*1 Oct. 1992.] S020887. [No. CITY, and Appellant, Plaintiff
CITY OF NATIONAL al., Respondents. Defendants and WIENER et STEVEN D.
Counsel III, Harter, City Kaye Eiser and Linda Assistant
George City Attorney, H. for Plaintiff and Attorney, Appellant. Witt, Swett, (San
John W. Stuart H. Chief City Attorney Diego), Deputy David L. Schilling, City Attorney, Llewellyn, M. Attorney, Joseph Deputy Jr., H. and Gene Amici Curiae on behalf Robert Showers L. Malpas Plaintiff and Appellant. Atkins, Sarno, R. Randall Garrou
Norman Weston & John H. Weston and G. for Defendants and Respondents.
Opinion ARABIAN, J. question we consider is the of a constitutionality The municipal zoning ordinance that regulates adult entertainment establish ments. The precise issue is whether a zoning ordinance that combines both regulations distance and an exception for location of adult businesses certain shopping malls conforms with Amendment First under the principles Theatres, standard in City set forth Playtime Renton v. 475 Inc. 41 (Renton). 106 S.Ct. We conclude that the ordinance 925] is constitutional. Background
I. Facts and Procedural (the City National city or City City) National is located approximately accessible, five miles from downtown San It Diego. crisscrossed highly by arterials, major two freeways, several major and an abundance of surface street traffic. file To west lies San Its three Diego Bay. other borders lie adjacent to property belonging to other cities and the of San County Diego. It is home to large naval installation significantly that affects the area traffic, resources, terms of public and crime. 5,536 city’s 3,196 total area is square 8.65 or miles gross Only acres. acres, land, or 58 percent of the are city’s available for any land use purpose 3,196 acres, acres, whatsoever. Of those 572 or 17.9 of the total net percent acres, use; 1,296 are acres, zoned for commercial or 40.6 percent, are zoned use; acres, for residential use; 541 or 16.9 percent, are zoned for industrial acres, and institutional, 787 or 24.6 are zoned percent, including military, use. In December Wiener, Steven respondents D. doing and individually Bookstore,
business as Chuck’s and his sister Patricia Sanders (respondents) arcade, Bookstore, National at adult Chuck’s an bookstore opened thereafter, an action city brought Shortly the city.1 Boulevard City injunction against permanent court seeking preliminary superior chap- by respondents pursuant of Chuck’s Bookstore operation continued The city code adult establishments. 18 of the city municipal regulating ter nui- law statutory constituted a common claimed bookstore sance,2 of the in violation of certain sections and that the was operating store code, con- ultimately Respondents section including 18.69.030.3 municipal of its by prox- violated ordinance virtue ceded that Chuck’s Bookstore and a residential both adult entertainment establishment another imity area, claimed that section 18.69.030 was unconstitutional. but (the ordinance) section
City municipal prohibits code 18.69.030 business, 1,500 1,500 feet another adult business from within feet of locating 1,000 zoned residentially property. a school or feet of public park, any neither the number of adult businesses The ordinance limits total existing It “grandfathers” hours city, they may operate. locate nor the Boulevard, had City Wiener opening Prior to Chuck’s Bookstore at National earlier City arcade After the operated another adult bookstore and National Boulevard. during redevelopment, opened Chuck’s Bookstore respondents store was closed Boulevard, subject National where it became the current action. nuisance, the 2Although statutory public was for both and common law action statutory imposing the superior solely court’s of decision relied on the basis for statement *5 only statutory the requested injunctive appeal, Appeal On the Court of also addressed relief. rehearing respondents) public city’s (opposed by nuisance issue denied the for petition and common ruling argument a nuisance. at oral requesting public Finally, on the issue of law court, they a lack of respondents urged given before this the what characterized as court that nuisance, in the the failure of the public evidence record on the issue of common law and issue, to rule for the issue. inappropriate lower courts on the it would be us to reach nuisance, Accordingly, ground public we this of decline to resolve action on the common law and conclude that it for us to the constitutional issue. appropriate is reach part: provides 3Section in relevant 18.69.030 own, establish, enlarge, cause or person entity operate, “A. No shall control or or or control, establishment, except enlargement ownership the of or permit operation, or transfer 18.69.060, any following to Section of the adult establishments if pursuant of entertainment another such adult establishment is thousand five feet of entertainment within one hundred any within school or adult entertainment establishment or one thousand five hundred feet of park any property within the or within one feet of zoned in public city residentially thousand city, along frontages: the measured street bookstore; “1. Adult shows);
“3. Adult arcade picture (peep mini-motion Nothing chapter prohibits “C. in of adult establishments this the location entertainment within retail have then- shopping centers in all commercial zones wherein such activities will streets, frontage only upon public enclosed malls or malls from direct isolated view from schools, parks, residentially churches or property.” zoned stipulated parties The that Chuck’s Bookstore is an “adult entertainment establishment” meaning municipal within the code. businesses, in adult business the and hence does not to another apply adult the city, Pussycat Theater. Post, Director, that the ordinance was city’s
Mr. the testified Planning conducted one or more city performed study enacted after the had a Commission, a and was hearings part before the public city’s Planning Post, the scheme of urban Mr. comprehensive According redevelopment. suffers the in San and urban city Diego County, second crime rate highest transient, rife decay throughout is Its is its city. population largely in income is one of the lowest Because of low per capita county. property area, in its its values residential reliant on commercial tax heavily revenue, base for and there was that the area zoned for commer- testimony cial use is larger than other cities. proportionately
Moreover, there testimony neighborhood surrounding Chuck’s Bookstore has deleterious effects result as a experienced respon- dents’ current location.4 These in a series problems widely publicized were of articles appearing the local the Star News. newspaper, city employs zoning,” commercial on either side “strip zoning arterials; heavily trafficked thus its commercial are zones close generally result, to residential proximity areas. As a 4.5 of the commercially acres zoned a already beyond into mall lie developed shopping distance requirements the ordinance. This of land is located parcel southern portion of city, fronting on National Boulevard. There was evidence that it currently contains and a 9,000-square-foot building motor- cycle shop. businesses,
To greater allow number alternative sites for while still attempting negative minimize their impact, the ordinance also provides adult businesses are not subject to the distance requirements, locate within anywhere 572 acres of zoned commercially if property, are they located a retail center. Under shopping exception, this *6 either the frontage must business be oriented to an enclosed mall or streets, the business in must be a mall isolated from direct view from public schools, churches, parks, and zoned residentially property. location, 4Following opening the respondents’ of neighbor, business at its current one Ms. Martinelli, Janice observed urinating backyard. men in her nine-year-old Her son found used pornographic condoms and reading yard, material in her was and once chased one of
