*1 short, years ten if the In quantity threshold is the underlying legal principles correct; regarding majority certainly sentencing met. The is sup- determinations port the district court’s qualifies mandatory defendant who for the exercise of discre- case, tion in this and the majority minimum not be to a has sentenced short- pointed nothing that curtails that discre- conclusion, imprisonment. er term of This Moreover, tion. the district court’s deci- however, begs question drug —what sion to exclude the Stanwood grow from be quantities determining must included sentencing supported by is the dictates of statutory whether minimum met? process. fairness and due By excluding 841(b)(1)(A) absolutely nothing Section evidence, the district court simply say question. Accordingly, about that prevented government from benefit- support majority’s too does not hold- ting from its complicity the violation of ing. the defendants’ rights. constitutional For end, In my disagreement with the reasons, these I would affirm the district majority comes down to following: court’s decision. Accordingly, I dissent. that, majority claims the absence of
specific legislative judicial rules or hold-
ings that district courts have discretion to
exclude at sentencing legiti- evidence for reasons,
mate it must conclude that they contrast,
have no such discretion. I that, in
believe any specific absence of legislative judicial rules or holdings that Philip YOUNG, Plaintiff-Appellee, district courts do not have discretion to sentencing exclude evidence at legiti- VALLEY, CITY OF SIMI reasons,
mate we should conclude that Defendant-Appellant. they do. Which is correct presumption ultimately must turn on which is better- No. 97-56484. supported by more general legislative United Appeals, States Court of judicial rules and holdings concerning sen- Ninth Circuit. tencing support determinations. To view, majority relies on two sources of Argued April and Submitted (1) affirm, legal authority: cases rath- Filed June curb, er than the discretion of district courts to determine what evidence in- (2)
clude at sentencing; statutory lan-
guage that makes certain minimum sen-
tences mandatory, but that says nothing
about the role of district courts deter-
mining what evidence to include ar- when
riving at Obviously, those sentences. nei-
ther of legal authority these sources of
supports majority’s presumption
against pre- district court discretion. The
sumption apply, I supported by
a long judicial tradition of both holdings legislative affirming rules the broad
discretion of district courts to determine
what evidence to purposes include for
sentencing.
8H
application is pending is sufficient
pro-
vide alternative
avenues
communication
under the test set forth in City Renton
Theatres, Inc.,
Playtime
(1986).
There has never been an adult business in adopted *5 zoning its first ordinance regulating the businesses; however, location of adult a federal court found the ordinance unconsti- Thereafter, 1988, tutional.2 in or around FERGUSON, O’SCANNLAIN, Before: Valley began Simi officials drafting anoth- TASHIMA, and Judges. Circuit er zoning ordinance to regulate adult busi- nesses City. within the TASHIMA; Opinion by Judge Partial by Concurrence and Partial Dissent Judge In late before a new ordinance was O’SCANNLAIN. adopted, appellee Philip Young put a $20,000 payment down property on a at TASHIMA, Judge: Circuit Angeles 999 Los purpose Avenue for the (“Simi City The Valley Valley” of Simi opening an adult business and he subse- “City”) appeals or the from the district quently applied for an zoning adult use court’s order declaring its adult business permit. 28, 1993, January Young On re- zoning ordinance unconstitutional a zoning ceived clearance from City, the injunction granting an barring its enforce- applied for and a received business tax ment. We must decide two issues: wheth- certificate. er a zoning ordinance that allows “sensi- tive use”1 apply establishments to for an February City On the rescinded zoning over-the-counter clearance Young’s and dis- zoning clearance and requested qualify pending adult permit use is con- additional information to determine wheth- stitutional; and whether the existence of er acceptable. his use was potential, four simultaneously Young available requested submitted the informa- adult use in a city only sites approximately where one tion two weeks later. ordinance, Valley 1. Under the Simi "sensitive if is located within either 500 any "youth-oriented 1,000 use” includes business” feet prospective or feet of the adult use school, any "public private park or or play- site, depending particular on the sensitive use ground, place church or worship, other or involved. any operated noncommercial establishment by religious organization.” a bona fide Simi The reason that the first adult use 9-1.2003(d); Valley § Mun.Code see also ordinance was declared unconstitutional 9-1.2002(m). Valley § Simi Mun.Code A sen- unclear from the record. disqualifies sitive use an adult use acceptable alter- for an searched however, adopted had interim, the proposed business. for his nate location ordi- emergency an No. Ordinance Angeles Los East upon 585 on all He settled a moratorium adopted which nance on into a entering lease According Before City. Avenue. throughout adult uses however, Young contacted Attorney, property, testimony of the to motivated, whether at least to determine Valley officials moratorium an adult open permitted he would be Young’s application. part, by