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HomeMy WebLinkAboutPlaytime Theaters Court Case (1984) OF RA,4
ti .. OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON
-0 POST OFFICE BOX 626 100 S 2nd STREET • RENTON, WASHINGTON 98057 255-8678
-
0 ^' LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY
0
co- DAVID M. DEAN, ASSISTANT CITY ATTORNEY
gTF0 SEP���O� MARK E. BARBER, ASSISTANT CITY ATTORNEY
ZANETTA L.FONTES, ASSISTANT CITY ATTORNEY
September 6 , 1984 MARTHA A.FRENCH, ASSISTANT CITY ATTORNEY
TO: Barbara Y. Shinpoch, Mayor
P 7
FROM: Lawrence J. Warren, City Attorney 1984
RE. Playtime
Dear Madam Mayor:
Please find enclosed a copy of our Motion to Alter or
Amend Judgment on the Playtime case . Also enclosed is
my Affidavit which explains the reason for the Motion.
Basically, the Judge was in a hurry in entering the
final injunction and used some improvident language.
We argued to her that what she was doing was creating
an ambiguity in the decision. After we had a chance
to review the change and think through all of its
implications , it became clear to us that there was a
real danger in leaving the Judgment in its present form.
A later operator of the theater could argue that in
order to be in violation of the injunction, he would have
to not only operate as an adult motion picture theater ,
but also show one of the listed films . That was not the
court's intention and we are trying to clear up this problem.
Another copy of the Declaratory Judgment Decree and Injunction
is included should you desire to review the exact language .
Should you have any questions , please feel free to contact
me.
Lawrence arren
LJW:nd
Encl .
cc : Council President
1
2
3
4
5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
6 CITY OF RENTON, et al . , )
) NO . 82-2-02344-2
7 Plaintiff )
8 vs ) PLAINTIFF' S MOTION TO ALTER
OR AMEND JUDGMENT PURSUANT
) TO CR 59 (h)
9 PLAYTIME THEATRES , INC. , )
et al . , )
10 )
Defendants . )
11 )
12 Plaintiff moves the Court for an order amending the
13
declaratory judgment decree and permanent injunction restraining
14
operation as an adult motion picture theater entered on August 22 ,
15 deletion of the interlineated
1984 by amending line 23 , page 3 , by
16
word "and" in the phrase "and by exhibiting the motion picture
17
films listed on Attachment A" .
18
This motion is brought to conform the court' s written
19
injunction to the court ' s oral decree .
20
This motion is based upon the affidavit of Lawrence J . Warren
21
dated September 4 , 1984 .
22 i)
DATED: September 4 , 1984.
. 23 ��
24 awre�. W ren -
25
26
27
28 PLAINTIFF' S MOTION TO ALTER OR AMEND
JUDGMENT PURSUANT TO CR 59(h) WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
IOO SO. SECOND WY.. P. O. SOX 620
RENTON. WASHINGTON 98057
255-8678
1
2
3
4 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
5 CITY OF RENTON, a municipal )
corporation, LAWRENCE J . WARREN, )
6 City Attorney for the City of ) NO . 82-2-02344-2
Renton; STATE OF WASHINGTON, )
7 ex rel . LAWRENCE J . WARREN, ) AFFIDAVIT OF LAWRENCE J . WARREN
City Attorney of the City of )
8 Renton, )
)
9 Plaintiffs )
)
10 vs . )
)
11 PLAYTIME THEATRES , INC. , )
a Washington corporation, )
12 KUKIO BAY PROPERTIES , INC . , )
a Washington corporation , and )
13 ROGER H . FORBES , )
)
14 Defendants
15
16 STATE OF WASHINGTON )
ss
17 COUNTY OF KING )
18 LAWRENCE J . WARREN, being first duly sworn on oath , deposes
19 and says :
20 1 . At the presentation of the final pleadings in this case ,
the Court orally ruled that the intent of the injunction was to
21
enjoin use of the Renton Theater as an adult motion picture theater .
22 2 . At the request of Mr . Burns , the Court also indicated
23 that it intended to enjoin exhibition of the motion picture films
submitted into evidence at trial .
24
3. The inclusion of the word "and" at line 23 , as the first
25 word interlineated, an argument could be made that the word is
26 enjoining the use of the theater as an adult motion picture theater
only when one of the listed films is shown . That does not conform
27
to the Court ' s oral decision or the Court ' s stated intent and the
28 AFFIDAVIT OF LAWRENCE J . WARREN - 1
WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
100 f0. SECOND ST.. ►. O. •OX •Z6
RENTON. WASHINGTON 98057
1 word "and" should be stricken .
2
awrence J. Wad
4
5 SUBSCRIBED AND SWORN to before me this ( day of September,
6
1984.
Notary Public in and for the State
8 of Washington, residing at Renton
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 AFFIDAVIT OF LAWRENCE J . WARREN -2
WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
100 SO. SECOND ST.. P. O. SOX 626
e ru�..0 W..u.0�rnu ORr 37
1
2
3
4
5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
6 CITY OF RENTON , a municipal )
7 corporation , LAWRENCE J . WARREN , ) NO. 82-2-02344-2
City Attorney for the City of )
8 Renton; STATE OF WASHINGTON , ) DECLARATORY JUDGMENT
ex rel . LAWRENCE J . WARREN , " ) DECREE AND PERMANENT
9 City Attorney of the City of ) INJUNCTION RESTRAINING
Renton, ) OPERATION AS "ADULT
MOTION PICTURE THEATER"
10 Plaintiffs , )
11 )
vs . )
12 PLAYTIME THEATRES, INC. , )
i3 a Washington corporation , )
KUKIO BAY PROPERTIES, INC. , )
14 a Washington corporation , and )
ROGER H. FORBES, )
15 Defendants . )
16 - )
17 THIS MATTER came on regularly before this Court for
18 hearing upon the Plaintiffs ' Motion for Preliminary
19 Injunction , which motion was consolidated with the trial of
20 Plaintiffs ' request for permanent injunctive relief .
21 The Court has heretofore entered an order severing the
22 Plaintiffs ' First and Second Causes of Action from the
• 23 Plaintiffs ' Third , Fourth and Fifth Causes of Action for
24 purposes of trial . The Plaintiffs' Third , Fourth and Fifth
25 Cuases of Action have been reserved for trial at a later date .
26 The trial of Plaintiffs ' First and Second Causes of
27 Action against Defendants Playtime Theatres , Inc. , Kukio Bay
28 Properties , Inc. , and Roger H. Forbes , commenced on October
WARREN& KELLOGG,P.S.
