Opposition Brief — Wiener v. City of National City

JUN 2 1 1993

OrFice CF THE CLERK

een oe oneal

No. 92-1981

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1992

STEVEN D. WIENER, et. al.

Petitioners,

V.

NATIONAL CiTy, a municipal corporation; and

PEOPLE OF THE STATE OF CALIFORNIA,

Respondents.

Petition For a Writ Of Certiorari

To The Supreme Court of The

State of California

BRIEF IN OPPOSITION

GEORGE H. EIser, III,

City Attorney*®

LINDA KAYE HARTER,

Assistant City Attorney

1243 National City Boulevard

National City, California 91950

(619) 336-4220

Counsel for Respondents

* Counsel of Record

Bowne of Los Angeles, Inc, Law Printers (213) 627-2200

i

TABLE OF CONTENTS

REASONS FOR DENYING THE WRIT OF

G4) vi50 54-8 <uh eases kee es cueen ca

I

THE CALIFORNIA SUPREME COURT CORRECTLY

INTERPRETED AND APPLIED RENTON.........

IT.

NATIONAL CITY HAS PROVIDED FOR ALTER-

NATIVE AVENUES OF COMMUNICATION ......

ITI.

COMMERCIAL VIABILITY IS NOT AN APPRO-

PRIATE CRITERION FOR FIRST AMENDMENT

CFSE 6.055 acn0s5cbeeekdecannwecncess

IV.

THE NATIONAL CITY ORDINANCE IS DISTIN-

GUISHABLE FROM THE ONE IN TOPANGA .....

v

MISSTATEMENTS OF FACT ................00000-

VI.

MISSTATEMENTS OF LAW ..............ccccccess

VIL.

PETITIONER ATTEMPTS TO RAISE NEW ISSUES

NOT ADDRESSED BEFORE THE CALIFORNIA

TINE 6.66 Gu ah ANS ic occcdasenctacseases

oo A ee reer ee

10

ii

TABLE OF AUTHORITIES

Cases

Page

City of Renton v. Playtime Theatres, Inc. (1986) 475 U.S.

41, 106 S.Ct. 925, 89 L.Ed.2d 29.............. 1, 2, 3, 6, 12

Cox v. New Hampshire, 312 U.S. 569, 85 L.Ed. 1049, 61

8 Ee ER Pee reece sen es oP 2

Euclid v. Ambler Realty Co. (1926) 272 U.S. 365...... l

Frisby v. Schultz, 487 U.S. 474 (1988) ............... 10

SDJ, Inc. dba Sugar Babes v. City of Houston (1986) 636

Po a OE 8 | errr 3

Ward v. Rock Against Racism, 491 U.S. 781 (1989).... 10

Young v. American Mini Theaters, Inc. (1976) 427 U.S.

50, 96 S.Ct. 2440, 49 L.Ed.2d 310.......... Ld a 21,82

Statutes

National City Municipal Code

ANT i Oks baeeveSsenncweeediawi ved eeu eee 9

No. 92-1981

In the Supreme Court

OF THE

United States

OcTOBER TERM, 1992

STEVEN D. WIENER, et. al.

Petitioners,

Vv.

NATIONAL CrTy, a municipal corporation; and

PEOPLE OF THE STATE OF CALIFORNIA,

Respondents. ~~

Petition For a Writ Of Certiorari

To The Supreme Court of The

State of California

BRIEF IN OPPOSITION

1

THE CALIFORNIA SUPREME COURT’ CORRECTLY IN-

TERPRETED AND APPLIED RENTON.

Two-thirds of a century ago, the U.S. Supreme Court affirmed

the power of cities to use the then unique tool of land-use

regulation to ease the tensions created by increasing urbanization

upon the citizenry’s quality of life. Euclid v. Ambler Realty Co.

(1926) 272 U.S. 365. Since then the Court has accepted and

defended zoning as a necessary method to alleviate the pressures

which inevitably emerge with a higher and more concentrated

population. (Young from Justice Powell’s concurring opinion.)

‘California Supreme Court decision in City of National City v. Wiener

(as modified) dated January 21, 1993. (Attached hereto as Appendix

A)

2

The law in the area of regulation of adult entertainment

businesses specifically by zoning ordinances, is spelled out in two

landmark cases from the U.S. Supreme Court decided a decade

apart: Young v. American Mini Theaters, Inc., (1976) 427 U.S.

50, 96 S.Ct. 2440, 49 L.Ed.2d 310, and City of Renton v.

Playtime Theatres, Inc., (1986) 475 U.S. 41, 106 S.Ct. 925, 89

L.Ed.2d 29.

Since Young and Renton, innumerable cases have been decided

on their precedent, but none have retreated from their basic

concept:

When a city’s goal is to prevent crime, protect retail trade,

maintain property values, preserve the quality of neighborhoods,

commercial districts, and the quality of life in general and by so

doing seeks to limit the location of protected speech activities,

and not ban them or their numbers allowable within a city, then

the regulation is properly a “content-neutral” time, place and

manner regulation, and permitted, as long as it is (1) designed to

serve a substantial governmental interest and (2) allows for

reasonable alternative avenues of communication.

Dispersal ordinances are thus analogous to regulations regard-

ing parade or demonstration permits and the imposition of condi-

tions on such permits. Cox v. New Hampshire, 312 U.S. 569, 574-

576, 85 L.Ed. 1049, 61 S.Ct. 762.

While many ordinances similar to National City’s have passed

constitutional muster, a mechanical comparison of the cases

involving dispersal ordinances is not helpful for the following

reasons. First, First Amendment issues do not lend themselves to

austere, uninspired analyses. The revered tradition of free speech,

the hallmark of American freedom, does not sit comfortably on a

nest of comparative numbers.

Secondly, and most decisively, the facts of each case are widely

divergent, incomplete on relevant details and not susceptible to a

formula dissection. For example the distinction between gross

acreage (which is the area inclusive of freeways, streets, rights of

way, waterways, wetlands, and public utilities) can differ signifi-

cantly from the net acreage (which is the area of available land,

terra firma, whether developed or not) that can be considered

3

available as an alternative site for an adult entertainment busi-

ness. In National City, which comprises 5,536 gross acres there

are only 3,196 net acres in the entire city, ic. only 58 percent of

the City’s land is actually available for any land use purpose

whatsoever. Of those 3,196 acres, 572 are zoned commercially,

and would accommodate adult entertainment businesses within

the parameters of Section 18.69.030.

The cases which describe available acreages rarely distinguish

between gross and net, nor do they address population,

demographics, geography, vehicular, pedestrian or utility access,

nor pre-existing zoning configuration, and for that reason cannot

be meaningfully compared to one another. There are simply too

many variables unique to each community to permit the court to

arrive at a formula of any type that will comply with First

Amendment guarantees as well as the needs of each community.

Lastly, the content of each ordinance aside from the distance

requirements, makes comparison inaccurate. While some ordi-

nances include restrictions on the background of owners and

operators, others apply the distance requirements to hotels, bars,

churches, libraries, pool halls, day care centers, liquor stores, taxi

dance halls, youth clubs, and pawnshops. The myriad combina-

tions of adult businesses which are to be dispersed, hours of

operation, signage and other operational restrictions defy

comparison.

These factors serve to underline the point made in Young that

cities must be left to “experiment with solutions” (Jd. at 71).

Those solutions must be tailored to the unique characteristics of

each community. What may be crucial to the citizens of one

community may be of no matter to another. Still the dispersal

ordinance devised by either city, although different in detail, may

nevertheless be consistent with Young and Renton and therefore

constitutional.

nt nn

4

II

NATIONAL CITY HAS PROVIDED FOR ALTERNATIVE

AVENUES OF COMMUNICATION

Chuck’s challenges the zoning scheme on two aspects. One,

because after a somewhat cursory investigation of the existing

mall shopping centers (in Plaza Bonita, the consultant for

Chuck’s testified he drove around it, looked at the shopper’s

directory board and nothing more) no landlords agreed to rent to

them. They make that argument, even though they made no

attempt to contact any of the myriad strip malls sprinkled

throughout the City for leasing purposes.

Moreover, in light of the torrent of negative publicity generated

by Chuck’s, widely reported in the local paper, The Star News in

vivid detail, it is not surprising landlords were disinclined to offer

Chuck’s a new home. Chuck’s would have this fact construed

against the City, in spite of the fact that Chuck’s reputation was

their own doing.

It is not the City’s task to assure Chuck’s a willing landlord.

Indeed what if no one anywhere would rent to Chuck’s? Where

does the City’s obligation end and the realities of the marketplace

begin? The law does not require the [City] to confirm that the

sites are economically and logistically viable, except as it relates

to the restrictions in the Ordinance. SDJ, Inc. dba Sugar Babes v.

City of Houston, (1986) 636 F.Supp. 1359 at 1370 (S.D. Tex

1986).

Testimony was consistent at the trial that under the City’s

zoning scheme Chuck’s could locate in any one of the following

locales: (1) on a four and one-half acre parcel in the southwest

corner of the City, 35th Street and National City Boulevard,

comprised of some vacant land, a 9,000 square foot office building

and an existing business. Because of the exception allowing

placement in a mall with obscured frontage, Chuck’s could also

locate in the following existing malls: (2) South Bay Plaza,

(3) Sweetwater Town and Country, and (4) Plaza Bonita. Also

because of the exception, (5) Chuck’s could build a new or

modify an existing strip mall (of which the City has an abun-

dance) on any of the City’s 572 acres of commercially-zoned

land.

This array of options provides a generous quantity of available

sites, ranging from undeveloped land to small retail malls to a

major regional shopping center. The last option, (5), constitutes

18 percent of the City’s net acreage.

Testimony at the trial was uncontroverted that these alternative

sites are street and freeway accessed, have vacancies and are in

suitable dimensions to accommodate Chuck’s.

The second objection Chuck’s directs to the zoning scheme is

the complaint that the construction of a building configuration

complying with the “shopping center with obscured frontage”

exception is too expensive. There was no evidence offered at the

trial to indicate Chuck’s had made any attempt to purchase an

existing site that could be modified to comply, nor the cost of

such an endeavor.

Furthermore, there was no evidence whatsoever to indicate the

cost for construction of a new site was any more expensive for

Chuck’s than any other business, nor any evidence to enable the

District Court of Appeal to draw the inference “...such an

endeavor would not be economically feasible for the typical adult

business entrepreneur.”

Landlords refused to rent to Chuck’s, understandably, in light

of Chuck’s acquiescence to “glory holes” and other sexual activi-

ties on their premises. Chuck’s declined to purchase an existing

building which could be modified to comply with the dispersal

ordinance. Therefore it is Chuck’s, not the City, who defines new

construction as the only remaining alternative, and then claims it

is too expensive.

That commercial viability is not a First Amendment issue has

been stated and re-affirmed many times. The essence of the First

Amendment is to allow for a full opportunity of expression to

convey a message and a full opportunity for everyone to receive

the message. At no time did Chuck’s present any evidence that

anyone’s appetite for adult entertainment was not being satisfied.

6

The alternative sites in National City that would legally accom-

modate adult entertainment businesses are sufficient in quality

and quantity to provide for reasonable alternative avenues of

communication for Chuck’s. The charge that they are not com-

mercially viable is both unsupported and not a concern upon a

First Amendment inquiry.

Cities are an amalgam, multi-faceted variables interacting

together to create a community. It is deceptive and imprecise to

isolate one quality or identifier and assign a significance to it vis a

vis adult entertainment businesses. For example, there is no

authority anywhere that assigns a minimum number of adult

entertainment businesses to a population figure. This is particu-

larly true when cities share boundaries and what may be a relative

small number of citizens abut a large densely populated city.

Il

COMMERCIAL VIABILITY IS NOT AN APPROPRIATE

CRITERION FOR FIRST AMENDMENT CON-

SIDERATION

“Commercial viability” has been rejected as a criteria for

evaluating alternative avenues of communication, and properly so.

Addressing the issue the Young court said:

The constraints of the ordinance with respect to location may

indeed create economic loss for some who are engaged in the

business. But in this respect they are affected no differently

from any other commercial enterprise that suffers economic

detriment as a result of land-use regulation. The cases are

legion that sustained zoning against claims of serious economic

damage. (Cite omitted.)

The inquiry for First Amendment purposes is not concerned

with economic impact, rather it looks only to the effect of this

ordinance upon freedom of expression (emphasis added) (Jd.

at 78).

The court in Renton specifically rejected the claim that free-

dom of expression of adult entertainment businesses was unrea-

7

sonably restricted because there were no “commercially

available” sites within the zoned area:

That respondents must fend for themselves in the real estate

market, on an equal footing with other prospective purchasers

and lessees, does not give rise to a First Amendment viola-

tion.... [W]e have never suggested that the First Amendment

compels the government to ensure that adult theaters, or any

other kinds of speech-related business for that matter, will be

able to obtain sites at bargain prices.

Id. 106 S.Ct. 932, 89 L.Ed.2d at 42.

Clearly the court has no interest in saddling municipalities with

the chore of ensuring the economic success of adult entertain-

ment businesses. The mercurial fortunes of free enterprise are far

too elusive to be factored into discussion of First Amendment

guarantees.

Adult entertainment businesses must simply rely on the same

resources any other business enlists to capture the consumer

dollar, for what is, after all, a commercial venture.

IV

THE NATIONAL CITY ORDINANCE IS DISTINGUISH-

ABLE FROM THE ONE IN TOPANGA

National City’s ordinance is clearly distinguishable from the

Los Angeles dispersal ordinance considered in Topanga (cites

omitted) in the following areas:

First, the land sensitive areas dispersed in the Los Angeles

ordinance includes churches, National City’s does not.

Second, Los Angeles’ ordinance prokibits multi-medium adult

entertainment facilities, while National City’s does not.

Thirdly, the Los Angeles ordinance contains an amortization

provision, long approved by the courts, and National City’s does

not.

Fourth, National City’s ordinance contains a shopping mall

exception which is absent in the Los Angeles ordinance.

8

Fifth, while no definition of an adult bookstore is included in

Topanga the National City ordinance regulates only bookstores

who devote 15% or more of their floor space to adult material.

Bookstores in National City devoting less than 15% to adult

material are not subject to the dispersal ordinance at all.

Finally, in Topanga, the court found that Los Angeles had

failed to enforce their ordinance for a long time. In National City,

when Chuck’s opened in December of 1986, National City filed

suit immediately.

The factual differences between National City with 57,000

inhabitants and 8.65 square miles, and the megalopolis of Los

Angeles are overwhelming.

These differences do not create conflict between the National

City decision and that in Topanga, but instead argue against any

such conclusion.

Vv

MISSTATEMENTS OF FACT

Petitioner makes the following misstatements of facts. (Page

References are to the Petition for Writ of Certiorari.)

Page 2 - Statement of the Case. The complaint filed by the City

was amended on January 20, 1987. (Attached hereto as Appendix

B.)

Page 3. The trial court issued a preliminary injunction on

March 4, 1987. (Attached hereto as Appendix C.) The California

4th District of Appeal reversed on December 11, 1987, because it

could not conclude, from the record at that preliminary stage, that

there was a reasonable probability the City would prevail. The

court said:

3. We emphasize “this record” because nothing we opine

here bears upon the right of the City at trial to adduce

evidence of the sort noted in City of Vallejo demonstrating

the availability of sites for adult bookstores such as to

persuade the court the ordinance does not prohibit or se-

verely limit access to protected expression. (p. 11.)

9

(Attached hereto as Appendix D.) It was definite!y not on the

ground that the ordinance was unconstitutional, as petitioner

alleges.

While changes were: made to National City Municipal Code

Section 18.69 thereafter, they were not occasioned by the District

Court’s ruling.

Page 8. Petitioner makes the statement “but issuing no relief

vis a vis the ‘common law’ nuisance.” The trial court made no

specific finding on the common law public nuisance, but it did

grant the relief requested.

Page 9. Petitioner states in two places that the City did not

appeal the trial court’s failure to address the common law nui-

sance, to the District Court of Appeal. In the course of the appeal

that was filed by petitioners, the City did address, brief and argue

that very issue. When the District Court of Appeal failed to

address the common law nuisance, as the trial court had done, the

City requested a rehearing that was denied without comment.

(Attached hereto as Appendix E.) The City also included this

issue in the petition for review. (Attached hereto as Appendix F.)

When the California Supreme Court granted review, it did not

include the “forgotten” issue of the common law nuisance.

Page 10. It can not be said that the trial court “rejected” the

common law nuisance cause of action. The trial court simply did

not rule on it.

Page 11. Petitioner argues that the only location in National

City which is outside the distance requirements “is presently

developed and commercially utilized by a Yamaha motorcycle

dealership.” In fact, three courts have correctly identified this

location as: 4.5 acres, located at the intersection of National City

Boulevard and 35th Street, that is partially developed, containing

a 9,000 square foot building and a motorcycle shop.

10

VI

MISSTATEMENTS OF LAW

Petitioner makes the following misstatements of law:

Page 11. Petitioner contends National City’s adult zoning

ordinance effectively bans petitioner’s bookstore from operating

within its borders. The California Supreme Court considered

petitioner’s argument and specifically rejected it. City of National

City v. Wiener (cites omitted) f.10.

The court pointed out that it was Chuck’s not the City who

identified construction of a new shopping center as their only

alternative.

Vil

PETITIONER ATTEMPTS TO RAISE NEW ISSUES NOT

ADDRESSED BEFORE THE CALIFORNIA SUPREME

COURT

Petitioner’s attack on the ordinance as an invalid time, place

and manner restriction (p. 23) because of the “narrow tailoring”

test of Frisby v. Schultz, 487 U.S. 474 (1988) and Ward v. Rock

Against Racism, 491 U.S. 781 (1989) are new arguments not

raised in the proceedings below. Chuck’s contention below was

always that (1) the ordinance did not provide for adequate

alternative sites and (2) relocating was too expensive.

Likewise, petitioner’s claim that the ordinance makes First

Amendment guarantees dependent on the discretion of private

citizens (p. 29) is a new issue. This court can not be asked to

grant a writ on issues which would not properly be before the

court.

Finally, petitioner’s reference to another ordinance from a

different jurisdiction in California (Escondido) is not part of the

record, is diversionary, and not properly before the court.

Attached as an appendix are copies of Petitioner’s Tables of

Contents and Authorities submitted in their brief to the Califor-

nia Supreme Court. (Appendix G.) It is provided to this court to

11

enable the court to see that the pertinent issues in this case have

been exhaustively researched, briefed and argued.

CONCLUSION

National City Municipal Code Section 18.69.030 is an attempt

by the City to protect the economic integrity of its business

district in the heart of downtown, actually on the Mile of Cars. It

seeks to preserve the tranquility of parks, its residents and their

children, and insulate against the corrosion that adult entertain-

ment businesses have on the quality of life.

Section 18.69.030 is a compromise that embodies the true

purpose of zoning, i.e., to insure compatibility between land uses.

“To be sure, some prospective patrons may be inconvenienced

by this dispersal. But sther patrons, depending on where they live

or work, may find it more convenient to view an adult movie when

adult theaters are not concentrated in a particular section of the

city.” (Young, supra, at 79.)

What the court sought to do in Young and Renton is to arrive

at a definition in practical terms of what the First Amendment

protects, and what other considerations must be addressed to

preserve quality of life issues so important to urban areas.

“Without stable neighborhoods, both residential and com-

mercial, large sections of a modern city quickly can deterio-

rate into an urban jungle with tragic consequences to social,

environmental and economic values. .. .it is also undeniable

that zoning, when used to preserve the character of specific

areas of a city, is perhaps the most essential function per-

formed 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.” (Cite omitted.) (Young, Ibid, at

79.)

The significant regional factors inherited by National City .

coupled with its resolve to reverse the urban blight which plagues

it, limit the City’s options to protect both the quality of life and

First Amendment guarantees. Based on the unique character of

National City, the distance requirements and the shopping center

12

with obscured frontage exception provides a solution to accom-

plish this task.

What private landlords in the real estate market or what the

social climate of the marketplace will or will not allow is not the

City’s responsibility. The City must maintain the position of

neutrality emphasized in Young. While it may not attempt to

suppress protected speech, neither must it act as broker or leasing

agent for those engaged in the sale of it.

The effect of refusing to allow an older, smaller, more business

occupied community, frequently inhabited by less affluent people,

to regulate these (blighting) adult entertainment businesses, is to

condemn them to blight, while newer, wealthier, less developed

areas are free to plan and insulate themselves from it. The

residents of the older urban neighborhoods have an equal right to

protect their property enjoyment as do residents of a newer more

suburban neighborhood.

An examination of the opinion from the California Supreme

Court evidences a thorough, balanced evaluation of the National

City ordinance. The opinion itself is witness for the fact that

National City successfully devised a formula to address the

unique problems facing it, at the same time meeting the constitu-

tional requirements of Renton.

The decision is well grounded in reason, the facts, and constitu-

tional precedent.

Dated: June 15, 1993 Respectfully submitted,

George H. Eiser, III, City Attorney*

Linda Kaye Harter, Assistant City

Attorney

1243 National City Boulevard

National City, California 91950

(619) 336-4220

Counsel for Respondents

* Counsel of Record

APPENDIX TABLE OF CONTENTS

Page

APPENDIX A

CALIFORNIA SUPREME COURT DECISION IN

CITY OF NATIONAL CITY V. WIENER (AS

MODIFIED) DATED JANUARY 21, 1993....... Al

APPENDIX B

AMENDED COMPLAINT DATED JANUARY 20,

FAS errr reer rrr rrr ey ere Tree ree ee Bl

APPENDIX C

PRELIMINARY INJUNCTION DATED MARCH 4,

ener re rT ye Torr rr TT errr tet ee rer ee Cl

APPENDIX D

FOURTH DISTRICT COURT OF APPEAL DATED

DECEMBER 11, 1987 .......cccccccccsescnssens D1

APPENDIX E

PETITION FOR REHEARING DATED APRIL 9,

eer rer tt? Pe rrrr te tte ts ore El

APPENDIX F

PETITION FOR REVIEW DATED MAY 3, 1991 ... Fl

APPENDIX G

TABLES OF CONTENTS AND AUTHORITIES

FROM PETITIONER’S (THEN RESPONDENT)

BRIEF BELOW DATED JULY 31, 1991......... Gl

APPENDIX A

Bie

|

|

Al

APPENDIX A

Modified

Copy

S020887

IN THE SUPREME COURT

OF THE

STATE OF CALIFORNIA

CiTy OF NATIONAL Clty,

Plaintiff and Appellant,

v.

STEVEN D. WIENER et al.,

Defendants and Respondents.

Ct.App. No. D01080)

San Diego Super.

Ct. No. 578784

The question we consider is the constitutionality of a municipal

zoning ordinance that regulates adult entertainment establish-

ments. The precise issue is whether a zoning ordinance that

combines both distance regulations and an exception for location

of adult businesses in certain shopping malls conforms with First

Amendment principles under the standard set forth in City of

Renion v. Playtime Theatres, Inc. (1986) 475 U.S. 41 (Renton).

We conclude that the ordinance is constitutional.

I. FACTS AND PROCEDURAL BACKGROUND

City of National City (the city) is located approximately five

miles from downtown San Diego. It is highly accessible, criss-

crossed by two major freeways, several major arterials, and an

abundance of surface street traffic. To the west lies San Diego

Bay. Its three other borders lie adjacent to property belonging to

other cities and the County of San Diego. It is home to a large

naval installation that significantly affects the area in terms of

traffic, public resources, and crime.

A2

The city’s total area is 8.65 square miles or 5,536 gross acres.

Only 3,196 acres, or 58 percent of the city’s land, are available for

any land use purpose whatsoever. Of those 3,196 acres, 572 acres,

or 17.9 percent of the total net acres, are zoned for commercial

use; 1,296 acres, or 40.6 percent, are zoned for residential use; 541

acres, or 16.9 percent, are zoned for industrial use; and 787 acres,

or 24.6 percent, are zoned for institutional, including military, use.

In December 1986, respondents Steven D. Wiener, individually

and doing business as Chuck’s Bookstore, and his sister Patricia

Sanders (respondents) opened Chuck’s Bookstore, an adult book-

store and arcade, at 929 National City Boulevard in the city.'

Shortly thereafter, the city brought an action in superior court

seeking a preliminary and permanert injunction against the con-

tinued operation of Chuck’s Bookstore by respondents pursuant to

chapter 18 of the city municipal code regulating adult establish-

ments. The city claimed that the bookstore constituted a common

law and statutory nuisance,” and that the store was operating in

violation of ceratain sections of the municipal code, including

'Prior to opening the Chuck’s Bookstore at 929 National City

Boulevard, Wiener had operated another adult bookstore and arcade at

829 National City Boulevard. After the earlier store was closed by the

city during redevelopment, respondents opened Chuck’s Bookstore at

929 National City Boulevard, where it became the subject of the current

action.

?Although the city’s action was for both statutory and common law

public nuisance, the superior court’s statement of decision relied solely

on the statutory basis for imposing the requested injunctive relief. On

appeal, the Court of Appeal also addressed only the statvtory public

nuisance issue and denied the city’s petition for rehearing (opposed by

respondents) requesting a ruling on the issue of common law public

nuisance. Finally, at oral argument before this court, respondents urged

the court that given what they characterized as a lack of evidence in the

recerd on the issue of common law public nuisance, and the failure of

the lower courts to rule on the issue, it would be inappropriate for us to

reach the issue. Accordingly, we decline to resolve this action on the

ground of common law public nuisance, and conclude that it is appropri-

ate for us to reach the constitutional issue.

A3

section 18.69.030.° Respondents ultimately conceded that

Chuck’s Bookstore violated the ordinance by virtue of its proxim-

ity to both another adult entertainment establishment and a

residential area, but claimed that section 18.69.030 was

unconstitutional.

Municipal Code section 18.69.030 (the ordinance) prohibits an

adult business from locating within 1,500 feet of another adult

business, 1,500 feet of a school or public park, or 1,000 feet of any

residentially zoned property. The ordinance limits neither the

total number of adult businesses that may locate in the city, nor

the hours they may operate. It “grandfathers” existing adult

businesses, and hence does not apply to another adult business in

the city, the Pussycat Theater.

Mr. Post, the city’s Planning Director, testified that the ordi-

nance was enacted after the city had performed a study and

conducted one or more public hearings before the city’s Planning

Commission, and was part of a comprehensive scheme of urban

redevelopment. According to Mr. Post, the city suffers the second

highest crime rate in San Diego County, and urban decay is rife

*Section 18.69.030 provides in relevant part:

“A. No person or entity shall own, establish, operate, control or

enlarge, or cause or permit the establishment, operation, enlargement or

transfer of ownership or control, except pursuant to Section 18.69.060, of

any of the following adult entertainment establishmemts if such adult

entertainment establishment is within one thousand five hundred feet of

another adult entertainment establishment or within one thousand five

hundred feet of any school or public park within the city or within one

thousand feet of any residentially zoned property in the city, measured

along street frontages:

1. Adult bookstore; ...

2. Adult mini-motion picture arcade (peep shows); ...

C. Nothing in this chapter prohibits the location of adult entertain-

ment establishments within retail shopping centers in all commercial

zones wherein such activities will have their only frontage upon enclosed

malls or malls isolated from direct view from public streets, parks,

schools, churches or residentially zoned property.”

The parties stipulated that Chuck’s Bookstore is an “adult entertain-

ment establishment” within the meaning of the municipal code.

A4

throughout the city. Its population is largely transient, and its per

capita income is one of the lowest in the county. Because of low

property values in its residential area, the city is heavily reliant on

its commercial tax base for revenue, and there was testimony that

the area zoned for commercial use is proportionately larger than

in other cities.

Moreover, there was testimony that the neighborhood sur-

rounding Chuck’s Bookstore has experienced deleterious effects

as a result of respondents’ current location.* These problems were

widely publicized in a series of articles appearing in the local

newspaper, the Star News.

The city employs “strip zoning,” or commercial zoning on

either side of heavily trafficked arterials; thus its commercial

zones are generally in close proximity to residential areas. As a

result, only 4.5 of the 572 commercially zoned acres not already

developed into a shopping mall lie beyond the distance require-

ments of the ordinance. This parcel of land is located in the

southern portion of the city, fronting on National City Boulevard.

There was evidence that it currently contains a 9,000-square-foot

building and a motorcycle shop.

To allow for a greater number of alternative sites for adult

businesses, while still attempting to minimize their negative

“Following the opening of respondents’ business at its current location,

one neighbor, Ms. Janice Martinelli, observed men urinating in her

backyard. Her nine-year-old son found used condoms and pornographic

reading material in her yard, and was once chased by one of respondents’

customers. Ms. Martinelli no longer allows him to play in the backyard.

Prior to June of 1988, when lockable doors on the respondents’ viewing

booths were removed, one Star News reporter, Mr. Dane David Schiller,

testified that he observed a patron placing his penis in a “glory hole” in a

viewing booth, and on numerous occasions observed puddles of semen

on the floor of the booths. Mr. Rich Chriss, circulation manager and

part-time reporter for the Star News, testified that also prior to the

removal of the lockable doors, on four or five occasions he observed male

patrons placing their penises in the “glory holes.” Mr. Chriss further

testified that he observed acts of oral and anal sex in the booths, and anal

sex in the alley behind respondents’ business.

AS

impact, the ordinance also provides that adult businesses are not

subject to the distance requirements, and may locate anywhere

within the city’s 572 acres of commercially zoned property, if they

are located in a retail shopping center. Under this exception,

either the frontage of the business must be oriented to an enclosed

mall or the business must be in a mall isolated from direct view

from public streets, parks, schools, churches, and residentially

zoned property.

Three existing shopping centers were identified as fulfilling the

enclosed mall requirements: the Plaza Bonita Shopping Center,

South Bay Plaza, and Sweetwater Town and Country. While

vacancies existed at all three of these malls, not all portions of

South Bay Plaza or Sweetwater Town and County conformed to

the specifications of the ordinance. It was estimated that only

5,000 to 6,000 square feet of space at Sweetwater Town and

Country, and 12,000 square feet of space at South Bay Plaza, met

the ordinance’s criteria. Moreover, respondents’ expert witness

testified that none of these three malls would rent space to an

adult entertainment business. The witness recounted telephone

conversations with leasing agents from two of the malls during

which the witness inquired generally whether those malls would

rent space to an adult business, without identifying a particular

business.

In addition, new shopping centers may be built or existing malls

may be modified in conformance with the ordinance to accommo-

date adult businesses. Although there was testimony as to the cost

and expertise required for such construction, no direct evidence

was presented regarding the economic viability of such an enter-

prise, or the ability of respondents to undertake such

development.

Finally, there was evidence that there is currently a trend

toward developing small retail shopping centers in Southern

California, and that it is relatively easy to undertake this type of

development in the city. Mr. Post testified that “developing a

church would actually be more difficult than developing an adult

entertainment enterprise in National City.”

A6

After a three-day trial, the superior court found that the

ordinance was a reasonable time, place, and manner regulation

designed to serve a substantial government interest. The court

also found that the ordinance provided reasonable alternative

avenues of communication, noting that “there are shopping cen-

ters in existence in [National City] which could accommodate

[respondents’] business and comply with the \[o]rdinance,” and

that the city had “demonstrated that an abundant amount of land

exists for development of commercial edifices which would con-

form to the [ordinance] requirements.”* The court further found

that the operation of Chuck’s Bookstore at its present location

was in violation of the ordinance. On that basis, the court granted

the city’s request for a declaration that Chuck’s Bookstore consti-

tuted a public nuisance, and permanently enjoined respondents

from establishing, maintaining, and operating an adult business,

including an aduit bookstore, at 929 National City Boulevard.

The Court of Appeal reversed. While the court found that the

ordinance was constitutional on its face, and served a substantial

government interest, it concluded that the ordinance as applied

failed to provide reasonable alternative avenues of communication

under Renton, supra, 475 U.S. 41. Specifically, the court found

that the distance regulations allowed too few alternative sites for

adult businesses, and that the “purported” opportunity to locate in

enclosed malls was “illusive.” This finding of illusiveness derived

from both “the apparent aversion shopping mall landlords have

toward the presence of adult entertainment shops on the prem-

ises,”” and the court’s determination that construction of a new

‘We note that the trial court’s statement of decision characterizes the

572 acres of commercially zoned property as “vacant.” Moreover, the

Court of Appeal stated in its opinion that the “evidence [was] undis-

puted that under the ordinance a new or relocating adult entertainment

business would be limited to locating” in certain locations, including

“572 acres of undeveloped commercial land . . .” However, our review of

the record reveals uncontroverted evidence that the commercially zoned

property was substantially developed. Since neither party has objected

to, or appeared misled by, the lower courts’ mistaken characterizations

of the property, and we conclude there are reasonable alternative

avenues of communication, the discrepancy is of no significance.

a eet EEE a

A7

shopping facility “would not be economically feasible for the

typical adult business entrepreneur.” The court also took into

consideration counsel’s representation at oral argument that the

city “has a population of over 57,000 and has only one adult

entertainment business in operation.” The court stated that while

“not controlling, this factor does indicate that as a practical

matter the ordinance is highly restrictive.” Accordingly, the court

held that the city “has not shown there are practical alternative

locations for adult entertainment establishments, and thus ordi-

nance 18.69.030 is an impermissible restriction on protected

speech.”

