City of National City v. Wiener, S020887

• Citation: 838 P.2d 223,3 Cal.4th 832,12 Cal.Rptr.2d 701
• Decision Date: 29 October 1992
• Docket Number: No. S020887,S020887
• Court: United States State Supreme Court (California)
• Parties: , 838 P.2d 223 CITY OF NATIONAL CITY, Plaintiff and Appellant, v. Steven D. WIENER et al., Defendants and Respondents.

Page 701

12 Cal.Rptr.2d 701

3 Cal.4th 832, 838 P.2d 223

CITY OF NATIONAL CITY, Plaintiff and Appellant, v. Steven D. WIENER et al., Defendants and Respondents.

No. S020887.

Supreme Court of California In Bank.

Oct. 29, 1992.

As Modified on Denial of Rehearing Jan. 21, 1993.

Norman R. Atkins, Weston & Sarno, John H. Weston and G. Randall Garrou, Beverly Hills, for defendants and respondents.

George H. Eiser III, City Atty., and Linda Kaye Harter, Asst. City Atty., National City, for plaintiff and appellant.

John W. Witt, City Atty., San Diego, Stuart H. Swett, Chief Deputy City Atty ARABIAN, Justice.

[838 P.2d 225] Joseph M. Schilling, Deputy City Atty., David L. Llewellyn, Jr., H. Robert Showers and Gene L. Malpas, as amici curiae on behalf of plaintiff and appellant.

The question we consider is the constitutionality of a municipal zoning ordinance that regulates adult entertainment establishments. The precise issue is whether a zoning ordinance that combines both distance regulations and an exception for location of adult businesses in certain shopping malls conforms with First Amendment principles under the standard set forth in City of Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (Renton). We conclude that the ordinance is constitutional.

I. FACTS AND PROCEDURAL BACKGROUND

City of National City (the city or National City) is located approximately five miles from downtown San Diego. It is highly accessible, crisscrossed by two major freeways, several major arterials, and an abundance of surface street traffic. To the west lies San Diego Bay. Its three other borders lie adjacent to property belonging to other cities and the County of San Diego. It is home to a large naval installation that significantly affects the area in terms of traffic, public resources, and crime.

The city's total area is 8.65 square miles or 5,536 gross acres. Only 3,196 acres, or 58 percent of the city's land, are available for any land use purpose whatsoever. Of those 3,196 acres, 572 acres, or 17.9 percent of the total net acres, are zoned for commercial use; 1,296 acres, or 40.6 percent, are zoned for residential use; 541 acres, or 16.9 percent, are zoned for industrial use; and 787 acres, or 24.6 percent, are zoned for institutional, including military, use.

In December 1986, respondents Steven D. Wiener, individually and doing business as Chuck's Bookstore, and his sister Patricia Sanders (respondents) opened Chuck's Bookstore, an adult bookstore and arcade, at 929 National City Boulevard in the city. ¹ Shortly thereafter, the city brought an action in superior court seeking a preliminary and permanent injunction against the continued operation of Chuck's Bookstore by respondents pursuant to chapter 18 of the city municipal code regulating adult establishments. The city claimed that the bookstore constituted a common law and statutory nuisance, ² and that the store was operating in violation of certain sections of the municipal code, including section 18.69.030. ³ Respondents ultimately Municipal Code section 18.69.030 (the ordinance) prohibits an adult business from locating within 1,500 feet of another adult business, 1,500 feet of a school or public park, or 1,000 feet of any residentially zoned property. The ordinance limits neither the total number of adult businesses that may locate in the city, nor the hours they may operate. It "grandfathers" existing adult businesses, and hence does not apply to another adult business in the city, the Pussycat Theater.

conceded [838 P.2d 226] that Chuck's Bookstore violated the ordinance by virtue of its proximity to both another adult entertainment establishment and a residential area, but claimed that section 18.69.030 was unconstitutional.

Mr. Post, the city's Planning Director, testified that the ordinance was enacted after the city had performed a study and conducted one or more public hearings before the city's Planning Commission, and was part of a comprehensive scheme of urban redevelopment. According to Mr. Post, the city suffers the second highest crime rate in San Diego County, and urban decay is rife throughout the city. Its population is largely transient, and its per capita income is one of the lowest in the county. Because of low property values in its residential area, the city is heavily reliant on its commercial tax base for revenue, and there was testimony that the area zoned for commercial use is proportionately larger than in other cities.