DECLARATORY JUDGMENT DECREE AND ATTORNEYS AT LAW
PERMANENT INJUNCTION PAGE 1 ,00 SO.SECOND ST.,P.O.POI 626
.cumN w•cHINGTON 98057
1 10 , 1983 and , being recessed , recommenced on January 9 , 1984 .
2 The court convened an advisory jury , which advisory jury on
3 January 23 , 1984 , returned its Special Verdict and made
4 answers to Special Interrogatories propounded to it by the
5 Court .
6 Plaintiffs were represented in this action by Lawrence
7 J . Warren and Mark E . Barber of Warren & Kellogg , P . S . ,
8 attorneys at law. Defendants were represented by Jack Burns ,
9 attorney at law, and Robert E. Smith, attorney at law .
10 The Court previously entered its Findings of Fact and
11 Conclusions of Law .
12 The Court has reviewed the voluminous pleadings in this
13 cause , and having heard the testimony presented and considered
14 the exhibits admitted into evidence , and having received and
15 considered the advisory verdict of the jury which was entered
16 herein , and having considered the argument of counsel , the
17 Court now enters the following Orders :
18 1 . Claims against Roger Forbes personally alleging
19 misuse of the corporate entities of Playtime Theatres , Inc . ,
20 or Kukio Bay Properties , Inc. , and claims attempting to pierce
21 the corporate veil are dismissed .
22 2 . City of Renton Ordinance No. 3526 , as amended by
23 City of Renton Ordinance Nos . 3629 and 3637, is constitutional
24 on its face , and as applied to the Renton Theater more
25 particularly described below, under the Constitution of the
26 United States and of the State of Washington .
27
28
WARREN& KELLOGG,P.S.
DECLARATORY JUDGMENT DECREE AND ATTORNEYS AT LAW
1110 SO.SECOND ST.,P.O.SOX 626
PERMANENT INJUNCTION PAGE 2 RENTON,WASHINGTONNOS7
1 3 . An "adult motion picture theater" is a permitted
2 land use within the B- 1 and more intensive land use zoning
3 classification currently in use within the City of Renton ,
4
except to the extent that it may be prohibited by City of
5 Renton Ordinance No . 3526 , as amended. No special permit ,
6
conditional use permit or variance application is required
7 prior to the commencement of the land use of an "adult motion
8 picture theater" in areas of the, City in which such land use
9 is not prohibited by said ordinances . The Defendants ,
10 Playtime Theatres , Inc. , a Washington corporation, Kukio Bay
11 Properties , Inc . , a Washington corporation , and Roger H .
12 Forbes , as sole officer , director and shareholder of
13 Defendants Playtime Theatres , Inc . , and Kukio Bay Properties ,
14 Inc . , their successors and assigns , and any person claiming
15 any interest in the following described real property through
16 them, are permanently enjoined from use of the Renton Theater
17 premises , legally described as follows :
18 Lot 4 and the West 2 fee of Lot 3 , Block 34 ,
i9 Smithers Second Addition to the Town of Renton ,
according to the plat recorded in Volume 10 of
20 Plats , page 28 , records of King County , Washington ,
situate in King County , Washington .
21 "adult motionpicture theater" , as defined in City elv. aa"
as an
22 s amended by City of Renton
Renton Ordinance No . 35� , � ���� � (, 4tl
��+� j k c'tare�i ems
23 ezka b o,�
Ordinances Nos . 3629 and 3637 , A� or or the purpose of 14kn
24 exhibiting motion picture films which are obscene . f4+
25 The burden of challenging any film or use at the Renton
26 Theater is upon the City of Renton . Any further challenge
27 must be
beyond the films admitted into evidence in this case ,
28
WARREN& KELLOGG,P.S.
DECLARATORY JUDGMENT DECREE AND ATTORNEYS AT LAW
DG'RMAUFNT TN.TIINCTION PAGE 3 100 SO.SECOND ST.,P.O.BOX 626
scuynN WLcHINGTON 98057
1 brought by the City of Renton within ninety ( 90) days after
2 the final showing of any film, program, or other presentatio ,St
3 that the City believes violates this court' s injunction . Any c-g
4 such request for relief should be returnable to the presiding
V� tfa
5 � �f 1�� r1u,(.s'f ah��
judges department as an emergency measure. ,,1 �`�f r' V�ocee ,�5
6 4 . The Plaintiffs' are allowed their taxable costs
7 and statutory attorneys fees .
8 5. There is no just reason for delay and this
9 judgment should be considered final for the purposes of
10 appeal .
11
A
12 DATED : August 22 , 198 •
13
14
NANCY A HOLMAN , !Judge
15
16 Presented by :
17
> r ,�,L
1 awrence J . rren Attorney
i9 for the City of Renton .
20
Copy Received , a arm
•
21
22
1/2. A
23 J CK BURNS
Otto ey for Defendants
24
25
26
27
28
WARREN a KELLOGG,P.S.
