its existing public institutions
and the integrity of the zoning of the City of Renton. There-
8a
On June 23, 1982, the magistrate heard Playtime’s mo-
tion for preliminary injunction and Renton’s motions to
dismiss and for summary judgment. On November 5,
1982, he filed his recommendation to deny Renton’s mo-
tion and to grant Playtime a preliminary injunction. He
found that the ordinance “for all practical purposes ex-
cludes adult theaters from the City,” that only 200 acres
were not restricted by the ordinance, and that all of
these areas were “entirely unsuited to movie theater
use.” He further found that Renton had not established
a factual basis for the adoption of the ordinance and
that the motives behind the ordinance reflected “simple
distaste for adult theaters because of the content of the
films shown.” On January 11, 1983, the district court
entered an order approving and adopting these findings
and granting a preliminary injunction.* For the first
time, Playtime began showing adult movies at the Ren-
ton Theater.
On February 8, 1983, the parties entered into a stipu-
lation to submit the case for hearing on whether a per-
manent injunction should issue on the basis of the rec-
ord already developed. On February 17, 1983, the dis-
trict court vacated the preliminary injunction and de-
nied the permanent injunction. The court found that 520
acres were available as potential sites for adult theater
use and that this ordinance did not substantially restrict
first amendment interests.’ The court further held that
fore, this ordinance shall take effect immediately upon its
passage and approval by the Mayor.
The City used this clause as justification for a renewed motion to
dismiss and a motion for summary judgment, both of which were
filed on May 4, the next day.
6 We denied the City’s application for a writ of mandamus to
stay the preliminary injunction.
7The court did not explain the variance between this finding
and its prior finding, made at the time it granted the preliminary
injunction, that only 200 acres were available.
9a
Renton was not required to show specific adverse impact
on Renton from the operation of adult theaters but could
rely on the experiences of other cities. Lastly, the court
found that the purposes of the ordinance were unrelated
to the suppression of speech and that the restrictions it
imposed were no greater than necessary to further the
governmental interest.
On May 19, 1983, after denial of the permanent in-
junction, and after the notice of appeal was filed in this
court, Renton filed an amended complaint in state court
seeking, in addition to the originally requested declara-
tory relief, abatement of the operation of Playtime’s adult
theaters. On June 8, 1983, Playtime removed th> action
to federal court on the ground that Renton soughi w en-
force statutes that had been declared unconstitutional by
this court. The district court remanded because the case
did not arise under federal law; the federal issue was
only a defense. It denied Renton’s motion for costs and
fees because it found that the petition raised serious
questions of law and that Playtime had not acted in bad
faith. Renton appeals the denial of costs and fees.
II
JURISDICTION
Renton argues that abstention was appropriate in this
case because it involves vital state interests, see Railroad
Commission v. Pullman Co., 312 U.S. 496, 501, 61 S.Ct.
643, 645, 85 L.Ed. 971 (1941), and because the exercise
of federal jurisdiction would interfere with the pending
state action, see Younger v. Harris, 401 U.S. 37, 91 S.Ct.
746, 27 L.Ed.2d 669 (1971). We do not agree.
A. Pullman Abstention is Inappropriate in This Case.
We recently held that the Pullman abstention doctrine
was inapplicable in a facial challenge to Washington’s
anti-obscenity statute. J-R Distributors, Inc. v. Eiken-
10a
berry, 725 F.2d 482 (9th Cir. 1984). We recognized that
Pullman abstention would almost never be appropriate
in first amendment cases because such cases involve
strong federal interests and because abstention could re-
sult in the suppression of free speech. Jd. at 487-88.
Similarly, we find that the district court in the case at
hand appropriately declined to abstain because “absten-
tion would not eliminate or materially alter the constitu-
tional issues presented.” Spokane Arcades, Inc. v. Broc-
kett, 631 F.2d 135, 137 (9th Cir. 1980), aff'd mem., 454
U.S. 1022, 102 S.Ct. 557, 70 L.Ed.2d 468 (1981).
B. Younger Abstention is Inappropriate in This Case.
We find Younger abstention inappropriate as well.
Federal courts, concerned for federal-state comity, have
employed Younger abstention to prevent federal inter-
ference with pending state criminal proceedings. Goldie’s
Bookstore, Inc. v. Superior Court, 739 F.2d 466, 469 (9th
Cir. 1984); see also Huffman v. Pursue, Ltd., 420 U.S.
592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). In this case,
Renton asked the district court to abstain in favor of a
state court action that sought only a declaration of the
ordinance’s constitutionality.
The cases applying Younger abstention have arisen in
criminal or quasi-criminal contexts. We have refused to
extend Younger to civil cases generally. See Goldie’s
Bookstore, 739 F.2d at 469-70; Champion International
Corp. v. Brown, 731 F.2d 1406 (9th Cir. 1984). We
agree with the district court’s refusal to do so in this
case as well. As we discussed in Miofsky v. Superior
Court, 703 F.2d 332 (9th Cir. 1983), in each of the cases
in which Younger has been applied in a civil context, the
civil suits “bore similarities to criminal proceedings or
otherwise implicated state interests vital to the operation
of state government.” Jd. at 337 (emphasis added).
These dual requirements are not present in a civil case
seeking only declaratory relief.
lla
Playtime did not violate the ordinance prior to chal-
lenging it. Thus, it was not even potentially subject to
the sort of enforcement action to which Younger applies.
In Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561,
45 L.Ed.2d 648 (1975), the plaintiff challenged a local
ordinance prohibiting topless dancing in bars. Three
bars in the town were affected and all complied with the
ordinance prior to commencing suit in federal court. The
day after the federal complaint was filed, one bar, M & L,
resumed topless dancing and was prosecuted criminally.
The other two bar owners remained in compliance. The
court held that Younger abstention applied to M & L,
but the retention of jurisdiction over the other two bar
owners was proper because they were not subject to
criminal prosecution prior to the issuance of the prelimi-
nary injunction. Playtime’s position is like that of the
two bars in Doran.
Playtime showed adult films in Renton for the first
time after the district court entered its preliminary in-
junction. By the time Renton amended its complaint in
the state action to include abatement of the nuisance,
making it the sort of enforcement action to which
Younger might arguably apply,* final judgment denying
8In Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43
L.Ed.2d 482 (1975), the Supreme Court held that a federal court
could not enjoin enforcement of a state judgment in a nuisance
abatement action brought by the state against an adult theater.
The Court rejected the argument that Younger was restricted to
criminal proceedings, but carefully limited its holding by recog-
nizing that the state action was “in important respects . . . more
akin to a criminal prosecution than are most civil cases. . . . The
proceeding is both in aid of and closely related to criminal stat-
utes... .” Jd. at 604, 95 S.Ct. at 1208. In Judice v. Vail, 430 U.S.
327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977), the Court held that
Younger applied to a state civil contempt proceeding because the
state’s “interest in the contempt process . . . vindicates the regular
operation of its judicial system.” Jd. at 335, 97 S.Ct. at 1217.
In Trainor ~ Hernandez, 431 U.S. 484, 97 S.Ct. 1911, 52 L.Ed.2d
486 (1977), abstention was required in deference to a prior state
civil action brought by the state of Illinois to recover welfare pay-
12a
the injunction had already been granied in the district
court. At this point, abstention was inappropriate.’
III
THE STANDARDS FOR REGULATION OF SPEECH
THROUGH THE USE OF THE ZONING POWER
Local governments may zone for the public welfare.
See Berman v. Parker, 348 U.S. 26, 32-33, 75 S.Ct. 98,
102-103, 99 L.Ed. 27 (1954). The power is considerable
ments obtained by fraud. The Court noted, however, that the
action was “an ongoing civil enforcement action . . . brought by the
State in its sovereign capacity.” Jd. at 444, 97 S.Ct. at 1918. And,
in Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994
(1979), abstention was required as to a pending state proceeding
in which the state was seeking custody of children abused by their
parents.
® The court in Huffman recognized that
“When no state criminal proceeding is pending at the time the
federal complaint is filed, federal intervention does not result
in duplicative legal proceedings or disruption of the state
criminal justice system; nor can federal intervention, in that
circumstance, be interpreted as reflecting negatively upon the
state court’s ability to enforce constitutional principles.”
Huffman, 420 U.S. at 603, 95 S.Ct. at 1207-1208 (quoting Steffel v.
Thompson, 415 U.S. 452, 462, 94 S.Ct. 1209, 1217, 39 L.Ed.2d 505
(1974) ).
If, however, “state criminal proceedings are begun against the
federal plaintiffs after the federal complaint is filed but before any
proceedings of substance on the merits have taken place in the
federal court, the principles of Younger v. Harris should apply in
full force.” Hicks v. Miranda, 422 U.S. 332, 349, 95 S.Ct. 2281, 2292,
45 L.Ed.2d 223 (1975) (emphasis added). In Hicks, state officials
confiscated allegedly obscene movies and brought an action in state
court against two employees of the theater. The theater owners
sought injunctive velief in federal court and the day after the
owners filed the tederai complaint. the state charged the theater
owners along with the'r employees in state court. The court applied
Younger because “appellees were charged ... prior to answering
the federal case and prior to any proceedings whatsoever before the
three judge court.” Jd. at 349-50, 95 S.Ct. at 2292.
aa
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td decom,
Peeters tice aN i ta es ctl
13a
but it must be exercised within constitutiona! limits.
See Schad v. Borough of Mount Ephraim, 452 U.S. 61,
68, 101 S.Ct. 2176, 2182, 68 L.Ed.2d 671 (1981). We
have an obligation to scrutinize strictly zoning decisions
that infringe first amendment rights. Tovar v. Bill-
meyer, 721 F.2d 1260, 1264 (9th Cir. 1983), cert. de-
nied, US. ——, 105 S.Ct. 223, 883 L.Ed.2d 152
(1984).
The district court found that 520 acres in Renton were
available for adult theater sites. Although we do not
quarrel with the conclusion that 520 acres is outside the
restricted zone, we do not agree that the land is avail-
able. A substantial part of the 520 acres is occupied
by:
(1) a sewage disposal site and treatment plant;
(2) a horseracing track and environs;
(3) a business park containing buildings suitable
only for industrial use;
10 We note that obscenity is not at issue in this case. The City
asks us to take notice of a state superior court decision in City of
Renton v. Playtime Theaters, No. 82-2-02344-2 (Superior Court,
King County, Washington, March 9, 1984), in which an advisory
jury ruled that four out of ten movies shown by Playtime are
obscene. The City did not argue before the district court that
Playtime’s movies were obscene. We would not reach the issue
in any event since this case does not involve the enforcement of
an anti-obscenity statute.
11 Although this circuit has not considered what “available”
means in this context, we draw support from the Court’s statement
in Young that “[t]he situation would be quite different if the
ordinance had the effect of suppressing, or greatly restricting
access to, lawful speech.” 427 U.S. at 71 n. 35, 96 S.Ct. at 2453
n. 35. See Basiardanes v. City of Galveston, 682 F.2d 1208, 1214
(5th Cir. 1982) (expanding on footnote in Young, court noted
that permitted locations were “among warehouses, shipyards, un-
developed areas, and swamps.’’).
14a
(4) a warehouse and manufacturing facilities ;
(5) a Mobil Oil tank farm; and
(6) a fully-developed shopping center.
Limiting adult theater uses to these areas is a sub
stantial restriction on speech. Thus, the Renton ordi-
nance, although patterned after the Detroit zoning or-
dinance upheld in Young v. American Mini Theaters,
Ine., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976),
is quite different in its effect. The Detroit ordinance
prohibited the location of an adult theater within 1,000
feet of another adult theater or other use having similar
deleterious effects on neighborhoods, or within 500 feet
of a residential area. There was no showing in Young
that the ordinance seriously limited the number of sites
available for adult theaters. The Renton ordinance’s
prohibition against adult theaters within 1,000 feet of
schools, parks, churches, and residential areas would re-
sult in a substantial restriction on this activity.
The Supreme Court developed a useful test to measure
a challenged regulation affecting speech in United States
v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20
L.Ed.2d 672 (1968), cited with approval in Schad, 452
U.S. at 69 n. 7, 101 S.Ct. at 2183 n. 7. Under this test,
a regulation is constitutional only if (1) it is within
the constitutional power of the government; (2) it fur-
thers an important or substantial governmental interest ;
(3) the governmental interest is unrelated to the sup-
pression of free speech; and (4) the incidental restric-
tion on first amendment freedom is no greater than es-
ential to further that interest. O’Brien, 391 U.S. at 377,
88 S.Ct. at 1679. Here, Renton bears the burden of prov-
ing that the elements of this test are satisfied. See First
National Bank v. Bellotti, 485 U.S. 765, 786, 98 S.Ct.
1407, 1421, 55 L.Ed.2d 707 (1978).
15a
IV
STANDARD OF REVIEW
The parties stipulated that the record developed at the
preliminary injunction stage would serve as the record
upon which the court could decide the permanent injunc-
tion. The parties in effect submitted the case for trial
upon an agreed record, the district court resolving any dis-
puted issues of fact presented by the record.” We review
these factual determinations under a clearly erroneous
standard. We do not, however, apply a clearly erroneous
standard of review to the district court’s findings on the
O’Brien factors because our recent decision in United
States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc),
cert. denied, US. , 105 8.Ct. 101, 83 L.Ed.2d
46 (1984), and the Supreme Court’s recent decision in
Bose Corp. v. Consumers Union of United States, Inc.,
US. , 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984),
require us to review them de novo.
12In Starsky v. Williams, 512 F.2d 109 (9th Cir. 1975), we
recognized,
“(While summary judgment cannot be granted where there
are questions of fact to be disposed of, even by consent of all
concerned, there is no reason why parties cannot agree to try
a case upon affidavits, admissions and agreed documents. In
effect, that is what was done here. No objection whatever was
made at the time of submission that there were questions of
fact which could not be decided upon the evidence before the
trial court.”
Id. at 1183 (quoting Gillespie v. Norris, 231 F.2d 881, 883-84 (9th
Cir. 1956)). Th ‘atement applies here as well.
Playtime assert. nat summary judgment was improper because
it relied on the district court’s findings on the preliminary injunc-
tion in entering into the stipulation. Thus, Playtime argues, when
the district court inexplicably changed its findings of fact, it created
material disputed issues of fact that would make summary judg-
ment improper. Although we sympathize with Playtime’s argument,
we agree with Renton. Playtime made a tactical choice not to sub-
mit further documentation or testimony and cannot now complain.
16a
In McConney we held that mixed questions of fact and
law are subject to de novo review when they require us
“to exercise judgment about the values that animate legal
principles ....” 728 F.2d at 1202. In no area of law
is the consideration of the values behind legal principles
more important than when state action threatens to in-
fringe on activity protected by the first amendment.
In Bose Corp., the Supreme Court held that a trial
court’s finding as to “actual malice” in a libel case was
subject to de novo review. The question as framed by
the Court was “whether the evidence in the record...
is of the convincing clarity required to strip the utter-
ance of First Amendment protection. ... Judges...
must independently decide whether the evidence in the
record is sufficient to cross the constitutional thresholc
..” 104 §.Ct. at 1965. The Court recognized that it
“has regularly conducted an independent review of the
record both to be sure that the speech in question actually
falls within the protected category and to confine the
perimeters of any unprotected category within accept-
ably narrow limits in an effort to ensure that protected
expression will not be inhibited.” Jd. 104 S.Ct. at 1962.
We have a similar duty in the case at hand.™
V
APPLICATION OF THE O’BRIEN FACTORS
A. Renton Has Not Shown a Substantial Govern-
mental Interest.
