The Ninth U.S. Circuit Court of Appeals has upheld the constitutionality of a city’s ordinance regulating the location of adult businesses and requiring nonconforming businesses to close or relocate.

The ruling came in a case from Spokane, Washington. However, a number of jurisdictions in California have enacted similar ordinances. Tulare County, for example, adopted similar regulations in June.

During the late 1990s, officials in Spokane became concerned with adult-oriented stores opening in residential areas. So the city compiled studies from other municipalities, court decisions and police records to document the stores’ adverse secondary effects on the community. In January 2001, the City Council adopted an ordinance that prohibited adult businesses within 750 feet of agricultural, residential or residential-office zones. The ordinance contained an amortization provision that gave nonconforming businesses one year to terminate. The city defined an adult establishment as an operation that “devotes a significant or substantial portion of its stock in trade to the sale, exchange, rental, loan, trade, transfer or viewing of ‘adult oriented merchandise.’” A little more than a year later, the city adopted a different ordinance increasing the number of land use categories permitting adult stores.

World Wide Video of Washington, which owns multiple adult stores in Spokane, sought an extension of the amortization period, and the city gave World Wide an additional eight months. Unsatisfied, World Wide filed a federal civil rights suit claiming that the city violated the company’s First Amendment rights.

In federal district court, the city provided the legislative record (including studies from other cities, four police reports and evidence provided by Spokane residents), public meeting minutes, a real estate appraiser’s report stating that hundreds of parcels zoned for adult stores were available, and declarations from citizens detailing negative secondary effects. In opposition, World Wide presented a declaration from a land use planner who said the city’s studies were invalid because they did not address the effects of retail-only stores, police reports and call summaries, a report containing interviews with citizens who said there were no problems with adult businesses in their neighborhoods, a declaration from a real estate broker who said there was only one plausible site for adult store relocation, and evidence that two World Wide stores were subject to long-term leases that the landlord would not dissolve.

District Court Judge Alan McDonald granted summary judgment for the city. World Wide appealed, but a unanimous three-judge panel of the Ninth Circuit upheld the lower court.

The two questions for the appellate court were, first, whether the ordinance regulating location was constitutional, and, second, whether the amortization time period was reasonable. The court’s opinion spends most of its time answering the first question.

In upholding the ordinance, the court relied heavily on three cases: Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002), and Center for Fair Pub. Policy v. Maricopa County, 336 F.3d 1153 (2003). In Renton, the U.S. Supreme Court upheld a city’s ordinance restricting adult business locations based on the businesses’ secondary effects, and found that the city could base its decision on evidence “reasonably believed to be relevant.” In Alameda Books, the Supreme Court upheld a Los Angeles ordinance forbidding two adult businesses from operating at one location. The court shifted the burden of proof by requiring the plaintiff to cast direct doubt on the city’s evidence (see CP&DR Legal Digest, June 2002). In Maricopa County, the Ninth Circuit upheld a state law requiring adult businesses to close at certain times of day because the plaintiffs “failed to cast doubt on the state’s theory, or on the evidence the state relied on” (see CP&DR Legal Digest, October 2003). Under all three cases, a government regulation combating secondary effects must be narrowly tailored to serve a substantial government interest and may not unreasonably limit alternative avenues of communication.

On appeal, World Wide did not dispute that there were sufficient sites for relocation. Instead, the company argued that because it provided contrary evidence, the burden of proof regarding a substantial government interest shifted back to Spokane — and the city had failed to supplement the record. But the Ninth Circuit said World Wide’s arguments and evidence were insufficient to shift the burden, and that citizen testimony alone regarding pornographic litter and lewd behavior was enough to satisfy the evidence standard.

“The relevant question is ‘whether the municipality can demonstrate a connection between the speech regulated by the ordinance and the secondary effects that motivated the adoption of the ordinance,’” Judge Richard Tallman wrote for the court, citing Alameda Books. “Here, the protected speech and the secondary effects described in the citizen testimony are inexorably intertwined: The sexual images in the magazines and on the packaging of the videos sold by adult stores may be protected, but if the stores’ products are consistently discarded on public ground, municipal regulation may be — and, in this case, is — justified.”

As to whether the ordinance was narrowly tailored, World Wide argued that increased crime and lower property values were associated only with adult stores that provide on-site viewing, and not with retail-only stores. Again, the court said the city’s evidence won out.

“Among the secondary effects that Spokane sought to curb by enacting the ordinances are the ‘economic and aesthetic impacts upon neighboring properties and the community as a whole.’ Through testimonial evidence, Spokane has shown that retail-only stores generate these secondary effects and therefore that its interests in enacting the ordinances ‘would be achieved less effectively absent the regulation,’” Tallman wrote, citing United States v. Albertini, 472 U.S. 675 (1985).

The court then considered the amortization period. The court found the “issue is conceptually indistinguishable from the First Amendment requirement of alternative avenues of communication.” Tallman continued, “Because the district court held that there are sufficient relocation sites in Spokane and World Wide does not appeal that factual determination, we hold that the amortization provision is not unconstitutional.”

The Case:
World Wide Video of Washington v. City of Spokane, No. 02-35936, 2004 DJDAR 6332. Filed May 27, 2004.
The Lawyers:
For World Wide: Gilbert H. Levy, (206) 443-0670.
For the city: Stephen A. Smith, Preston, Gates & Ellis, (206) 623-7580.