respondents’ longer customers. Ms. Martinelli play no allows him backyard. to in the Prior to of removed, June when viewing lockable doors on respondents’ the booths were one Schiller, reporter, Star News Dane Mr. David patron testified that he observed a placing his booth, penis “glory in a viewing hole” in a and on puddles numerous occasions observed Chriss, semen on the floor of the Mr. booths. Rich manager part-time reporter circulation and News, doors, for the Star testified prior that also to the removal of the or lockable on four five occasions, he observed male patrons placing penises “glory their the holes.” Mr. in Chriss booths, further testified that he observed acts of oral and anal sex and sex in in anal alley respondents’ behind business. enclosed fulfilling centers were identified existing shopping Three Plaza, Center, and Bay South Plaza Bonita Shopping mall requirements: of these at all three existed While vacancies Country. and Sweetwater Town Country and malls, Sweetwater Town Plaza or Bay of South not all portions that estimated It was of the ordinance. to the specifications conformed 6,000 Country, Town feet at Sweetwater space square 5.000 Plaza, criteria. met the ordinance’s South Bay feet of space square 12.000 these three Moreover, that none of testified witness respondents’ expert The witness business. entertainment rent to an adult space malls would of the malls from two agents with leasing conversations recounted telephone rent malls would those whether generally witness inquired which the during business, business. identifying particular without to an adult space be addition, may malls existing or centers be built new shopping adult busi- to accommodate with the ordinance conformance modified required the cost and expertise was as to testimony nesses. there Although eco- construction, regarding direct evidence was presented no for such respondents ability enterprise, of such an viability nomic undertake such development. develop- a trend toward currently there is there was evidence that
Finally, California, it is and that centers Southern small retail ing shopping Post in the Mr. city. development this type to undertake relatively easy difficult than more actually would be a church “developing testified that in National City.” enterprise an adult entertainment developing trial, was a that the ordinance court found three-day superior After a time, a substantial designed to serve regulation and manner place, reasonable the ordinance provided also found that interest. court government communication, “there are noting alternative avenues reasonable could accommodate which City] centers existence shopping [National [ordinance,” the city and that with the comply business [respondents’] development of land exists for “demonstrated that an abundant amount had require- to the edifices which would conform [ordinance] of commercial of Chuck’s Bookstore The court further found that operation ments.”5 basis, the court On that violation of the ordinance. its location present acres of decision characterizes the 572 5We note that the trial court’s statement of *7 Moreover, opinion Appeal the Court of stated in its commercially property zoned as “vacant.” relocating adult the ordinance a new or undisputed that the “evidence that under [was] locations, acres including “572 locating” be limited to in certain entertainment business would However, commercial review of the uncontro undeveloped land . . .” our record reveals Since commercially property substantially developed. verted evidence that the zoned to, the lower courts’ party objected appeared by, neither has misled mistaken characteriza- Chuck’s Bookstore consti- the for a declaration that city’s request granted nuisance, from estab- permanently enjoined tuted a and public respondents business, an adult including and an adult lishing, maintaining, operating bookstore, at 929 National Boulevard. that the ordinance
The Court of reversed. While the court found Appeal interest, face, and was constitutional on its served a substantial government concluded failed applied provide that the ordinance as reasonable Renton, 41. alternative avenues of under communication the few Specifically, regulations court found that the distance allowed too businesses, alternative sites for adult and the “purported” opportunity locate enclosed malls was This of illusiveness derived finding “illusive.” from both “the aversion mall landlords have apparent shopping toward of adult entertainment presence on the and the court’s shops premises,” determination that construction of a new facility “would be shopping economically feasible for the The typical entrepeneur.” business court also into took consideration counsel’s at oral representation argument 57,000 “has a city over one population of and has adult entertain- ment business in stated “not operation.” court that while this controlling, factor does indicate that practical matter ordinance is highly restrictive.” the court held that “has Accordingly, not shown there establishments, are practical alternative locations for adult entertainment thus ordinance is an 18.69.030 restriction on impermissible protected speech.”
II. Discussion Background A.
We guided are in our analysis by two landmark decisions of the United Theatres, States Supreme Young Court American Mini Inc.
U.S. 50 Renton, L.Ed.2d (Young) 96 S.Ct. supra, 475 2440] Renton, 41. While the Court of Appeal cited Young it failed to apply their express language or heed their underlying rationale. Young, Supreme Court upheld two Detroit zoning ordinances that
differentiated “between motion picture theaters which sexually exhibited] explicit ‘adult’ movies and (427 those which not.” 52p. U.S. at d[id] 315-316].) at pp. “The principal question presented by case th[e] whether that statutory [was] classification unconstitutional because it [was] based on [was] content of communication protected by First Amendment.” (Ib id.) As the court later explained five “although Mem bers the Court did not on a agree single rationale for the decision [in tions we property, and conclude there are reasonable alternative avenues of communi- cation, the discrepancy is of no significance. *8 840 ordinance, prohibited which zoning of Detroit’s
Young], city we held that the 1,000 uses’ ‘regulated two other any within feet of theater an adult locating zone, the First and did violate not feet residential any within 500 or at 46 L.Ed.2d U.S. at (Renton, supra, p. 475 [89 Amendments.” Fourteenth 36-37].) pp. Powell, ob- Young, in his concurring opinion Justice
Significantly, served, to location with respect the ordinance “The constraints of But in this business. engaged are loss for some who indeed create economic commercial any from other differently affected no this are respect they regulation.” of land-use detriment as a result suffers economic enterprise 330-331].) (427 pp. L.Ed.2d at U.S. at p. [49 35-36], at pages at 43-44 L.Ed.2d pages [89 32,000 “Renton, to zone sought people,” approximately “within not be located could they theaters by providing motion picture zone, 1,000 dwelling, multiple-family or single- feet of residential any church, a concentra- resulted requirement school.” This distance park, (Id. L.Ed.2d at pp. at p. [89 locations for adult theaters. tion of approved crime, to prevent 40-41].) designed “The ordinance its terms [was] values, trade, generally ‘pro- and retail maintain property protect commercial city’s] neighborhoods, quality presence] [the tec[t] districts, (Id. L.Ed.2d at p. at 48p. and the of urban life. . . quality “at the time the Renton ordinance 38].) There was no evidence that enacted, was located adult business than Playtime Theatres] other any [other into, in, at (Id. L.Ed.2d Renton.” moving or was contemplating 40-41].) pp. as a form analyzed first found that the ordinance was “properly court time, did ban adult manner since the ordinance regulation” place, be that such businesses could but altogether, merely provided
theaters (Renton, supra, pp. 475 U.S. at 46p. certain areas. located content-neutral, since it ordinance was 37].) The court also found that the 36- ‘adult motion picture at the content of the films shown at was “aimed not theatres,’ on the surround- secondary rather at the of such theaters but effects (Renton, supra, U.S. at community.” ing 38].)
