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Home My WebLink About25-City Attorney CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: JAMES F. PENMAN Subject: Authorization to join amicus briefs in support of the cities of Los Angeles and Long Beach in the cases of Alameda Books v. City of Los Angeles and Lim v. City of Long Beach. Dept: CITY ATTORNEY Date: October 24, 2000 ;~ ~.' ~ Ul :~l " ~ ...'u,;;J..J ..:~ j:' Synopsis of Previous Council Action: None. Recommended motion: That the Mayor and Common Council authorize the City Attorney to join in the amicus briefs in support of the cities of Los Angeles and Long Beach in the cases of Alameda Books v. City of Los Angeles and Lim v. City of Long Beach before the United States Supreme Court. Contact person: Robert L. Simmons Phone: 5355 Supporting data attached: Staff Report Ward: All FUNDING REQUIREMENTS: Amount: None Source: Finance: Council Notes: Agenda Item Nc. . JS II) iI}{)/) STAFF REPORT Council Meeting Date: October 16.2000 TO: Mayor and Common Council FROM: James F. Penman, City Attorney DATE: October 24, 2000 AGENDA ITEM: Authorization to join amicus briefs in support of the cities of Los Angeles and Long Beach in the cases of Alameda Books v. City of Los Angeles and Lim v. City of Long Beach. The defendants in each of the above cases have requested amicus support. Both cities lost adult entertainment cases in the 9th Circuit Court of Appeals. Both cities are seeking a Writ of Certiorari in the United States Supreme Court. Alameda Books v. City of Los Angeles Los Angeles prohibited a combined adult video arcade and adult bookstore in one building. The Ninth Circuit agreed with the trial court that this violated the First Amendment. This decision would require cities to have a study of the harmful secondary effects of every possible combination of adult businesses rather than being able to rely on a general study. Most cities would find it difficult to do the studies. Um v. City of Long Beach Long Beach has an amortization ordinance for the relocation of non-conforming adult businesses to adequate sites. The Ninth Circuit raised several difficult issues for cities regarding potentially available properties. For example, is a property encumbered with a long term lease available in the commercial market? There are several other questions relating to availability. Plus the burden of proof shifts to the city. The City Attorney recommends that the City of San Bernardino join in these amicus curiae briefs. There is no cost to the City in the joinder of these briefs. .( . f-V~ ~.\\\O'; \o~ o 0 BEST BEST IS. KRIEGER LLP A CALIFORNIA LIMITED L1ASILlTY PARTNI!:ASI1IP INCLUOING PAOI"'II!:SSiONAL CORPORA-TlONS LAWYERS 74-780 HIGHWAY I I I. SUITE: ZOO INDIAN WELLS. CALI"ORNIA IllZZ I 0 POST Of",.lct SOX 13e50 P....LM OESl!:RT. C,",L.Il"ORNIA 'OlZZ55 TEL.EPHONE 17eOl sse.ze I I TEL.ECOPIER 17001 340.00ee WWW.SSKI.....W.COM I..EC...RIE S. WHIT1"IEI..D K...RI!:N M f"RI!:I!:M...N .JOHN 0 HIGGINBOTl4...M M.I.....Tl4Y SUIIR...M...NI...N USI MESHIU:KY CR...IG M, M.RSH...1..1.. .J1!:"f"RI!:Y S S"'I..I..INGER M. Tl4ERES... TOI..EN"NO TMERES... E. .NTONUCCI MEI..1SS'" W, WOO E. SI!:"'N .RTMI!:R TR"'NG T TR.N C"'RMEN ,.....R"NEZ llE OS"'S'" TR"'CIE PHAM .JASON C, OI..ESS O...VID .J HANCOCK I-I"'Y\..EY E. PE"Tt:RSON ROGI!:R K. CR",W"ORO SH"'WN D. H"'GERTV .JAMES P. MORRIS KEVIN T. COl..1..1NS CARYM 1... CR.IG DAVID W. NEWM"'N .JENNI"ER T. 8UC!l:M"'N MARl. E. GI..ESS GI..EN W PRICE MAAYMICHAEI.. MCI..EOO .JAMI!:S R. TOUCHSTONE ST'[VI!:N M. "'NDERSON 1t08ERT I.. PAl'TEASON BRYAN K. BEN...RO P.UI..... C.P.llE SOUS... I..YSA M. S...I..1'%MAN MARCO... M.R"NEZ .JOHN f", W"'I..S1-1 OANIEI.. G. ST'[VI!:NSON .JEf""RY f". f"ERRE OORINE I..AWRENCI!:-HUGHI!:S .I..ISON 0, AI..PERT KRISH...N S. CHaPA... .JAY.J.I..I!:E .J"'MES C TURNEY MICH...EI.. O. 001..10.1. ARTMUR 1... I..ITn..EWOIHl-i' WII..I..IAM R. OI:.WOI.."I!:' RICHAAD T. ANDERSON' .JOHN O. W.HI..IN' .JOHN I!:. 