Isbell v. City of San Diego

• Decision Date: 15 November 2000
• Docket Number: DEFENDANT-APPELLEE,PLAINTIFFS-APPELLANTS,No. 99-55591,99-55591
• Citation: 258 F.3d 1108
• Parties: (9th Cir. 2001) GEORGE ISBELL, JR.; GAND B EMPORIA INCORPORATED, DBA ADULT EMPORIUM NO. 1,, v. CITY OF SAN DIEGO, A MUNICIPAL CORPORATION,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1108

258 F.3d 1108 (9th Cir. 2001)

GEORGE ISBELL, JR.; GAND B EMPORIA INCORPORATED, DBA ADULT EMPORIUM NO. 1, PLAINTIFFS-APPELLANTS, v. CITY OF SAN DIEGO, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.

No. 99-55591

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted November 15, 2000--Pasadena, California

Filed July 31, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Counsel John B. Barriage, San Diego, California, for the plaintiffs-appellants.

Carra L. Lassman, Deputy City Attorney, San Diego, California, for the defendant-appellee.

D.C. No. CV-98-00688-IEG/JFS Appeal from the United States District Court for the Southern District of California Irma E. Gonzalez, District Judge, Presiding

Before: William C. Canby, Jr., M. Margaret McKeown, and Richard A. Paez, Circuit Judges.

Canby, Circuit Judge

OPINION

This case presents a constitutional challenge to the City of San Diego's adult entertainment zoning ordinance. The appellant, George Isbell, Jr., contends that the City's ordinance violates the First Amendment and the Equal Protection Clause by preventing him from operating an adult entertainment business.¹ The district court granted summary judgment for the City on all claims.

We affirm the award of summary judgment to the City on two of Isbell's claims. We reverse, however, the summary judgment for the City on one of Isbell's First Amendment claims. We conclude that the City has not adduced sufficient evidence to establish that there are "reasonable alternative avenues of communication" in San Diego, and the City accordingly is not entitled to summary judgment on that claim. City of Renton v. Playtime Theatres, Inc. , 475 U.S. 41, 50 (1986).

BACKGROUND

In 1997, Isbell purchased a building in San Diego with the intention of opening an adult entertainment establishment there. Because this building was located within 1000 feet of a residential area, however, a San Diego zoning ordinance precluded him from operating there. See San Diego Mun. Code. §§ 101.1810. Isbell applied for a variance, but was unsuccessful. He then filed this action, arguing that the City's ordinance violates the First Amendment, and that its standards for variances violate the Equal Protection Clause. The district court awarded summary judgment to the City on all claims.

DISCUSSION

We review de novo the district court's award of summary judgment. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). For purposes of summary judgment, we must consider the evidence in the light most favorable to Isbell, the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).

I. First Amendment Challenge Reasonable Alternatives.

The San Diego ordinance in issue is designed to separate adult entertainment establishments from each other and from several other types of uses. It provides, in pertinent part:

No person shall cause or permit the establishment, enlargement or transfer of ownership or control of any adult establishment if such establishment is within 1000 feet of another such business, 1000 feet of any residential zone, or within 1000 feet of any church, school, public park or social welfare institution within the City of San Diego.

San Diego Mun. Code §§ 101.1810. This "separation" approach was initially upheld by the Supreme Court in Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976), (plurality opinion) and we have subsequently addressed ordinances identical or similar to the San Diego ordinance. See, e.g., Walnut Properties, Inc. v. City of Whittier, 861 F.2d 1102 (9th Cir. 1988); Diamond v. City of Taft, 215 F.3d 1052 (9th Cir. 2000); Lim v. City of Long Beach, 217 F.3d 1050 (9th Cir. 2000).

Dispersal ordinances of this type that are aimed at controlling the secondary effects of adult establishments are constitutional if they are "designed to serve a substantial governmental interest and allow[ ] for reasonable alternative avenues of communication." See City of Renton , 475 U.S. at 50. Isbell does not dispute that San Diego's ordinance generally is designed to serve a substantial governmental interest; he argues only that it does not offer reasonable alternative avenues. That claim can be addressed only by analyzing the effect of the ordinance under the actual conditions prevailing in the City. See id. at 53. The burden of persuasion is on the City to demonstrate that its ordinance provides reasonable alternative avenues of communication. See Lim , 217 F.3d at 1054.²

To decide whether constitutionally sufficient alternatives exist, we first have to determine how many alternative sites are available, see Walnut Properties, 861 F.2d at 1108, and then determine whether that number is sufficient to afford adult establishments a reasonable opportunity to locate, see Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524, 1532-33 (9th Cir. 1993).

