‘Porn Zoning’ Laws to Limit Theaters Upheld by State Supreme Court

The state Supreme Court on Thursday gave local governments more power to use “porn zoning” laws to restrict the location of theaters that show sexually explicit movies.

In a widely watched test of municipal authority, the justices rejected a 1981 appellate court ruling that had prevented officials from enforcing zoning restrictions on adult theaters unless a majority of the films shown were X-rated.

Under the 1981 ruling, a Long Beach theater had avoided prosecution for zoning violations by showing pornographic films on only one of its two screens. Frustrated city prosecutors had asked the high court to invalidate the 1981 decision and allow them to move against the theater for only a single showing of an X-rated film.

In their decision Thursday, the justices, seeking to balance free-speech rights with a city’s interest in curbing blight, adopted a middle course that has been approved in other cases by the U.S. Supreme Court.

The state high court held unanimously that a single showing of such a film was not legally sufficient to subject the theater to porn zoning restrictions. But on a separate vote of 4 to 3, the court said the city could take action when sex movies were shown on a regular basis, accounting for a “substantial portion” of either the total films shown or their revenue.

“We give the ordinance a construction that is rationally tailored to support its asserted purpose of preventing neighborhood blight without allowing Long Beach to use the power to zone as a pretext for suppressing expression,” Chief Justice Malcolm M. Lucas wrote for the majority.

In her first opinion on the court, newly appointed Justice Joyce L. Kennard, joined by Justice Allen E. Broussard, issued a dissent saying the court was premature in imposing a new standard on its own and instead should have waited to review any new guidelines subsequently enacted by the city.

“A local legislative body is better equipped than this court to determine, in light of local conditions, how best to identify those theaters which are likely to become a ‘blight’ on the local community, and to frame a definition which local authorities can enforce and which will provide adequate guidance to those who wish to comply with the law,” Kennard wrote.

In another dissent, Justice Stanley Mosk said the majority had engaged in “judicial legislating” without sufficient evidence that its new standard would help cities control crime, blight and other adverse effects from adult theaters while still protecting the right of free speech.

Gerry L. Ensley, a prosecutor for the city of Long Beach, said the ruling “was exactly what we wanted to accomplish.” Under the 1981 appellate decision, “porn zoning was dead in California,” Ensley said. “That ruling was killing us.”

Thursday’s decision also drew praise from a Los Angeles official who said it would greatly assist municipalities in controlling the location of a wide range of businesses that offer adult entertainment--including theaters, bookstores, arcades and video rental shops.

“This removes a cloud that the (1981) decision had cast on our adult-business ordinances,” said Los Angeles Assistant City Atty. Claudia McGee Henry. “We are very pleased.”

Stanley Fleishman of Los Angeles, an attorney for the Lakewood Theater in Long Beach, said the new standard for defining adult theaters is impermissibly vague and would not adequately preserve the right of free speech.

“These films are protected by the First Amendment and all these zoning laws are really based on the false assumption that somehow the people who come into an adult theater are different from the rest of us,” he said. “But we are all the same people. We are all interested in sex.”

“Once you say a theater can be placed at a certain location, but a theater that shows sex movies cannot be placed there, you have built an ordinance on an unconstitutional foundation,” Fleishman said.

Barry A. Fisher of Los Angeles, another attorney for the theater, said the decision will only lead to more lawsuits. “In the hands of zealous prosecutors, it will be abused and that will open the way to further rounds of litigation and new court tests,” he said.

The ruling came in a 12-year legal fight over a Long Beach ordinance that prohibits adult theaters within 1,000 feet of a school or church and within 500 feet of a residential area.

The concept of using zoning laws to restrict pornography was approved by the U.S. Supreme Court in a landmark 1976 ruling. The court said that while such enterprises cannot be banned, they can be restricted to certain areas or dispersed throughout the community.

Since then, however, municipalities have had trouble drafting ordinances that would win court approval. The courts themselves have been divided over often-pivotal questions, such as how many sexually explicit films must be shown before a theater can be defined as an adult theater.

In 1981, a state Court of Appeal, ruling on a Covina ordinance, held that a theater must show a “preponderance” or a majority of such films to be subject to porn-zoning restrictions.

Seven years later, another Court of Appeal, imposing that standard in the Long Beach case, upheld a trial judge’s finding that the theater owners could not be prosecuted because X-rated films were not in predominant use at the twin-screen theater. While the theater had shown such explicit movies as “Take My Body” and “If Only My Mother Knew” on one screen, only non-pornographic films had been shown on the other.

In Thursday’s ruling, the high court said the city could not proceed with its prosecution of the theater owners because its case had been based on the invalid “single-showing” standard. But authorities could prosecute future ordinance violations by applying the court’s new standard, the justices said.

Lucas, in rejecting the 1981 appellate ruling, said the “preponderance” standard “violates the spirit” of U.S. Supreme Court rulings upholding the right of cities to regulate the location of adult enterprises to protect against their secondary impact on neighborhood residents, businesses and institutions.

The state high court’s new standard will give cities more flexibility--but still will not allow prosecution for only an “occasional or incidental” X-rated movie, the court said.

The justices recognized that their definition was not exact and said that Long Beach and other cities could amend their ordinances to further define the standard for an adult theater by the actual percentage of films shown or revenue received.

Lucas’ opinion was joined by Justices Edward A. Panelli, David N. Eagleson and Marcus M. Kaufman.