The record presented by Renton to support its as-
serted interest in enacting the zoning ordinance is very
13 We will not deal with the first factor of United States v.
O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672
(1968), in detail, for all agree that such a zoning ordinance is with-
in the constitutional power of the government. See Berman v.
Parker, 348 U.S. 26, 32-33, 75 S.Ct. 98, 102-103, 99 L.Ed. 27
(1954); see also Schad v. Borough of Mount Ephraim, 452 U.S.
61, 68, 101 S.Ct. 2176, 2182, 68 L.Ed.2d 671 (1981).
et eats “ _ m Oeics me) 2 ns in hee
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17a
thin. The ordinance itself contains only conclusory state-
ments. No record of the public hearing was made or
preserved. City officials who attended testified that the
hearing was held, but said little else. To uphold the sub-
stantiality of the governmental interest, the district court
had to justify Renton’s reliance on the experiences of
other towns and cities, particularly Detroit and Seattle,
citing the Seventh Circuit’s decision in Genusa v. City
of Peoria, 619 F.2d 1203 (7th Cir. 1980).
In Genusa, the court relied on Young to uphold a pro-
vision of a zoning ordinance which required, just as the
Detroit ordinance did, the dispersal of adult uses. 7d.
at 1211. Although the Renton ordinance purports to copy
Detroit’s and Seattle’s, it does not solve the same prob-
lem in the same manner. The Detroit ordinance was in-
tended to disperse adult theaters throughout the city so
that no one district would deteriorate due to a concentra-
tion of such theaters. The Seattle ordinance, by contrast,
was intended to concentrate the threaters in one place so
that the whole city would not bear the effects of them.
The Renton ordinance is allegedly aimed at protecting
certain uses—schools, parks, churches and residential
areas—from the perceived unfavorable effects of an adult
theater.
This court and the Supreme Court require Renton to
justify its ordinance in the context of Renton’s problems
—not Seattle’s or Detroit’s problems. In Young, the plu-
rality found that the record disclosed a factual basis for
the council’s determinations, 427 U.S. at 71, 96 S.Ct. at
2452, and Justice Powell cited “reports and affidavits
from sociologists and urban planning experts, as well as
some laymen.” /d. at 81 n. 4, 96 S.Ct. at 2457-58 n. 4
(Powell, J., concurring).'* Similarly, in the Seattle case,
14 The Court in Schad recognized that ordinances must address
particular problems, citing Justice Powell’s concurrence in Young:
Emphasizing that the restriction was tailored to the particular
problem identified by the City Council, [Justice Powell] ac-
18a
the zoning ordinance was the “culmination of a long pe-
riod of study and discussion.” Northend Cinema, Ine.
v. City of Seatile, 90 Wash.2d 709, 711, 585 P.2d 1153
(1978), cert. denied, 441 U.S. 945, 99 S.Ct. 2166, 60
L.Ed.2d 1048 (1973). By contrast, in Schad, which in-
validated an ordinance prohibiting live nude dancing in
the town, the Supreme Court stressed that the Borough
had not adequately justified its substantial restriction by
evidence in the record. 452 U.S. at 72, 101 S.Ct. at 2184.
The Court cited by way of contrast the full record made
in Young. Id.
In Kuzinich v. County of Santa Clara, 689 F.2d 1345
(9th Cir. 1982), we reversed summary judgment vali-
dating a zoning ordinance regulating adult theaters and
bookstores in part because of lack of evidence. We said,
“While the ordinance here was said to be copied after
the Detroit ordinance validated in Young, we find very
little evidence bearing on the concentration of adult en-
terprises.” Jd. at 1348. We found that “([c]onclusions
alone support the thesis that adult bookstores and movie
theaters have any different impact upon traffic and litter-
ing than other kinds of businesses have.” Jd. Further,
in Ebel v. City of Corona, 698 F.2d 390, 393 (9th Cir.
1983), we remanded for “factual findings on the validity
of the city’s assertions of harm.” Accord Basiardanes
v. City of Galveston, 682 F.2d 1208, 1215 (5th Cir. 1982)
(contrasting record in Young against “empty” record
before it); Fantasy Book Shop, Inc. v. City of Boston,
652 F.2d 1115, 1125 (1st Cir. 1981) (remanding for
factual findings to support city’s assertions, stating, “the
government bears the burden of proving some einpirical
knowledged that “[t]he case would have present[ed] a dif-
ferent situation had Detroit brought within the ordinance types
of theaters that had not been shown to contribute to the de-
terioration of surrounding areas.”
Schad, 452 U.S. at 72 n. 10, 101 S.Ct. at 2184 n. 10 (quoting Young,
427 U.S. at 82, 96 S.Ct. at 2458 (Powell, J., concurring) ).
2 OMe ewe 8 ee te em
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19a
basis for the projections on which it relies.”); Avalon
Cinema Corp. v. Thompson, 667 F.2d 659, 661-62 (8th
Cir. 1981) (en bane) (contrasting Young and requiring
city to present evidence to justify its restriction) ; Keego
Harbor Co. v. City of Keego Harbor, 657 F.2d 94, 98
(6th Cir. 1981) (reversing because city’s post hoc justi-
fications failed to support ordinance).
As in Kuzinich, we find Renton’s justifications conclu-
sory and speculative. Renton has not studied the effects
of adult theaters and applied any such findings to the
particular problems or needs of Renton. The studies
done by Detroit on the problems of concentrating adult
uses are simply not relevant to the concerns of the Ren-
ton ordinance—the proximity of adult theaters to certain
other uses. We do not say that Renton cannot use the
experiences of other cities as part of the relevant evi-
dence upon which to base its actions, but in this case
those experiences simply are not sufficient to sustain Ren-
ton’s burden of showing a significant governmental in-
terest.
B. Renton Has Not Proved That The Regulation is
Unrelated to the Suppression of Speech.
Renton must prove that its zoning decision was “mo-
tivated by a desire to further a compelling governmental
interest unrelated to the suppression of free expression.”
Tovar v. Billmeyer, 721 F.2d 1260, 1266 (9th Cir. 1983) ;
see also Lydo Enterprises v. City of Las Vegas, 745 F.2d
1211, 1214-1215 (9th Cir. 1984). Both the magistrate
and the district court recognized that many of the stated
In Lydo Enterprises v. City of Las Vegas, 745 F.2d 1911
(9th Cir. 1984), the court, citing Schad, 452 U.S. at 67-70, 101
S.Ct. at 2181-2184, and O’Brien, 391 U.S. at 377, 88 S.Ct. at 1679,
reaffirmed that an ordinance that restricts free expression must
further “a substantial governmental interest unrelated to the sup-
pression of free expression.” 745 F.2d at 1215. In that case, in the
context of a preliminary injunction, the court held that the plain-
tiffs had not developed an adequate record to enjoin enforcement
of the ordinance.
20a
reasons for the ordinance were no more than expressions
or dislike for the subject matter.’® The record before us
raises at least an inference that a motivating factor be-
hind the ordinance was suppression of the content of the
speech as opposed merely to regulating the effects of the
mode of that speech. See Tovar, 721 F.2d at 1266. The
record does not reveal that Renton has rebutted the in-
ference. As discussed above, the City had little empirical
evidence before it to demonstrate the alleged deleterious
effects of adult theaters.
The district court upheld the ordinance on the ground
that Renton’s predominate concerns were legitimate. But
that is not the test in this Circuit. Where mixed motives
are apparent, as they are here, Tvvar requires that the
court determi:, whether “a motivating factor in the zon-
ing decision was to restrict plaintiffs’ exercise of first
amendment rights.” Jd. at 1266 (emphasis added).
Neither the facts before the Renton City Council nor
those presented to the district court appear to justify
the ordinance’s restriction on protected expression. Ren-
ton has not shown that it was not motivated by a desire
to suppress speech based on its content.’* Given the in-
16 See supra note 3.
17 The Tovar test is consistent with other constitutional cases
regarding land use decisions. See, e.g., Village of Arlington Heights
v. Metropolitan Housing Development Corp., 429 U.S. 252, 266,
97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977) (“[d]jetermining whether
invidious discriminatory purpose was a motivating factor demands
a sensitive inquiry into such circumstantial and direct evidence
of intent as may be available” (emphasis added) ).
18 The recent Supreme Court decision in Members of City Coun-
cil v. Taxpayers for Vincent, U.S. ——, 104 S.Ct. 2118, 80
L.Ed.2d 772 (1984), upholding an ordinance prohibiting the posting
of signs on public property, lends support to the result we reacr
in this case. In Vincent, the ordinance applied to all signs, regard-
less of the content of their message. The court noted there was
“no claim that the ordinance was designed to suppress certain
ideas that the City finds distasteful.” Jd. 104 S.Ct. at 2126.
Oe = it Sc llaea
2la
ferences raised in the record before us, we remand for
reconsideration, particularly in light of Tovar.
Renton argues, additionally, that even if it has ef-
fectively banned adult theaters, the ordinance is con-
stitutional because similar adult theaters exist in nearby
Seattle. The Supreme Court rejected such an argument
in Schad and we reject it here as well. “‘[O]ne is not to
have the exercise of his liberty of expression in appro-
priate places abridged on the plea that i* may be exer-
cised in some other place.’” Schad, 45% u.S. at 76-77,
101 S.Ct. at 2187 (quoting Schneider v. New Jersey, 308
U.S. 147, 163, 60 S.Ct. 146, 151, 84 L.Ed. 155 (1939) ).”
VI
COSTS AND FEES ON SECOND REMOVAL
In number 83-3980 Renton claims it is entitled to fees
under 28 U.S.C. § 1447(c), because the Playtime’s second
removal was in bad faith.” We review the court’s finding
19In view of our holding, we need not address the overbreadth
or vagueness issues raised by Playtime. Playtime also argues that
the fact that Renton’s ordinance is directed only at adult theatres
and not other adult uses is a denial of equal protection. We do
not denigrate the validity of this issue, but need not reach it.
2° The district court’s ruling was oral and no written opinion or
docket entry was made. Although Fed.R.App.P. 4(a) (2) validates
a notice of appeal filed after announcement of 4 decision or order,
it contemplates the entry of a judgment under Fed.R.Civ.P. 58, 79.
No such entry was made in this case; thus, under Rule 4(a) (2),
the notice of appeal has no date of entry to which to conform.
Nonetheless we conclude that we have jurisdiction over this
appeal under Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct.
1117, 55 L.Ed.2d 357 (1978). In Bankers Trust, the Supreme Court
held that the parties to an appeal could waive Rule 58's separate
judgment requirement when the district court clearly evidenced its
intent that its order would represent the final decision in the case
and the parties did not object to the absence of a separate judg-
ment. /d. at 387-88, 98 S.Ct. at 1121-22. We find those factors
present here. The remand order was entered in the docket and no
further proceedings could have existed in federal court. Neither
22a
of an absence of bad faith under the clearly erroneous
standard. See Dogherra v. Safeway Stores, Inc., 679 F.2d
1293, 1298 (9th Cir.), cert. denied, 459 U.S. 990, 103
S.Ct. 346, 74 L.Ed.2d 386 (1982).
Renton stresses that this was the second removal pe-
tition, but fails to mention that the first was remanded
because the second step of deciding if the case could be
removed if it had stated a cause of action. The second
removal was on the basis of Renton’s amended complaint,
which did state a cause of action. This complaint, how-
ever, sought enforcement of state laws that had been
declared unconstitutional by other courts. Under the cir-
cumstances, the district court did not err in finding no
bad faith.
Vil
CONCLUSION
The City failed to sustain its burden of justifying its
ordinance under the test of United States v. O’Brien, 391
U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672
(1968), as applied in similar cases by the Supreme Court
and this court. Accordingly, we reverse and remand case
number 83-3805 for proceedings consistent with this
opinion.
The district court did not clearly err in denying the
City’s motion for costs and fees in connection with the
second removal. Accordingly, we affirm in case number
83-3980.
AFFIRMED in part, REVERSED in part, and RE-
MANDED.
party has objected to the lack of a separate judgment here. Al-
though the district court’s order in Bankers Trust was contained
in a written opinion, we do not find that fact controlling except
as it bears on the clarity of the court’s intent. The transcript of
the hearing on the remand leaves no doubt as to the district court’s
intent. Thus, the oral decision was an appealable order.
ee
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23a
APPENDIX B
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
No. C82-59M
PLAYTIME THEATRES, INC., et al.,
Plaintiffs,
v.
CITY OF RENTON, et al.,
Defendants.
No. C82-263M
(Remanded)
CITY OF RENTON, et al.,
Defendants.
V.
PLAYTIME THEATRES, INC., et al.,
Plaintiffs,
[Filed Feb. 18, 1983]
ORDER
24a
INTRODUCTION
On January 11, 1983, the Court entered its order ap-
proving and adopting the magistrate’s report and recom-
mendation and denying defendants’ motions to dismiss
and for summary judgment, and granting preliminary
injunction pendente lite. A separate order was entered
January 11, 1983 approving and adopting the magis-
trate’s supplemental report and recommendation and
granting the motion to remand Cause No. C82-263M
to King County Superior Court.
On February 10, 1983, a hearing was hac pursuant to
the parties’ January 31, 1983 Stipulation and Order
separating damages claims from plaintiffs’ prayer for
permanent injunction and submitting the matter to the
Court on the evidence considered by Magistrate Sweigert.
The Court has considered the evidence that was before
the Magistrate, has considered the parties’ memoranda,
affidavits and oral arguments. Accordingly, the Court
rules that abstention would be improper and plaintiffs’
prayer for a permanent injunction must be DENIED.
FEDERAL ABSTENTION
The City of Renton argues that the preliminary in-
junction was improvidently granted, that the permanent
injunction must be denied, and that this Court must
abstain and dismiss this action for lack of jurisdiction.
Renton supplements its earlier argument and authori-
ties on this issue with Miofsky v. Superior Court of State
of California, et al., in No. 80-4589, slip op. (9th Cir.
Jan. 3, 1983). Renton argues that Miofsky aids the
resolution of the abstention issue herein by refining the
meaning of the term “vital state interest” without giv-
ing it such overbreadth to deprive the federal court of ail
of its 42 U.S.C. §$ 1983 jurisdiction. Renton asserts that
the city’s interest in establishing zones and setting set
backs is a “vital state interest” of the sort that requires
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Piietterec:.5 » a palais AU A A and lr at eC Sarl SS a aw Ala femme te ren a Ah ase Ree sande, ae
25a
the Court to abstain from acting in the case at bar pend-
ing the outcome in State Court on the Complaint for
Declaratory Judgment. The Miofsky court distinguished
the cases cited for abstention:
In each of these cases, the state or an agent of the
state was a party to the proceeding deemed insu-
lated from federal court intervention. In addition,
each of these civil suits bore similarities to criminal
proceedings or otherwise implicated state interests
vital to the operation of state government.
Id. at 7. The context of the Miofsky suit was a complaint
that state court proceedings violated plaintiff’s federally
protected rights under Section 1983.
Miofsky does little to refine the term “vital state inter-
ests” beyond reasoning that abstention is improper in a
Section 1983 civil rights action. The Court is unper-
suaded that federal abstention would be proper here.
“The state judicial proceeding in this case is purely civil
in nature, regardless of the importance of the state
policies which the city asserts.” Magistrate’s Supple-
mental Report and Recommendation at 5. Although
zoning, which is the underlying subject matter of the
declaratory judgment’s suit in state court, may be an
important function performed by a city, this alone does
not prevent a federal court from scrutinizing the consti-
tutionality of the city’s actions. The Court concludes that
the state court action is no bar to ontinue jurisdiction
over plaintiff’s suit for injunctive relief.