37- Young,supra, on its earlier decision Relying substantially time, and manner high court then the content-neutral upheld place, a two-part a First Amendment and established regulation against challenge, (1) test: whether the ordinance is to serve designed governmen- a substantial interest, tal whether the ordinance allows alternative for reasonable
841 (Renton, at L.Ed.2d at supra, pp. 50 p. avenues of communication. [89 addition, First Amend 39-40].) In that while the Court noted Supreme “ communication, is manifest that soci ment protects sexually explicit ‘[I]t different, wholly in is of a interest this ety’s protecting type expression lesser, debate the interest in untrammeled magnitude political than 49, 39], Young,supra, 427 (Id. . 2 L.Ed.2d at p. quoting . .’” at fn. p. [89 326].) at U.S. 70 L.Ed.2d at p. p. [49 ordinance,
In that the its test Renton the court found first to the applying in factor The court “a ‘interest easily attempt satisfied. noted that ing to urban life that must be accorded preserve quality high is one ” 39-40], (Renton, supra, 475 U.S. at L.Ed.2d respect.’ pp. 50 at p. [89 326-327].) Young,supra, at L.Ed.2d at quoting p. 427 U.S. 71 pp. [49 The court also found “no constitutional defect the method chosen by (Renton, Renton to further its 52 supra, substantial interests.” 475 U.S. at p. 40-41].) pp. L.Ed.2d at “Cities adult may by dispersing [89 theaters regulate them, Detroit, them, as or by effectively concentrating Renton.” “ (Ibid.) ‘It is our to appraise city’s] function the wisdom of decision [the to require theaters to be than separated rather concentrated the same areas. . . . must be allowed a reasonable to opportunity experi [T]he ” (Ibid., ment with solutions to admittedly serious Young, problems.’ quoting supra, connection, at 326-327].) 421 U.S. 71 L.Ed.2d In p. at this pp. [49 court noted that “the Renton ordinance is to ‘narrowly tailored’ affect only category theaters shown to the unwanted effects produce secondary (Renton, . 40-41]; . .” 475 at 52p. U.S. see pp. Simon [89 Schuster, & Inc. v. (1991) Members New State Crime Bd. York Victims ** _, 476, 491, 502 501, 511], fn. L.Ed.2d 112 S.Ct. [116 [“[U]nder Ward and Renton . . . regulations must be ‘narrowly tailored’ to advance the State.”]; interest asserted People (Lucero) (1989) Court Superior 14, 740, Cal.3d Cal.Rptr. [259 774 P.2d must be 769] [Ordinance “content-neutral and tailored minimize narrowly adverse second ary effects related to adult establishments.”].) entertainment
More recently, Ward Against v. Rock Racism U.S. 781 L.Ed.2d 109 S.Ct. (Ward), the court high 2746] has further provided guidance Ward, on the tailored” “narrowly court requirement. stated time, that “. regulation . . a place, or manner of protected speech must be narrowly tailored serve the government’s content- legitimate, neutral interests but... it need not be the least least restrictive or intrusive doing (Id. “Rather, means of so.” 679-680].) L.Ed.2d at pp. the requirement of tailoring narrow is satisfied ‘so regula . . . long as the tion promotes substantial government interest that would achieved less be ” (Id. L.Ed.2d at absent the effectively regulation.’ 680-681], (1985) 689 United v. Albertini States quoting 536, 548, 2897]). that “Government 105 S.Ct. The court noted *10 of the that a substantial portion such a manner regulate not expression (Ward, supra, 491 advance its goals.” burden on does not serve to speech However, as the 680-681].) long at at pp. “[s]o 799 L.Ed.2d p. [105 than to achieve necessary means chosen are not broader substantially interest, invalid because government’s simply will not be regulation ... served a court interest could be adequately concludes that the government’s (Id. L.Ed.2d at p. some at 800 by p. alternative.” less-speech-restrictive [105 681].) to the on the relation bears regulation depends validity “[T]he (Id. at p. overall seeks to correct.” problem government 681-682].) L.Ed.2d at pp. factor,
In
must allow for reason-
the second
that the ordinance
explicating
communication,
rejected
alternative
the Renton court
able
avenues of
ordinance
zoning
economic
whether the
determining
standard
viability
was invalid
Theatres claimed that the ordinance
Playtime
constitutional.
of locations
availability
because as a
matter it restricted the
part
practical
ordinance,
acres,
than
Under the
“520
or more
for adult businesses.
Renton
to use as adult
five
of the entire land area of
percent
open
[was]
41-42].)
at
(Renton, supra,
theater sites.”
475 U.S. at
L.Ed.2d
pp.
found,
did
dispute
“The District Court
and the Court of
Appeals
real
that the 520 acres of land
accessible
finding,
‘[a]mple,
consisted]
estate,’
from raw land to
including ‘acreage
stages
all
of development
industrial, warehouse, office,
that is criss-
and
developed,
shopping space
” (Ibid.)
crossed
and
by freeways, highways,
roads.’
contended, however,
Theatres
that “some of the land
Playtime
question
businesses, that
none’ of the
already
by
occupied
existing
‘practically
[was]
lease,
there
general
land
for sale or
and that
undeveloped
currently
[was]
no
viable’ adult
sites within the 520 acres left
‘commercially
theater
[were]
(Renton,
supra,
Renton ordinance.”
open
41-42].)
substantial
of the 520 acres
pp.
Specifically,
part
“[a]
(1)
(2)
site and treatment
a
occupied by:
sewage disposal
plant; ][
[was]
environs;
(3)
track and
horseracing
park containing buildings
business
][
use;
(4)
manufacturing
suitable
for industrial
a warehouse and
][
facilities;
farm; and,
(6)
a Mobil Oil tank
a fully-developed shopping
f
Theaters,
1984)
(Playtime
(9th
center.”
Inc. v.
Renton
748 F.2d
Cir.
527, 534.) The Ninth Circuit
these
that the
“accepted
arguments, concluded
land,
520 acres was not
‘available’
Renton
truly
therefore held that the
ordinance ‘would result in a
(Renton,
substantial restriction’ on speech.”
41-42],
omitted.)
Thus, the court held that “the Renton ordinance a valid represents govern- mental to the response serious adult the- ‘admittedly problems’ created (Renton, 42], aters.” supra, 475 U.S. at L.Ed.2d at p. p. quoting [89 Young,supra, 427 at 326-327].) L.Ed.2d at pp. “Renton has not used ‘the power to zone as a pretext for . . but suppressing expression,’. rather has sought to make some areas available for theaters their while patrons, at the same time the of life in the preserving quality commu- This, nity large by preventing those theaters from in locating other areas. all, “Here, after is the essence of (Ibid) in zoning.” [Young], as the has enacted a zoning ordinance that meets these while also goals satisfying dictates of the (Id. First Amendment.” 54-55 pp. 42-43].) Application
B. Analysis the Renton In here, applying Renton analysis to the we ordinance determine as a time, matter whether preliminary the ordinance is a content-neutral place, so, ordinance, and manner If regulation. we then determine whether the in particular center shopping is serve exception, designed to a substantial interest, governmental and allows for reasonable alternative avenues of communication.6 6Respondents attempt to raise in this arguments court several under the California Consti tution. Respondents failed arguments to raise these Appeal. Accordingly, in the Court of we claims, do not reach these or decide greater whether the provides California Constitution
protection respondents Court, (Cal. 29.) than the federal Constitution. Rules of rule addition, respondents raise arguments in this court regarding permit a conditional use however, amendment to the again, ordinance. Once respondents failed to raise these Content-Neutrality
1. Renton, ordinance, in not ban adult like the one does
Since the be but that such businesses businesses altogether, merely provides time, areas, a form of in as properly analyzed located certain ordinance (Renton, supra, manner 475 U.S. at place, regulation. 36-37].)