City con- The that location. business Valley adopted 3,May On inspection of site preliminary ducted permanent No. Ordinance no that there were area and determined businesses.3 all adult regulating scheme the ordinance under incompatible uses ordinance, adult business is no Under cautioned, Attorney that time. any 500 feet of locate within permitted to re- a final determination busi- youth-oriented or zone residential the ordinance compliance with garding 1,000 any other adult ness,4 within feet de- specific after land made could be 1,000 “pub- business, any feet of or within submitted. velopment plans were school, playground, park private lic or worship, or place of or other church response initial favorable on this Based operated establishment noncommercial into a Young entered lease City, organization.” religious fide bona Ave- Angeles Los East property 9-1.2003(d). Addition- § Valley Mun.Code $3,174 with the monthly rent of nue for a expand may one ally, before theater there. an adult opening intention business, required applicant special applied for He permit, which special obtain and he also business operate an adult year to a several months from take pending lawsuit stay agreed § 9.1- Mun.Code See Simi obtain. application. his approval of *6 2004. various from receiving comments After approxi- passed, was the ordinance After Valley requested city agencies, Simi the land within Simi percent of mately 0.5 information, in- additional Young provide for adult business Valley was available traffic and studies. cluding mitigation noise Further, be- although there were sites. required had been Neither of these studies adult use loca- potential 35 and tween permit original applica- special most, that, only tions, City conceded tion, Young nonetheless submitted but be available si- use sites could adult four 14, 1995. August information on requested 1,000-foot multaneously because 14 that September on He was informed between adult es- requirement buffer zone information were insuffi- pieces of certain tablishments. cient, Young resub- and on November process, plans. Throughout prohibited mitted his
Because the new ordinance out- to hire both an Young required was Angeles Ave- at 999 Los an adult business engineer. a sound and, engineer traffic side nue, project his on Young abandoned pro- permitting 12, 1994, the total the instant law- While cost filed December record, Young unclear from constitu- cess is challenging the ordinance’s suit $45,000 attempting obtain spent at least progressed, tionality. the lawsuit While as a is defined "youth-oriented business” scope of 4. A Adult businesses within stores, predominantly activity book adult "caters include "adult business which ordinance cabarets, motels, mas- eigh- adult by persons adult hotels under patronage to on-site arcades, picture sage parlors, adult motion (18) age ... and which is years of teen theaters, picture adult mini-mo- motion twenty-five not less than for such business stores, theaters, mod- picture video tion (25) Valley Simi Mun.Code per hours week.” studios, centers." and sexual encounter el 9-1.2002(m). § 9-1.2003; § Valley Mun.Code see also Simi 9-1.2002(a)-®. § Valley Mun.Code Oaks, operate adult theater on the and an admitted opponent of Angeles property. East Los Young’s proposed establishment. Walker testified at trial that he knew where Young 8, 1995, exactly days On December intended to open his adult business and Young plans, after re-submitted his believed that opening the Joshua Institute Valley notified Young application that his disqualify Young’s adult business complete,5 was but application denied his permit application.6 comport because it did not with the buffer requirements. zone City informed Second, a subsequent investigation of Young proposed that the site violated the the area revealed that a karate school ways. ordinance in two within 500 feet of Young’s site awas First, site violated the “youth-oriented” purposes business for 1,000-foot buffer zone around schools and 1.2003(d). § The karate school was in 9— operated noncommercial establishments by existence both City when the in- Attorney religious organization. bona fide Young formed that no sensitive uses were 1.2003(d). § Mun.Code On 9— within the site’s buffer zone and when 7, 1995, December the day City before the Young applied first zoning permit. Young’s application deemed complete, a Although Young had been aware of the newly-established religious organization, existence, karate school’s he did not know Institute, the Joshua had filed a zone qualified that it youth as a oriented busi- application clearance an adult ness, and the never advised him of study bible class 665 East Angeles Los that fact at any time after preliminary Avenue. The Joshua Institute was to investigation of the site. The in- week, meet study per for Bible one hour formed that either the Joshua Insti- Thursday on mornings from 6:30 to 7:30 tute or the karate independently studio n .m., space and its furnished with prevented would have him obtaining from several folding City, chairs. The having special for that site.7 concluded that the Institute’s complied requirements, with all granted 6, 1996, March On Planning a zone clearance following day, on De- rejected Commission Young’s application. 8,1995. cember Young’s protestations, Over it ruled
