WALNUT PROPERTIES INC v. USSERY

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Court of Appeal, Second District, Division 1, California.

WALNUT PROPERTIES, INC., a California corporation, Plaintiff and Respondent, v. Charles B. USSERY, individually and as Chief of Police of the City of Long Beach; and John A. Vander Lans, individually and as City Prosecutor of the City of Long Beach, Defendants and Appellants.

Nos. CIV. B005781, CIV. B006024.

Decided: February 28, 1986

Robert W. Parkin, City Atty., and Arthur Y. Honda, Sr. Deputy City Atty., for defendants and appellants. Stanley Fleishman, Los Angeles, for plaintiff and respondent.

INTRODUCTION

Defendants Charles B. Ussery and John A. Vander Lans appeal in No. B005781 from a judgment in favor of plaintiff in an action for a permanent injunction and declaratory relief. In No. B006024, they appeal from an order awarding plaintiff's counsel attorneys' fees.

STATEMENT OF FACTS

In previous actions brought by plaintiff, owner of the Lakewood Theatre in the City of Long Beach, against the Long Beach City Council, the constitutionality of a City of Long Beach zoning ordinance was upheld. (Walnut Properties, Inc. v. City Council (1980) 100 Cal.App.3d 1018, 161 Cal.Rptr. 411, hg. den., cert. den. (1980) 449 U.S. 836, 101 S.Ct. 109, 66 L.Ed.2d 42; Walnut Properties, Inc. v. Long Beach City Council (Aug. 16, 1982) 2 Civ. 64124 [unpub. opn.].) The ordinance, Chapter 21.–51 of the Long Beach Municipal Code,1 is substantially the same in its present form as when its constitutionality was upheld. It regulates the location of adult entertainment businesses to limit the adverse effects of these businesses upon adjacent areas and to insure these adverse effects do not contribute to blighting or downgrading of surrounding neighborhoods. It is patterned after the Detroit ordinance upheld in Young v. American Mini Theatres (1976) 427 U .S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310.

On January 26, 1981, the case of Pringle v. City of Covina (1981) 115 Cal.App.3d 151, 171 Cal.Rptr. 251 was decided by Division Three of this court. In that case, the court found an ordinance, with language virtually identical to that in the instant ordinance, to be impermissibly vague. It held the ordinance must be narrowly construed to preserve its validity and could apply only to theaters presenting a preponderance of films which are “adult” films within the meaning of the ordinance.

On June 3, 1981, plaintiff filed the instant action seeking injunctive and declaratory relief to prevent defendants from enforcing the City of Long Beach ordinance against it as long as it did not operate the Lakewood Theatre as an “adult motion picture theater” as that term is defined in Pringle. Plaintiff's theater has two screens and shows both general release and adult films, the former always running longer than the latter.2 A preliminary injunction was issued on July 20, 1981, limiting enforcement of the ordinance as requested by plaintiff.

After a trial in the matter, a judgment in favor of plaintiff was rendered on January 13, 1984, granting declaratory relief and making the injunction permanent. A subsequent order of the court awarded attorneys' fees to plaintiff.

CONTENTIONS

I

Defendants contend Pringle was wrongly decided and should not be followed by this court.

II

Defendants aver the permanent injunction issued by the trial court is invalid in that it contains vague, indefinite and unworkable standards.

III

Defendants contend plaintiff is not entitled to attorneys' fees.

IV

Plaintiff asserts this appeal is frivolous and requests the imposition of sanctions against defendants.

DISCUSSION

I

Defendants contend Pringle was wrongly decided and should not be followed by this court. We agree.

Both the ordinances at issue in Pringle and the instant case define an “adult motion picture theater” as “an enclosed building with a capacity of fifty or more persons used for presenting [adult films].” The court in Pringle found ambiguity in “the ordinance's failure to indicate what proportion of a theatre's programming would constitute ‘use.’ “ (115 Cal.App.3d 151, 161, 171 Cal.Rptr. 251.)

In Pringle, plaintiff theater operators exhibited a variety of films, including occasional X-rated films which would have been considered “adult films” under the later-enacted zoning ordinance. Once the zoning ordinance was enacted, plaintiffs sued for declaratory and injunctive relief, challenging the constitutionality of the ordinance and claiming, inter alia, the term “used” was vague and ambiguous.