8AOWN MICHAEl.. T. RIDOEI..I..' MICH...EI.. GRANT' "RANCIS.J. S...UM' GEOAGE M. REYES' WII..I..IAM W. f'LOYC. "'A GAI!:OOAY 1... H...ROKE KENDAI..I.. H. MACVEY CLAAK H. ...LSOP OAVIO.J. I!:AWIN' MICH"'EL.J. ANOELSON' DOUGLAS s. PHII..1..1PS' GREGORY K. Wll..KINSON GENE TANAK'" VICTOR 1... WOI.." DANIEl.. I!:. OI..IVIEA HOWARD 8. GOI..OS STEPHEN P. OEITSCI-I .JOHN R. ROTTSCH"'I!:"EA MARTIN A. MUEI..I..EA .J. MICH...EI.. SUMMEROUR SCOTT C. SMI"n4 .J...CK 8. CLARKE. .JA BAlAN M. LEWIS' BRADI..EY E NEU"ELD PE"Tt:A M. S"'AM"'CK .JEf"f"REY V. DUNN STEVI!:N C DcS"'UN ERIC I.. GARNER' OENNIS M, COTA I> H.W.f", PI!:...RCE R081!:RT W, H"'RGRI!:AVES C. MICI1...EI.. COWETT BRUCE W. BltACI1 ARLENE PRATtR MARK A. EASTl'R MICI-IELLE OUELLCTn KEVIN K. RANOOLPI1 CYMTl4IA M. GERMANO MARGUERITE S, STRANO KYLE .... SNOW .JAMES S. GII..P1N KIM A eYRENS DEAN OERLE"Tl-i SONIA RUBIO CARVALI10 .JOHN O. PINKNEY PIERO C. OAI..L...RO... DWIOHT M. MONTGOMEAY WILL.IA,.. O. OAI-II..INO. .JR BERNIE I.. WILL.IAMSON G. HENAY WEL.LES AICI1ARO T EGGER 0" COUNSEL CHAISTOP"I!:R I.. CARPI!:NTE:R' MICHAEL. D. "ARAIS' ANNI!: T. TMOMAS' DONALD 1'", ZIMMER' f"RANKLIN C. ADAMS WILLI...M WOOD MERR1L.L. O. SAlAH REIOI!:R KIRK w, SMITH DI1\IA O. HARAIS OFI'"ICI!:S IN AIVI!:RSIOE t1l(8) ese. t ..SO ONTARIO (1I0QI lIell.eBB4 S"'N OIEGO (81111 525'1300 RAYMOHD BEST (1888- I SlS 7) .JAMES N, KRIEGEA 11 II I 3.1875) EUGItNI!: 8EST (I 8e3.1 e81) "A PROFESSIONAL CORPORATION FileNo. October 6, 2000 ALL CALIFORNIA CITY ATTOM'EYS TO: AMICUS SUPPORT FOR PETITION FOR CERTIORARI TO UNITED STATES SUPREME COURT IN ALAMEDA BOOKS. INC.. vs. CITY OF LOS ANGELES. 2000 DAILY JOURNAL DAR 9569 (NINTH CIRCUIT. AUGUST 28.2000.) RE: THE SPECIFICITY WITH WHICH STUDIES MUST DEMONSTRATE ADVERSE SECONDARY EFFECTS IN ORDER TO JUSTIFY PARTICULAR REGULATIONS OF ADULT ORIENTED BUSINESSES. ISSUE: Dear Colleague: On behalf of the City of Los Angeles, our office joins with the Legal Advocacy Committee of the League of California Cities in urging you to add your city as amicus in this important case titled Alameda Books. Inc.. v. Citv of Los Anlleles involving the regulation of adult businesses. Sixty five California cities previously joined in an Amicus Brief in support of the City of Los Angeles in this matter before the Ninth Circuit Court of Appeals. Unfortunately. the Ninth Circuit affirmed the trial court decision adverse to the City of Los Angeles, jeopardizing adult business regulation statewide. By action on August 4, 2000, the Legal Advocacy Committee recommended that cities join the amicus brief in support of the City of Los Angeles's Petition for Certiorari to the Supreme Court, and, if granted, an amicus brief in support of Los Angeles on the merits. The brief is being prepared by Robert Hargreaves, Marco Martinez, and Kevin Collins of Best Best & Krieger. FL\{PtnB\JR~1726S7 LAW OFFICES OF c o BEST BEST & KRIEGER LLP All California City Attorneys October 6, 2000 Page 2 I. Summary of Facts and Proceedings in the Trial Court. Plaintiffs are the owners and operators of combined adult bookstores and adult video arcades in one building. Los Angeles Municipal Code section 12.70, the City's adult entertainment ordinance, provides that adult businesses must be separated from each other by 1000 feet and that two adult businesses cannot be combined in the same building. These plaintiffs expanded their adult bookstores to include adult video arcades after the adult entertainment ordinance restrictions were in