Prologue — Kozub v. City of Pomona

EA eA PPE AO EA CO TCE EE

Supreme Court, U.8.

} FILED

05-673 NOV 21 2005

No, DFFIGE OF THE CLERK |

Zn the

Supreme Court of the United States

STEVEN A. Kozus AND S.S.A.M., INC.,

a California corporation,

Petitioners,

Vv.

City oF Pomona, a California corporation,

Respondent.

On Petition for a Writ of Cer. <rari

to the California Court of Appeal

Second Appellate District, Division Two

PETITION FOR WRIT OF CERTIORARI

RoGER Jon DIAMOND, Esq.

Counsel of Record

2115 MaAIn STREET

SANTA Monica, CA 90405

(310) 399-3259

(310) 392-9029 KAx

Counsel for Petitioners

NovemMBer 21, 2005

Becker Gallagher Legal Publishing, Inc. 800.890.5001

i

QUESTIONS PRESENTED

1. Does a city violate the First and Fourteenth

Amendments to the United States Constitution when it adopts

and enforces an adult zoning ordinance that requires an adult

cabaret to relocate to the industrial zone and prohibits such

businesses in the commercial zones, especially where the

industrial zone is occupied by on-going businesses by owners

of properties within the industrial zone?

2. Is the decision of the California Court of Appeal,

which reversed a state trial court’s findings and judgment, that

city’s adult zoning ordinance was unconstitutional as applied,

consistent with this Court’s decisions in Young v. American

Mini Theater, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310

(1976) and Renton v. Playtime Theaters, 475 U.S. 41, 106

S.Ct. 925, 89 L.Ed.2d 29, rehg.den. 475 U.S. 1132, 106

S.CT. 1663, 90 1.Ed.2d 205 (1986), that a city must provide

an adult business operator (bookstore, theater, cabaret) a

reasonable opportunity to open?

ii

PARTIES TO THE PROCEEDINGS

Petitioner: Stephen A. Kozub is the Petitioner and the

owner of S.S.A.M., Inc., a California

Corporation

Respondent: The City of Pomona is a municipal corporation

in the State of California.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ......... i

