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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. VALLEY CINEMAS, INC., Defendant and Appellant.

Civ. 22006.

Decided: August 31, 1983

Brown, Weston & Sarno, Beverly Hills, McFall, Burnett, Brinton & Cadle, Manteca, by David M. Brown, Beverly Hills, for defendant and appellant. Richard W. Eichenberger, Dist. Atty., Alvan E. Norris, Asst. Dist. Atty., Stephen E. Taylor, Deputy Dist. Atty., for plaintiff and respondent.

Valley Cinemas, Inc., is a defendant in an civil action brought by the People alleging that its operation of a drive-in movie theater in violation of a county ordinance constitutes a public nuisance.   The trial court issued a preliminary injunction from which defendant appeals contending the injunction and the ordinance are unconstitutional.   As we shall explain, controlling federal law mandates the reversal of the order granting a preliminary injunction.


Defendant operates the Valley 99 drive-in theater in San Joaquin County.   Defendant concedes that approximately 50 percent of the films it presents at the drive-in are “soft core X rated films.”   Edward Fonseca, the president of Valley Cinemas, explained that soft core X rated films depict simulated sexual acts, that is, acts not actually occurring.   A number of neighbors of the Valley 99 feel that the films shown are “pornographic.”

In February 1982 the Board of Supervisors of San Joaquin County adopted ordinance number 2917.1  This ordinance, which is set out in full in the margin,2 purports to outlaw the operation of movie projection equipment where the film shown depicts certain specified sex acts and where the movie can be seen by minors beyond the property lines of the theater, by neighbors residing near the property, or by passing motorists.   A violation of the ordinance is declared to be a public nuisance and a misdemeanor.

The District Attorney of San Joaquin County, armed with the new ordinance, brought an action in nuisance on the behalf of the People of the State.   The trial court issued a preliminary injunction restraining defendant from violating the ordinance pending trial.   The terms of the preliminary injunction adopt the language of the ordinance.   Defendant appeals.


It is initially necessary to note the extremely limited ground upon which the district attorney stands.   As he concedes this case does not involve obscenity.   The county has no power to legislate concerning obscene matter or what is termed “harmful matter” where children are involved.   The Legislature has preempted those areas for state control.  (Pen.Code, §§ 311–313.5;  see Carl v. City of Los Angeles (1976) 61 Cal.App.3d 265, 269–272, 132 Cal.Rptr. 365.)

It is understandable that the district attorney does not attempt to justify this ordinance under obscenity principles.   As an obscenity law the ordinance fails miserably.   It makes no effort to comply with the strict requirements of a law dealing with obscenity or harmful matters for minors.  (See Miller v. California (1973) 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419;  Ginsberg v. New York (1968) 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195.)   Moreover, “[w]hile [the Supreme Court has] concluded that a court of equity, having determined particular magazines or films to be obscene, after a full adversary hearing, may enjoin the exhibition or sale thereof by those responsible, [the Court] emphasize[d] that the closing of such bookstores or theaters, either temporarily or permanently, or the enjoining of the exhibition or sale on said premises of magazines or films not specifically so determined to be obscene, constitutes an impermissible prior restraint in violation of the First and Fourteenth Amendments to the United States Constitution.”  (People ex rel. Busch v. Projection Room Theater (1976) 17 Cal.3d 42, 59, 130 Cal.Rptr. 328, 550 P.2d 600.)

 The district attorney asserts the ordinance in question is not an obscenity law, but is instead a regulation of the “time, place, and manner” of exhibiting films.   It is settled that a municipality has the general power to regulate commercial business where the regulation is reasonable and nondiscriminatory.  (People v. Glaze (1980) 27 Cal.3d 841, 845, 166 Cal.Rptr. 859, 614 P.2d 291.)   However, where the ordinance involved is not uniformly applicable to all commercial enterprises and involves restrictions on activities protected by the First Amendment,3 then the government bears the burden of showing that the regulation is narrowly and explicitly drawn and necessary to further a legitimate governmental interest.  (Id., at pp. 845–846, 166 Cal.Rptr. 859, 614 P.2d 291.)   By conceding that this case is not concerned with obscene films the district attorney necessarily also concedes that the films involved are entitled to full First Amendment protection.   (Morris v. Municipal Court (1982) 32 Cal.3d 553, 562, esp. fn. 8, 186 Cal.Rptr. 494, 652 P.2d 51.)

The district attorney's argument presents a curious anomoly.   The ordinance in question is indisputably overbroad as an obscenity law;  and if the district attorney chose to proceed under obscenity laws he could not obtain an injunction such as the one here which enjoins the exhibition of films which have not been judicially determined to be obscene.   Instead, the district attorney concedes the films involved are not obscene and are therefore protected by the First Amendment, and through that concession contends he can do exactly that which would be forbidden if he asserted the films were obscene and therefore not protected by the First Amendment.

 The district attorney's argument must fail.  “Where the ordinance singles out for regulation a First Amendment protected activity, the ordinance must also be content-neutral.  (E.g., Erznoznik v. City of Jacksonville (1975) 422 U.S. 205 [45 L.Ed.2d 125, 95 S.Ct. 2268].)”  (People v. Glaze, supra, 27 Cal.3d at p. 845, fn. 4, 166 Cal.Rptr. 859, 614 P.2d 291.)   The ordinance involved here is not content-neutral, but is expressly content-based.   It therefore cannot be sustained under the general power of the government to regulate commercial businesses.

In Erzonznik v. City of Jacksonville, supra, the United States Supreme Court considered an ordinance which was in all significant respects identical to the San Joaquin County ordinance.   The Jacksonville ordinance made it unlawful and a public nuisance to “․ exhibit, or aid or assist in exhibiting, any motion picture, slide, or other exhibit in which the human male or female bare buttocks, human female bare breasts, or human bare pubic areas are shown, if such motion picture, slide, or other exhibit is visible from any public street or public place.”  (422 U.S. at p. 206, 95 S.Ct. at p. 2271, 45 L.Ed.2d at p. 129.)   The City conceded the ordinance “sweeps far beyond the permissible restraints on obscenity, ․ and thus applies to films that are protected by the First Amendment.”  (Id., at p. 207, 95 S.Ct. at p. 2271, 45 L.Ed.2d at p. 130.)   The City nevertheless maintained that any movie containing nudity which could be viewed from a public place could be suppressed as a nuisance.  (Ibid.)

The Supreme Court rejected the city's contention.   With regard to the claim that it had the right to protect its citizens from unwilling exposure to materials that may be offensive, the Court said:  “In short, the screen of a drive-in theater is not ‘so obstrusive as to make it impossible for an unwilling individual to avoid exposure to it.’ ”  (Id., at p. 212, 95 S.Ct. at p. 2274, 45 L.Ed.2d at p. 132 citation omitted.)   While noting that it may be proper for a zoning ordinance to restrict the location of drive-ins, or for a nondiscriminatory nuisance ordinance to protect persons in their homes from the visual and audible intrusions of such theaters, the court held the content-based ordinance invalid because “․ the Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer.”   (Id., at pp. 210–211, and fn. 9, 95 S.Ct. at pp. 2273–2274, and fn. 9, 45 L.Ed.2d at pp. 131–132.)   With regard to the argument that the ordinance was within the power to protect children, the court noted that the ordinance was overbroad, constituting a sweeping prohibition irrespective of context or pervasiveness.  (Id., at p. 213, 95 S.Ct. at p. 2274, 45 L.Ed.2d at p. 133.)   Finally, the Court rejected the ordinance as a traffic regulation, for as such it was “strikingly underinclusive” since a wide variety of other scenes would be just as distracting to passing motorists.  (Id., at pp. 214–215, 95 S.Ct. at pp. 2275–2276, 45 L.Ed.2d at p. 134.)

We find the decision in Erznoznik to be directly controlling authority which compels the result in this case.   The Jacksonville ordinance at issue there differed in no significant respect from the ordinance with which we are concerned.   It is true that the San Joaquin ordinance bans films depicting specific sexual acts while the Jacksonville ordinance banned only nudity, but that is distinction without a difference for in conceding, as he must, that the ordinance is aimed at nonobscene films the district attorney must concede that the films banned by the San Joaquin ordinance are entitled to full First Amendment protection.  (Morris v. Municipal Court, supra, 32 Cal.3d at p. 562, fn. 8, 186 Cal.Rptr. 494, 652 P.2d 51.)   Nor can it be asserted that the San Joaquin ordinance is less sweeping with regard to minors than was the Jacksonville ordinance.   In Erznoznik the Supreme Court considered whether the Jacksonville ordinance might be saved by construction and stated:  “The only narrowing construction which occurs to us would be to limit the ordinance to movies that are obscene as to minors.”  (422 U.S. at p. 217, fn. 15, 95 S.Ct. at p. 2276, fn. 15, 45 L.Ed.2d at p. 135.)   The Court held the possibility of such a narrowing construction did not save the Jacksonville ordinance.   Such a result is even more compelled here for if the San Joaquin ordinance were so construed it would be thrust into an area preempted by state law and therefore beyond the power of the County.  (Carl v. City of Los Angeles, supra, 61 Cal.App.3d at pp. 269–272, 132 Cal.Rptr. 365.)

