# Prologue — Kozub v. City of Pomona

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0512%3A0

## Record

- **Collection:** Supreme Court brief
- **Document type:** Prologue
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 1171

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0512%3A0. Public record. Not legal advice.