Walnut Properties, Inc. v. City Council

• Decision Date: 14 January 1980
• Citation: 100 Cal.App.3d 1018,161 Cal.Rptr. 411
• Court: California Court of Appeals Court of Appeals
• Parties: WALNUT PROPERTIES, INC., a California Corporation, Petitioner and Appellant, v. LONG BEACH CITY COUNCIL, Respondent. Civ. 54469.

Page 411

161 Cal.Rptr. 411

100 Cal.App.3d 1018

WALNUT PROPERTIES, INC., a California Corporation, Petitioner and Appellant, v. LONG BEACH CITY COUNCIL, Respondent.

Civ. 54469.

Court of Appeal, Second District, Division 2, California.

Jan. 14, 1980.

Hearing Denied Mar. 13, 1980.

Rhine, McDaniel & Thorp, Los Angeles, for petitioner and appellant.

Robert W. Parkin, City Atty., Arthur Y. Honda, Deputy City Atty., for respondent.

Frederick W. Clough, City Atty. for City of Santa Barbara, amicus curiae for respondent.

COMPTON, Associate Justice.

On August 31, 1977, Walnut Properties, Inc. (Walnut) obtained a business license to operate a motion picture theatre in the City of Long Beach. Walnut had recently acquired an existing theatre from a prior owner. A business license, which is essentially a revenue-producing device, is issued subject to applicable zoning and building regulations. (L.B.Mun.Code, § 6000.9.)

Walnut opened its theatre on December 10, 1977, and shortly thereafter the City of Long Beach (City) through its City Council, instituted proceedings which culminated in the revocation of Walnut's business license in June of 1978. The basis for the revocation was a violation of the City's zoning ordinance. That ordinance had been enacted on October 25, 1977 and became effective on November 25, 1977.

This appeal followed Walnut's unsuccessful attempt in the superior court to secure a writ of mandamus compelling the City to set aside its revocation of Walnut's business license. Walnut's petition for mandate attacks the constitutionality of the zoning ordinance.

The zoning ordinance in question (L.B.Mun.Code, § 9120.41, attached hereto as Appendix A) creates a category of "adult entertainment business" and prohibits the establishment of such a business in certain locations in the City. Germane to this case is the prohibition against locating an "adult entertainment business" within 500 feet of a residential area, or 1000 feet of a public school. Walnut's theatre falls under both limitations.

Walnut concedes that it did show and plans to continue showing movies which fall within the ambit of the ordinance. Walnut has not applied for a waiver or variance from the zoning restriction. It simply seeks to invalidate the entire ordinance on the grounds that it is an unconstitutional regulation of constitutionally protected conduct. It raises the additional contention that the ordinance is vague, overbroad and vests public officials with excessive discretion in enforcing of the terms of the ordinance.

The ordinance here is patterned after and in its key provisions, is identical to an ordinance adopted in the City of Detroit, which ordinance was approved by the United States Supreme Court in Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310. Except for Walnut's argument that, as applied to it, the City has improperly given the ordinance retroactive effect, all contentions raised by Walnut were considered and resolved by the Young court in favor of the City.

Since Walnut concedes that its operation of the theatre is an "adult entertainment business" as defined by the ordinance, it would ordinarily lack the requisite standing to challenge the ordinance for vagueness or overbreadth. Walnut seeks to avoid the impact of that principle by pointing to the fact that motion pictures are a form of speech and by characterizing the ordinance as an infringement on freedom of speech. (Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830; Burton v. Municipal Court, 68 Cal.2d 684, 68 Cal.Rptr. 721, 441 P.2d 281.)

This approach was rejected in Young v. American Mini Theatres, supra, on the basis that the ordinance did Not "have a significant deterrent effect on the exhibition of films protected by the First Amendment." (Young, 427 U.S. at p. 60, 96 S.Ct. at p. 2447.)

"(T)he only vagueness in the ordinances relates to the amount of sexually explicit activity that may be portrayed before the material can be said to be 'characterized by an emphasis' on such matter. For most films the question will be readily answerable; to the extent that an area of doubt exists, we see no reason why the ordinances are not 'readily subject to a narrowing construction by the state courts.' . . . (W)e think this is an inappropriate case in which to adjudicate the hypothetical claims of persons not before the Court." (Young, At p. 61, 96 S.Ct. at p. 2447, 2448.)

The Young case is dispositive of the vagueness claims raised here. The same reasoning applies to the overbreadth challenge. (Northern Cinema, Inc. v. City of Seattle, 90 Wash.2d 709, 585 P.2d 1153.)

