WASHINGTON _ A U.S. Supreme Court decision tentatively upholding a Los Angeles zoning ordinance banning multiple adult businesses at the same location left lawyers for both sides predicting victory at an eventual trial.
The high court's 5-4 decision reversed a ruling by the Ninth U.S. Circuit Court of Appeals in favor of two businesses that ran afoul of the 1983 ordinance by operating X-rated bookstores and video arcades under the same roofs (see CP&DR Legal Digest, September 2000). The Supreme Court ruled the city could "reasonably rely" on a six-year-old study of crime rates as a basis for adopting the ban on multiple adult businesses.
"It is rational for the city to infer that reducing the concentration of adult operations within a neighborhood, whether within separate establishments or in one large establishment, will reduce crime rates," Justice Sandra Day O'Connor wrote in the plurality opinion.
An attorney who filed an amicus brief supporting the city ordinance on behalf of the American Planning Association said the ruling allows cities to continue adopting regulations on adult businesses. "But," said Scottsdale, Arizona, lawyer Scott Bergthold, "they're going to have to defend second effects rationales more vigorously than they have in the past."
At issue was whether the city had enough proof that the combination of ostensibly separate adult businesses contributed to crime and prostitution for the city to approve the regulation. A federal judge in Los Angeles and then the Ninth Circuit both said no. But those rulings came in summary judgments issued without a full trial.
In the high court's May 13 decision, five justices said the city had at least enough evidence to survive summary judgment and deserved a full trial. But in a pivotal concurring opinion, Justice Anthony M. Kennedy said the ordinance might still be struck down if the city's rationale "can be proved unsound at trial."
Michael Klekner, a deputy Los Angeles city attorney, voiced confidence that the city's "substantial" evidence will hold up during a full trial and likely appeal. "I've always thought that if we got to trial, we would prevail," Klekner said.
But John Weston, who represented the two businesses, said the court's fractured ruling will require courts to "engage in meaningful scrutiny and evaluation" of local zoning ordinances limiting location of adult businesses. "From the standpoint of First Amendment law, the opinion is quite extraordinary and remarkable," Weston said.
Los Angeles set out to limit the concentrations of X-rated businesses in Hollywood with a zoning ordinance adopted in 1978 that prohibited adult entertainment establishments within 1,000 feet of each other or within 500 feet of a school, park, or religious institution. Five years later, the city closed what it called a loophole in the original ordinance by adding a provision specifically prohibiting more than one adult entertainment business in the same building.
Adult zoning ordinances have been widely enacted in California and elsewhere since the Supreme Court gave them a constitutional green light in a pair of decisions: Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976), and Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). Both decisions upheld adult zoning ordinances — by 5-4 and 6-3 votes, respectively — on the ground that they helped cities combat "undesirable secondary effects" of X-rated businesses without infringing too much on expression protected by the First Amendment.
In enacting its ordinance, Los Angeles relied on a police department study in 1977 that found robbery and prostitution had grown much faster in Hollywood than in the city as a whole. The city did no additional study before enacting the 1983 ordinance amendment.
The city enforced the multiple-use ban in 1995 against two businesses that ran combined bookstores/video arcades — Alameda Books and Highland Books. When the shops challenged the ordinance on constitutional grounds, U.S. District Court Judge Dean Pregerson ruled that the ordinance was subject to "strict scrutiny" — the most stringent constitutional standard of review — and that the city had failed to show a "compelling interest" needed to uphold it.
The Ninth Circuit agreed but on a slightly different ground. Unlike Pregerson, the Ninth Circuit panel ruled that the law was "content-neutral" and was subject only to "intermediate scrutiny." But the panel still found the city's evidence insufficient to uphold the ordinance even under the less stringent standard.
The high court's plurality opinion said that the city did have a "substantial interest" in enacting the multiple-use ban and that it could "reasonably rely" on the 1977 study in attributing increased crime and prostitution to multiple-use adult establishments. The court's three most conservative members joined O'Connor's opinion: Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas.
In an opinion concurring only in the judgment, the centrist-leaning conservative Kennedy tentatively agreed. "Dispersing two adult businesses under one roof is reasonably likely to cause a substantial reduction in secondary effects while reducing speech very little," Kennedy said.
At the start of his opinion, however, Kennedy set out what Weston said amounts to a significant tightening of the test for upholding adult zoning laws. "A zoning measure can be consistent with the First Amendment," Kennedy wrote, "if it is likely to cause a significant decrease in secondary effects and a trivial decrease in the quantity of speech."
Said Weston, "If the reduction in speech is anything more than trivial, it's no good. That's quite remarkable."
Two lawyers who advise cities on the issue, however, saw less evidence of a shift in the decision. "The plurality's opinion goes out of its way to say that it's not changing the law," said Jeff Goldfarb of Rutan & Tucker in Costa Mesa. As for Kennedy's opinion, Goldfarb said Weston was "incorrect" if he was suggesting that an adult zoning ordinance can be upheld only if it is "the least restrictive means" available to serve the city's interest.
According to Bergthold, who wrote the APA brief, "the final standard is somewhere in between" the O'Connor and Kennedy opinions.
For the dissenters, Justice David H. Souter said the city's 1977 study "provides no support" for breaking up what he called "a commercially natural, if not universal" combination of adult businesses. Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer joined his opinion.
City of Los Angeles v. Alameda Books, Inc., No. 00-799, 02 C.D.O.S. 4067, 2002 DJDAR 5167. Filed May 13, 2002.
For City of Los Angeles: Michael Klekner, deputy city attorney, (213) 485-5420.
For Alameda Books: John Weston, Weston, Garrou & Dewitt, (310) 442 0072.
Kenneth Jost, formerly editor of the Los Angeles Daily Journal, is staff writer for Congressional Quarterly and author of The Supreme Court Yearbook.