at pp. content-neutral, Moreover, since the we conclude the ordinance is is, L.Ed.2d at pages ordinance 475 U.S. at page sold, 37-38], at the secondary aimed not at the content of materials but rather While surrounding supe effects of adult businesses community. on issue, this discussion of the rior did not address its expressly court to serve a designed evidence of its that the ordinance was support finding interest, testimony the court noted that there government substantial scheme of urban comprehensive the ordinance “was enacted as of a part and that “the blight City, an to combat National redevelopment” effort led effects’ on the of Chuck’s . . has presence ‘secondary Bookstore . Moreover, constitutionality . court’s community. ruling upholding .” that the under ordi finding ordinance Renton constitutes implied *12 finding. nance is content-neutral. The record this amply supports implied argument devote much of their to the that Respondents proposition content-based, is and that the censorial “predominant ordinance In to adult business. prohibit any behind it was the establishment of purpose” contention, on claim estab rely they of this evidence support respondents knew or known centers lishes that the should have owners of city shopping reluctant, refuse, either rent to an adult outright would be or would to by business. The factual for this is predicate argument unsupported record, Mr. Post denied that were aware of since categorically city planners Moreover, arguments Appeal, of here. in the Court and we therefore decline to consider them we evidence respondents appear largely rely note that to on the amendment as further of an intent, post alleged government reject. impermissible argument we consider problems blight written of purpose “prevent 7We note that the stated of the ordinance is to brought by and deterioration which and are about the concentration adult accompany However, the shopping entertainment establishments.” there was also evidence that under exception, they adult were located long center businesses could be concentrated so Hence, that the not been appears purpose mall. written stated ordinance has amended exception, purpose to with the addition of shopping underlying conform center and the However, contended, exception. particular that we respondents note that have never and in did level, not to purpose support contend at the trial that the written stated failed of the ordinance the city’s testimony as to the purpose shopping despite of the center fact that exception, Hence, brought parties’ issue was to the by judge. attention the trial we conclude both evidence, purposes may rely of the ordinance are substantial we on both supported and that purposes determining that the ordinance is content-neutral. rent.8 More denied motivation on importantly, any reluctance to Mr. Post any Rather, eliminate adult Mr. Post testified city to businesses. part that the the ordinance was alleviate the effects of purpose secondary businesses, those allowing while reasonable alternative locations for we businesses. The trial credited this see no apparently testimony, court (See question supra, p. reason to its 475 U.S. ruling. 367, 38], (1968)
L.Ed.2d United States v. O’Brien at p. quoting 672, 683-684, L.Ed.2d 88 P.2d ‘It is a familiar principle 1673] [“ constitutional law that this Court will not strike down an otherwise consti Ward, ”]; tutional statute on basis of an illicit motive.’ alleged legislative 675], 491 U.S. Clark v. Commu quoting nity Creative Non-Violence 226-227, 104 S.Ct. regulation of expressive activity 3065] [“Government ‘justified content neutral so as it is long without reference to the content of the regulated ”].) speech.’
Respondents also on evidence rely they claim demonstrates that the knew or should have known that it would not be feasible economically However, for an adult business to build its own as we shopping center. discuss more our fully evaluation of whether the ordinance allows for communication, reasonable alternative avenues of the ordinance does limit respondents’ alternatives to such construction.
Finally, respondents that since the argue effect of the ordinance is to businesses, eliminate all adult that must be its Since we underlying intent. conclude, effect, post, that the ordinance does not have this we likewise reject respondents’ suggestion illicit intent. sum, content-neutral, we conclude that the ordinance is proceed
evaluate the constitutionality of the ordinance under Renton’s test. two-part
2. Substantial Government Interest find, courts,
We as did the two lower that the first of prong “sub stantial governmental interest” is easily satisfied. The city presented substan tial evidence at trial that adult businesses are a source of urban and decay, that the location of the adult business at issue in in this case has fact led to the Moreover, secondary effects the ordinance seeks to curtail. the city 8Rather, respondents’ evidence regard in this essentially testimony consists of that it is generally among known shopping realtors that centers do not to adult usually rent businesses. evidence, generalized, Such speculative not any linked to city representative, fails to even rise to the Renton, level of an “motivating (See illicit factor.” supra, pp. 47-48 L.Ed.2d at pp. [distinguishing generally 37-38] between “motivating factor” and a illicit legitimate “predominant purpose”].) center shopping both distance and the regulation demonstrated that the interests decreas- exception designed government are to serve substantial crime, to the private and of the burden ing blight shifting part regulatory sector, businesses, them locations by placing either adult or by dispersing of minimize the occurrence such as enclosed malls shopping designed effects, (See the tax base. city’s and negative secondary protecting supra, U.S. at L.Ed.2d at ordinance p. p. [upholding 48 38] trade, crime, retail maintain the “designed prevent protect city’s property values, city’s] and the quality [the and generally ‘protec[t] preserv[e] districts, ”].) life’ We the of urban neighborhoods, quality commercial and tailored, since narrowly also find mall is city’s exception shopping “ would ‘regulation government . . . substantial promotes interests] ” (Ward, less absent the regulation.’ be achieved effectively Albertini, 680-681], States L.Ed.2d at United pp. quoting 548-549].) supra, 472 U.S. at First, ordinance, are permit- under the the malls which adult businesses those looking configurations, ted to be established are either inward or streets, schools, “isolated direct view from churches public parks, from a not pedestrian walkway, zoned Access is residentially property.” by effects associated secondary street. This reduces the public configuration from residential away with adult businesses such businesses by segregating schools, and do affect they areas and them in a location where placing moral it decreases the Specifically, climate of as a whole. community children, littering adults and problems neighborhood of harassment of visual sexually loitering, material and explicit reading paraphernalia, colors and associated with blight bright explicit signage from businesses.
Second, the adult businesses centers placing shopping promotes A interests sector. shifting part private burden to by regulatory A its center has restrictions. shopping signage, landscaping own paint, mall also addresses such factors as hours of arrangement operation, parking, Thus, high center exercises a security. shopping generally degree testified, city, control over its tenants. This benefits the Mr. Post removing it from “the We have to expend enforcement business. don’t if amount resources that we center itself typically shopping would some doing terms of these various factors.”9 policing *14 Finally, secondary there was that the result of testimony reducing resources, businesses, effects of adult freeing public protection up retail,” 9Moreover, testimony there was that adult businesses are “destination considered i.e., located, they goods that and do specifically they deal consumers seek out are wherever require do “high visibility” they retail” such if locations. “Destination are that businesses relocate, their clientele will follow. typically above, healthier economic base. As noted reliant National is particularly base, on its commercial tax and hence has substantial interest its preservation.
Therefore, adult placing businesses malls furthers the substantial businesses, interests reducing effects of adult secondary relieving sector, city from some of the regulatory burden by shifting private and protecting the commercial tax base.
