Lim v. City of Long Beach
| Decision Date | 15 May 1998 |
| Docket Number | No. CV 96-2742 RAP (RMBx).,CV 96-2742 RAP (RMBx). |
| Citation | 12 F.Supp.2d 1050 |
| Court | U.S. District Court — Central District of California |
| Parties | Seung Chun LIM, Fluffy, Inc., 5436 Santa Monica Boulevard, Inc., Plaintiffs, v. CITY OF LONG BEACH, Defendant. |
Roger Jon Diamond, Roger J. Diamond Law Offices, Santa Monica, CA, for plaintiffs.
John Rains Calhoun, Daniel S. Murphy, Long Beach City Attorney, Long Beach, CA, for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER DISSOLVING PRELIMINARY INJUNCTION AND DIRECTING ENTRY OF JUDGMENT
Plaintiffs own and operate three adult book and video stores and a mini-theater in the City of Long Beach (the "City") On October 18, 1994, the City enacted an Ordinance regulating the location of adult entertainment establishments (the "1994 Ordinance") Plaintiffs assert First Amendment and Equal Protection challenges to the application of the 1994 Ordinance to their businesses. Plaintiffs allege that the 1994 Ordinance as applied to them violates the First Amendment because it impermissibly limits the number of alternative channels of communication for exercise of their free speech rights. Plaintiffs also contend that the Ordinance denies them the equal protection of the law because it forces nonconforming adult business to relocate or cease operating their businesses, while other nonconforming but non-adult businesses are permitted to remain indefinitely.
Having carefully considered all the evidence admitted at trial and the parties' post-trial briefs, proposed findings of fact and conclusions of law, and post-trial oral arguments, the Court now makes the following findings of fact and conclusions of law and orders entry of judgment for the City.
In making its findings, the Court first sets forth the history of the 1994 Ordinance, factual details regarding each of the plaintiffs and a brief review of prior litigation among the parties. Thereafter, the Court sets forth its findings with respect to each of the potentially available alternative sites for use as an adult business. Ultimately, the Court concludes that the 1994 Ordinance as applied to plaintiffs provides a sufficient number of alternative locations for expression to satisfy the First Amendment. The Court further concludes that the 1994 Ordinance does not deny plaintiffs the equal protection of the law. Accordingly, judgment shall be entered in favor of the City dismissing this action on the merits and vacating the stipulated preliminary injunction entered by the Court.
1. On September 15, 1977 and October 6, 1977, the Planning Commission of the City of Long Beach held several hearings regarding the adoption of an "adult entertainment" ordinance that would restrict the location of new adult entertainment businesses.
2. As part of its deliberations, the Planning Commission considered a 1977 study by the City of Los Angeles regarding the deleterious effects of the concentration in particular areas of adult entertainment establishments.
3. Following its review of the proposed ordinance, the Planning Commission recommended to the Long Beach City Council that it adopt an adult entertainment zoning ordinance restricting the location of such businesses. The City Council enacted such an ordinance in 1977 ("the 1977 Ordinance"). The 1977 Ordinance was codified in §§ 21.15.110 and 21.45.110 of the Long Beach Municipal Code ("LBMC").
4. Exhibit 208 at 1. LBMC § 21.45.110 also provided standards for a variance procedure whereby property and business owners could seek relief from the locational requirements.
5. The 1977 Ordinance only applied to new adult entertainment uses; it left the then-existing adult entertainment businesses unaffected.
6. In applying the locational requirements of LBMC § 21.45.110, the City does not consider the existing uses of property located in adjoining cities.
7. The locational restrictions of LBMC § 21.45.110 as applied to city parks are limited to the "city parks" identified by the City of Long Beach's Parks and Recreation Department. See Exhibit 224. The traffic circle, marinas, and golf courses are not city parks.