In the final analysis Walnut's position essentially is that the City may not create zoning regulations applicable to theatres which are based on the content of the films exhibited therein. It claims a constitutional right to exhibit any non-obscene films it chooses at the location in question.

Walnut correctly points out that motion pictures are included within the free speech and free press protection of the First Amendment. (Joseph Burston, Inc. v. Wilson 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098; Burton v. Municipal Court, supra.) It does not follow, however, that a motion picture exhibitor has absolute freedom to exhibit every motion picture at any place and under any circumstances that it desires. A municipality may impose regulations upon the operation of any business including that of a motion picture theatre. (Burton, supra.)

It is settled that general regulatory statutes "Not intended to control the content of speech But incidentally limiting its unfettered exercise, . . . when they have been found justified by subordinating valid governmental interests," do not run afoul of the First Amendment. (Crownover v. Musick, 9 Cal.3d 405, 419, 107 Cal.Rptr. 681, 690, 509 P.2d 497, 506.) In particular, zoning ordinances, when reasonable in object and not arbitrary in operation, will be sustained as within the legitimate exercise of the police power. (Hill v. City of Manhattan Beach, 6 Cal.3d 279, 98 Cal.Rptr. 785, 491 P.2d 369.) If the validity of the legislative classification for zoning purposes is fairly debatable, the courts will not interfere with the municipality's determination of policy. (Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797; Associated Home Builders Etc., Inc. v. City of Livermore, 18 Cal.3d 582, 135 Cal.Rptr. 41, 557 P.2d 473.) Applying these principles, we turn to examine the Long Beach ordinance.

The "adult entertainment" ordinance was passed to insure that "adult entertainment" businesses "will not contribute to the blighting or downgrading of the surrounding neighborhoods. The primary purpose of the regulation is to prevent the concentration or clustering of these businesses in any one area." (L.B.Mun.Code, § 9120.41(a).)

The issue of whether the ordinance is in reality a regulation of conduct protected by the First Amendment was addressed in Young v. American Mini Theatres, supra. The crucial element for both Justice Stevens, writing for the plurality, and Justice Powell in concurring, was that the ordinance did not restrict access to adult movies or access to the adult movie market.

The City's ordinance here, like the Detroit ordinance, does not prohibit the exhibition of any motion picture. It simply specifies the area within the city where certain well-described types of films may be exhibited.

It is clearly within the power of the City to provide that No Motion picture theatre can be operated in a residential area or near a public school. The thrust of Justice Steven's opinion in Young Was that it was also within the City's power to classify theatres according to the content of the films exhibited, so long as that classification has a reasonable basis. The "adult entertainment" classification is a reasonable one.

Walnut has presented no evidence that the City's ordinance in any way restricts or eliminates the access to the "adult entertainment" for those persons who desire to patronize it. In fact, Walnut operates another such theatre in a different part of the city. From records which we may judicially notice, it appears that Long Beach has a number of "adult" forms of entertainment operating within its boundaries.

Finally we turn to Walnut's claim that the ordinance as applied to it, has been given retroactive application. This is another way of stating the long-accepted principle that a zoning ordinance may not be used to deprive a person of a vested property right a violation of due process. (Raley v. California Tahoe Regional Planning Agency, 68 Cal.App.3d 965, 137 Cal.Rptr. 699; Avco Community Developers, Inc. v. South Coast Regional Com., 17 Cal.3d 785, 132 Cal.Rptr. 386, 553 P.2d 1001; Hill v. City of Manhattan Beach, 6 Cal.3d 279, 98 Cal.Rptr. 785, 491 P.2d 369.)

The City's ordinance, like most zoning ordinances, has an exemption for existing non-conforming uses. Further, it impacts only on the future establishment of "adult entertainment" businesses. The "establishment" of a new business includes relocation or conversion of an existing business. (L.B.Mun.Code, § 9120.20(c).)

While the theatre in question here, under other ownership, has been in existence for some 25 years, it previously operated as the usual neighborhood type theatre. Walnut obtained its business license on the representation that it simply intended to continue the existing type of operation, exhibiting "family" type films. The theatre was in fact closed for remodeling at the time Walnut obtained its license and did not open again until well after the effective date of the new zoning ordinance.

Walnut did not acquire a vested right to operate an "adult entertainment" business by the acquisition of a closed building and a business license to operate a motion picture theatre. In other words, the property was not being put to a lawful use which use continued up to and after the time the use became...