3. Reasonable Alternate Avenues Communication
We also conclude that the ordinance reasonable alternative provides avenues of communication. ordinance makes available the entire com land, mercially zoned area of the city, 572 acres of on which to locate an adult business. This area is highly accessible by major and arteri freeways addition, als. the ordinance limits neither the total number businesses that locate in the city, nor the hours they may operate. “ Finally, the ordinance does ‘not affect the establish operation existing ” ments but 71, location of new (Young,supra, ones.’ 427 U.S. at fn. 35 326-327], L.Ed.2d at omitted.) citation contend, however,
Respondents that availability of sites under the ordinance is rent, “illusory” because of the lack of sites for currently unwillingness of them, owners of available sites to rent to and the consider- able cost of their building own center in shopping with the compliance ordinance. We find none of these arguments establish infir- constitutional mity. “ The high court in Renton made clear that ‘The inquiry First Amend- ”
ment purposes is not concerned with
(Renton,
economic impact.’
Respondents’ The number of adult misplaced. within the is also currently operates is, more, evaluating in significance without of no particular businesses a constitutional that mandates authority We find no of the ordinance. validity We that at note figure.11 a particular population ratio of adult businesses to in were located theaters was enacted “no adult the time the Renton ordinance 1 ordinance, and all any advance approve we 0“Respondents uphold assert that if we this is conceivable of Renton. While it restrictions on adult businesses in violation economic outright severe as to amount economic restrictions so zoning ordinance could mandate case here. speech, that is not the prohibition of First Amendment joining Diego, San and the 36 cities analysis suggested by City reject 11We also brief, surrounding availability of adult materials curiae that we look to in its amicus communities reasonable alter provides ordinance determining whether the National “ of his is not to have the exercise general, [or avenues of communication. *[o]ne native exercised be abridged plea on the expression appropriate places liberty her] ” 61, (1981) U.S. 76-77 (Schad Ephraim Borough v. Mount place.’ in some other 685-686, 2176], quoting Schneider State Cal.Rptr. S.Ct. 155,165-166, Moreover, to strike 146].) filed amotion respondents 60 S.Ct. have certain factual Diego’s argument, well as support filed in of San the factual material amicus curiae Religious et al.’s attached to the Western Center for Law Freedom material below, and concern that none of this material was introduced respondents’ brief. We share we have Accordingly, subjected rigors process. to the of the adversarial hence has not been (See Company Young & reaching Bily not considered this material our decision. v. Arthur *16 Theaters, supra, 748 F.2d (Playtime Renton Inc. v. . . . Moreover, in whether similar enter- 530.) this record indicates nothing in have been thwarted virtue by have to locate prises attempted city restrictions, less advanta- economically found it simply unreasonable geous than other localities.
It is also inaccurate characterize the ordinance as forcing respondents Rather, merely build their this is one own mall at cost. shopping prohibitive that there are three under the ordinance. The has demonstrated option centers, area, where an adult and a 4.5-acre shopping partially developed Moreover, may business rent certain malls may existing seek to location. be modified in with the accommodate adult conformance ordinance to new businesses. It is not the define construction of a respondents, city, who Hence, center as their we shopping only alternative under the ordinance. conclude that the alternative avenues of ordinance reasonable provides communication.
Conclusion We hold that National under City’s ordinance is constitutional the First reversed, Amendment. Accordingly, judgment of the Court of is Appeal and the matter remanded with instructions to reinstate the trial court’s judgment.
Lucas, J., Panelli, J., Baxter, J., J., C. concurred. George, BAXTER, J. concur fully reasoning judgment majority. I I do so because the evidence does not a conclusion that no bookstore support “adult” handling materials would be rent City. able to National No space evidence was offered that would a conclusion that a bookstore which support clean, is well maintained and and which both staff and supervised, expects customers to abide law and socially norms of acceptable public conduct would be unable to rent a mall in space National City.
IWhile also with agree Justice Mosk evidence this case would a judgment that support Chuck’s was a Bookstore common law public nuisance, the trial court did not make such a its statement finding. decision, the court expressly noted that the decision would focus on the claim that defendant’s operation violated the code. This municipal confirms that the trial court judgment rested on the solely theory statutory public nuisance. This court not affirm the may on a judgment theory 370, 405, 3 Cal.4th fn. 14 Cal.Rptr.2d choose to P.2d [court 745] ignore improper file].) material filed appellate brief rather than strike from the which that a The rule public requires law nuisance was established. common if the trial if the is correct even court sustain a result reviewing judgment *17 has no theory, application based decision on an erroneous legal court its here. P.2d (1942) Cal.2d Workers 20 418 [126
International etc. v. Landowitz relies, 609], sought in which plaintiffs on which Mosk was an action Justice a The trial court injunction an future violations of local ordinance. against constitutionally the was sustained a demurrer on that the statute ground of This affirmed the disagreed judgment invalid. court but nonetheless legisla- of the subsequent entry enabling dismissal because to the judgment had repealed. which the local been adoption tion authorized of ordinance action, v. the rule Sewell being There no other basis for the we of applied 762, which (1913) of Johnson 165 Cal. P. matters 769 [134 704]: “[W]here the action judicial the court has occur trial court’s knowledge subsequent action, have the for cause of effect of the basis the destroying plaintiff’s those may upon it has been held that the court of case appellate dispose Landowitz, (International etc. Cal.2d grounds.” Workers v. 20 423.) if the
The rule affirm even judgment that an court will a correct appellate Davey v. trial court’s was this court reasoning faulty adopted by 325, “The fact that (1897) P. Southern Co. 116 Cal. 329-330 117]: Pacific an theory the action of the court have been based erroneous may upon [trial] case, cannot reasoning, or an unsound course of upon improper of or more determine the of its No rule decision is or of better question propriety. of one a sounder basis firmly by authority, resting upon established nor law, decision, will reason and than or itself correct ruling that a propriety, If wrong right disturbed a given not be on because for reason. appeal merely case, the law sustained any to the must be upon theory applicable to its may of the considerations which have moved trial court regardless conclusion, action, words, In other it is and not judicial judicial . . . [f] [][] and, review; if former be subject which is the reasoning argument, correct, faults latter.” we are not concerned with the on the
This rule not be used to relief uphold judgment granting each of basis of one two or more counts pleaded complaint, which asserts a different basis for relief. counts exist to the rule of a trial reasons
“Exceptions nonreviewability court’s its decision. The most to this for exception germane . . . allows appeal reversal where the trial court has refused to on an issue and pass disposes the case an If on different trial court an entirely ground. chose thus will on appellate uphold judgment court improper ground, court, of that issue depends not addressed the trial resolution ground if Hanover Ins. Co. (United Ins. Co. v. conflicting evidence.” upon Pacific 925, 933, 231], italics (1990) 217 fn. 9 Cal.Rptr. Cal.App.3d 500, also, (1965) See original. Cal.App.2d Zak v. State Farm etc. Ins. Co. 908]; Kyne Kyne Cal.Rptr. Cal.App.2d Witkin, 886]; 1985) 269.) (3d P.2d Cal. Procedure ed. Appeal, § also findings might trial court this case did make factual was a law support public conclusion that Chuck’s Bookstore common *18 nuisance. It did relevant only determining so insofar as that evidence was to effects, that the bookstore had The court undesirable however. “secondary” did not make to resolve whether Chuck’s Bookstore findings necessary was, at the time It the action was a common law nuisance.1 brought, public therefore, would not be to on basis appropriate, uphold judgment Justice suggested by Mosk. and Dissenting.
