Philip Young v. City of Simi Valley

Citations: 216 F.3d 807; 2000 Daily Journal DAR 6581; 2000 Cal. Daily Op. Serv. 4931; 2000 U.S. App. LEXIS 14188; 2000 WL 780991Docket: 97-56484

Court: Court of Appeals for the Ninth Circuit; June 20, 2000; Federal Appellate Court

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The City of Simi Valley appeals a district court ruling that declared its adult business zoning ordinance unconstitutional and issued an injunction against its enforcement. The Ninth Circuit must address whether the ordinance, which permits "sensitive use" establishments to apply for zoning clearances that can disqualify pending adult use permits, is constitutional. Additionally, the court will evaluate if the existence of four potential adult use locations, in a city with only one pending application, offers sufficient alternative avenues for communication as per the precedent set in City of Renton v. Playtime Theatres, Inc.

Simi Valley, with a population of over 100,000 and no existing adult businesses, had previously adopted a zoning ordinance in 1978 that was later deemed unconstitutional. In 1992, Philip Young applied for a permit to open an adult business after placing a deposit on a property. Although initially granted a zoning clearance, it was rescinded following the city's adoption of an emergency moratorium on adult uses, reportedly influenced by Young's application. Subsequently, a permanent ordinance was established in 1993, restricting adult businesses from locations near residential zones, youth-oriented businesses, schools, and other specified establishments. This ordinance left only 0.5% of the city's land available for adult business use, with only four sites potentially viable due to the imposed buffer zones. The district court's judgment, affirming the ordinance's unconstitutionality, is maintained on a more limited basis.

Young abandoned his adult business project at 999 Los Angeles Avenue due to a new ordinance and filed a lawsuit on December 12, 1994, challenging the ordinance's constitutionality. While the lawsuit was ongoing, he sought a new location and decided on 585 East Los Angeles Avenue. Before leasing the property, he consulted with Simi Valley officials, who conducted a preliminary site inspection and found no incompatible uses under the ordinance, though they noted that a final determination would require specific land development plans.

Encouraged by this initial response, Young signed a lease for $3,174 monthly and applied for a special use permit to operate an adult theater, agreeing to pause his lawsuit while awaiting permit approval. The city requested additional information, including noise mitigation and traffic studies, which Young submitted at a cost of at least $45,000. After multiple submissions, Simi Valley completed its review but ultimately denied Young's permit application on December 8, 1995, citing violations of the ordinance's buffer zone requirements.

Two specific issues were identified: first, the proposed site was within a 1,000-foot buffer zone around a newly established religious organization, the Joshua Institute, which had applied for a zone clearance to operate an adult Bible study class. The Institute was led by Norman Walker, an opponent of Young's business. Second, a karate school within 500 feet of Young's site was classified as a "youth-oriented" business, which also violated the buffer zone requirements. Although Young was aware of the karate school's presence, he was not informed that it qualified as youth-oriented, nor was he advised during earlier communications with the city that any sensitive uses were present in the buffer zone. The city concluded that either the presence of the Joshua Institute or the karate school independently disqualified Young's application for a special use permit.

On March 6, 1996, the City Planning Commission denied Young's application for a project, ruling that compliance with buffer zone requirements would be assessed based on the approval date rather than the application date. The Commission stated that Young's application would have been denied regardless, as the karate school was operational at the time of application. Young's appeal to the City Council was unsuccessful. In September 1996, the district court lifted a stay on Young's lawsuit, leading to an amended complaint where Young acknowledged the Simi Valley ordinance as a time, place, and manner restriction, but claimed it did not provide reasonable alternative avenues for communication as required by the Supreme Court's Renton decision. Simi Valley argued its regulation was valid under Renton. A jury trial in May 1997 ended in a mistrial. Subsequently, Young's renewed motion for judgment was granted by the district court on two grounds: first, the ordinance was deemed unconstitutional due to a "sensitive use veto" that made it excessively difficult for adult use applicants to navigate the permit process. Testimony indicated that sensitive use establishments could block applications at any stage through over-the-counter zoning approvals, which the district court found unconstitutional. Second, the court ruled that four alternative sites did not constitute a reasonable number of options as required by law. Consequently, the court permanently enjoined Simi Valley from enforcing its zoning scheme regarding distance and buffer zone requirements for adult theaters. The court concluded that the permitting scheme for adult businesses was facially invalid under the First Amendment, as private parties could obtain zoning permits that obstructed adult businesses, thus failing to provide reasonable alternative avenues of communication. However, the court found no issue with the number of permissible sites as a matter of law. Young's claims of both facial and as-applied invalidity of the ordinance were addressed, but the court focused solely on the facial invalidity. The district court's grant of standing was reviewed de novo.