The court agreed; it observed: “As was noted by the Supreme Courts of Colorado and Maine: ‘ “The verb ‘use’ or ‘used’ has two meanings recognized by all lexicographers and unconsciously differentiated in common speech: (1) To employ or be employed or occupied. In this sense the word would include a single isolated instance of use. (2) To practice customarily or (in the case of a place or thing) to be the subject of customary practice, employment or occupation.” ‘ (Murphy v. Traynor (1943) 110 Colo. 466 [135 P.2d 230, 232]; State v. Gastonguay (1919) 118 Me. 31 [105 A. 402, 403].)” (115 Cal.App.3d at p. 161, 171 Cal.Rptr. 251.)

The court determined a zoning ordinance could not be construed to prohibit a “single isolated instance of use”; inasmuch as adult films are protected by the First Amendment, they may be subject to reasonable regulation of time, place and manner only where the regulation is necessary to further a substantial governmental interest which is unrelated to the suppression of free expression. (Ibid.) However, a zoning ordinance prohibiting a single exhibition of adult films could not be said to further a substantial governmental interest in preserving the character of the city's neighborhoods, in that the City of Covina could not reasonably have determined a single showing of an adult film would lead to the destruction of the quality of life in the neighborhoods. (Id., at pp. 161–162, 171 Cal.Rptr. 251.) Therefore, such an ordinance could only be an unconstitutional attempt to regulate the content of protected expression under the guise of a zoning ordinance. (Ibid.)

To preserve the constitutionality of the ordinance, the court concluded “used” must be construed to mean “ ‘[t]o practice customarily.’ “ (Id., at p. 162, 171 Cal.Rptr. 251.) “ ‘Customarily,’ “ the court then observed, “means ‘usually, habitually, according to the customs, general practice or usual order of things, regularly.’

(Black's Law Dict. (4th ed.1951) p. 462; italics added.) [¶] Moreover, ‘usually’ is commonly defined as ‘more often than not: most often: as a rule: ORDINARILY.’ (Webster's New Internat. Dict. [ (3d ed.1967) ] p. 2524.) Accordingly,” the court reasoned, “a preponderance of the films shown must have as their dominant theme the depiction of the ordinance's enumerated sexual activities in order for a theatre to be deemed an ‘adult motion picture theatre’ within the ambit of the zoning ordinance.” (115 Cal.App.3d at p. 162, 171 Cal.Rptr. 251. emphasis original, footnote omitted.)

We respectfully disagree with the reasoning which leads to the conclusion a “preponderance” standard must be employed in determining whether a theater is an “adult motion picture theater.” In our view, it is constitutionally permissible to define “use,” for purposes of a zoning ordinance, as “[t]o employ or be employed or occupied,” a definition which includes a single isolated instance of use (id., at p. 161, 171 Cal.Rptr. 251). Such a construction will not render invalid a zoning ordinance designed to disperse adult entertainment businesses within a community. In reaching this conclusion, we rely upon the seminal case in this area of law, Young v. American Mini Theatres, supra, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310.

In Young, Detroit zoning ordinances limited the location of “regulated use” establishments, including adult motion picture theaters; they could not be located within 1,000 feet of any two other “regulated uses” or within 500 feet of a residential area. Respondents were operators of two theaters in Detroit who proposed to exhibit adult films on a regular basis; they challenged the constitutionality of the ordinances. The court responded to the challenges in a three-part decision. Five justices concurred in parts I and II of the opinion, with a plurality of four justices concurring in part III and a fifth concurring in the result.

Part I addresses a First Amendment challenge for vagueness, respondents contending they could not “determine how much of the described [sexual] activity may be permissible [in a film] before the exhibition is ‘characterized by an emphasis' on such matter,” and thus subject to the ordinances. (Id., at p. 58, 96 S.Ct. at p. 2446.) The court refused to consider the validity of this contention, inasmuch as the ordinances were unquestionably applicable to respondents' operations. (At p. 59, 96 S.Ct. at p. 2447.)

The questions of vagueness now before this court and previously before the Pringle Court were not addressed in part I of Young . The challenge there was directed at the content of the films rather than the portion of the theater's programming such films constituted.3

In part II of the opinion, the court deals with a second First Amendment challenge; respondents asserted the ordinances were invalid as prior restraints on free speech, in that theaters not licensed as “adult motion picture theaters” were prohibited from exhibiting films which were protected under the First Amendment—non-obscene adult films. (Id., at p. 62, 96 S.Ct. at p. 2448.) The court first notes there was no claim distributors or exhibitors were being denied access to the market or the viewing public was unable to satisfy its appetite for such films; the market for adult films was unrestrained by the ordinance. (Ibid.)