The year following the decision in Erznoznik the Supreme Court rendered its decision in Young v. American Mini Theatres (1976) 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310.   The district attorney relies upon the decision in Young in support of the San Joaquin ordinance and we must consider whether Young altered the holding of Erznoznik.

Young involved a Detroit “Anti-Skid Row Ordinance.”   The City had amended the ordinance to require that no “adult theater” be located within 1000 feet of any two other “regulated uses.” 4  The ordinance was thus what might be termed a “dispersal ordinance.”   The Supreme Court upheld the ordinance, but failed to produce a majority opinion.   The holding of the court must be gleaned from the filed opinions.

Four members of the court, in dissent, adhered to the view that time, place and manner regulations must be content-neutral to be valid.  (427, U.S. at pp. 85–86, 96 S.Ct. at pp. 2459–2460, 49 L.Ed.2d at p. 335, dis. opn. of Stewart, J.).   Four other members of the court recognized:  “The sovereign's agreement or disagreement with the content of what a speaker has to say may not affect the regulation of the time, place, or manner of presenting the speech.”  (427 U.S. at p. 64, 96 S.Ct. at p. 2449, 49 L.Ed.2d at p. 322.)   They believed, however, that the application of the rule urged by the dissenters was too broad because “[t]he essence of that rule is the need for absolute neutrality by the government;  its regulation of communication may not be affected by sympathy or hostility for the point of view being expressed by the communicator.”  (Id., at p. 67, 96 S.Ct. at p. 2451, 49 L.Ed.2d at p. 324 fn. omitted.)   These four court members concluded that the ordinance in question was valid even though it characterized the films based upon content.   (Id., at pp. 71–72, 96 S.Ct. at pp. 2452–2453, 49 L.Ed.2d at p. 327.)

Justice Powell broke the tie, and concluded the ordinance was valid.   He believed the case presented a unique situation which was unlike any other previous case.  (427 U.S. at p. 76, 96 S.Ct. at p. 2455, 49 L.Ed.2d at p. 329.)   Justice Powell applied the four-part test of United States v. O'Brien (1968) 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672, under which a regulation is valid despite incidental impact upon First Amendment interests, “ ‘if it is within the constitutional power of the Government;  if it furthers an important governmental interest;  if the governmental interest is unrelated to the suppression of free expression;  and if the incidental restriction on ․ First Amendment freedoms is no greater than is essential to the furtherance of that interest.’ ”  (427 U.S. at pp. 79–80, 96 S.Ct. at pp. 2456–2457, 49 L.Ed.2d at p. 331.)   He concluded there was no question the ordinance was within the power of the City to enact and that the governmental interest, the preservation of stable neighborhoods, was important and substantial.   Moreover, “․ it is clear—indeed it is not seriously challenged—that the governmental interest prompting the inclusion in the ordinance of adult establishments was wholly unrelated to any suppression of free expression.”  (Id., at pp. 80–81, 96 S.Ct. at pp. 2457–2458, 49 L.Ed.2d at p. 332.)   Finally, the incidental encroachment upon expression was the minimal necessary to further the governmental purpose.  (Ibid.)

The decision in Young indicates that perhaps time, place and manner regulations need not be strictly content-neutral in order to be valid.   That decision, however, provides no support to the San Joaquin ordinance with which we are concerned.   It is not valid under any of the opinions in Young.   The Young dissent, of course, would declare the ordinance invalid because it is not content-neutral.   Although the four justices who joined the lead opinion would not require strict content-neutrality, they adhered to the view that the regulation of communication may not be affected by sympathy or hostility for the point of view being expressed.   In contrast, the San Joaquin ordinance was enacted specifically because the county government finds the suppressed films offensive.   Finally, it cannot be contended that the governmental interest that prompted the enactment of the San Joaquin ordinance was wholly unrelated to the suppression of nonobscene matter, for the suppression of the films was the express purpose of the ordinance.

 We conclude that San Joaquin County Ordinance Number 2917 is not a valid time, place and manner regulation.   It is a purposeful attempt to suppress nonobscene films based upon the government's hostility to the subject matter of the films.

“Time, manner, and place regulations must be applicable to all speech without regard to content.  (Consolidated Edison Co. v. Public Serv. Comm'n [1980] 447 U.S. 530 at p. 536 [100 S.Ct. 2326 at p. 2332, 65 L.Ed.2d 319].)”  (Alternatives for California Women, Inc. v. County of Contra Costa (1983) 145 Cal.App.3d 436, 450, 193 Cal.Rptr. 384;  see also Stone, Restrictions of Speech Because of its Content (1980) 46 U.Chi.L.Rev. 81.)   Consequently, a content-based prohibition cannot be characterized as a time, place or manner restriction.  (Bolger v. Youngs Drug Products Corp. (1983) –––U.S. ––––, –––– – ––––, fn. 18, 103 S.Ct. 2875, 2882–2883, fn. 18, 77 L.Ed.2d 469).

