Alameda Books, Inc. v. City of Los Angeles

• Decision Date: 08 February 2000
• Docket Number: No. 98-56200,98-56200
• Citation: 222 F.3d 719
• Parties: (9th Cir. 2000) ALAMEDA BOOKS, INC., a California corporation; HIGHLAND BOOKS, INC., a California corporation, Plaintiffs-Appellees, v. CITY OF LOS ANGELES, Defendant-Appellant. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 719

222 F.3d 719 (9th Cir. 2000)

ALAMEDA BOOKS, INC., a California corporation; HIGHLAND BOOKS, INC., a California corporation, Plaintiffs-Appellees, v. CITY OF LOS ANGELES, Defendant-Appellant.

No. 98-56200

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted February 8, 2000--Pasadena, California

Filed July 27, 2000

As Amended on Denial of Rehearing August 28, 2000

Michael L. Klekner, The City of Los Angeles, Los Angeles, California, for the defendant-appellant.

G. Randall Garrou, Weston, Garrou & DeWitt, Los Angeles, California, for the plaintiffs-appellees.

Robert W. Hargreaves, Best Best & Krieger, Rancho Mirage, California, for amicus curiae Sixty-Five (65) California Cities, in support of the appellant.

G. Randall Garrou, Weston, Garrou & DeWitt, Los Angeles, California, for amicus curiae Center for Fair Public Policy in support of the appellees.

Richard J. Hertzberg, Phoenix, Arizona, for amicus curiae L.J. Concepts, Inc., in support of the appellees.

Appeal from the United States District Court for the Central District of California, D.C. No. CV-95-07771-DDP(CTx); Dean D. Pregerson, District Judge, Presiding

Before: Robert Boochever, Michael Daly Hawkins, and Sidney R. Thomas, Circuit Judges.

HAWKINS, Circuit Judge:

We must determine whether the district court was correct in concluding as a matter of law that ordinances of the City of Los Angeles (the "City" or "Los Angeles") prohibiting the operation of adult businesses that both sell adult products and contain facilities for the viewing of adult movies or videos were inadequately supported by evidence of adverse impact so as to violate the First Amendment. We affirm.

I. BACKGROUND

On July 28, 1978, the City enacted Ordinance No. 151,294, adding section 12.70 to the Los Angeles Municipal Code ("L.A.M.C."), which prohibits the "establishment, substantial enlargement or transfer of ownership or control" of an adult business establishment "within 1,000 feet of another such business or within 500 feet of any religious institution, school or public park within the City of Los Angeles." L.A.M.C. S 12.70(C) (1977). The regulation was enacted after a comprehensive study, conducted in 1977 and assessing the impact of concentrations of adult businesses on surrounding areas, found a positive correlation between concentrations of adult businesses and increases in prostitution, robberies, assaults, and thefts.¹

In 1983, the City amended section 12.70(C), with the passage of Ordinance No. 157,538 to prohibit so-called "multiple use" adult businesses. Section 12.70(C), as amended, additionally prohibits "the establishment or maintenance of more than one adult entertainment establishment in the same building, structure, or portion thereof . . . ." L.A.M.C. S 12.70(C). The 1983 amendments also modified the existing definition of an "adult entertainment business" to specifically categorize inter alia an "adult bookstore" and an "adult arcade" as "separate adult entertainment businesses even if operated in conjunction with another adult entertainment business at the same establishment." L.A.M.C. S 12.70(B)(17).

Appellees, Alameda Books, Inc. ("Alameda") and Highland Books, Inc. ("Highland"), are two adult businesses operating within the city limits of Los Angeles. Neither is located within 1,000 feet of another adult business nor within 500 feet of any religious institution, public park, or school. Each business occupies less than 3,000 square feet. Both Alameda and Highland rent and sell sexually oriented products, including videotapes. Additionally, both businesses provide booths where patrons can view videotapes for a fee. The booths are of two types. In the Preview Booths customers can view videotapes that are for rent or sale within the store. The Multichannel Viewing Booths allow customers to choose from dozens of pre-selected videotape selections.

The video booths and the retail sales and rental of tapes of both stores are located in the same commercial space within a single building. There are no distinctions, physical or otherwise, between the different operations within each of the stores. Each has only one entrance door, and one employee supervises the entire location. Additionally, the appellees are the sole owners of each of their stores, and revenue from the video booths and the sales and rentals is not distinguished in any way, other than for internal accounting purposes. Notwithstanding these facts, it is uncontested that both businesses have operations that fall within the definitions of "adult bookstore" and "adult arcade" under section 12.70(B)(17) of the L.A.M.C.