The Joshua Institute is headed Nor- proposed compliance site’s with the buffer Walker, man *7 President of the Valley requirements Simi zone was to be determined Education, Board Associate Pastor of as of the project’s approval, date of the Baptist the First Church in Thousand rather than as of appli- the date when the Q: ordinance, Valley 5.Under you my Simi question But answered not di- days rectly. you after You said had application submission to deem an no direct knowl- edge. asking you your I'm for belief. Did complete. application complete, Once the is 7th, 1995, you believe on December when days upon applica- has 94 to act you obtained clearance for the Josh- tion. Institute, disqualify ua that that would Mr. Young’s proposed adult theater? suggests "significant 6. The dissent that evi Yes, A: I did. dence” exists that Walker "had no idea” that Q: you Did believe it? a the Joshua Institute would Yes, A: I did. stop Young obtaining zoning permit. from a Tr., Rptr's. pp. Vol. 39-40. Slip op. suggestion, at 825. This light City's 7.In of the reliance on the two testified, belied the record. Walker as grounds refusing alternative reasons as for follows: approve Young’s special permit applica- use Q: you your facility Did believe ... that tion, ap- the dissent's characterization of the disqualify Young’s would Mr. plication Young of the sensitive use veto to as adult theater? "hypothetical,” slip op. "theoretical” and 823-24, any A: I knowledge didn’t have direct simplification that is an inaccurate would, no. record. ” of com- avenues’ alternative case, ‘reasonable the Commis- In filed. was cation Id. munication is unconstitutional. Young’s noted sion the karate because denied been have found that Second, court the district filed Young when operation inwas school are not reasonable potential four sites appealed to Young application. his of commu- avenues number of alternative Planning Council, which affirmed law. Id. at 1021- a matter of as nication decision. Commission’s enjoined “permanently The court then 22. court the district September its current enforcing Valley] from [Simi lawsuit, and Young’s stay of lifted to the distance respect zoning scheme with complaint. original his amended Young in currently requirements zone and buffer Valley ordi- the Simi Young conceded at 1022. Id. for adult theaters.” effect time, manner re- place, awas nance a substan- City had that the striction II. DISCUSSION enacting an adult business in interest tial argued, howev- Young ordinance. permit- challenged conclude that We Renton, er, test set forth under the Simi ting scheme for adult 46-50, the Simi the First invalid under Valley facially not allow reasonable does Valley ordinance private parties ability of Amendment. The of communication. avenues alternative zoning per- obtain an over-the-counter regulation countered that Simi use, at an adult effectively blocks mit that valid under Renton. was lengthy permitting during the any time May, jury to a case was tried The businesses, deprives for process was unable to reach a jury but of “reason- business owner potential adult declared court and the district verdict of communica- avenues able alternative mistrial. Supreme required by the Court’s tion” as 9, 1997, Young filed renewed On June holding find, however, matter of law. judgment not
motion We do the motion granted permissi- court inadequate district number of there is Young grounds. on two for adult businesses Val- based ble sites 1017, 1018 F.Supp. Valley, simply record matter of law. The ley, as a (C.D.Cal.1997). The district court first potential that four not does demonstrate unconsti- city par- that the ordinance in a with the concluded sites is insufficient power de facto veto because the tutional of Simi ticular characteristics use establishments to sensitive given veto”)8 (“sensitive it “unreason- makes Standing A. applicant for an
ably difficult” that the ordinance is Id. at 1020. asserts complete process. facially applied and as invalid both revealed Testimony by City official *8 ordi conclude that the Valley. Since application process we any point during the invalid, however, we need facially nance is apply could use establishment a sensitive of whether statute not reach the issue and receive an over-the-counter applied Young. to as is unconstitutional Young completing block from approval and of grant court’s review the Discussing feature of We district project. this his County v. de novo. See Johns ordinance, standing court stated “a district (9th 874, 114 F.3d 876 Cir. Diego, San parties can effec- system whereby third 1997). areas set aside tively nullify the few as filed, disqualify that application has been veto” term "sensitive use We use the by obtaining over-the-counter applicant an ability use establish- refer to the of a sensitive permit ment, permit adult use before within an adult established relocated completed. process can be permit applicant's zone after that use buffer
815
doctrine,
Under the overbreadth
The overbreadth exception to the
plaintiff
may challenge
overly-broad
prudential
an
limits on standing,
“does not
regulation by
rigid
statute or
affect the
showing that
constitutional
requirement
plaintiffs
may
must
rights
inhibit the First Amendment
demon
strate an injury in fact
court,
to invoke a
parties
federal
not before the
even if his
jurisdiction.”
court’s
Convoy, 183
protected.
own conduct is not
4805
4805
F.3d
1112 (quoting Bordell v. General
Convoy,
Inc. v.
Diego,
San
183
Co.,
(2d
1057,
Elec.
922 F.2d
1061
Cir.
(9th
1108,
Cir.1999);
F.3d
1111
see also
1991)). Rather,
exception
only allows
Oklahoma,
601, 612,
Broadrick v.
413 U.S.
those who have suffered some cognizable
2908,
(1973).
