Tollis, Inc. v. County of San Diego, 05-56300.

• Decision Date: 10 October 2007
• Docket Number: No. 05-56300.,05-56300.
• Citation: 505 F.3d 935
• Parties: TOLLIS INC.; 1560 N. Magnolia Avenue, LLC, Plaintiffs-Appellants, v. COUNTY OF SAN DIEGO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

505 F.3d 935

TOLLIS INC.; 1560 N. Magnolia Avenue, LLC, Plaintiffs-Appellants, v. COUNTY OF SAN DIEGO, Defendant-Appellee.

No. 05-56300.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 11, 2007.

Submission Withdrawn August 8, 2007.

Resubmitted October 2, 2007.

Filed October 10, 2007.

A. Dale Manicom, San Diego, CA; Bradley J. Shafer, Shafer & Associates, Lansing, MI, for the plaintiffs-appellants.

Thomas D. Bunton and John J. Sansone, County Counsel, San Diego, CA, for the defendant-appellee.

Appeal from the United States District Court for the Southern District of California; Larry A. Burns, District Judge, Presiding. D.C. No. CV-02-02023-LAB/RBB.

Before: BARRY G. SILVERMAN, W. FLETCHER, and RICHARD R. CLIFTON, Circuit Judges.

SILVERMAN, Circuit Judge:

In June 2002, the San Diego County Board of Supervisors adopted a comprehensive zoning ordinance to govern the operation of adult entertainment businesses within its jurisdiction, which covers the unincorporated portions of the county. The ordinance restricts the hours in which such businesses can operate, requires the removal of doors on peep show booths, and mandates that the businesses disperse to industrial areas of the county. The County's purported rationale for the ordinance was to combat negative secondary effects — crime, disorderly conduct, blight, noise, traffic, property value depreciation, and unsanitary behavior — that concentrate in and around adult businesses.

The two adult entertainment establishments presently operating in the unincorporated portions of San Diego County filed suit. In this appeal, the operators of one of the establishments, Déjà Vu, appeal the district court's decision to uphold the ordinance's dispersal requirements. They also appeal the district court's dismissal of their state law claim under California Government Code § 65860, which requires zoning laws to conform to the municipality's general plan, and the district court's decision to sever a provision of the ordinance setting forth the amount of time in which the County had to approve an operating permit for adult establishments.

We hold that the district court's manner of severance was in error and reverse on that ground. We affirm in all other respects.¹

I. Background

In June 2002, citing to concerns about the surrounding neighborhood, the San Diego County Board of Supervisors adopted a comprehensive set of regulations and licensing procedures governing adult entertainment establishments within its jurisdiction. The ordinances took effect the following month.

1560 N. Magnolia Ave., LLC, using property leased from Tollis, Inc., operates an adult bookstore in the Bostonia neighborhood of the county under the name "Déjà Vu." These businesses (hereinafter, "Déjà Vu") initiated federal and state constitutional challenges against the new ordinances, seeking declaratory and injunctive relief.

The district court granted summary judgment to the County, upholding the ordinance's requirement that adult establishments locate only in industrial zones.² See Fantasyland Video, Inc. v. County of San Diego, 373 F.Supp.2d 1094, 1130-43 (S.D.Cal.2005). The court also dismissed Déjà Vu's state law claim under California Government Code § 65860, regarding conformance to the County's general plan. Id. at 1129-30. Finally, the district court held that the County's permitting regime for adult establishments was unconstitutional because it granted the licensing body an unreasonably long period of time to consider a permit request. Id. at 1143-46. The court opted to sever the offending time limits from the ordinance. Id. at 1146-47.

This timely appeal followed.

II. Jurisdiction

The district court had subject matter jurisdiction over Déjà Vu's constitutional claims under 28 U.S.C. §§ 1331, 1343(a), and over its state claim under 28 U.S.C. § 1367(a). We have jurisdiction under 28 U.S.C. § 1291.

III. Standard of Review

We review de novo the district court's grant of summary judgment and, viewing the evidence in a light most favorable to the non-moving party, determine whether there are any genuine issues of material fact for trial. See Gammoh v. City of La Habra, 395 F.3d 1114, 1122 (9th Cir.2005).

