Wiener v. County of San Diego, 92-56573

• Citation: 23 F.3d 263
• Decision Date: 02 May 1994
• Docket Number: No. 92-56573,92-56573
• Parties: Steven D. WIENER, dba Fantasyland Adult Books, Plaintiff-Appellant, v. COUNTY OF SAN DIEGO, a political subdivision of the State of California, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 263

23 F.3d 263

Steven D. WIENER, dba Fantasyland Adult Books, Plaintiff-Appellant, v. COUNTY OF SAN DIEGO, a political subdivision of the State of California, Defendant-Appellee.

No. 92-56573.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 5, 1994.

Decided May 2, 1994.

G. Randall Garrou, Clyde F. DeWitt, Weston, Sarno, Garrou & DeWitt, Beverly Hills, CA, for plaintiff-appellant.

Lloyd M. Harmon, Jr., County Counsel, Diane Bardsley, Chief Deputy by Mark C. Mead, Deputy, San Diego, CA, for defendant-appellee.

Appeal from the United States District Court for the Southern District of California.

Before: BROWNING, PREGERSON, and BRUNETTI, Circuit Judges.

Opinion by Judge PREGERSON

PREGERSON, Circuit Judge:

Steven Wiener, d/b/a Fantasyland Adult Books, appeals the district court's dismissal of his 42 U.S.C. Sec. 1983 action challenging a San Diego County zoning ordinance (Ordinance No. 8015) that regulates adult bookstores, and the district court's denial of his motion for a preliminary injunction. We have jurisdiction over the dismissal order under 28 U.S.C. Sec. 1291, and over the denial of the preliminary injunction motion under 28 U.S.C. Sec. 1292(a)(1). Because we conclude that Younger abstention did not apply, we reverse and remand.

BACKGROUND

Appellant Steven Wiener ("Wiener") owns and operates Fantasyland Adult Books ("Fantasyland"), which specializes in selling, renting, and exhibiting adult video tapes, and in selling adult books, magazines, and novelties. ¹ Fantasyland is the only adult entertainment business in unincorporated San Diego County, California. It is located approximately 400 feet from two areas which are zoned for residential use.

In September 1990, Wiener was charged in the San Diego Municipal Court with violating Sec. 6930b of the San Diego County Zoning Ordinance (the "Zoning Ordinance"), which was in effect at the time. The County alleged that Zoning Ordinance Sec. 6930b, entitled "Adult Entertainment Establishments," made it unlawful for Wiener to operate an adult bookstore within 500 feet of an area zoned for residential use. (Ordinance No. 6983) (requiring an administrative permit for adult entertainment establishments and providing that permits would be issued unless a business was improperly located). Wiener demurred on the ground that Sec. 6930b was unconstitutional because it neither specified a time limit for the County to grant or deny administrative permits nor clearly stated that a violation of the locational restrictions was a prosecutable offense. The municipal court sustained the demurrer on both grounds, finding that the ordinance was a standardless prior restraint that was facially unconstitutional.

On January 9, 1991, the County Board of Supervisors (the "County Board") amended Zoning Ordinance Sec. 6930b on an interim, emergency basis to correct the constitutional defects noted by the municipal court and to buy time to adopt permanent restrictions. (See Ordinance No. 7849). The interim ordinance, Ordinance No. 7849, imposed the following locational restrictions on adult entertainment establishments: "No person shall cause or permit the establishment, substantial enlargement or transfer of ownership or control of any adult entertainment establishment within 500 feet of any area zoned so as to permit residential use by right ... nor without first obtaining an Administrative Permit therefor...." Id. The County Board subsequently extended the life of interim Ordinance No. 7849 to January 7, 1992, without changing the locational restrictions. (Ordinance No. 7862).

On May 24, 1991, the County brought an abatement action in the San Diego County Superior Court to enjoin Fantasyland from violating the Sec. 6930b locational restrictions, as amended by interim Ordinance No. 7849 and No. 7862 [hereinafter Ordinance No. 7849]. Wiener filed a cross-complaint against the County for declaratory and injunctive relief, alleging in part that Sec. 6930b, as amended, was unconstitutional. Wiener's cross-complaint did not allege, as a constitutional challenge, that the locational restrictions were invalid for failing to leave adequate alternative locations for adult entertainment establishments in the unincorporated County. In his opening trial brief, Wiener explained that, although he believed the restrictions violated the First Amendment by being overly restrictive, he declined to make this challenge due to practical considerations. He knew that, by its own terms, the interim ordinance would expire within one year, and therefore chose to argue that it did not apply to Fantasyland as a matter of statutory construction, rather than hire experts to prove its impermissibly restrictive impact, which would have been a more complicated and expensive argument.