93 S.Ct.
452 U.S.
ap
the
test
parties that
Renton
Cleveland,
and the
East
431 U.S.
City
Moore
of
Valley Municipal Code
plies here. Simi
514,
1932,
531
494,
52 L.Ed.2d
97 S.Ct.
purpose
the
§
states that
9-1.2001
(1977)).
have
limits
Those constitutional
objectionable
“certain
ordinance is
avoid
Court—and
by
Supreme
the
been defined
render such adult busi
side effects which
of
lower courts—in
series
refined
the
areas,
incompatible with residential
nesses
that
zoning
ordinances
cases which local
schools,
worship,
fami
of
and other
places
were
adult businesses
prohibited
limited
uses.” No one dis
ly
youth-oriented
Renton,
41,
475 U.S.
106
challenged. See
“predominate” intent
putes
City’s
that the
925,
29; Young v. Ameri
L.Ed.2d
S.Ct.
89
“preserve
the
ordinance was
passing
Theatres, Inc.,
50, 96
427 U.S.
Mini
can
protect
neighborhoods,
character of
the
(1976);
2440,
also
L.Ed.2d 310
see
49
S.Ct.
places,
of
and effective
integrity
public
the
Press,
Ange
City
Inc. v.
Los
Topanga
of
upon
ly
impacts
the
of urbanization
meet
(9th Cir.1993);
les, 989
1524
Walnut
F.2d
City”
of
within
and not
life
the
quality
Whittier,
861
Properties, Inc. v.
expression
unpopular
suppress
Cir.1988).
(9th
F.2d 1102
9-1.2001;
Valley
§
Mun.Code
views.
48,
at
817
assuming
even
none of the
were
sites
result
the unconstitutional suppression
by
defeated at the last minute
protected
a sensitive
of
speech).
provide
order to
use.
reasonable alternative avenues of commu
nication, a zoning ordinance .that
limits
dispositive question
when de
ability of an adult
operate
business to
must
ciding whether an
open
ordinance leaves
provide “adequate procedural safeguards
adequate alternative avenues of communi
necessary
ensure against
to
sup
undue
cation
government
is “whether the local
pression
protected speech.”
of
Baby Tam
effectively
[prospective
denied
&
v.
1097,
Co.
Las
City
Vegas, 154 F.3d
oppor
owners]
business
... a reasonable
(9th Cir.1998)
I”).
1100
(“Baby Tam
tunity
open
operate
to
and
enterprise
their
While a city may adopt reasonable regula
city.”
within the
475
U.S.
tions regarding
of adult the
925;
Press,
106
see
Topanga
also
S.Ct.
989 aters,
regulations
such
must not unreason
F.2d at 1529. What constitutes a reason
ably restrict or interfere with
right
able opportunity
open
operate
to
and
an
an adult
applicant
to
a
within
adult theater is a
question
mixed
of fact
city, regardless of how that interference is
and
which we review
law
de novo. See
accomplished.
Properties, 861 F.2d at
Walnut
1108.
an
Whether
ordinance that
a reli-
allows
school,
gious organization,
or other sensi-
We conclude that the Simi Val
prevent
tive use establishment to
an adult
ordinance,
ley
as interpreted by
City,
use,
any
time during the permitting
denies an adult
owner-applicant
business
process,
potential
denies a
adult business
reasonable opportunity
open
to
oper
owner a “reasonable
opportunity
ate
enterprise
an adult
operate”
his business is an issue of
Significantly,
Planning
impression. All
previous
first
cases
Commission has ruled that the buffer zone
that have defined the contours
“rea-
requirement between adult businesses and
sonable alternative avenues of communica-
sensitive uses must be satisfied as of the
tion” test have focused on the geographical
project’s approval,
date of a
just
not
area
or
number of sites available for
application’s
filing date.
It
is this
uses,
procedure
and not on the
interpretation of the ordinance that gives
which
granted
denied.
is,
rise to the sensitive use veto. It
howev
Importantly,
er,
the Court
unconstitutional for a local government
did not expressly
Renton
limit
impose
its “rea
procedural
requirement
inquiry
sonableness”
to the number of delegates
private
to certain favored
parties
available
within
city.
sites
power
veto,
See 475 U.S.
at any
unfettered
time
53-54,
106
procedure
S.Ct. 925. The
prior to governmental approval and with
which
city dispenses
permits may
reasons,
out
standards or
another’s
deprive potential businesses of reasonable
right
engage
in constitutionally protect
alternative avenues of
expression.