Under the overbreadth doctrine, a plaintiff can challenge a statute or regulation that may infringe on the First Amendment rights of others not involved in the case, even if the plaintiff's own actions are not protected. This principle is rooted in the idea that broadly written laws can chill expressive activities. In the case at hand, Young's ability to challenge an ordinance is supported by his argument that it creates an "unacceptable risk of the suppression of ideas," and he has established standing by demonstrating an injury-in-fact through the denial of his adult use permit applications. Young asserts that the ordinance deters individuals from seeking adult use permits due to its complexity and risk, leading to a chilling effect on protected activities. His claims indicate that the ordinance could preempt potential adult establishments based on vague criteria, further undermining First Amendment protections. Young has incurred significant economic loss while pursuing his permit, which meets the constitutional requirement for standing in federal court. Additionally, the Supreme Court has affirmed that the right to operate adult entertainment venues is protected under the First Amendment, while local governments must exercise their zoning authority within constitutional limits. Various precedents have shaped the legal framework surrounding local ordinances that restrict adult businesses.

Zoning ordinances aimed at mitigating undesirable secondary effects of adult businesses are subject to "content neutral" regulations concerning time, place, and manner, as established in Renton v. Playtime Theatres. Such ordinances do not violate the principle that the government cannot suppress speech simply because it is deemed offensive, provided they are justified without reference to the content of the speech. The Simi Valley Municipal Code § 9-1.2001 aims to avoid adverse effects of adult businesses on residential areas and family-oriented uses, with the city's intent focused on preserving neighborhood character rather than suppressing unpopular views. 

Under the Renton standard, a zoning ordinance must serve a substantial governmental interest and allow reasonable alternative communication avenues to be constitutional. Young acknowledges the substantial interest in preserving urban life quality but argues the ordinance restricts adult business owners' alternative avenues of communication under the First Amendment. Young claims that the process for obtaining zoning clearance within a buffer zone may chill protected expression and that the limited number of available locations is insufficient for reasonable opportunities.

The key question is whether the ordinance effectively denies adult business owners a reasonable chance to operate within the city. This determination involves both factual and legal considerations, reviewed de novo. A novel issue arises regarding whether allowing sensitive establishments to obstruct adult business permits during the application process denies reasonable operational opportunities, contrasting with previous cases that focused on geographical access rather than permitting procedures.

The Court's decision in Renton did not restrict its "reasonableness" assessment to the number of available sites for adult businesses in a city; it also considers how permit procedures may limit businesses' communication opportunities. The Ninth Circuit's Baby Tam II ruled that an ordinance lacking a time limit for city action on adult bookstore licensing was unconstitutional. It emphasized that zoning ordinances must have adequate procedural safeguards to prevent the undue suppression of protected speech. Although cities can impose reasonable zoning regulations on adult theaters, they must not unreasonably obstruct an applicant's right to operate.

The Simi Valley ordinance, as interpreted by the City, was found to deny adult business applicants a reasonable opportunity to open their enterprises. The Planning Commission's requirement that buffer zones be satisfied at the approval date, rather than at application filing, effectively creates a veto power for sensitive uses, which is unconstitutional. This delegation of power to private parties allows them to arbitrarily block others' rights to engage in protected expression.