MOSK, J., are nine in the ma- Concurring words There with I jority opinion which “the is agree: judgment of Court Appeal However, reversed.” because the bulk of the to effect opinion proposes give to a city ordinance that bans the dissemination of First unconstitutionally material, I Amendment-protected reasoning. must distance from its myself First, the facts. trial,
At the time of Chuck’s Bookstore was bookstore National City—a city of more than there 57,000—although is one other business, sexually oriented a movie theater. rid
Purporting itself of urban blight, the enacted an ordinance city to prohibiting oriented sexually businesses like Chuck’s within from locating 1,500 other, 1,500 1,000 feet of each feet of a school or or feet of a park, zones; residential zone. Strip dominates the development city’s commercial therefore, trial, as the city conceded at the distance are an rules effective ban 1Two of the three witnesses who regarding testified the activities and conditions described ante, majority in footnote 4 of the opinion, year made their observations prior or more trial. acknowledged Both prior changes that to trial had been made in of the the interior bookstore. Subsequent to their observations a fence had been constructed to the rear separate alleyway yard Therefore, from the rear of the home directly although behind the bookstore. uncontradicted, testimony their was adequate it was not to establish that either the bookstore employees witness, or the patrons currently engaged objectionable in the conduct. The third bookstore, who lived behind the testified that she continued to be by patrons bothered even after the fence was constructed neighbors and that her were testimony also bothered. did Her law, not establish a common law nuisance as a matter of however. operate law that like also Chuck’s provides on Chuck’s. But places zone, require- distance aforementioned regardless commercial any ments, in which it mall or an mall as it in an enclosed unenclosed long as from the street. faces inward so as be invisible common law and statutory The of Chuck’s as a sought abatement city that Chuck’s public allegation law claim rested on nuisance. The common claim was that statutory The neighbors. to its basis for pestiferous was too to residences close Chuck’s violated National ordinance: theater, to the exception and the adult it did come within any mall. inward-facing in an distance rules because it was not enclosed Amendment It was uncontested that Chuck’s First enjoys protection communi- avenues of city therefore the must reasonable alternative provide cation, focused on much of the case constitutionally required.1 as But It is to this was a law nuisance. allegation public its Chuck’s common I turn first. theory
I a common could seek to the bookstore have abated properly *19 3; Proc., Code, 3491, 731.) (Civ. Code Civ. law subd. public § nuisance. § trial, is that Chuck’s a alleged, The and evidence provided strong Code, 3479, (Civ. 3480.) had front classic nuisance. The store public §§ The rear open, evidently rear entrances. would leave the door management Chuck’s and would wander between proper supervision, patrons without the the store from a alley, ineffectually historically back which separated would, row of other activ- distinguished among residences. Chuck’s patrons bushes, ities, backyards, have sex the wander residents’ neighboring into bother the with and discard condoms neighbors unsavory requests, Store material on or near residential pornographic neighbors’ property. would fluid the back slop cleaning alley.2 workers buckets of into pungent manage The record leaves defendant did not the no doubt whatever that property properly. (Roth obscenity prevent suppressing 1The First Amendment does not state from v. 1507, 476, 1498, States (1957) 1304]), United but there was S.Ct. contention in this was selling
no case that Chuck’s obscene material. injuries. portion majority describing neighbors’ 2Also see the footnote 4 of the It opinion note, however, conduct, is important that in that to indoor references footnote nuisance, that might people, distasteful conduct be to most do not describe injury presumably property actionable would be on their nor to the neither to others own Aerojet-General Corp. possessor (See (1991) Mangini premises. v. indoor 1125, 827].) Cal.App.3d Cal.Rptr. 1133-1137 [281 common The law of been a statutory nuisance has codified in our Civil Thus it has Code. Nevertheless, common basis. I continue to refer to cause of law shall the first as one for action nuisance, ordinance, distinguish City second it from the cause of action under the National statutory. is also which judgment there evidence to sustain the trial court’s Thus was ample however, The did judgment specify, the bookstore was a nuisance. public nuisance, and the whether or a common law statutory Chuck’s was for this statement of decision discussed claim. statutory Perhaps reason, infirm statutory the Court of focused on the Appeal constitutionally claim, law rather than the evidence that Chuck’s was a common strong public nuisance.3
Assuming trial Chuck’s a arguendo judgment declaring court’s nuisance infirm public was rendered on the constitutionally statutory ground, Code, rather than on the sound basis of the Civil nevertheless the trial court’s decision was correct because there was sufficient evidence of a common law (Nestle Santa Monica public nuisance to (1972) it. v. 6 Cal.3d support 480].) Cal.Rptr. 496 P.2d should therefore judgment sustained, have been for a if the reviewing court must sustain a judgment correct, result was no matter that the trial court reason gave wrong legal (International for its etc. Workers decision. 20 Cal.2d Landowitz 418, 423 P.2d if court erred its analysis ordinance’s 609] [even constitutionality, judgment must be sustained it was because correct on other grounds].) Therefore the that the majority opinion correct Court of Ap peal’s judgment must be reversed.
Alas, in their eagerness to comment on the of the ordi- constitutionality nance—in not at actuality issue—the majority ignore common law nuisance claim. Thus my view their discussion becomes purely advisory.
It is axiomatic that we not address may constitutional when questions there is ground another on which to reach a decision. Such is the rule we have previously (Amador on Valley High Joint Union Sch. imposed ourselves. Dist. v. State Bd. 208, Equalization (1978) 22 Cal.3d 233 Cal.Rptr. [149 of 239, 583 P.2d rule]; People v. Williams [stating general (1976) 1281] 16 663, 888, Cal.3d 667 1000].) 547 P.2d It Cal.Rptr. [128 is also part “ Court, self-discipline of the United States which Supreme calls it a ‘fun ” (Jean 846, damental rule of judicial v. Nelson (1985) restraint.’ 472 U.S. 664, 670-671, 854 L.Ed.2d 2992].) [86 105 The S.Ct. federal high court has 3The bookstore’s First Amendment-protected status does not shield it from California’s public Books, common law (Arcara 697, nuisance (1986) laws. v. Cloud Inc. 478 U.S. 707 [92 568, 578, accord, L.Ed.2d 106 [plur. opn.]; S.Ct. id. at 3172] 708 [92 O’Connor, opn. J.]; of Grayned (1972) 578-579] [cone. see also v. City 408 U.S. of Rockford 222, 104 2294]; Books, L.Ed.2d [33 S.Ct. People (1986) 92 rel. ex Arcara v. Cloud Inc. 68 cf. N.Y.2d 553 N.Y.S.2d [closing [510 bookstore as 844] nuisance burdened impermissibly expression freedom of nuisance]; under New York Constitution if lesser sanctions end would 12, but see fn. post.)