FW/PBS,
communication
ed freedom of
Cf.
way
paucity
same
of available
ty
and
owners
business
may ef-
parties
potential adult
veto
private third
which
under
by lo-
reason,
their
the few
frustrate
efforts
any
deliberately
nullify, for
fectively
and
nearby is real
potential
for
aside
cating
set
sensitive
the
areas in
difficult,
unreasonably
hypothetical.
uses,
merely
makes it
adult
not
applicant
adult
for an
impossible,
if not
Moreover,
an ordi
in order for
process.
permit
complete the
only
need
invalid there
facially
to be
nance
the reasonable
inquiry into
An
itself
that
statute
danger
the
a “realistic
be
Renton
under
avenues
ness of alternative
Amend
First
recognized
compromise
will
See, e.g.,
specific.
must be fact
necessarily
the
parties not before
protections
ment
Henline,
F.2d
Corp. CLR
Vincent, 466 U.S.
Taxpayers
Court.”
for
Cir.1983)
uncon
(6th
an ordinance
(holding
Thus, contrary to
2118.
at
virtually
stitutional,
it was
though
even
contention, it is
dissent’s
City’s and the
the
ordi
constitutional
to another
identical
was
the karate school
dispositive that
not
each ordinance
nance,
the effect of
because
deni
permit
for
reason
independent
an
city
In a
city).
in each
different
business
Prospective adult
al in this case.
simulta
100,000,
potential
with
four
that an
may fear
reasonably
still
owners
sites,10
one
and at least
neously available
Insti
like
Joshua
organization
other
busi
known,
of adult
opponent
active
they
that
every time
crop up
tute will
establishing
nesses,
risk to
heightened
re
and thus
permit
attempt
to obtain
by the
created
sensitive
adult business
an
especially
This is
applying.
from
frain
un
speech in an
protected
chills
use veto
with
are
sites
available
where so few
true
manner.11
constitutional
suppress
wishing
City. Anyone
that
contend
the dissent
The
and
adult
could monitor
speech
this form
use veto is
the sensitive
over
the concern
a near
and establish
applications
business
event” and
“hypothetical
aon
founded
business’
the adult
use before
by sensitive
“tangi-
to establish a
no evidence
there is
completed.
had
process
been
estab-
sensitive use
that a
probability”
ble
case,
is a realistic
Thus,
there
in this
any pro-
disqualify
seek to
lishment will
“compro-
ordinance will
danger that
argument
This
adult business.
posed
protec-
First
recognized
Amendment
mise
actually issued
Valley
since Simi
puzzling
who wish
people
those
tions” of
over-the-counter
disqualifying
Taxpay-
in Simi
businesses
adult
day that
the same
Institute
the Joshua
Vincent,
ers
complete.
deemed
application was
Young’s
therefore is
effect
The deterrent
2118.
Furthermore, Walker,
of the
the head
substantial,”
because
and
“real
Institute,
both
that he
testified
believed
Joshua
by a
can be defeated
project
moment
preclude
study group
Bible
appli-
permit application and
rounding
potential,
si-
Although
that four
we hold
10.
easily
out about
opponents
inade-
can
find
sites are
multaneously available
not
cant's
law,
II.C, infra,
by ap-
stop it
attempt
see Part
quate
a matter of
proposed
sites is
relevant
available
sensitive use
number
for an
plying
over-the-counter
poses
use veto
deciding whether the sensitive
example,
application, for
Young’s
permit.
speech will
danger
protected
realistic
publicity. On
local
some
garnered
least
are
few sites
that so
The fact
be chilled.
Valley
ran a two-
Star
June
per-
likely
more
it far
available makes
proposed
featuring Young's
article
page
all
group
persons could exclude
son
permit-
article discussed
business.
they
Valley,
so
if
from
process,
location
ting
identified
desired.
site,
explained
the business
schools, parks, or
near
be
not
located
could
addition,
never
because
churches.
business, any proposed adult
had
adult use
publicity sur-
likely to attract
business
private
group
individual or
who wishes to
or restraint
enjoyment
exists when the
*12
park,
study
a
group,
day protected
establish
Bible
or
expression
contingent
is
on the
Theatres,
care center. American
approval
Mini
government
officials.” Baby
60,
I,
427
96
U.S.
S.Ct. 2440.
Tam
particular
decline,
adopt
We
is
Id.
glaring.”
alternative sites
paucity of
rule
is
bright
line
that an ordinance
at 1109.
when
number
loca
constitutional
case,
present
equals
in the
tions available for such businesses
Conversely,
existing
that more than four
or exceeds the number of
adult
no evidence
there is
opened in
This
“supply
be
Simi businesses.
demand”
adult businesses would
analysis
account for the
even
the absence of
is insufficient to
fact,
chilling
is
effect that an adult
zoning regulations.
may
prospective
have
for a
have on
busi
person
applied
ever to
only
point
especially
in the
This
sa
open an adult business
ness owners.