The court then observes, while adult films may only be shown at theaters licensed therefor, the same is true for all motion pictures—they may only be shown at establishments licensed to exhibit motion pictures. (Ibid.) Likewise, all motion picture theaters are subject to the locational requirements found in the city's zoning laws. (Ibid.)

A reasonable regulation of time, place and manner of protected speech is permitted by the First Amendment where necessary to further significant governmental interests; Detroit's regulation was reasonable and its interests being furthered thereby significant. (Id., at pp. 62–63; 63, fn. 18, 96 S.Ct. at pp. 2448–2449; 2449 fn. 18.) Thus, the court concludes, “apart from the fact that the ordinances treat adult theaters differently from other theaters and the fact that the classification is predicated on the content of material shown in the respective theaters, the regulation of the place where such films may be exhibited does not offend the First Amendment.” (Id., at p. 63, 96 S.Ct. at p. 2448.)

The only question remaining for the court in determining the validity of the ordinances was whether the equal protection clause was offended by the classification predicated on the content of the films. But, assuming no violation of the equal protection clause, the court held constitutional a zoning ordinance which prohibited the showing of even one adult film in a theater not licensed as an “adult motion picture theater.” This is in direct contradiction to the holding in Pringle that a zoning ordinance not based on ordinary, usual or customary practice would violate the First Amendment. (115 Cal.App.3d at pp. 161–162, 171 Cal.Rptr. 251.)

We consider this contradiction to have arisen both through the Pringle court's failure to take into account the nature of zoning ordinances and through its understandable reaction to the egregious conduct set forth in the facts before it. The Covina Cinema had exhibited adult films on occasion; only 7 of 300 films, or about 2.3 percent4 of the theater's programming, were adult films. The city manager wrote a letter to the Covina Cinema expressing concern over the exhibition of “X-rated” films; shortly thereafter, an interim emergency ordinance was adopted prohibiting exhibition of adult films in Covina while zoning regulation of “adult” land use was studied. The zoning ordinance was enacted less than a year later.

The Pringle court reasonably could have inferred the city's intent was to suppress adult films, as evidenced by the letter to the Covina Cinema and the subsequent interim ordinance. The zoning ordinance was merely a ruse by which this intent was given effect. Under these circumstances, the court reasonably concluded the ordinance was a “ ‘misconceived attempt directly to regulate content of expression’ by ‘using the power to zone as a pretext for suppressing expression.’ “ (115 Cal.App.3d at p. 162, 171 Cal.Rptr. 251 quoting from Young v. American Mini Theatres, supra, 427 U.S. at p. 84, 96 S.Ct. at p. 2459 (conc. opn. of Powell, J.).) In response to this egregious conduct, but with an eye toward construing the ordinance to preserve its constitutionality if reasonably possible (Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 305, 138 Cal.Rptr. 53, 562 P.2d 1302), the Pringle court adopted the preponderance standard. (115 Cal.App.3d at pp. 158–162, 171 Cal.Rptr. 251.) However, it does not follow this was the correct response to the City of Covina's action.

A zoning ordinance which has the effect of regulating protected speech is permitted by the First Amendment only where it is a reasonable regulation of the time, place and manner of expression and is necessary to further significant governmental interests. (Young v. American Mini Theatres, supra, 427 U.S. at p. 63, fn. 18, 96 S.Ct. at p. 2449, fn. 18.) Absent proof the ordinance is necessary to further significant governmental interests, the regulation may not be permitted. Thus, in Basiardanes v. City of Galveston (5th Cir.1982) 682 F.2d 1203, the constitutionality of a zoning ordinance restricting the location of adult theaters could not be sustained upon the court's finding the city had not met its burden of showing the ordinance “responds to the adverse effects of adult theaters rather than to a perceived unpleasantness in having an adult theater downtown.” (At p. 1216.) So too, in Pringle, if the city could not meet its burden of showing the ordinance at issue was a necessary measure to further significant governmental interests rather than an attempt to prevent exhibition of “X-rated” films within the city, the constitutionality of the ordinance simply could not be upheld.

Assuming the city met its burden, it was not necessary to adopt the preponderance standard to uphold the ordinance's constitutionality as a zoning measure. What the Pringle court failed to recognize was that zoning ordinances, by their very nature, prohibit entirely certain land uses and permit others for the purpose of maintaining the character of the affected neighborhoods.