RNEYST LAW
A
DECLARATORY JUDGMENT DECREE AND ,00so ATTOATTO NEYSr.O•�OX�26
nL�D►JIIAiCA1T TN.Ti1NCTION PAGE 4 'EN-MN.WASHINGTON98057
�� '\
( ��' rh 0�� 1/a���
3 - /'''/F3
II � "1- yr15S J0►3 )3 (vt.i2 ,ie S a),1173 - 020l0- 3
1 5 American Desire 2/28/83 - 3/3/83
2 6 All American Girls
3 7 Foxholes 3/4/83 - 3/10/83
8 Randy, The Electric Lady
4 9 Scoundrels 3/11/83 - 3/17/83
5 10 Foxtrot
6 11 Irresistible 3/18/83 - 3/24/83
12 Scheherezade ,
7 1001 Erotic Nights
13 Satisfactions 3/25/83 - 3/31/83
8 14 Pandora' s Mirror
9 15 Debbie Does Dallas 4/1/83 - 4/7/83
10 16 Debbie Does Dallas II
17 Little Girls Lost 4/8/83 - 4/14/82
11 18 Ring of Desire
12 19 The Dancers 4/15/83 - 4/21/83
13 20 Between the Sheets
14 21 Daddy' s Little Girl 4/22/83 - 4/28/83
22 The Little French Maid
15
23 Every Which Way She Can 4/29/83 - 5/5/83
16 24 Nightlife
17 25 Expose Me Now 5/6/83 - 5/12/83
26 Stormy
18
27 Young Doctors In Lust 5/13/83 - 5/19/83
19 28 Intimate Explosions
20 29 Up and Coming 5/20/83 - 5/26/83
12 Scheherezade, 1001 Erotic
21 Nights
22 29 Up and Coming 5/27/83 - 6/2/83
30 Insatiable
23
31 Puss and Boots 6/3/83 - 6/9/83
24 32 Seduction of Cindy
25 33 Peepholes 6/10/83 - 6/16/83
34 Body Talk
26
LAW OFFICES Of
Jack R. Burns, P.S.
10140 N.E. 33rd Place • Suite 107
it 1
1 35 Little Girls Blue II 6/17/83 - 6/23/83
36 The Best of Alex De Renzy
2
37 Tinsel Town 6/24/83 - 6/30/83
3 38 Princess Seka
4 39 Skin Deep 7/1/83 - 7/7/83
40 Babe
5
41 Doing It 7/8/83 - 7/14/83
6 42 Baby Cakes
7 43 Nasty Girls 7/15/83 - 7/21/83
44 Little Darlin' s
8
45 San Fernando Valley Girls 7/22/83 - 7/28/83
9 46 Brief Affair
10 47 Hot Dreams 7/29/83 - 8/4/83
48 Society Affairs
11
49 Memphis Cathouse Blues 8/5/83 - 8/11/83
12 50 County Comfort
13 51 Luscious 8/12/83 - 8/18/83
52 Angel Cash
14
53 Devil in Miss Jones II 8/19/83 - 8/25/83
15 54 Greatest Little Cathouse in
Las Vegas
16
55 Taboo I 8/26/83 - 9/8/83
17 56 Taboo II
18 57 Eat at the Blue Fox 9/9/83 - 9/15/83
58 Justine
19
59 A Girl Called Bubble Gum 9/16/83 - 9/22/83
20 60 The Widespread Scandals
of Lydia Lace
21
61 California Valley Girls 9/23/83 - 9/29/83
22 62 Titillation
23 63 Naughty Girls Need Love Too 9/30/83 - 10/13/83
64 Sheer Panties
24
65 In The Pink 10/14/83 - 10/20/83
25 66 Bon Appetit
26 15 Debbie Does Dallas 10/21/83 - 10/27/83
16 Debbie Does Dallas II LAW OFFCI OF
Jack R. Burns, P.S.
,nnen K. C IZ,r1 Ptare • Suite 107
C
19 The Dancers
1
41 Doing It 10/28/83 - 11/3/83
2 31 Puss and Boots
34 Body Talk
3 67 Carnal Olympics 11/4/83 - 11/10/83
4 68 Lust Inferno
5 69 Night Hunger 11/11/83 - 11/17/83
7n Same Time Every Year
6 71 Golden Girls 11/18/83 - 11/24/83
7 72 All About Annette
8 73 Feels Like Silk 11/25/83 - 12/1/83
74 American Pie
9 75 Marathon 12/2/83 - 12/8/83
10 76 Oriental Hawaii
11 77 The Girl From S .E .X . 12/9/83 - 12/15/83
78 Erotic Interlude
12 79 Flesh & Laces Part I 12/16/83 - 12/22/83
13 80 Flesh & Laces Part II
14 81 Too Much Too Soon 12/23/83 - 12/29/83
82 Calendar Girl 83
15 12/30/83 - 1/5/84
83 Bodies in Heat
16 84 I Like To Watch
17 85 Girlfriend 7/6/84 - 1/12/84
86 Hot Pink
18 87 Pretty Peaches
19 88 Private School Girls 1/13/84 - 1/19/84
89 High School Memories
20 90 That' s Outrageous 1/20/84 - 1/26/84
21 91 Flight Sensations
dr for the purpose of exhibiting motion picture films which are
22
obscene.
23
The burden halle ing any film or use at the Renton
24
Theatre beyond the films ered to this Court is upon the City
25
of Renton . Any appli ation for fu er injunctive relief must
4_
NN OFFICES OF
Jack R. Burns, P.S.
10940 N.E. 33rd Place • Su to 107
Bellevue, WA 98004 • (206)828.3636
pF R4,4
OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON
0 t$ o
POST OFFICE SOX 626 100 S 2nd STREET • RENTON. WASNINGTON 98057 255-8678
n LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY
�9,0 t' DAVID M. DEAN, ASSISTANT CITY ATTORNEY
se MARK E.
ARBER, ASSISTANT CITY ATTORNEY
Off. .fO SEP1°1' ZANETTABL.FONTES, ASSISTANT CITY ATTORNEY
August 23 , 1984 MARTHA A.FRENCH, ASSISTANT CITY ATTORNEY
I
L-4 V ED
ElsUG 24 /984 I l
At torney at Lawns i 1 Y G'F ? i�li'o
10940,N.E. 33rd Place ---- t=S 0 F!r.,
_
Suite r0 7 -~--- a.
Bellevue , Wa 98004
Re : City of Renton v. Playtime Theatres , Inc .
Dear Mr . Burns :
Enclosed please find copies of the Declaratory Judgment
Decree and Permanent Injunction Restraining Operation as
"Adult Motion Picture Theater" and Order Establishing
Supersedeas Bond which were signed by Judge Nancy Ann
Holman on August 22 , 1984.
