Kuzinich v. Santa Clara County

• Citation: 689 F.2d 1345
• Decision Date: 24 January 1983
• Docket Number: No. 81-4460,81-4460
• Parties: Peter KUZINICH, Sr., Plaintiff-Appellant, v. COUNTY OF SANTA CLARA; Board of Supervisors of the County of Santa Clara; Rod Diridon; Suzanne Wilson; Dominic Cortese; Dan McCorquodale; Geraldine F. Steinberg, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1345

689 F.2d 1345

Peter KUZINICH, Sr., Plaintiff-Appellant, v. COUNTY OF SANTA CLARA; Board of Supervisors of the County of Santa Clara; Rod Diridon; Suzanne Wilson; Dominic Cortese; Dan McCorquodale; Geraldine F Steinberg, Defendants-Appellees.

No. 81-4460.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 14, 1982.

Decided Oct. 13, 1982.

As Amended Jan. 24, 1983.

Amiram J. Givon, Oakland, Cal., for plaintiff-appellant.

Bruce Nye, Popelka, Allard, McCowan & Jones, San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before CHOY and NORRIS, Circuit Judges, and SMITH, ^* District judge.

RUSSELL E. SMITH, District Judge:

This is an appeal from a summary judgment denying plaintiff all relief on his claims of violations of certain constitutional rights.

The record shows the following:

For the last ten years the plaintiff, Kuzinich, has operated an adult movie theater, the Pink Poodle, and an adult bookstore, the Bascom Bookcase, in Burbank, an unincorporated area in Santa Clara County, California. Kuzinich was required to have a use permit, and the first of these, containing conditions, was granted in September 1973 by the Santa Clara County Planning Commission. It expired in October 1974, and the County so notified Kuzinich in January 1976. Kuzinich applied for a second use permit that same month. Due to his failure to comply with the conditions stated in the first use permit, there was a delay in issuance of a second permit, but one was finally issued in June 1977. The second permit also required compliance with numerous conditions and was valid for two years. The conditions included items such as plans for landscaping, paving and improving the parking lot, and repair of a fence. On February 13, 1980, the County notified Kuzinich that his second use permit had expired some eight months earlier. The conditions imposed by prior permits had not been met. On April 2, 1980, Kuzinich filed an application for a new use permit. He was informed on May 2, 1980, that this application was incomplete and submitted additional information. On July 21, 1980, he was told that his application was complete. The application was placed on the Planning Commission's agenda for October 16, 1980, but it was never heard by that commission. Kuzinich has not complied with the conditions of his use permits in several particulars. On October 6, 1980, the Board of Supervisors of the County directed County counsel to file an action to enjoin the operation of the Pink Poodle and the Bascom Bookcase, and on the same day adopted as an emergency measure an amendment to the zoning ordinances which made the operation of Kuzinich's adult businesses unlawful in the locations at which they were operating. On October 14, 1980, the County filed an action for an injunction in the Superior Court of California on the ground that Kuzinich was operating illegally since his use permit had expired in 1979. A preliminary injunction was granted but was later stayed by the California Court of Appeals.

As we see it, these problems appear:

First: Was the rezoning ordinance valid?

Second: If the ordinance was valid, was the denial of Kuzinich's exemption as a preexisting nonconforming use invalid because of invidious selective treatment?

Third: What effect do the doctrines of immunity have upon this case?

Fourth: Was there a conspiracy?

THE VALIDITY OF THE ORDINANCE

In Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68, 101 S.Ct. 2176, 2183, 68 L.Ed.2d 671 (1981), the Court stated: "(W)hen a zoning law infringes upon a protected liberty, it must be narrowly drawn and must further a sufficiently substantial government interest." Within these limits zoning is a valid exercise of the police power and, under some circumstances notwithstanding the first amendment, the zoning power may extend to places dealing in that which is sexually explicit but not adjudged to be obscene. Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). In Young the City of Detroit's ordinance was designed to control the concentration of certain regulated uses which included adult motion picture theaters and adult bookstores. There was evidence that such concentration "tends to attract an undesirable quantity and quality of transients, adversely affects property values, causes an increase in crime, especially prostitution, and encourages residents and businesses to move elsewhere." Id. at 55, 96 S.Ct. at 2445. The Detroit ordinance was enacted prior to the establishment of the theaters as adult theaters.

