A federal court has ruled that San Diego's adult business zoning ordinance violated the First Amendment because the city did not prove that there are enough sites available for adult businesses.
The Ninth U.S. Circuit Court of Appeals ruled that the city's 1,000-foot buffer requirements are constitutional and that the city can treat adult businesses differently from other commercial operations. The city lost the case because it did not show that it provided "reasonable alternative avenues of communication."
The controversy started in 1997, when George Isbell Jr. purchased a building with the intention of providing adult entertainment. San Diego's zoning requires 1,000-foot buffers between adult businesses and residential zones, churches, schools, public parks and other adult businesses. Isbell's building was 900 feet from a residential zone. He applied for a variance, arguing that the freeway separating his property from homes would dissipate any secondary effects.
The city denied the variance, so Isbell, claiming that the city's ordinance violated the First Amendment and that the city's standards for variances violated the equal protection clause. Southern California District Court Judge Irma Gonzalez ruled for the city. The Ninth Circuit overturned a key portion of Gonzalez's decision.
A zoning ordinance that requires separation of adult businesses was upheld by the U.S. Supreme Court in Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976) and has been upheld recently by the Ninth Circuit (see CP&DR Legal Digest, August 2000). The U.S. Supreme Court has further ruled that dispersal ordinances intended to control secondary effects of adult establishments, such as prostitution, are constitutional so long as they are "designed to serve a substantial government interest and allow for reasonable alternative avenues of communication." City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).
In court, the city presented a list of 110 parcels totaling 92 acres where adult businesses could be located. Isbell argued that many of the sites were not economically suited to his business, so there were only three locations actually available. The court disagreed with both sides.
The commercial feasibility of a site is not a factor, the court ruled, striking down Isbell's contention. The issue is whether a site is part of the actual real estate market for commercial enterprises in general. More importantly, the court ruled that the city's list of sites ignored the requirement for a 1,000-foot separation between adult businesses. "There is no question that, when this separation is taken into account, far fewer than 110 adult businesses could operate at the City-identified sites," Judge William Canby wrote.
Because of the city's oversight, the court assumed that the city has 45 sites - the number of existing adult businesses in San Diego. Because there are 45 existing businesses and demand for at least one more - Isbell's application - the city does not have adequate sites for adult businesses, the court held.
The city should have conducted a comprehensive analysis of the theoretically available acreage, the number of sites in relation to the city's population, community needs and the incidence of adult businesses in comparable towns, the court ruled.
The court did not go so far as to strike down the 1,000-foot rule. The ordinance serves a substantial government interest - so long as adequate sites remain available, the court ruled. And the court ruled that the city's rejection of Isbell's variance application did not violate his equal protection rights.
The Ninth Circuit returned the case to the district court for further proceedings.
George Isbell Jr. v. City of San Diego, No. 99-55591, 01 C.D.O.S. 6436, 2001 DJDAR 7923. Filed July 31, 2001.
For Isbell, John Barriage, (858) 874-7692.
For the city: Carra Lassman, deputy city attorney, (619) 533-5800.
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