Very truly yours ,
Lawrence J. Warren
LJW:nd
Encl .
cc : Mayor (with enclosure)
Council President (with enclosure)
• Council Members
2
3
4
5
SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
6
CITY OF RENTON, a municipal )
7 corporation . LAWRENCE J. WARREN , ) NO. 82-2-02344-2
City Attorney for the City of )
8 Renton; STATE OF WASHINGTON , ) ORDER ESTABLISHING
ex rel. LAWRENCE J. WARREN , ) SUPERSEDEAS BOND
9 City Attorney of the City of )
Renton, )
10 )
Plaintiffs , )
11 )
vs . )
12 )
PLAYTIME THEATRES, INC. , )
13 a Washington corporation , )
KUKIO BAY PROPERTIES, INC. , )
14 a Washington corporation , and )
ROGER H . FORBES, )
15 )
Defendants. )
16 )
17 THIS MATTER coming on regularly before the undersigned
18 judge of the above-entitled court on this date , the court
19 having previously entered its Findings of Fact , Conclusions of
20 Law, Judgment and Injunction , and the court feeling it
21 appropriate that a supersedeas bond be established to
22 supersede the affect of the injunction ordered entered herein ,
23 it is hereby order as follows :
24 1 . Defendants , Playtime Theatres , Inc . , and Kukio Bay
25 Properties , Inc. , may supersede the affect of the injunction
26 order entered herein by posting a bond in an amount equal to
27 the average yearly net profit of the Renton Theater using the
28
WARREN&KELLOGG,P.S.
ATTORNEYS AT LAW
ORDER ESTABLISHING SUPERSEDEAS �pp50ATTONEYSATO.lOX626
BOND PAGE 1 RENTON,WASHINGTON 98057
255-8678
1
years 1982 , and 1983 , plus a figure equal to thirty percent
2
( 30%) of that profit figure .
3 Aw5 JJi
DATED: absw 02,2 , 1984 .
4
5
6 NANCY N HOLMAN , J e
7 Presented by:
8
9
AWRENCE J . RREN
10 Attorney for Plaintiffs
11 Approved as to form and notice of
presentation waived :
12
13 l
14 JACK URNS
Attorney for Defendants
15 1
16
17
18
19
20
21
22
• 23
24
25
26
27
28
WARREN&KELLOGG,P.S.
ORDER ESTABLISHING SUPERSEDERS ATTORNEYS AT LAW
100SO.SECONDST.,P.O.SOX626
BOND PAGE 2 RENTON,WASHINGTON 98057
1
2
3
4
5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
6 CITY OF RENTON , a municipal )
7 corporation , LAWRENCE J. WARREN , ) NO. 82-2-02344-2
City Attorney for the City of )
8 Renton; STATE OF WASHINGTON , ) DECLARATORY JUDGMENT
ex rel. LAWRENCE J. WARREN , ) DECREE AND PERMANENT
9 City Attorney of the City of ) INJUNCTION RESTRAINING
Renton, ) OPERATION AS "ADULT
10 ) MOTION PICTURE THEATER"
Plaintiffs , )
11 )
12 PLAYTIME THEATRES, INC. , )
13 a Washington corporation , )
KUKIO BAY PROPERTIES, INC. , )
14 a Washington corporation , and )
ROGER H. FORBES, )
15 )
Defendants . )
16 )
17 THIS MATTER came on regularly before this Court for
18 hearing upon the Plaintiffs' Motion for Preliminary
19 Injunction , which motion was consolidated with the trial of
20 Plaintiffs ' request for permanent injunctive relief.
21 The Court has heretofore entered an order severing the
22 Plaintiffs ' First and Second Causes of Action from the
. 23 Plaintiffs ' Third , Fourth and Fifth Causes of Action for
24 purposes of trial . The Plaintiffs ' Third , Fourth and Fifth
25 Cuases of Action have been reserved for trial at a later date .
26 The trial of Plaintiffs ' First and Second Causes of
27 Action against Defendants Playtime Theatres , Inc. , Kukio Bay
28 Properties , Inc . , and Roger H. Forbes , commenced on October
WARREN&KELLOGG,P.S.
DECLARATORY JUDGMENT DECREE AND ATTORNEYS AT LAW
PERMANENT INJUNCTION PAGE 1 100 SO.SECOND ST.,P.O.BOX 626
RENTON,WASHINGTON 98057
255-8678
1 10 , 1983 and , being recessed , recommenced on January 9 , 1984 .
2 The court convened an advisory jury , which advisory jury on
3 January 23 , 1984 , returned its Special Verdict and made
4 answers to Special Interrogatories propounded to it by the
5 Court .
6 Plaintiffs were represented in this action by Lawrence
7 J . Warren and Mark E . Barber of Warren & Kellogg , P . S . ,
8 attorneys at law. Defendants were represented by Jack Burns ,
9 attorney at law, and Robert E. Smith, attorney at law .
10 The Court previously entered its Findings of Fact and
11 ConcLiasions of Law .
12 The Court has reviewed the voluminous pleadings in this
13 cause , and having heard the testimony presented and considered
14 the exhibits admitted into evidence , and having received and
15 considered the advisory verdict of the jury which was entered
16 herein , and having considered the argument of counsel , the
17 Court now enters the following Orders :
18 1 . Claims against Roger Forbes personally alleging
19 misuse of the corporate entities of Playtime Theatres , Inc . ,
20 or Kukio Bay Properties , Inc. , and claims attempting to pierce
21 the corporate veil are dismissed .
22 2 . City of Renton Ordinance No. 3526 , as amended by
23 City of Renton Ordinance Nos . 3629 and 3637, is constitutional
24 on its face , and as applied to the Renton Theater more
25 particularly described below, under the Constitution of the
26 United States and of the State of Washington .
27
28
WARREN&KELLOGG,P.S.
