Federal appeals panel strikes down California city’s adult-zoning law

Thursday, June 22, 2000

A divided federal appeals court panel this week struck down a Simi Valley, Calif., zoning law because it allowed churches and schools to effectively block prospective adult business owners from receiving a necessary permit.

Simi Valley businessman Phillip Young sued the city in December 1994, after he was unsuccessful in obtaining an adult-use permit. While Young was in the process of applying for a permit, the city quickly passed a zoning law prohibiting adult businesses from locating within 1,000 feet of any other adult business, 500 feet of any residential zone or “youth-oriented business” or 1,000 feet of any “public or private school, park playground, church or other place of worship, or any noncommercial establishment operated by a bona fide religious organization.”

Young amended his lawsuit after he was denied a permit at a second location after a religious organization applied for an operating permit nearby at the eleventh hour.

The head of that religious organization testified in court that he believed that his permit would thwart Young’s application to open an adult business.

In July 1997, a federal jury failed to reach a verdict. However, the next month U.S. District Judge William Rea struck down the ordinance, ruling it unconstitutional because it allowed a “sensitive-use” veto — permitting churches, schools and other “sensitive uses” to block adult businesses from obtaining permits. Rea also ruled that the ordinance violated the First Amendment because the broad nature of the zoning law did not allow enough possible sites for prospective adult businesses.

On appeal, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 that the ordinance was constitutionally flawed.

The panel majority wrote in its June 20 opinion in Young v. City of Simi Valley that “the Supreme Court has held that the right to open and operate an adult theater featuring topless, exotic or nude dancing is protected by the First Amendment.”

“A potential adult business owner is not on ‘equal footing’ with other businesses, however, when his permit can be defeated after he buys or leases a site, merely because another member of the community disagrees with the content of his speech,” Judge A. Wallace Tashima wrote for the majority.

“We hold that a city cannot accomplish through private parties that which it is forbidden to do directly under the First Amendment — namely block the establishment of adult businesses in Simi Valley.”

The panel majority partially disagreed with Rea’s ruling, writing that “it is premature to rule, as a matter of law, that the number of sites at which an adult business could operate is insufficient.”

Judge Diarmuid F. Scannlain dissented, finding that the ordinance was constitutional. According to Scannlain, “the likelihood of a sensitive use acting to manipulate Simi Valley’s zoning ordinances is a factual question for a jury to decide.”

Calls to the attorneys that argued the case before the federal appeals panel were not returned.