City’s history.
present
the num
lient
case where another
regarding
Data
available for adult use
feature of the ordinance
deter busi
ber of sites
applying
permits,
a contextual basis for ness owners from
for
meaningless without
artificially curtailing
is suffi
thus
determining whether
number
demand.
Rather,
particular
supply
and demand should be
cient for
locale. Walnut
proposi
factors
a court consid
Properties does not stand
one
several
allows
when
whether
determining
tion that a
ordinance which
ers
*15
four,
three,
only
opportunity
or even
sites for adult use
business has a “reasonable
to
per
simultaneously
open
operate”
particular city.
to
is
se unconsti
and
in a
exist
Press,
tutional,
sug Topanga
the
order
989
at 1529. A court
as
district court’s
F.2d
variety
to a
of
fac
gests.
should also look
other
to,
including,
per
tors
but not limited
the
Topanga
Young’s
does
Press aid
Nor
centage
acreage theoretically
of available
There,
Angeles
case.
we invalidated Los
businesses,
available
the number
adult business ordinance where the total
in
potentially
of sites
available
relation to
that could co-
number of
businesses
needs,
population,
inci
“community
exist
fewer than the
of adult
was
number
of
in
compa
dence
other
[adult businesses]
already operating at the time
businesses
communities,
goals
rable
of the
[and]
was enacted.
989 F.2d
See
city plan.”
Food
International
& Bever
existing
at 1532-33. Of the
102 businesses
Lauderdale,
age Sys.
City
794
v.
Fort
of
Angeles,
all
one
have had
Los
but
(11th Cir.1986);
1520,
F.2d
1526
see also
to relocate under the new ordinance. See
Blvd.,
City
East Foothill
Inc. v.
8570
of
id.
so
we
holding,
Without
assumed that
(C.D.Cal.
Pasacena,
F.Supp.
341
980
inquiry
was
num-
relevant
whether the
1997).
ber of locations left available for adult
than the demand
In this
greater
appeal, Young
argue
businesses
does not
“sup-
weighs
those businesses. See id. This
of the enumerated factors
ply
analysis
finding
and demand”
been
in favor
also has
of a
that there
no “rea-
employed by
determining
operate”
circuits in
and
opportunity
open
other
sonable
adequacy
Valley.
of alternative avenues of
an adult
in Simi
business
Rather,
communication.
Woodall v.
El
district court declared a mistrial. The dis
granted Young
trict court then
judgment
III. CONCLUSION
law, finding
a matter of
the City’s
as
ordi
with the district
agree
Because we
nance unconstitutional both on its face and
sensi-
holding that the ordinance’s
court’s
applied.
Simi
unconstitutional,
provision
veto
tive use
(C.D.Cal.
Valley,
F.Supp.
Young.
in favor of
judgment
we affirm the
1997).
injunction,
must
permanent
Young’s
The court now sustains
consti-
The district
vacated and refashioned.
be
challenge
tutional
to the “sensitive use”
enjoined
permanently
court
Simi
ordinance,
provision
Valley’s
which
current
scheme
enforcing
“from
prohibits
opening
of adult businesses
to the
and buffer
respect
with
distance
youth-
near certain sensitive uses such as
currently in effect for adult
requirement
businesses, schools,
oriented
and churches.
Young,
F.Supp.
at 1022.
theaters.”
possibility
on the theoretical
that a
Based
fact that
have invalidat-
light
we
might apply
sensitive use
for a
provision
use veto
ed
the sensitive
disqualify pending
ordinance,
and not its distance
nearby,
for an adult use located
the court
injunction must
requirements,
buffer
private
gives
concludes that the ordinance
remand, the
vacated as overbroad. On
be
parties
use veto”
a so-called “sensitive
over
injunction should be narrowed so
-of adult
opening
permanently enjoined from en-
Valley is
Valley. Taking
hypothetical
this
and run-
provi-
use veto
forcing only
sensitive
it,
with
the court declares the sensi-
ning
remand to the
sion of the ordinance. We
provision unconstitutional on its
tive use
proceedings
further
district court for
majority
face. The
reaches this conclusion
opinion. Young shall recover
light of this
*16
though
dispute
even
there is no
that the
appeal
on
from Simi
his costs
provision
applied
was not
unconstitution-
VACATED,
AFFIRMED,
injunction
attempt
ally against Young, whose own
to
and REMANDED.
any
was in
secure an adult
preexisting
precluded by
event
sensitive
O’SCANNLAIN,
Judge,
Circuit
youth-oriented karate studio locat-
use—a
part
part:
in
in
concurring
dissenting
proximity Young’s proposed
to
ed
close
Valley enacted a rea-
The
of Simi
site for a nude dance establishment.
regulating
sonable
ordinance
plaintiff raising
challenge,
a facial
As
Philip Young,
location of adult businesses.
in advanc
Young
heavy
bears “a
burden”
a nude
open
was denied a
who
ing his claim. National Endowment for
center, chal-
dancing
shopping
club in a
569, 580, 118
Finley,
the Arts v.
