People v. Superior Court (Lucero)

Decision Date29 June 1989
Docket NumberNo. S002438,S002438
Citation49 Cal.3d 14,259 Cal.Rptr. 740,774 P.2d 769
CourtCalifornia Supreme Court
Parties, 774 P.2d 769, 10 A.L.R.5th 1037 The PEOPLE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Jose Ronillo Abogado LUCERO et al., Real Parties in Interest.

John A. Vander Lans, City Prosecutor, Robert R. Recknagel, Asst. City Prosecutor, and Gerry L. Ensley, Deputy City Prosecutor, Long Beach, for petitioner.

No appearance for respondent.

Fleishman, Fisher & Moest, Stanley Fleishman, Barry A. Fisher, Robert C. Moest and David Grosz, Los Angeles, for real parties in interest.

LUCAS, Chief Justice.

This case involves the enforcement of a Long Beach zoning ordinance that prohibits the location of "adult entertainment businesses" (including adult motion picture theaters) within 500 feet of residential areas, or 1,000 feet of public schools or churches (Long Beach Mun. Code, ch. 21.51, hereafter Chapter 21.51). The ordinance is described as a "non-cluster" or "Anti-skid Row" ordinance because it is designed to discourage development of a "skid row" area by limiting the harmful secondary effects of adult entertainment businesses on adjacent areas, and by insuring such businesses do not contribute to the blighting of surrounding neighborhoods. (See Chapter 21.51.010, "Purpose.") It was patterned after a Detroit adult entertainment zoning ordinance upheld in Young v. American Mini Theatres, Inc. (1976) 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310.

The question before us concerns the appropriate constitutional standard by which to define the "use" necessary to make a movie theater an "adult motion picture theater" within the meaning of the ordinance. 1 In Pringle v. City of Covina (1981) 115 Cal.App.3d 151, 171 Cal.Rptr. 251 the Court of Appeal held that an adult entertainment zoning ordinance cannot be enforced against an adult motion picture theater unless a "preponderance" (meaning "more often than not") of the "adult" films shown by the establishment have as their dominant theme the depiction of the ordinance's enumerated sexual activities.

In following Pringle, subsequent cases interpreting adult entertainment ordinances have required "use" to be defined as "over 50 percent." (Strand Property Corp. v. Municipal Court (1983) 148 Cal.App.3d 882, 889, 200 Cal.Rptr. 47 [construing "use" defined under the ordinance as a "substantial or significant portion of the total presentation time to mean a "preponderance" that must be defined as "over 50 percent"]; Kuhns v. Board of Supervisors (1982) 128 Cal.App.3d 369, 376, 181 Cal.Rptr. 1 [construing "use" defined as a "substantial or significant portion of stock in trade" in adult bookstore ordinance to mean "over half of a bookstore's stock"].) Moreover, the present Court of Appeal believed the People were bound by Pringle 's preponderance standard. (Post, at p. 742-743 of 259 Cal.Rptr., at p. 771-772 of 774 P.2d.) We disagree. As we explain, although municipalities are free to adopt such a test in defining "use" under an adult entertainment ordinance, we conclude Pringle 's preponderance standard is not constitutionally compelled. In place of such a test, we adopt a constitutional standard similar to that recently approved by the United States Supreme Court and several state courts: cities may zone the location of theaters that show, on a regular basis, films characterized by an emphasis on the "specified sexual activities" or "specified anatomical areas" identified in the ordinance, where such films constitute a substantial portion of the films shown or account for a substantial part of the revenues derived from the exhibition of films (hereafter "the regular and substantial course of conduct" standard). (See, e.g., Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41, 55, fn. 4, 106 S.Ct. 925, 933, fn. 4, 89 L.Ed.2d 29; Young, supra, 427 U.S. at p. 59, 96 S.Ct. at p. 2447; see also Town of Islip v. Caviglia (1988) 141 A.D.2d 148, 151, fn. 2, 532 N.Y.S.2d 783, 784-785, fn. 2.)