While a single, isolated instance of a particular use might not affect the quality of life in a neighborhood, a number of isolated instances of that use, by one or more persons, could well have an undesirable effect. The only way to prevent this result is to prohibit that particular use entirely. Consider, for example, a zoning ordinance prohibiting trash burning in a residential neighborhood. One homeowner burning leaves in his yard on Saturday afternoon might not have an adverse effect on the neighborhood. But if many other homeowners in the neighborhood decide to burn their trash in their yards the same afternoon, the neighborhood may very well suffer. In order to prevent the ill effects of a number of single instances of a particular use, each individual instance of that use must be prevented, even though an isolated instance of use may not have the adverse effect the zoning ordinance is designed to eliminate.

This rationale applies as well to zoning ordinances affecting the location of theaters exhibiting adult films. While one theater in a neighborhood, showing adult films on one occasion, might not affect the quality of life in that neighborhood, a number of theaters doing the same thing might well create undesirable consequences for the neighborhood. The only way to prevent these consequences through a zoning ordinance is to prohibit entirely the undesirable use—the exhibition of adult films—in those areas or neighborhoods where the use could result in the undesirable consequences the ordinance seeks to avoid.

Another vice of the Pringle preponderance standard is that a theater could regularly show adult films, just skirting the limits of doing so more often than not, yet avoid coming within the ordinance. Ineluctably, such a theater would press upon a neighborhood deleterious effects akin to those associated with theaters exclusively exhibiting adult films.

We also note the difficulty of enforcing a preponderance standard. The preponderance might be measured in terms of the number of films shown or their running times; it might be measured on a daily, weekly or monthly basis. The difficulty of enforcement was illustrated at the hearing in the instant case: the prosecutor suggested the requested injunction be drafted to prohibit police from making any arrests as long as the theater did not show adult movies more than three days a week; the court termed this request “silly.” Counsel for plaintiff then argued a preponderance was “more than 50 percent”; the court asked if that meant “out of every 60 minutes 31 minutes is Popeye and 29 is hard core porn.” No consensus as to how the injunction would be enforced was reached. The difficulty of enforcement also may be magnified where, as here, a theater with multiple screens is involved. Does the standard apply to each screen individually or to all together?

However a preponderance is defined for purposes of enforcement, a theater might regularly exhibit adult films without running afoul of the ordinance; adult films might be shown every weekend while general release films are shown during the week, or a small number of full-length adult films might be shown with a large number of general release short subjects. There are innumerable ways to avoid the preponderance standard while customarily exhibiting adult films. In short, the preponderance standard is unenforceable in a manner consistent with the goals justifying the adoption of the ordinance as a zoning measure, sacrificing those goals to semantic expediency.

Having concluded a zoning ordinance which prohibits a single isolated showing of an adult motion picture in a theater not zoned as an adult motion picture theater does not violate First Amendment protections of free speech, we return to the opinion in Young to determine whether the equal protection clause is offended by the zoning classification predicated on the content of the motion pictures shown. In part III of the opinion, the plurality acknowledges the rule that regulation of speech or expression may not be based on content. It then observes, however, many cases contain a statement of broad principle which, “read literally and without regard for the facts of the case in which it was made, would absolutely preclude any regulation of expressive activity predicated in whole or in part on the content of the communication. But [the court] learned long ago that broad statements of principle, no matter how correct in the context in which they are made, are sometimes qualified by contrary decisions before the absolute limit of the stated principle is reached.” (427 U.S. at p. 65, 96 S.Ct. at p. 2450.)

There are a number of ways in which regulation of expressive activity is predicated upon its content. The question whether or not speech is protected may depend upon its content; for example, an epithet may be protected while “fighting words” are not. (Id., at p. 66, 96 S.Ct. at p. 2450.)

The extent of the protection afforded speech also may be dependent upon its content. This is true of commercial speech, which may receive less protection when it is merely a proposal for a commercial transaction, and more when it contains ideological communication. (Id., at pp. 68–69, 96 S.Ct. at pp. 2451–2452; Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748; 771–772, fn. 24; 779, 96 S.Ct. 1817; 1830–1831, fn. 24; 1834 (conc. opn. of Stewart, J.).)