524 U.S.
on First Amendment
lenged the ordinance
(1998) (inter
2168,
Department — --,-, op. ing Corp., (1999). 489-90, 145 L.Ed.2d might that a sensitive use possibility with the court’s agree I cannot Because power facto veto attempt to exercise a de ordi- Valley’s invalidation of Simi facial exist; does applications business over adult nance, dissent. respectfully I must Young of a reasonable deprives how this business, an
opportunity
adult
I
the ma-
apparent.
is not
Under
potential for
jority’s reasoning, the mere
down
Val-
court struck
The district
applied in an unconsti-
to be
an ordinance
grounds.
two
zoning ordinance on
ley’s
renders the ordinance al-
tutional manner
adequate
basis
Neither constitutes
such a
together unconstitutional. Under
unconstitutional.
holding the ordinance
any
business
theory, almost
including
upheld
the one
ordinance —
A
unconstitutional. For
Renton —would be
the ordi-
The district court held
that left half of a
example, an ordinance
provision unconstitu-
nance’s sensitive use
businesses
city’s space available to adult
a de facto veto
tionally gives such uses
any buffer zone re-
and did not contain
permit applica-
power
adult business
over
attacked based on
quirements could still be
majority
finding the
agrees,
tions. The
(or
that a
possibility
sensitive
pro-
facially
failing
invalid for
provision
itself)
purchase
property
could
all
city
with
adult business owners
vide would-be
businesses,
leaving
such
zoned for
commu-
alternative avenues of
“reasonable
proper-
without
available
under
Renton
required
nication” as
depriving
thus
ties at which to locate and
Theatres, Inc.,
41, 50,
Playtime
oper-
opportunity
them of a reasonable
(1986).
925,
whether the ordinance
deni[es]
case,
example,
In
a
applied” basis.
this
[Young]
opportunity
a
reasonable
high
found a
jury
reasonable
could have
and
an adult
within the
[business]
would act to
likelihood that a sensitive use
54, 106
city.” Id.
S.Ct. 925.
permit application by
a future
disqualify
jury
the
that did
Young
though
The
court
district
concluded
—even
apparently did not do so. At
possibility that a sensitive use
hear the case
theoretical
from
Young’s application
trial
introduced evidence
might
disqualify
act to
that the Joshua
might
the ordinance unconstitu- which it
be inferred
renders
itself
opened by
a
Norman
by
unreasonably
diffi-
Institute was
sham
“mak[ing]
tional
cult,
Young’s application.
if
impossible,
usage
disqualify
not
for an adult
Walker to
evidence, a
process.”
on this circumstantial
applicant
complete
permit
Based
out,
821-22,
maj. op. at
majority points
see
that Walker
have believed
could
jury
district court reached this conclusion
Young’s
similarly
respect
with
act
would
conducting
fact-specific inquiry
applications. without
adult business
future
required
reasonableness
under Ren-
into
however,
not,
reasonable
only
This is
ton.
evidence.
drawn on the
to be
conclusion
majority that
agree
a
I
with the
the dis
in the record —of
evidence
Significant
holding
nature— trict court’s
on this issue was erro
than circumstantial
rather
direct
would,
proceed
in-
I
direction. For
neous.
one
opposite
in the
points
Press,
step
In
v.
stance,
opening
Topanga
that the
further.
Inc.
testified
Walker
nothing
Angeles,
had
to do
Los
989 F.2d
1532-
study
Bible
class
of
(9th Cir.1993),
any
strongly suggested
we
permit application;
Young’s
with
hold)
(but
explicitly
did not
that the consti
the Joshua Institute’s
interaction between
tutionality
an ordinance like
Val
zoning permit
for a
and
of
by
can
ley’s
comparing
“coincidental” and
be determined
application was
Young’s
“unintentional”;
supply
“had no
available for adult busi
and that Walker
locations
idea,”
to the demand for such sites.
that the
Institute
nesses
at the time
Joshua
analysis,
Press
I
zoning permit,
Topanga
a
“that the ef- Based on the
applied for
that,
stop
expressly
as a matter of
did could
hold
[the Institute]
fect of what
law,
per-
zoning
an adult business
ordinance
obtaining
from
Young”
Mr.
if,
and
Fur-
violates the First Amendment
proposed
his
adult theater.
mit for
if,
thermore,
Young’s
the ordinance restricts
number
location
below
already
case
sites available to adult businesses
adult business
properties.
nearby
the demand for such
Such
presence
disqualified
adopted
already
explicitly
In
this
rule
been
light of
youth-oriented business.