I. Facts

Real parties in interest Jose Ronillo Abogado Lucero, Walnut Properties, Inc., and Jimmie Johnson (hereafter real parties) were charged in separate misdemeanor complaints with numerous counts of unlawfully establishing an adult entertainment business in violation of Chapter 21.51.

Real parties' establishment, the Lakewood Theater, has two screens: one screen shows general release films and one screen shows adult films. Each count of the misdemeanor complaints specifically alleged real parties unlawfully established an adult theater in violation of Chapter 21.51 by exhibiting an X-rated movie on a particular day within the distances proscribed by the ordinance.

Real parties filed demurrers to the complaints on the ground that exhibition of a single adult film, as alleged in the complaints, did not make the theater an adult entertainment business under the preponderance standard established by Pringle, supra, 115 Cal.App.3d 151, 171 Cal.Rptr. 251. After the municipal court overruled the demurrers, real parties petitioned the superior court for a peremptory writ of mandate directing the lower court to sustain the demurrers. The superior court granted the writ with leave to amend. The People declined to amend and instead requested the Court of Appeal to issue a writ of mandate to compel the superior court to vacate its judgment.

The Court of Appeal denied the writ and rejected the People's contention that a single showing of an adult film makes the theater an adult motion picture theater within the meaning of the zoning ordinance. The court first rejected the People's argument that the "single use" standard adopted by the Court of Appeal in Walnut Properties v. Ussery (Cal.App.) 2 should control the outcome of the present litigation under the law of the case and collateral estoppel doctrines. 3

Next, in rejecting the People's contention that a "single use" standard should apply the Court of Appeal cited with approval Tollis, Inc. v. San Bernardino County (9th Cir.1987) 827 F.2d 1329, which held that a "single use" interpretation of an adult entertainment zoning ordinance was unconstitutional in the absence of evidence "that a single showing of an adult movie would have any harmful secondary effects on the community." (Id. at p. 1333.) The Court of Appeal then denied the People's petition for writ of mandate because the complaints "did not allege, in accordance with the requirements of Pringle, that the preponderance of films exhibited and observed by patrons at the Lakewood Theater were 'distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specific anatomical areas' (Chapter 21.51.020(A) ...) as those terms are defined in Chapter 21.51.020(B)(1-7) and (C)(1-2) of the Long Beach Municipal Code." In reviewing the Court of Appeal opinion, we examine the People's argument requesting we affirm as constitutionally permissible a "single use" standard.

II. Background
A. Constitutionality of adult entertainment zoning

In August 1977 Walnut Properties, Inc. (hereafter Walnut) obtained a business license to operate a motion picture theater on the representation that it intended to exhibit nonadult films. (Walnut Properties v. City Council of the City of Long Beach (1980) 100 Cal.App.3d 1018, 1024, 161 Cal.Rptr. 411.) In November of that year, following the high court's decision in Young, supra, 427 U.S. 50, 96 S.Ct. 2440, the city enacted Municipal Code Chapter 9120.41, which was amended in 1979 to become Chapter 21.51, the ordinance at issue in the present case. The 1979 ordinance is substantially similar to the 1977 version--its primary purpose being to regulate the location of adult motion picture theaters. After the ordinance was passed Walnut began showing adult films.