IV. Discussion

A. Industrial Zone Restriction

The constitutionality of the challenged provision is governed by the framework announced in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). As recounted by Center for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir.2003), this familiar inquiry proceeds in three distinct steps: First, the ordinance cannot be a complete ban on the protected expression. Id. at 1159. Second, the ordinance must be content-neutral or, if content-based with respect to sexual and pornographic speech, its predominate concern must be the secondary effects of such speech in the community. Id. at 1159, 1161. Third, the regulation must pass intermediate scrutiny. It must serve a substantial government interest, be narrowly tailored to serve that interest, and allow for reasonable alternative avenues of communication. Id. at 1159.

Déjà Vu raises two arguments on appeal both relating to the third step. It first contends that a concurrence by Justice Kennedy in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 444-53, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002), radically altered the traditional Renton framework by imposing an additional burden on the County to show "how speech would fare" under the new ordinance.³ Alternatively, Déjà Vu argues that the ordinance is unconstitutional under the traditional Renton framework because all the potential relocation sites are located within the County's industrial zones. We address each in turn.

1. Justice Kennedy's Alameda Books Concurrence

To justify a content-based zoning ordinance that restricts sexual and pornographic speech, Justice Kennedy wrote that "a city must advance some basis to show that its regulation has the purpose and effect of suppressing secondary effects, while leaving the quantity and accessibility of speech substantially intact." 535 U.S. at 449, 122 S.Ct. 1728. By adding the last clause, Justice Kennedy said he was expressing an interest in "how speech will fare" after the ordinance is enacted. Id. at 450, 122 S.Ct. 1728. The city must have some basis to think that its ordinance will suppress secondary effects, but not also the speech associated with those effects. Id. at 449-50, 122 S.Ct. 1728.

In Alameda Books, the disputed ordinance prohibited multiple adult businesses from operating under the same roof. Under Justice Kennedy's construct, the City of Los Angeles must have had some basis to assume three propositions: "[1] that this ordinance will cause two businesses to split rather than one to close, [2] that the quantity of speech will be substantially undiminished, and [3] that total secondary effects will be significantly reduced." 535 U.S. at 451, 122 S.Ct. 1728.

The first proposition mirrors the "alternative avenues of communication" requirement under intermediate scrutiny, which requires that the displaced business be given "a reasonable opportunity to open and operate." See Renton, 475 U.S. at 53-54, 106 S.Ct. 925. The third proposition restates the requisite "substantial governmental interest" for regulating adult establishments based on their secondary effects. See id. at 50, 106 S.Ct. 925.

But what of the second proposition? Justice Kennedy's reference to whether the "quantity of speech will be [left] substantially undiminished" is shorthand for asking whether the ordinance will impose a significant or material inconvenience on the consumer of the speech. At the time of enactment, the city must have some reasonable basis to believe that interested patrons would, for the most part, be undeterred by the geographic dispersal of the adult establishments. See Alameda Books, 535 U.S. at 450, 122 S.Ct. 1728 ("[I]t does not suffice to say that inconvenience will reduce demand and fewer patrons will lead to fewer secondary effects.").

Justice Kennedy then noted that the evidentiary burden to establish these propositions was minimal. See id. at 451-52, 122 S.Ct. 1728. He found that the City of Los Angeles had met its initial burden. It had relied on one study and "common experience" to find a correlation between adult establishments and crime, and could reasonably infer that geographic dispersal of the adult establishments would not necessarily decrease the quantity or accessibility of the speech. Id. at 452-53, 122 S.Ct. 1728. The burden then shifted to the plaintiffs to disprove the City's assumptions. Id. at 453, 122 S.Ct. 1728.

We reach the same conclusion here. The County's legislative record cites to a number of sources — studies and reports from other jurisdictions, relevant judicial decisions, and public testimony — to assert a connection between the adult establishments and negative secondary effects. A municipality may rely on these types of sources. See Ctr. for Fair Pub. Policy, 336 F.3d at 1168. The County could then reasonably infer that isolating of adult businesses to industrial zones would have the purpose and effect of reducing crime, disorderly conduct, and property depreciation, as such zones are located away from residential areas and have little other commercial appeal at night. Déjà Vu's attempt to cast doubt on the County's conclusions fails as a matter of law because its expert, Daniel Linz, Ph.D., a professor in the Department of Communication's Law and Society Program at the University of California Santa Barbara, did not rebut the County's evidence with regard to noise and traffic. The evidence presented by Dr. Linz addressed only late night crime and property values. The County considered these factors, but its purported rationale for isolating adult businesses to industrial zones also included combating increased noise and traffic. Déjà Vu's failure to address these...