CITY OF WHITTIER v. WALNUT PROPERTIES INC

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Court of Appeal, Second District, Division 4, California.

CITY OF WHITTIER, Plaintiff and Appellant, v. WALNUT PROPERTIES, INC., Defendant and Respondent.

Civ. 65777.

Decided: February 01, 1983

J. Robert Flandrick, City Atty., City of Whittier, Burke, Williams & Sorensen and Virginia R. Pesola, Los Angeles, for plaintiff and appellant. Stanley Fleishman, Los Angeles, for defendant and respondent.

This action was filed by City of Whittier to compel Walnut Properties, Inc. to comply with the city's zoning code that regulates “adult businesses.”

FACTS

On February 7, 1978, City of Whittier adopted an amendment to its zoning regulations by Ordinance No. 2138.   The code established locational regulations applicable to adult business establishments within the city.   The code declares adult businesses lawfully in existence prior to the effective date of the code to be legal nonconforming uses which are subject to abatement by administrative process.

Walnut owned and operated in the City of Whittier, as part of its “Pussycat” theatre chain, what is alleged to be an adult theatre.

Pursuant to section 9322(3) the superintendent of building and safety issued to Walnut an administrative order of abatement.   Walnut appealed to the city planning commission and objected to the constitutionality of the code.   The planning commission issued an order of abatement.   Walnut appealed to the city council, which ordered the termination of the “adult theatre” use.   Walnut failed to comply and the city sued for injunctive relief.

Walnut denied it was an “adult theatre” within the ordinance and alleged that the ordinance was unconstitutional.   We here determine only the issue of constitutionality.   Walnut asked the court to take judicial notice of the fact that it had the only theatre in the city which allegedly is an adult theatre within the meaning of the ordinance.

The court found that language contained in section 9512, subdivision (2)(c) renders the code unconstitutional 1 in that the language prohibited the operation of any “adult business” at any location in the city.   The court concluded as follows in conclusions (1) and (2):

“1. The portion of § 9512(2)(c) of the Whittier Municipal Code specifically the words ‘other public facility which is utilized by minors,’ has the legal effect of prohibiting the location of any adult business on any location within the City in that, the phrase ‘public facility’ means, and includes, among other things, any retail commercial facility which is open to members of the public, and is utilized by minors, such as grocery stores and drug stores.

“2. The absolute prohibition of an otherwise lawful business constitutes a violation of the state and federal constitutions and such ordinance is found to be void as applied to the defendant Walnut herein.”

Prior to the entry of judgment the city asked the court to take judicial notice of Ordinance No. 2254 which was enacted as an urgency measure on February 3, 1981.   This was enacted in response to the trial court's proposed interpretation and to clarify any ambiguities.   Sections 3, 4 and 5 of Ordinance No. 2254 read as follows:

“SECTION 3.   That Section 9512.1 is hereby added to the Whittier Municipal Code to read as follows:

 “ ‘9512.1—ALTERNATE SPECIAL REGULATIONS.

The special regulations set forth in this section shall apply to all uses which are subject to the provisions of this part if for any reason any of the special regulations set forth in Section 9512 hereof are declared invalid as applied to any such use.

“(1) That prior to establishing or conducting of any adult business, a conditional use permit therefor shall be obtained, pursuant to the provisions of Part 9 of this chapter;  and

“(2) That no adult business shall be granted a conditional use permit unless the lot upon which such business is proposed to be located:

“(a) Is classified in Zone C–2 or a less restrictive zone;  and

“(b) Is not within five hundred (500) feet of any lot classified in any of the R Zones;  and

“(c) Is not within one thousand (1,000) feet of any lot upon which there is located a church;  or

“(d) Is not within one thousand (1,000) feet of any lot upon which there is located any public, private or parochial, elementary, junior high, high school;  or

“(e) Is not within one thousand (1,000) feet of any lot upon which there is located a City owned, operated and maintained public park;  or

“(f) Is not within one thousand (1,000) feet of any lot on which there is located another adult business;  or

“(g) Is not within five hundred (500) feet of any lot on which is located a business with a type 40, 42, 48 or 61 on sale alcoholic beverage license.'