It is clear, however, that zoning may not be employed for the purpose of restricting the content of speech, including that which is sexually explicit. In the Young case Justice Powell, in his concurrence with the plurality opinion, repeated the four-part test stated in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 While the ordinance here was said to be copied after the Detroit ordinance validated in Young, we find very little evidence bearing on the concentration of adult enterprises. Rather we find a concern with complaints about traffic and littering. Conclusions alone support the thesis that adult bookstores and movie theaters have any different impact upon traffic and littering than other kinds of businesses have. The law requires that an ordinance restricting first amendment rights be narrowly drawn, and it does not appear from this record why an ordinance directed at traffic and littering would not accomplish what zoning was expected to accomplish. In short, the need to be served and the public purpose to be accomplished do not appear as clearly here as they did in Young.

(1968). The third part of that test requires that the governmental interest be "unrelated to the suppression of free expression." 427 U.S. at 79-80, 96 S.Ct. at 2456-2457. While less direct, the language in the plurality opinion to the effect that there is a need for "absolute neutrality by the government; its regulation of communication may not be affected by sympathy or hostility for the point of view being expressed by the communicator" (Id. at 67, 96 S.Ct. at 2450) expresses the same thought.

There was some evidence, largely in the nature of conclusions, that the amendment to the zoning ordinance was passed for the purpose of controlling traffic and littering and that the adult businesses did have a negative effect on adjoining residential areas. But there was also evidence from which it might be inferred that the basic purpose was to control pornography. Supervisor Diridon assigned an intern, Pamela Poore, to investigate three adult enterprises in Burbank. Her report to Diridon, dated October 6, 1980, and entitled "Pink Poodle Packet," was forwarded by him on the same day to the Board of Supervisors with a recommendation that it be adopted.

The report contained the following:

Following complaints regarding public display of obscene films and books and a court ruling allowing public officials to stop such displays on the basis that these exhibits constitute a "public nuisance," Rod Diridon, in 1976, began a campaign against adult movie theaters, live adult entertainment, adult bookstores, and cardrooms. Although cardrooms in unincorporated areas of the County were closed, the efforts proved unsuccessful as applied to the Pink Poodle. After four years, some of the original conditions remain unsatisfied.

and

By failing to establish a reasonably moderate distance between adult entertainment facilities and residential and educational areas, the County risks perpetuating a negative influencd (sic ) on young people of the County.

A number of citizens have registered their complaints against the adult movie theaters, live entertainment theaters, and adult bookstores in the County. By failing to address the concerns of our constituents, we run the risk of alienating the public we are here to serve.

The report recommended that the use permits of three adult enterprises, including the Pink Poodle and the Bascom Bookcase, be abated; that the Board of Supervisors, instead of the Planning Commission, have final authority over use permits for adult enterprises; that the zoning ordinances be amended to prohibit adult enterprises in certain areas; that a hearing on a zoning ordinance be scheduled for November 3, 1980; and that in the interim an emergency ordinance be adopted.

On October 7, 1980, an emergency ordinance was adopted. By its terms it was to expire in four months. On October 14, 1980, it was amended to include an additional area, and on November 17, 1980, the emergency ordinance was adopted as final. On November 14, 1980, the Planning Commission noted its disapproval.

A statement by Pamela Poore appears in the record to the effect that Commissioner Diridon wanted the emergency ordinance to stop the applications for the Pink Poodle and the Bascom Bookcase permits while a formal ordinance was being adopted. The following appears in the Poore report:

The County has no means of enforcing conditions set by the ASA (Architectural Site Approval Committee), other than to deny the permit. If the conditions are satisfied by the time of inspection by the ASA, the Planning Commission will grant the permit. The County cannot enforce compliance with the original conditions once the permit is issued.

A summary judgment is proper here only if it can be said that, viewing the evidence in the light most favorable to Kuzinich,

it appears as a matter of law that the purpose of the ordinance was to serve some substantial public interest unrelated to the suppression of free speech. That cannot be said. See Board of Education v. Pico, --- U.S. ----, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982), in which the Supreme Court held in a first amendment case that summary judgment was not proper where differing conclusions could be drawn from the evidence.

THE...