Deluxe Theater & Bookstore, Inc. v. City of San Diego

• Decision Date: 18 December 1985
• Court: California Court of Appeals Court of Appeals
• Parties: DELUXE THEATER & BOOKSTORE, INC., dba the Hi-Lite Theater & Bookstore; Jamie Porras, an individual (and manager); John F. Kiernan, a patron of said establishment, Plaintiffs and Appellants, v. The CITY OF SAN DIEGO; William B. Kolender, Chief of Police of the City of San Diego, Defendants and Respondents. D002564.

Page 100

221 Cal.Rptr. 100

175 Cal.App.3d 980

DELUXE THEATER & BOOKSTORE, INC., dba the Hi-Lite Theater & Bookstore; Jamie Porras, an individual (and manager); John F. Kiernan, a patron of said establishment, Plaintiffs and Appellants, v. The CITY OF SAN DIEGO; William B. Kolender, Chief of Police of the City of San Diego, Defendants and Respondents.

D002564.

Court of Appeal, Fourth District, Division 1, California.

Dec. 18, 1985.

Joshua Kaplan, Los Angeles, and Joseph W. Bryans and Bryans & House, San Diego, for plaintiffs and appellants.

John W. Witt, City Atty., Ronald L. Johnson, Sr. Chief Deputy City Atty., Eugene P. Gordon, Chief Deputy City Atty., and Anthony J. Shanley, Deputy City Atty., for defendants and respondents.

WIENER, Associate Justice.

Plaintiffs Deluxe Theater & Bookstore, Inc., Jamie Porras and John F. Kiernan challenge the constitutionality of an ordinance enacted by the City of San Diego which attempts to prohibit private "peep show" booths showing sexually explicit films. Consistent with precedent, we reject the contention and affirm the trial court's order denying a preliminary injunction.

I

Deluxe operates the Hi-Lite Theater & Bookstore in San Diego, which it refers to as an "adult arcade." The premises includes approximately 30 private "peep show" booths, each featuring eight "adult" video presentations from which the customer may choose. Prior to the enactment of section 33.3317 of the San Diego Municipal Code, the booths at the Hi-Lite Theater, although not fully enclosed, were constructed in such a way as to prohibit passers-by from either viewing the films being shown in the booth or observing possibly offensive conduct by the customer in the booth.

Section 33.3317, enacted in September 1984, provides in relevant part as follows:

"No peep show establishment shall be maintained or operated unless the complete interior of the arcade where the pictures are viewed is visible upon entrance to such picture arcade. No partially or fully enclosed booths or partially or fully concealed booths shall be maintained." ¹

Seeking to enjoin enforcement of the ordinance, plaintiffs based this action primarily on two independent grounds. They first contended the ordinance impermissibly restricted an activity protected by the First Amendment. They next argued that the right to privacy guaranteed by article I, section 1 of the California Constitution protects a customer's right to engage in sexual conduct in response to viewing a video presentation so long as such conduct occurs in private and thus will not be seen by persons likely to be offended by such conduct. The trial court rejected the contentions and refused to issue a preliminary injunction. In this appeal plaintiffs again attack the San Diego ordinance, renewing their principal arguments made in the court below.

II

Several earlier cases have considered whether ordinances virtually identical to section 33.3317 constituted unconstitutional restrictions on protected First Amendment activity. The first case to consider such an ordinance, EWAP, Inc. v. City of Los Angeles (1979) 97 Cal.App.3d 179, 158 Cal.Rptr. 579 characterized it as a "content-neutral ... regulation[] of the time, place and manner of protected speech...." (Id., at p. 189, 158 Cal.Rptr. 579.) Such a regulation, EWAP concluded, must be "necessary to further significant governmental interests." (Ibid; accord DeMott v. Board of Police Commissioners (1981) 122 Cal.App.3d 296, 301, 175 Cal.Rptr. 879; County of Sacramento v. Superior Court (1982) 137 Cal.App.3d 448, 453-454, 187 Cal.Rptr. 154; Ellwest Stereo Theatres, Inc. v. Wenner (9th Cir.1982) 681 F.2d 1243, 1246.) Applying this standard the EWAP court concluded:

"The prohibition of enclosed or concealed booths in picture arcades easily passes this test. The city has the constitutional power to reasonably regulate and license arcades for purposes of health, safety and public welfare. [Citations.]

"As was pointed out in People v. Perrine [ (1975) ] 47 Cal.App.3d , 258 : 'A picture arcade is a business, carried on in a place which the public generally is invited to enter and use. Since it is a place of entertainment, its patrons are not expected to enter with the solemnity of a business visitor at a mercantile establishment. Ordinarily those entering a picture arcade are seeking amusement, relaxation or excitement, possibly sexual stimulation or gratification, depending on the taste or mood of the individual and the kind of pictures exhibited. Among such visitors it is foreseeable that some will be predisposed to conduct which is offensive, dangerous to others and even unlawful. The potential for misuse of the premises, for law violations, and for bodily harm to law-abiding patrons, is obvious, as is the concomitant need for [deterring such conduct].'

"The city has a substantial interest in preventing the kind of dangerous or unlawful conduct, as well as the health and safety problems, which may be anticipated in a picture arcade where the booths are concealed or enclosed. The prohibition of such booths furthers the city's interest in deterring and detecting the use of the premises for such unlawful activity.

"That governmental interest is unrelated to the suppression of free expression and the requirement that the interior of the booths be visible does not restrict First Amendment freedoms. There is no restriction on either the content of the pictures or their dissemination." (97 Cal.App.3d at pp. 189-190, 158 Cal.Rptr. 579; see also DeMott, supra, 122 Cal.App.3d at pp. 301-302, 175 Cal.Rptr. 879; County of Sacramento, supra, 137 Cal.App.3d at p. 454, 187 Cal.Rptr. 154.)

We similarly view section 33.3317 as an acceptable "time, place and manner" regulation of peep show businesses.

III

Plaintiffs also argue that the San Diego ordinance unconstitutionally infringes on the privacy rights of the customers of the arcade. Noting that California courts have recognized "a right of privacy in sexual matters ... that ... is not limited to the marital relationship" (see Morales v. Superior Court (1979) 99 Cal.App.3d 283, 290, 160 Cal.Rptr. 194), they claim that such a right cannot be infringed absent a compelling governmental interest. (Ibid; see also City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 131, 164 Cal.Rptr. 539, 610 P.2d 436. In this regard they point out that consensual sexual conduct is basically not criminally punishable unless the actor "knows or should know of the presence of persons who may be offended by [the] conduct." (Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256, 158 Cal.Rptr. 330, 599 P.2d 636.) Extrapolating from these premises, plaintiffs contend that masturbation in private video booths is protected by the California constitutional right of privacy because the government can assert no compelling interest in prohibiting such conduct from occurring in a location not open to the view of those who might be offended.

Like their earlier First Amendment claims, plaintiffs' novel privacy theory has also been raised and rejected in prior cases. (See Ellwest Stereo Theatres, Inc. v. Wenner, supra, 681 F.2d 1243, 1247-1248; People v. B & I News, Inc. (1984) 164 Cal.App.3d Supp. 1,...