So too, the content of sexually oriented expression may serve as the basis of regulation inapplicable to other types of speech. For example, its distribution to minors and unconsenting adults may be prohibited. (Young v. American Mini Theatres, supra, 427 U.S. at pp. 69–70, 96 S.Ct. at pp. 2452.)

After examining different ways in which speech may be regulated on the basis of its content, the plurality holds “the State may legitimately use the content of [adult films] as the basis for placing them in a different classification from other motion pictures,” so long as the classification is justified by the governmental interest in preserving the character of its neighborhoods. (Id., at pp. 70–71, 96 S.Ct. at pp. 2452–2453.) Hence, under Young, there is no violation of either the First Amendment or the equal protection clause of the Fourteenth Amendment by a zoning ordinance which places a limitation on the locations where adult films may be exhibited, prohibiting their exhibition in certain areas while permitting it in others.

While the Supreme Court did not specifically address the question whether an occasional or isolated showing of an adult film at a theater not licensed as an adult motion picture theater would violate the zoning ordinance, its opinion suggests this would be the case. The court repeatedly characterizes the ordinance as one which limits the places or theaters in which adult films may be shown. (Id., at pp. 62–63, 71, 96 S.Ct. at pp. 2448–2449, 2452.) It logically may be inferred the court envisioned a situation in which the exhibition of adult films was prohibited in certain theaters and permitted in others. The Supreme Court found no First Amendment or equal protection violation in that situation; neither can we find such a violation.5

The only caveat when dealing with this type of zoning ordinance, as mentioned in Young and further developed in later cases, is that the ordinance must not have the effect of preventing access to the market for adult films, either by exhibitors or viewers. Where an ordinance purportedly regulating the time, place or manner of protected speech has the effect of prohibiting or severely limiting the availability of that speech, the regulation will not be upheld. (Schad v. Mount Ephraim (1981) 452 U.S. 61, 101 S.Ct. 2176, 68 L .Ed.2d 671.) Thus, in Basiardanes v. City of Galveston, supra, 682 F.2d 1203, a zoning ordinance restricting the location of adult theaters was held to be unconstitutional where the ordinance rendered it all but impossible for a proprietor to open an adult theater or patrons to attend such a theater. The City of Long Beach zoning ordinance at issue here does not impermissibly restrict or eliminate access to adult films or theaters. (Walnut Properties, Inc. v. City Council, supra, 100 Cal.App.3d 1018, 1023, 161 Cal.Rptr. 411.)

We are aware of the fact Pringle has been followed in several recent cases: Kuhns v. Board of Supervisors (1982) 128 Cal.App.3d 369, 181 Cal.Rptr. 1 (Fourth District, Division One); Strand Property Corp. v. Municipal Court (1983) 148 Cal.App.3d 882, 200 Cal.Rptr. 47 (Fourth District, Division One, hg. den.); City of Whittier v. Walnut Properties, Inc. (1983) 149 Cal.App.3d 633, 197 Cal.Rptr. 127 (Second District, Division Four). Regrettably, none of these decisions examined the analysis behind the holding in Pringle and concluded the holding was constitutionally mandated; all merely relied upon the Pringle court's conclusions. Accordingly, we respectfully conclude they are no more persuasive than Pringle.

The judgment is reversed.6

APPENDIX

LONG BEACH MUNICIPAL CODE CHAPTER 21.51SECTION 21.51.010 PURPOSE.

The city council finds that adult entertainment businesses, because of their very nature, are recognized as having objectionable operational characteristics, particularly when several of them are concentrated under certain circumstances, thereby having a deleterious effect upon the adjacent areas. Special locational regulation of these businesses is necessary to insure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhoods. The primary purpose of the regulation is to prevent the concentration or clustering of these businesses in any one area. This chapter shall be deemed a reenactment of the preexisting ordinance on this subject matter. (Ord. C–5487 § 1 (part), 1979: prior code § 9120.–17(a)).

SECTION 21.51.020 DEFINITIONS.

A. For purposes of this chapter, the adult entertainment businesses are defined as follows:

2. “Adult motion picture theater” means an enclosed building with a capacity of fifty or more persons used for presenting material distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons therein.