effect. When the City sought to enforce the provisions of its ordinance, plaintiffs filed suit in federal court seeking declaratory and injunctive relief to have the provision prohibiting two businesses in one building declared unconstitutional and its enforcement enjoined. The trial court granted plaintiffs' motion for summary judgment and held that the provision prohibiting an adult bookstore and adult video arcade in one building violates the First Amendment. The Ninth Circuit affirmed, finding that the multi-use restriction was inadequately supported by evidence of adverse impacts. The Court found that the City had presented no evidence, in the legislative record, that a combination adult bookstore/arcade produces any harmful secondary effects. (The study on which Los Angeles relied indicated that one forth of the adult businesses in the area of the city that experienced the greatest crime increase where adult bookstore/arcades.) 2. Alameda Books Has Statewide Significance for All Local Governments. To require, as the Alameda Books decision does, that a city present in its legislative record particularized evidence that a particular combination or manifestation of adult businesses actually produces the secondary effects that the City seeks to ameliorate would impose a very difficult evidentiary burden on local governments. The ever-lengthening list of variations of adult-businesses attest to the breadth and variability of this industry. New variations constantly appear in atteml'.ts to expand markets and circumvent existing regulations. The complexity of the ordinances regulating these uses has grown in an attempt to keep pace with the ever-changing adult businesses and evolving judicial standards. Current adult-business ordinances often measure in excess of 20 pages and contain dozens of regulatory provisions. Alameda Books can be interpreted to require that each aspect, and every permutation, of these regulations be backed by specific evidence that demonstrates that the conduct regulated actually produces harmful secondary effects. Despite numerous studies by local governments of the harmful secondary effects of these types of businesses, no study currently documents the harmful secondary effects of each type of business or behavior that adult business regulations are designed to address. To provide the level of proof apparently required by Alameda Books would create an extreme hardship on local cities. Morever, if Alameda Books is upheld, many aspects of our current adult business regulations will be subject to challenge. R.W'UB\RWH'.172657 LAW OFFICES OF c -.J BEST BEST & KRIEGER LLP All California City Attorneys October 6, 2000 Page 3 3. Basis for the Amicus Brief. Amicus will contend on appeal that this ruling creates an unworkable standard for local governments to meet in regulating adult businesses. Neither Young v. American Mini Theatres 427 U.S. 50 (1976) nor City of Renton v. Playtime Theatres, Inc. 475 U.S. 41 (1986) require that each permutation and combination of adult business configurations be studied in order to conclude that there are adverse secondary effects that justifY and require regulation: "The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses." (Renton 475 U.S. 41, 51-52.) . Amicus will contend that the Renton standard was inappropriately applied in this case, and that cities may rely on reasonable inferences from existing studies to justifY their regulatory schemes. 