In three adult business cases decided in late June, the Ninth District Court of Appeals upheld one city's zoning ordinance, struck down another city's code and sent a third city's regulatory system back to district court for further proceedings. The court upheld the City of Taft's ordinance that restricts adult businesses to a select few parcels in town, but it struck down a similar ordinance in Simi Valley as unconstitutional because that city's process essentially permitted third parties to block adult businesses. Finally, the court said adult bookstore owners in Long Beach must have an opportunity to prove that the city's ordinance violates their First Amendment rights. Together, the decisions do little to clear up the muddy situation around adult business zoning. "It's all very discretionary and very vague," said Santa Monica Attorney Roger Jon Diamond, who represented adult business owners in all three cases. "The courts are kind of making it up as they go along here." In the Taft case, Steven Diamond (no relation to his attorney) applied to open an adult bookstore at a location where he previously operated a pawnshop. Although Diamond's store was in the correct commercial zoning district for an adult business, the city denied his application because the site was within 1,000 feet of parks, churches and residences, in violation of the city's ordinance. Diamond sued, claiming that the city's ordinance unconstitutionally limited his alternative means of communication because almost no site was available that could meet the limitations of the city's ordinance. Under the U.S. Supreme Court's decision in City of Renton v. Playtime Theaters, 475 U.S. 41, (1986), the city must provide a "reasonable opportunity to open and operate." Also, the Ninth Circuit has required that adult business sites must be part of the "actual business real estate market." (Topanga Press v. City of Los Angeles 989 F.2d 1524 (9th Cir. 1993); CP&DR Legal Digest, April 1993.) At trial, the city presented a list of 23 potential sites that could be locations for adult businesses. Eastern District of California Judge Anthony Ishii ruled for the city. Because adult businesses must be 1,000 feet apart under Taft's ordinance, Ishii determined that up to three adult businesses could operate simultaneously under the city's zoning ordinance. Because Diamond was the only person to ever seek permission to open an adult business in Taft, Ishii ruled that these three sites were constitutionally sufficient. In upholding Ishii, the Ninth Circuit took a slightly different tact. The unanimous three-judge appellate panel ruled that seven of the 23 sites were possible locations for adult businesses. "We conclude that the proper measure of sufficiency is not the three sites that could exist simultaneously, but the total seven sites that are available under the ordinance," Judge Michael Daly Hawkins wrote. "As the first person to seek to open an adult business in Taft, Diamond is not limited by the 1,000-foot restriction in choosing a site for his business. He can choose among all seven sites." Saying that there is no constitutional requirement that a city make available a certain number of sites for adult businesses, the court declined to pick a number. But it did rule, "Seven sites in a community the size of Taft is sufficient to allow Diamond an opportunity to open and operate." Although it analyzed only three of the seven sites, the court rejected Diamond's argument that the locations were not part of the "actual business real estate market" because they lacked sidewalks and street lighting and because two sites were occupied. The court held that the infrastructure "might be unnecessary" and that there was insufficient evidence the sites would not become available. John Gibson, Taft's lawyer, said the court's ruling is important for small cities with minimal infrastructure. Taft has little infrastructure to offer any new business, so it should not be required to designate prime locations for adult businesses, he said. "The court said we aren't going to operate in a vacuum, and we are going to be reasonable in what we require cities to do to protect the rights of the pornographers," Gibson said. "I hope this will give small towns around the country some hope." The Long Beach case was similar except that Long Beach had existing adult businesses. In 1994, Long Beach amended its zoning ordinance for adult businesses and gave existing operations 18 months to comply. The owners of five adult bookstores — all of which were within 300 feet of residential zoning districts, which was too close under the new ordinance — filed suit claiming that their First Amendment and equal protection rights were violated. The district court granted an injunction against the city before ruling that the ordinance was constitutional. However, the Central District of California Judge Richard Paez (who has since been appointed to the Ninth Circuit) stayed his ruling until the appellate court decided the case. The same three-judge appellate panel that ruled for the City of Taft said that Paez erroneously denied the adult business owners a chance to submit evidence that the alternative sites would not reasonably become available. "This holding was in error in light of our conclusion today that, under Topanga Press, property must have a genuine possibility of coming available for commercial use to be considered part of the relevant commercial real estate market." The court then remanded the case back to the district court. It rejected the equal protection claims. In newspaper stories, Long Beach officials claimed victory because the court did not strike down their ordinance. But Diamond, the business owners' attorney, said he can show that many of the sites are tied up in long-term leases. The court said, "[P]roperty subject to a long-term lease might not meet the Topanga Press test." "The bottom line, of course," said Diamond, "is that all my clients are still operating." In the Simi Valley case, a different panel of Ninth Circuit judges struck down the city's ordinance. In 1993, Simi Valley adopted regulations that, like those in Taft and Long Beach, prescribed buffer zones between adult businesses and sensitive uses, such as residential zones, youth-oriented businesses, schools, parks, places of worship and other adult businesses. The city adopted the ordinance after developer Philip Young submitted an application to open a club with nude dancing at 999 Los Angeles Avenue. Blocked by the new ordinance, Young filed a lawsuit challenging the ordinance's constitutionality in 1994. Young then talked to the city about opening his club four blocks away. Because he initially received a positive response, he stayed his lawsuit. After months of requesting more information and saying his application was incomplete, city officials eventually denied Young's application for a special use permit because the site did not comply with the buffer requirement. It seems that the day before the city issued its ruling, a Baptist minister had applied — and received immediate approval — for permission to operate a bible study class one hour a week in a commercial building near Young's proposed club. Also, the city said there was a "youth-oriented" karate school within 500 feet. When the Planning Commission considered Young's appeal, it decided that a proposed site's compliance with the buffer zone should be determined based on the date of project approval, not the application date. The decision cost Simi Valley the case. Central District of California Judge William Rea ruled that Simi Valley was giving "de facto veto power" to a third party, making it "unreasonably difficult" for an adult business to open and operate. On a 2-1 decision, the appellate court agreed, declaring the ordinance facially invalid under the First Amendment. "The ability of private parties to obtain an over-the-counter zoning permit that effectively blocks an adult use, at any time during the lengthy permitting process for adult businesses, deprives a potential adult business owner of ‘reasonable alternative avenues of communication' as required by the Supreme Court's holding in Renton," Judge A. Wallace Tashima wrote. In a dissent, Judge Diarmuid O'Scannlain said that the likelihood of a sensitive use manipulating Simi Valley's system was "a factual question for a jury to decide." A jury trial had ended in a mistrial before District Judge Rea decided the case as a matter of law. Simi Valley has since changed its ordinance and assigned a special zone to adult businesses. The Cases: Steven A. Diamond v. City of Taft, No. 98-17253, 00 C.D.O.S. 5149, 2000 Daily Journal D.A.R. 6901, filed June 27, 2000; Seung Chun Lim v. City of Long Beach, No. 98-55915, 00 C.D.O.S. 5155, 2000 Daily Journal D.A.R. 6894, filed June 27, 2000; Philip Young v. City of Simi Valley, No. 97-56484, 00 C.D.O.S. 4931, 2000 Daily Journal D.A.R. 6581, filed June 20, 2000. The Lawyers: For Diamond, Lim and Young: Roger Jon Diamond, (310) 399-3259. For Taft: John D. Gibson, Gibson & Gordon, (661) 664-7200. For Long Beach: Daniel S. Murphy, city attorney's office, (562) 570-2242. For Simi Valley: Bert Deixler, McCambridge, Deixler & Marmaro, (310) 788-5800.