8. In 1988, the City's Planning Department undertook a study and evaluation of the 1977 Ordinance to determine whether the locational restrictions on adult entertainment businesses had the effect of eliminating such businesses from the buffer areas established by the 1977 Ordinance. The Planning Department found that the existing ordinance had no effect upon the location of adult entertainment businesses. After holding public hearings, the Planning Commission ultimately recommended to the City Council that it amend the 1977 adult entertainment ordinance to require all existing nonconforming adult establishments to comply with the locational requirements or cease conducting business. Subsequently, the City Council adopted Ordinance C-6533, codified at LBMC § 21.27.150 (the "1988 Ordinance"), which required all existing nonconforming adult entertainment businesses to comply with the locational requirements within two years. The 1988 Ordinance further provided that if certain conditions were met, the owners of such businesses could obtain a three year extension of the amortization period ending on August 1, 1993.
9. On August 18, 1994 and September 1, 1994, the Planning Commission held hearings on several proposed amendments to the adult entertainment ordinance. The purpose of these amendments was to reduce the size of several of the buffer zones, thereby making the locational requirements for adult businesses less restrictive.
10. On September 20, 1994 and October 11, 1994, the Planning Commission filed several reports with the City Council recommending modifications in the buffer zones and allowing a three year amortization period for nonconforming businesses to comply with the amended ordinance.
11. On October 18, 1994, the City Council adopted Ordinance C-7274 (the "1994 Ordinance"). See Exhibit 213. The 1994 Ordinance modified the adult entertainment buffer zones, required compliance with the City's parking requirements, and established an eighteen month amortization period (through May 18, 1996) for existing nonconforming businesses to comply with the less restrictive locational requirements. LBMC § 21.27.150. In adopting the 1994 Ordinance, the City Council relied upon studies from other cities including Garden Grove, California; Minneapolis, Minnesota; St. Paul, Minnesota; Indianapolis, Indiana; and Phoenix, Arizona.
12. LBMC § 21.15.110, as amended in 1994, defines adult business entertainment to include: (1) "adult bookstores" having twenty percent or more of their stock in trade in books, magazines and other periodicals, video tapes or other similar materials on display or available for sale or viewing on the premises which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas; (2) "adult minimotion picture theater" having the capacity for less than fifty persons, and which is used for presenting, on a regular and substantial basis, material distinguished or characterized by an emphasis on matter depicting or relating to specified sexual activities or specified anatomical areas for observation by patrons in the facility; and (3) "adult motion picture arcade" where the public is permitted or invited and where coin or slug-operated or electronically or mechanically controlled still or motion picture machines, projectors or other image-producing devices are maintained to show images on a regular and substantial basis, where the images so displayed are distinguished or characterized by an emphasis on depicting or describing specific sexual activities or specified anatomical areas.
13. Under LBMC § 21.45.110(A)(1), as amended in 1994, an adult entertainment business may not be located (1) within 300 feet of a residential zoning district or residential planned development district within the City ( excluding mixed-use zones); (2) within one thousand feet of any public or private school (kindergarten through twelfth grade) located within the City; (3) within 600 feet of any City park; (4) within 500 feet of a church; (5) within 1000 feet of any other adult entertainment business. Exhibit 213 at 8.
14. LBMC § 21.45.110(A)(1)(f) further provides that an adult entertainment business may not be located in the following areas:
Fronting upon that portion of Pacific Coast Highway between Hayes and Termino Avenue, that portion of Anaheim Street between the Long Beach Freeway and Termino Avenue, that portion of Santa Fe Avenue between Anaheim Street and Pacific Coast Highway and that portion of Artesia Boulevard between Paramount Boulevard and Downey Avenue, and that portion of Broadway between Atlantic Avenue and Euclid Avenue. Such areas have been determined by the Long Beach Police Department to experience a high rate of arrests for prostitution, lewd behavior and disorderly conduct. Such determination shall be reviewed in three (3) year intervals, commencing upon October 1, 1997.
15. LBMC § 21.45.110, as amended in 1994, also provides that ...
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Lim v. City of Long Beach
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