854 (Ibid.) And it is federal to follow the rule. a principle all courts commanded in the of state every to which the courts other decisionmaking appellate of court’s a view of a Finally, reviewing United States restrained subscribe.4 on desire to resolve the case role would ascribe no importance party’s law to address the common or lower courts’ failure grounds constitutional 64, 84, United States v. Locke (See (1985) 92 L.Ed.2d claim. 471 [85 106, 74, States v. 1785]; (1948) 110 United C.I.O. [92 105 S.Ct. 1849, 1855, University Dickey State 1349]; (5th Troy v. 685 S.Ct. 515, 1968) 516.) Cir. 402 F.2d the result that necessary is not reach constitutional discussion It be deemed
Court of
must be reversed.
therefore
Appeal’s judgment
249,
29, 33;
4(Love
(Alaska 1967)
(Ala. 1983)
Perry
v. State
P.2d
442 So.2d
429
Fulford
v.
252;
940,
rule];
(1973)
(1971)
Bell
State Church
v. Bell
v.
Ariz. 39
P.2d
[504
942] [usual
109
730,
837, 840];
(1949)
335
Lipset
Ark.
S.W.2d
v. Davis
Colo.
P.2d
[203
249
119
[462
959
824, 828];
731];
(1981)
v.
City
Agostini
v.
76
Powers
183 Conn.
A.2d
[438
Hartford
of
22,
21,
1981)
1];
(Fla.
(1945)
Colonial
28
fn.
Tsavaris
Trust Co.
Del.Ch. 360
A.2d
State v.
[44
647,
418, 421-422;
648];
(1971)
225
Roe v.
So.2d
Farmer v. State
228 Ga.
S.E.2d
394
[184
468, 471];
(1984)
P.2d
Bunney (1977)
Roe
63
v.
Idaho 258
Poesy
67 Hawaii
P.2d
98
[677
[561
400,
385,
406];
389];
(1979)
v.
76
Board
Haughton Haughton
Ill.2d 439
N.E.2d
[394
of
92, 96];
(1975)
v.
In Interest
Com’rs Kokomo
Plan Com’n
855 dictum, (Bakke Sch. Dist. v. St. Thomas Public unnecessary judgment. to 117, 1984) 120.) (N.D. 359 No. N.W.2d
II above, As indicated issue should be of no precedential constitutional But contains a commen- majority gratuitous because the importance. opinion ordinance, I of the National offer own tary City my on constitutionality views on the subject. sexually
The record establishes that as to a oriented conclusively applied business the National muster. City ordinance cannot constitutional pass Theatres, City Playtime (1986) Renton L.Ed.2d v. Inc. [89 29, area,5 (Renton), 106 S.Ct. in this held that an leading case 925] ordinance that regulates oriented but First sexually Amendment-protected communication, establishments must for alternative provide avenues of that these (Id. avenues must be at reasonable. L.Ed.2d p. pp. [89 Moreover, 39-40].) the burden lies with the that the government to show Theaters, (Ibid.; reasonable alternatives Playtime City exist. see also Inc. v. (9th 1984) Renton 538.) Cir. 748 F.2d Though Renton upheld ordinance, clear, dispersal it made in line with its statement at general page 39-40], 50 of 475 U.S. L.Ed.2d at that the Amendment pages First requires a to “refrain city from effectively denying ... a reasonable oppor to tunity open and operate (Id. adult theater within the . .” p. . . 42], added.) L.Ed.2d at italics mind, With these let principles us examine detail the facts of greater this case as revealed at trial.
The city’s
director testified
planning
that the distance
taken
requirements,
themselves,
ban,
a de
imposed
facto
denying any opportunity—much less
a reasonable one—for Chuck’s
National
Because such a
operate
City.
unconstitutional,
ban is patently
the city also
purported
give sexually
oriented businesses the
opportunity to locate
an unobtrusive mall location.
reveals,
But as the record
the city’s
exception meaningless—the opportu-
nity it provides is purely chimerical.
majority opinion
Theatres,
5The
refers both to Renton
Young
and to
v. American Mini
Inc.
(1976)
plurality opinion, and high (R.A.V. court recently disparaged it. St. Paul 305, 322, Also, 2538].) 112 S.Ct. U.S----[120 in diametrical contrast to this case, Young considered dispersal (427 ordinance that many left locations available. U.S. at 71-72, 327].) reasons, fn. 35 For these I shall concentrate on Renton as significant United Supreme States Court authority. *22 that existing three locations there were only The discloses that record Bonita, & Sweetwater Town fulfill mall the Plaza could the requirements: defendant, A witness centers. Country, shopping and South Plaza Bay Solis, lease to centers would shopping testified that none three Tony the him that leasing At told Bay agent South Plaza the an bookstore. he Country & like Chuck’s. At Town center not rent to a business would either City specified lease to Circuit realtors that an existing found out from the an or that was to to adult bookstore that Circuit forbidden sublet City At the third and such a business. any space mall was to lease to forbidden Bonita, location, mall was appar- character of the final Plaza the possible the even about inquire possibility that Solis did not ently sufficiently genteel lease, of photographs the site and took merely into a but entering surveyed of existing businesses. Chuck’s, sum, trial that led the
In a fact to existing no site was available to counsel, question your remark to “Is there any court’s somewhat rhetorical T&C, Bonita, Bay or mind Plaza South that not a million would years Plaza rent to Mr. Wiener . . . ?”6 [defendant] area, the three including
The of unavailability city’s the entire commercial malls, new that would left of construction possibility enclosed In defendant’s expert fulfill the requirements. regard, concealment construc- years’ witness consultant with 40 redevelopment Clifford Beck—a centers an mall experience expert development— tion shopping $6.5 a small mall inward-facing testified it would cost million to build Beck’s yet More was uncontra- significant would meet requirements.7 to five years that in would two testimony require dicted National City questions they at were 6At times witnesses seemed bemused or incredulous the kinds asked, seemed being unwillingness centers’ to rent to an adult bookstore shopping because self-evident to them. Solis testified: business, expected that retail your experience in the commercial real estate is it “Q. I’ve would rent to adult entertainment shopping centers such the ones mentioned businesses? They ordinarily “A. That’s correct. wouldn’t rent. rent? Would not “Q. “A. Would not rent to adult bookstore. And real business? generally by people is that known who are in the commercial estate “Q. it, Well, “A. don’t you you’ll if know soon find out.” opinion testimony, 7The this but then states that “no majority indirectly acknowledges viability
direct such an or the presented regarding enterprise, evidence economic ante, 838.) ability (Maj. such This respondents development.” opn., undertake bookseller, city, conclusion on that the implies that burden lies not the show law, however, (Morscott, ordinance does not offend First is otherwise. Amendment. 500, 503; (N.D. 1990) City Inc. v. Cleveland Wide F.Supp. Ohio World Video 21]; Tukwila 117 Wn.2d P.2d see also 389-390 p. 39].) *23 the different landowners—and thirty to assemble merely property—from mall minimally needed build the and sized financing uncomplicated to most that would meet the rules. sum, him “a effectively defendant the had denied proved that city an . . . .”