In December 1977, shortly after Walnut opened its theater, the Long Beach City Council instituted proceedings culminating in the revocation of Walnut's operating license. Walnut sued the city, challenging the constitutionality of the ordinance. (Walnut Properties, supra, 100 Cal.App.3d at p. 1020, 161 Cal.Rptr. 411.) After conceding that its theater was an "adult entertainment business" as defined by the ordinance, Walnut argued the ordinance violated the First Amendment's freedom of speech clause as an unconstitutional regulation of constitutionally protected conduct. In addition, Walnut claimed that the ordinance was vague, overbroad and vested public officials with impermissible discretion to enforce its terms. (Id. at p. 1021, 161 Cal.Rptr. 411; see, e.g., Burton v. Municipal Court (1968) 68 Cal.2d 684, 68 Cal.Rptr. 721, 441 P.2d 281.) The ordinance survived constitutional scrutiny, however, after the Court of Appeal found Young, supra, 427 U.S. 50, 96 S.Ct. 2440, dispositive of the constitutional issues. (Walnut Properties, supra, 100 Cal.App.3d at p. 1023, 161 Cal.Rptr. 411.)

The two Detroit ordinances at issue in Young were termed "Anti-skid Row" ordinances because they prohibited (except where a special waiver was obtained) locating adult theaters and adult bookstores within 1,000 feet of any two other "regulated uses" or within 500 feet of any residential zone. The ordinances' definition of an "adult motion picture theater" was identical to that of the Long Beach ordinance we discuss here. (Young, supra, 427 U.S. at pp. 53-54, fn. 5, 96 S.Ct. at pp. 2444-2445, fn. 5.)

The plurality, led by Justice Stevens, upheld the ordinances on the basis they were not directed at restricting speech, but rather were reasonable time, place and manner regulations necessary to further the city's significant interest in preserving the character of its neighborhoods. The Young court concluded that as long as such ordinances were enacted to regulate the location of adult theaters in order to protect neighborhoods from deterioration, increased crime and other harmful secondary effects, they did not...

To continue reading

Request your trial
12 cases
  • Leider v. Lewis
    • United States
    • California Court of Appeals Court of Appeals
    • January 14, 2016
    ...this civil injunction case could have collateral estoppel effect in any criminal proceeding. (People v. Superior Court (Lucero) (1989) 49 Cal.3d 14, 20, fn. 3, 259 Cal.Rptr. 740, 774 P.2d 769.)Otherwise, the City has failed to address whether the judgment as it currently stands will work an......
  • City of National City v. Wiener, S020887
    • United States
    • California Supreme Court
    • October 29, 1992
    ...... regulations must be 'narrowly tailored' to advance the interest asserted by the State."]; People v. Superior Court (Lucero) (1989) 49 Cal.3d 14, 27, 259 Cal.Rptr. 740, 774 P.2d 769 [Ordinance must be "content-neutral and narrowly tailored to minimize only the adverse secondary effects r......
  • City of Albuquerque v. Pangaea Cinema LLC
    • United States
    • Court of Appeals of New Mexico
    • July 20, 2012
    ...v. Matanuska–Susitna Borough, Nos. A–9674, A–9683, 2007 WL 2143008 (Alaska Ct.App. July 25, 2007); People v. Super. Ct. (Lucero), 49 Cal.3d 14, 259 Cal.Rptr. 740, 774 P.2d 769 (1989). None is persuasive or materially on point with the statutory analysis in this case. {8} Finally, the Guild ......
  • DiRaimo v. City of Providence
    • United States
    • Rhode Island Supreme Court
    • May 19, 1998
    ...Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). See, e.g., People v. Superior Court (Lucero), 49 Cal.3d 14, 259 Cal.Rptr. 740, 774 P.2d 769, 776-77 (1989) (adding a constitutional level of "use" requirement); Town of Islip v. Caviglia, 73 N.Y.2d 544, 542......
  • Request a trial to view additional results
1 books & journal articles
  • Joyce L. Kennard: an independent streak on California's highest court.
    • United States
    • Albany Law Review Vol. 65 No. 4, June - June 2002
    • June 22, 2002
    ...author's research. (16) In fact, Justice Kennard's first opinion on the court was based on legislative issues. See People v. Super. Ct., 774 P.2d 769, 783-85 (Cal. 1989) (Kennard, J., concurring in part and dissenting in part) (concurring in the affirmance of the prior court's ruling in thi......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT