Ebel v. City of Corona

• Decision Date: 01 February 1983
• Docket Number: No. 82-5056,82-5056
• Citation: 698 F.2d 390
• Parties: Helen EBEL, Appellant, v. CITY OF CORONA, a municipal corporation; William Ketteman, Planning Director of the City of Corona; and B. Talbert, Chief of Police of the City of Corona, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 390

698 F.2d 390

Helen EBEL, Appellant, v. CITY OF CORONA, a municipal corporation; William Ketteman Planning Director of the City of Corona; and B Talbert, Chief of Police of the City of Corona, Appellees.

No. 82-5056.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 1, 1982.

Decided Feb. 1, 1983.

Roger Jon Diamond, Hecht, Diamond & Greenfield, Pacific Palisades, Cal., for appellant.

Meredith Jury, Best, Best & Krieger, Riverside, Cal., for appellees.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN, HUG and BOOCHEVER, Circuit Judges.

GOODWIN, Circuit Judge.

Helen Ebel appeals from the denial of a preliminary injunction to restrain the City of Corona from closing an adult bookstore. We reverse and remand.

Ebel opened her bookstore arcade in Corona, California in July 1981. The Corona City Council adopted ordinances on September 16, 1981, defining "sex oriented material" ¹ and restricting sellers of it to certain commercial zones. The ordinances prohibit any "seller of sex-oriented material" ² from operating on any lot directly abutting a residentially zoned lot or within 750 feet of: any school primarily attended by minors; a church which conducts religious or educational classes for minors; a public park, neighborhood center, community center or recreational facility frequented by minors. The ordinances also forbid operation within 500 feet of any other seller of sex-oriented material. The ordinances granted an amortization period for nonconforming uses. On September 30, 1981, the City Manager informed Ebel that she would have to move her adult bookstore.

On December 14, 1981, Ebel filed a complaint against the City of Corona, et al. alleging that the zoning ordinance violated her free speech, due process, just compensation and equal protection rights under the First and Fourteenth Amendments of the United States Constitution. Ebel moved for a preliminary injunction. Following a hearing, the district court denied the motion for preliminary injunction.

In its findings of fact and conclusions of law, the district court found that alternative sites for Ebel's store exist in the City of Corona, that the Corona zoning ordinance did not operate as an outright prohibition of adult bookstores, that Ebel had not proven that the availability of adult material in Corona is greatly restricted by the ordinance, and that Ebel had failed to carry her burden of demonstrating that the Corona zoning code is a ban on adult bookstores in Corona. The court therefore held that Ebel had failed to prove a substantial likelihood of success on the merits of her claim. The district court also held that she had not met her burden of proof that there would be any irreparable harm to her because she had failed to prove that she could not relocate her business.

On February 25, 1982, the motions panel of this court granted a temporary injunction pending appeal. This order restrained officials of Corona from enforcing the zoning ordinance. On May 3, 1982, this court denied the city's motion to vacate that injunction, and calendared the case for argument.

A preliminary injunction should be issued "upon a clear showing of either (1) probable success on the merits and possible irreparable injury or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Aguirre v. Chula Vista Sanitary Service, 542 F.2d 779, 781 (9th Cir.1976) (emphasis in original), citing, Gresham v. Chambers, 501 F.2d 687, 691 (2nd Cir.1974).

I.

There are sufficiently serious questions going to the merits to make them a fair ground for litigation.

Federal courts apply strict scrutiny to statutes that impinge on First Amendment rights. Harper v. Virginia Board of Elections, 383 U.S. 663, 670, 86 S.Ct. 1079, 1083, 16 L.Ed.2d 169 (1966). Laws against unprotected activities that incidentally result in limitation of free expression must be justified by compelling state interests. Young v. American Mini Theaters, 427 U.S. 50, 56, 96 S.Ct. 2440, 2445, 49 L.Ed.2d 310 (1976).

Mini Theaters is the leading case concerning zoning of sex-oriented businesses and the First Amendment. In 1962 Detroit adopted an ordinance regulating the locations of adult bookstores, cabarets, bars, hotels and motels, and other uses. In 1972 Detroit added adult theaters and provided that they could not be located within 1000 feet of any two other "regulated uses" or within 500 feet of a residential area. The adult theater ordinance specifically identified the content of movies that would be considered "adult" in terms almost identical to the Corona zoning ordinance. The Court found that the Detroit Common Council's purpose in regulating adult movie theaters was to control their secondary effects on neighborhood deterioration and crime. The Court held that the city thus had shown a sufficiently significant government interest to justify regulation of the time, place and manner of speech protected by the First Amendment.

Justice Stevens also wrote that the Detroit ordinance did not attempt to eliminate adult theaters from the city:

"The situation would be quite different if the ordinance had the effect of suppressing, or greatly restricting access to, lawful speech. Here, however, the district court specifically found that '[t]he Ordinances do not affect the operation of existing establishments but only the location of new ones. There are myriads of locations within the City of Detroit which must be over 1000 feet from existing regulated establishments. This burden upon First Amendment rights is slight.' " (citation omitted). 427 U.S. 50, 71-72, 96 S.Ct. 2440, 2452-2453, 49 L.Ed.2d 310.

The facts of Mini Theaters differ in several respects from the facts of the present case. The Detroit ordinance was aimed at the concentration of adult theaters and had the effect of dispersing them. At least 40 adult theaters that met the terms of the ordinance existed in Detroit. In Corona, a much smaller town, Ebel's bookstore is the only existing adult bookstore. Detroit's ordinance also contained a "grandfather clause" permitting existing facilities to continue. Corona's does not.

Ebel contends that the Corona City Council violated due process by enacting the ordinance without making adequate findings of fact to justify it. However, the city gave notice, held hearings, issued a report of the City Planning Commission, and gave reasons for its action in the preamble to the ordinance. Enactment of a zoning ordinance is a legislative act, Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 673-674, 96 S.Ct. 2358, 2362, 49 L.Ed.2d 132 (1976), Kuzinich v. County of Santa Clara, 689 F.2d 1345 (9th Cir.1982) and great latitude is given to legislative bodies in the procedures they may use in factfinding. The district court found no violation of due process. The court's holding on that point is free from error.

Ebel contends that the real purpose of the Corona ordinance is to harass and obstruct the exercise of her First...