4. Briefing Schedule. We anticipate that the amicus briefwill be due on approximately November 15, 2000. We would appreciate your support in this important effort on behalf of California cities' efforts to regulate adult-oriented businesses. Please complete and return the attached form by November I, 2000. Your city will not be charged in any way should it choose to support this effort. Many thanks for your support and please feel free to telephone me directly at (760) 568-2611 should you have any questions on this case. RWHlkc enclosures GER LLP cc: Joanne Speers, General Counsel, League of California Cities Michael Kiekner, City Attorneys' Office City of Los Angeles R.'vlPtJB\RWH\I72657 ,- LAW OFFICES OF ~ BEST BEST is. KRIEGER LLP :.) All California City Attorneys October 6, 2000 AUTHORIZATION TO JOIN AMICUS BRIEF ALAMEDA V. CITY OF LOS ANGELES Return by mail or facsimile to (760) 340-6698 Robert W. Hargreaves, Esq. Best Best & Krieger LLP 74-760 Highway Ill, Suite 200 Indian Wells, CA 92210 Dear Mr. Hargreaves: Pursuant to the City's policy regarding joinder in friend-of-the-court briefs, you are authorized to add the City of to the amicus brief you are preparing in the above matter. The City understands that you are preparing this brief on a pro bono basis and there will be no cost to the City associated with joinder in this brief Thank you for your advocacy efforts on behalf of public agencies in this matter. Very truly yours, Signature Printed Name and Title- Address Phone and Fax Numbers RMPUB\R\VH\I72657 c LAW OFFICES :) v~ ..6 . r_l-'7 j\:! . (.." \\1') \ \ \\\~ DEBORAH J. FOX MARGARET MOORE SOHAGI JOSEPH H. McDOUGALL THOMAS H. CASE Fox & SOHAGI, LLP A REGISTERED LIMITED LIABILITY PARTNERSHIP 10960 WILSHIRE BOULEVARD, SUITE 1270 Los ANGELEs, CALIFORNIA 90024-3702 FACSIMILE (310) ~~~-7813 PHILIP A. SEYMOUR OF COUNSEL TELEPHONE (31 0) ~~~-7805 October 5, 2000 City Attorney Re: Request For Amicus Support - Lim v. City of Long Beach United States Supreme Court Dear Colleague: On behalf of the City of Long Beach, our office joins with the Legal Advocacy Committee of the League of California Cities in urging you to add your city as amicus asking the United States Suprerne Court to accept certiorari in this irnportant adult business regulation case - Lim v. City of Long Beach, 217 F.3d 1050 (9th Cir. 2000). On Septernber 20, 2000, the Executive Committee of the Legal Advocacy Committee recornrnended that cities join the arnicus brief that is being prepared by Deborah J. Fox of Fox & Sohagi. The League's Board of Directors will rneet on Novernber 17,2000 and it is anticipated that they will then approve the Executive Cornrnittee's recommendation. Four existing adult businesses challenged Long Beach's adult business ordinance, alleging the ordinance is unconstitutional because it fails to provide adequate "~lA.^~';on s;teo ~nd requ;r~s 'mort;7a';on ofev;o'J'ng non-conf.o~J'ng .dul' f'C;I;'J'po ......................~.... .... >J "'.. ..... ........ .........~.... ... ............... ...... J.J..l..i..... .... .. ~_ ......... _..... This rnatter was tried in federal court before the Honorable Judge Paez. On May 15, . . 1998, Judge Paez ruled that Long Beach's ordinance is constitutionally sound. Plaintiffs appealed to the Ninth Circuit. The Ninth Circuit Court of Appeals affirmed in part, reversed in part and remanded. The Ninth Circuit held that a city rneets its burden of justifYing a restriction of free speech under an adult entertainment zoning ordinance by specifYing in good faith a reasonable list of potentially available properties. However, the Ninth Circuit found the public entity has the burden of proof to show there is a reasonable range of alternative sites. More troubling is the Ninth Circuit's analysis of whether property has a "genuine c :) Fox & SOHAGI, LLP City Attorney October 5, 2000 Page 2 possibility" of becorning available for a cornrnercial use. The Court rernanded to allow plaintiffs to present evidence concerning the