Circuit,
evidence,
jury
Fifth
see Woodall v.
El
surprising
it is not
(5th Cir.1995),
Paso,
been
49 F.3d
1126-27
the ordinance had not
found
in the
law of
Young.
support
and it finds
case
unconstitutionally against
applied
well, see,
v.
e.g.,
circuits as
Buzzetti
other
sum,
the likelihood of a sensitive
(2d
York,
134, 140-41
140 F.3d
City Newof
Valley’s zoning
acting manipulate
Cir.1998);
Alexander
Minne
jury
for a
question
is a factual
ordinances
(8th Cir.1991).
F.2d
283-84
apolis, 928
determination should be
to decide. This
sensible, workable
provides
rule
This
basis,
light
case-by-case
on a
made
conducting
might
what
otherwise
test for
surrounding
circumstances
the facts and
(and
unwieldy
arguably standard-
be an
application.
particular
less)
Amendment rea
inquiry into First
finding
the ordi-
district court erred
The
Renton.
sonableness under
enjoin-
facially
nance
unconstitutional
adopt
expressly declines to
majority
ing its enforcement.
“
rule,
‘supply
reasoning
such
B
to account
analysis is insufficient
demand’
adult use
that an
chilling
for the
effect
court struck down the ordi-
The district
prospective
may have on
ground. Under
buff-
nance on another
*18
ordinance,
Maj. op. at 823. While
business owners.”
requirements of the
er zone
I
legitimate,
majority’s concerns are
potential adult use
approximately four
an individual can
simply fail to see how
simultaneously
Valley—
in Simi
sites exist
denied a reasonable
that he has been
only
in
one
for an
claim
city
which
an adult business as
opportunity
open
The district court
pending.
adult use is
mu-
law,
within the
held,
long as there exists
site
possible
that four
as matter of
Un-
nicipality available for his business.
to a reason-
“simply does not amount
sites
Renton,
course,
aspiring opera-
of
of com- der
number of alternative means
able
right
has no
at 1022.
tor of an adult establishment
F.Supp.
munication.” 977
As
of
estab-
by
presence
[an adult]
within
caused
location
preferred business
to his
they pre-
neighborhood,”
in the
the location of cer-
lishment
city. Regulating
is,
all,
certainly
use their
sumably
after
“the
can
types
tain
Renton,
ultimate effect
power
475 U.S. at
to achieve the same
zoning.”
essence of
J.)
(O’Connor,
Id. at 1393
54,106
925.
as a total ban.
S.Ct.
opinion).
(plurality
individual who has
Young is
an adult business
sought to establish
ever
sug-
light
of evidence
the record
of sites avail-
The number
Young would still seek
gesting that
businesses ex-
able in the
for such
strip
dancing
tease
at his
present erotic
(by a
for such sites
ceeds
demand
proposed adult entertainment establish-
four).
Supreme
The
multiple
three to
ment,
It
Eñe does
not control this case.
the decisions of
decision
Court’s
does, however,
important implications
have
circuits,
sense all
and common
our sister
adult use
constitutionality
for the
of available loca-
suggest that the number
ordinances.
a matter of law.
tions is reasonable as
Because Erie did not overrule Renton—
II
plurality opinion
Justice O’Connor’s
in this
Subsequent
argument
to oral
Renton for its
analysis—
Eñe
upon
relied
case,
Supreme
Court decided
the two decisions must be read as consis-
— AM.,
-,
Pap’s
Erie v.
U.S.
(despite
with each other
the dissent’s
tent
(2000).
1382,
ciple that justify [content-neutral leeway to
sufficient based on conduct] regulating
restrictions Id. at conduct. of such
secondary effects” well to City would do consider reasoning of Eñe holding
both its attempt to refashion
carefully today’s decision. in the wake of
Ill zoning ordi- Valley’s adult business alternative for “reasonable
nance allows and does not of communication”
avenues Al- standards. First Amendment
offend raises provision its sensitive
though subject be concerns
constitutional basis, it is applied” “as challenge on an Further- on its face. unconstitutional
not the ordi-
more, majority recognizes, as the requirements buffer
nance’s distance and I muster.
undoubtedly pass constitutional remand for vacation reverse and entirety. injunction BOTOSAN, Plaintiff-Appellee,
Kornel REALTY, a McNALLY Califor-
PAUL Ruston, corporation; N.
nia Chuck Dated Eleven Trust
Trustee of U/D/T Ruston, 1990; A. Judith
October Eleven Dated
Trustee of Trust U/D/T Defendants-Appellants.
October
No. 99-55580. Appeals, Court
United States
Ninth Circuit. 2, 1999 Nov.
Argued and Submitted 20, 2000
Filed June