An appellate court has upheld an injunction prohibiting the City of Garden Grove from requiring existing cybercafes to get conditional use permits. However, the appellate court removed an injunction against city-imposed operating requirements at the cybercafes.
The court lifted an injunction that had prohibited the city from enforcing regulations imposing a curfew on minors, and requiring adult employees, security guards on weekends and installation of video surveillance systems. The decision came in a 2-1 ruling with an extraordinarily sharp dissent.
Cybercafes provide access to computers with broadband Internet access. Contending that the businesses attract gang members and spawn criminal activity, a number of Southern California cities have attempted to regulate cybercafes in recent years (see CP&DR Trends, June 2003; In Brief, September 2002). The Orange County city of Garden Grove has been in the center of the controversy over cybercafe regulation.
During 2002, the Garden Grove City Council first passed an urgency interim ordinance imposing a moratorium on new cybercafes and operating restrictions on existing businesses. Later in the year, the council made the ordinance permanent and then modified the law. City officials pointed to police reports of more than a dozen incidents of criminal activity — including two murders — and a total of 289 calls to police associated with cybercafes in about 18 months. By the time the city adopted the final ordinance, 23 cybercafes were operating in Garden Grove.
Five cybercafe owners sued the city to overturn the regulations, primarily on First Amendment grounds. In March 2003, Orange County Superior Court Judge Dennis Choate issued a preliminary injunction regarding the conditional use permit mandate and various operating conditions. The city, which settled with three of the business owners, appealed the injunction. The Fourth District Court of Appeal, Division Three, upheld part of the lower court’s decision.
The city’s ordinance required an existing cybercafe to get a conditional use permit (CUP) by July 31, 2003. Business owners contended the ordinance gave city officials unlimited discretion to grant or deny permit applications. Treating cybercafes much like arcades, movie theaters adult cabarets — businesses that enjoy First Amendment protections — the Fourth District agreed with cybercafe owners and ruled an injunction was necessary.
"As our California Supreme Court long ago concluded, ‘A long line of decisions has held unconstitutional ordinances governing the issuance of licenses to conduct First Amendment activities where administrative officials were granted excessive discretion in determining whether to grant or deny the license," Justice Raymond Ikola wrote, citing Burton v. Municipal Court (1968) 68 Cal.2d 684, 691.
"Under the ordinance, the zoning administrator has unfettered discretion in deciding what conditions to impose when issuing a CUP," Ikola wrote for the majority. "The city does not identify how or in what manner that discretion is limited, and without objective standards, the zoning administrator retains the power to require software filters restricting access to any designated website."
"Subjecting plaintiffs [cybercafe owners] to a facially unconstitutional requirement as a condition to the continued operation of their business is a far more serious consequence to plaintiffs than is the consequence to defendant [the city] of not being able to impose a new CUP requirement on existing businesses," Ikola wrote.
The court then addressed operating restrictions that Judge Choate had prevented the city from enforcing. Those were:
• A curfew on minors in cybercafes after 10 p.m., and between 8 a.m. and 3 p.m. on school days
• A requirement that businesses have an employee at least 18 years old, and that businesses with more than 30 computers have at least two adult employees
• A requirement that businesses have a uniformed security guard on duty from 8 p.m. until 2 a.m. on Friday and Saturday nights
• A requirement that cybercafes operate a video surveillance system and maintain tapes for at least 72 hours.
This is where the Fourth District panel divided. The two-justice majority struck down Choate’s injunction regarding the operating conditions, finding that all of them were narrowly tailored, content-neutral regulations that served a significant governmental interest.
The court took pains to say that the video surveillance requirement was not an attempt to monitor what cybercafe patrons were doing with computers. "[W]e are not persuaded the video surveillance system affects First Amendment activity any more than does the presence of an adult employee and/or security guard. … The ordinance requires only that the system be capable of showing ‘the activity and physical features of persons or areas within the premises,’" Ikola wrote.
The court rejected the cybercafe owners’ argument that their patrons have a right to privacy protected by the state constitution.
In a dissenting opinion, Presiding Justice David Sills said that the majority did not balance the interests of the two sides and that all of the lower court’s injunctions should be upheld. He noted that only five of Garden Grove’s cybercafes had experienced the serious troubles cited by police, and he chastised his colleagues for an "almost slavish deference to an unsupported and illogical conclusion of the city’s police chief and city council."
"Rather than confront the fact that only a small minority of cybercafe venues have experienced problems, they [the majority justices] illogically leap to the idea that there is a ‘well-demonstrated’ connection between cybercafes and gang-related violence. Sigh. They might as well say there is a ‘well-demonstrated’ connection between homes and residential burglary, or, in Garden Grove at least, between Vietnamese restaurants and gang-related violence," Sills continued.
Sills was particularly offended by the video surveillance requirement. "Do my colleagues not realize the — there is no other word for it — Orwellian implications of their ruling today? They approve an ordinance which literally forces a ‘Big Brother’ style telescreen to look over one’s shoulder while accessing the Internet," Sills wrote. "Sorry, I can’t go along with this emasculation of our state Constitutional right to privacy and with the concomitant infringement on the rights of freedom of speech and press."
Vo v. City of Garden Grove, No. G032058, 04 C.D.O.S. 861, 2004 DJDAR 1043. Filed January 29, 2004.
For Vo: Ronald Talmo, (714) 543-1294.
For the city: John Shaw and Lois Bobak, Woodruff, Spradlin & Smart, (714) 558-7000.