HomeMy WebLinkAbout25- City Attorney's Office CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN Subject: REQUEST TO JOIN IN ON AMICUS IN SUPPORT
OF THE CITY OF LONG BEACH IN LIM v. CITY
Dept: City's Attorney's Office OF LONG BEACH,NINTH CIRCUIT COURT
Date: September 21, 1998 ORIGINAL OF APPEAL NO. 98-55915
Synopsis of Previous Council action:
None
Recommended motion:
Authorize the City Attorney's Office to join Amicus Brief in support of the City of Long Beach.
A,
Signature
Contact person: Robert L. Simmons Phone: 5355
Supporting data attached: Yes Ward: All
FUNDING REQUIREMENTS: Amount: None
Source:
Finance:
Council Notes:
75-0262 Agenda Item No.
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DEBORAH J. FOX . wcoiar.... uNnce 0.6.111 ..w TERRY P. KAUFMANN MACIAS
MARGARET MOORE SOHAGI 10960 WILSHIRE BOULEVARD, SUITE 1270 PHILIP A. SEYMOUR
RICHARD P. LOPEZ LOS ANGELES, CALIFORNIA 90024-3702 OF COUNSEL
LIORA FORMAN
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(310) 444-7813 Q3(9
TELEPHONE
(310) 444-7805
July 22, 1998
City Attorney
Re: Request for Amicus Support — Lim v. City of Long Beach,
Ninth Circuit Court of Appeals No. 98-55915
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 in this important case titled Lim v. Long Beach involving the
regulation of adult businesses. By action on June 19, 1998, the Advocacy
Committee recommended that cities join the amicus brief that is being prepared by
Deborah J. Fox of Fox & Sohagi under the review of Marsha Moutrie, City
Attorney for Santa Monica. Several cities and the County Counsels' Association
of California have already indicated their support for Long Beach's position.
Long Beach's adult business ordinance was challenged by four adult
bookstores who claimed that the Long Beach ordinance was unconstitutional
because it failed to provide adequate relocation sites and required amortization of
non-conforming adult facilities. Roger Diamond represented the adult use
operators and this matter was heard in federal court before the Honorable Judge
Paez, Presiding. On May 15, 1998, Judge Paez issued his ruling declaring Long
Beach's ordinance to be constitutionally sound. Long Beach has requested
publication of the decision but to date, this request has not been granted.'
Plaintiffs have appealed to the Ninth Circuit.
' If you would like to review the unpublished opinion in full, please contact
our office and we can see that a copy is timely provided.
FOX 8 SOHACI, LLP
City Attorney
July 22, 1998
Page 2
This appeal may have a direct impact on your city's efforts to regulate
adult uses within your community and to amortize out any non-conforming adult
uses. The issues include:
1. What is constitutionally required in order for a community to
provide a reasonable range of alternative sites for adult facilities?
2. What is the standard for defining the potential "availability" of
sites within the relevant market under Topanga Press and City of Renton?
3. Who has the burden of proof on the sites issues?
4. Is an eighteen (18) month amortization period permissible?
5. Does a city violate equal protection if it applies amortization to
existing adult uses but not to non-adult uses within the community?
As amicus, we will argue that the adult use operator has the burden of
proving the reasonableness of the number of offered sites and that the relevant
market does not require that sites be unoccupied. One of the troubling aspects of
the trial court proceeding was that initially, Judge Paez was of the mind that to be
"available," a site must be unoccupied. While Long Beach was able to carry the
day in educating the court on the applicable standard of "availability" in a more
generic sense within the commercial real estate market, this issue continues to
plague municipalities at the trial court level.
An amicus brief from California cities will substantially bolster the
chance for a favorable ruling from the Ninth Circuit which will have far-reaching
significance for all California cities. We think this is a matter of widespread
interest to all cities, and that amicus assistance from cities will be of great help in
obtaining a clear recitation from the Ninth Circuit.
FOX a SOHAGI, LLP
City Attorney
July 22, 1998
Page 3
Currently, appellant's opening brief is due on September 8, 1998 and
we request that you obtain any necessary authority and notify Anne Munsell (legal
assistant) of my office on or before September 1, 1998. A consent form to
confirm your authorization is enclosed for your use. 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 (310) 444-7805 should you have any questions on this case or Deputy
City Attorney Dan Murphy who handled the trial court proceeding.
Sincerely,
DEBORAH J. FOX
of FOX & SOHAGI, LLP
Enclosure
cc: JoAnne Speers, General Counsel,
League of California Cities
Daniel S. Murphy, Deputy City Attorney,
City of Long Beach
Marsha Moutrie, City Attorney,
City of Santa Monica
dj RI b-amicus.l❑\70501.025
Fox 8 SOHAGI, LLP
City Attorney
July 22, 1998
Page 4
Authorization to Join 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 1230
Los Angeles, California 90024-3702
Re: Lim v. City of Long Beach
Authorization to Add City of
to 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
my name as the City's attorney 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,
City Attorney
State Bar Number
Address