PERMANENT INJUNCTION
I.
In determining the propriety of a permanent injunc-
tion, the Court must first find that there is a threatened
violation of a legal right which would produce irrepara-
ble harm and for which any other remedy would be
26a
insufficient. The hardship must tip in favor of the
plaintiff.
Renton’s Ordinance, really a series of three ordinances:
3526, 3629, and 3637, is an attempt to preclude the opera-
tion of “adult motion picture theatres” in zones which
are within 1,000 feet from certain other specified uses
or zones. “Adult motion picture theatres” refers to those
theatres exhibiting films characterized by an emphasis on
matter relating to “specified sexual activities” or “speci-
fied anatomical areas” as a “continuing course of con-
duct . . . in a manner which appeals to a prurient. inter-
est.” The subject matter of the films is given a detailed
definition, but the “continuing course of conduct” lan-
guage is not. The ordinance in its essential features is
virtually identical to the ordinances in Young v. Ameri-
can Mini Theatres, 427 U.S. 50 (1976) and Northend
Cinema, Inc. v. City of Seattle, 90 Wash. 2d 709, 585
P.2d 1153 (1978) except that the word “used” in de
scribing “adult motion picture theatre” is defined with
the “continuing course of conduct” language.
A first amendment interest is affected. The ordinance
deals not with obscene material, but sexually explicit
material. It is concerned with the exhibition of films in-
side the theatre and not with “pandering,” “the business
of purveying textual or graphic matter openly advertised
to appeal to the erotic interest of their customers.”
Pinkus v. United States, 436 U.S. 298, 303 (1978).
II.
Since expression protected by the first amendment is
the subject of Renton’s ordinance, the next inquiry is
whether there is actual intrusion upon this first amend-
ment interest and if so, the nature of the intrusion.
There is some intrusion: in certain areas of Renton,
films described in the ordinance may not be shown as a
continuing course of conduct in a manner which appeals
27a
to a prurient interest. This intrusion is not substantial
under the circumstances for several reasons. Renton’s
restrictions are slightly narrower than those in the cases
cited supra, because of the “continuing course of conduct”
language. No theatre had to be closed under Renton’s
ordinance, for no theatres were operating or were con-
Sidering operating when it was enacted. There is no
content limitation on the creators of adult movies. The
520 acres of land in all stages of development available
for location adult theatres (David R. Clemens Affidavit of
May 27, 1982, unrebutted, and his June 23, 1982 testi-
mony at 36-41) belies there being substantial intrusion
upon plaintiffs’ first amendment right. The real question
is whether in spite of the acreage available to plaintiffs
to locate a theatre, the economic impact results in a sub-
stantial, impermissible effect upon first amendment
rights.
Young notes that “the inguiry for first amendment
purposes is not concerned with economic impact; rather,
it looks only to the effect of this ordinance upon freedom
of expression.” 427 U.S. at 78 (Powell, J., concurring).
The effect of Renton’s ordinance is that plaintiffs or
others wishing to exhibit adult film fare and not having
a theatre already built and ready for occupancy, must
consider whether demand is such that construction of a
theatre is feasible. This impact is no different than that
upon other land users who must work with what land is
avzilable to them in the city. With a large percentage of
land within the city available to plaintiffs, the financial
feasibility of the various locations is for them to analyze.
To conclude otherwise would be to place a burden on the
city that Constitutional analysis does not require. More-
over, the message of no individual or group has been
silenced. The number of such establishments has not
been reduced because none existed and none were at-
tempting to establish themselves in Renton prior to the
ordinance. The ordinance merely specifies where adult
28a
theatres may not locate and in doing so, stifles no ex-
pression. See, Young, 427 U.S. at 81, n.4 (Powell, J.,
concurring).
The Court concludes that there is not a substantial
intrusion upon first amendment interests. Plaintiffs are
not virtually excluded from Renton by being confined to
the “most unattractive, inaccessible, and inconvenient”
areas. But see Basiardanes v. City of Galveston, 682
F.2d 1203, 1214 (5th Cir. 1983) Renton’s exhibits, affi-
davits, memoranda, and oral argument persuade the
Court that acreage in all stages of development from raw
land to developed, industrial, warehouse, office, and shop-
ping space that is criss-crossed by freeways, highways,
and roads cannot be so characterized. Significant cited
cases to the contrary are distinguishable: Schad v. Bor-
ough of Mount Ephraim, 452 U.S. 61 (1981) (live en-
tertainment including nude dancing was not a permitted
use, and concerns such as trash, police protection, and
medical facilities were not sufficient justifications for the
exclusion). Basiardanes (available sites much less de-
sirable than in Renton, and the zoning ordinance was
passed after the theatre was leased for showing adult
films); Avalon Cinema Corporation v. Thompson, 667
F.2d 659 (8th Cir. 1981) (zoning ordinance enacted
after suggested adult use) ; Keego Harbor Co. v. of Keego
Harbor, 657 F.2d 94 (6th Cir. 1981) [sic] (no location
within city that was not within 500 feet of a bar or other
regulated use). Ample, accessible real estate is available
for the location of adult theatres in Renton.
ITI.
The insubstantia! intrusion upon first amendment in-
terests by Renton’s ordinance must be considered against
the governmental interest which led to its enactment.
Under the four-part test of United States v. O’Brien, 391
U.S. 367, 377 (1968), a governmental regulation is justi-
29a
fied despite incidental impact upon first amendment
interests
1. If it is within the constitutional power of the
government,
2. If it furthers an important or substantial govern-
mental interest,
3. If the governmental interest is unrelated to the
suppression of free expression, and
4. If the governmental restriction is no greater than
necessary for the furtherance of that interest.
As in Young, the first two elements of the test are
met. The ordinance was within the City of Renton’s
power to enact. Nor is there any doubt that the interests
sought to be furthered by this ordinance are important
and substantial.
Without stable neighborhoods, both residential and
commercial, large sections of a modern city quickly
can deteriorate into an urban jungle with tragic
consequences to social, environmental, and economic
values. While I agree with respondents that no
aspect of the police power enjoys immunity from
searching constitutional scrutiny, it also is unde-
niable that zoning, when used to preserve the charac-
ter of specific areas of a city, is perhaps “the most
essential function performed by local government,
for it is one of the primary means by which we
protect that sometimes difficult to define concept of
quality of life.” Village of Belle Terre v. Boraas,
416 U.S., at 13 (Marshall, J., dissenting).
Young, 427 U.S. at 80 (Powell, J., concurring). The
critical inquiries are whether these interests are fur-
thered by the ordinance and whether the governmental
interest is unrelated to the suppression of free expression,
element three.
30a
Renton’s interests, articulated in the ordinance, “in
protecting and preserving the quality of its neighbor-
hoods, commercial districts, and the quality of urban life
through effective land use planning,” are furthered by the
ordinance. The ordinance states in item 14, p. 3, Nos.
3629 and 3637:
14. Experience in numerous other cities, including
Seattle, Tacoma and Detroit, Michigan, has shown
that location of adult entertainment land uses de-
grade the quality of the areas of the City in which
they are located and cause a blighting effect upon
the city. The skid row [sic] effect, which is evident
in certain parts of Seattle and other cities, will have
a significantly larger affect upon the City of Renton
than other major cities due to the relative sizes of
the cities.
There was no evidence adduced to show that the sec-
ondary effects of adult land uses would be different or
lesser in Renton than in Seattle, Tacoma, or Detroit.
Certainly, Renton must justify its ordinance, but in so
doing, experiences of other cities and towns must consti-
tute some evidence to the legislative body considering
courses of action. Genusa v. City of Peoria, 619 F.2d
1203, 1211 (7th Cir. 1980). If the goal of preservation
of the quality of urban life is to have any meaning, a
city need not await deterioration in order to act. I/d.
The observed effects in nearby cities provides persuasive
circumstantial evidence of the undesirable secondary ef-
fects Renton seeks to preclude from within 1,000 feet of
residential zones, schools, religious facilities, and public
parks. Although the effects in other cities are starkly
shown when adult uses are congregated, Renton need not
await such congregation. Similarly, no negative infer-
ence can be drawn from Renton’s choosing to address only
one form of “adult” usage. It’s [sic] effort would have
been bolstered by considering other “adult” uses in view
of other cities’ experiences, but inclusion cf these other
wo. oe
» stata s =
3la
“adult” uses is not mandatory. The city being aware
‘that it is treading in a delicate area between valued
interests might understandably be loath to tackle the
description, restriction, and rationale of more than one
such usage at a time. “[T]he city must be allowed a
reasonable opportunity to experiment with solutions to
admittedly serious problems.” Young, 427 U.S. at 71.
The governmental interest is unrelated to the suppres-
sion of free expression, and the third element is satisfied.
Concern with preventing undesirable secondary effects is
not the kind of apprehension aimed at regulating the con-
tent of an adult theatre’s exhibitions. Rather, it is a per-
missible classification based on deleterious secondary ef-
fects. Young, 427 U.S. at 70, 71.
Renton solicited testimony through its City Council
and the Council’s Planning and Development Committee.
It summarized some ideas put forth at those public
meetings in its ordinance. Predictably, some citizens ex-
pressed concerns reflecting their values which might be
impermissible bases for justification of restrictions af-
fecting first amendment interests. See, e.g., Erznoznik
v. City of Jacksonville, 422 U.S. 205 (1975) (overbroad
effort to protect privacy interests of certain citizens from
“offensive’”” speech—nude movie fare visible from public
street). The inclusion of these statements should not
negate the legitimate, predominate concerns of the City
Council nor lessen the value of the circumstantial evi-
dence of adult land uses’ effects in nearby cities. Argu-
ably, some of the statements may be construed as charac-
terizations of the community’s quality of life that is
presently sought to be preserved. Citizens’ judgments as
to a city’s quality of life is [sic] necessarily subjective.
It is necessary to separate these subjective characteriza-
tions of the city’s quality of life from the goals of protecting
and preserving it and the evidence that the means will
further the end. Renton could have written its ordinance
32a
in such a way as to better distinguish these aspects of
the problem, but this is not a material consideration.
Finally, part four of the O’Brien test is satisfied for
the restriction is no greater than necessary to further the
governmental interest. The 1,000-foot aspect of the re-
striction does not preclude adult theatres from locating
anywhere in the city as in Keego Harbor. Renton’s ordi-
nance is similar to others that have been upheld except
for the “continuing course of conduct” language discussed
earlier which has some narrowing effect.
Renton’s effort to preserve the quality of its urban life
by enacting an ordinance which regulates adult theatre
location is minimally intrusive of a particular category
of protected expression described in Young as being of “a
lesser magnitude than the interest in untrammeled politi-
cal debate.” 427 U.S. at 70. Renton’s effort under the
circumstances is not unconstitutional under ‘the first
amendment. Injunctive relief from enforcement of the
ordinance would be improper. NOW, THEREFORE,
For the foregoing reasons, the Court having reconsid-
ered its de novo review which led to the entry of the
preliminary injunction, the order granting preliminary
injunction must be vacated as improvidently granted,
and plaintiffs’ prayer for permanent injunction against
enforcement of the ordinance is DENIED. Accordingly,
the City of Renton’s Motion to Dismiss for Lack of Juris-
diction is DENIED, and its Motion for Summary Judg-
ment is GRANTED.
SO ORDERED.
DATED this 17th day of February, 1983.
/s/ Walter T. McGovern
WALTER T. MCGOVERN
Chief
United States District Judge
dle a ot
33a
APPENDIX C
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF WASHINGTON
Civil Action Docket No. C82-59M
PLAYTIME THEATRES, INC., e¢ al.
vs.
CITY OF RENTON, et al.
JUDGMENT
This action came on for (hearing) before the court,
United States District Judge Walter T. McGovern pre-
siding. The issues having been duly (heard) and a de-
cision having been duly rendered, it is ordered and ad-
judged that plaintiffs’ prayer for permanent injunction
is DENIED, City of Renton’s motion to dismiss for lack
of jurisdiction is DENIED and City of Renton’s motion
for summary judgment is GRANTED.
[Filed Feb. 18, 1983]
_ Dated at: Seattle, Washington
Date: 18 February 1983
/s/ [Ilegible]
For the Court
84a
APPENDIX D
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
No. C82-59M
PLAYTIME THEATERS, INC.,
a Washington corporation, et al.,
. Plaintiffs,
THE CITY OF RENTON, et al.,
Defendants.
[Filed Apr. 29, 1983]
ORDER DENYING PLAINTIFF’S MOTIONS TO
ALTER AND AMEND JUDGMENT AND FOR
STAY PENDING APPEAL
THE COURT having considered all the material rele-
vant to Plaintiff’s motions to alter and amend judgment
and for stay pending appeal, including the parties’ briefs,
concludes that its judgment should remain as earlier en-
tered. NOW, THEREFORE,
IT IS HEREBY ORDERED, ADJUDGED and DE-
CREED that Plaintiff's Motion to Alter and Amend
Judgment is DENIED, and its Motion for a Stay Pend-
ing Appeal is DENIED.
DATED this 29th day of April, 1983.
/s/ Walter T. McGovern
WALTER T. MCGOVERN
Chief
United States District Judge
35a
APPENDIX E
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
Case No. C82-59M
PLAYTIME THEATRES, INC., et al.,
" Plaintiffs,
CITY OF RENTON, et al.,
Defendants.
Case No. C82-263M
CITY OF RENTON, et al.,
- Plaintiffs,
PLAYTIME THEATRES, INC., et al.,
Defendants.
[Filed Jan. 13, 1983]
ORDER DENYING DEFENDANTS’ MOTIONS TO
DISMISS AND FOR SUMMARY JUDGMENT AND
GRANTING PRELIMINARY INJUNCTION
PENDENTE LITE
The Court, having considered plaintiffs’ motion for
preliminary injunction, defendants’ renewed motion to
dismiss and motion for summary judgment, the Report
and Recommendation of United States Magistrate Philip
K. Sweigert, and the balance of the records and files
herein, does hereby find and ORDER:
(1) Said Report and Recommendation is hereby ap-
proved and adopted;
36a
(2) Defendants’ motion for summary judgment and
renewed motion to dismiss and [sic] hereby DENIED;
(3) Defendant City of Renton, its officers, agents,
servants, employees, successors, attorneys, and all those
in active concert or participation with them, are en-
joined from enforcing City of Renton Ordinance No.
3637 against plaintiffs, said preliminary injunction to
remain in effect pending a decision by this Court on
the merits and until further order of the Court; and,
(4) The Clerk of Court is to direct copies of this Or-
der to all counsel of record and to Magistrate Sweigert.
DATED this 11th day of January, 1983.
/s/ Walter T. McGovern
Chief
United States District Judge
37a
APPENDIX F
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
Case No. C82-59M
PLAYTIME THEATRES, INC., et al.,
Plaintiffs,
Vv.
CITY OF RENTON, et al.,
Defendants.
Case No. C82-263M
CITY OF RENTON, et al.,
Plaintiffs,
Vv.
PLAYTIME THEATRES, INC., et al.,
Defendants.
REPORT AND RECOMMENDATION
INTRODUCTION AND SUMMARY CONCLUSION
On February 23, 1982, the Court, approving and adopt-
ing a Report and Recommendation filed February 3,
1982 (Dkt. #22), entered an order denying plaintiffs’
motion for temporary restraining order (Dkt. #39).