The ordinance's structure, which permits private entities to nullify the limited areas designated for adult uses, renders it excessively difficult for applicants to navigate the permit process. Evaluating the reasonableness of alternative avenues must be context-specific, as illustrated by CLR Corp. v. Henline, which found similar ordinances unconstitutional due to their differing impacts in different cities. In a city of 100,000 with only four available sites and active opposition to adult businesses, the sensitive use veto deters protected speech.

Despite the dissent's claims that the sensitive use veto is based on hypothetical scenarios, evidence from Simi Valley shows a real instance where a permit was issued that disqualified an adult business on the same day another application was received. Walker, head of the Joshua Institute, indicated that their establishment would prevent the proposed adult business from opening as intended.

A real risk exists that sensitive uses can obstruct potential adult business owners by establishing nearby locations, thus undermining their efforts to obtain permits. To invalidate an ordinance, it is sufficient to demonstrate a realistic danger that it could infringe upon First Amendment rights of parties not before the court. The presence of a karate school as a reason for permit denial does not negate this concern; prospective adult business owners may be deterred from applying due to the fear that similar organizations will emerge to block their applications, especially in a city with limited available sites. This situation creates a substantial deterrent effect, as any individual or group can undermine an adult business application by establishing a sensitive use nearby.

Contrary to the City’s argument, existing case law does not impose an obligation on local governments to ensure that adult businesses have access to preferred sites. While the Court in Renton ruled that prospective adult business owners must navigate the real estate market like any other buyer, the unique vulnerability of adult businesses—where their permits can be contested post-acquisition—creates an unequal playing field. This undermines the premise of market competition addressed in Renton.

The sensitive use veto in this case is deemed unconstitutional, drawing parallels to the doctrine of prior restraint, which prevents enjoyment of protected expression from being contingent on government approval. A licensing scheme for adult entertainment must include procedural safeguards to prevent arbitrary suppression of speech, specifically: a defined timeframe for license decisions and provisions for prompt judicial review. Without these safeguards, the risk of impermissible suppression of protected speech increases significantly.

The Simi Valley ordinance includes safeguards that limit officials' discretion in denying permits once applications are complete and requirements are met, thus not constituting an unconstitutional prior restraint. However, it effectively transfers decision-making power regarding adult business permits to private parties, allowing them to block such businesses, which violates the First Amendment. The ordinance is compared to a Supreme Court case, Larkin v. Grendel's Den, where a statute granting churches veto power over liquor licenses was deemed unconstitutional due to its standardless nature. While the Simi Valley ordinance lacks explicit veto power for private parties, it enables sensitive uses to easily obtain permits and impede adult establishments. The document cites various cases where local governments' delegation of power to private landowners over land use was found unconstitutional due to lack of standards, raising concerns over arbitrary decision-making. In this context, the infringement on First Amendment rights by allowing private parties to influence adult business permits is deemed particularly problematic, as such expression is more constitutionally protected than other land use decisions.

The excerpt addresses the constitutionality of Simi Valley's zoning ordinance concerning adult businesses, particularly the "sensitive use veto" provision. It argues that this provision unreasonably limits alternative communication avenues and poses a significant risk of private parties suppressing controversial speech. The court found the district court's ruling—that four available sites do not provide reasonable alternatives under the Renton standard—erroneous. The district court failed to conduct a fact-specific analysis tailored to Simi Valley's characteristics, including its size and demographics. There are currently no adult businesses in Simi Valley, and the history of adult use applications is limited, making it premature to conclude that the number of potential sites is insufficient. The court emphasized that the lack of demand for adult businesses may stem from the chilling effect of the ordinance itself, rather than the number of potential sites. Previous cases, including Topanga Press and Walnut Properties, invalidated ordinances for insufficient alternative sites; however, Simi Valley's situation differs significantly from Whittier, where many businesses already existed before the ordinance was enacted. The district court's comparison of Simi Valley's four sites to Whittier's three was deemed immaterial given the differing contexts.