DECLARATORY JUDGMENT DECREE AND ATTORNEYS AT LAW
PERMANENT INJUNCTION PAGE 2 100 SO.SECOND ST.,P.O.BOX 626
RENTON,WASHINGTON 98057
255-8678
1 3 . An "adult motion picture theater" is a permitted
2 land use within the B- 1 and more intensive land use zoning
3 classification currently in use within the City of Renton ,
4
except to the extent that it may be prohibited by City o
5 Renton Ordinance No . 3526 , as amended. No special permit ,
6
conditional use permit or variance application is required
7 prior to the commencement of the land use of an "adult motion
8 picture theater" in areas of the City in which such land use
9 is not prohibited by said ordinances . The Defendants ,
10 Playtime Theatres , Inc. , a Washington corporation , Kukio Bay
11 Properties , Inc . , a Washington corporation , and Roger H .
12 Forbes , as sole officer, director and shareholder of
i3 Defendants Playtime Theatres , Inc. , and Kukio Bay Properties ,
14 Inc . , their successors and assigns , and any person claiming
15 any interest in the following described real property through
16 them, are permanently enjoined from use of the Renton Theater
17 premises , legally described as follows :
18 Lot 4 and the West 2 fee of Lot 3 , Block 34 ,
19 Smithers Second Addition to the Town of Renton ,
according to the plat recorded in Volume 10 of
20 Plats , page 28, records of King County, Washington ,
situate in King County , Washington .
21 as an "adult motion picture theater" , as defined in City a?'
22 Renton Ordinance Nod 35 , s amended by City of Renton
• 23 \1aC7 ex b
-t'� wtcitmyr� '� S ,7
Ordinances Nos . 362 and 3631 , A or for the purpose of
24 A.
exhibiting motion picture films which are obscene . ��
25 The burden of challenging any film or use at the Renton
26 Theater is upon the City of Renton. Any further challenge
27 beyond the films admitted into evidence in this case , must be
28
WARREN&KELLOGG,P.S.
DECLARATORY JUDGMENT DECREE AND ATTORNEYS AT LAW
PERMANENT INJUNCTION PAGE 3 100 SO.SECOND ST.,P.O.BOX 626
RENTON,WASHINGTON 98057
1 brought by the City of Renton within ninety (90) days after
2 the final showing of any film, program, or other presentatio
r
3 that the City believes violates this court' s injunction . Any 4-/7
4 such request for relief should be returnable to the presiding
"Pf
5 'ud es department as an emergency measure . v ' wv�c. rz°fie/ ,M�cs�66�
judges .�a-44a ��c&c p cd«Pc t4 y5
6 4 . The Plaintiffs' are allowed their taxable costs
7 and statutory attorneys fees .
8 5 . There is no just reason for delay and this
9 judgment should be considered final for the purposes of
10 appeal .
11
12 DATED: August 22, 1984 . •
13
14
NANCY A HOLMAN , Judge
15
16 Presented by :
17
1
awrence J . rren , City Attorney
19 for the City of Renton .
20 •
Cop y Received , a m
21
22
23 J,ACK BURNS
ttoriney for Defendants
24
25
26
27
28
WARREN&KELLOGG,P.S.
DECLARATORY JUDGMENT DECREE AND ATTORNEYS AT LAW
PERMANENT INJUNCTION PAGE 4 100 SO.SECOND ST.,P.O.BOX 626
RENTON,WASHINGTON 98057
_.X ltit l/J i y r4
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y` f D h "6146 17aol�3 — -/jo/'3
z , 'Ve 1 IAyr 15 S ' ►..Ps
3, ;3 (vte Jewvt s ) lg3 - c2Il143
1 5 American Desire 2/28/83 - 3/3/83
2 6 All American Girls
3 7 Foxholes 3/4/83 - 3/10/83
8 Randy, The Electric Lady
4 9 Scoundrels 3/11/83 - 3/17/83
5 10 Foxtrot
6 11 Irresistible 3/18/83 - 3/24/83
12 Scheherezade ,
7 1001 Erotic Nights
13 Satisfactions 3/25/83 - 3/31/83
8 14 Pandora' s Mirror
9 15 Debbie Does Dallas 4/1/83 - 4/7/83
10 16 Debbie Does Dallas II
11 17 Little Girls Lost 4/8/83 - 4/14/83
18 Ring of Desire
12 19 The Dancers 4/15/83 - 4/21/83
13 20 Between the Sheets
14 21 Daddy' s Little Girl 4/22/83 - 4/28/83
22 The Little French Maid
15
23 Every Which Way She Can 4/29/83 - 5/5/83
16 24 Nightlife
17 25 Expose Me Now 5/6/83 - 5/12/83
26 Stormy
18
27 Young Doctors In Lust 5/13/83 - 5/19/83
19 28 Intimate Explosions
20 29 Up and Coming 5/20/83 - 5/26/83
12 Scheherezade , 1001 Erotic
• 21 Nights
22 29 Up and Coming 5/27/83 - 6/2/83
30 Insatiable
23
31 Puss and Boots 6/3/83 - 6/9/83
24 32 Seduction of Cindy
25 33 Peepholes 6/10/83 - 6/16/83
34 Body Talk
26
LAW OFFICES OF
Jack R. Burns, P.S.
10940 N.E. 33rd Place • Suite 107
RPliFvue WA 98004 • (206) 828-3636
1 35 Little Girls Blue II 6/17/83 - 6/23/83
36 The Best of Alex De Renzy
2
37 Tinsel Town 6/24/83 - 6/30/83
3 38 Princess Seka
4 39 Skin Deep 7/1/83 - 7/7/83
40 Babe
5
41 Doing It 7/8/83 - 7/14/83
6 42 Baby Cakes
7 43 Nasty Girls 7/15/83 - 7/21/83
44 Little Darlin' s
8
45 San Fernando Valley Girls 7/22/83 - 7/28/83
9 46 Brief Affair
10 47 Hot Dreams 7/29/83 - 8/4/83
48 Society Affairs
11
49 Memphis Cathouse Blues 8/5/83 - 8/11/83
12 50 County Comfort
13 51 Luscious 8/12/83 - 8/18/83
52 Angel Cash
14
53 Devil in Miss Jones II 8/19/83 - 8/25/83
15 54 Greatest Little Cathouse in
Las Vegas
16
55 Taboo I 8/26/83 - 9/8/83
17 56 Taboo II
18 57 Eat at the Blue Fox 9/9/83 - 9/15/83
58 Justine
19
59 A Girl Called Bubble Gum 9/16/83 - 9/22/83
20 60 The Widespread Scandals
of Lydia Lace
• 21
61 California Valley Girls 9/23/83 - 9/29/83
22 62 Titillation
23 63 Naughty Girls Need Love Too 9/30/83 - 10/13/83
64 Sheer Panties
24
65 In The Pink 10/14/83 - 10/20/83
25 66 Bon Appetit
26 15 Debbie Does Dallas 10/21/83 - 10/27/83
16 Debbie Does Dallas II ofrcfsoF
Jack R. Burns, P.S.
