Walnut Properties, Inc. v. City of Whittier

• Decision Date: 21 October 1986
• Docket Number: 84-6087,Nos. 84-5755,s. 84-5755
• Citation: 808 F.2d 1331
• Parties: 13 Media L. Rep. 1640 WALNUT PROPERTIES, INC., a California Corporation, and Vincent Miranda, an individual, Plaintiffs/Appellees, v. CITY OF WHITTIER, a Charter City; M.D. Klaxton, R.L. Henderson, L.A. Strong, Gene Chandler, V.A. Lopez, as Members of the Whittier City Council; James Bale, as Chief of Police of the City of Whittier; and John Robert Flandrick, as City Attorney of the City of Whittier, Defendants/Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1331

808 F.2d 1331

13 Media L. Rep. 1640

WALNUT PROPERTIES, INC., a California Corporation, and Vincent Miranda, an individual, Plaintiffs/Appellees, v. CITY OF WHITTIER, a Charter City; M.D. Klaxton, R.L.

Henderson, L.A. Strong, Gene Chandler, V.A. Lopez, as

Members of the Whittier City Council; James Bale, as Chief

of Police of the City of Whittier; and John Robert

Flandrick, as City Attorney of the City of Whittier,

Defendants/Appellants.

Nos. 84-5755, 84-6087.

United States Court of Appeals, Ninth Circuit.

Oct. 21, 1986.

As Amended Jan. 20, 1987.

As Amended on Denial of Rehearing and Rehearing En Banc

March 10, 1987.

Stanley Fleishman, Los Angeles, Cal., for plaintiffs/appellees.

J. Robert Flandrick, City Atty., City of Whittier & Burke, Williams & Sorensen, Katherine E. Stone, Benjamin S. Kaufman, Lisa E. Kranitz, Los Angeles, Cal., for defendants/appellants.

On Remand from the Supreme Court of the United States.

Before BOOCHEVER and BEEZER, Circuit Judges, and SOLOMON, ^* District Judge.

BOOCHEVER, Circuit Judge:

In Walnut Properties, Inc. v. City of Whittier, nos. 84-5755, 84-6087 (9th Cir.1985) (mem.), [762 F.2d 1020 (Table) ], we affirmed the district court's findings and conclusions that the City's ordinance requiring a 1,000 feet separation between an adult theater and a church had been unconstitutionally motivated, that the ordinance had an unconstitutional effect, and that its infringement on first amendment rights was not justified. Thus, we held that the ordinance violated the first amendment because it was not shown to justify legitimate government needs, because it severely restricted protected speech, and because one of the City's reasons for enacting the ordinance was to suppress that speech. Id. at 2. We also held that Walnut Properties' action was not barred by the doctrine of res judicata, and that the district court did not abuse its discretion in awarding attorneys' fees to Walnut. Our disposition was vacated by the Supreme Court, City of Whittier v. Walnut Properties, --- U.S.

----, 106 S.Ct. 1255, 89 L.Ed.2d 566 (1986) (mem.), and the case remanded to this court for further consideration in light of City of Renton v. Playtime Theatres, Inc., --- U.S. ----, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). The parties in Walnut Properties were ordered to submit supplemental briefs addressing the application of Renton on May 1, 1986. We have reconsidered this case in light of Renton, and we vacate the district court's decision. The district court applied our precedents in reaching its conclusions. Because these precedents have been modified by Renton, we find it necessary to remand so that the district court may make new findings and conclusions in light of Renton 's teachings. ¹

FACTS

In Walnut Properties, the district court found that the City's ordinance substantially restricted first amendment interests, and that a motivating factor for enacting the ordinance was to suppress first amendment interests. The district court expressly held that "[t]he provision of the ordinance which prohibits an adult theater from operating within 1000 feet of a church is unconstitutional because the City failed to justify this prohibition."

Walnut Properties owned its theater and began exhibiting adult films in May 1977. On June 22, 1977, the City enacted its first "urgency" ordinance (No. 2116) imposing certain limitations on adult businesses. This ordinance was reenacted several times, resulting in the challenged Ordinance No. 2138 (Nov. 7, 1978). The district court found that

[e]xcept for its proximity to a church, Walnut's theater met all of the locational requirements of the first ordinance. The theater is located in the C-2 zone; is not within 500 feet of any lot classified in any of the R zones; is not within 1000 feet of any lot upon which there is located any public, private or parochial, elementary, Junior High, High School; is not within 1000 feet of any lot upon which there is located a city-owned ... public park; is not within 1000 feet of any lot on which there is located another adult business; and is not within 500 feet of any lot on which there is located a business with [specified types of alcohol beverage licenses].