“SECTION 4.   If any section, subsection, subdivision, sentence, clause or phrase of this Ordinance is for any reason held to be unconstitutional or otherwise invalid, such decision shall not affect the validity of the remaining provisions of this Ordinance.   The City Council hereby declares that it would have passed this Ordinance and each section, subsection, subdivision, sentence, clause and phrase thereof irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional.

“SECTION 5.   That the City Clerk shall certify to the adoption of this Ordinance and shall cause the same to be published in the manner prescribed by law.”

The trial court did take judicial notice of the ordinance, but the court based its judgment on the language contained in the code prior to its amendment and gave no effect to Ordinance No. 2254.

 Appellant first argues that the trial court's judgment is erroneous because the court did not apply the law as it existed at the time of judgment.   On February 3, 1981, after the court announced its tentative decision, but prior to entry of judgment, the city counsel enacted Ordinance No. 2254 as an urgency measure to eliminate the interpretation of section 9512, subdivision (2)(c) that had been proposed by the trial court.   Although the court granted the city's request for judicial notice, the court's findings of fact and conclusions of law relied on the language of section 9512, subdivision (2)(c) as that section was written prior to the enactment of Ordinance No. 2254, and did not take into account the language of Ordinance No. 2254.2  Therefore, the appellant is correct that the court did not apply the law as it existed at the time of judgment.   The question before us is whether the court was required to consider Ordinance No. 2254, considering that the ordinance under which the city filed its complaint for injunctive relief was Ordinance No. 2138.

 Respondent argues that since the city's complaint dealt with Ordinance No. 2138 and not Ordinance No. 2254, the question before this court is solely whether Ordinance No. 2138 is constitutional, and the question of whether No. 2254 is constitutional was not properly before the trial court.   We do not agree.   It is settled law that the rights of the parties in an action in equity will be determined on the basis of the law as it exists at the time of the determination, rather than at the time the complaint was filed, and this rule applies to judgments on appeal as well as to judgments in the trial court.  (City & County of S.F. v. Budde (1956) 139 Cal.App.2d 10, 12, 294 P.2d 503.)   The version of the ordinance in force at the present is the relevant legislation for the purposes of the appeal.   It is an established rule of law that on appeals from judgments granting or denying injunctions, the law to be applied is that which is current at the time of judgment in the appellate court.  (Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 306, fn. 6, 138 Cal.Rptr. 53, 562 P.2d 1302.)   Repeal or modification of an ordinance under attack, or subsequent legislation may render moot the issues in a pending appeal.   By rule of law on appeals from judgments granting or denying injunctions, the law to be applied is that which is current at the time of judgment in the appellate court.  (Callie v. Board of Supervisors (1969) 1 Cal.App.3d 13, 18, 81 Cal.Rptr. 440.)   Thus the trial court erroneously failed to consider Ordinance No. 2254, and the language “other public facility” from Ordinance No. 9512, subdivision (2)(c) is not relevant in determining the constitutionality of the ordinance, either here or in the trial court.

Thus, the only restrictions on the location of an adult theatre in the city would be that it be in a C–2 or less restrictive zone, not be within 500 feet of a residential zone, or within 1,000 feet of a church, educational institution, park or other adult business.

 In Young v. American Mini Theatres (1976) 427 U.S. 50, 62, 63, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310 the court held that the mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not sufficient reason for invalidating the ordinance.   A zoning ordinance was not held invalid merely because it regulates activity protected under the First Amendment, where the challenged restriction on the location of adult movies imposed a minimal burden on protected speech.  (Schad v. Mount Ephraim (1981) 452 U.S. 61 at 71, 101 S.Ct. 2176 at 2184, 68 L.Ed.2d 671, analyzing Young v. American Mini Theatres.)   A zoning law which is alleged to threaten First Amendment rights is subject to close scrutiny to pass constitutional muster and the zoning law effecting the location of adult theatres and bookstores is valid only so long as the zoning law does not have the effect of significantly reducing the numbers and availability to the public.  (Alexander v. City of Minneapolis (1982) 531 F.Supp. 1162, 1170.)

