Diamond v. City of Taft, CV-F 95-5774 AWI DLB.

Citation29 F.Supp.2d 633
Decision Date30 October 1998
Docket NumberNo. CV-F 95-5774 AWI DLB.,CV-F 95-5774 AWI DLB.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
PartiesSteven A. DIAMOND, Plaintiff, v. CITY OF TAFT, Defendant.

Roger Jon Diamond, Santa Monica, CA, for Plaintiff.

John D. Gibson, Gibson & Gibson, Bakersfield, CA, for Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

ISHII, District Judge.

In this action, the prospective owner of an adult bookstore challenges the constitutionality of a city zoning ordinance restricting locations in which sexually-oriented businesses may operate. Plaintiff Steven Diamond ("Diamond") contends that the ordinance denies him the opportunity to engage in protected First Amendment activity within the City of Taft ("the City"). He seeks a permanent injunction against enforcement of the ordinance as well as monetary relief.

The court has jurisdiction over this case under 28 U.S.C. § 1331.

The case was tried by the court, sitting without a jury, from January 14, 1998, through January 15, 1998. Closing arguments were heard on February 10, 1998. Roger J. Diamond, Esq., represented plaintiff and presented the testimony of Steven Pleasant ("Pleasant"), an expert witness, and plaintiff Steven Diamond. The City was represented by John D. Gibson, Esq. Expert witness Lloyd Zola ("Zola") testified on behalf of the City.

The court has considered the testimony and examined the exhibits, trial briefs and post-trial briefs offered by the parties, and now submits its Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

Uncontested Facts (See Pretrial Order, 2:3-5:5; Pl. Trial Br., 1:27-28.)

1. On or about December 2, 1986, the City of Taft, through its city council, adopted Ordinance 524, entitled, "Adult Entertainment Businesses," and codified as Chapter 25 of Title VI of the Taft Municipal Code. The stated purpose of Ordinance 524 was to "prevent the deleterious effects of adult entertainment businesses upon the community by insuring proper location of adult entertainment businesses through the zoning process." Chapter 25 of Title VI allowed the adult entertainment businesses to be located in zones designated as Commercial-1 (C1), Commercial-2 (C2), Manufacturing-1 (M1) or Manufacturing-2 (M2) and prohibited the location of adult entertainment businesses within 1000 feet of residential property, any other adult entertainment business, any public or duly licensed private school or college, or within 500 feet of any park or public playground, public library, church or other religious facility.

2. On or about November 17, 1992, the City amended Chapter 25, Title VI of the Taft Municipal Code regulating adult entertainment businesses.

3. In late 1994, the City embarked on a comprehensive zoning update project which included the analysis and categorization of all zoning and planning including, but not limited to, all chapters of Title VI ("Planning and Zoning") of the Taft Municipal Code. The comprehensive zoning update project concerning the residential zoning aspects was completed in January 1995. The comprehensive zoning update project then proceeded to the analysis of industrial (manufacturing) zoning which, in part, includes adult entertainment businesses.

4. On March 7, 1995, the City enacted an urgency ordinance, Ordinance No. 6595, adopting a new Chapter 25, Title VI, of the Taft Municipal Code concerning adult entertainment businesses. The amended Chapter 25 of Title VI of the Taft Municipal Code addressed the adult entertainment business zoning issues in greater detail than its predecessor.

5. As a result of other codification changes in Title VI of the Taft Municipal Code, the City changed the adult entertainment business ordinance from Chapter 25 of Title VI to Chapter 31 of Title VI.

6. On or about March 28, 1995, in order to ensure the continuity of the zoning and planning ordinances, the Taft Planning Commission held public hearing and review of the ordinances. The Commission received no inquiries or correspondence at their hearing and review, and there were no persons at the hearing who wished to speak for or against the proposed ordinances. The Planning Commission then moved to recommend that the City Council adopt the ordinance. On or about April 4, 1995, the City Council adopted Ordinance No. 62795 adopting a new Chapter 31 of Title VI of the Taft Municipal Code concerning adult entertainment business.