B. For purposes of this chapter, “specified sexual activities” shall include the following:

1. Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral anal copulation, bestiality, direct physical stimulation of unclothed genitals, flagellation or torture in the context of sexual relationship, or the use of excretory functions in the context of a sexual relationship, and any of the following depicted sexually oriented acts or conduct: analingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerasty; or

2. Clearly depicted human genitals in a state of sexual stimulation, arousal or tumescence; or

3. Use of human or animal masturbation, sodomy, oral copulation, coitus, ejactulation; or

4. Fondling or touching of nude human genitals, pubic region, buttocks or female breast; or

5. Masochism, erotic or sexually oriented torture, beating or the infliction of pain; or

6. Erotic or lewd touching, fondling or other contact with an animal by a human being; or

7. Human excretion, urination, menstruation, vaginal or anal irrigation.

C. For purposes of this chapter, “specified anatomical areas” shall include the following:

1. Less than completely and opaquely covered human genitals, pubic region, buttock, and female breast below a point immediately above the top of the areola; and

2. Human male genitals in a discernibly turgid state, even if completely and opaquely covered. (Ord. C–5487 § 1 (part), 1979: prior code § 9120.17(b)).

SECTION 21.51.030 LOCATION RESTRICTED.

A. In those land use districts where the adult entertainment businesses regulated by this chapter would otherwise be permitted uses, it shall be unlawful to establish any such adult entertainment business if the location is:

1. Within five hundred feet of any area zoned for residential use;

2. Within one thousand feet of any other adult entertainment business; or

3. Within one thousand feet of any public or private school, park, playground, public building, church, any noncommercial establishment operated by a bona fide religious organization, or any establishment likely to be used by minors.

B. The establishment of any adult entertainment business shall include the opening of such a business as a new business, the relocation of the business, or the conversion of an existing business location to any adult entertainment business use. (Ord. C–5487 § 1 (part), 1979: prior code § 9120.17(c)).

SECTION 21.51.040 VARIANCE.

A. Any property owner or his authorized agent may apply for relief from the locational provisions of this chapter by applying for a standards variance as provided in this title. To grant such a request the following additional findings must be made:

1. That the proposed use will not be contrary to the public interest or injurious to nearby properties and that the spirit and intent of this chapter will be observed;

2. That the proposed use will not enlarge or encourage the development of a skid row area;

3. That the establishment of an additional regulated use in the area will not be contrary to any program of neighborhood conservation nor will it interfere with any program of urban renewal; and

4. That all applicable regulations of the municipal code will be observed.

B. The procedure for this hearing shall be the same as that provided for a standards variance in this title. (Ord. C–5487 § 1 (part), 1979: prior code § 9120.17(d)).

FOOTNOTES

1.  Pertinent sections of the Long Beach Municipal Code are included in the appendix to this opinion.

2.  This information is found in an unpublished opinion of the appellate department of the superior court arising out of a prosecution of plaintiff for exhibiting adult films (People v. Walnut Properties, Inc. (Super.L.A.Co., No. CR A21481–A21484), of which plaintiff requests we take judicial notice. We may judicially notice the statement of facts in an appellate opinion. (Weiner v. Mitchell, Silberberg & Knupp (1980) 114 Cal.App.3d 39, 46, 170 Cal .Rptr. 533.)

3.  The challenge raised in Young also was addressed in Pringle; it is not, however, an issue in the instant case.

4.  Although Pringle states this figure is “about 5 percent” (115 Cal.App.3d at p. 153, fn. 1, 171 Cal.Rptr. 251), that calculation is incorrect.

5.  We note the United States Supreme Court just upheld the constitutionality of zoning ordinances which place locational requirements on adult motion picture theaters. (Renton v. Playtime Theaters, Inc. (1986) 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 .) Although the ordinances in that case defined use as “a continuing course of conduct of exhibiting” adult films (see Playtime Theaters, Inc. v. City of Renton (9th Cir.1984) 748 F.2d 527, 529, fn. 1), we have no indication this definition was crucial to the Supreme Court's decision. The court below specifically declined to express a view as to the constitutionality of the ordinance's definition of “adult motion picture theater” as “an enclosed building used for presenting” adult films. (Id., at pp. 529, fn. 1; 530, fn. 2, emphasis added.) In any event, as discussed at pages 14 and 15 ante, “a continuing course of conduct” might be far less than conduct for a preponderance of the time.

6.  We need not address the remaining contentions placed before us. Our conclusion Pringle was wrongly decided mandates the setting aside of the permanent injunction. Moreover, in view of our reversal on appeal, plaintiff is no longer a prevailing party who may be entitled to attorneys' fees, and this appeal cannot be considered frivolous.

SPENCER, Presiding Justice.

L. THAXTON HANSON and LUCAS, JJ., concur.