 In assessing the reasonableness of a regulation, we must weigh heavily the facts and the communication involved;  the regulation must be narrowly tailored to further the state's legitimate interest.   To be reasonable, time, place and manner restrictions not only must serve significant state interests but must leave open adequate alternative channels of communication.  (Schad v. Mount Ephraim, supra, 452 U.S. 61, 76, 101 S.Ct. 2176, 2186, 68 L.Ed.2d 671.)   In Alexander v. City of Minneapolis, supra, 531 F.Supp. 1162, the zoning ordinance significantly curtailed the public's access to adult books and films and there would not have been a single location in the city for opening of new theatres and bookstores;  therefore the Minneapolis zoning ordinance was unconstitutional and went beyond the mere locational restrictions.   In Schad v. Mount Ephraim, supra, 452 U.S. 61, 75, 101 S.Ct. 2176, 2186, 68 L.Ed.2d 671, the borough excluded all live entertainment and there was no evidence in the record to support the proposition that the kind of entertainment appellants wish to provide is available in reasonably nearby areas.   In Basiardanes v. City of Galveston (5th Cir.1982) 682 F.2d 1203 the zoning ordinance was not reasonable as to time, place and manner where the ordinance banned adult theatres outright from much of the city, few access roads led to permitted locations and the permissible locations were in undeveloped areas near warehouses and swamps.   Galveston's law suppressed speech because it banned adult theatres outright from much of the city by putting them at a great distance.  (682 F.2d 1203, 1214.)

 In the case at bench the zoning ordinance, No. 2254, is reasonable as to time, place and manner because it leaves open alternative channels of communication to the speaker and does not violate the First Amendment.   American Mini Theatres rejected the notion that dispersal requirements alone muzzle protected speech, Basiardanes v. City of Galveston, supra, 682 F.2d 1203, and [both] Ordinance No. 2254 [and No. 2138] merely require relocation within Whittier and do not ban an adult theatre use.   In the case at bench there was a stipulation that the director of city planning would have testified as to other locations available to Walnut Theatres.   Although it is true that there was no other evidence that there are adult theatres presently within Whittier, and such a fact has been considered significant in Avalon Cinema Corp. v. Thompson (8th Cir.1981) 667 F.2d 659,3 this is not a case where the city has effectively excluded all of the type of adult entertainment which appellant seeks to sell.  (Schad v. Mount Ephraim, supra, 452 U.S. 61, 75, 101 S.Ct. 2176, 2186, 68 L.Ed.2d 671.)   According to the inferences properly drawn from the stipulation to testimony, Walnut could relocate within the city, and thus, this is not a case where free speech is suppressed by either banning adult theatres outright from much of the city or by putting these theatres at a great distance.  (Basiardanes v. City of Galveston, supra, 682 F.2d 1203.)   Since the ordinance herein merely disperses adult theatres as in Young v. American Mini Theatres, supra, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 and does not prevent the entry of new theatres into the market place, (see Alexander v. City of Minneapolis, supra, 531 F.Supp. 1162), the ordinance is not unconstitutional as applied, and is a reasonable restriction as to time, place and manner.   We find that the ordinance passes constitutional muster as not being unduly restrictive, since Walnut (and other new adult theatres) can locate at other places within the city.

Respondent argues that the city cannot rely on Young v. American Mini Theatres, supra, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 to save the ordinance, because in the instant case it will be “virtually impossible” to establish an adult theatre in the City of Whittier.   As we have stated before, the parties stipulated that the director of planning would testify that there were locations in the city where Walnut could locate, if the ordinance is interpreted in the way we have suggested here.