On December 4, 1991, while the state court action was pending, the County Board adopted Ordinance No. 8015, which consisted of permanent amendments to the Zoning Ordinance. The new ordinance was intended to "make[ ] numerous changes to the San Diego County Zoning Ordinance in order to regulate adult entertainment establishments...." (Ordinance No. 8015, Sec. 1). Section 15 repealed Sec. 6930b of the Zoning Ordinance. However, after rejecting other proposals, the County Board reenacted the section with the identical locational restriction of a 500 foot distance from areas zoned for residential use. (Ordinance No. 8015, Sec. 15) (section amended to apply not only to the establishment, but also to the operation of, adult entertainment establishments). ² Ordinance No. 8015 did not become effective until January 4, 1992.

On December 18, 1991, after Ordinance No. 8015 was adopted but before it became effective, the superior court mailed its Statement of Decision, enjoining Wiener from violating the soon-to-expire interim Ordinance No. 7849. On December 20, 1991, Wiener filed a civil rights action in U.S. district court under 42 U.S.C. Sec. 1983, alleging that Ordinance No. 8015 violated the First Amendment. At the same time, in the district court action, Wiener filed a motion for a preliminary injunction to prevent enforcement of Ordinance No. 8015.

In response to the state court's Statement of Decision, the County prepared a proposed final judgment, asking the court to enjoin Wiener from violating not only Ordinance No. 7849, but also the new ordinance, Ordinance No. 8015. Wiener's attorneys responded that if the state court chose to address Ordinance No. 8015, Wiener would want to amend his complaint to include a new First Amendment challenge to its enforcement. Wiener's attorneys also explained that they recently had filed a Sec. 1983 action in federal court to challenge the constitutionality of Ordinance No. 8015 under the First Amendment. In response, the court expressly refused to rule on application of the new ordinance. The court explained:

[T]he decision of this Court ... [does] not include the new ordinance which went into effect and repealed the ordinance that was before the court.... I'm not considering [Ordinance No. 8015] for purposes of the decision ... nor am I going to include it in any judgment that will be signed by the court since it was not before the court. And there may be different issues that are going to arise out of the terminology that's contained within the new ordinance.

(Superior Ct. RT, 1/6/92, p. 3). On February 5, 1992, the superior court issued a Judgment Granting Permanent Injunction to the County which enjoined violations of Ordinance No. 7849. Wiener then appealed to the state court of appeal.

On December 3, 1992, the district court ruled on Wiener's Sec. 1983 challenge to Ordinance No. 8015 and his preliminary injunction motion. Based on Younger abstention the district court denied the preliminary injunction motion and dismissed the Sec. 1983 action. Subsequently, on June 21, 1993, the state court of appeal dismissed Wiener's appeal as moot because the interim ordinance had expired. Wiener appeals the district court's order. ³

ANALYSIS

1. Dismissal Of Wiener's Action Based On Younger Abstention

We review de novo whether Younger abstention was required. Kenneally v. Lungren, 967 F.2d 329, 331 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 979, 122 L.Ed.2d 133 (1993). Younger abstention is required when: (1) state judicial proceedings are pending; (2) the state proceedings involve important state interests; and (3) the state proceedings afford the federal plaintiff an adequate opportunity to litigate federal constitutional claims. See id.; World Famous Drinking Emporium v. City of Tempe, 820 F.2d 1079, 1082 (9th Cir.1987). When all three conditions are present, a district court must dismiss the federal action. World Famous Drinking Emporium, 820 F.2d at 1081. Wiener concedes that the state proceeding implicated important state interests. Therefore, we address only the first and third predicates for Younger abstention.

A. Pending state judicial proceeding

To decide whether there was a pending state judicial proceeding within Younger, we focus on the status of the state court proceeding at the time of the district court's decision rather than on its current status on appeal. Therefore, our decision is not influenced by the dismissal of the state court appeal which occurred after Wiener filed his complaint in federal court. "[T]he critical question is not whether the state proceedings are still 'ongoing' but whether 'the state proceedings were underway before initiation of the federal proceedings.' " Kitchens v. Bowen, 825 F.2d 1337, 1341 (9th Cir.1987) (quoting Fresh Int'l Corp. v. Agricultural Labor Relations Bd., 805 F.2d 1353, 1358 (9th Cir.1986) (focusing on the time that the federal action was initiated and ignoring that the state court proceeding was subsequently remanded)), cert. denied, 485 U.S. 934, 108 S.Ct. 1109, 99 L.Ed.2d 270 (1988). Nonetheless, Wiener's arguments convince us that there was no pending state judicial proceeding to...