3570 East Foothill Blvd., Inc. v. City of Pasadena

• Decision Date: 02 January 1996
• Docket Number: No. CV 95-5592 ABC (RMRx).,CV 95-5592 ABC (RMRx).
• Citation: 912 F. Supp. 1268
• Court: U.S. District Court — Central District of California
• Parties: 3570 EAST FOOTHILL BLVD., INC., a California corporation, Plaintiff, v. CITY OF PASADENA, a municipal corporation, Defendant.

912 F. Supp. 1268

3570 EAST FOOTHILL BLVD., INC., a California corporation, Plaintiff, v. CITY OF PASADENA, a municipal corporation, Defendant.

No. CV 95-5592 ABC (RMRx).

United States District Court, C.D. California.

January 2, 1996.

COPYRIGHT MATERIAL OMITTED

John H. Weston, Robert A. Sarno, Melanie D. Long, Weston & Sarno, Beverly Hills, CA, for plaintiff.

Cristina L. Talley, Pasadena City Attorney, Pasadena, CA, Benjamin Samuel Kaufman, Deborah J. Fox, Dawn Renae Andrews, Freilich Kaufman Fox & Sohagi, Los Angeles, CA, for defendant.

AMENDED OPINION ORDER RE: CONSTITUTIONALITY OF CONDITIONAL USE PERMIT AND LIVE ENTERTAINMENT PERMIT ORDINANCES; PERMANENT INJUNCTION

COLLINS, District Judge.

The trial on the merits of Plaintiff's facial constitutional challenges to Defendant City's conditional use permit and live entertainment permit ordinances took place before this Court on November 17, 1995. After reviewing the evidence and materials submitted by the parties, argument of counsel, and the case file, the Court concludes that the City of Pasadena's conditional use permit and live entertainment permit ordinances violate the First Amendment, as applied to the States through the Fourteenth Amendment, and are therefore unconstitutional. Accordingly, the Court hereby ORDERS that the City of Pasadena is hereby permanently enjoined from enforcing the conditional use permit and live entertainment ordinances as against expressive activities protected by the First Amendment.

I. Factual and Procedural Background

The Plaintiff in this case, 3570 EAST FOOTHILL Blvd., INC. is a California corporation that owns the "Red Hot Theatre/Cafe," a restaurant/lounge/bar in the Defendant CITY OF PASADENA. Plaintiff corporation has operated the "Red Hot Theatre/Cafe" since May 9, 1995. The President of the Plaintiff corporation is Michael Kaltenthlar, who has successfully owned or operated several restaurant or entertainment businesses in several states. Currently, Plaintiff has a conditional use permit that allows for the sale of alcohol and the provision of arcade games, billiards, and shuffleboard as part of a restaurant use. See James Decl., Exhibit D. In addition, Plaintiff has a live entertainment permit that allows "live performances by comedians, magicians and musical acts and dancing by patrons." Id. Plaintiff's permits were approved by the City in November 1994 after much debate and public comment. James Decl. ¶ 14.

Plaintiff now wants to add to the "live entertainment" provided at the "Red Hot Theatre/Cafe." First, Plaintiff would like to "change the character of the live entertainment presented by the business to add theatrical entertainment in the form of expressive erotic dancing by bikini-clad performers instead of, and in addition to, the current entertainment." Kaltenthlar Decl. ¶ 4. In addition, Plaintiff wants to change the "Red Hot Theatre/Cafe" business to include not only "bikini dancing," but also "expressive entertainment in the form of theatrical live dance performances by dancers who, for a portion of their dance performance would appear either wearing only what is commonly known as `pasties' and a `G-string,' . . . or dancing topless but wearing bottoms sufficient to entirely cover their private parts, though not the entirety of their buttocks." Kaltenthlar Decl. ¶ 6.

The City asserts that the "Red Hot Theatre/Cafe" is located in an Industrial General ("IG") zone.¹ In an IG zone, Plaintiff is conditionally allowed to offer the first change in entertainment, "bikini dancing." However, under Pasadena's zoning ordinances, Plaintiff must apply for a new conditional use permit and a new live entertainment permit before changing the character of the entertainment provided at its business. See Pasadena Municipal Code ("P.M.C.") § 17.64.120.C; see also James Decl., Exhibit D, at p. 135 ("Any change deemed significant by the Zoning Administrator in the live entertainment ... requires a new conditional use permit."). According to Plaintiff, City officials have warned him that he would be "vulnerable to arrest and prosecution for violating the Conditional Use Permit and live entertainment permit provisions" if he were to begin showing "bikini dancing" without first obtaining permits. Kaltenthlar Decl. ¶ 4.