Enforcement of the ordinance in Walnut Properties would have resulted in the closure of Whittier's only adult theater, with no relocation prospects, leading the court to note a "glaring" lack of alternative sites. In contrast, evidence indicates that fewer than four adult businesses would likely open in Simi Valley without zoning regulations, with Young being the sole applicant for an adult business permit historically. The quantity of available sites for adult use lacks significance without context to assess its sufficiency for that locale. Walnut Properties does not establish that limiting adult businesses to three or four sites is inherently unconstitutional, contrary to the district court's interpretation. Similarly, Topanga Press invalidated a Los Angeles ordinance because it permitted fewer adult businesses than were already operational, requiring most to relocate. The analysis hinges on whether available locations exceed the demand for adult businesses, a standard used by other circuits. However, a strict rule equating the constitutionality of an ordinance with the number of available locations matching or surpassing existing businesses is rejected. The chilling effect of zoning ordinances on prospective applicants must be considered, as it may distort demand. Courts should evaluate various factors, including the ratio of available land to adult businesses, site availability relative to population needs, incidence rates in similar communities, and city planning goals, in determining if adult businesses have a "reasonable opportunity" to operate.

Young's appeal does not contest the factors related to the lack of a "reasonable opportunity" to establish an adult business in Simi Valley. Instead, it centers on the unconstitutionality of the sensitive use veto provision. The court agrees that there is insufficient evidence of demand for adult businesses in the area, and thus, four available sites can legally provide reasonable alternatives for expression under Renton. The court affirms the district court's ruling that the sensitive use veto provision is unconstitutional. However, it vacates the permanent injunction against enforcing the zoning scheme's distance and buffer requirements, deeming it overbroad since only the veto provision was invalidated. The case is remanded for the injunction to be refined to prohibit enforcement solely of the sensitive use veto provision. Young is awarded costs on appeal against Simi Valley. The Simi Valley ordinance defines "sensitive use" broadly, including youth-oriented businesses and various public institutions, with specific distancing requirements impacting adult use permit applications.

On December 7, 1995, the respondent believed that obtaining zoning clearance for the Joshua Institute would disqualify Mr. Young's proposed adult theater. The dissent's view that the application of the sensitive use veto to Young's situation is merely "theoretical" misrepresents the record. The term "sensitive use veto" refers to the ability of a sensitive use establishment to disqualify an adult use permit applicant by securing an over-the-counter zoning permit after the application is filed. The Supreme Court's decision in City of Erie v. Pap's A.M. restricted First Amendment rights related to nude dancing but did not overturn the precedent set in Renton. The relevant inquiry is whether the Simi Valley ordinance deprives adult business owners of a reasonable opportunity to operate within the city, as established in Renton. Although four potential sites for adult businesses are deemed legally sufficient, the limited availability raises concerns about the realistic risk of chilling protected speech. The scarcity of sites increases the likelihood that individuals could exclude all adult businesses from Simi Valley. Additionally, since Simi Valley has no existing adult businesses, proposed applications attract significant public attention, making it easier for opponents to intervene. Young's application received local media coverage, highlighting the permitting process and restrictions. There is ongoing debate about the actual number of sites available, with estimates ranging from 35 to 120, but only three or four sites can be simultaneously utilized due to the 1,000-foot buffer zone requirement.

Topanga Press and Walnut Properties argue for assessing the number of adult businesses that may operate simultaneously, rather than the number of sites available for a single business. The district court assumed there are four sites for adult businesses but acknowledged that this may not be sufficient in the future. 

Philip Young challenged a zoning ordinance enacted by the City of Simi Valley, which restricted the location of adult businesses, claiming a violation of his First Amendment rights after being denied a permit for a nude dancing club. A jury found no constitutional violation in Young's specific case but could not determine if the ordinance generally denied reasonable opportunities for adult businesses, leading to a mistrial. The district court later ruled the ordinance unconstitutional on both its face and as applied, particularly targeting the "sensitive use" provision that restricts adult businesses near youth-oriented entities, schools, and churches.