PARTIES TO THE PROCEEDINGS ............ ii

eee ee Ge eeene fs Kee deedcbscwes vee iil

pp Ge OF) er oe iv

Ss ee GEE cbc he dawn pacedéns Vv

PETITION FOR WRIT OF CERTIORARI ......... l

PRE. WduWev ental ¢i6es% bee wes i

STATEMENT OF JURISDICTION ............. 2

CONSTITUTIONAL ANS STATUTORY

PROV Esse DNVULVED oc ccc ccc cece ceecces 2

STATEMENT OF THE CASE ..ccccccccvccess 5

REASONS FOR GRANTING THE WRIT ......... 18

CPS 6k So's boo 8 Sera eee eee 24

iV

TABLE OF AUTHORITIES

Faretta v. California, 422 U.S. 806,95 S. Ct. 2525,

OF Rik Ss Se CRI ne Hoo hen t Via 2

Renton v. Playtime Theaters,

475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29,

rehg.den., 475 U.S. 1132, 106 S.Ct. 1663,

Oe has le a ee COE - fe vind kvaMe whee passim

Topanga Press, Inc. v. City of Los Angeles,

989 F.2d 1524 (9th Cir 1993) ......... 14, 17, 18

Walnut Properties, Inc. v. City of Whittier,

ee ae Be Ce Gat EE ko) oo loeb ea ee ll

Young v. American Mini Theater,

427 U.S. 50, 96 S. Ct. 2440,

49 L. Ed. 24310 (1976) ......... 15, 17, 19, 20

STATE CASES

City of National City v. Wiener,

Bee Oe ee CE ov ca digs Peieaw ke has 13

Cook County v. Renaissance Arcade and Bookstore,

122 Ill. 2d 123, 522 N.E.2d 73 (Ill. 1988) ....... 18

Reichardt v. Hoffman,

Se Ges tS AE Te CITT 6 ak ere nes ohms 10

‘own of Islip v. Caviglia,

73 N.Y.2d 544, 540 N.E.2d 215 (N.Y. 1989) .... 18

v

CONSTITUTIONAL AND STATUTORY PROVISIONS

rn A IID fo gee A ee eae bee be ee 2

ey Ga, ee ee Oe Bs es ewowectnees 2

Ec tt ES 4 diy Ga 8 Stew ee Ae Oe oe hee el 2

CITY CODE AND ORDINANCES

Pomona City Code Section .410 ................ 3

Pomona City Code Section .420 ................ 4

Pomona Ordinance No. 1466 Section .5809(c)....... 3

Pomona Ordinance No. 1466 Section .5809(d) ...... 3

vi

TABLE OF APPENDICES

APPENDIX A:

Court of Appeal Unpublished Decision ......... la

APPENDIX B:

Superior Court Judgment Granting Injunction .... Ila

APPENDIX C

Superior Court Report of Referee &

POUGNEEE JiR Ceueeade bed aaeeeee ume 13a

APPENDIX D

Court of Appeal Petition for Rehearing Denied . . . 23a

APPENDIX E

Supreme Court Unpublished Order ........... 24a

l

“=TITION FOR WRIT OF CERTIORARI

Petitioners Stephen A. Kozub and S.S.A.M., Inc, a

California corporation (“Kozub”) respectfully pray that a Writ

of Certiorari issue to review the judgment and opinion of the

California Court of Appeal, Second Appellate District,

Division Two, entered on June 2, 2005. The California

Supreme Court denied discretionary review on August 24,

2005.

OPINIONS BELOW

The unpublished opinion (June 2, 2005) of the California

Court of Appeal, Second Appellate District, Division Two, is

not reported. It is Appendix A at la-10a. The Superior

Court of the State of California for the County of Los Angeles

issued a permanent injunction in favor of Petitioners against

Respondent City of Pomona on February 4, 2004. The

injunction is not reported. It is Appendix B at 1la-12a.

The injunction issued by the trial court (Appendix B) was

based upon a report submitted on January 20, 2004 by a

retired state appellate justice who conducted an evidentiary

hearing and inspected each site. The report, unpublished, is

Appendix C at 13a-22a.

On June 10, 2005 the California Court of Appeal, Second

Appellate District, Division Two, denied without opinion the

Petition for Rehearing (Appendix D at 23a).

The California Supreme Court on August 24, 2005 denied

discretionary review in an unpublished order, Appendix E at

24a.

2

STATEMENT OF JURISDICTION

The California Court of Appeal, Second Appellate

District, Division Two, issued its Opinion on June 2, 2005.

On June 15, 2005 Petitioners filed a timely Petition for

Rehearing, which the Court of Appeal, Second Appellate

District, Division Two, summarily denied without explanation

on June 20, 2005.

On August 24, 2005 the California Supreme Court denied

discretionary review. This Petition for a Writ of Certiorari is

filed within 90 days of the denial of the Petition for Review.

The Court’s jurisdiction is invoked pursuant to 28 U.S.C.

§1257(a). See Rule 13(1) of the Supreme Court Rules. See

also Faretta v. California, 422 U.S. 806, 45 L.Ed.2d 562, 95

S.Ct. 2525 (1975), where this Court reversed an unpublished

decision of the California Court of Appeal, Second Appellate

District after. the California Supreme Court denied

discretionary review.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. amend. I

Congress shall make no law . . . abridging the

freedom of speech... .

U.S. Const. amend XIV, sec. 1

. . » No state . . . shall deprive any person of life,

liberty, or property, without due process of law. . . .

3

Pomona Ordinance No. 1466, Section .5809-5(c)

“Adult-Oriented Business shall be established or

permitted in the City’s M-1 (Light Industrial) and M-2

(General Industrial) zones.”

