J. L. Thomas, Inc. v. County of Los Angeles

• Decision Date: 25 July 1991
• Docket Number: No. B052176,B052176
• Citation: 283 Cal.Rptr. 815,232 Cal.App.3d 916
• Parties: J.L. THOMAS, INC., et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES, etc., et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 815

283 Cal.Rptr. 815

232 Cal.App.3d 916

J.L. THOMAS, INC., et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES, etc., et al., Defendants and Respondents.

No. B052176.

Court of Appeal, Second District, Division 7, California.

July 25, 1991.

[232 Cal.App.3d 919] Joshua Kaplan, for plaintiffs and appellants.

De Witt W. Clinton, County Counsel, Charles J. Moore, Principal Deputy County Counsel, Richard D. Weiss, Sr. Deputy County Counsel, Hill, Farrer & Burrill, Darlene Fischer Phillips and Dean E. Dennis for defendants and respondents.

LILLIE, Presiding Justice.

J.L. Thomas, Inc. and J.L. Thomas, doing business as Hollywood East, appeal from a judgment denying their petition for writ of mandate in which plaintiffs (hereinafter Thomas) challenged (1) the decisions and orders of the Los Angeles County Regional Planning Commission (Commission) denying an application for a conditional use permit to operate a cabaret featuring live adult entertainment and (2) the decision of the Los Angeles County Board of Supervisors (Board) denying Thomas's appeal of the Commission's decision. ¹

FACTUAL AND PROCEDURAL BACKGROUND

Hollywood East, a cabaret featuring adult entertainment and located at 13217 East Valley Boulevard, was established before December 22, 1978, the date of enactment of the County's adult entertainment ordinance. The cabaret is located within the M-1-BE zone (light industrial; billboard exclusion) which permits the cabaret use with a conditional use permit.

In 1984, Thomas applied to continue the cabaret use, which application was denied by the Board on December 20, 1984; in 1986, Thomas applied for a conditional use permit, which was granted, with 13 conditions, by the Commission; although there was no opposition testimony at the Commission hearing, the Commission's decision was appealed by a local homeowner's association and the Los Angeles County Sheriff; the Board held a de novo hearing and denied the application for a conditional use permit in December 1987; Thomas then challenged the denial by petition for writ of mandate in the superior court, which denied the petition; the denial was upheld by the Court of Appeal in April 1989, with a remittitur issued on July 26, 1989.

On July 24, 1989, Thomas filed the application for conditional use permit which is the subject of this appeal. ² At a public hearing on September 27, 1989, a Planning Department staff member testified that the one-story cabaret, located on the north side of six-lane East Valley Boulevard, was bounded on the north by a railroad right-of-way and then industrial uses. To the east, west and south of the cabaret was a mix of retail commercial and light industrial uses. Across East Valley Boulevard and further south of the commercial and industrial uses were single family residences.

Immediately adjacent to the cabaret on the east was a radiator repair business; to the west of the cabaret was a parking lot and then a used car dealership. Since the time of the previous application, Thomas had replaced the roof on the building and had removed a wall sign. The staff member also testified that Thomas had been continuing to offer adult entertainment on the property without a permit; there had been various enforcement actions pertaining to the use of the property, and a week before the hearing, staff members witnessed adult entertainment at the cabaret.

The Commission received letters from six individuals or entities in opposition to the application. The letters characterized the cabaret as a "blight," and stated that "concerned parents ... don't want their children exposed to this type of sleazy lifestyle," that the cabaret "attracts an undesirable clientele," and is "an unwelcome blot on our community." Four people spoke against the application. A representative of the Workman Mill Association stated that although she did not know whether patrons of the cabaret "come over as far as the park on San Angelo or not," her association "just doesn't feel that this establishment gives any benefit back to the community"; a resident of the area stated that they were trying hard to improve Valley Boulevard, but "Hollywood East is not an improvement.... We don't want it." A nearby motel owner asserted that a mile to the east, "there are many prostitution girls walking along the Garvey Avenue in El Monte," and that "the customers from the Hollywood East, they do have an effect, I believe. Because after seeing those topless dancings, ... they do carry some adverse effects to our businesses.... I am required from the neighborhood to run a decent motel."

