Cities Say Court Decision Will Help in Battle Against Adult Businesses

The U.S. Supreme Court’s decision to uphold the right of a community to restrict locations for adult movie theaters through zoning laws was only a few hours old when worried clients began calling attorney Roger Diamond.

Diamond, who represents adult bookstores in several California cities from Bakersfield to South San Francisco, including Stanton and Garden Grove in Orange County, said Tuesday that the high court’s decision could have implications for new businesses that would sell or show sexually explicit material.

“It’s definitely bad news for adult bookstore owners,” said Diamond. The Pacific Palisades attorney said he would have to study the court’s opinion before formulating his defense in Stanton and in other cases.

The Supreme Court ruled that a zoning ordinance passed by the City of Renton, Wash., which prevents adult theaters from locating within 1,000 feet of any school, church, park or home, is constitutional. Twelve Orange County cities have such laws, although only one, Stanton, has had to take any action to attempt to close a business because it violated the law.

The ruling will not affect the City of Santa Ana’s 10-year battle to close the Mitchell Bros. adult movie theater because the 17th Street business predated the city’s 1977 zoning ordinance. A lower court has ruled that such ordinances cannot be made retroactive.

In the Stanton case, the Earmark Bookstore opened last March--before city officials realized that X-rated fare and peep shows would be offered. “They went in and applied for a business license to open a bookstore, but there was no reference to any adult entertainment activities,” City Atty. Thomas Allen said.

After officials saw what was on some of Earmark’s shelves, in a section cordoned off from the rest of the store, the city filed a lawsuit last year. A Superior Court judge denied Stanton’s request for a preliminary injunction closing the store pending a trial, and a mandatory settlement conference is scheduled for April.

Allen said the city had been waiting to see what action the court would take on the Renton case before pushing ahead with the lawsuit. “We’ll probably accelerate our efforts now,” he said, noting that demands for a speedy trial would probably be part of that tactic.

Earmark owner Ginger Cox could not be reached for comment Tuesday. However, in the past she has stated her determination to remain open despite the lawsuit and pickets organized by local churches. Although the pickets’ ranks have dwindled since they began their protests last August, a store employee said two or three still show up once a week.

Earmark attorney Diamond said he has attempted to show that the city’s ordinance, which restricts adult businesses from all but “highway commercial zones” and sets limits of 500 feet from residences, churches or schools, effectively prevents Cox from locating in Stanton.

“We say there is no place. I don’t think there are any vacancies, so she has no place to go,” Diamond said. “We could build on a vacant lot but that’s obviously not feasible.”

But Allen said he believes the city doesn’t have to provide a specific location for an adult business and has submitted a map of the city to the court showing all the areas in which the bookstore could locate. “There’s no obligation for the city to find them a location. We wouldn’t do that for a regular bookstore,” he said.

In Corona, Diamond successfully defended another bookstore that had been ordered by the city to relocate, getting a lower federal court to rule that the city could not make zoning laws retroactive. Despite the legal efforts, the owner decided to close the store anyway because of low profits.

Corona City Manager James Wheaton applauded Tuesday’s ruling, noting that the city’s law was invalidated by the courts only “as it related to the existing bookstore. The judge said the Corona ordinance did not have a sufficient grandfather clause . . . but certainly we could apply the ordinance in the future.”

Diamond noted that the tactic is a popular method for cities throughout the country to attempt to bar adult businesses. “However, in most of those cases, the bookstore was there first,” he said, explaining that newly passed laws cannot force existing businesses “out of existence.”

That’s the case in all the other county cities with such laws, which aim to block future proliferation of adult businesses.

In Santa Ana, for example, the 1977 law prevents adult businesses from locating within 1,000 feet of another adult business or 300 feet of schools, residences and churches. The only enforcement so far, according to City Atty. Edward C. Cooper, came after a Harbor Boulevard bookstore was closed for a year when the district attorney’s office successfully prosecuted for lewd activities within peep show areas.

When the store attempted to reopen, it was denied a permit because another bookstore existed two doors away.

Other officials of cities with adult zoning ordinances said the decision adds some teeth to their efforts to restrict such businesses.

Although there have been no new applications since Costa Mesa enacted its zoning ordinance, City Atty. Tom Wood said it is reassuring to know that the law will stand up if challenged. “What it will do is stop someone from challenging its constitutionality, so I’m very pleased with the decision,” he said.

Brea City Atty. James Markman said the city has been studying such laws. Brea does have a law restricting adult businesses to highway commercial zones (which allow such uses as motels, plumbing supply stores and auto dealers) but has no Renton-like restrictions on distance from residences or churches.

“Now it appears that you might be able to zone them into industrial areas, but I’ll have to read the opinion before making any recommendation to the council,” Markman said.

In Garden Grove, which contains five adult bookstores, the city hasn’t had any need to enforce its law, which rules out sites within 200 feet of homes or 1,000 feet of another adult business, church, park or school, said Deputy City Atty. William McNames.

Instead, Garden Grove is prosecuting the stores in an attempt to regulate the bookstores’ peep show areas to be sure they are open, well-lit, clean and pose no fire hazards. “In effect, (those regulations) discourage illicit activities” such as sexual activity and drug dealing, McNames said.

Staff writer Barry S. Surman contributed to this story.