Pomona Ordinance 1466, Section .5809-5(d)

“1. No Adult-Oriented Business shall be established

or located within certain distances of certain specified

land uses or zones as set forth below:

a. within 750 feet of any other Adult-Oriented

Business in the city adjacent city or shopping

center property line; or

b. within 1,000 feet from any existing

residentially zoned property or sensitive use in the

City or cities adjacent to the city. . . .”

Pomona City Code Section .410

“The light industrial district (*M-1") is intended io

provide for the development of industrial uses which

include fabrication, manufacturing, assembly or

processing of materials that are in a processed form

and which do not in their maintenance, assembly,

manufacture or plant operation create smoke, gas,

odor, dust, sound, vibration, soot or lighting to any

degree which might be termed obnoxious or offensive

to persons residing in or conducting business in either

this or any other zoning district of the city. . . .”

4

Pomona City Code Section.420

“The ‘M-2° general industrial district is intended to

provide for the establishment of certain industrial uses

considered by the council to be essential to the

development of a balanced economic base for the

city....”

STATEMENT OF THE CASE

Petitioners have operated their “Baby Dolls Theater,” an

adult cabaret, in the City of Pomona, since 1998 (Slip

Opinion, p. 2). Inthe year 2002, the City of Pomona revised

its Municipal Code and restricted the location of adult

businesses. Adult businesses must be at least | ,000 feet from

sensitive uses such as residences, churches, schools, parks,

and daycare facilities. Also adult businesses may not be

operated within 750 feet of other adult businesses.

Furthermore, adult businesses are restricted to the “light or

general industrial zones.” (Slip Opinion, p. 3; Appendix A

at 3a).

Petitioners sued the City to enjoin it from enforcing its

adult zoning ordinance on the ground that Petitioners could

not relocate to the light or general industrial zones because

there are too few, if any, properties available for such a

business.

As the Court of Appeal acknowledged at page 3 of its Slip

Opinion, the trial court appointed a referee to resolve

“whether under the City’s present adult zoning ordinance, the

City allows for the establishment of a reasonable amount of

alternative adult use relocation sites.” (Slip Opinion, p. 3;

App. A). As the Court of Appeal noted, the referee was to

consider evidence “to determine the availability of 31

5

alternative sites identified by Pomona.” (Slip Opinion, p. 3;

App.A).

The hearing was conducted by Robert E. Feinerman, a

retired Justice of the State Court of Appeal. For convenience

Petitioners will be referred to as “Kozub,” since Steven A.

Kozub, one of the Petitioners, was the name used in the courts

below.

Justice Feinerman literally examined each property

claimed by the City to be available. Feinerman “conducted

a parcel-by-parcel examination of prospective sites identified

by Pomona as being suitable for an adult business. . . .” (Slip

Opinion, p. 4; App.A).

Justice Feinerman “rejected each site.” (Slip Opinion, p.

_ 4; App. A). Given his conclusion that no site was available,

Justice Feinerman “. . . concluded that Kozub had carried his

burden of establishing that Pomona lacks a reasonable amount

of adult use relocation sites.” (Slip Opinion, p. 4; App. A).

Because Justice Feinerman concluded that none of the sites

was available he did not follow up by determining how many

adult businesses could operate simultaneously in the City of

Pomona given the 750 foot restriction imposed by the

ordinance with respect to two adult businesses. On February

4, 2004 the Superior Court adopted the recommendation of

Justice Feinerman and issued a permanent injunction

prohibiting the City of Pomona from enforcing its current

adult zoning ordinance against Kozub (Clerk’s Transcript

(“CT”), pp. 365-366).

Kozub had alleged in his Third Amended Complaint that

he had been operating his Baby Dolls adult cabaret theater at

2005 West Holt Avenue in the City of Pomona since June of

1998 and had alleged that the City of Pomona was threatening