38a
Three motions are presently before the Court: First,
plaintiffs’ motion for preliminary injunction, second, de-
fendants’ renewed motion to dismiss, and, third, defend-
ants’ motion for summary judgment. At a hearing con-
ducted on June 23, 1982, the undersigned heard oral
testimony, received documentary evidence, and heard the
arguments of counsel with respect to all thee motions.
Based thereon and upon the affidavits and the balance
of the record before me, and for the reasons set forth
herein in some detail, I conclude that plaintiffs have
established both a clear likelihood of success on the merits
and irreparable injury. I recommend that the Court
enjoin enforcement of Renton’s zoning ordinance dealing
with adult theatres. I also, of course, recommend denial
of defendants’ dismissal and summary judgment motions.
THE RECORD BEFORE THE COURT
(A) The Ordinances.
In April of 1981, the City of Renton enacted Ordinance
No. 3526 providing that adult motion picture theatres as
defined therein were prohibited:
(1) Within or within 1,009 feet of any residen-
tial zone or single family or multiple family use;
(2) Within one mile of any public or private
school ;
(3) Within 1,000 feet of any church or other
religious facility or institution; and,
(4) Within 1,000 feet of any public park or P-I
zone.
Early in 1982, plaintiffs acquired two existing theatre
buildings in the City of Renton. It was their intention to
show feature length sexually explicit adult films in one of
them. The theatre buildings, however, were located in an
area proscribed by Ordinance No. 3526, prompting plain-
39a
tiffs to commence the present action seeking damages and
an injunction prohibiting enforcement of the ordinance on
due process, First Amendment, and equal protection
grounds. Their principle contentions are that the City
of Renton failed to factually support a sufficient govern-
mental interest justifying intrusion upon protected speech
and that the ordinance was not a mere locational restric-
tion but a virtual prohibition of adult theatres in the City
of Renton.
While the case was pending, more specifically in May,
1982, defendant City of Renton enacted Ordinance No.
3629, which amended Ordinance No. 3526. The principle
changes were:
(1) The amending ordinance contained an elab-
orate statement of the reasons for enacting both Or-
dinance No. 3526 and Ordinance No. 3629;
(2) A definition of the word “used” was added;
(3) Violation of the use provisions of the ordi-
nance was declared to be a nuisance per se to be
abated civilly and not by criminal enforcement;
(4) The required distance of an adult theatre from
a school was reduced from one mile to 1,000 feet;
and,
(5) A severability clause was added.
The amending ordinance, No. 3629, also contained an
emergency clause and was to be effective as of the date
of its passage and approval by the mayor, May 38, 1982.
On June 14, 1982, defendants passed yet a third ordi-
nance, No. 3637, which was identical to Ordinance No.
3629 in all respects except that the emergency clause was
deleted and the ordinance was to become effective thirty
days following its publication.
While plaintiffs argue that the only ordinance before
the Court is No. 3526, they are clearly incorrect. Their
40a
request for injunctive relief obligates the Court to con-
sider any and all changes in the applicable zoning scheme
to the date of its ruling.
(B) Events Leading to Passage of the Ordinances.
The City of Renton presently has no theatres which
exhibit sexually explicit adult films. It appears that in
May of 1980, at the suggestion of a City of Renton hear-
ing examiner, the mayor suggested to the City Council
that they consider the advisability of passing zoning leg-
islation dealing with adult entertainment uses, specifi-
cally “adult theatre{s], bookstore[s], film and/or novelty
shop[s]” prior to the time any such businesses might seek
to locate in the city. The mayor’s memorandum suggested
that some cities had experienced difficulties in “re-doing”
their zoning ordinances once such uses were established
in the community.
On March 5, 1981, the Planning and Developing Com-
mittee of the Council held a meeting for the purpose of
taking public testimony on the subject. While there is no
record of that meeting, Mr. Clemens, then the City’s act-
ing Planning Director who was present at the meeting,
testified that the Superintendent of Schools, and the Presi-
dent of the Renton Chamber of Commerce spoke to con-
cerns about adverse affects which adult entertainment
uses would have upon the economic health of Renton’s
businesses and upon children going to and from school.
He also testified that other citizens spoke generally about
the adverse affects of such uses. Mr. Clemens further
testified that he and his department reviewed the deci-
sions of the Washington State Supreme Court in North-
end Cinemas V. Seattle, 90 Wn. 2d, 709, and of the United
States Supreme Court in Young v. American Mini Thea-
tres, 427 U.S. 50 (1976), and presented the information
from their review to the, Planning and Development Com-
mittee. He indicated generally that review of those cases
4la
indicated that adult entertainment uses tend to decrease
proprty values and increase crime.
On April 6, 1981, the Planning and Development Com-
mittee of the Council recommended that an appropriate
zoning ordinance be written to reflect the following condi-
tions:
“(a) No adult motion picture theatre will be al-
lowed in an area used or zoned residential or in any
P-I publie use area.
“(b) A suitable buffer strip of 1,000 feet from
any residential or P-I area also be a banned area;
“(c) The area enclosed in a one mile radius of any
school (this is the minimum student walking dis-
tance) would also be a banned area.”
Ordinance No. 3526 was the result.
(C) The Effect of the Ordinance.
While the record would indicate that there are some
200 acres of property within the city limits of Renton
where an adult theatre might conceivably locate, the testi-
mony and affidavits show that, with but one exception,
none of that property would be suitable for the location
of a theatre. The area is largely undeveloped and what
development there is is entirely unsuitable for retail
purposes in general and for theatre purposes in partic-
ular. The developed areas include:
(1) A Metro sewage disposal site and treatment
plant;
(2) Longacres Racetrack and environs;
(3) A business park containing buildings suitable
only for industrial use;
(4) Warehouse and manufacturing facilities;
42a
(5) A Mobile Oil tank farm; and,
(6) A fully developed shopping center.
The entire area potentially available for the location
of an adult theatre is far distant from the downtown
business district, not well lit during night time hours,
and also generally devoid of pedestrian and vehicular
traffic during such hours.
The two sites which are potentially suitable are fully
developed and occupied by fast food restaurants.
DISCUSSION
As indicated in my prior Report and Recommendation,
the party requesting injunctive relief must clearly show
either: (1) probable success on the merits and possible
irreparable injury, or (2) sufficient serious questions as
to the merits to make them a fair ground for litigation
and a balance of hardship tipping decidedly in favor of
the party seeking relief. Los Angeles Memorial Coliseum
Commission Vv. N.F.L., 634 F. 2d 1197 (9th Cir. 1980).
I conclude that plaintiffs meet the foregoing test.
(1) Probability of Success on the Merits.
A city’s authority to zone is a well recognized aspect
of the police power. But when a zoning ordinance in-
fringes upon speech protected by the First Amendment,
it must be narrowly drawn to further a substantial gov-
ernment interest. Schad v. Borough of Mt. Ephraim, 452
U.S. 61 (1981) ; Kuzinich v. County of Santa Clara, ——
F, 2d ——, No. 81-4460 Ninth Circuit slip op. October 12,
1982. The City of Renton’s zoning ordinance relating to
adult theatres plainly implicates First Amendment rights.
It is not limited to motion picture theatres catering to
those with an appetite for obscene films falling outside
the protections of the First Amendment, Miller v. Cali-
fornia, 413 U.S. 15 (1973). Rather, patterned upon the
43a
ordinance approved in Young v. American Mini Theatres,
427 U.S. 50 (1976), it regulates sexually explicit but
nonobscene films as well.
Defendant City of Renton contends, however, that no
First Amendment rights are involved because the ordi-
nance only regulates the time, place, and manner of the
operation of adult theatres. It relies on American Mini
Theatres, supra. However, I believe the ordinance in
American Mini Theatres is clearly distinguishable. The
ordinance in the instant case, for all practical purposes,
excludes adult theatres from the City of Renton and there-
fore greatly restricts access to lawful speech. The ordi-
nance approved in American Mini Theatres had no such
effect.
Defendants contend that the City has provided an
area within which adult theatres may locate. However,
while in theory such area is available, in fact, the area
is entirely unsuited to movie theatre use. Restricting adult
theatres tu the most unattractive, inaccessable, and incon-
venient areas of the city has the effect of suppressing or
greatly restricting access to lawful speech. American
Mini Theatres, supra, 427 U.S. at 71 n. 35. See Basi-
ardanes Vv. City of Galveston, 682 F. 2d 1203 (5th Cir.
1982); Avalon Cinema Corporation v. Thompson, 667
F. 2d 659 (18th Cir. 1981) ; Keego Harbor Co. v. City of
Keego Harbor, 657 F. 2d 94 (6th Cir. 1981); Alexander
v. City of Minneapolis, 531 F. Supp. 1162 (N.D. Minn.
1982) ; Purple Onion, Inc. v. Jackson, 511 F. Supp. 1207
(N.D. Ga. 1981); Bayside Enterprises, Inc. v. Carson,
450 F. Supp. 696 (M.D. Fla. 1978); E & B Enterprises
v. City of University Park, 449 F. Supp. 695 (N.D. Tex.
1977) ; ef. Deerfield Medical Center v. City of Deerfield
Beach, 661 F. 2d 328 (5th Cir. 1981).
Because the Renton ordinance drastically impairs the
availability in Renton of films protected for adult view-
ing by the First Amendment, it must be reviewed under
the stringent standards of Schad, supra. Schad directs
44a
the court to examine the strength and legitimacy of the
governmental interest behind the ordinance and the pre-
cision with which it is drawn. Unless the governmental
interest is significant and is advanced without undue re-
straint on speech, the ordinance is invalid. Schad, 452
U.S. at 70.
The City of Renton has asserted that it has a substan-
tial governmental interest in zoning restrictions which
will prevent deterioration of its neighborhoods and its
dowrtown areas. But it is not sufficient to assert such
interest. The City must establish a factual basis for its
asserted reasons and that it considered those facts in
passing the ordinance. Those reasons must be unrelated
to the suppression of free expression. United States v.
O’Brien, 391 U.S. 367 (1968); Kuzinich v. County of
Santa Clara, supra.
Many of the conclusory statements of the reasons for
enacting the Renton ordinances reflect simple distaste for
adult theatres because of the content of the films shown.
Those statements directed at legitimate fears such as pre-
vention of crime and deterioration of business and resi-
dential neighborhoods are based principally upon the
Planning Departments review of other court cases in
which zoning legislation regulating the location of adult
businesses has been approved. The City had little or no
empirical evidence before it when the initial ordinance
was passed. More is required. Avalon Cinema Corpora-
tion Vv. Thompson, supra; Keego Harbor Co. v. City of
Keego Harbor, supra; Basiardanes v. City of Galveston,
supra. I conclude that the manner in which the ordinance
was enacted, its narrow focus on adult theatres to the
exclusion of other adult entertainment uses which would
presumably contribute to the same concerns, and the fact
that most of the findings set forth in the amendatory
ordinance reflect citizen distaste for adult theatres be-
cause of the film fare shown, suggests an improper mo-
tive.
45a
Even assuming that the City has established a sub-
stantial governmental interest, however, the ordinance
will not pass constitutional muster. The ordinance must
be narrowly drawn to serve that interest with only a
minimum intrusion upon First Amendment freedoms.
Schad, supra. Here the intrusion upon First Amendment
expression is not minimal. Adult theatres are, for all
practical purposes, excluded from the City of Renton. The
ordinance constitutes a prior restraint on speech and
should be held to be unconstitutional.
(2) Irreparable Injury.
Irreparable injury is clear. Plaintiffs may not exhibit
sexually explicit adult films without being subjected to
civil abatement proceedings. The loss of First Amend-
ment freedoms for even minimal periods of time unques-
tionably constitutes irreparable injury in the context of
a suit for injunctive relief. Elrod v. Burns, 427 U.S.
373 (1976); Deerfield Medical Center v. City of Deer-
field Beach, supra; Citizens for a Better Environment v.
City of Park Ridge, 567 F. 2d 689 (7th Cir. 1975).
I recommend that the Court enjoin enforcement of City
of Renton Ordinance No. 3637 pending disposition on the
merits. A proposed form of Order accompanies this Re-
port and Recommendation.
DATED this 5th day of November, 1982.
/s/ PHILIP K. SWEIGERT
United States Magistrate
46a
APPENDIX G
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
No. C82-59M
PLAYTIME THEATRES, INC.,
a Washington corporation,
and
KUKIO BAY PROPERTIES, INC.,
a Washington corporation,
Plaintiffs,
Vv.
THE CITY OF RENTON, et al.,
Defendants.
[Filed Feb. 23, 1982]
ORDER
THIS MATTER came on to be heard before the under-
signed judge of the above-entitled Court upon plaintiffs’
objections to the February 3, 1982 Report and Recom-
mendation of United States Magistrate Philip K. Sweigert
in the above-entitled cause. That Report and Recommen-
dation is on file herein.
This Order is based upon the complete record and files
herein, including but not being limited to the affidavits
of Gary F. Kohlwes, David R. Clemens and Jack R.
Burns, together with a transcript of the testimony of
David R. Clemens produced before said U.S. Magistrate
on January 29, 1982.
47a
Having considered de novo each and all of the fore-
going, together with plaintiff's Motion for a Temporary
Restraining Order, the response thereto and the Reports
and Recommendation of the United States Magistrate,
now, therefore, it is hereby ORDERED
(1) Said Report and Recommendation is hereby ap-
proved and adopted;
(2) Plaintiffs’ Motion for Temporary Restraining Or-
der is hereby DENIED; and,
(3) The Clerk is to direct copies of this Order to all
counsel of record and to Magistrate Sweigert.
DATED this 23rd day of February, 1982.
/s/ Walter T. McGovern
WALTER T. MCGOVERN
Chief
United States District Judge
48a
APPENDIX H
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
No. C82-59M
PLAYTIME THEATRES, INC., et al.
~ Plaintiffs,
THE CITY OF RENTON, et al.,
Defendunts.
[Filed Feb. 23, 1982]
JUDGMENT
This matter having come on for consideration before
the Court, Honorable Walter T. McGovern, Chief United
States District Judge, presiding, and the issues having
been duly considered and a decision having been duly
rendered, adopting and approving report and recommen-
dation of the Magistrate and denying plaintiffs’ motion
for Temporary Restraining Order,
IT IS HEREBY ORDERED AND ADJUDGED, that
plaintiffs’ motion for a Temporary Restraining Order is
hereby DENIED.
DATED this 23rd day of February, 1982.
/s/ John A. McLellan
Deputy
United States District Clerk
49a
APPENDIX I
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
Case No. C82-59M
PLAYTIME THEATRES, INC.,
a Washington corporation,
and
KUKIO BAY PROPERTIES, INC.,
a Washington corporation,
v. Plaintiffs,
THE CITY OF RENTON, et al.,
Defendants.
REPORT AND RECOMMENDATION
INTRODUCTION AND SUMMARY CONCLUSION
Plaintiffs, Playtime Theatres, Inc., and Kukio Bay
Properties, Inc., recently acquired two existing theatre
buildings in the City of Renton and wish to commence
showing feature length sexually explicit adult films in one
of them. The theatre buildings are 'ocated in areas not
zoned for such use. Plaintiffs filed the instant suit claim-
ing that the Renton zoning ordinance in question is un-
constitutional for a number of reasons. Because plaintiffs
wished to commence showing the adult films on Friday,
January 29, 1981, they sought a temporary restraining
order prohibiting the City of Renton from enforcing its
ordinance. The matter was referred to me by Order of
50a
Reference dated January 22, 1982, and a hearing was
held on January 29, 1982. Having heard the arguments
of counsel and considering the affidavits and limited testi-
mony and documentary exhibits admitted at that hearing,
I recommend that the Court deny the request for a tem-
porary restraining order for thie reasons hereinafter set
forth.