The decision in Erznoznik v. City of Jacksonville, supra, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125, cannot be distinguished and, as the supreme law of the land, must be followed.   We find no reason to believe that Erznoznik is no longer valid law and under the compulsion of that decision we must declare ordinance number 2917 to be unconstitutional on its face.

The order granting a preliminary injunction is reversed.


1.   Mr. Fonseca filed a declaration in which he asserts that when he appeared before the Board to oppose the ordinance he was informed that the ordinance was drafted specifically with the Valley 99 in mind.   This would appear logical since it is also declared that the Valley 99 is the only drive-in theater within San Joaquin County limits.

2.   Ordinance 2917 provides:  “The Board of Supervisors of the County of San Joaquin, State of California, do ordain as follows:“SECTION 1. Chapter 4 and Sections 6–3200, 6–3201, and 6–3202 are hereby added to the Ordinance Code of San Joaquin County to read as follows:“CHAPTER 4.“SECTION 6–3200.  This Board of Supervisors finds and declares:“(a) That certain operators of motion picture projection equipment are operating their equipment in such a manner and in such places that the depiction of explicit sexual acts can be viewed off the premises on which the projector is operated;“(b) That certain parents of minor children do not want their children to be exposed to the depiction of explicit sex acts;“(c) That viewing by minor children of the depiction of explicit sex acts without the consent of their parents or legal guardian is harmful to the health, education, and welfare of such minor children;“(d) That certain adults are offended by the fact that they cannot sit or stand on their own property without they or their guests being exposed to the depiction of explicit sex acts;“(e) That public policy and common sense dictates that the citizens of this community should be allowed to enjoy the use of their houses and yards without the unwanted intrusion of the depiction of explicit sex acts;“(f) That the depiction of explicit sex acts can be viewed from certain streets, roads, or highways within the unincorporated area of the County of San Joaquin;“(g) That the sight of such depiction of explicit sex acts, while driving a motor vehicle upon the streets, roads, or highways within the unincorporated area of the County of San Joaquin may cause the driver thereof to have an accident;“(h) That the operation of motion picture projection equipment in a manner so as to cause the depiction of explicit sex acts to be seen by persons driving a motor vehicle along the streets, roads, or highways within the unincorporated area of the County of San Joaquin is hazardous to the driving public;“(i) That it is possible and practicable for operators of motion picture projection equipment to operate in a manner which will not violate this ordinance;“(j) That this ordinance represents the minimum regulation necessary to protect the rights of persons who are located off the premises where the pictures are projected and who desire for aesthetic, moral, religious, or safety reasons not to be exposed to the depiction of explicit sex acts.“SECTION 6–3201.  It shall be unlawful for any person to operate, or to cause or to direct the operation of, motion picture projection equipment where:“(a) The picture projected depicts acts of sexual intercourse, masturbation, sodomy, fellatio, cunnilingus, bestiality, oral copulation or annilingus;  and“(b) The projected sex acts can be seen by minor children beyond the property line of the property on which the projection equipment is being operated;  or“(c) The projected sex acts can be seen beyond the property line of the property on which the projection equipment is being operated by persons residing on other parcels of property;  or“(d) The projected sex acts can be seen beyond the property line of the property on which the projection equipment is being operated by persons who are driving a motor vehicle along the streets, roads, or highways within the unincorporated area of the County of San Joaquin.“As used in this section, ‘property line’ means that property line depicted in the Official Maps of the County Assessor.“SECTION 6–3202.  A violation of this ordinance shall be deemed a public nuisance and a misdemeanor.“SECTION 2. This ordinance shall take effect and be in force thirty (30) days after its passage and prior to the expiration of fifteen (15) days from the passage thereof shall be published once in the Stockton Record, a newspaper published in the County of San Joaquin, with the names of the members of the Board of Supervisors voting for and against the same.”

3.   We adopt the convention utilized by the Supreme Court in Glaze and refer to free speech rights as First Amendment rights, even though such rights are protected by Article I, section 2 of the California Constitution as well as the First Amendment of the United States Constitution.  (See 27 Cal.3d at p. 845, fn. 2, 166 Cal.Rptr. 859, 614 P.2d 291.)

4.   The ordinance also precluded adult theaters from being located within 500 feet of a residential area.   The federal district court held that restriction invalid and the City amended it;  however, neither the original nor the amended version was at issue before the Supreme Court.   (427 U.S. at p. 52, fn. 2, 96 S.Ct. at p. 2444, fn. 2, 49 L.Ed.2d at p. 316.)

SPARKS, Associate Justice.

EVANS, Acting P.J., and BLEASE, J., concur.

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