Government Rationale Given Benefit of the Doubt in First Amendment Challenge to Zoning Ordinance

By Leslie Z. Walker

In Alameda Books et al. v. City of Los Angeles (9th Cir. Jan. 28, 2011, No. 09-55367) ____ F.3d____ [2011 U.S. App. LEXIS 1769], the United States Court of Appeals for the Ninth Circuit considered whether plaintiffs had presented actual and convincing evidence to cast doubt on the City of Los Angeles’ rational in enacting an ordinance requiring the dispersal of adult entertainment businesses. The United States District Court for the Central District granted summary judgment against the City of Los Angeles finding plaintiffs’ evidence was actual and convincing enough to cast doubt on the city’s purpose in enacting the ordinance on appeal. The Ninth Circuit found that the declarations were facially biased and insufficient to call into question the municipality’s justification of the ordinance.

After conducting a study from which it concluded that incidences of crime are higher in areas with concentrations adult businesses, the City of Los Angeles enacted an ordinance requiring among other things, that an adult arcade not be located within 1,000 feet of an adult bookstore. The city thereafter amended the ordinance to clarify that an adult arcade and adult bookstore also could not operate in the same establishment. A city inspector informed the plaintiffs, Alameda Books and Highland Books, establishments containing both adult print media and adult arcades, that they were in violation of the ordinance. Plaintiffs brought suit in U.S. District Court for the Central District of California, pursuant to 42 U.S.C., § 1983, a federal statute which provides a remedy for persons who, under color of state law, are deprived of rights, privileges or immunities granted under federal law or the United States Constitution. The district court granted summary judgment to plaintiffs and the city appealed.

The Ninth Circuit Court, citing to Renton v. Playtime Theaters, Inc (1986) 475 U.S. 41, articulated the applicable legal test to determine whether an ordinance violates the First Amendment. The test is as follows: 1) Does the regulation completely ban protected expression? 2) Was the city’s purpose in enacting the provision to ameliorate secondary effects?  3) If so, the regulation is subject to intermediate scrutiny and the court must ask whether the provision is designed to serve a substantial government interest, and whether reasonable alternative avenues of communication remain available.” The Supreme Court in City of Los Angeles v. Alameda Books, Inc. (2002) 535 U.S. 425 explained that to show no substantial government interest exists, the plaintiff must 1) demonstrate that the municipality’s evidence does not support its rational or 2) furnish evidence that disputes the municipality’s factual findings.” If the plaintiff fails to do either, then the municipality’s rationale stands. If the plaintiff succeeds in casting doubt on the city’s rationale, the burden shifts back to the city to supplement the record with new evidence justifying the ordinance. To successfully cast doubt, the plaintiff must offer “actual and convincing” evidence that does “more than challenge the government’s rationale; it must convincingly discredit the foundation upon which the government’s justification rests.” (Imaginary Images, Inc. v. Evans (4th Cir. 2010) 612 F.3d 736, 747 (citing Giovani Carandola, Ltd. v. Bason (4th Cir. 2002)303 F.3d 507, 516).) A municipality’s justification can not be that its regulation will reduce secondary effects simply by reducing speech proportionately. (City of Los Angeles v. Alameda Books, Inc. (2002) 535 U.S. 425, 449 Kennedy concurrence.)

In this case, the issue was whether the ordinance was designed to serve a substantial government interest, specifically, whether the evidence put on by plaintiffs was sufficient to cast doubt on the city’s rationale. The Ninth Circuit explained that a plaintiff must do more than point at a municipality’s lack of empirical evidence or challenge the methodology of the municipality’s evidence to cast doubt on the city’s evidence. The court cited a Sixth Circuit decision explaining that the plaintiff bears a heavier evidentiary burden in attempting to cast doubt than the municipality does in justifying the ordinance at the outset. (Richland Bookmart v. Knox County (6th Cir. 2009) 555 F.3d 512, 527-28.)

The evidence put forth by plaintiffs to cast doubt on the city’s rationale were declarations from the vice president of the corporation now owning the plaintiff companies, and from an individual who installs adult arcade systems, including the systems in the plaintiffs’ establishments. Both declarants claimed that the adult bookstore and adult arcade could not be separated because a stand-alone adult arcade would not attract a significant number of customers and would be perceived as seedy. The ordinance would thus reduce secondary effects simply by reducing speech proportionately, in violation of the First Amendment. The declarations contained lengthy passages of identical texts. Despite the city’s objection to the bias of the evidence, the district court found the declarations to be actual and convincing enough to justify summary judgment in favor of the plaintiffs. The Ninth Circuit found, however, that the failure of the district court to take into account the bias of plaintiffs’ witnesses was a significant issue. Since the credibility of a witness is almost categorically a trial issue, summary judgment was contraindicated. The court reversed and remanded for further proceedings.

The Ninth Circuit has yet to find that a plaintiff has successfully casted doubt on the City’s evidence or rationale and this case articulates an important presumption in favor of a City’s reasoning.

Leslie Z. Walker is an associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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