On March 15, 1995, a City building inspector found that Alameda was operating both an adult bookstore and an adult arcade in the same building and was therefore in violation of section 12.70(C). Alameda and Highland then joined as plaintiffs and sued for declaratory and injunctive relief under 42 U.S.C. S 1983 to prevent enforcement of the ordinance. Both the City and the appellees filed cross-motions for summary judgment.

The district court initially denied both motions on the First Amendment issues, concluding that there was a "genuine issue of fact as to whether plaintiffs' bookstore and arcade components were separate businesses, like those whose concentration was examined by the 1977 studies." Alameda and Highland then filed a motion for reconsideration of the First Amendment portion of the district court's order denying summary judgment. On June 2, 1998, the court vacated its prior order and granted summary judgment for Alameda and Highland and issued a permanent injunction enjoining the enforcement of the ordinance against the appellees. The City then appealed to this court. We have jurisdiction under 28 U.S.C. S 1291.

II. STANDARD OF REVIEW

A grant of summary judgment is reviewed de novo . See, e.g., Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied, 120 S. Ct. 375 (1999). We must determine, viewing the evidence in the light most favorable to the appellants, whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law. See, e.g., Berry v. Valence Tech., Inc., 175 F.3d 699, 703 (9th Cir.), cert. denied, 120 S. Ct. 528 (1999). We do not weigh the evidence or determine the truth of the matter; rather, we only decide whether there is a genuine issue of material fact for trial. See Colacurcio v. City of Kent, 163 F.3d 545, 549 (9th Cir. 1998).

The constitutionality of a regulation is a question of law that is reviewed de novo. See Gonzalez v. Metropolitan Transp. Auth., 174 F.3d 1016, 1018 (9th Cir. 1999), cert. denied, 120 S. Ct. 1553 (2000).

III. ANALYSIS

A. Renton Analysis

Our inquiry, though not the result, is somewhat complicated by two varying formulations of the test governing our analysis. In Tollis v. San Bernardino County, 827 F.2d 1329 (9th Cir. 1987), we were presented with the opportunity to apply the then-recent decision of the Supreme Court in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), which analyzed the constitutionality of city zoning regulations that prohibited adult theaters from being located within 1,000 feet of any residential zone, singleor multiple-family dwelling, church, park, or school. Tollis held that Renton had established a "three-step inquiry" to determine the constitutionality of such ordinances. Tollis, 827 F.2d at 1332. A reviewing court must inquire: (1) whether the ordinance is a time, place, manner regulation; (2) if so, whether it is content-neutral or content-based; and (3) if content-neutral, whether it is "designed to serve a substantial governmental interest and do[es] not unreasonably limit alternative avenues of communication." Id. (internal quotations omitted); see also Renton, 475 U.S. at 47.

More recently, we formulated this test in a slightly different and (we believe) more coherent manner. In Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1999), we looked to the Supreme Court's opinion in Ward v. Rock Against Racism, 491 U.S. 781 (1989), to determine the constitutionality of the city's ordinance requiring nude dancers to perform at least ten feet from patrons.² Citing to Ward, we held that "[m]unicipalities may impose reasonable restrictions on the time, place or manner of protected speech, provided the restrictions are: (1) content-neutral; (2) narrowly tailored to serve a significant government interest; and (3) leave open ample alternative channels for communication of the information." Colacurcio, 163 F.3d at 551.

The differences between the Tollis and Colacurcio test are slight, yet obvious. Colacurcio eliminates Tollis's first step determining whether the ordinance is a time, place or manner regulation -and merely splits the two inquiries of Tollis's third step -narrow tailoring to serve a significant government interest and ample alternative means of communication -into two separate steps.³ Clearly, there is no substantive difference between Tollis and Colacurcio , and a given result under one necessarily dictates an identical outcome under the other. Moreover, the jurisprudence governing each test is fully applicable to both.

Colacurcio, however, better formulates the test. First, the third step of Tollis incorporates two distinct inquiries, which are more properly separated for both conceptual and practical reasons in Colacurcio. Additionally, Tollis needlessly establishes the time, place or manner inquiry as a distinct step. Time, place or manner is an objective description of a regulation (or one proffered by the enacting legislative body); it is not a talismanic incantation affording the ordinance a lesser degree of judicial scrutiny. To the contrary, the question the courts must ask is whether the time, place or manner regulation is content-neutral. The Supreme Court recognized as much in Ward when it excluded a time, place or manner analysis, which...