10940 N.E. 33rd Place • Suite 107
Rnno.,.io WA 4A1104 • (206)828-3636
19 The Dancers
1
41 Doing It 10/28/83 - 11/3/83
2 31 Puss and Boots
34 Body Talk
3 67 Carnal Olympics 11/4/83 - 11/10/83
4 68 Lust Inferno
5 69 Night Hunger 11/11/83 - 11/17/83
70 game Time Every Year
6 71 Golden Girls 11/18/83 - 11/24/83
7 72 All About Annette
8 73 Feels Like Silk 11/25/83 - 12/1/83
74 American Pie
9 75 Marathon 12/2/83 - 12/8/83
10 -- 76 Oriental Hawaii
11 77 The Girl From S .E .X . 12/9/83 - 12/15/83
78 Erotic Interlude
12
79 Flesh & Laces Part I 12/16/83 - 12/22/83
13 80 Flesh & Laces Part II
14 81 Too Much Too Soon 12/23/83 - 12/29/83
82 Calendar Girl 83
15
83 Bodies in Heat 12/30/83 - 1/5/84
16 84 I Like To Watch
17 85 Girlfriend 1/6/84 - 1/12/84
86 Hot Pink
18 87 Pretty Peaches
19 88 Private School Girls 1/13/84 - 1/19/84
89 High School Memories
20
90 That' s Outrageous 1/20/84 - 1/26/84
21 91 Flight Sensations
• dr for the purpose of exhibiting motion picture films which are
22
obscene .
23
The burden halle ing any film or use at the Renton
24
Theatre beyond the films ered to this Court is upon the City
25
of Renton. Any appli ation for fu er injunctive relief must
,11-
LAN OFHCES OF
Jack R. Burns, P.S.
10940 N.E. 33rd Place • Suite 107
Bellevue, WA 98004 • (206)828-3636
No.
IN THE
' pr ut? Tourt of Ihr Ettit0 fttria
OCTOBER TERM, 1984
THE CITY OF RENTON, et al.,
v.
Appellants,
PLAYTIME THEATRES, INC.,
a Washington corporation, et al.,
Appellees.
On Appeal from the United States Court of Appeals
for the Ninth Circuit
JURISDICTIONAL STATEMENT
E. BARRETT PRETTYMAN, JR.*
JAMES G. MIDDLEBROOKS
HOGAN &HARTSON
815 Connecticut Avenue, N.W.
Washington,D.C.20006
(202) 331-4685
LAWRENCE J.WARREN
DANIEL KELLOGG
MARK E.BARBER
ZANETTA L. FONTES
WARREN&KELLOGG,P.S.
100 South Second Street
Renton,Washington 98057
(206) 255-8678
Counsel for Appellants
* Counsel of Record
WILSON- EPES PRINTING CO.. INC. - 789-0096 - WASHINGTON, D.C. 20001
QUESTIONS PRESENTED
Renton, Washington, is a small city (pop. 32,200)
located just outside of Seattle. Prior to the entry or
attempted entry of any adult motion picture theatre, the
City enacted a zoning ordinance, fashioned after those
adopted and judicially approved in Seattle and Detroit,
which effectively set aside 520 acres of developing com-
mercial area for the operation of such theatres. The
questions are:
1. May a small city, in enacting a zoning ordinance
regulating the location of adult theatres prior to the entry
of such theatres, rely upon the experience of other, larger
cities regarding the theatres' secondary adverse impact
upon residences, schools, churches and businesses, or is
a city required, under the First Amendment to the Con-
stitution, to await the theatres' entry and consequent
deleterious effects before zoning the impacted areas?
2. Where a small city effectively sets aside a signifi-
cant area of the city for the location of adult theatres, is
its ordinance in violation of the First Amendment because
a portion of the set-aside area either is presently unde-
veloped, or is presently developed for existing commercial
purposes?
3. Where the intent of a city council in regulating
the location of adult theatres is not improperly related to
the content of adult films or the suppression of First
Amendment rights, and instead is related to such values
as preserving commercial areas and family-related neigh-
borhoods, is its regulation constitutionally void because
some citizens at a public hearing voiced criticism of film
content?
(i)
ii
PARTIES TO THE PROCEEDINGS
In addition to the City of Renton, the following are
Appellants in this Court: Barbara Y. Shinpoch, Mayor of
Renton; Earl Clymer, Robert Hughes, Nancy Mathews,
John Reed, Randy Rockhill, Richard Stredicke, and Tom
Trimm, members of the Renton City Council; and Alan
Wallis, Chief of Police of the City of Renton.
Kukio Bay Properties, Inc., and Playtime Theatres,
Inc., both Washington corporations, are Appellees before
this Court.
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED i
PARTIES TO THE PROCEEDINGS
TABLE OF AUTHORITIES iv
OPINIONS BELOW 1
JURISDICTION 1
PERTINENT CONSTITUTIONAL PROVISIONS
AND STATUTES 2
STATEMENT OF THE CASE 2
THE QUESTIONS PRESENTED ARE SUBSTAN-
TIAL 11
1. Renton Properly Relied on the Experience of
Other Cities 13
2. Renton Set Aside a Permissible Zone for the
Location of Adult Theatres 16
3. The Court of Appeals Erroneously Implied an
Improper Legislative Motive . 21
4. Cities' Legitimate Attempts to Zone Adult Thea-
tres Are Jeopardized By the Decision Below 25
CONCLUSION 28
(iii)
iv
TABLE OF AUTHORITIES
Cases Page
Alexander v. City of Minneapolis, 531 F. Supp.