 Respondent argues correctly, that since Walnut's claims are rooted in the First Amendment, the city has the burden of overcoming the presumption that the ordinance is invalid because it impinges on freedom of expression.  (Schad v. Mount Ephraim, supra, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671.)   The zoning ordinance must be narrowly drawn to further a sufficiently substantial government interest, and unless the ordinance advances significant governmental interests and accomplishes such advancement without undue restraint of speech, the ordinance is invalid.   The city must buttress its assertion with evidence that the state interest has a basis in fact and that the factual basis was considered by the city in passing the ordinance.  (Avalon Cinema Corp. v. Thompson, supra, 667 F.2d 659, 661.)   However, identical ordinances need not be tested anew each time they are enacted by a different governmental entity by establishing the actual existence of local conditions which would justify it “․ lawmakers in one locale [should not be denied] the benefit of the wisdom and experience of lawmakers in another community, no matter how similar the circumstances;  ․”  (See County of Sacramento v. Superior Court (Goldies Bookstores, Inc.) (1982) 137 Cal.App.3d 448, 454, 455, 187 Cal.Rptr. 154.)   The “factual basis” behind certain types of zoning laws, insofar as those zoning laws require dispersal or deconcentration, has been developed by testimony in other cases.   Sociologists and urban planners have testified that a concentration of adult movie theatres in limited areas leads to the deterioration of surrounding neighborhoods.  (See Young v. American Mini Theatres, supra, 427 U.S. 50 at p. 80, 96 S.Ct. 2440 at p. 2457, 49 L.Ed.2d 310.)   This testimony is sufficient and the city need not bring their own sociologists to apply these observations to the City of Whittier.

 However, two other tests remain.   The regulations must be motivated not by a distaste for the speech itself, but by a desire to eliminate its adverse effects and the legislation may not severely restrict First Amendment rights.  (91 Harv.L.Rev. 1427, 1558–1559.)   In view of the fact that the ordinance merely would have the effect of scattering or relocating adult theatres in the City of Whittier, and would not ban that form of entertainment, either absolutely or pragmatically, the zoning regulation neither unduly restricts First Amendment rights nor can it fairly be considered to be motivated by a distaste for the speech itself.   It appears that the ordinances in question were motivated by an attempt to reduce neighborhood blight and not by a distaste for the speech.   Appellant has sustained its burden of proof.

 Respondent argues that the term “adult theatre” is unconstitutionally vague and overbroad.   While the term “adult theatre” may be ambiguous in ordinary English usage, it has become part of the American vernacular.   Secondly, and more important, the term “adult theatre” is very specifically defined within the ordinance itself, and Whittier's definition of adult theatre is very similar to the use of the term which was found constitutional in Pringle v. City of Covina (1981) 115 Cal.App.3d 151, 155, 171 Cal.Rptr. 251.   Although the Pringle court found the ordinance before it to contain some vague language, the Pringle court found itself compelled under the decision in Pryor v. Municipal Court (1979) 25 Cal.3d 238, 158 Cal.Rptr. 330, 599 P.2d 636 to construe the language narrowly in order to preserve its validity.

More recently in Kuhns v. Board of Supervisors (1982) 128 Cal.App.3d 369, 375, 181 Cal.Rptr. 1, the court also accepted a narrow interpretation of statutory language.   The term “adult theatre” has been used frequently by the courts to describe a specific kind of entertainment, and the term is neither vague nor overbroad.

Respondent argues that the city failed to prove that Walnut was an “adult theatre” within the meaning of the ordinance.   Respondent asserts that the record fails to reveal that a preponderance of the films shown at Walnut's theatre have as their dominant theme the depiction of the ordinance's enumerated sexual activities, in accord with the test set forth in Pringle v. City of Covina, supra, 115 Cal.App.3d 151 at 162, 171 Cal.Rptr. 251.