7. The zoning ordinance now applicable to Diamond in this caseChapter 31, Title VI, Taft Municipal Code — provides that "adult entertainment businesses" are permissible only in zones designated C-1, C-2, M-1, and M-2, and may not be located within 1000 feet of any area zoned for residential use, any other adult entertainment business, any public or private school, park, playground, public building, church, any commercial establishment operated by a bona fide religious organization, or any establishment "likely to be used by minors." Furthermore, a conditional use permit ("CUP") must be approved by the City Council for any prospective adult entertainment business location which conforms to the zoning and distance requirements. See Taft, CA, Code §§ 6-31-3, 6-31-4. There is no dispute that Diamond's proposed use constitutes an "adult entertainment business" within the meaning of the ordinance.

8. Despite the zoning prohibitions, Diamond requested and filed for a conditional use permit to use the property located at 419, 421, and 423 Center Street, Taft as an adult entertainment business. On or about May 23, 1995, a properly noticed and publicized public hearing was held by the Planning Commission with respect to Conditional Use Permit # 57 sought by Diamond. At this hearing no proponents appeared and it was found that the proposed adult entertainment business property was located within 1000 feet of parks, churches and residential uses. It was additionally found that the proposed project may, or would, have some deleterious effects on the surrounding business community, parks, churches and residences. Based on these findings, and others, the Taft Planning Commission denied Diamond a conditional use permit.

9. Diamond's appeal of the denial of the CUP was rejected by the Taft City Council.

Factual Contentions of the Parties

10. Diamond contends that the Taft ordinance does not allow a reasonable number of suitable locations within Taft for the operation of his business. Pleasant testified at trial that all the proposed sites within the city are either definitionally unavailable under the ordinance or outside the relevant real estate market. In addition, Diamond asserts that the CUP requirement which applies to all prospective adult business locations disqualifies each proposed site as a reasonable alternative location.

11. At trial, the City claimed that there were twenty reasonable alternative locations for an adult business. Zola testified to the availability and suitability of these sites.

12. The parties submitted photographs and detailed maps of the City of Taft and the proposed sites.

Prefatory Facts

13. Taft is a rural town, approximately 16 square miles in size. The population within the city limits is approximately 6800 and the population both within Taft and in the area immediately surrounding it is approximately 13,000. The developed area of the city covers approximately two square miles, or 1200 acres. It is possible to travel from one end of the developed area of the city to the other in a matter of minutes.

14. A K-Mart store is located just outside the southeast corner of the developed area of Taft, near Gardner Field Road and State Highway 33. K-Mart is a major commercial center in Taft, which is frequently used by minors. Diamond presented undisputed evidence that K-Mart sells merchandise for children and adolescents and caters to a clientele of all ages. It contains "a large toy store, ... a large clothing area for minors, ... a food area, [and] ... coin operated play apparatus." Reporter's Transcript of Proceedings, 392:13-23 [hereinafter RT]. Evidence was presented indicating that even during the morning hours of a school day, minors congregate in the vicinity of the store. See RT, 393:4-7.

15. Based on the limited evidence presented, the court finds that no adult entertainment business currently operates in Taft and no prospective adult entertainment business, other than Diamond's, has ever applied for a permit to operate in Taft.

The Proposed Sites

16. Sites # 1-6:1 1555 and 1589 Kern Street;2 1537 Kern Street; 1515 Kern Street; APN 32-600-14 (no address); 1410 Kern Street; 1310 Kern Street

Sites # 1 — 6 are all situated in close proximity to one another along Kern Street and are all within the same general area of the northwest corner of Taft, just inside the city limits. These sites are located in a manufacturing zone (M-2) and are accessible to the public via Kern Street, which forms part of State Highway 33 and connects other areas of Kern County to the center of Taft along one continuous, paved roadway. Although the sites are not within the population center of Taft, they are still reasonably accessible to the public given the small size and compactness of the developed area of the city.

All six sites meet the infrastructure needs of a commercial establishment in Taft. They are serviced by a main road, and power and water are available. While sewage disposal is handled by septic tanks rather than sewers, there is no reason to believe this method of disposal is inadequate. Sidewalks and street lights are not present in the vicinity of the site. However, given the rural nature of this outlying area of Taft, sidewalks are not as essential for convenience or safety as they might be in the downtown area of the city. Public lighting is also not essential since it can be presumed, especially with respect to stand-alone buildings as are present in this area, that lighting for the property will be provided by either the landlord or the tenant of...

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