1162 (D. Minn. 1982), aff'd, 698 F.2d 936 (8th
Cir. 1983) 12
American Communications Ass'n v. Douds, 339
U.S. 382 (1950) 20
Avalon Cinema Corp. v. Thompson, 667 F.2d 659
(8th Cir. 1981) 12, 15
Basiardanes v. City of Galveston, 682 F.2d 1203
(5th Cir. 1982) 12
Bayou Landing, Ltd. v. Watts, 563 F.2d 1172 (5th
Cir. 1977), cert. denied, 439 U.S. 818 (1978) 12
Bayside Enterprises, Inc. v. Carson, 450 F. Supp
696 (M.D. Fla. 1978) 12
Berman v. Parker, 348 U.S. 26 (1954) 24
Brockett v. Spokane Arcades, Inc., 725 F.2d 482
(9th Cir.), prob. juris. noted, 53 U.S.L.W. 3235
(U.S. Oct. 1, 19$4) (Nos. 84-28 and 84-143) 26
CLR Corp. v. H nline, 520 F. Supp. 760 (W.D
Mich. 1981), aff'd, 702 F.2d 637 (6th Cir. 1983)__ 12, 15
City of Las Vegas v. Foley, 747 F.2d 1294 (9th
Cir. 1984) 23
City of Madison Joint School District v. Wisconsin
Employment Relations Comm'n, 429 U.S. 167
(1976) 22
City of Whittier V. Walnut Properties, Inc., 149
Cal. App. 3d 633, 197 Cal. Rptr. 127 (2d Dist.),
vacating 189 Cal. Rptr. 12 (2d Dist. 1983) 11
County of Sacramento v. Superior Court, 137 Cal
App.3d 448, 187 Cal. Rptr. 154 (3d Dist. 1982)._ 11-12,
15-16
Deerfield Medical Center v. City of Deerfield Reach,
661 F.2d 328 (5th Cir. 1981) 12
Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) 2
E&B Enterprises V. City of University Park, 449
F. Supp. 695 (N.D. Tex. 1977) 12
Ebel v. City of Corona, 698 F.2d 390 (9th Cir.
1983) 12, 16, 23
Fantasy Book Shop, Inc. v. City of Boston, 652
F.2d 1115 (1st Cir. 1981) 12, 16
v
TABLE OF AUTHORITIES—Continued
Page
Genusa v. City of Peoria, 619 F.2d 1203 (7th Cir
1980) 11, 15
Gulf Refining Co. v. United States, 269 U.S. 125
(1925) 11
Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821
(4th Cir. 1979), cert. denied, 447 U.S. 929
(1980) 12,25
Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) 8
Keego Harbor Co. v. City of Keego Harbor, 657
F.2d 94 (6th Cir. 1981) 12
Kuzinich v. County of Santa Clara, 689 F.2d 1345
(9th Cir. 1982) . 12
Lakewood, Ohio Congregation of Jehovah's Wit-
nesses, Inc. v. City of Lakewood, 699 F.2d 303
(6th Cir.), cert. denied, 104 S. Ct. 72 (1983)___. 20
Lydo Enterprises, Inc. v. City of Las Vegas, 745
F.2d 1211 (9th Cir. 1984) 12, 16
Middlesex County Ethics Committee v. Garden
State Bar Ass'n, 457 U.S. 423 (1982) 8
Moore v.New York Cotton Exchange, 270 U.S. 593
(1926) 11
New Orleans v. Duke, 427 U.S. 297 (1976) 2
Northend Cinema, Inc. v. City of Seattle, 90 Wash
2d 709, 585 P.2d 1153 (1978), cert. denied sub
nom. Apple Theatre, Inc. v. City of Seattle, 441
U.S. 946 (1979) 4-7, 11, 27
Paris Adult Theatre I v. Slaton, 413 U.S. 49
(1973) 24
Playtime Theaters, Inc. v. City of Renton, 748 F.2d
527 (9th Cir. 1984) 1,passim
Purple Onion, Inc. v. Jackson, 511 F. Supp. 1207
(N.D. Ga. 1981) 12
Schad v. Borough of Mount Ephraim, 452 U.S. 61
(1981) 26
Tovar v. Billmeyer, 721 F.2d 1260 (9th Cir. 1983),
cert. denied, 105 S. Ct. 223 (1984) 11-12,23
United States v. O'Brien, 391 U.S. 367 (1968) 3,9-10,
21,24-26
vi
TABLE OF AUTHORITIES—Continued
Page
Village of Arlington Heights v. Metropolitan Hous-
ing Development Corp., 429 U.S. 252(1977)____22, 24-25
Village of Belle Terre v.Boraas,416 U.S. 1 (1974)__ 24
Young v. American Mini Theatres, Inc., 427 U.S.
50 (1976) passim
Constitutional Provisions,Statutes,and Ordinances
U.S. Const. amend. I 2-3, 7-11, 18, 21-23, 26
U.S. Const. amend. XIV 7
28 U.S.C. § 1254(2) 2
28 U.S.C. § 1331 2
28 U.S.C. § 1343(3) 2
M1
28 U.S.C. § 2202 2
28 U.S.C. § 2403(b) 2
Renton, Wa., Ordinance 3526 (April 13, 1981)____2, passim
Renton, Wa., Ordinance 3629 (May 3, 1982) 2,passim
Renton, Wa., Ordinance 3637 (June 14, 1982) 2,passim
Miscellaneous
Affidavit of Bruce Anderson, June 15, 1982 .____ 19, 20
Affidavit of Jack R. Burns, January 27, 1982 5
Affidavit of David R. Clemens, January 27, 1982 4-6,
17-18
Affidavit of David R. Clemens, May 26, 1982 8, 17, 19
Deposition of David R. Clemens, March 3, 1982 5, 17-18
Deposition of David R. Clemens, March 4, 1982 5-6
Deposition of Roger H. Forbes, April 9, 1982 6
Deposition of Roger H. Forbes, May 27, 1982 6
Minutes, Renton City Council, September 24, 1984 20
Aver, The Zoning of Adult Entertainment: How
Far Can Planning Commissions Go? 5 Comm/
Ent. L.J. 293 (1982) 25
Friedman, Zoning "Adult" Movies: The Potential
Impact of Young v. American Mini Theatres, 28
Hastings L.J. 1293 (1977) 25
Note, Content Regulation and the Dimensions of
Free Expression, 96 Harv. L. Rev. 1854 (1983) 25
vii
TABLE OF AUTHORITIES—Continued
Page
Note, Municipal Zoning Restrictions on Adult En-
tertainment: Young, Its Progeny, and Indian-
apolis' Special Exceptions Ordinance, 58 Ind.