II. DISCUSSION

A. BACKGROUND

We are guided in our analysis by two landmark decisions of the

United States Supreme Court in Young v. American Mini Thea-

tres, Inc. (1976) 427 U.S. 50 (Young) and Renton, supra, 475

U.S. 41. While the Court of Appeal cited Young and Renton, it

failed to apply their express language or heed their underlying

rationale.

In Young, the Supreme Court upheld two Detroit zoning

ordinances that differentiated “between motion picture theaters

which exhibit[ed] sexually explicit ‘adult’ movies and those

which d[id] not.” (427 U.S. at p. 52.) “The principal question

presented was th[e] case [was] whether that statutory classifica-

tion [was] unconstitutional because it [was] based on the content

of communication protected by the First Amendment.” (Ibid. )

As the court later explained in Renton, “although five Members

of the Court did not agree on a single rationale for the decision

[in Young], we held that the city of Detroit’s zoning ordinance,

which prohibited locating an adult theater within 1,000 feet of any

two other ‘regulated uses’ or within 500 feet of any residential

zone, did not violate the First and Fourteenth Amendments.”

(Renton, supra, 475 U.S. at p. 46.)

Significantly, Justice Powell, in his concurring opinion in

Young, observed, “The constraints of the ordinance with respect

to location may indeed create economic loss for some who are

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engaged in this business. But in this respect they are affected no

differently from any other commercial enterprise that suffers

economic detriment as a result of land-use regulation.” (427 US.

at p. 78.)

In Renton, supra, 475 U.S. at pages 43-44, “Renton, a city of

approximately 32,000 people,” sought to zone adult motion pic-

ture theaters by providing that they could not be located “within

1,000 feet\of any residential zone, single- or multiple-family

dwelling, church, park, or school.” This distance requirement

resulted in a concentration of approved locations for adult thea-

ters. (Id. at p. 52.) “The ordinance by its terms [was] designed to

prevent crime, protect the city’s retail trade, maintain property

values, and generally ‘protec[t] and preserv[e] the quality of [the

city’s] neighborhoods, commercial districts, and the quality of

urban life...’ (Jd. at p. 48.) There was no evidence that “at the

time the Renton ordinance was enacted, any other adult business

[other than Playtime Theaters] was located in, or was contem-

plating moving into, Renton.” (Jd. at p. 52.)

The court first found that the ordinance was “properly analyzed

as a form of time, place, and manner regulation” since the

ordinance did not ban adult theaters altogether, but merely

provided that such businesses could only be located in certain

areas. (Renton, supra, 475 US. at p. 46.) The court also found

that the ordinance was content-neutral, since it was “aimed not at

the content of the films shown at ‘adult motion picture theatres,’

but rather at the secondary effects of such theaters on the

surrounding community.” (Renton, supra, 475 U.S. at p. 47.)

Relying substantially on its earlier decision in Young, supra,

427 U.S. 50, the high court then upheld the content-neutral time,

place, and manner regulation against a First Amendment chal-

lenge, and established a two-part test: (1) whether the ordinance

is designed to serve a substantial governmental interest, and

(2) whether the ordinance allows for r asonable alternative ave-

nues of communication. (Renton, supra, at p. 50.) In addition,

the Supreme Court noted that while the First Amendment

protects sexually explicit communication, “ ‘[I]t is manifest that

society’s interest in protecting this type of expression is of a

wholly different, and lesser, magnitude than the interest in un-

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trammeled political debate...’” (Jd. at p. 49, fn. 2, quoting

Young, supra, 427 U.S. at p. 70.)

In applying its test to the Renton ordinance, the court found

that the first factor was easily satisfied. The court noted that “a

city’s ‘interest in attempting to preserve the quality of urban life is

one that must be accorded high respect.’” (Renton, supra, 475

U.S. at p. 50, quoting Young, supra, 427 U.S. at p. 71.)

The court also found “no constitutional defect in the method

chosen by Renton to further its substantial interests.” (Renton,

supra, 475 U.S. at p. 52.) “Cities may regulate adult theaters by

dispersing them, as in Detroit, or by effectively concentrating

them, as in Renton.” (Jbid.) “ ‘It is not our function to appraise

the wisdom of [the city’s] decision to require adult theaters to be

separated rather than concentrated in the same areas. ... [T]he

city must be allowed a reasonable opportunity to experiment with

solutions to admittedly serious problems.’” (Jbid., quoting

Young, supra, 427 U.S. at p. 71.) In this connection, the court

noted that “the Renton ordinance is ‘narrowly tailored’ to affect

only that category of theaters shown to produce the unwanted

secondary effects...” (Renton, supra, 475 U.S. at p. 52; see

Simon & Schuster, Inc. v. Members of the New York State Crime

Victims Bd. (1991) UB. een **, TZ SCL Wi, Sil,

fn. ** [“[U]nder Ward and Renton ... regulations must be

‘narrowly tailored’ to advance the interest asserted by the

State.” ]; People v. Superior Court (Lucero) (1989) 49 Cal.3d 14,

27 [Ordinance must be “content-neutral and narrowly tailored to

minimize only the adverse secondary effects related to adult

entertainment establishments.” ].)

More recently, in Ward v. Rock Against Racism (1989) 491

U.S. 781 (Ward), the high court has provided further guidance

on the “narrowly tailored” requirement. In Ward, the court stated

that “...a regulation of the time, place, or manner of protected

speech must be narrowly tailored to serve the government's

legitimate, content-neutral interests but...it need not be the

least restrictive or least intrusive means of doing so.” (/d. at P.

798.) “Rather, the requirement of narrow tailoring is satisfied ‘so

long as the...regulation promotes a substantial government

interest that would be achieved less effectively absent the regula-

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tion.’ “ (Jd. at p. 799, quoting United States v. Albertini (1985)

472 U.S. 675, 689). The court noted that “Government may not

regulate expression in such a manner that a substantial portion of

the burden on speech does not serve to advance its goals.” (Ward,

supra, 491 U.S. at p. 799.) However, “[s]o long as the means

chosen are not substantially broader than necessary to achieve the

government's interest, . . . the regulation will not be invalid simply

because a court concludes that the government's interest could be

adequately served by some less-speech-restrictive alternative.”

(Id. at p. 800.) “[T]he validity of the regulation depends on the

relation it bears to the overall problem the government seeks to

correct.” (Jd. at p. 801.)

In explicating the second factor, that the ordinance must allow

for reasonable alternative avenues of communication, the Renton

court rejected an economic viability standard for determining

whether the zoning ordinance was constitutional. Playtime Thea-

tres claimed that the ordinance was invalid in part because as a

practical matter it restricted the availability of locations for adult

businesses. Under the Renton ordinance, “520 acres, or more than

five percent of the entire land area of Renton, [was] open to use

as adult theater sites.” (Renton, supra, 475 U.S. at p. 53.) “The

District Court found, and the Court of Appeals did not dispute

the finding, that the 520 acres of land consist[ed] of ‘[a]mple,

accessible real estate,’ including ‘acreage in all stages of develop-

ment from raw land to developed, industrial, warehouse, office,

and shopping space that is criss-crossed by freeways, highways,

and roads.’” (Ibid. )

Playtime Theatres contended, however, that “some of the land

in question [was] already occupied by existing businesses, that

‘practically none’ of the undeveloped land [was] currently for sale

or lease, and that in general there [were] no ‘commercially viable’

adult theater sites within the 520 acres left open by the Renton

ordinance.” (Renton supra, 475 U.S. at p. 53.) Specifically, “[a]

substantial part of the 520 acres [was] occupied by: {J (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; | (4) a warehouse and manufac-

turing facilities; | (5) a Mobil Oil tank farm; and, {| (6) a fully-

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developed shopping center.” (Playtime Theaters, Inc. v. City of

Renton (9th Cir. 1984) 748 F.2d 527, 534.) The Ninth Circuit

“accepted these arguments, concluded that the 520 acres was not

truly ‘available’ land, and therefore held that the Renton ordi-

nance ‘would result in a substantial restriction’ on speech.”

(Renton, supra, 475 U.S. at pp. 53-54, fn. omitted.)

The Supreme Court held unequivocally to the contrary: “That

respondents must fend for themselves in the real estate market,

on an equal footing with other prospective purchasers and lessees,

does not give rise to a First Amendment violation. And although

we have cautioned against the enactment of zoning regulations

that have ‘the effect of suppressing, or greatly restricting access

to, lawful speech,’ ... we have never suggested that the First

Amendment compels the Government to ensure that adult thea-

ters, or any other kinds of speech-related businesses for that

matter, will be able to obtain sites at bargain prices.... “The

inquiry for First Amendment purposes is not concerned with

economic impact.’ . . . In our view, the First Amendment requires

only that Renton refrain from effectively denying respondents a

reasonable opportunity to open and operate an adult theater

within the city, and the ordinance before us easily meets this

requirement.” (Renton, supra, 475 U.S. at p. 54, quoting Young,

supra, 427 U.S. at p. 78.)

Thus, the court held that “the Renton ordinance represents a

valid governmental response to the ‘admittedly serious problems’

created by adult theaters.” (Renton, supra, 475 U.S. at p. 54,

quoting Young, supra, 427 U.S. at p. 71.) “Renton has not used

‘the power to zone as a pretext for suppressing expression,’ . . . but

rather has sought to make some areas available for adult theaters

and their patrons, while at the same time preserving the quality of

life in the community at large by preventing those theaters from

locating in other areas. This, after all, is the essence of zoning.”

(Ibid.) “Here, as in [Young], the city has enacted a zoning

ordinance that meets these goals while also satisfying the dictates

of the First Amendment.” (Jd. at pp. 54-55.)

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B. APPLICATION OF THE RENTON ANALYSIS

In applying the Renton analysis to the ordinance here, we

determine as a preliminary matter whether the ordinance is a

content-neutral time, place and manner regulation. If so, we then

determine whether the ordinance, and in particular the shopping

center exception, is designed to serve a substantial governmental

interest, and allows for reasonable alternative avenues of

communication.°

1. Content-Neutrality

Since the National City ordinance, like the one in Renton, does

not ban adult businesses altogether, but merely provides that such

businesses may only be located in certain areas, the ordinance is

properly analyzed as a form of time, place, and manner regula-

tion. (Renton, supra, 475 U.S. at p. 46.)

