# Appendix — Renton v. Playtime Theatres, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0193%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1986 - **Citation:** 475 U.S. 41 ## Text - Supreme 3 us] . : ae 6) TLE D 84-1860 FEB 26 1985 a | 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 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 A= ae me 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 ee ee eget Leary ae] et eet ere a 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 et Ne a er ee ae ev Bm. Oe ee a. ae ee ee ee eS ee Seer ee 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 — de ae a ne eee a ere Pe ee a 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 ~~ 1 ee re oo are 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. 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, serv [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0193%3A03. Public record. Not legal advice.