Moreover, there was testimony that the neighborhood surrounding Chuck's Bookstore has experienced deleterious effects as a result of respondents' current location. ⁴ These problems were widely publicized in a series of articles appearing in the local newspaper, the Star News.

The city employs "strip zoning," or commercial zoning on either side of heavily trafficked arterials; thus its commercial zones are generally in close proximity to residential areas. As a result, only 4.5 of the 572 commercially zoned acres not already developed into a shopping mall lie beyond the distance requirements of the ordinance. This parcel of land is located in the southern portion of the city, fronting on National City Boulevard. There was evidence that it currently contains a 9,000-square-foot building and a motorcycle shop.

To allow for a greater number of alternative sites for adult businesses, while still attempting to minimize their negative impact, the ordinance also provides that adult businesses are not subject to the distance requirements, and may locate anywhere within the city's 572 acres of commercially zoned property, if they are located in a retail shopping center. Under this exception, either the frontage of the business must be oriented to an enclosed mall or the business must be in a mall isolated from direct view from public streets, parks, schools, churches, and residentially zoned property.

Three existing shopping centers were identified as fulfilling the enclosed mall requirements: the Plaza Bonita Shopping Center, South Bay Plaza, and Sweetwater Town and Country. While vacancies existed at all three of these malls, not all portions of South Bay Plaza or Sweetwater In addition, new shopping centers may be built or existing malls may be modified in conformance with the ordinance to accommodate adult businesses. Although there was testimony as to the cost and expertise required for such construction, no direct evidence was presented regarding the economic viability of such an enterprise, or the ability of respondents to undertake such development.

[838 P.2d 227] Town and Country conformed to the specifications of the ordinance. It was estimated that only 5,000 to 6,000 square feet of space at Sweetwater Town and Country, and 12,000 square feet of space at South Bay Plaza, met the ordinance's criteria. Moreover, respondents' expert witness testified that none of these three malls would rent space to an adult entertainment business. The witness recounted telephone conversations with leasing agents from two of the malls during which the witness inquired generally whether those malls would rent space to an adult business, without identifying a particular business.

Finally, there was evidence that there is currently a trend toward developing small retail shopping centers in Southern California, and that it is relatively easy to undertake this type of development in the city. Mr. Post testified that "developing a church would actually be more difficult than developing an adult entertainment enterprise in National City."

After a three-day trial, the superior court found that the ordinance was a reasonable time, place, and manner regulation designed to serve a substantial government interest. The court also found that the ordinance provided reasonable alternative avenues of communication, noting that "there are shopping centers in existence in [National City] which could accommodate [respondents'] business and comply with the [o]rdinance," and that the city had "demonstrated that an abundant amount of land exists for development of commercial edifices which would conform to the [ordinance] requirements." ⁵ The court further found that the operation of Chuck's Bookstore at its present location was in violation of the ordinance. On that basis, the court granted the city's request for a declaration that Chuck's Bookstore constituted a public nuisance, and permanently enjoined respondents from establishing, maintaining, and operating an adult business, including an adult bookstore, at 929 National City Boulevard.

The Court of Appeal reversed. While the court found that the ordinance was constitutional on its face, and served a substantial government interest, it concluded that the ordinance as applied failed to provide reasonable alternative avenues of communication under Renton, supra, 475 U.S. 41, 106 S.Ct. 925. Specifically, the court found that the distance regulations allowed too few alternative sites for adult businesses, and that the "purported" opportunity to locate in enclosed malls was "illusive." This finding of illusiveness derived from both "the apparent aversion shopping mall landlords have toward the presence of adult entertainment shops on the premises," and the court's determination that construction of a new shopping facility "would not be economically feasible for the typical adult business entrepreneur." The court also took into consideration counsel's representation at oral argument that the city "has a population of over 57,000 and has only one adult entertainment business in operation." The court stated that while "not controlling, this factor does indicate that as a practical matter the ordinance is highly restrictive." Accordingly, the court held that the city "has not shown there are practical alternative locations for adult entertainment establishments, and thus ordinance 18.69.030 is an impermissible restriction on protected speech."

II. DIS...