Alameda Books Inc. v. City of Los Angeles

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Before: RICHARD D. CUDAHY,* KIM McLANE WARDLAW and WILLIAM A. FLETCHER, Circuit Judges.
• Citation: Alameda Books Inc. v. City of Los Angeles, 631 F.3d 1031 (9th Cir. 2011)
• Decision Date: 28 January 2011
• Docket Number: No. 09–55367.,09–55367.
• Parties: ALAMEDA BOOKS, INC., and Highland Books, Inc., a California corporation, Plaintiffs–Appellees,v.CITY OF LOS ANGELES, a municipal corporation, Defendant–Appellant.

631 F.3d 1031

11 Cal. Daily Op. Serv. 1311

2011 Daily Journal D.A.R. 1672

ALAMEDA BOOKS, INC., and Highland Books, Inc., a California corporation, Plaintiffs–Appellees,

v.CITY OF LOS ANGELES, a municipal corporation, Defendant–Appellant.

No. 09–55367.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 6, 2010.Filed Jan. 28, 2011.

Clyde DeWitt and Cathy E. Crosson, Law Offices of Clyde DeWitt, for the plaintiffs-appellees.Carmen A. Trutanich, City Attorney, Tayo A. Popoola, Deputy City Attorney, and Steven N. Blau, Deputy City Attorney, for the defendant-appellant.On Appeal from the United States District Court for the Central District of California, Dean D. Pregerson, District Judge, Presiding. D.C. No. 2:95–CV–7771–DDP (CTx).Before: RICHARD D. CUDAHY,* KIM McLANE WARDLAW and WILLIAM A. FLETCHER, Circuit Judges.* The Honorable Richard D. Cudahy, Senior United States Circuit Judge for the Seventh Circuit, sitting by designation.

OPINION

CUDAHY, Circuit Judge:

The issue in this case is the district court's grant of summary judgment against the City of Los Angeles on the grounds that the City's Ordinance for the dispersal of adult entertainment businesses violates the First Amendment. We reverse. The district court erred by granting summary judgment on the issue whether the plaintiffs had presented “actual and convincing” evidence “casting doubt” on the City's rationale for its Ordinance.

I. Facts and Procedural History

The facts of this resilient case are not in dispute. Toward the end of the 1960's the City of Los Angeles (City), defendant-appellant, became concerned with a perceived proliferation of adult-themed ¹ businesses. Acting on that concern, the City directed the Los Angeles Police Department to study the effects of concentrations of adult businesses on crime in the surrounding areas.

The Police Department (L.A.P.D.) report compared arrests between 1969 and 1975 in Hollywood, an area where adult entertainment businesses are concentrated, with those in the rest of Los Angeles in the same period. The L.A.P.D. determined that crime rates grew at higher rates in Hollywood. For instance, “every Part I crime [including homicide, rape, aggravated assault and robbery] committed against a person, not against property, increased at a higher rate in [the] Hollywood Area than in the City-wide total.” In addition, “[p]rostitution arrests increased at a rate 15 times greater than the City average,” and “pandering arrests in [the] Hollywood Area increased by 475.0 percent.” From the L.A.P.D. data, the City concluded that concentrations of adult businesses are associated with increased rates of prostitution, robbery, assault and theft in the surrounding area.

In 1978, the City enacted an Ordinance, Ordinance No. 151, 294, adding a new section to the Los Angeles Municipal Code, L.A.M.C. § 12.70 (1977). Section 12.70 defined numerous categories of “adult entertainment businesses,” and required that they be geographically dispersed. Specifically, no two adult entertainment businesses could be located within 1,000 feet of one another. L.A.M.C. § 12.70(C).

Of importance for this case, the Ordinance defined “Adult Arcade” as an “establishment where, for any form of consideration, one or more motion picture projectors ... or similar machines, for viewing by five or fewer persons each, are used to show [adult-themed films].” L.A.M.C. § 12.70(B)(1). An “Adult Bookstore” was defined as an “establishment which has as a substantial portion of its stock-in-trade and offers for sale ... any one or more of the following: (a) [adult-themed print media] or (b) [adult] [i]nstruments, devices or paraphernalia.” Id. § 12.70(B)(2). Pursuant to the 1978 Ordinance, then, it was unlawful to operate an adult arcade within 1,000 feet of an adult bookstore.

A problem arose for the City when it realized that the Ordinance did not explicitly prohibit the operation of an adult arcade and an adult bookstore within the same establishment. Therefore, in 1983 the City enacted Ordinance No. 157,538, amending the language of the existing ordinance to remedy this oversight. Specifically, L.A.M.C. § 12.70(C) was amended to provide that no two adult entertainment businesses could operate at the same location. In addition, the 1983 amendments added L.A.M.C. § 12.70(B)(17), which clarifies that each adult entertainment business as defined in the Ordinance “constitute [s] a separate adult entertainment business[ ] even if operated in conjunction with another adult entertainment business at the same establishment.” Thus, beginning in 1983, the L.A.M.C. unambiguously prohibited the operation of an adult arcade within an adult bookstore.