Moreover, we conclude that the ordinance is content-neutral,

since the ordinance is, as in Renton, supra, 475 U.S. at p. 47,

aimed not at the content of materials sold, but rather at the

secondary effects of adult businesses on the surrounding commu-

nity.’ While the superior court did not expressly address this issue,

*Respondents attempt to raise in this Court several arguments under

the California Constitution. Respondents failed to raise these arguments

in the Court of Appeal. Accordingly, we do not reach these claims, or

decide whether the California Constitution provides greater protection

to respondents than the federal Constitution. (Cal. Rules of Court, rule

29.)

In addition, respondents raise in this court arguments regarding a

conditional use permit amendment to the ordinance. Once again, how-

ever, respondents failed to raise these arguments in the Court of Appeal,

and we therefore decline to consider them here. Moreover, we note that

respondents appear to largely rely on the amendment as further evidence

of an alleged impermissible government intent, an argument we consider

post and reject.

"We note that the written stated purpose of the ordinance is to

“prevent problems of blight and deterioration which accompany and are

brought about by the concentration of adult entertainment establish-

ments.” However, there was also evidence that under the shopping

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in its discussion of the evidence in support of its finding that the

ordinance was designed to serve a substantial government interest,

the court noted that there was testimony that the ordinance “was

enacted as part of a comprehensive scheme of urban redevelop-

ment” in an effort to combat blight in National City, and that

“the presence of Chuck’s Bookstore...has led to ‘secondary

effects’ on the community....” Moreover, the court’s ruling

upholding the constitutionality of the ordinance under Renton

constitutes an implied finding that the ordinance is content-

neutral. The record amply supports this implied finding.

Respondents devote much of their argument to the proposition

that the city’s ordinance is content-based, and that the “predomi-

nant censorial purpose” behind it was to prohibit the establish-

ment of any adult business. In support of this contention,

respondents rely on evidence they claim establishes that the city

knew or should have known owners of shopping centers would be

either reluctant, or would outright refuse, to rent to an adult

business. The factual predicate for this argument is unsupported

by the record, since Mr. Post categorically denied that city

planners were aware of any reluctance to rent.® More importantly,

center exception, adult businesses could be concentrated so long as they

were located in a mall. Hence, it appears that the written stated purpose

of the ordinance has not been amended to conform with the addition of

the shopping center exception, and the purpose underlying that excep-

tion. However, we note that respondents have never contended, and in

particular did not contend at the trial level, that the written stated

purpose of the ordinance failed to support the city’s testimony as to the

purpose of the shopping center exception, despite the fact that the issue

was brought to the parties’ attention by the trial judge. Hence, we

conclude that both purposes of the ordinance are supported by substan-

tial evidence, and that we may rely on both purposes in determining that

the ordinance is content-neutral.

‘Rather, respondents’ evidence in this regard essentially consists of

testimony that it is generally known among realtors that shopping

centers do not usually rent to adult businesses. Such generalized,

speculative evidence, not linked to any city representative, fails to even

rise to the level of an illicit “motivating factor.” (See Renton, supra, 475

U.S. at pp. 47-48 [distinguishing generally between an illicit “motivat-

ing factor” and a legitimate “predominant purpose” ].)

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Mr. Post denied any motivation on the part of the city to

eliminate adult businesses. Rather, Mr. Post testified that the

purpose of the ordinance was to alleviate the secondary effects of

adult businesses, while allowing reasonable alternative locations

for those businesses. The trial court apparently credited this

testimony, and we see no reason to question its ruling. (See

Renton, supra, 475 U.S. at p. 48, quoting United States v. O'Brien

(1968) 391 U.S. 367, 383 [“‘ ‘It is a familiar principle of constitu-

tional law that this Court will not strike down an otherwise

constitutional statute on the basis of an alleged illicit legislative

motive.’”’]; Ward, supra, 491 U.S. at p. 791, quoting Clark v.

Community for Creative Non-Violence (1984) 468 U.S. 288, 293

[ “Government regulation of expressive activity is content neutral

so long as it is ‘justified without reference to the content of the

regulated speech.’ ”’].)

Respondents also rely on evidence that they claim demon-

strates that the city knew or should have known that it would not

be economially feasible for an adult business to build its own

shopping center. However, as we discuss more fully in our

evaluation of whether the ordinance allows for reasonable alterna-

tive avenues of communication, the ordinance does not limit

respondents’ alternatives to such construction.

Finally, respondents argue that since the effect of the ordinance

is to eliminate all adult businesses, that must be its underlying

intent. Since we conclude, post, that the ordinance does not have

this effect, we likewise reject respondents’ suggestion of illicit

intent.

In sum, we conclude that the ordinance is content-neutral, and

proceed to evaluate the constitutionality of the ordinance under

Renton’s two-part test.

2. Substantial Government Interest

We find, as did the two lower courts, that the first prong of

“substantial governmental interest” is easily satisfied. The city

presented substantial evidence at trial that adult businesses are a

source of urban decay, and that the location of the adult business

at issue in this case has in fact led to the secondary effects the

a re

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ordinance seeks to curtail. Moreover, the city demonstrated that

both the distance regulation and the shopping center exception

are designed to serve substantial government interests in decreas-

ing blight and crime, shifting part of the regulatory burden to the

private sector, by either dispersing adult businesses, or by placing

them in locations such as enclosed shopping malls designed to

minimize the occurrence of negative secondary effects, and pro-

tecting the city’s tax base. (See Renton, supra, 475 U.S. at p. 48

[upholding ordinance “designed to prevent crime, protect the

city’s retail trade, maintain property values, and generally

‘protec(t] and preserv[e] the quality of [the city’s] neighbor-

hoods, commercial districts, and the quality of urban life’’”].) We

also find that the city’s shopping mall exception is narrowly

tailored, since the “ ‘regulation promotes . . . substantial govern-

ment interest[s] that would be achieved less effectively absent

the regulation.” (Ward, supra, 491 U.S. at p. 799, quoting

United States v. Albertini, supra, 472 US. at p. 689.)

First, under the ordinance, the malls in which adult businesses

are permitted to be established are either inward looking configu-

rations, or those “isolated from direct view from public streets,

parks, schools, churches or residentially zoned property.” Access

is by a pedestrian walkway, not a public street. This configuration

reduces the secondary effects associated with adult businesses by

segregating such businesses away from residential areas and

schools, and placing them in a location where they do not affect

the moral climate of the community as a whole. Specifically, it

decreases the problems of harassment of neighborhood adults and

children, littering of sexually explicit reading material and para-

phernalia, loitering, and visual blight from bright colors and

explicit signage associated with adult businesses.

Second, placing adult businesses in shopping centers promotes

the city’s interests by shifting part of the regulatory burden to the

private sector. A shopping center has its own signage, paint, and

landscaping restrictions. A mall arrangement also addresses such

factors as hours or operation, parking, and security. Thus, a

shopping center generally exercises a high degree of control over

its tenants. This benefits the city, as Mr. Post testified, by

removing it from “the enforcement business. We don’t have to

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expend the amount of resources that we typically would if the

shopping center itself is doing some of the policing in terms of

these various factors.”

Finally, there was testimony that the result of reducing the

secondary effects of adult businesses, and freeing up public

protection resources, is a healthier economic base{ As noted

above, National City is particularly reliant on its commercial tax

base, and hence has a substantial interest in its preservation.

Therefore, placing adult businesses in malls furthers the city’s

substantial interests in reducing the secondary effects of adult

businesses, relieving the city from some of the regulatory burden

by shifting it to the private sector, and protecting the commercial

tax base.

3. Reasonable Alternate Avenues of Communication

We also conclude that the ordinance provides reasonable alter-

native avenues of communication. The ordinance makes available

the entire commercially zoned area of the city, or 572 acres of

land, on which to locate an adult business. This area is highly

accessible by major freeways and arterials. In addition, the

ordinance limits neither the total number of adult businesses that

may locate in the city, nor the hours they may operate. Finally,

the ordinance does “ ‘not affect the operation of existing estab-

lishments but only the location of new ones.’ ” (Young, supra, 427

U.S. at p. 71, fn, 35, citation omitted.)

Respondents contend, however, that the availability of sites

under the ordinance is “illusory” because of the lack of sites

currently for rent, the unwillingness of owners of available sites to

rent to them, and the considerable cost of building their own

» Moreover, there was testimony that adult businesses are considered

“destination retail,” i.e., they deal in goods that consumers specifically

seek out wherever they are located, and that* this characteristic lends

them to placement within a structure that is not exposed directly to the

street. “Destination retail” businesses are such that if they do relocate,

their clientele will typically follow.

* do not require “high visibility” locations.

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shopping center in compliance with the ordinance. We find none

of these arguments establish constitutional infirmity.

The high court in Renton made clear that “ “The inquiry for

First Amendment purposes is not concerned with economic

impact.’” (Renton, supra, 475 U.S. at p. 54, quoting Young,

supra, 427 U.S. at p. 78. See City of Vallejo v. Adult Books

(1985) 167 Cal.App.3d 1169, 1180 [“[E]vidence of the consid-

erable economic difficulty of locating ‘adult’ uses at many legally

permissible sites within the City of Vallejo... . falls far short of

establishing that appellant is foreclosed or unreasonably restricted

by the ordinance from effectively operating within the city lim-

its.” ], cert. den. (1986) 475 U.S. 1064.) As noted earlier, Renton

refused to sustain an economic viability argument on a record

demonstrating that a substantial part of the 520 acres zoned for

adult businesses was occupied by a sewage disposal site, race

track, and other uses restricting, as a practical matter, available

sites. Similarly, we decline to find on this record that National

City’s ordinance fails to provide reasonable alternative avenues of

communication.’

Moreover, Renton explicitly rejected the argument that be-

cause “practically none’ of the undeveloped land [was] currently

for sale or lease” the ordinance “ ‘would result in a substantial

restriction’ on speech.” (Renton, supra, 475 U.S. at pp. 53-54,

citations omitted.) The record here in fact reveals that vacancies

existed at all three shopping centers, and that the evidence of

landowners’ unwillingness to rent consisted essentially of genera-

lized responses by leasing agents to respondents’ expert’s tele-

phone inquiry, and testimony that it is generally known among

rea'tors that shopping centers do not usually rent to adult busi-

nesses. Nor, in this case, is any reluctance or outright refusal of

private land owners to rent to adult businesses dispositive of the

issue of whether the ordinance provides a reasonable opportunity

‘Respondents assert that if we uphold this ordinance, we approve in

advance any and all economic restrictions on adult businesses in viola-

tion of Renton. While it is conceivable that a zoning ordinance could

mandate economic restrictions so severe as to amount to an outright

prohibition of First Amendment speech, that is not the case here.

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for such businesses to locate within National City. While a city

may not suppress protected speech, neither is it compelled to act

as broker or leasing agent for those engaged in the sale of it. We

decline to hold local governments responsible for the business

decisions of private individuals who act for their own economic

concerns without any reference to the First Amendment. The

Constitution does not saddle municipalities with the task of

ensuring either the popularity or economic success of adult

businesses.

