Federal appeals panel reinstates challenge to Long Beach, Calif., zoning law

Thursday, June 29, 2000

A federal appeals panel this week reinstated a First Amendment lawsuit filed by several adult businesses in Long Beach, Calif., challenging the constitutionality of the city’s adult-business zoning law.

In November 1994, Long Beach adopted a new zoning law which prohibited adult businesses from locating within 300 feet of a residential district, 1,000 feet of any public or private school, 600 feet of any city park, 500 feet of any church or 1,000 feet of any other adult business.

The ordinance applied both to existing and new adult businesses. Existing businesses were allowed 18 months to relocate.

The plaintiffs, led by Seung Chun Lim who owns two adult businesses in the city, sued in April 1996, contending that the ordinance violated the First Amendment because it did not provide for alternative avenues of communication.

In its 1986 decision City of Renton v. Playtime Theaters, the U.S. Supreme Court determined that adult-zoning laws were constitutional as long as they serve a substantial governmental interest and allow for alternative avenues of communication.

Lim and the other plaintiffs argued that Long Beach’s ordinance did not satisfy the Renton test because it did not provide them with enough potential relocation sites.

U.S. District Judge Richard A. Paez ruled in May 1998 that the ordinance was constitutional, relying on the city’s evidence that there were 115 sites available for use by adult businesses.

On appeal, a three-judge panel of the 9th U.S. Circuit Court of Appeals reversed Paez and sent the case back down to the district court to allow the plaintiffs a chance to rebut the city’s claim that there were 115 available relocation sites.

The panel noted that “it is clear that the burden of proving alternative avenues of communication rests on Long Beach.” The lower court had placed the burden on the plaintiffs.

“A city cannot merely point to a random assortment of properties and simply assert that they are reasonably available to adult businesses,” the panel wrote in its June 27 opinion in Lim v. City of Long Beach.

The panel was persuaded by the plaintiffs’ argument that the city included in its list of 115 sites property that was tied up in long-term leases.

The panel wrote: “Property must have a genuine possibility of coming available for commercial use to be considered part of the relevant commercial real estate market.”

The court concluded its opinion with further instructions to the lower court: “Once the relevant market has been properly defined in light of any additional evidence presented by Plaintiffs on remand, the district court will have to reexamine whether the market contains a sufficient number of potential relocation sites for Plaintiffs’ adult businesses.”

Roger Jon Diamond, attorney for the adult businesses, praised the panel’s decision as “significant.” “This decision is important because it establishes that the city has the burden of proof to show that there are alternative avenues of communication for adult businesses.”

Calls to the city attorney’s office were not returned.

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