The court further found that "Walnut Theatre is the only theater in Whittier exhibiting adult films, and it is within 1000 feet of a church." The City of Whittier had prepared a study and report on which the district court relied in part. The court found:

Prior to enacting the first ordinance, the City prepared a report dealing with the concentration of adult businesses and their effect upon immediately adjacent residential and commercial property. The report states that a "brief discussion with a representative of Whittier Presbyterian Church revealed that while the representative was very much aware of the presence of adult businesses, there was no evidence of direct impact on the church." The report noted that churches are closed during the peak hours when adult businesses operate. Therefore, the report stated, the effect of an adult business on a church would naturally be less than on parks.... The report did not reveal sufficient justification for prohibiting an adult theater from operating within 1000 feet of a church, nor did the City present any evidence revealing that any such justification existed.

The court referred to the testimony of Mr. Elvin Porter, Director of Planning of the City of Whittier. Mr. Porter "sought to justify the [1,000 feet] separation, stating that 'most churches are against the display of the human body ... for anyone that wants to view the human body and acts.' " The court found that "[i]t thus appears that a motivating factor in the decision to prohibit an adult business from operating within 1,000 feet of a church was The court next expressly found that the ordinance "makes it impossible to operate an adult theater in the central business district of Whittier because there is no location in that area which is not within 1000 feet of a church, school or park, or within 500 feet of an R-zone." The court concluded that "[s]ince Walnut has the only theater in Whittier exhibiting adult films, its elimination would leave the City without any theaters showing such films, and the ordinance's effect would then be a total exclusion of adult theaters in the City of Whittier." Finally, the court found that

                to restrict plaintiffs' exercise of First Amendment rights."    The court further found that "Mr. Porter also justified the separation of an adult theater from a church by stating that their proximity created a 'morals' conflict."
                

[t]he City has also failed to establish that its desire to prevent blighting and downgrading of commercial and residential areas adjacent to a concentration of adult businesses could not be accomplished without prohibiting an adult theater from operating within 1,000 feet of a church. Indeed, the proximity of an adult theater to a church appears to be totally unrelated to the "blighting and downgrading" of commercial and residential areas adjacent to "concentrated" adult businesses. There is no sufficient factual basis for the City's decision to prohibit an adult theater from operating within 1,000 feet of a church.

ANALYSIS

1. Motive

The Supreme Court stated in Renton that because the city's ordinance did not ban adult theaters altogether, but merely provided that such theaters may not be located within 1,000 feet of residential zones, family dwellings, churches, parks, or schools, the ordinance was properly analyzed as a form of time, place, and manner regulation. 106 S.Ct. at 928. The Court further stated, however, that it "has long held that regulations enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment." Id. (citations omitted) (emphasis added). The district court should thus look to the City's motive in enacting the ordinance before examining whether the ordinance is a valid content-neutral regulation of the time, place, and manner of protected speech.

The district court stated that "a motivating factor" in the City's decision to enact the ordinance was to restrict the exercise of first amendment rights. The court made this finding on the basis of testimony that most churches were opposed to the display of the human body. In Renton the Supreme Court rejected this court's reliance on Tovar v. Billmeyer, 721 F.2d 1260, 1266 (9th Cir.1983), cert. denied, 469 U.S. 872, 105 S.Ct. 223, 83 L.Ed.2d 152 (1984), which held that zoning decisions were invalid if a motivating factor in making them was to restrict the exercise of first amendment rights. 106 S.Ct. at 929. Thus, a finding that "a motivating factor" in enacting the ordinance is to restrict first amendment rights is not of itself sufficient to hold the regulation presumptively invalid. That presumption now applies only if the predominate purpose in enacting the ordinance is suppression of first amendment rights. Id.

The district court in this case made other findings from which it could be inferred that the purpose in enacting the ordinance was to suppress first amendment rights. The ordinance in this case does not by its terms ban adult theaters altogether, but the district court found that it had that effect. Moreover, there are indications in the record that the City enacted its ordinance in response to Walnut Properties' exhibition of adult films.

In Renton, the Court relied upon the district court's finding that "the Renton ordinance is aimed not at the content of the films shown ... but rather at the secondary effects of such theaters on the surrounding community. The District Court found that the City Council's 'predominate concerns' were with the secondary effects of adult theaters...." 106 S.Ct. at 929 (emphasis added by the Court). In contrast, the district court in this case found that the proximity of an adult theater to the church appeared to be "totally unrelated to the...