According to uncontradicted testimony of Thomas's attorney in favor of the application, since the time of the prior application, Thomas had expended $20,000 in improving the premises, putting on a new roof, sandblasting and painting the building, removing signs, landscaping, and soundproofing; the graffiti was painted over every week, and in fact the cabaret was the only commercial structure in a two-mile square area without graffiti all over the front of it and with green landscaping; the parking lot was sufficient in size for the patrons and a security guard was posted in the parking lot; a daily trash service prevented trash accumulation. Thomas's attorney presented photographs of the cabaret and the surrounding area which showed that the area was not noted for its "immaculate upkeep," and the cabaret "stands out as being superlative in its maintenance"; the interior of the building cannot be seen from the outside; minors are not admitted inside; there were no garish advertisements or explicit statements on the outside of the building; and within the past year, there had been no complaints with regard to trash accumulation, loitering, boisterous conduct, drug sales, noise, or prostitution involving the cabaret. Thomas also presented a petition signed by 10 commercial and residential occupants in the area in favor of the cabaret. There was no church, temple, school, park or playground within 500 feet of the cabaret.

By findings and order dated November 1, 1989, the Commission denied the application, concluding that Thomas failed to substantiate the required findings for a conditional use permit under County Code sections 22.56.090 and 22.56.190. ³ The Commission found that the applicant has continued to offer live nude dancing "in disregard of the court's order and without a valid permit"; redevelopment activities have occurred in the vicinity to benefit commercial vitality and property values along Valley Boulevard, and the adult entertainment land use "is inconsistent with the furtherance of these economic goals" and "tends to diminish the value of the considerable public and private investment already made"; that the cabaret has a "history of complaints about noisy patrons congregating in the parking lot and disturbing the surrounding neighborhood"; and the nocturnal disturbances and adult nature of the entertainment offered render the cabaret incompatible with the surrounding businesses and residences.

Thomas's appeal to the Board of Supervisors was denied on December 21, 1989. Thomas thereafter filed in the superior court a petition for writ of mandate, challenging the Commission's findings as unsupported by the evidence, and also challenging the relevancy of the findings to the decision to deny the conditional use permit. In opposition to the petition, defendants ⁴ argued that Thomas had not met his burden of proof under County Code sections 22.56.190 and 22.56.090, and for the first time also expressly relied upon County Code section 22.04.110 to justify the denial of the permit.

Section 22.04.110 provides in pertinent part that "No application for any permit required pursuant to this title shall be accepted for processing or approved where an existing land use, not previously authorized by any statute or ordinance, is being maintained or operated in violation of any applicable provision of this title, or any condition of approval of a land use permit."

In denying the petition for writ of mandate, the court expressly indicated that it was relying only on section 22.04.110, and did not address the findings required under section 22.56.190. ⁵ On appeal from the judgment denying the petition for writ of mandate, Thomas contends that County Code section 22.56.190 (which incorporates portions of section 22.56.090) sets out the criteria for the grant or denial of a conditional use permit for an adult business, that he demonstrated he was entitled to such permit under such criteria, and that respondents blatantly ignored such criteria and based their denial on improper and irrelevant factors. Thomas also contends that section 22.04.110 cannot properly be applied to an activity that has been accorded First Amendment protection, and in any event, the cabaret use was previously authorized by ordinance prior to 1978. Appellants also argue that, as applied to Hollywood East, the County's regulatory scheme for conditional use permits is an unconstitutional prior restraint because it lacks a specified time limit on the exercise of zoning discretion. ⁶

I FORMER ORDINANCE CONSTITUTES AN INVALID PRIOR RESTRAINT

It has been held that when an applicant for a permit from the California Coastal Zone Conservation Commission sought to challenge the application of a statute to it, the applicant "is essentially seeking to review the validity of an administrative action and ... such review is properly brought under the provisions of section 1094.5 of the Code of Civil Procedure rather than by means of declaratory relief." (State of California v. Superior Court (1974) 12 Cal.3d 237, 251, 115 Cal.Rptr. 497, 524 P.2d 1281.) Accordingly, we conclude the issue is appropriately considered on this appeal.

Respondents' claim that Thomas has not exhausted his administrative remedy on the issue is without merit. Thomas did apply for a permit. "In any event, it has been stated by the California...