County of San Diego v. 1560 N. Magnolia Ave., LLC, D052382 (Cal. App. 2/13/2009)
| Decision Date | 13 February 2009 |
| Docket Number | D052382. |
| Court | California Court of Appeals Court of Appeals |
| Parties | COUNTY OF SAN DIEGO, Plaintiff, Cross-Defendant and Respondent, v. 1560 N. MAGNOLIA AVE., LLC, Defendant, Cross-Complainant and Appellant. |
Appeal from a judgment of the Superior Court of San Diego County, No. GIE030567, Jan I. Goldsmith, Judge. Affirmed.
1560 N. Magnolia Ave., LLC, doing business as the Déjà Vu Love Boutique (Déjà Vu), appeals a judgment in favor of the County of San Diego (the County) on its complaint for injunctive relief and civil penalties for Déjà Vu's violation of a former ordinance regulating adult businesses, and against Déjà Vu on its cross-complaint for declaratory and injunctive relief. Déjà Vu contends the trial court erred by rejecting its facial challenge to the ordinance based on its definition of an adult business as one that devoted a "significant or substantial portion" of its stock-in-trade or interior display space to adult items, or derived a "significant or substantial portion" of its revenues from such items. (San Diego County Ord. No. 9469, former § 1110 (hereafter § 1110).) Déjà Vu asserts section 1110 was unconstitutionally vague because the "significant or substantial portion" language provides neither adequate notice to those subject to its restrictions nor adequate guidelines for enforcement officers.
We conclude, however, that Déjà Vu lacks standing to pursue a facial challenge because there was no uncertainty as to section 1110's effect on it. To the contrary, the evidence showed that during the relevant period Déjà Vu was unquestionably an adult business within any reasonable definition of "significant or substantial portion" as more than 50 percent of its display space was devoted to adult items. (Young v. American Mini Theaters, Inc. (1976) 427 U.S. 50, 58-59 (Young).) Further, Déjà Vu lacks standing to pursue the interests of third parties because the ordinance's deterrent effect on legitimate expression under the First Amendment was not "both real and substantial," and the ordinance was "readily subject to a narrowing construction by the state courts." (Id. at p. 60.) We likewise conclude Déjà Vu's "as applied" challenge to section 1110 lacks merit.
Déjà Vu also contends the permanent injunction is unconstitutional to the extent section 1110 now defines an adult business as including one that derives 25 percent of its revenue from the sale of adult merchandise. Déjà Vu asserts the prospective use of revenue in determining whether it is an adult business is impractical and unfair because it cannot control what its customers buy on a given day. We are unpersuaded as there is legal authority for the use of a revenue standard and there is no evidence the standard has been or will be applied unfairly. We affirm the judgment.
In May 2002 Magnolia opened Déjà Vu in a building leased from Tollis, Inc. (Tollis) and located within the County's commercial zone. At the time, section 1110 defined an adult bookstore as a business in which 15 percent or more of the retail floor space was devoted to the display of sexually-oriented books, magazines, videos, toys, novelties and the like. Déjà Vu fit the definition as it offered adult products exclusively.
Effective July 2002, the County amended its zoning ordinance to require that adult businesses be located in the industrial zone, rather than the commercial zone, and to allow any adult business lawfully established before May 15, 2002, to continue operating as a nonconforming use for an "amortization period." The County amended section 1110 to define an "Adult Bookstore, Adult Novelty Store[, or] Adult Video Store" as a "commercial establishment which has a significant or substantial portion of its stock-in-trade or derives a significant or substantial portion of its revenues or devotes a significant or substantial portion of its interior business or advertising, or maintains a substantial section of its sales or display space for the sale or rental" of adult items.1 (Italics added.) Magnolia and Tollis unsuccessfully challenged the constitutionality of the amendment in federal court. (Tollis Inc. v. County of San Diego (9th Cir. 2007) 505 F.3d 935.)
Déjà Vu's amortization period expired on January 14, 2006. Déjà Vu opted not to relocate to industrially-zoned property. Further, it did not reduce its inventory of adult items. Rather, it added nonadult inventory such as lingerie and other clothing, shoes and jewelry to reduce the percentage of adult items offered in relation to nonadult items.
On January 17, 2006, the County inspected Déjà Vu and determined it was still operating as an adult business. On the same date, the County sued Déjà Vu for preliminary and permanent injunctions and civil penalties for violation of its zoning ordinance.2
Déjà Vu cross-complained against the County. The second amended cross-complaint's first cause of action was for a judicial declaration that the County's enforcement action constituted an unconstitutional taking of its property without just compensation, and for damages. The second cause of action was for a judicial declaration that section 1110's "significant or substantial portion" standard was subjective and vague and violated their state constitutional rights to free speech and due process, and for injunctive relief.
On January 31, 2007, the County amended section 1110 to clarify that the "significant or substantial portion" standard means 25 percent or more.
On April 7, 2007, the court issued a preliminary injunction to restrain Déjà Vu from operating an adult entertainment establishment during the pendency of the action. On April 18, 20 and 27, county personnel conducted additional inspections of Déjà Vu. They determined Déjà Vu continued to operate as an adult business. After the April 27 inspection, however, Déjà Vu reconfigured the store and reduced its inventory of adult items to the County's satisfaction.
In pretrial proceedings, the court ruled Déjà Vu's takings claim was barred by the applicable statute of limitations. A bench trial commenced in October 2006, during which the parties' respective claims hinged on whether Déjà Vu was an adult business within the meaning of section 1110 between January 14 and April 27, 2006.
Lewis Balke, a county code enforcement officer, testified that on January 17 when he inspected Déjà Vu, 50 to 60 percent of the merchandise on Déjà Vu's first floor was adult-themed. Further, approximately 80 percent of the merchandise on the second floor mezzanine, which was about one-third the size of the first floor, was adult-themed. Balke testified he believed section 1110's "substantial or significant portion" standard "fell somewhat under the same realm as majority, and [at Déjà Vu] about two-thirds of the entire business or more was adult-related; so I felt that it reached the threshold of significant."
Roger Espinosa, a former senior code enforcement officer for the County, inspected Déjà Vu on April 18, 1006. He testified that approximately 90 to 95 percent of the products displayed in the mezzanine were adult DVD's, VHS tapes and magazines. An area of the first floor contained several racks of DVD's for rent, and approximately 75 to 80 percent of them were adult-themed. The first floor also contained displays of adult toys and novelty items such as dildos, vibrators, penis rings and plastic vaginas and buttocks. Espinosa estimated that 60 to 65 percent of the first floor display space was devoted to adult items. On cross-examination, he estimated that on April 18 "approximately 85 to 90 percent of the items in the store . . . did constitute sexual gratification material."
Espinosa returned to Déjà Vu on April 19. He testified that the stairway to the mezzanine was roped off. Further, some adult items had been removed from the first floor and moved to the mezzanine. He revisited the store on April 20 and noted that most of the adult items had been moved to the mezzanine. The overall number of adult items had been reduced only "a little."
The County submitted numerous photographs taken inside Déjà Vu during Espinosa's inspections. Further, the judge visited the store at the commencement of trial and the parties stipulated that his observations were evidence.
Déjà Vu's manager, James Egizi, had testified during deposition that between January and April 2006, 95 percent of Déjà Vu's DVD's and 70 percent of its books were adult-themed. A Déjà Vu supervisor, Kirk Zea, had testified in deposition that during that time 100 percent of the products in the mezzanine were adult videos and magazines.
Peter Luster was a consultant for Déjà Vu. He testified that when the store first opened it carried only adult items. In his opinion, on January 14, 2006, at the end of the three-year amortization period, the store was no longer an adult bookstore because he had added more lingerie, other clothing and other nonadult items to the inventory. He estimated that more than 15 percent, but less than 50 percent, of the store's merchandise was adult-themed. He testified he had overseen other stores in California and Nevada that had successfully complied with ordinances that specified fixed percentages of adult goods at between 15 and 50 percent. He conceded that between Blake's inspection of Déjà Vu on January 17, 2006, and the return of county personnel to the store in late April 2006, no substantial changes were made to the store. He also conceded that the mezzanine held "predominantly" adult items. Egizi, Déjà Vu's manager, also confirmed in trial testimony that the store looked about the same between January and April 2006.
A forensic certified public account, Brian Bergmark, testified that during the relevant time Déjà Vu derived 62.7 percent of its receipts, amounting to $304.984, from the sale of adult items.
The court found "overwhelm...
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