Respondents’ reliance on the fact that only one other adult

business currently operates within the city is also misplaced. The

number of adult businesses is, without more, of no particular

significance in evaluating the validity of the ordinance. We find no

authority that mandates a constitutional ratio of adult businesses

to a particular population figure.'’ We note that at the time the

Renton ordinance was enacted “no adult theaters were located in

Renton. ...” (Playtime Theaters, Inc. v. City of Renton, supra,

748 F.2d at p. 530.) Moreover, nothing in this record indicates

whether similar enterprises have attempted to locate in the city

and have been thwarted by virtue of unrcasonable restrictions, or

''We also reject the analysis suggested by the City of San Diego, and

the 36 cities joining in its amicus curiae brief, that we look to the

availability of adult materials in surrounding communities in determin-

ing whether the National City ordinance provides reasonable alternative

avenues of communication. In general, “‘[o]ne is not to have the

exercise of his [or her] liberty of expression in appropriate places

abridged on the plea that it may be exercised in some other place.’ ”

(Schad v. Borough of Mount Ephraim (1981) 452 U.S. 61, 76-77,

quoting Schneider v. State (1939) 308 U.S. 147, 163.) Moreover,

respondents have filed a motion to strike the factual material filed in

support of San Diego’s argument, as well as certain factual material

attached to the Western Center for Law and Religious Freedom, et al.’s,

amicus curiae brief. We share respondents’ concern that none of this

material was introduced below, and hence has not been subjected to the

rigors of the adversarial process. Accordingly, we have not considered

this material in reaching our decision. (See Bily v. Arthur Young &

Company (1992) 3 Cal.4th 370, 405, fn. 14 [court may choose to ignore

improper material filed in appellate brief rather than strike it from the

file}.)

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simply found it economically less advantageous than other

localities.

It is also inaccurate to characterize the ordinance as forcing

respondents to build their own shopping mall at prohibitive cost.

Rather, this is merely one option under the ordinance. The city

has demonstrated that there are three shopping centers, and a

partially developed 4.5 acre area, where an adult business may

seek to rent an existing location. Moreover, certain malls may be

modified in conformance with the ordinance to accommodate

adult businesses. It is respondents, not the city, who define

construction of a new shopping center as their only alternative

under the ordinance. Hence, we conclude that the ordinance

provides reasonable alternative avenues of communication.

CONCLUSION

We hold that National City’s ordinance is constitutional under

the First Amendment. Accordingly, the judgment of the Court of

Appeal is reversed, and the matter remanded with instructions to

reinstate the trial court’s judgment.

ARABIAN, J.

WE CONCUR:

LUCAS, C.J.

PANELLI, J.

BAXTER, J.

GEORGE, J.

TE A NS

A20

COPY

City OF NATIONAL CITY Vv. WIENER

S020887

CONCURRING OPINION BY BAXTER, J.

I concur fully in the reasoning and judgment of the majority. I

do so because the evidence does not support a conclusion that no

bookstore handling “adult” materials would be able to rent space

in National City. No evidence was offered that would support a

conclusion that a bookstore which is clean, is well maintained and

supervised, and which expects both staff and customers to abide

by the law and socially acceptable norms of public conduct would

be unable to rent space in a mall in National City.

While I also agree with Justice Mosk that the evidence in this

case would support a judgment that Chuck’s Bookstore was a

common law public nuisance, the trial court did not make such a

finding. In its statement of decision, the court expressly noted that

the decision would focus on the city’s claim that defendant’s

operation violated the municipal code. This confirms that the trial

court judgment rested solely on the theory of statutory public

nuisance. This court may not affirm the judgment on a theory that

a common law public nuisance was established. The rule which

requires that a reviewing court sustain a judgment if the result is

correct even if the trial court based its decision on an erroneous

legal theory, has no application here.

International etc. Workers v. Landowitz (1942) 20 Cal.2d 418,

on which Justice Mosk relies, was an action in which plaintiffs

sought an injunction against future violations of a local ordinance.

The trial court sustained a demurrer on the ground that the

statute was constitutionally invalid. This court disagreed but

nonetheless affirmed the judgment of dismissal because subse-

quent to the entry of judgment the enabling legislation which

authorized adoption of the local ordinance had been repealed.

There being no other basis for the action, we applied the rule of

Sewell v. Johnson (1913) 165 Cal. 762, 769: “[W]here matters

of which the court has judicial knowledge occur subsequent to the

A2l

trial court’s action and have the effect of destroying the basis for

the plaintiff's cause of action, it has been held that the appellate

court may dispose of the case upon those grounds.” (Jnterna-

tional etc. Workers v. Landowitz, supra, 20 Cal.2d at p. 423.)

The rule that an appellate court will affirm a correct judgment

even if the trial court’s reasoning was faulty was adopted by this

court in Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329-

330: “The fact that the action of the [trial] court may have been

based upon an erroneous theory of the case, or upon an improper

or unsound course of reasoning, cannot determine the question of

its propriety. No rule of decision is better or more firmly estab-

lished by authority, nor one resting upon a sounder basis of reason

and propriety, than that a ruling or decision, itself correct in law,

will not be disturbed on appeal merely because given for a wrong

reason. If right upon any theory of the law applicable to the case,

it must be sustained regardiess of the considerations which may

have moved the trial court to its conclusion. [f]] ... [{]] In other

words, it is judicial action, and not judicial reasoning or argument,

which is the subject of review; and, if the former be correct, we

are not concerned with the faults of the latter.”

This rule may not be used to uphold a judgment granting relief

on the basis of only one of two or more counts pleaded in the

complaint, each of which counts asserts a different basis for relief.

“Exceptions exist to the rule of nonreviewability of the trial

court’s reasons for its decision. The exception ... most germane

to this appeal allows for reversal where the trial court has refused

to pass on an issue and disposes of the case on an entirely different

ground. If the trial court thus chose an improper ground, an

appellate court will not uphold the judgment on the ground not

addressed by the trial court, if resolution of that issue depends

upon conflicting evidence.” (United Pacific Ins. Co. v. Hanover

Ins. Co. (1990) 217 Cal.App.3d 925, 933, fn. 9, italics in original.

See also, Zak v. State Farm etc. Ins. Co. (1965) 232 Cal.App.2d

500, 506; Kyne v. Kyne (1943) 60 Cal.App.2d 326, 332; 9 Witkin,

Cal. Procedure (3d ed. 1985) Appeal, § 262, p. 269.)

The trial court in this case did make factual findings that might

also support a conclusion that Chuck’s Bookstore was a common

A22

law public nuisance. It did so only insofar as that evidence was

relevant to determining that the bookstore had undesirable “‘sec-

ondary” effects, however. The court did not make the findings

necessary to resolve whether Chuck’s Bookstore was, at the time

the action was brought, a common law public nuisance.’ It would

not be appropriate, therefore, to uphold the judgment on the basis

suggested by Justice Mosk.

BAXTER, J.

‘Two of the three witnesses who testified regarding the activities and

conditions described in footnote 4 of the majority opinion, ante, made

their observations a year or more prior to trial. Both acknowledged that

prior to trial changes had been made in the interior of the bookstore.

Subsequent to their observations a fence had been constructed to

separate the rear alleyway from the rear yard of the home directly

behind the bookstore. Therefore, although their testimony was uncontra-

dicted, it was not adequate to establish that either the bookstore

employees or the patrons currently engaged in the objectionable con-

duct. The third witness, who lived behind the bookstore, testified that

she continued to be bothered by patrons even after the fence was

constructed and that her neighbors were also bothered. Her testimony

did not establish a common law nuisance as a matter of law, however.

COPY

CITY OF NATIONAL CITY v. WIENER

S020887

CONCURRING AND DISSENTING OPINION BY

MOSK, J.

There are nine words in the majority opinion with which I

agree: “the judgment of the Court of Appeal is reversed.” How-

ever, because the bulk of the opinion proposes to give effect to a

city ordinance that unconstitutionally bans the dissemination of

First Amendment-protected material, I must distance myself

from its reasoning.

First, the facts.

At the time of trial, Chuck’s Bookstore was the only adult

bookstore in National City—a city of more than 57,000 —

although there is one other sexually oriented business, a movie

theater.

Purporting to rid itself of urban blight, the city enacted an

ordinance prohibiting sexually oriented businesses like Chuck’s

from locating within 1,500 feet of each other, 1,500 feet of a

school or park, or 1,000 feet of a residential zone. Strip develop-

ment dominates the city’s commercial zones; therefore, as the city

conceded at trial, the distance rules are an effective ban on places

like Chuck’s. But the law also provides that Chuck’s may operate

in any commercial zone, regardless of the aforementioned dis-

tance requirements, as long as it is in an enclosed mall or an

unenclosed mall in which it faces inward so as to be invisible from

the street.

The city sought abatement of Chuck’s as a common law and

statutory public nuisance. The common law claim rested on an

allegation that Chuck’s was pestiferous to its neighbors. The basis

for the statutory claim was that Chuck’s violated a National City

ordinance: it was too close to residences and the adult theater, and

it did not come within any exception to the distance rules because

it was not in an enclosed or inward-facing mall.

A24

It was uncontested that Chuck’s enjoys First Amendment

protection and therefore the city must provide reasonable alterna-

tive avenues of communication, as constitutionally required.’ But

much of the city’s case focused on its allegation that Chuck’s was

a common law public nuisance. It is to this theory that I turn first.

I

The city could properly seek to have the bookstore abated as a

common law public nuisance. (Civ. Code, § 3491, subd. 3; Code

Civ. Proc., § 731.) The city alleged, and provided strong evidence

at trial, that Chuck’s is a classic public nuisance. (Civ. Code,

§§ 3479, 3480.) The store had front and rear entrances. The

management would leave the rear door open, evidently without

proper supervision, and patrons would wander between Chuck’s

and the back alley, which ineffectually separated the store from a

historically distinguished row of residences. Chuck’s patrons

would, among other activities, have sex in the bushes, wander into

neighboring residents’ backyards, bother the neighbors with unsa-

vory requests, and discard condoms and pornographic material on

or near neighbors’ residential property. Store workers would slop

buckets of pungent cleaning fluid into the back alley.’ The record

leaves no doubt whatever that defendant did not manage the

property properly.

'The First Amendment does not prevent the state from suppressing

obscenity (Roth v. United States (1957) 354 U.S. 476, 485), but there

was no contention in this case that Chuck’s was selling obscene material.

?Also see the portion of footnote 4 of the majority opinion describing

neighbors’ injuries. It is important to note, however, that the references

in that footnote to indoor conduct, distasteful as that conduct might be

to most people, do not describe a nuisance, for the actionable injury

presumably would be neither to others on their own property nor to the

possessor of the indoor premises. (See Mangini v. Aerojet-General Corp.

(1991) 230 Cal.App.3d 1125, 1133-1137.)

The common law of nuisance has been codified in our Civil Code.

Thus it has a statutory basis. Nevertheless, I shall continue to refer to

the first cause of action as one for common law nuisance, to distinguish

it from the second cause of action under the National City ordinance,

which is also statutory.