DISCUSSION
In this Circuit, the party requesting injunctive relief
must clearly show either: (1) probable success on the
merits and possible irreparable injury, or (2) sufficiently
serious questions as to the merits to make them a fair
ground for litigation and a balance of hardship tipping
decidedly in favor of the party seeking relief. Los An-
geles Memorial Coliseum Commission Vv. N.F.L., 634 F. 2d
1197 (9th Cir. 1980). Further, federal courts should
proceed with caution and restraint when considering a
facial challenge to the constitutionality of an ordinance.
Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).
Finally, the Court must also bear in mind that a tem-
porary restraining order is ordinarily for the purpose of
maintaining the last uncontested status quo between the
parties until full hearing of an application for prelimi-
nary injunction can take place.
The ordinance in question provides that adult motion
picture theatres as defined therein are prohibited:
(1) Within or within 1000 feet of any residential zone
or single family or multiple family use;
(2) Within one mile of any public or private school;
(3) Within 1000 feet of any church or other religious
facility or institution; and
(4) Within 1000 feet of any public park or P-I zone.
Plaintiffs’ complaint challenges the constitutionality of
the ordinance on the following grounds: First, they claim
5la
that certain definitional sections are so vague and over-
broad as to deny them due process. Second, they claim
that confinement of adult theatres to certain areas is an
impermissible prior restraint on protected First Amend-
ment speech. Third, they argue the classification of thea-
tres based on the content of the films shown violates
First Amendment and equal protection guarantees.
Plaintiffs did not pursue their vagueness or overbreadth
arguments at the hearing or in their brief but focused
only on the First Amendment and equal protection claims.
Defendants contend that the ordinance is not facially
invalid for vagueness or overbreadth but is a reasonable
regulation of the place in which “adult motion picture
theatres” may be located within Renton and has only an
incidental effect upon exercise of First Amendment rights.
Defendants rely principally on Young v. American Mini
Theatres, Inc., 427 U.S. 50, 49 L.Ed. 2d 310 (1976), re-
hearing denied, 429 U.S. 873 (1976) (hereinafter re-
ferred to as Young).
In Young, the Supreme Court approved the creation
and definition of an adult theatre zoning use in the City
of Detroit which was clearly identical to the Renton zon-
ing use at least in its definitional provisions. The Court
also approved regulation of location of that use. The
Court reasoned that since the ordinance only contrulled
the location of adult businesses and did not restrict the
content of the speech disseminated therein, it was merely
a time, place, or manner restriction. Jd. at 63, 71. The
Court held that the City had a strong governmental in-
terest in protecting the quality of its neighborhoods, Jd. at
71, 72, which justified the zoning scheme which classified
businesses on the content of their material, and treated
adult businesses (including theatres) different from other
businesses.
The Court indicated in Young, however, that the “sit-
uation would have been quite different if the ordinance
52a
had the effect of suppressing, or greatly restricting access
to, lawful speech.” Jd. at 71 n. 35. Accordingly, the crit-
ical inquiry is the “effect” the ordinance’s limitations
have on the exercise of First Amendment rights.
In their affidavits and through the limited testimony
and exhibits admitted at the hearing, plaintiffs have at-
tempted to distinguish the Renton ordinance from that
approved in Young in two respects: First, they contend
that the City of Renton failed to factually support its con-
clusion that adult movie theatres have an adverse effect
on residential neighborhoods including incidental ameni-
ties close thereto such as parks, churchs, and schools—
thus the city established no important state interests jus-
tifying its intrusion upon protected speech. Second, plain-
tiffs attempted to show that rather than a mere loca-
tional restriction, the Renton ordinance amounts to a vir-
tual prohibition of adult theatres in that city—that even
though there may be property available, it is not commer-
cially feasible. I will address these contentions separately.
(1) Basis for the City’s Ordinance.
The affidavit submitted by Mr. Clemens, the Policy De-
velopment Director of the City of Renton, and his testi-
mony at the hearing, indicated that the ordinance in
question was only adopted after a period of study and
following public hearings at which the City Council heard
testimony indicating that adult entertainment land uses
would have an adverse affect on property values within
the business and residential areas of the city. He also
indicated that he had reviewed a summary of the findings
and conclusions made when Seattle enacted a similar
ordinance—those findings noted the deterioration of busi-
ness and community neighborhoods where adult enter-
tainment uses are permitted. Those findings prompted
Seattle to enact an ordinance restricting adult entertain-
ment uses to one specific area of the city. Plaintiffs con-
tend that the city heard no expert testimony and that
53a
they cannot rely on the Seattle experience. I disagree.
There is no reason to require that Renton receive expert
testimony to show what has been shown to be generally
experienced elsewhere. See Genusa v. City of Peoria, 619
F, 2d 1203 (7th Cir. 1980).
(2) Whether the Ordinance Suppresses or Greatly Re-
stricts Access to Adult Fare.
After reviewing the maps and affidavits, and hearing
the testimony of Mr. Clemens, I conclude that although
some of the approximately 400 acres which the city as-
serts is available for the location of adult entertainment
uses is definitely not available, and although much of it is
not ideal, the record at this stage of the proceeding would
indicate that there are many adequate sites available.
Plaintiffs’ argument that such sites are not economically
practicable is not relevant. The constraints of the ordi-
nance may create economic hardship or loss for those
who engage in the adult entertainment business, but that
was also true in Young. See Justice Powell’s concurring
opinion at 78. The First Amendment inquiry is not con-
cerned with economic impact but only the effect upon
freedom of expression. All that is required is that those
who wish to exhibit sexually explicit films be given ample
area to do so, and that those who seek to view them be
given access. The City of Renton appears to have pro-
vided ample area.
CONCLUSION
Applying the standards applicable in this Circuit to a
motion for injunctive relief, I conclude that although
there is some possibility of per se irreparable injury be-
cause plaintiffs are prevented from showing films argu-
ably protected under the First Amendment, plaintiffs have
not clearly established a probability that they will suc-
ceed on the merits. Rather, it appears that the case is
54a
controlled by Young and that the ordinance only inciden-
tally affects protected speech or expression.
As to the alternate test, I conclude that although the
allegations in plaintiffs’ complaint are sufficiently serious
to be fair grounds for litigation, the balance of hardships
does not tip decidedly in plaintiffs’ favor. Although plain-
tiffs will not be able to show the sexually explicit films
they desire to show unless and until this matter is con-
cluded in their favor, they may continue to exhibit other
films. The hardship upon them is no more severe than
the general hardship imposed upon the one who desires
to use a particular piece of property in a manner incom-
patible with its zoning. Weighed against this impact is
the city’s strong interest in assuring compliance with its
zoning laws.
A proposed form of Order accompanies this Report and
Recommendation.
DATED this 3d day of February, 1982.
/s/ Philip K. Sweigert
PHILIP K. SWEIGERT
United States Magistrate
eS ee ne a eae | he er ee Pee
ee >
55a
APPENDIX J
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 83-3805
D.C. No. C-82-59M
PLAYTIME THEATRES, INC.,
a Washington corporation, et al.,
Plaintiffs/ Appellants,
vs
THE City OF RENTON, et al.,
Defendants/ Appellees.
NOTICE OF APPEAL TO THE SUPREME COURT
OF THE UNITED STATES
NOTICE IS HEREBY GIVEN that the City of Renton,
the Appellee above named, hereby appeals to the Supreme
Court of the United States from the judgment entered in
this action on November 28, 1984.
This appeal is taken pursuant to 28 U.S.C. 1254 (2).
DATED this 4th day of February 1985.
/s/ Daniel Kellogg
DANIEL KELLOGG
Attorney for City of
Renton, et al.
56a
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 83-3805
D.C. No. C-82-59M
PLAYTIME THEATRES, INC.,
a Washington corporation, et al.,
Plaintiffs/ Appellants,
vs
THE City OF RENTON, et al.,
Defendants/Appellees.
CERTIFICATE OF SERVICE
I certify that a copy of the Notice of Appeal to the
Supreme Court of the United States was served on the
parties to this action on February 4, 1985, by mailing
copies, postage prepaid, to them at the following ad-
dresses :
Jack R. Burns
10940 N.E. 33rd Pl., Suite 107
Bellevue, Washington 98004
Robert E. Smith
16133 Ventura Blvd., Suite 1230
Encino, California 91436
I certify under penalty of perjury that the foregoing
is true and correct.
/s/ Daniel Kellogg
DANIEL KELLOGG
57a
APPENDIX K
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
No. C82-59M
PLAYTIME THEATRES, INC.,
a Washington corporation,
and
KUKIO BAY PROPERTIES, INC.,
2 Washington corporation,
- Plaintiffs,
THE CITY OF RENTON,
and
THE HONORABLE BARBARA Y. SHINPOCH,
as Mayor of the City of Renton,
and
EARL CLYMER, ROBERT HUGHES, NANCY MATHEWS, JOHN
REED, RANDY ROCKHILL, RICHARD STREDICKE AND TOM
TRIMM, as members of the City Council of the City of
Renton; serve on: DELORES H. MEAD, City Clerk.
and
JIM BourRASA, as acting Chief of
Police of the City of Renton,
Defendants, jointly and
severally, in their
representative capacities
only.
AMENDED AND SUPPLEMENTAL COMPLAINT
FOR DECLARATORY JUDGMENT AND
PRELIMINARY AND PERMANENT INJUNCTION
COME NOW Playtime Theatres Inc. and Kukio Bay
Properties Inc., bodies corporate of the State of Washing-
58a
ton, by and through their attorneys, Jack R. Burns and
Robert Eugene Smith, of counsel, and seek a declaratory
judgment as well as a preliminary and permanent injunc-
tion with respect to City of Renton Ordinance No. 3526
entitled: “An Ordinance Of The City Of Renton, Wash-
ington, Relating To Land Use and Zoning;” enacted and
approved by the Mayor and City Council on or about the
13th day of April, 1981 and in support of their cause of
action, state:
[. JURISDICTION
1. This is a civil action whereby plaintiffs pray for a
preliminary and permanent injunction enjoining the de-
fendants from enforcement of the City of Renton Ordi-
nance No. 3526, a copy of which is attached hereto as
Exhibit “A” in support of this complaint, the contents of
which are incorporated herein by reference, on the
grounds that said ordinance and the multiple provisions
thereof are unconstitutional as written, and/or as threat-
ened to be applied to the plaintiffs in the case at bar.
Further, plaintiffs pray for a declaratory judgment to
determine the constitutionality of said Ordinance, as writ-
ten and/or as threatened to be applied to the plaintiffs.
The allegations to be set forth in the premises establish
that there are presented questions of actual controversy
between the parties involving substantial constitutional
issues in that said ordinance, as written and/or in its
threatened application, is repugnant to the rights of the
plaintiffs herein under the First, Fourth, Fifth, Sixth,
and Fourteenth Amendments to the Constitution of the
United States.
2. Jurisdiction is conferred on this court for the res-
olution of the substantial constitutional questions pre-
sented by the provisions of 28 USCA §1131(a) which
provides in pertinent part:
(a) The district court shall have original jurisdiction
of all civil actions wierein the matter in controversy
59a
exceeds the sum or value of $10,000.00, exclusive of
interest and costs, and arises under the Constitution
laws or treaties of the United States.
as well as 28 USCA § 1343(3) which provides in perti-
nent part that the district courts shall have original ju-
risdiction of any civil action authorized by law to be
commenced by any person:
To redress the deprivation, under color of any any
state law, statute, ordinance, regulation, custom or
usage, of any right, privilege or immunity secured
by the Constitution of the United States...
and the organic law which further authorizes the institu-
tion of this suit founded on 42 USCA § 1983, which pro-
vides in pertinent part as follows:
Every person who, under color of any statute, ordi-
nance, custom or usage, of any state or territory sub-
jects, or causes to be subjected, any person of the
United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges or
immunities secured by the Constitution and the laws,
shall be liable to the party injured in an action at
law, sued in equity, or other proper proceeding for
redress.
Plaintiffs’ prayer for declaratory relief is founded on
Rule 57 of the Federal Rules of Civil Procedure, as well
as 28 USCA § 2201, which provides in pertinent part:
... Any court of the United States, upon the filing
of an appropriate pleading, may declare the rights
and other legal relations of any interested party
seeking such declarations, whether or not further re-
lief is or could be sought...
The jurisdiction of this court to grant injunctive relief is
conferred by 28 USCA § 2202, which provides:
Further necessary or proper relief based upon a
declaratory judgment or decree may be granted after
60a
reasonable notice and hearing against any adverse
party whose rights have been determined by such
judgment.
II. PARTIES
3. Playtime Theatres, Inc., a corporate body of the
State of Washington plans to operate pursuant to a writ-
ten lease agreement, a motion picture theatre which is
located at 504 South 3rd Street, within the city limits of
Renton, State of Washington. The enterprise will be op-
erated under the name of the Roxy Theatre. Playtime
Theatres, Inc. will also operate pursuant to a written
lease agreement, the Renton Theatre at 507 South 3rd
Street, within the city limits of Renton, State of Wash-
ington.
Kukio Bay Properties, Inc., a body corporate of the
State of Washington has purchased the motion picture
theatres described in the preceeding paragraph and has
leased said theatres to Playtime Theatres, Inc.
That on January 26, 1982, Kukio Bay Properties, Inc.
purchased of said theatres for the sum of $800,000.00.
That immediately thereafter, Kukio Bay Properties, Inc.
took possession of said theatres. That on or about the
27th day of January, 1982, by a written agreement,
Kukio Bay Properties, Inc. leased said theatre premises to
Playtime Theatres, Inc. for a period of ten years com-
mencing on January 27, 1982. In addition, Playtime
Theatres, Inc. will have the option to renew said leases
for an additional term of ten years terminating on Jan-
uary 26, 2002. The lease agreements to be entered into
by the parties provide that the premises by [sic] used for
the purpose of conducting therein adult motion picture
theatres. Playtime Theatres, Inc. took possession of said
theatres on or about January 27, 1982 and on January
29, 1982 planned te begin exhibiting feature length mo-
tion picture films for adult audiences.
6la
From on or about January 29, 1982, under the opera-
tion and management of Playtime Theatres, Inc., one of
said theatres would continuously operate exhibiting adult
motion picture film fare to an adult public audience Frt
for the threats of the defendants to enforce their wholly
unconstitutional zoning ordinance.
4. The defendant, City of Renton, is a municipal cor-
poration of the State of Washington.
5. The Honorable Barbara Y. Shinpoch is named de-
fendant herein in her capacity as Mayor of the City of
Renton, having the titular title. In that capacity, she is
the head of City government and approved the questioned
ordinance in the case at bar.
6. Earl Clymer, Robert Hughes, Nancy Mathews, John
Reed, Randy Rockhill, Richard Stredicke and Tom Trimm
are named as defendants herein as members of the City
Council of the City of Renton who enacted the wholly
unconstitutional ordinance as a part of their alleged leg-
islative function.
8. Jim Bourasa is named a defendant herein in his
capacity as Acting Chief of Police of the City of Renton
who is primarily responsible for seeing to the erforce-
ment of the City of Renton ordinances, civil, criminal and
quasi-criminal in nature.
9. The defendants in their official capacities as afore-
said have acted and/or threaten to act to plaintiffs’ im-
mediate and irreparable harm under color of authority
of the Ordinance No. 3526 heretofore identified as Ex-
hibit “A”’.