Plaintiff has not applied for a new conditional use permit or a live entertainment permit. The President of Plaintiff corporation, Michael Kaltenthlar, states that City officials have informed him that such permit applications would be denied because Plaintiff's proposed entertainment would not be "consistent with the type of entertainment that should be permitted in that area." See Kaltenthlar Decl. ¶ 4. In addition, Plaintiff also asserts that the permitting ordinances themselves are facially unconstitutional because they constitute prior restraints in violation of the First Amendment, as applied to the States through the Fourteenth Amendment. Plaintiff argues that the conditional use permit provisions unconstitutionally confer excessive substantive discretion on the permitting officials. In addition, Plaintiff challenges both the conditional use permit and live entertainment permit ordinances as procedurally defective.

On August 21, 1995, Plaintiff filed a Complaint against the City, under 42 U.S.C. § 1983, seeking a declaratory judgment that Pasadena's permitting ordinances are unconstitutional on their face.² In addition to a declaratory judgment, Plaintiff seeks injunctive relief, damages, costs, and attorney's fees under 42 U.S.C. § 1988. On October 17, 1995, Plaintiff filed a First Amended Complaint on the same grounds, seeking similar relief. Also on October 17, 1995, Plaintiff applied for a temporary restraining order ("TRO") to enjoin the enforcement of Pasadena's conditional use permit and live entertainment permit ordinances. On October 26, 1995, the Court granted Plaintiff's TRO, thus enjoining the enforcement of the City's permitting ordinances. The TRO effectively allowed Plaintiff to begin offering "bikini dancing" at the restaurant without the necessity of applying for additional permits.³ According to Plaintiff's President's testimony at trial, Plaintiff is in fact currently offering "bikini dancing."

In its October 26, 1995 Order, the Court consolidated the trial on the merits of Plaintiff's challenge to the permitting ordinances with the hearing on Plaintiff's application for an Order preliminarily enjoining Pasadena's adult business zoning scheme.⁴ This Order constitutes the Court's findings and judgment on the constitutionality of the conditional use permit and live entertainment permit ordinances.

II. Discussion

The trial on the merits of Plaintiff's facial constitutional challenges to Pasadena's conditional use permit and live entertainment permit ordinances took place on November 17, 1995. Plaintiff seeks an Order declaring that the City's conditional use permit and live entertainment ordinances are facially unconstitutional prior restraints. In addition, Plaintiff seeks an Order permanently enjoining the enforcement of the permitting ordinances on the ground that they are unconstitutional prior restraints on speech. The Court will address these issues in turn.

A. Constitutionality

As discussed above, Plaintiff owns a building and operates a restaurant known as the "Red Hot Theatre/Cafe." The restaurant has been zoned in an IG zone, where live entertainment is a conditionally permitted use. As discussed above, Plaintiff currently possesses a live entertainment permit and conditional use permit for its present use, as a restaurant with alcoholic beverage service which presents theatrical entertainment performances (e.g. magicians, comedians, etc.). However, Plaintiff now wants to offer "bikini dancing" (as well as, ultimately, semi-nude dancing).⁵ Under Pasadena Municipal Code § 12.64.120, "if another type of entertainment is proposed, a new conditional use permit must be obtained." Therefore, Plaintiff must obtain a new conditional use permit and a new entertainment permit before changing the type of entertainment presented at the "Red Hot."⁶ According to Plaintiff, City officials have warned him that he would be "vulnerable to arrest and prosecution for violating the Conditional Use Permit and live entertainment permit provisions" if he were to begin showing "bikini dancing" without first obtaining permits. Kaltenthlar Decl. ¶ 4.

Plaintiff has not filed for a new conditional use permit or a live entertainment permit.⁷ This is not only because Plaintiff believes the licensing ordinances to be unconstitutional, but also because City officials have informed Mr. Kaltenthlar that such a permit application would be denied. Kaltenthlar Decl. ¶ 4. The Court now turns to the constitutionality of these permitting ordinances.

1. The Constitutional Standards

It is well-established that non-obscene live adult entertainment is expressive conduct protected by the First Amendment, as applied to the states through the Fourteenth Amendment. See, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565, 111 S.Ct. 2456, 2457, 115 L.Ed.2d 504 (1991); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981) ("Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works fall within the First Amendment guarantee"); TK's Video, Inc. v. Denton County, 24 F.3d 705, 707 (5th Cir.1994) ("Erotic nonobscene printed matter, films, and live entertainment are sheltered by the First Amendment"); Acorn Investments, Inc. v. City of Seattle, 887 F.2d 219, 224 (9th Cir.1989) (City ordinance imposing license fees on peepshows violated First Amendment). See also City of Renton v. Playtime Theatres, 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (adult-oriented films also protected by First Amendment). However, despite the fact that...