reasonable to adult opportunity open operate [business] (Renton, supra, 42].)8 To reach other any 475 U.S. at p. well First conclusion is to commercial as the Amendment’s ignore reality as command. “There can be doubt that is a bookselling constitutionally no substan protected or that a bookstore for a have a activity closing year Books, Inc., tial (People on ex Arcara Cloud impact activity.” that rel. 553, 844, supra, 68 N.Y.2d York [interpreting N.Y.S.2d New 847] Constitution].) Renton, supra, on
Relying the majority opinion implies defendant’s to locate his inability anywhere City business National does not violate the First Amendment because the so doing impediments ante, are (Maj. opn., economic. saddle Constitution does not [“The with the task municipalities either the or economic ensuring popularity businesses.”].) success of adult That statement a fundamental mis- betrays understanding of teaching. Renton's
The Ninth Circuit explained that Renton ordinance set aside 520 acres located, on which an adult bookstore could be but that the district noted court had found that “a substantial of the 520 acres was part” occupied by existing businesses or industrial facilities easily adapted—if adaptable Theaters, all—to an (Playtime supra, bookstore. Inc. v. 748 F.2d 534.) The high court the Ninth rejected Circuit’s view that these amounted impediments to a speech. substantial restriction on court market, stated: “That respondents must fend for themselves the real estate lessees, on an with equal footing other prospective does not purchasers give to a rise First Amendment . . never suggested violation. . have [W]e that the First Amendment ensure compels Government to that adult theaters, matter, other any kinds of businesses will speech-related be able to obtain bargain prices.” (Renton, sites at supra, 415 U.S. at 54p. 42], added.) L.Ed.2d at p. italics
But the Renton ordinance did not limit the location of adult bookstores to facilities, specific physical does ordinance at bench: it merely speci- fied certain (Renton, distance requirements. 415 U.S. at p. addition, 8There was one possibility other existing for relocation: strip to an mall of the California, type ubiquitous in southern inward-facing Ironically, adult bookstore. through established defendant’s witness Beck impossible: that this too was the loss of parking laws, space would make the entire zoning mall uneconomical and might violate existing tenants “beef all-important would like mad” about of their obstruction sum, exposure street. In such a modification would not be feasible. *24 Renton, Theaters, 35]; City v. also Inc. Playtime at see p. L.Ed.2d of the 529-530.) incom- Within the 520 acres not occupied at pp. 748 F.2d facilities, buy was free to build or an owner adult bookstore existing patible store, the book busi- operate and there example, a small for mom-and-pop “ ordinance, sum, real accessible for provided ‘[a]mple, ness. Renton’s ” 41].) The United States (475 53 L.Ed.2d at p. U.S. at p. estate.’ [89 economically need not declaring that the locate Supreme city Court was bookstore, than need do for a adult more so any sites for an advantageous museum, hall, festival, or a repertory an a symphony art Shakespearean movie theater. The distance rules conceded the city
That is not the situation before us. to be purely The reveals the alternatives ban adult bookstores. record Alas, If the law’s do to perturb majority. those facts not illusory. appear then bridges,9 rich alike to under majestic poor sleep can forbid and equality with lofty impartiality in the view the law majority’s equally apparently to Fifth Avenue. available Saks anywhere an adult bookstore to locate permit however, Renton, mere disguised not countenance such prohibitions does not require after the law does immediately restrictions: statement that city a must at the court held that guarantee bargain prices, cities to sites to and open a opportunity “refrain from ... reasonable effectively denying (475 at p. adult within the . . . .” operate city an theater “ 42], acces- added)—an ‘[a]mple, to obtain p. opportunity L.Ed.2d at italics ” 41], added).10 (Id. sible real at italics p. p. estate’ is For easily exposed. ordinance complete cynicism City’s The National the values to where permits precisely ordinance adult bookstores locate majority the ordinance is ostensibly designed protect—what opinion a (maj. opn., “the climate of the as whole” community refers to as moral mall, ante, 846)—are A entirely family-oriented shopping vulnerable. p. 7, France, (as (1918)), Rouge by Calmann-Lévy, chapter Editeurs Lys printed 9Anatole Le page 118. 1102, Properties, 10See also Walnut Inc. Whittier 861 F.2d in which the v. generous Ninth held was more than National city Circuit unconstitutional ordinance that (see City’s particularly that it allow to operate would at least a handful adult businesses concluded, 1107-1109). adequate pp. The court “To hold . . . that there are alternatives expression protections for sort First mockery available of this would make Amendment meaningless Supreme would render Court’s admonition that an ordinance must within ‘effectively den[y] opportunity open operate a reasonable adult theater ... an (Id. 41-42], 53-54 at city.’ U.S. at 106 S.Ct. 932.” 1109.) Superior People Court (Lucero) (1989) Cal.3d 14 This court’s recent decision in 769, Cal.Rptr. 774 P.2d adds constitutional nothing majority’s A.L.R.5th to the 3346] in Renton opinion only briefly surmises. The alludes to the economic-impact discussion (See 6.) my does not contravene discussion that issue fn. here. Cal.3d at after congregating with children about and adolescents wandering small school, adult seem last would city prefer would to be the place locate, if the mall owner truly bookstore to even officials believed would permit it. conclusion, to be in effect a City’s record shows National ordinance
complete proscription of First businesses. Amendment-protected now, bookstore take years cannot locate and it would several anywhere *25 mall, its owners it assuming to be able to build an entire commercial is Therefore, feasible and can afford do under the First Amendment they to so. Renton, interpreted ordinance cannot stand.11
Ill
National
is said to
be a venerable
more than 100
municipality
years
venerable,
I
old. No
add
doubt. must
that the First Amendment
is
also
being
(See
foundation
a
generally
concurring
of
free
society.
my
People
(Lucero),
Superior
dissenting
supra,
Court
opinion
The of judgment the Court on should be reversed of Appeal basis law common public nuisance.12 balance the majority opinion cannot be supported.
Kennard, J., concurred. 21, 1993, Appellant’s for a petition was denied rehearing and the January Mosk, J., Kennard, J., was opinion modified to read as printed above. were of the opinion petition granted. should be 11Justice Baxter’s own reference testimony to third witness’s 1 of in footnote his ante, concurring opinion, unpersuasive neighbors makes his statement that the did not common establish an abatable law nuisance as a matter law. But if he correct on this point, supra, then applies 475 U.S. squarely; and without state complications law there no can be obstacle to Supreme hearing the United States correcting Court the case and majority opinion’s faulty constitutional reasoning. Moreover, clean, I find irrelevant Justice Baxter’s statement that was no evidence a there well-maintained bookstore acquire space would be unable to in a mall. fails He to consider that the burden is the city on show reasonable alternative avenues of communication exist. The no offered evidence space that mall would lease to an adult bookstore. stating reversed, 12In that the Appeal’s judgment Court of must be I do not mean to sanction use of the Civil Code’s restatement the common pretext ridding law of nuisance as a community of First Amendment-protected activity. high The federal court has also cautioned Inc., that it would (Arcara Books, take a dim of any view such action. v. Cloud 697, 707, accord, 578]; fn. 4 [cone, id. at p. 708 578-579] O’Connor, opn. J.].) here, There is no such risk proven however: be a Chuck’s public common law nuisance and the action pretextual regard. was not in that