The named defendants, in their official capacity as
afore-mentioned, are joined herein to make enforceable
to them and/or their agents, servants, employees and
attorneys, any Preliminary and/or Permanent Injunction,
Declaratory Judgment, and/or other Order of this Court.
62a
Ill. FACTUAL ALLEGATIONS
10. The instant ordinance was passed with the sole
purpose to prevent the opening of any adult motion pic-
ture theatre within the city limits of Renton and to effec-
tively censor the kinds of protected First Amendment
press materials available to adult citizens of the City of
Renton and adult visitors to the City.
11. That no criminal, quasi-criminal and/or civil pre-
ceeding is pending in the city courts of the City of
Renton or in the state courts in the State of Washington
against the plaintiffs and/or their agents, servants and
employees as of the date of the filing of this suit with
respect to this matter.
12. That on the 19th day of January, 1982, Mike
Parness, Administrative Assistant to the Mayor of the
City of Renton has, as aforesaid, advised that if the prop-
erty of the plaintiffs is used to exhibit adult motion pic-
ture films, then enforcement proceedings will be com-
menced forthwith.
13. That the City of Renton Ordinance No. 3526 was
enacted by the City Council and approved by the Mayor
as a part of a systematic scheme, plan and design, under
color of enforcement of the said ordinance to deny dis-
tributors and/or exhibitors of adult films access to the
marketplace, and to deny to the interested adult public,
access to such erotic materials which are not otherwise
obscene under the test set forth in Miller v. California,
413 U.S. 15 (1973). See Young v. American Mini Thea-
tres, 427 U.S. 50 (1975) at pages 62 and 71.
14. That requiring the plaintiffs to conform to this
wholly unconstitutional zoning ordinance by not using the
locations they have contracted to purchase, and requiring
them to move their business to a selectively obscure geo-
graphical location, violates the plaintiffs’ rights under
the First, Fifth, Sixth and Fourteenth Amendments to
63a
the Constitution of the United States. Indeed, by this
selective ordinance, which would shutter motion picture
theatres such as the Roxy Theatre and Renton Theatre,
which show as part of their fare, erotic films, the City of
Renton by its agents, servants and employees will be de-
nying the plaintiffs and other persons lawfully engaged
in the exhibition of adult film fare presumptively pro-
tected by the First Amendment to the Constitution of
the United States, [Heller v. People of the State of New
York, 413 U.S. 483 (1973) ; and Roaden v. Commonwealth
of Kentucky, 413 U.S. 496 (1973) ], access to the market-
place as well as the right of the interested adult public
to have access to adult film fare, and will deny the plain-
tiffs the right to engage in said business in the City of
Renton; and unless restrained, the City, under color of
enforcement of its zoning laws, will cause said businesses
to cease and close up; and unless restrained, defendants
will continue to seek to enforce said ordinance and this
will have the effect of totally depriving your plaintiffs, as
well as others similarly situate, from their normal busi-
ness activities. This will have a chilling effect on the
dissemination and exhibition of adult film fare to those
interested adults who seek to satiate their educational,
entertainment, literary, scientific and artistic interests
in such press materials. The ordinance places an in-
tolerable burden upon the exercise of First Amendment
rights, arbitrarily and capriciously deseriminates [sic] as
to the nature of film fare exhibited based upon an assump-
tion which is not rationally related to a valid public pur-
pose nor necessary to achieve a compelling state interest
in violation of the Equal Protection Clause of the Fouwr-
teenth Amendment of the Constitution of the United
States, establishes classifications which are arbitrary and
capricious and constitutes an abuse of legislative discre-
tion and is not rationally related and also deprives plain-
tiffs of their equal rights under the Fourteenth Amend-
ment of the Constitution of the United States; and fur-
ther by its use has language that is intrinsically vague
64a
and void under the First and Fifth Amendments to the
Constitution of the United States and void for imper-
missible overbreadth by the use of means which are too
broad for the alleged evil intended to be curtailed. That
the enactment of the City of Renton Ordinance No. 3526
was done without the constitutionally required legislative
fact finding required to meet the burden imposed upon
those who seek to curtail activity which might otherwise
be protected within the pneumbra [sic] of the First Amend-
ment of the Constitution of the United States. The de-
fendants, by their agents, servants and employees, and/or
their attorneys, by enacting such a wholly unconstitutional
ordinance, and now threatening to enforce the same, have
created a pervasive atmosphere of official repression con-
stituting a “chilling effect” upon the exercise of First
Amendment rights of plaintiffs and others who may wish
to engage in the lawful business of exhibiting adult film
fare protected by the First Amendment to the Constitu-
tion of the United States, as well as the interested adult
public who desire to see and view such adult film fare,
and this has imposed and threatens to impose a wholly
unconstitutional prior restraint condemned by the First,
Fourth, Fifth, and Fourteenth Amendments to the Con-
stitution of the United States, and this is merely a design
and scheme on the part of the defendants to force the
plaintiffs and others similarly situate out of business, un-
der color and pretense of claimed enforcement of the ordi-
nance attached hereto as Exhibit “A”, well knowing the
patent unconstitutionality of the same.
15. Ordinance No. 3526 provides a new use classifica-
tion within the zoning laws of the City of Renton; i.e.,
an adult motion picture theatre.
16. An adult motion picture theatre is not a permitted
use within any zoning classification currently in use with-
in the City of Renton. Accordingly, in order to locate an
adult motion picture theatre anywhere within the City of
65a
Renton, it is necessary to obtain a special permit, condi-
tional use or variance.
17. The process of applying for a special permit, con-
ditional use or variance vests unfettered discretionary au-
thority in the Hearing Examiner, Board of Adjustment
and/or City Council to deny such special permit, condi-
tional use or variance. No objective written criteria,
standards or guidelines have been established which
would in any way limit this discretionary authority. In
addition, the ordinances of the City of Renton set no
time limit for the City Council to make a decision rela-
tive to an application for a special permit, conditional use
or variance. The City Council has the discretion to with-
hold making a decision for an unreasonable length of
time if it chooses to do so. The various matters to be
considered by the Hearing Examiner and/or the Board
of Adjustment in the granting or denial of a special per-
mit, conditional use or variance are vague and aesthetic
qualities that are not capable of objective measurement
and, as such, they create the potential for an unreason-
able burden upon free speech and, as applied to plaintiffs
and a motion picture theatre, they are impermissibly
overbroad and unconstitutional.
18. That requiring the plaintiffs to submit to a wholly
unconstitutional exercise of unbridled discretion at the
hands of a Hearing Examiner or Board of Adjustment
and or the City Council, in the absence of narrowly drawn,
reasonable and difinitive [sic] standards to be followed
in the exercise of said discretion violates plaintiffs’ rights
under the First, Fifth and Fourteenth Amendments to
the Constitution of the United States. Interstate Circuit
v. Dallas, 390 U.S. 676 (1968) and Shuttlesworth v. City
of Birmingham, 394 U.S. 147 (1969).
19. Further, since the Hearing Examiner, Board of
Adjustment and/or the City Council have no narrowly
drawn, reasonable and definitive standards to be fol-
66a
lowed by them in the exercise of the discretion conferred
upon them by the Renton Zoning Code in making a deter-
mination about the issuance of a special permit, condi-
tional use or variance, it would be an exercise in futility
to engage in such administrative process because of the
patently unconstitutional character of the zoning provi-
sions in question.
20. The provisions of the Renton Zoning Code which
apply to the issuance of special permits, conditional uses
or variances, establish classifications which are arbitrary
and capricious and constitute an abuse of legislative dis-
cretion, and also permit censorship by standardless ra-
tionale subject to abusive discretion by the defendants in
violation of plaintiffs’ substantive and due process rights
under the pneumbra [sic] of the First, Fifth and Four-
teenth Amendments of the Constitution of the United
States; and further, have language that is intrinsically
vague and void under the First and Fifth Amendments
to the United States Constitution and void for impermis-
sible overbreadth.
IV. BASIS IN LAW FOR RELIEF
21. Plaintiffs have the right to engage in the business
of offering for exhibition adult motion picture film fare
for profit by virtue of the First Amendment to the Con-
stitution or adult film fare which is presumptively pro-
tected under said constitutional amendment, and the pub-
lic, including both adult citizens and visitors to the City
of Renton have the same constitutional right to view said
adult motion picture film fare as may be offered for said
exhibition to said adults in a nonintrusive manner.
Heller v. New York, 413 U.S. 483, 37 L.Ed.2d 745, 93
Sup.Ct. 2789 (1973). Further, the conduct of the de-
fendants and their agents, servants, employees and/or
attorneys and others, acting under their direction and
control in attempting to refuse to allow plaintiffs to op-
— aT
67a
erate their businesses in the City of Renton, unless they
remove themselves to some obtuse selectively obscure
geographical site, will have the draconian effect of deny-
ing plaintiffs and others similarly situate, access to the
marketplace, and the viewing adult public the right to
satisfy its interest for adult film fare.
22. As a further result of the unconstitutional ordi-
nance enacted by the City Council and approved by the
Mayor, as well as the threatened conduct of the defend-
ants to force plaintiffs to not engage in their businesses,
plaintiffs have been required to retain attorneys to pursue
their rights under the First, Fourth, Fifth, and Four-
teenth Amendments to the Constitution of the United
States, and the defendants, acting under color of pretense
of law, as aforesaid, have threatened to initiate actions
to enforce the said ordinance, which actions are and/or
threaten to be, repugnant to the Constitution of the
United States.
23. The City of Renton zoning ordinance designated
herein as Ordinance No. 3526, is clearly repugnant to the
First, Fourth, Fifth and Fourteenth Amendments to the
Constitution of the United States as written and as threat-
ened to be applied, for the following reasons:
(a) Said ordinance is void for vagueness in that it
fails to establish by its terms, definitive standards,
criteria and/or other controlling guides defining
words, inter alia “other religious facility or institu-
tion” in Section II(A) (4) or “distinguished or char-
acterized by an emphasis on matter depicting, de-
scribing or relating to “specified sexual activities” as
used in Section I(1) of said ordinance, as well as the
words “erotic touching” as used in Section I (2) (C) ;
and as such is a deprivation under color of state law
of plaintiffs’ right to due process under the First,
Fifth and Fourteenth Amendments to the Constitu-
tion of the United States.
68a
(b) Said ordinance is void for impermissible over-
breadth by means which sweep unnecessarily broadly
and thereby invade the area of protected freedoms in
that the same sets forth standards at variance with
those minimum standards prescribed by the Supreme
Court of the United States, in connection with the
exercise of First Amendment rights, and in partic-
ular, those provisions which set forth the “specified
anatomical areas” and “specified sexuai activities’ in
Section I(2) and Section I(3).
(c) Said ordinance is further void for impermissible
overbreadth and deprives plaintiffs of due process
and equal protection of the law through the arbi-
trary and uncontrolled power conferred by the en-
actment of said ordinance to the defendants’ enforce-
ment of zoning laws for the exercise of otherwise
clear First Amendment rights and therefore the same
is invalid under the First and Fifth Amendments to
the Constitution of the United States made obliga-
tory on the States under the due process provisions
of the Fourteenth Amendment.
(d) Said ordinance, lacking precision and narrow
specificity in the standards to be employed by defend-
ants in the operation of their legislative power to
enact zoning laws, constitutes a prior restraint under
color of state law on the exercise of plaintiffs of
their rights under the First, Fifth and Fourteenth
Amendments to the Constitution of the United States
and as written, which is and has been, under the
facts alleged herein, susceptible to arbitrary, capri-
cious and uncontrolled discretion on the part of de-
fendants herein, their agents, servants and employees.
(e) Said ordinance is void in that it fails, by its
terms, to establish procedural safeguards to assure a
prompt decision on the challenge to the arbitrary
zoning classification, and if a zoning challenge is de-
69a
nied, the ordinance fails by its terms to provide for
a prompt final judicial review to minimize the deter-
rent effect of an interim and possibly erroneous zon-
ing classification under procedures which places the
burden on plaintiffs to both expeditiously institute
judicial review and to persuade the courts that the
activity sought to be licensed and the procedure and
ordinance employed to authorize the same, is without
the ambit of the First Amendment, and the abate-
ment of the nonconforming use is not a proper exer-
cise of authority.
(f) Said ordinance is further void in that the same,
by its terms, places an impermissible burden upon
the exercise of plaintiffs’ First Amendment rights.
(g) Said ordinance is further void as violative of the
Equal Protection Clause of the Fourteenth Amend-
ment, in that the .ume creates a statutory classifica-
tion which has no rational relationship to a valid
public purpose nor is the same necessary to the
achievement of a compelling state interest by the
least drastic means.
(h) Said ordinance is repugnant to the substantive
due process provisions of the Fifth and Fourteenth
Amendments to the Constitution of the United States
because the same permits deprivation of liberty and/
or property interests for the exercise of First Amend-
ment rights by unreasonable, arbitrary and capri-
clous means without a showing of a real and sub-
stantial relationship to any state or city subordinat-
ing interest which is compelling to justify state or
city action limiting the exercise by plaintiffs of their
First Amendment freedoms.
(i) Said ordinance is impermissibly overbroad and
repugnant to the procedural due process require-
ments of the Fifth and Fourteenth Amendments to
the Constitution of the United States, in that the
70a
same employs means lacking adequate safeguards,
which due process demands, to assure presumptively
protected press materials, sought to be distributed to
an interested adult public, the constitutional protec-
tion of the First Amendment.
(j) Said ordinance is vague and impermissibly over-
broad and thus repugnant to the First, Fourth, Fifth
and Fourteenth Amendments to the United States
Constitution, in that said ordinance, by its provisions,
permits inherent powers of censorship and suppres-
sion constituting a prior restraint on the exercise of
plaintiffs’ First Amendment rights as well as the
interested adult public who may desire to view pre-
sumptively protected press materials for the ideas
presented therein.
(k) Said ordinance, and particularly Section 1(2), in
defining “specified sexual activities” defines that
phrase in part as “erotic touching” and is thus void
for vagueness in that “erotic” is a word that can
mean many things to many people and without fur-
ther clarification confers on defendants unbridled dis-
cretion in the interpretation of that term and as
such, is violative of the plaintiffs’ rights under the
First, Fifth and Fourteenth Amendments to the Con-
stitution of the United States.
(1) Said ordinance and particularly Section II(A)
as it purports to establish restrictions, requirements
and conditions for an alleged adult theatre imposes
burdens, restrictions and conditions that are not
justified by any compelling state interest and as
such, the classification is an invidious and arbitrary
discrimination as to a class and as such, is a denial
of plaintiffs’ rights under the Fourteenth A..:end-
ment to the Constitution of the United States, partic-
ularly where, as here, protected First Amendment
activity is involved.
Tla
(m) The plaintiffs will suffer immediate and sub-
stantial economic harm if said ordinance is applied
to them and the result of the application of said
ordinance to the activities of the plaintiffs will result
in a forfeiture of substantial business interesis and
assets.
24. Plaintiffs herein aver that their rights afforded
under the First, Fourth, Fifth, Sixth and Fourteenth
Amendments to the Constitution of the United States
have been violated by said defendants in the enactment
of a wholly unconstitutional ordinance, and that unless
this Court grants the relief prayed for, said plaintiffs
and others similarly situate, as well as the interested
adult public, will suffer irreparable harms.
25. Plaintiffs aver that the aforesaid action of the de-
fendants in enacting said ordinance, and the threatened
enforcement thereof by said defendants acting under color
of state law, is in furtherance of a scheme, plan and
design to prevent any business activity which may offer
for sale or exhibition adult press materials in the City of
Renton to the adult public.