Plaintiffs Alameda Books and Highland Books opened for business in 1991 and 1993, respectively.² Both businesses sell adult print media and videotapes, and both feature adult arcades where customers can view videotapes for a fee. Therefore, both Alameda Books and Highland Books were and are adult bookstores containing an adult arcade, as defined by the L.A.M.C. From the day they began operating as combined adult retail and arcade establishments, then, both businesses operated in violation of L.A.M.C. § 12.70. This fact is uncontested.

Although their businesses were unlawful, the plaintiffs operated without government interference for several years.³ On March 15 of 1995, a city inspector informed both parties that they were violating the Ordinance. On November 16, 1995, the plaintiffs filed suit in the U.S. District Court for the Central District of California, pursuant to 42 U.S.C. § 1983. They sought injunctive relief and a declaratory judgment that enforcing the Ordinance against the plaintiffs would violate their First Amendment rights.

Subsequently, the district court granted summary judgment in favor of the plaintiffs. The court reasoned that, when the City amended the Ordinance in 1983, it had no basis for believing that the operation of combined (as opposed to neighboring) adult businesses led to harmful secondary effects. Alameda Books v. Los Angeles, No. CV 95–7771–DDP (CTx), slip op. at 13 (C.D.Cal. May 28, 1998). The court further asserted that “[t]he classification of certain adult entertainment activities as separate businesses ... is subject to a [heightened] standard of review because the City applies these definitions only to businesses that engage in protected speech.” Id. at 20. The district court determined that the Ordinance failed to survive strict scrutiny, because the City had not demonstrated that the ordinance was necessary to support a compelling government interest. Id. at 29. Therefore, it was unconstitutional under the First and Fourteenth Amendments. Id. at 33.

The City appealed from the grant of summary judgment, and we affirmed the district court on alternative grounds. Alameda Books, Inc. v. City of Los Angeles, 222 F.3d 719 (9th Cir.2000). In particular, we held that the question whether L.A.M.C. § 12.70(C) is content-based or content-neutral need not be reached, because the Ordinance fails to meet even the more permissive intermediate scrutiny that would apply to a content-neutral regulation. Id. at 723. Although the City had a “substantial ... interest” in reducing crime, the City had failed to show that the Ordinance was “designed to serve” this interest. Id. at 723–24. This was true because the 1977 Study focused only on the effect of establishments concentrated within a particular area, and had nothing to say about the effects of businesses within the same establishment. Id. at 724–25.

The Supreme Court reversed this decision and remanded the case in a plurality decision. City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002). In doing so, the Court established a new framework for reviewing ordinances aimed at reducing the secondary effects of adult entertainment businesses.

Justice O'Connor's plurality opinion reaffirmed the three-part framework established in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), for determining the legality under the First Amendment of restrictions on adult entertainment businesses. Alameda Books, 535 U.S. at 433, 122 S.Ct. 1728. The Court then prescribed a three-part burden-shifting test for determining whether a regulation meets the third step ⁴ of the Renton test, which requires the restriction to serve a substantial government interest. The burden-shifting framework provides that after a municipality satisfies its burden of supplying evidence supporting its rationale for passing an ordinance, the plaintiffs may attempt to “cast doubt” on the municipality's evidence and rationale, after which the municipality may attempt to rehabilitate its rationale. Alameda Books, 535 U.S. at 438–39, 122 S.Ct. 1728.

The four-member plurality of the Court further explained that contrary to our decision, it was reasonable for the City to infer from the 1977 study that a concentration of adult operations in a single establishment will lead to increased undesirable effects. Id. at 436–37, 122 S.Ct. 1728. The plurality concluded it was error to require the City to present evidence not only showing that the Ordinance will reduce undesirable effects, but also demonstrating that such evidence does not support some other method of reducing undesirable effects. Id. at 438, 122 S.Ct. 1728. Therefore, the 1977 study provided an adequate rationale for the Ordinance, which satisfied the first step of the new Alameda Books burden-shifting framework. Id. at 439, 442, 122 S.Ct. 1728.

Justice Kennedy wrote separately in concurrence with Justice O'Connor's plurality opinion. Because he expressed a conditional agreement with the plurality, his narrower reasoning is the only reasoning that commands the majority of the Court, and has been treated as binding. See Ctr. for Fair Pub. Policy v. Maricopa Cnty., 336 F.3d 1153, 1161 (9th Cir.2003) (“Justice Kennedy's...