A25

Thus there was ample evidence to sustain the trial court’s

judgment that the bookstore was a public nuisance. The judgment

did not specify, however, whether Chuck’s was a statutory or a

common law nuisance, and the statement of decision discussed

only the statutory claim. Perhaps for this reason, the Court of

Appeal focused on the constitutionally infirm statutory claim,

rather than the strong evidence that Chuck’s was a common law

public nuisance.’

Assuming arguendo that the trial court’s judgment declaring

Chuck’s public nuisance was rendered on the constitutionally

infirm statutory ground, rather than on the sound basis of the

Civil Code, nevertheless the trial court’s decision was correct

because there was sufficient evidence of a common law public

nuisance to support it. (Nestle v. City of Santa Monica (1972) 6

Cal.3d 920, 925.). The judgment should therefore have been

sustained, for a reviewing court must sustain judgment if the

result was correct, no matter that the trial court gave the wrong

legal reason for its decision. (International etc. Workers v.

Landowitz (1942) 20 Cal.2d 418, 423 [even if court erred in its

analysis of ordinance’s constitutionality, judgment must be sus-

tained because it was correct on other grounds].) Therefore the

majority opinion is correct that the Court of Appeal’s judgment

must be reversed.

Alas, in their eagerness to comment on the constitutionality of

the ordinance — in actuality not at issue — the majority ignore

the common law nuisance claim. Thus in my view their discussion

becomes purely advisory.

*The bookstore’s First Amendment-protected status does not shield it

from California’s common law public nuisance laws. (Arcara v. Cloud

Books, Inc. (1986) 478 U.S. 697, 707 [plur. opn.]; accord id. at p. 708

[conc. opn. of O’Connor, J.}; see also Grayned v. City of Rockford

(1972) 408 U.S. 104; cf. People ex rel. Arcara v. Cloud Books, Inc.

(1986) 68 N.Y.2d 553 [510 N.Y.S.2d 844] [closing bookstore as

nuisance impermissibly burdened freedom of expression under New

York Constitution if lesser sanctions would end nuisance]; but see fn.

12, post.)

A26

It is axiomatic that we may not address constitutional questions

when there is another ground on which to reach a decision. such is

the rule we have previously imposed on ourselves. (Amador

Valley Joint Union High Sch. Dist. v. State Bd. of Equalization

(1978) 22 Cal.3d 208, 233 [stating general rule]; People v.

Williams (1976) 16 Cal.3d 663, 667.) It is also part of the selif-

discipline of the United States Supreme Court, which calls it a

‘fundamental rule of judicial restraint.” (Jean v. Nelson

(1985) 472 U.S. 846, 854.) The federal high court has com-

manded all federal courts to follow the rule. (/bid.) And it is a

principle of decisionmaking to which the appellate courts of every

other state in the United States subscribe.‘ Finally, a restrained

“(Love v. Fulford (Ala. 1983) 442 So.2d 29, 33; Perry v. State

(Alaska 1967) 429 P.2d 249, 252; State v. Church (1973) 109 Ariz. 39

504 P.2d 940, 942] [usual rule]; Bell v. Bell (1971) 249 Ark. 959 [462

S.W. 387, 840]; Lipset v. Davis (1949) 119 Colo. 335 [203 P.2d 730,

731]; City of Hartford v. Powers (1981) 183 Conn. 76 [438 A.2d 824,

828]; Agostini v. Colonial Trust Co. (1945) 28 Del.Ch. 350 [44 A.2d

21, 22, fn. 1); State v. Tsavaris (Fla. 1981) 394 So.2d 418, 421-422;

Farmer v. State (1971) 228 Ga. 225 [184 S.E.2d 647, 648]; Doe.v. Roe

(1984) 67 Hawaii 63 [677 P.2d 468, 471]; Poesy v. Bunney (1977) 98

Idaho 258 [561 P.2d 400, 406]; Haughton v. Haughton (1979) 76 Ill.2d

439 [394 N.E.2d 385, 389]; Board of Com'rs v. Kokomo City Plan

Com’n (1975) 263 Ind. 282 [330 N.E.2d 92, 96]; In Interest of Chad

(lowa 1982) 318 N.W.2d 213, 216, fn. 2; State ex rel. Fatzer v. Barnes

(1951) 171 Kan. 491 [233 P.2d 724, 726]; Preston v. Clements

(Ct.App. 1950) 313 Ky. 479 [232 S.W.2d 85, 88]; Benson & Gold Chev.

v. La. Motor Veh. Com'n (La. 1981) 403 So.2d 13, 23; State v. Bassford

(Me. 1982) 440 A.2d 1059, 1061; Com’r of Labor and Industry v.

Fitzwater (Ct.App. 1977) 280 Md. 14 [371 A.2d 137, 140]; Com. v.

Loretta (1982) 386 Mass. 794 [438 N.E.2d 56, 59]; Snyder v. Char-

lotte P. School Dist., Eaton Cty. (1984) 421 Mich. 517 [365 N.W.2d

151, 188]; Complaint Concerning Winton (Minn. 1984) 350 N.W.2d

337, 343, fn. 9; Kron v. Van Cleave (Miss. 1976) 339 So.2d 559, 563;

State ex rel. Union Elec. v. Pub. Serv. Com’n (Mo. 1985) 687 S.W.2d

162, 165 & fn. 4; Board of Com'rs of Flathead County v. Eleventh

Judicial Dist. Court (1979) 182 Mont. 493 [597 P.2d 728, 731]; State,

Department of Motor Vehicles v. Lessert (1972) 188 Neb. 243 [196

N.W.2d 166, 169]; Spears v. Spears (1979) 95 Nev. 416 [596 P.2d 210,

212]; State v. Hodgkiss (1989) 132 N.H. 376 [565 A.2d 1059, 1061];

A27

view of a reviewing court’s role would ascribe no importance to a

party’s desire to resolve the case on constitutional grounds or

lower courts’ failure to address the common law claim. (See

United States v. Locke (1985) 471 U.S. 84, 92; United States v.

C.1.O. (1948) 335 U.S. 106, 110; Troy State University v. Dickey

(Sth Cir. 1968) 402 F.2d 515, 516.)

The constitutional discussion is not necessary to reach the

result that the Court of Appeal’s judgment must be reversed. It

therefore may be deemed a dictum, unnecessary to the judgment.

(Bakke v. St. Thomas Public Sch. Dist. No. 43 (N.D. 1984) 359

N.W.2d 117, 120.)

II

As indicated above, the constitutional issue should be of no

precedential importance. But because the majority opinion con-

tains a gratuitous commentary on the constitutionality of the

National City ordinance, I offer my own views on the subject.

Donadio v. Cunningham (1971) 58 N.J. 309 [277 A.2d 375, 384];

Property Tax Dept. v. Molycorp., Inc. (1976) 89 N.M. 603 [555 P.2d

903, 905-906]; Peters v. New York City Housing (1954) 307 N.Y. 519

[121 N.E.2d 529, 531]; Williams v. Williams (1980) 299 N.C. 174

[261 S.E.2d 849, 859]; Murie v. Cavalier County (1938) 68 N.D. 242

[278 N.W. 243, 246]; Greenhills Home Own. Corp. v. Village of

Greenhills (1966) 5 Ohio St.2d 207 [215 N.E.2d 403, 407]; Schwartz v.

Diehl (Okla. 1977) 568 P.2d 280, 283; State v. House (1985) 299 Ore.

78 [698 P.2d 951, 952]; Ballou v. State Ethics Commission (1981) 496

Pa. 127 [436 A.2d 186, 187 & fn. 2]; Town of Barrington v. Blake (R.I.

1987) 532 A.2d 955; Floyd v. Thornton (1951) 200 S.C. 414 [68 S.E.2d

334, 339] [general rule]; State v. Big Head (S.D. 1985) 363 N.W.2d

556, 559; Watts v. Memphis Transit Management Co. (1971) 224 Tenn.

721 [462 S.W.2d 495, 498]; Courtney v. State (Tex.Ct.App. 1982) 639

S.W.2d, 16, 17; Goodsel v. Department of Business Regulation (Utah

1974) 523 P.2d 1230, 1232; Watkins v. Ford (1918) 123 Va. 268 [96

S.E. 193, 194]; State v. Clarke (1985) 145 Vt. 547 [496 A.2d 164, 167];

Tommy P. v. Board of County Com’rs (1982) 97 Wn.2d 385 [645 P.2d

697, 700]; Priester v. Hawkins (1981) 168 W.Va. 569 [285 S.E.2d 396,

398]; Labor & Farm Party v. Elections Bd. of Wis. (1984) 117 Wis.2d

351 [344 N.W.2d 177, 179]; Stambaugh v. State (Wyo. 1977) 566 P.2d

993, 996.)

Se

A28

The record establishes conclusively that as applied to a sexually

oriented business the National City ordinance cannot pass consti-

tutional muster.

City of Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41

(Renton), the leading case in this area,’ held that an ordinance

that regulates sexually oriented but First Amendment-protected

establishments must provide for alternative avenues of communi-

cation, and that these avenues must be reasonable. (Jd. at p. 50.)

Moreover, the burden lies with the government to show that the

reasonable alternatives exist. (Ibid.; see also Playtime Theaters,

Inc. v. City of Renton (9th Cir. 1984) 748 F.2d 527, 538.)

Though Renton upheld that city’s dispersal ordinance, it made

clear, in line with its general statement at page 50 of 475 US.,

that the First Amendment requires a city to “refrain from

effectively denying . . . a reasonable opportunity to open and oper-

ate an adult theater within the city....” (Jd. at p. 54, italics

added. )

With these principles in mind, let us examine in greater detail

the facts of this case as revealed at trial.

The city’s planning director testified that the distance require-

ments, taken by themselves, imposed a de facto ban, denying any

opportunity — much less a reasonable one — for Chuck’s to oper-

ate in National City. Because such a ban is patently unconstitu-

tional, the city also purported to give sexually oriented businesses

the opportunity to locate in an unobtrusive mall location. But as

the record reveals, the city’s exception is meaningless — the

opportunity it provides is purely chimerical.

‘The majority opinion refers both to Renton and to Young v. Ameri-

can Mini Theatres, Inc. (1976) 427 U.S. 50 as landmark cases. But

Young was a plurality opinion, and the high court recently disparaged it.

(R.A.V. v. City of St. Paul (1992) 505 U.S. , [120 L.Ed.2d

305, 322].) Also, in diametrical contrast to this case Young considered a

dispersal ordinance that left many locations available. (427 U.S. at pp.

71-72, fn. 35.) For these reasons, I shall concentrate on Renton as the

significant United States Supreme Court authority.