26. Those portions of the Renton Municipal Code con-
tained in Chapter 4-722 relative to the issuance of special
permits, conditional uses and variances, are clearly re-
pugnant to the First, Fourth, Fifth and Fourteenth
Amendments to the Constitution of the United States as
written and as threatened to be applied, for the following
reasons:
(a) Said provisions are void for vagueness in that
they fail to establish by their terms definitive stand-
ards, criteria or other controlling guides defining con-
cepts such as, inter alia
a * w a
72a
Special Permits: Recognizing that there are certain
uses of property that may be detrimental to the pub-
lic health, safety, morals and general welfare...
The purpose of a conditional use permit shall be to
assure, by means of imposing special condition and
requirements on development, that the compatibility
of uses, a purpose of this Title, shall be maintained,
considering other existing and potential uses within
the general area of the proposed use.
The examiner may deny any application if the char-
acteristics of the intended use would create an in-
compatible or hazardous condition.
The examiner shal: have the right to limit the term
and duration of any such conditional use permit and
may impose such conditions as are reasonably neces-
sary and required.
* * * +
The conditions imposed shall be those which will rea-
sonable assure that nuisance or hazard to life or
property will not develop.
< * * *
The examiner may, after a public hearing, permit
the following uses in districts from which they are
prohibited by this Chapter where such uses are
deemed essential or desirable to the public conveni-
ence or welfare and are in harmony with the vari-
ous elements or objectives of the comprehensive plan.
a & * *
The hearing examiner shall be empowered to ap-
prove conditionally approve or disapprove said condi-
tional use permit applications based on normal plan-
ning considerations, including, but not limited to the
73a
following factors: (a) suitability of site; (b) con-
formance to the comprehensive plan; (c) harmony
with the various elements or objectives of the com-
prehensive plan; (d) the most appropriate use of
land through the city; (e) stabilization and conser-
vation of the value of property; . . . and prevention
of neighborhood deterioration and blight; (0) the
objectives of zoning and planning in the community;
(p) the effect upon the general city’s welfare of this
proposed use in relation to surrounding uses in the
conmununity.
That the granting of the variance will not be mate-
rially detrimental to the public welfare or injurious
to the property improvements in the vicinity and
zone in which subject property is situated.
That approval shall not constitute a grant of special
privilege inconsistent with the limitation upon uses
of other properties in the vicinity and zone in which
the subject property is situated.
That the approval is determined by the examiner or
Board of Adjustment is a minimum variance that
will accomplish the desired purpose.
and as such are a deprivation under color of law of
plaintiffs’ right to due process under the First, Fifth
and Fourteenth Amendments to the Constitution of
the United States. Said provisions are void for im-
permissible overbreadth by means which sweep un-
necessarily broadly and thereby invade the area of
protected freedoms in that the same set forth stand-
ards at variance with those minimum standards pre-
scribed by the Supreme Court of the United States
in connection with the exerci: > of First Amendment
rights.
74a
(b) Said provisions are further void for impermis-
sible overbreadth and deprive plaintiffs of due proc-
ess and equal protection of ‘he law through the arbi-
trary and uncontrolled discretionary power conferred
by said provisions upon the Hearing Examiner,
Board of Adjustment and City Council and, there-
fore, the same are invalid under the First and Fifth
Amendments to the Constitution of the United
States made obligatory on the States under the due
process provisions of the Fourteenth Amendment.
(ec) Said provisions lack precision and narrow speci-
ficity in the standards to be employed by the Hearing
Examiner, Board of Adjustment and/or City Council
in the exercise of the discretion used in the opera-
tion of the City of Renton’s legislative power to en-
act ordinances providing for zoning and, as such,
constitute a prior restraint under color of state law
and the exercise by plaintiffs of their rights under
the First, Fifth and Fourteenth Amendments to the
Constitution of the United States and as written,
which is and have been, under the facts alleged
herein, susceptible to arbitrary, capricious and un-
controlled discretion on the part of the defendants
herein, their agents, servants and employees.
(d) Said provisions are void in that they fail by
their terms to establish procedural safeguards to
assure a prompt decision on a challenge to the capri-
cious denial of a special permit, conditional use or
variance. The provisions fail by their terms to pro-
vide for a prompt final judicial review to minimize
the deterrent effect on an interim and possibly erro-
neous and arbitrary denial of a zoning special per-
“Mit, conditional use or variance and, thus, the bur-
den is on plaintiffs to both expeditiously institute
judicial review and to persuade the courts that the
activity sought to be pursued and the procedures and
ordinances employed to prohibit the same are with-
out the ambit of the First Amendment.
75a
V. RELIEF SOUGHT
27. Plaintiffs are entitled to and desire that this Court
enter a declaratory judgment, declaring Ordinance No.
3526 to be unconstitutional as written and/or as defend-
ants purport to apply it, in whole or in part, to be repug-
nant to the First, Fourth, Fifth, Sixth and/or Fourteenth
Amendments to the Constitution of the United States.
28. Piaintiffs seek a preliminary and permanent in-
junction to prohibit the enforcement by defendants, and/
or their agents, servants, eniployees, attorneys, and others
acting under its direction and control of the provisions
of Ordinance No. 3526.
WHEREFORE, plaintiffs pray:
1. That defendants be required to answer forthwith
this Amended and Supplemental Complaint in conform-
ance with the rules and practices of this Honorable Court.
2. That a Declaratory Judgment be rendered declaring
Ordinance No. 3526 to be unconstitutional as written, in
whole and/or in part, and that this Court further declare
the ordinance to be unconstitutional in its threatened ap-
plication to the plaintiffs.
3. That a Preliminary Injunction issue from this Court
upon hearing, restraining defendants and their agents,
servants, employees, and attorneys, and others acting
under their direction and control, pending a hearing
and determination on plaintiffs’ application for a Perma-
nent Injunction, from enforcing or executing and/or
threatening to enforce and/or execute the provisions of
Ordinance No. 3526 in whole and/or in part, by arrest-
ing plaintiffs, their agents, servants or employees, and/or
threatening to arrest plaintiffs, their agents, servants
and employees and/or harassing, threatening to close, or
otherwise interferring with plaintiffs’ peaceful use of the
premises.
4. That upon a final hearing, that this Court issue its
Permanent Injunction prohibiting the defendants and/or
76a
their agents, servants and employees, and/or others in
concert with them, from enforcing Ordinance No. 3526 in
whole or in part because of its patent unconstitutionality.
5. That upon a final hearing this Court award to the
plaintiffs such damages as they shall have sustained by
reason of loss of business, the expenditure of assets to
enforce and protect the rights guaranteed to them under
the Constitution of the United States, their reasonable
attorney’s fees and such other damages as may be estab-
lished at the time of trial.
6. And for such other and further relief as may be ap-
propriate under the circumstances of this case.
DATED this day of February, 1982.
Respectively submitted,
HUBBARD, BURNS & MEYER
By /s/ Jack R. Burns
JACK R. BURNS
Attorney for Plaintiffs
Of Counsel:
Robert Eugene Smith, Esq.
16133 Ventura Blvd.
Penthouse Suite F.
Encino, California 91436
(213) 981-9421
STATE OF WASHINGTON )
> a
COUNTY OF KING )
COMES NOW Jack R. Burns who, after being duly
sworn, did depose and say:
1. That Playtime Theatres, Inc. and Kukio Bay Prop-
erties, Inc. are bodies corporate of the State of Washing-
ton, in good standing.
77a
2. That affiant is one of the attorneys for said corpo-
rations. Affiant further states that he is authorized to
speak on their behalf.
38. That said corporations are the plaintiffs in the
within proceedings.
4. That he has read the complaint to which this affi-
davit is affixed and asserts that the factual allegations
contained therein are true and correct to the best of his
information, knowledge and belief.
5. That the enforcement of the City of Renton Ordi-
nance No. 3526 will, if upheld, have the effect of depriv-
ing plaintiffs of access to the marketplace to exhibit their
presumptively protected First Amendment wares of adult
film fare; and further, will deny to interested adults, the
access to such material for their information, education,
entertainment, literary, scientific or artistic interests, as
well as subject plaintiffs, their agents, servants and em-
ployees to criminal arrests and confiscatory fines and for-
feitures of property interests; and would further destroy
the property and interest of said corporations in the loca-
tion of their theatres operated at 504 South 3rd Street,
and 507 South 3rd Street, in the City of Renton, and
subject said plaintiff corporations to grievous financial
harm as well as to also chill their rights of free speech
as guaranteed by the First Amendment. Dombrowski v.
Pfister, 380 U.S. 479 (1965).
/s/ Jack R. Burns
JACK R. BURNS
SUBSCRIBED AND SWORN to before me this 8th
day of february, 1982.
/s/ (Illegible)
Notary Public in and for the
State of Washington residing
at (illegible)
78a
APPENDIX L
CITY OF RENTON, WASHINGTON
ORDINANCE NO. 3526
AN ORDINANCE OF THE CITY OF RENTON,
WASHINGTON, RELATING TO LAND
USE AND ZONING
THE CITY COUNCIL OF THE CITY OF RENTON,
WASHINGTON, DO ORDAIN AS FOLLOWS:
SECTION I: Existing Section 4-702 of Title IV
(Building Regulations) of Ordinance No. 1628 entitled
“Code of General Ordinances of the City of Renton” is
hereby amended by adding the following subsections:
1. “Adult Motion Picture Theater”: An enclosed build-
ing used for presenting motion picture films, video cas-
settes, cable television, or any other such visual media,
distinguished or characteristic by an emphasis on matter
depicting, describing or relating to “specified sexual ac-
tivities” or “specified anatomical areas” as hereafter de-
fined, for observation by patrons therein.
2. “Specified Sexual Activities” :
(a) Human genitals in a state of sexual stimula-
tion or arousal;
(b) Acts of human masturbation, sexual inter-
course or sodomy;
(ec) Fondling or other erotic touching of human
genitals, pubic region, buttock or female breast.
3. “Specified Anatomical Areas”
(a) Less than completely and opaquely covered hu-
man genitals, pubic region, buttock, and fe-
PS es — PB
79a
male breast below a point immediately above
the top of the areola; and
(b) Human male genitals in a discernible turgid
state, even if completely and opaquely covered.
SECTION II: There is nereby added a new Chapter
to Title IV (Building Regulations) of Ordinance No. 1628
entitled “Code of General Ordinances of the City of Ren-
ton” relating to adult motion picture theaters as follows:
A. Adult motion picture theaters are prohibited within
the area circumscribed by a circle which has a radius
consisting of the following distances from the following
specified uses or zones:
1. Within or within one thousand (1000’) feet of any
residential zone (SR-1, SR-2, R-1, S-1, R-2, R-3,
R-4 or T) or any single family or multiple family
residential use.
2. One (1) mile of any public or private school
3. One thousand (1000’) feet of any church or other
religious facility or institution.
4. One thousand (1000’) feet of any public park or
P-1 zone.
B. The distances provided in this section shall be meas-
ured by following a straight line, without regard to in-
tervening buildings, from the nearest point of the prop-
erty parcel upon which the proposed use is to be located,
to the nearest point of the parcel of property or the land
use district boundary line from which the proposed land
use is to be separated.
SECTION III: This Ordinance shall be effective upon
its passage, approval and thirty days after its publication.
80a
PASSED BY THE CITY COUNCIL this 13th day of
April, 1981.
/s/ Delores A. Mead
DELORES A. MEAD
City Clerk
APPROVED BY THE MAYOR this 13th day of April,
1981.
/s/ Barbara Y. Shinpoch
BARBARA Y. SHINPOCH
Mayor
Approved as to form:
/s/ Lawrence J. Warren
LAWRENCE J. WARREN,
City Attorney
Date of Publication: May 15, 1981
8la
APPENDIX M
CITY OF RENTON, WASHINGTON
ORDINANCE NO. 3629
AN ORDINANCE OF THE CITY OF
RENTON, WASHINGTON RELATING TO
LAND USE AND ZONING
WHEREAS, on April 13, 1981, the City Council of the
City of Renton adopted Ordinance No. 3526, which Ordi-
nance was approved by the Mayor on April 13, 1981, and
became effective by its own terms on June 14, 1981; and
WHEREAS, it was the intention of the City Council
of the City of Renton in the adoption of that Ordinance
te rely upon the opinion of the United States Supreme
Court in the case of Young v. American Mini Theatres,
427 US 50, and of the Supreme Court of the State of
Washington in the case of Northend Cinemas v. Seattle,
90 Wn 2d, 709, to limit the location of adult motion pic-
ture theaters, as that term is defined therein, to promote
the City of Renton’s great interest in protecting and
preserving the quality of its neighborhoods, commercial
districts, and the quality of urban life through effective
land use planning; and
WHEREAS, the City Council, through its Planning and
Development Committee, held a public meeting on March
5, 1981, to receive testimony from the public concerning
the subject of regulation of adult entertainment land uses,
at which the following testimony was received which the
City Council believes to be true, and which formed the
basis for the adoption of Ordinance No. 3526:
1. Areas within close walking distance of single and
multiple family dwellings should be free of adult
entertainment land uses.
2. Areas where children could be expected to walk,
patronize or recreate should be free of adult en-
tertainment land uses.
82a
. Adult entertainment land uses should be located
in areas of the City which are not in close proxi-
mity to residential uses, churches, parks and
other public facilities, and schools.
. The image of the City of Renton as a pleasant
and attractive place to reside will be adversely
affected by the presence of adult entertainment
land uses in close proximity to residential land
uses, churches, parks and other public facilities,
and schools.
. Regulation of adult entertainment land uses
should be developed to prevent deterioration and/
or degradation of the vitality of the community
before the problem exists, rather than in response
to an existing problem.
. Commercial areas of the City patronized by young
people and children should be free of adult enter-
tainment land uses.
. The Renton School District opposes a location of
adult entertainment land uses within the perim-
eters of its policy regarding bussing of students,
so that students walking to school will not be sub-
jected to confrontation with the existence of adult
entertainment land uses.
. The Renton School District finds that location of
adult entertainment land uses in areas of the City
which are in close proximity to schools, and com-
mercial areas patronized by students and young
people, will have a detrimental effect upon the
quality of education which the School District is
providing for its students.
. The Renton School District finds that education
of its students will be negatively affected by loca-
tion of adult entertainment land uses in close
proximity to location of schools.
10.
11.
12.
13.
14.
83a
Adult entertainment land uses should be regu-
lated by zoning to separate it from other dis-
similar uses just as any other land use should be
separated from uses with characteristics different
from itself.
Residents of the City of Renton, and persons who
are non-residents but use the City of Renton for
shopping and other commercial needs, will move
from the community or shop elsewhere if adult
entertainment land uses are allowed to locate in
close proximity to residential uses, churches,
parks and other public facilities, and schools.
Location of adult entertainment land uses in
proximity to residential uses, churches, parks and
other public facilities, and schools, may lead to
increased levels of criminal activities, including
prostitution, rape, incest and assaults in the vi-
cinity of such adult entertainment land uses.
Merchants in the commercial area of the City are
concerned about adverse impacts upon the char-
acter and quality of the City in the event that
adult entertainment land uses are located within
close proximity to residential uses, churches, parks
and other public facilities, and schools. Location
of adult entertainment land uses in close proxi-
mity to residential uses, churches, parks and
other public facilities, and schools, will reduce
retail trade to commercial uses in the vicinity,
thus reducing property values and tax revenues to
the City. Such adverse affect on property values
will cause the loss of some commercial establish-
ments followed by a blighting effect upon the com-
mercial districts within the City, leading to fur-
ther deterioration of the commercial quality of
the City.