(a) The number of alternative sites available.

For sites to be available, they must be in the "actual business real estate market." Lim, 217 F.3d at 1055.³ Here, the City presented a list of 110 parcels, constituting approximately 92 acres, that it asserted were available for adult entertainment establishments.⁴ Isbell examined these sites and asserted that only 3 were actually available. Isbell's figure, however, is flawed. He contends, for example, that parcels occupied by such businesses as car dealerships or plumbing supply outlets could not be part of the relevant business real estate market because they were not economically suited for his business. But "it is not relevant whether a .. . site will result in lost profits, higher overhead costs, or even prove to be commercially infeasible for an adult business. The issue is whether any site is part of an actual market for commercial enterprises generally." Topanga Press, 989 F.2d at 1531. Isbell also excluded sites occupied by existing adult entertainment businesses and other sites under lease. Although a long-term lease may exclude a site from the commercial market, see Lim, 217 F.3d at 1055, Isbell did not take the length of leases into consideration, thereby disregarding the fact that those sites could be potentially available. He also excluded vacant lots from his tally of available sites. Isbell's survey accordingly cannot be relied upon, and we reject his contention that 107 of the 110 sites offered by the City were outside the commercial real estate market.⁵

The City's list of 110 sites is subject, however, to a different and fatal flaw. It ignored the separation requirement of 1000 feet between adult establishments. In determining the number of sites available for adult businesses, that requirement must be taken into account. See Walnut Properties, 861 F.2d at 1108. There is no question that, when this separation requirement is taken into account, far fewer than 110 adult businesses could operate at the City-identified sites; indeed, the City conceded that point at oral argument. Because the separation requirement was not taken into account, the record provides no means of determining just how many of the 110 sites are actually available.

It is not appropriate in this case to regard Isbell in isolation, and conclude that he, acting alone, could locate his establishment at any of the 110 spots that is not within 1000 feet of an existing adult business. It is true that in Diamond, 215 F.3d at 1052, we considered the plaintiff alone and concluded that all seven sites identified by the city were available to him, even though seven adult businesses could not operate simultaneously on those sites because of a separation requirement. But Diamond was a special case: Diamond was the first person even to seek to open an adult business in the City of Taft. See id. at 1057-58. In Lim, decided the same day as Diamond, we reviewed a decision in which the district court had determined that, on the 115 sites identified by the City, only 27 or 28 adult businesses could coexist. Although we reversed in part and remanded on another ground, we did not reject the district court's application of the separation requirement to determine how many sites were actually available to adult businesses considered collectively. In so doing, we followed the procedure we originally adopted in Walnut Properties of considering the number of sites available to all adult businesses simultaneously when the separation requirement is taken into account. See Walnut Properties, 861 F.2d at 1108.

Because the City of San Diego did not account for separation in offering its list of 110 sites, and the record does not show what the effect of the separation requirement would be on those sites, we cannot accept 110 as the number of available sites for the purposes of this summary judgment. The greatest number of available sites that the record supports is therefore 45--the approximate number of existing adult businesses in San Diego.

(b) Sufficiency of available sites. On this record, we cannot conclude that 45 sites suffices to establish "reasonable alternative avenues of communication" within the meaning of City of Renton, 475 U.S. at 50. In the first place, the City here has offered no evidence of total demand, which we have held to be an important factor to be compared with supply in determining the adequacy of alternative avenues of expression. See Young v. City of Simi Valley, 216 F.3d 807, 822 (9th Cir. 2000). This is not to say that San Diego's ordinance will be automatically constitutional if demand does not exceed the supply of sites, because such a conclusion "is insufficient to account for the chilling effect that an adult use zoning ordinance may have on prospective business owners." Id. As Young explained:

[S]upply and demand should be only one of several factors that a court considers . . . . A court should also look to a variety of other factors including, but not limited to, the percentage of available acreage theoretically available...