At the hearing before the city council, Lieutenant Marino testified that he made periodic inspections of the movies at the Walnut theatre, and these movies depicted various acts from which the city council could have concluded that the movies were “adult movies” within the legal meaning of that term.

Respondent argues that the ordinance is unconstitutional because prior to establishing or conducting an adult theatre, a conditional use permit must be required.   The case at bar involves the abatement of a nonconforming use and does not deal with the issuance or denial of a conditional use permit.

 Respondent argues that the 120-day amortization period is unreasonable on its face.   Zoning ordinances may validly provide for eventual termination of nonconforming property uses without compensation if the ordinance provides for a reasonable amortization period.   The party complaining of the zoning legislation has the burden of establishing the unreasonableness of the amortization period and must provide evidence showing the particular period is unreasonable as to him.  (Castner v. City of Oakland (1982) 129 Cal.App.3d 94, 180 Cal.Rptr. 682.)   In the case at bench respondent has cited us no evidence showing the unreasonableness of the amortization period.   While we may agree that 120 days appears to be a very short period of time for respondent to reorganize its operation, we are not in a position to decide that here.   Respondent had the burden of showing that the amortization period was unreasonably short as to it, and he did not fulfill his burden.

 Respondent argues that the ordinance violates the Establishment Clause of the First Amendment in that requiring an adult theatre to be 1,000 feet from a church endorses a religion.   Requiring an adult theatre to be 1,000 feet from a church does not establish a religion.   The prohibition against establishing a religion means the government cannot force or influence a person to go to or remain away from a church, (Everson v. Board of Education (1946) 330 U.S. 1, 67 S.Ct. 504, 511, 91 L.Ed. 711) and the government must remain neutral in matters of religion.   In the case at bar, the zoning ordinance herein does not have an impermissible religious purpose and the effect of requiring the adult theatre to move 1,000 feet from a church does not either encourage people to go to church nor discourage people from going to church.   We cannot say the government has failed to remain neutral in matters of religion.   The existence of an adult theatre within 1,000 feet of a church may well effect the sensibilities of some persons who attend a church, but we cannot agree that it will cause a person to go to church or that it will in any way advance a religion.   Ordinances with similar locational requirements have been held valid, and we need not unduly lengthen this opinion by discussing those cases further.

The judgment is reversed.   The case is remanded for such further proceedings as may be necessary to determine the issue of whether the theatre in question is, in fact, an “adult” theatre within the meaning of the ordinance now involved.

FOOTNOTES

1.   Section 9512, subdivisions (1) and (2) of the code reads in its entirety as follows:“SECTION 9512—Special Regulations—All uses subject to the provisions of this part shall comply with all of the regulations contained in this chapter, and the following regulations:“(1) That prior to establishing or conducting of any adult business, a conditional use permit therefor shall be obtained, pursuant to the provisions of Part 8 of this chapter;  and“(2) That no adult business shall be granted a conditional use permit unless the lot upon which such business is proposed to be located:“(a) Is classified in Zone C–2 or a less restrictive zone;  and“(b) Is not within five hundred (500) feet of any lot classified in any of the R zones;  and“(c) Is not within one thousand (1,000) feet of any lot upon which there is located a church, or educational institution, park or other public facility which is utilized by minors;  and“(d) Is not within one thousand (1,000) feet of any lot on which there is located another adult business;  and“(e) Is not within five hundred (500) feet of any lot upon which is located a business with a type 40, 42, 48 or 61 on-sale alcoholic beverage license.  (Ord. No. 2138, § 2, 2–7–78.)”

2.   The amending Ordinance No. 2254 omitted the phrase “public facility.”

3.   Since Walnut can relocate and other new adult theatres can locate within the city, we do not find the fact that there are presently no other adult theatres in Whittier to be determinative.

KINGSLEY, Associate Justice.

WOODS, P.J., and McCLOSKY, J., concur.