Experience in numerous other cities, including
Seattle, Tacoma and Detroit, Michigan, has shown
15.
16.
17.
19.
20.
84a
that location of adult entertainment land uses de-
grade the quality of the areas of the City in
which they are locate and cause a blighting ef-
fect upon the city. The skid row effect, which is
evident in certain parts of Seattle and other cities,
will have a significantly larger affect upon the
City of Renton than other major cities due to the
relative sizes of the cities.
No evidence has been presented to show that loca-
tion of adult entertainment land uses within the
City will improve the commercial viability of the
community.
Location of adult entertainment land uses within
walking distance of churches and other religious
facilities will have an adverse effect upon the
ministry of such churches and will discourage at-
tendance at such churches by the proximity of
adult entertainment land uses.
A reasonable regulation of the location of adult
entertainment land uses will provide for the pro-
tection of the image of the community and its
property values, and protect the residents of the
community from the adverse effects of such adult
entertainment land uses, while providing to those
who desire to patronize adult entertainment land
uses such an opportunity in areas within the City
which are appropriate for location of adult en-
tertainment land uses.
The community will be an undesirable place to
live if it is known on the basis of its image as the
location of aduit entertainment land uses.
A stable atmosphere for the rearing of families
cannot be achieved in close proximity to adult
entertainment land uses.
85a
21. The initial location of adult entertainment land
uses will lead to the location of additional and
similar uses within the same vicinity, thus multi-
plying the adverse impact of the initial location
of adult entertainment land uses upon the resi-
dential [sic], churches, parks and other public
facilities, and schools, and the impact upon the
image and quality of the character of the com-
munity.
and
WHEREAS, since the adoption of Ordinance No. 3526,
it has come to the attention of the City Council of the
City of Renton that it would be appropriate to set forth
in writing the findings of fact which were the basis for
the adoption by the City Council of Ordinance No. 3526;
and
WHEREAS, the City Council finds that, in order to
choose the least restrictive alternative available to ac-
complish the purposes for which Ordinance No. 3526 was
adopted, and to include a severability clause which was
inadvertently omitted from Ordinance No. 3526, and to
make certain other technical amendments to Ordinance
No. 3526, that it is necessary for the City Council to
adopt legislation amending Ordinance No. 3526 to accom-
plish the foregoing purposes; and
WHEREAS, the City Council, at its duly called special
meeting on February 25, 1982, held a public hearing upon
the subject matter of land use regulations of adult motion
pictures within the City of Renton, at which public hear-
ing the City Council received comments from the public
on that subject matter at which the following testimony
was received, which the City Council believes to be true,
and which, together with the findings heretofore set forth
as the basis for the adoption of Ordinance No. 3526, form
the basis for the adoption of this Ordinance:
1. Many parents have chosen the City of Renton in
which to raise their families because of the lack
86a
of pornographic entertainment outlets with its in-
fluence upon children external to the home.
. Location of adult entertainment land uses on the
main commercial thoroughfares of the City gives
an impression of legitimacy to, and causes a loss
of sensitivity to the adverse affect of pornography
upon children, established family relations, re-
spect for marital relationships and for the sanc-
tity of marriage relations of others, and the con-
cept of non-aggressive consenual sexual relations.
. Citizens from other cities and King County will
travel to Renton to view adult film fare away
from areas in which they are known and recog-
nized.
. Property values in the areas adjacent to the adult
entertainment land uses will decline, thus causing
a blight upon the commercial area of the City of
Renton.
. Location of adult entertainment land us¢s within
neighborhoods and commercial areas of the City
of Renton is disrupting to youth programs such
as Boy Scouts, Cub Scouts and Campfire Girls.
Many such youth programs use the commercial
areas cf the City as a historical research resource.
Location of adult entertainment land uses in close
proximity to residential uses, churches, parks and
other public facilities and schools is inappropriate.
. Location of adult entertainment land uses in close
proximity to residential uses, churches, parks and
other public facilities, and schools, will cause a
degradation of the community standard of moral-
ity. Pornographic material has a degrading effect
upon the relationship between spouses.
87a
NOW THEREFORE, THE CITY COUNCIL OF THE
CITY OF RENTON, WASHINGTON DO ORDAIN AS
FOLLOWS:
SECTION I: Existing Section 4-702 of Title IV
(Building Regulations) of Ordinance No. 1628 entitled
“Code of General Ordinances of the City of Renton” is
hereby amended by adding the following subsections:
“Used” The word “used” in the definition of “Adult
motion picture theater” herein, describes a continuing
course of conduct of exhibiting “specific sexual activities”
and “specified anatomical areas” in a manner which ap-
peals to a prurient interest.
SECTION II: Existing Section 4-735 of Title IV
(Building Regulations) of Ordinance No. 1628 entitled
“Code of General Ordinances of the City of Renton” is
hereby amended by adding the following subsections:
(C) Violation of the use provisions of this section is
declared to be a public nuisance per se, which shall be
abated by City Attorney by way of civil abatement pro-
cedures only, and not by criminal prosecution.
(D) Nothing in this section is intended to authorize,
legalize or permit the establishment, operation or mainte-
nance of any business, building or use which violates any
City of Renton ordinance or statute of the State of Wash-
ington regarding public nuisances, sexual conduct, lewd-
ness, or obscene or harmful matter or the exhibition or
public display thereof.
SECTION III: Existing subsection (A) (2) of Section
4-735 of Title IV (Building Regulations) of Ordinance
No. 1628 entitled “Code of General Ordinances of the City
of Renton” is hereby amended to read as follows:
2. One thousand feet (1,000’) of any public or pri-
vate school.
88a
SECTION IV: City of Renton Ordinance No. 3526
is hereby amended by adding the following section to read
as follows:
If any section, subsection, sentence, clause, phrase or
any portion of this ordinance is for any reason held to be
invalid or unconstitutional by the decision of any court of
competent jurisdiction, such decision shall not affect the
validity of the remaining portions of this ordinance. The
City Council of the City of Renton hereby declares that it
would have adopted City of Renton Ordinance No. 3526
and each section, subsection, sentence, clause, phrase or
portion thereof irrespective of the fact that any one or
more sections, subsections, sentence, clauses, phrases or
portions be declared invalid or unconstitutional.
SECTION V: If any section, subsection, sentence,
clause, phrase or any portion of this ordinance is for any
reason held to be invalid or unconstitutional by the deci-
sion of any court of competent jurisdiction, such decision
shall not affect the validity of the remaining portions of
this ordinance. The City Council of the City of Renton
hereby declares that it would have adopted this ordinance
and each section, subsection, sentence, clause, phrase or
portion thereof irrespective of the fact that any one or
more sections, subsections, sentences, clauses, phrases or
portions be declared invalid or unconstitutional.
SECTION VI: The City Council of the City of Renton
finds and declares that an emergency exists because of
the pendency of litigation against the City of Renton in-
volving the subject matter of this ordinance, and potential
liability of the City of Renton for damages as pleaded in
that litigation, and that the immediate adoption of this
ordinance is necessary for the immediate preservation of
public peak [sic], health, and safety or for the support
of city government and its existing public institutions
and the integrity of the zoning of the City of Renton.
89a
Therefore, this ordinance shall take effect immediately
upon its passage and approval by the mayor.
PASSED BY THE CITY COUNCIL this 3th day of
May, 1982.
/s/ Delores A. Mead
DELORES A. MEAD
City Clerk
ma BY THE MAYOR this 8th day of May,
/s/ Barbara Y. Shinpoch
BARBARA Y. SHINPOCH
Mayor
Approved as to form:
/s/ Lawrence J. Warren
LAWRENCE J. WARREN
City Attorney
Date of Publication: May 7, 1982
90a
APPENDIX N
CITY OF RENTON, WASHINGTON
ORDINANCE NO. 3637
AN ORDINANCE OF THE CITY OF RENTON,
WASHINGTON AMENDING ORDINANCE NO.
3526 RELATING TO LAND USE AND ZONING
AND AMENDING ORDINANCE NO. 3629 BY
DELETING THE EMERGENCY CLAUSE AND
RE-ENACTING THE REMAINDER THEREOF
WHEREAS, on April 13, 1981, the City Council of the
City of Renton adopted Ordinance No. 3526, which Ordi-
nance was approved by the Mayor on April 13, 1981, and
became effective by its own terms on June 14, 1981; and
WHEREAS, on May 3, 1982, the City Council of the
City of Renton adopted Ordinance No. 3629 amending
Ordinance No. 3526, which Ordinance was approved by
the Mayor on May 3, 1982, and became effective on its
passage and by the terms of the Ordinance; and
WHEREAS the City Council wishes to remove the
emergency clause from Ordinance No. 3629 and re-enact
the remainder of Ordinance No. 3629 in its entirety; and
WHEREAS, it was the intention of the City Council of
the City of Renton in the adoption of Ordinance No. 3526
to rely upon the opinion of the United States Supreme
Court in the case of Young v. American Mini Theatres,
427 US 50, and of the Supreme Court of the State of
Washington in the case of Northend Cinemas v. Seattle,
90 Wn 2d, 709, to limit the location of adult motion pic-
ture theaters as that term is defined therein, to promote
the City of Renton’s great interest in protecting and
preserving the quality of its neighborhoods, commercial
districts, and the quality of urban life through effective
land use planning; and
WHEREAS, the City Council, through its Planning and
Development Committee, held a public meeting on March
9la
5, 1981, to receive testimony from the public concerning
the subject of regulation of adult entertainment land uses,
at which the following testimony was received which the
City Council believes to be true, and which formed the
basis for the adoption of Ordinance No. 3526:
1. Areas within close walking distance of single and
multiple family dwellings should be free of adult.
entertainment land uses.
2. Areas where children could be expected to walk,
patronize or recreate should be free of adult en-
tertainment land uses.
3. Adult entertainment land uses should be located
in areas of the City which are not in close prox-
imity to residential uses, churches, parks and
other public facilities, and schools.
4. The image of the City of Renton as a pleasant
and attractive place to reside will be adversely
affected by the presence of adult entertainment
land uses in close proximity to residential land
uses, churches, parks and other public faciilties,
and schools.
5. Regulation of adult entertainment land uses
should be developed to prevent deterioration and/
or degradation of the vitality of the community
before the problem exists, rather than in response
to an existing problem.
6. Commercial areas of the City patronized by
young people and children should be free of adult
entertainment land uses.
7. The Renton School District opposes a location of
adult entertainment land uses within the perim-
eters of its policy regarding busing of students,
so that students walking to school will not be sub-
jected to confrontation with the existence of adult
entertainment land uses.
10.
11.
12.
13.
92a
The Renton School District finds that location of
adult entertainment land uses in areas of the City
which are in close proximity to schools, and com-
mercial areas patronized by students and young
people, will have a detrimental effect upon the
quality of education which the School District is
providing for its students.
The Renton School District finds that education
of its students will be negatively affected by loca-
tion of adult entertainment land uses in close
proximity to location of schools.
Adult entertainment land uses should be regula-
tions by zoning to separate it from other dis-
similar uses just as any other land use should be
separated from uses with characteristics different
from itself.
Residents of the City of Renton, and persons who
are non-residents but use the City of Renton for
shopping and other commercial needs, will move
from the community or shop elsewhere if adult
entertainment land uses are allowed to locate in
close proximity to residential uses, churches, parks
and other public facilities, and schools.
Location of adult entertainment land uses in
proximity to residential uses, churches, parks and
other public facilities, and schools, may lead to
increased levels of criminal activities, including
prostitution, rape, incest and assaults in the vi-
cinity of such adult entertainment land uses.
Merchants in the commercial area of the City are
concerned about adverse impacts upon the char-
acter and quality of the City in the event that
adult entertainment land uses are located within
close proximity to residential uses, churches,
parks and other public facilities, and schools.
Location of adult entertainment land uses in close
ee 4 Crile Rial eS ae me ts
ne ce en a UC Ee al
14,
15.
16.
17.
93a
proximity to residential uses, churches, parks and
other public facilities, and schools, will reduce re-
tail trade to commercial uses in the vicinity, thus
reducing property values and tax revenues to the
City. Such adverse affect on property values will
cause the loss of some commercial establishments
followed by a blighting effect upon the commer-
cial districts within the City, leading to further
deterioration of the commercial quality of the
City.
Experience in numerous other cities, including
Seattle, Tacoma and Detroit, Michigan, has shown
that location of adult entertainment land uses
degrade the quality of the area of the City in
which they are located and cause a blighting ef-
fect upon the City. The skid row effect, which is
evident in certain parts of Seattle and other
cities, will have a significantly larger affect upon
the City of Renton than other major cities due to
the relative sizes of the cities.
No evidence has been presented to show that lo-
cation of adult entertainment land uses within
the City will improve the commercial viability of
the community.
Location of adult entertainment land uses within
walking distance of churches and other religious
facilities will have an adverse effect upon the
ministry of such churches and will discourage at-
tendance at such churches by the proximity of
adult entertainment land uses.
A reasonable regulation of the location of adult
entertainment land uses will provide for the pro-
tection of the image of the community and its
property values, and protect the residents of the
community from the adverse effects of such adult
entertainment land uses, while providing to those
94a
who desire to patronize adult entertainment land
uses such an opportunity in areas within the City
which are appropriate for location of adult enter-
tainment land uses.
18. The community will be an undesirable place to
live if it is known on the basis of its image as
the location of adult entertainment land uses.
19. A stable atmosphere for the rearing of families
cannot be achieved in close proximity to adult en-
tertainment land uses.
20. The initial location of adult entertainment land
uses will lead to the location of additional and
similar uses within the same vicinity, thus multi-
plying the adverse impact of the initial location
of adult entertainment land uses upon the resi-
dential [sic], churches, parks and other public
facilities, and schools, and the impact upon the
image and quality of the character of the com-
munity.
and
WHEREAS, since the adoption of Ordinance No. 3526,
it has come to the attention of the City Council of the
City of Renton that it would be appropriate to set forth
in writing the findings of fact which were the basis for
the adoption by the City Council of Ordinance No. 3526;
and
WHEREAS, the City Council finds that, in order to
choose the least restrictive alternative available to accom-
plish the purposes for which Ordinance No. 3526 was
adopted, and in [sic] include a severability clause which
was inadvertently omitted from Ordinance No. 3526, and to
make certain other technical amendments to Ordinance
No. 3526, that it is necessary for the City Council to
adopt legislation amending Ordinance No. 3526 to accom-
plish the foregoing purposes; and
95a
WHEREAS, the City Council, at its duly called special
meeting on February 25, 1982, held a public hearing upon
the subject matter of land use regulations of adult motion
pictures within the City of Renton, at which public hear-
ing the City Council received comments from the public
on that subject matter at which the following testimony
was received, which the City Council believes to be true,
and which, together with the findings heretofore set forth
as the basis for the adoption of Ordinance No. 3256, form
the basis for the adoption of this Ordinance:
1. Many parents have chosen the City of Renton in
which to raise their families because of the lack
of pornographic entertainment outlets with its in-
fluence upon children external to the home.
2. Location of adult entertainment land uses on the
main commercial thoroughfares of the City gives
an impression of legitimacy to, and causes a loss
of sensitivity to the adverse affect of pornography
upon children, established family relations, respect
for marital relationship and for the sanctity of
marriage relations of others, and the concept of
non-aggressive consensual sex
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