The court criticized this provision for potentially allowing private parties to veto adult business applications, deeming it facially unconstitutional despite the fact that Young's permit was denied due to a preexisting sensitive use nearby. Circuit Judge O'Scannlain dissented, emphasizing that facial challenges carry a heavy burden and that the court's decision to invalidate the ordinance was not justified. The district court's reasoning was based on the claim that the sensitive use provision created a de facto veto power over adult business permits, which the majority supported, asserting it failed to provide reasonable alternative avenues for communication, contrary to the standards established in City of Renton v. Playtime Theatres, Inc.

Young acknowledges that the ordinance is intended to address significant government interests, specifically Simi Valley's efforts to mitigate the negative secondary effects of adult businesses. The central issue in this appeal is whether the ordinance effectively prevents Young from reasonably opening and operating an adult business in the city. The district court determined that the mere potential for a sensitive use to disqualify Young's application renders the ordinance unconstitutional, as it could make it unreasonably difficult for applicants to complete the permit process. The majority seems to align with this view, suggesting that the potential for unconstitutional application undermines the ordinance entirely.

However, the reasoning implies that nearly any adult business zoning ordinance could be deemed unconstitutional under such a theory, including the one upheld in Renton, which did not speculate on potential unconstitutional applications. Upholding the sensitive use provision's facial constitutionality does not exempt it from future constitutional challenges on an "as applied" basis. In this case, evidence was presented that could suggest a high likelihood of a sensitive use disqualifying Young's future permit applications. Nevertheless, there was also significant direct evidence indicating that the Joshua Institute's application was unrelated to Young's situation, with the Institute's representative denying any intent to obstruct Young's permit process.

Young's adult business was disqualified from its proposed location due to the proximity of a youth-oriented business. The jury determined that the ordinance was constitutionally applied, rejecting claims of unconstitutional enforcement against Young. The district court incorrectly ruled the ordinance as facially unconstitutional and enjoined its enforcement. It argued that the ordinance's buffer zone allowed for only four potential adult business sites in Simi Valley—insufficient for reasonable alternative means of communication. However, this conclusion was reached without the necessary fact-specific analysis required by Renton. It is suggested that the constitutionality of such an ordinance should be assessed based on the comparison of available sites for adult businesses against the demand for them. A legal standard proposed is that an adult business zoning ordinance violates the First Amendment if it restricts available sites below demand. This principle has been supported in other circuits. The majority, however, did not adopt this standard, citing concerns over the chilling effect on potential business owners; nonetheless, it is argued that as long as a site exists for the business, the claim of being denied a reasonable opportunity is unfounded. According to Renton, zoning regulations are valid, and in this instance, the number of available sites exceeds the demand by three to four times, indicating no constitutional violation.

The Supreme Court's decision in Renton, along with decisions from other circuits, indicates that the number of available locations for adult entertainment is legally reasonable. Following oral arguments in the current case, the Court decided City of Erie v. Pap's A.M., where the city prohibited nudity in public places, effectively banning nude erotic dancing. The majority upheld this ordinance as a content-neutral regulation that meets the four-part test established in United States v. O'Brien. Consequently, municipalities can completely ban nude dancing to address the negative secondary effects associated with adult entertainment.

While Erie permits total bans on nude dancing, it does not override Renton, which allows regulations as long as they do not deny individuals a reasonable opportunity to operate adult theaters. Together, these decisions provide different frameworks for assessing the constitutionality of content-neutral regulations on nude dancing versus other adult entertainment forms. In Simi Valley's case, the challenge to its ordinance fails under Renton and would also fail under the Erie standard.

The Erie decision reinforces the government's ability to implement content-neutral restrictions based on secondary effects. Simi Valley's adult business zoning ordinance offers reasonable alternative avenues for communication and does not violate First Amendment standards. Although concerns exist regarding its sensitive use provision, it is not facially unconstitutional. The ordinance's distance and buffer requirements are deemed constitutionally valid, leading to a recommendation to reverse and remand for the vacation of the injunction. Dancers must adhere to specific attire requirements, such as wearing pasties and a G-string, to comply with the ordinance.