. ee n

A29

The record discloses that there were only three existing loca-

tions that could fulfill the mall requirements: the Plaza Bonita,

Sweetwater Town & Country, and South Bay Plaza shopping

centers. A witness for defendant, Tony Solis, testified that none of

the three shopping centers would lease to an adult bookstore. At

South Bay Plaza the leasing agent told him that the center would

not rent to a business like Chuck’s. At Town & Country he found

out from realtors that an existing lease to Circuit City specified

either that Circuit City was forbidden to sublet to an adult

bookstore or that the mall was forbidden to lease any space to

such a business. At the third and final possible location, Plaza

Bonita, the character of the mall was apparently sufficiently

genteel that Solis did not even inquire about the possibility of

entering into a lease, but merely surveyed the site and took

photographs of existing businesses.

In sum, no existing site was available to Chuck’s, a fact that led

to the trial court’s somewhat rhetorical remark to counsel, “Is

there any question in your mind that not in a million years would

Plaza Bonita, or T&C, or South Bay Plaza rent to Mr. Wiener

[defendant] ...?’””

The unavailability of the city’s entire commercial area, includ-

ing the three enclosed malls, left only the possibility of new

construction that would fulfill the city’s concealment require-

°At times the witnesses seemed bemused or incredulous at the kinds

of questions they were being asked, because the shopping centers’

unwillingness to rent to an adult bookstore seemed self-evident to them.

Solis testified:

“Q. In your experience in the commercial real estate business, is it

expected that retail shopping centers such as the ones I’ve mentioned

would not rent to adult entertainment businesses?

“A. That’s correct. They ordinarily wouldn’t rent.

“Q. Would not rent?

“A. Would not rent to an adult bookstore.

“Q. And is that generally known to people who are in the commer-

cial real estate business?

“A. Well, if you don’t know it, you’ll soon find out.”

A30

ments. In that regard, defendant’s expert witness Clifford Beck —

a redevelopment consultant with 40 years’ construction experi-

ence in shopping centers and an expert in mall development —

testified it would cost $6.5 million to build a small inward-facing

mall that would meet the requirements.’ More significant yet was

Beck’s uncontradicted testimony that in National City it would

require two to five years merely to assemble the property — from

thirty different landowners — and financing needed to build the

most uncomplicated and minimally sized mall that would meet

the city’s rules.

In sum, defendant proved that the city had effectively denied

him “a reasonable opportunity to open and operate an adult

[business] ....” (Renton, supra, 475 US. at p. 54.)° To reach

any other conclusion is to ignore commercial reality as well as the

First Amendment’s command. “There can be no doubt that

bookselling is a constitutionally protected activity or that closing a

bookstore for a year may have a substantial impact on that

activity.” (People ex rel. Arcara v. Cloud Books, Inc., supra, 68

N.Y.2d 553, 558 [510 N.Y.S.2d 844, 847] [interpreting New

York Constitution }.)

’The majority opinion indirectly acknowledges this testimony, but

then states that “no direct evidence was presented regarding the eco-

nomic viability of such an enterprise, or the ability of respondents to

undertake such development.” (Maj. opn., ante, p. [typed maj.

opn., ante, pp. 7-8].) This conclusion implies that the burden lies on the

bookseller, not the city, to show that the ordinance does not offend the

First Amendment. The law, however, is otherwise. (Morscott, Inc. v.

City of Cleveland (N.D. Ohio 1990) 781 F.Supp. 500, 503; World Wide

Video v. City of Tukwila (1991) 117 Wn.2d 382, 389-390 [816 P.2d 18,

21]; see also Renton, supra, 475 U.S. at p. 50.)

*There was one other possibility for relocation: the addition, to an

existing strip mall of the type ubiquitous in southern California, of an

inward-facing adult bookstore. Ironically, the city established through

defendant’s witness Beck that this too was impossible: the loss of parking

space would make the entire mall uneconomical and might violate

zoning laws, and the existing tenants would “beef like mad” about the

obstruction of their all-important exposure to the street. In sum, such a

modification would not be feasible.

A31

Relying on Renton, supra, 475 U.S. 41, the majority opinion

implies that defendant’s inability to locate his business anywhere

in National City does not violate the First Amendment because

the only impediments to doing so are economic. (Maj. opn., ante,

p. [typed maj. opn., ante, p. 28] [“The Constitution does

not saddle municipalities with the task of ensuring either the

popularity or economic success of adult businesses.”].) That

statement betrays a fundamental misunderstanding of Renton’s

teaching.

The Ninth Circuit explained that the Renton Ordinance set

aside 520 acres on which an adult bookstore could be located, but

noted that the district court had found that “a substantial part” of

the 520 acres was occupied by existing business or industrial

facilities not easily adapted — if adaptable at all — to an adult

bookstore. (Playtime Theaters, Inc. v. City of Renton, supra, 748

F.2d 527, 534.) The high court rejected the Ninth Circuit’s view

that these impediments amounted to a substantial restriction on

speech. The court stated: “That respondents must fend for them-

selves in the real estate market, on an equal footing with other

prospective purchasers and lessees, does not give rise to a First

Amendment violation... [W]e have never suggested that the

First Amendment compels the Government to ensure that adult

theaters, or any other kinds of speech-related businesses for that

matter, will be able to obtain sites at bargain prices.” (Renton,

supra, 475 U.S. at p. 54, italics added.)

But the Renton ordinance did not limit the location of adult

bookstores to specific physical facilities, as does the ordinance at

bench: it merely specified certain distance requirements. (Renton,

supra, 475 U.S. at p. 43; see also Playtime Theaters, Inc. v. City

of Rento, supra, 748 F.2d at pp. 529-530.) Within the 520 acres

not occupied by the incompatible existing facilities, an adult

bookstore owner was free to build or buy a small mom-and-pop

store, for example, and there operate the book business. Renton’s

ordinance, in sum, provided for “‘{a]mple, accessible real es-

tate.’” (475 U.S. at p. 53.) The United States Supreme Court

was declaring only that the city need not locate economically

advantageous sites for an adult bookstore, any more than it need

A32

do so for a Shakespearean festival, an art museum, a symphony

hall, or a repertory movie theater.

That is not the situation before us. The city conceded the

distance rules ban adult bookstores. The record reveals the

alternatives to be purely illusory. Alas, those facts do not appear

to perturb the majority. If the law’s majestic equality can forbid

rich and poor alike to sleep under bridges,” then apparently in the

majority’s view the law may with equally lofty impartiality permit

an adult bookstore to locate anywhere available to Saks Fifth

Avenue. Rento, however, does not countenance such prohibitions

disguised as mere restrictions: immediately after the statement

that the law does not require cities to guarantee sites at bargain

prices, the court held that a city must “refrain from effectively

denying . . . a reasonable opportunity to poen and operate an adult

theater within the city....” (475 US. at p. 54, italics added) —

an opportunity to obtain “‘[a]mple, accessible real estate’”’ (id.

at p. 53, italics added).'°

The complete cynicism of National City’s ordinance is easily

exposed. For the ordinance permits adult bookstores to locate

precisely where the values the ordinance is ostensibly designed to

*Anatole France, Le Lys Rouge (as printed by Calmann-Lé, Editeurs

(1918), ch. 7, p. 118.

"See also Walnut Properties, Inc. v. City of Whittier (1988) 861 F.2d

1102, in which the Ninth Circuit held unconstitutional a city ordinance

that was more generous than is National City’s in that it would at least

allow a handful of adult businesses to operate (see particularly pp. 1107-

1109). The cour concluded, “To hold... that there are adequate alter-

natives available for exporession of this sort would make a mockery of

First Amendment protections and would render meaningless the Su-

preme Court’s admonition that an ordinance must not ‘effectively

den[y] . . . a reasonable opportunity to open and operate an adult theater

within the city.’ Rento, 475 U.S. at pp. 53-54, 106 S.Ct. at 932.” (Jd. at

p. 1109.)

This court’s recent decision in People v. Superior Court (Lucero)

(1989) 49 Cal.3d 14 adds nothing to the majority's constitutional

surmises. The opinion only briefly alludes to the economic-impact

discussion in Rento and does not contravene my discussion of that issue

here. (See 40 Cal.3d at p. 25, fn. 6.)

a snes

A33

protect — what the majority opinion refers to as “the moral

climate of the community as a whole” (maj. opn., ante, p.

[typed maj. opn., ante, p. 24] —are entirely vulnerable. A

family-oriented shopping mall, with small children wandering

about and adolescents congregating after school, would seem to

be the last place the city would prefer an adult bookstore to

locate, even if city officials truly believed the mall owner would

permit it.

In conclusion, the record shows National City’s ordinance to be

in effect a complete proscription of First Amendment-protected

adult businesses. The bookstore cannot locate anywhere now, and

it would take several years for its owners to be able to build an

entire commercial mall, assuming it is feasible and they can

afford to do so. Therefore, under the First Amendment as inter-

preted in Renton, the ordinance cannot stand.'!

Il

National City is said to be a venerable municipality more than

100 years old. No doubt. I must add that the First Amendment is

also venerable, it being the foundation of a free society. (See

generally my concurring and dissenting opinion in People v.

Superior Court (Lucero), supra, 49 Cal.3d at pp. 28-34.)

‘Justice Baxter’s own reference to the third witness’s testimony in

footnote 1 of his concurring opinion, ante, makes unpersuasive his

statement that the neighbors did not establish an abatable common law

nuisance as a matter of law. But if he is correct on this point, then

Renton, supra, 475 U.S. 41, applies squarely; and without state law

complications there can be obstacle to the United States Supreme Court

hearing the case and correcting the majority opinion’s faulty constitu-

tional reasoning.

Moreover, I find irrelevant Justice Baxter’s statement that there was

no evidence a clean, well maintained bookstore would be unable to

acquire space in a mall. He fails to consider that the burden is on the

city to show that reasonable alternative avenues of communication exist.

The city offered no evidence that a mall would lease space to an adult

bookstore.

A34

The judgment of the Court of Appeal should be reversed on the

basis of common law public nuisance.'* The balance of the

majority opinion cannot be supported.

MOSK, J.

I CONCUR: KENNARD, J.

'2In stating that the Court of Appeal’s judgment must be reversed, I

do not mean to sanction the use of the Civil Code’s restatement of the

common law of nuisance as a pretext for ridding a community of First

Amendment-protected activity. The federal high court has also cau-

tioned that it would take dim view of any such action. (Arcara v. Cloud

Books, Inc., supra, 478 U.S. 697, 707, fn. 4; accord id. at p. 708 [ conc.

opn. of O’Connor, J.].) There is no such risk here, however: Chuck’s

was proven to be a common law public nuisance and the city’s action

was not pretextual in that regard.

A35

CITY OF NATIONAL CITY v. STEVEN D. WIENER

S020887

Counsel Who Argued For The Parties

FOR RESPONDENT: Ms. Linda Kaye Harter

Assistant City Attorney

1243 National City Boulevard

National City, California 91950

(619) 336-4220

FOR APPELLANTS: Mr. Norman Atkins

425 South Beverly Drive

Beverly Hills, California 90212

(213) 553-0773

Mr. John H. Weston

Weston & Sarno

433 North Camden Drive,

Suite 900

Beverly Hills, California 90210

(213) 550-7560

TRIAL COURT: San Diego County Superior

Court

TRIAL COURT #: 578784

The information provided here is not intended to reflect that

which will appear in official reports.