availability of alternative cornmercial locations in Long Beach's real estate rnarket. The Court noted that plaintiffs could present evidence that Long Beach's pr.)ffered properties would not "becorne available because, for example, they were encurnbered by long term leases." This case rnay have a direct irnpact on your city's efforts to regulate adult uses within your cornrnunity and to amortize out existing non-conforming adult uses. The issues include: 1. What is constitutionally required in order for a comrnunity with existing adult uses to establish a reasonable range' of alternative sites? 2. Does the City bear the burden of proof to establish that there is a sufficient nurnber of available sites for the relocation of existing adult use operators? 3. Is there a different standard for evaluating sites when dealing with existing adult facilities located within a jurisdiction versus new adult facilities rnoving into a jurisdiction? 4. What is the standard for defining the potential "availability" of sites within the relevant market under Topanga Press and City of Renton? 5. Do long term leases disqualify a site frorn being considered as part of the relevant real estate rnarket? How long is required before the lease disqualifies a site frorn the existing rnarket? What other market factors will elirninate sites frorn a "genuine possibility" of availability? An amicus brief frorn California cities will substantially bolster the chance of the U.S. Suprerne Court granting certiorari and if granted, it will have far-reaching significance for all California cities. We will argue that the relevant rnarket does not require that sites be unoccupied and "camera ready" for an existing adult use operator. c :) Fox & SOHAGI, LLP City Attorney October 5, 2000 Page 3 We think this is a rnatter of widespread interest to all cities, and that amicus assistance frorn cities is critical. Currently, Long Beach's petition for certiorari is due on November 21, 2000 and we request that you obtain any necessary authority and notifY our office on or before Novernber 10,2000. A consent form to confirm your authorization is enclosed for your use. Your city will not be charged should it choose to support this effort. Please feel free to telephone me directly at (310) 444-7805, or e-rnail rne care of djfox@fox-sohagLcom should you have any questions on this case. Alternatively, feel free to contact Long Beach Deputy City Attorney Dan Murphy. Many thanks for your support. ~ S. I ./ mce~r': < / ' ~. \ D O~FOX . of 0)(& SOHAGI, LLP Enclosure cc: JoAnne Speers, General Counsel, League of California Cities Daniel S. Murphy, Deputy City Attorney, City of Long Beach Clark Alsop, City Attorney City of Fontana Ibeach\am lcus-\tr I. wpd\7050 1.025 c ~ Fox & SOHAGI, LLP City Attorney October 5, 2000 Page 4 Authorization to Join U.S. Supreme Court Amicus Brief Lim v. City of Long Beach RETURN BY MAIL OR FACSIMILE (310) 444-7813 Deborah J. Fox, Esq. Fox & Sohagi, LLP 10960 Wilshire Boulevard, Suite 1270 Los Angeles, California 90024-3702 Re: Lim v. City of Long Beach Authorization to Add City of to the U.s. Supreme Court Amicus Curiae Brief Dear Ms. Fox: Pursuant to the City's policy regarding joinder in friend-of-the-court briefs, you are authorized to add the City of under rny name as the City's attorney to the amicus brief you are preparing in the above-referenced rnatter in support of Long Beach's petition for certiorari. The City understands that you are preparing this brief on a pro bono basis and there will be no cost to the City associated with joinder in this brief. Thank you for your advocacy efforts on behalf of public agencies in thisrnatter. Very truly yours, City Attorney State Bar No.: Address: