They raise the ire of homeowners and merchants, councilmembers and supervisors, police chiefs and chamber of commerce leaders. They are seen as blights on a town, attractions for the wrong element. They should be run out of town, is the common sentiment. But they — adult theaters, video shops and bookstores — engage in constitutionally protected free speech, and local governments regulate these 18-and-over businesses at their own peril. In fact, the practice of determining where adult-oriented busines... They raise the ire of homeowners and merchants, councilmembers and supervisors, police chiefs and chamber of commerce leaders. They are seen as blights on a town, attractions for the wrong element. They should be run out of town, is the common sentiment. But they — adult theaters, video shops and bookstores — engage in constitutionally protected free speech, and local governments regulate these 18-and-over businesses at their own peril. In fact, the practice of determining where adult-oriented businesses locate, and how they operate, seems to get trickier all the time. Case law continues to evolve, but not in the most consistent manner, say attorneys who follow the issues. "Under current interpretations of the law, every city has to have areas for these businesses," said Robert Hargreaves, of Best, Best & Krieger in Rancho Mirage. "For a small, primarily residential city, that can really be a problem." According to Joseph DiMento, a planning and law professor at the University of California, Irvine, cities regulate adult businesses for two reasons: to control the potential secondary effects of such businesses (namely, prostitution) and to maintain a community's morality. The first reason is a proper use of the government's police power, while the second reason probably is improper, DiMento said. But citizens and elected officials often link the two reasons when pressing to shutter an adult theater or to prevent one from opening. Furthermore, members of the general public who disapprove of adult businesses often do not understand that these businesses engage in a form of speech that courts have continually protected, DiMento said. A line of court cases — many stemming from U.S. Supreme Court rulings in Young v. American Mini Theatres Inc. (1976) 427 U.S. 50, City of Renton v. Playtime Theatres Inc., (1986) 475 U.S. 41, and Barnes v. Glen Theatre, (1991) 501, U.S. 560 — addresses how and why cities may regulate adult businesses. Much recent litigation can be divided into three areas: regulation of where adult businesses may locate, cities foot-dragging when dealing with adult business applications, and regulation of activities in live theaters. Where To Go? Courts have made clear that if a city wants to regulate protected speech, including non-obscene topless dancing, the city must provide for "alternative avenues of communication." In other words, a city must zone some sites for adult businesses and cannot prohibit all activities inside theaters. But there is no magic formula to determine if planners have set aside enough sites for adult businesses, said Jeff Goldfarb, a lawyer with Rutan & Tucker who successfully defended Newport Beach's adult business ordinances. (See CP&DR February 1999.) "From a theoretical standpoint, it would seem you only have to provide one space if you have one business that wants to come in," Goldfarb said. "But in reality, it's unclear where the courts are going in this area, and I advise my clients that the city should zone a number of sites for adult business use." Hargreaves, a municipal lawyer with Best, Best & Krieger, agreed "there is no formula you can plug in." In general, adult businesses must have the same opportunity as any other business to locate in a city, he said. Designating as your adult business zone a piece of unimproved property where the nearest street is half a mile away raises the question of whether the property is truly "available," he said. In Levi v. Ontario, CV 96-7559 SVW, a case from the U.S. District Court's Central District of California, Judge Stephan V. Wilson wrote, "Property is not part of the relevant market if it lacks a proper infrastructure, such as roads, lighting, water or sewer service. Nor does the relevant market include property that is physically incompatible with commercial enterprise, such as a warehouse, a sewage treatment plant, a swamp, a shipyard or an airport runway." Ontario restricted adult businesses to parcels of at least one acre, in an industrial zone, off major arterial roads, and certain distances from schools, homes and other adult businesses. The city argued that it had 25 sites available. Under the 1992 law, the city's two adult businesses had to relocate to one of these sites. Judge Wilson threw out Ontario's law because he determined only one site was truly available. He disregarded seven sites because they needed to be subdivided, and four contiguous parcels because they were "partially developed in a manner inconsistent with commercial use." For various reasons, he disregarded 13 other sites, including some large, unimproved parcels. "At a minimum, there must be more sites available than existing businesses with a demand for them," Wilson wrote. Through their zoning codes, many cities regulate adults businesses by requiring those merchants to locate in certain zones (often industrial) and by mandating distance buffers from sensitive uses, such as schools, churches and homes. This practice often places topless "juice bars" and the like in warehouse districts. The City of Santa Rosa is employing a different tactic. City planners have crafted an ordinance that would require an adult business to locate in one of the town's three main shopping malls. "The managers of those shopping centers have said they wouldn't rent to any of those businesses," Community Development Director Wayne Goldberg said. "They all said it would not be in their best business interest." This is exactly what city officials wanted to hear. The proposed ordinance places the onus for blocking adult businesses on the private marketplace. The proposal would also allow adult businesses in one semi-industrial district far from homes or other retail stores, Goldberg said. But even typical zoning and distance restrictions can prove difficult to defend in court. In a recent unpublished case, People v. Manta Management Corp., No. E019635, from the Fourth District Court of Appeal, Division Two, the court upheld a Superior Court ruling that the City of San Bernardino's adult business regulations were too restrictive. "The court reasoned that the combined effect of limiting adult cabarets to industrial areas while at the same time requiring that adult businesses be separated by at least 2,000 feet unreasonably restricted the number of alternative sites," Justice Art McKinster wrote for the unanimous three-judge panel. "The court also determined that the restriction of a commercial enterprise such as a nightclub solely to industrial areas was an unreasonable restriction." The appellate court found no reason to disagree. It also affirmed the trial court judge's ruling that the city failed to prove its ordinance furthered a substantial government interest. San Bernardino in March asked the California Supreme Court to take the case. Roger Jon Diamond, the Santa Monica attorney who won both Levi and Manta, predicted the U.S. Supreme Court at some point will take a case that deals with the number and availability of sites for adult businesses. "There is no definite answer on how much is enough and what is too little," Diamond said. Fast Answers Are Mandatory The issue of municipalities providing quick resolution to adult business applications has become important in recent litigation. U.S. District Judge William B. Shubb in December threw out Citrus Height's ordinance requiring a special adult business permit because the law contained no provisions for prompt judicial review if the city rejected an application. The City Council in February adopted an urgency ordinance, under which adult entertainment applicants receive a temporary license until the city decides on the application. If the city denies the application, the temporary license remains in effect until a judge rules, said City Attorney Ruthann Ziegler, of Kronick, Moskovitz, Tiedemann & Girard. In Baby Tam & Co. v. City of Las Vegas, (1998) 154 F.2d 1097, the Ninth District Court of Appeals said rapid judicial review and determination are necessary in adult entertainment cases. The decision diminished some cities' strategy of dragging adult business license applications through a convoluted, and sometimes changing, process. In response to Baby Tam, several attorneys working with the League of California Cities crafted SB 1165. The legislation, introduced by Sen. Byron Sher, D-Palo Alto, would require judges to decide within 60 days on challenges to issuance, denial or revocation of an adult business permit. Controlling The Action Regulating exactly what happens in an adult theater is yet another area where some jurisdictions have struggled. Newport Beach prohibits touching and nude dancing. The city's "pasties and g-string ordinance" was upheld in the recent cases of Tily B. Inc. v. City of Newport Beach, Nos. G016950 and G109250, and City of Newport Beach v. An Nguyen, No. G022132, 99 C.D.O.S. 62. The city relied heavily on the U.S. Supreme Court's ruling in Barnes, explained Goldfarb, the city's lawyer. Three separate opinions made up the Barnes majority. One said a city may restrict nudity to protect public morals, one said the restriction is allowable because nudity is not speech, and one said the restriction is permissible because it relates to secondary effects, Goldfarb explained. The opinion regarding secondary effects provides the precedent, he said. The city was able to prove that prostitution-type activity — a secondary effect — was occurring at a club the city wanted closed, he said. Contacts: Jeff Goldfarb, attorney, Rutan & Tucker, (714) 641-3488. Robert Hargreaves, attorney, Best, Best & Krieger, (760) 568-2611. Ruthann Ziegler, attorney, Kronick, Moskovitz, Tiedemann & Girard, (916) 321-4500. Wayne Goldberg, director, Santa Rosa Community Development Department, (707) 543-3222. Roger Jon Diamond, attorney, (310) 399-3259.