World Wide Video of Washington v. City of Spokane, CS-02-074-AAM.
| Citation | 227 F.Supp.2d 1143 |
| Decision Date | 11 September 2002 |
| Docket Number | No. CS-02-074-AAM.,CS-02-074-AAM. |
| Parties | WORLD WIDE VIDEO OF WASHINGTON, INC., Plaintiff, v. CITY OF SPOKANE, Defendant. |
| Court | U.S. District Court — Eastern District of Washington |
Gilbert Henry Levy, Seattle, WA, for World Wide Video of Washington, Inc.
Stephen Alan Smith, Todd L. Nunn, Preston Gates & Ellis, LLP, Timothy Szambelan, Assistant City Attorney of the City of Spokane, Seattle, WA, for defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, INTER ALIA
BEFORE THE COURT is defendant's Motion for Summary Judgment (Ct. Rec.32) and Motion to Strike Expert Declarations of R. Bruce McLaughlin and Rich Crisler (Ct.Rec.64). These motions were heard with oral argument on August 22, 2002. Gilbert H. Levy, Esq., appeared for plaintiff. Stephen A. Smith, Esq., Todd L. Nunn, Esq., and Timothy E. Szambelan, Esq., appeared for defendant.
This is a 42 U.S.C. § 1983 action in which plaintiff contends that City of Spokane Ordinances 32778 and 33001 ("the Ordinances") violate its First and Fourteenth Amendment rights. Plaintiff seeks injunctive and declaratory relief and damages.
Defendant City of Spokane staff and outside counsel assembled a legislative record to support the regulation of adult retail businesses.
On November 29, 2000, the City Plan Commission held a public hearing to consider testimony regarding amendments to the Spokane Municipal Code (SMC) regarding Adult Retail Use Establishments. The city attorney's office presented the legislative record and provided the Plan Commission an overview of the secondary impacts of Adult Retail Use Establishments on the community. Fourteen people testified at the hearing.
On December 13, 2000, the Plan Commission considered the public comments and the legislative record and voted 6 to 0 to recommend approval of the proposed amendment to the City Council.
On January 29, 2001, the Spokane City Council unanimously passed Ordinance 32778. This ordinance changed the definition of "Adult Business" in Spokane Municipal Code (SMC) § 11.17.426 to regulate "adult retail use establishments" rather than "adult bookstore[s]." It also removed the definition of "adult bookstore" from SMC § 11.19.03023 and added a definition of "adult retail use establishment." According to § 11.19.03023:
A. An "adult retail use establishment" is an enclosed building, or any portion thereof which, for money or any other form of consideration, devotes a significant or substantial portion of stock in trade, to the sale, exchange, rental, loan, trade, transfer, or viewing of "adult oriented merchandise."
B. "Adult oriented merchandise" means any goods, products, commodities, or other wares, including but not limited to, videos, CD ROMS, DVDs, computer disks or other storage devices, magazines, books, pamphlets, posters, cards, periodicals or non-clothing novelties which depict, describe or simulate specified anatomical areas, as defined in Section 11.19.0355, or specified sexual activities, as defined in Section 11.19.0356.
"Adult retail use establishment[s]" are subject to the distancing requirements of SMC § 11.19.143 which was amended to include such establishments and now reads:
1. An adult retail use establishment and an adult entertainment establishment may not be located or maintained within seven hundred fifty feet, measured from the nearest building of the adult retail use establishment or of the adult entertainment establishment to the nearest building of any of the following pre-existing uses:
f. another adult retail use establishment or an adult entertainment establishment, subject to the provisions of this section.
2. An adult retail use establishment or an adult entertainment establishment may not be located within seven hundred fifty feet of any of the following zones:
g. residence-office.
Ordinance 32778 also added a new section to Title 11 of the SMC by providing for an amortization period of 12 months for adult retail use establishments made nonconforming by the code amendment. A mechanism to extend the amortization period was also provided.
The City then determined it needed to provide more sites for the relocation of adult businesses under Ordinance 32778. The Plan Commission held four hearings (December 12, 2001, December 19, 2001, January 9, 2002, and February 13, 2002) to determine where to locate additional sites. The City Council held a public hearing to consider passage of Ordinance 33001. The Ordinance passed on a vote of five to two.
Plaintiff World Wide Video (WWV) owns three businesses which are affected by the Ordinances. The addresses of these businesses, named either the Hollywood Erotique Boutique or World Wide Video, are 3813 N. Division, 4811 N. Market and 1811 E. Sprague. Each of these businesses is an "adult retail use establishment" under SMC § 11.19.03023.
Ordinance 32778 became effective on March 10, 2001 and therefore, all nonconforming adult retail use establishments were to be terminated by March 10, 2002 (12 months from the effective date of Ordinance 32778). WWV filed an application with the City Planning Director (John Mercer) for an extension of the amortization period. The Planning Director granted a six month extension for each of WWV's properties. WWV filed appeals to the Hearing Examiner under SMC § 11.19.395. The Hearing Examiner denied the appeals in part and held the six month extension commenced on the date of his decision (May 15, 2002). Therefore, as of this time, WWV must terminate its businesses at the aforementioned locations no later than November 15, 2002. Plaintiff has appealed the Hearing Examiner's ruling to Spokane County Superior Court under the Land Use Petition Act, RCW 36.70C.005 et seq.
The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Zweig v. Hearst Corp., 521 F.2d 1129 (9th Cir.), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975). Under Fed. R.Civ.P. 56, a party is entitled to summary judgment where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir.1985). Summary judgment is precluded if there exists a genuine dispute over a fact that might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
The moving party has the initial burden to prove that no genuine issue of material fact exists. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Once the moving party has carried its burden under Rule 56, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Id. The party opposing summary judgment must go beyond the pleadings to designate specific facts establishing a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In ruling on a motion for summary judgment, all inferences drawn from the underlying facts must be viewed in the light most favorable to the nonmovant. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. Nonetheless, summary judgment is required against a party who fails to make a showing sufficient to establish an essential element of a claim, even if there are genuine factual disputes regarding other elements of the claim. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548.
Defendant contends there are no genuine issues of material fact precluding this court from finding as a matter of law that its Ordinances are content neutral and supported by a substantial governmental interest; the Ordinances allow a sufficient number of sites for plaintiff's businesses to relocate; the Ordinances are not vague or overbroad; and the amortization provision is valid and satisfies due process.
Plaintiff contends there are genuine issues of material fact as to each of these propositions which precludes summary judgment and requires the court to conduct a trial.1
Zoning ordinances designed to combat the undesirable secondary effects of adult entertainment businesses are analyzed as "time, place, and manner" restrictions on speech. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), citing with approval Young v. American Mini Theatres, Inc., 427 U.S. 50, 70, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976).2 A city may impose reasonable restrictions on the time, place or manner of protected speech, provided the restrictions are content neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels for communication of the information. Colacurcio v. City of Kent, 163 F.3d 545, 551 (9th Cir.1998), cert. denied, 529 U.S. 1053, 120 S.Ct. 1553, 146 L.Ed.2d 459 (2000).
A zoning ordinance is analyzed as a time, place, and manner restriction on speech "if the predominant purpose of the ordinance is the amelioration of secondary effects in the surrounding community." Id. at 551. Secondary effects are "regulatory targets that happen to be associated with the type of speech." Boos v. Barry, 485 U.S. 312, 320, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988).
Plaintiff contends that is not the predominant...
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