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Adult Businesses: Court Says Anaheim Must Approve Proposed Strip Joint

The City of Anaheim's attempts to bar a proposed adult cabaret from an industrial area were unconstitutional and the city must approve the business's permits, the Fourth District Court of Appeals has ruled. According to the unanimous appellate court decision, three city actions failed constitutional muster: an attempt to prevent "secondary effects" of an adult business, a retroactive amendment to the zoning ordinance, and denial of the strip club to protect the city's image. Presiding Justice David Sills ridiculed the amended ordinance that prevented adult businesses within 100 feet of a freeway to protect the image of the city that is home to Disneyland and the Anaheim Angels. "[A] city's image is more a matter for the poets and journalists than the courts," Sills wrote. Badi Abraham Gammoh had proposed opening the Funtease theater on a site visible from the Riverside Freeway. "Signs and outward appearances can, of course, be regulated," Sills wrote. "But ‘visual blight' can easily be prevented by lesser intrusive means than the complete preclusion of an adult business from any major roadway. … No issue of compliance with a city sign ordinance is before us, and the record indicates that Gammoh is not proposing to construct a huge billboard with pictures of scantily-clad woman in tacky pink flashing neon, ‘Come to Gammoh's Flesh Emporium.'" Anaheim has spent much of this decade in court over its attempts to preclude adult businesses. In 1993, a federal district court struck down a provision in the city's zoning ordinance because it gave the Planning Commission so much discretion in granting use permits for adult entertainment businesses that the measure functioned as an illegal prior restraint on free speech. After the decision in that case, Dease v. City of Anaheim (C.D. Cal 1993) 826 F.Supp. 336, the city eliminated the discretionary features from its ordinance and required the Planning Commission to approve an adult cabaret that met the criteria. The new ordinance required adult businesses to be more than 400 feet from any residentially zoned area. In August of 1994, Gammoh submitted an application for business featuring "exotic strip tease dancers" in an industrial section of Anaheim next to the Riverside Freeway. The city responded within days by implementing a 45-day moratorium on adult business permits in an industrial zone. During the moratorium, Gammoh filed a lawsuit for a write of mandate and for damages to his civil rights. On October 10, 1994, the city denied Gammoh's application because his site was within 400 feet of a slender and vacant residentially zoned lot, and because it had inadequate parking. Two weeks later, to satisfy the parking concerns, Gammoh proposed scaling down the operation in what the city treated as a new application. In December of 1994, the city rejected the new application because the site was 150 feet from a residentially zoned property, and because it conflicted with a brand new ordinance that made the area off-limits to sex-oriented businesses and prevented adult entertainment within 100 feet of a freeway. The following month, Orange County Superior Court Judge Donald Smallwood denied Gammoh's request for an injunction. When the matter came up for trial a year later, Orange County Superior Court Judge Tully Seymour ruled that Smallwood had decided the issues and there was nothing left to litigate. Gammoh then appealed for permission to open the Funtease theater in what he described as a "God-forsaken industrial wasteland." The city argued that it was trying to protect surrounding residential areas from an adult business's secondary effects, a concept the U.S. Supreme Court upheld in City of Renton v. Playtime Theaters, Inc., (1986) 475 U.S. 41. But the appellate court said the city's ordinance — as applied — was unconstitutional. The only nearby residential property was "a single wedge-shaped vacant lot next to a freeway on which no one in his or her right mind would ever construct a residence," Sills wrote. Furthermore, since Gammoh filed his initial application, the city had rezoned the parcel for industrial use. "The salient fact in the present case, of course, is that no ‘secondary effects' on real human beings living in a real residential area were ever realistically possible when Gammoh first applied for his permit, and any doubt was later removed when the property was rezoned," Sills wrote. After Gammoh filed his first application, the city announced plans to revitalize the area with "upscale" industry, thus precluding a strip club. The appellate panel did not address whether a city could legitimately bar an adult business in a redevelopment zone, although Sills pointed out in a footnote that "cities cannot, consistent with the First Amendment, use redevelopment zones as a creative way to censor speech about sex." Instead, the court struck at the city's after-the-fact preclusion. "Essentially, it rezoned Gammoh's property to preclude any kind of adult businesses on the ground that they would hinder ‘redevelopment.' If a city can do that, then a city has the de facto discretionary power to deny an otherwise nondiscretionary permit by the simple expedient of saying that an adult business would be inconsistent with some hoped-for ‘upscale' development," Sills wrote. The court called Anaheim's freeway exclusion "unconstitutional on its face." A city may crack down on visual blight, but the mere existence of an adult business does not constitute blight. City officials have since petitioned the court to reverse the ruling, and they vowed to seek a state Supreme Court hearing if the appellate court refused to reconsider. The Case: Badi Abraham Gammoh v. City of Anaheim, No. G020502, 99 C.D.O.S. 5247, filed June 29, 1999. The Lawyers: For Gammoh: Roger Jon Diamond, (310) 399-3259. For Anaheim: Jeffrey A. Goldfarb, Rutan & Tucker, (714) 641-5100.
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