L.J. 505 (1983) 25
Note,Second Class Speech: The Court's Refinement
of Content Regulation, 61 Neb. L. Rev. 361
(1982) 25
Pearlman, Zoning and the First Amendment, 16
Urb. Law. 217 (1984) _ 25
Stevenin, Young v. American Mini Theatres, Inc.:
Creating Levels of Protected Speech, 4 Hastings
Const. L.Q. 321 (1977) 25
Sup. Ct. R. 28.4(e) 2
IN THE
'nprrmr Clunrt ni Or tati D
OCTOBER TERM, 1984
No.
THE CITY OF RENTON, et al.,
v.
Appellants,
PLAYTIME THEATRES, INC.,
a Washington corporation, et al.,
Appellees.
On Appeal from the United States Court of Appeals
for the Ninth Circuit
JURISDICTIONAL STATEMENT
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Ninth Circuit, from which this appeal is taken, was
rendered on November 28, 1984. It appears at 748 F.2d
527 and has been reprinted as Appendix A hereto. The
United States District Court for the Western District of
Washington rendered several opinions in this case, none
of which has been officially reported. Its rulings are also
reprinted as Appendices B-E and G-H hereto.
JURISDICTION
This action was brought by Appellees in the United
States District Court for the Western District of Wash-
ington seeking, inter alia, declaratory and injunctive re-
2
lief against the enforcement of Renton's zoning ordinance
governing the permissible location of adult theatres. Ju-
risdiction in the District Court was based on 28 U.S.C.
§§ 1331, 1343(3) and 2202. The District Court denied
the requested relief.
On November 28, 1984, the United States Court of Ap-
peals for the Ninth Circuit reversed the trial court and
held Renton's zoning ordinances in violation of the First
Amendment to the United States Constitution. Appel-
lants' Notice of Appeal was filed in the Ninth Circuit on
February 6, 1985. Jurisdiction lies in this Court under
28 U.S.C. § 1254(2). New Orleans v. Duke, 427 U.S. 297,
301 (1976) ; Doran v. Salem Inn, Inc., 422 U.S. 922, 927
n.2 (1975).
Neither court below certified to the Washington Attor-
ney General the fact that the constitutionality of the
Renton ordinance was drawn into question and that 28
U.S.C. § 2403(b) may be applicable. Pursuant to Rule
28.4(c) of this Court, Appellants have served three cop-
ies of this Jurisdictional Statement upon the Attorney
General of the State of Washington.
PERTINENT CONSTITUTIONAL PROVISIONS
AND STATUTES
The First Amendment to the Constitution provides:
Congress shall make no law respecting an estab-
lishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assem-
ble, and to petition the Government for a redress of
grievances.
The full text of Renton Ordinances 3526, 3629, and
3637 is set forth in the Appendix at 78a-98a.
STATEMENT OF THE CASE
This case had its genesis in two important prior judi-
cial decisions.
3
Nine years ago, this Court held in Young v. American
Mini Theatres, Inc., 427 U.S. 50 (1976), that the City of
Detroit could use the effects of sexually explicit "adult"
movies as a basis for placing the theatres which showed
them into restricted areas in an attempt to preserve the
"quality of urban life" and in furtherance of the "city's
interest in preserving the character of its neighborhoods."
Id. at 71. The ordinances in Detroit required already
existing adult theatres (as well as those that would be
purchased or built thereafter) to be dispersed—that is,
they could not be located within 1,000 feet of any two
other "regulated uses" or within 500 feet of a residential
area. Id. at 52.
The plurality opinion of Justice Stevens relied in part
on the concept that "there is surely a less vital interest
in the uninhibited exhibition of material that is on the
borderline between pornography and artistic expression
than in the free dissemination of ideas of social and po-
litical significance * * *." Id. at 61. Since the ordinances
did not impose a limit on the total number of adult thea-
tres that could operate in Detroit, speech was not re-
strained. "[W]e have no doubt that the municipality may
control the location of theaters as well as the location of
other commercial establishments, either by confining them
to certain specified commercial zones or by requiring that
they be dispersed throughout the city." Id. at 62. Jus-
tice Powell's concurring opinion treated the case as "an
example of innovative land-use regulation" which impli-
cated First Amendment concerns only incidentally. Id.
at 73 (Powell, J., concurring). He relied upon the four-
part test of United States v. O'Brien, 391 U.S. 367, 377
(1968).1
1 Under this test, a governmental regulation must meet the fol-
lowing criteria: (1) the regulation must be within the constitutional
power of the Government; (2) the regulation must further an
important or substantial governmental interest; (3) the assertion
of the governmental interest must be unrelated to the suppression
of free expression; and (4) the incidental restriction on alleged
First Amendment freedoms must be no greater than is essential
to the furtherance of the governmental interest.
4
Four years later, the Supreme Court of Washington,
sitting en bane, unanimously upheld two zoning ordi-
nances that required adult theatres to be located in cer-
tain downtown areas of Seattle. Northend Cinema, Inc.
v. City of Seattle, 90 Wash.2d 709, 585 P.2d 1153 (1978).
Reciting extensive studies demonstrating the problems
created by such theatres in residential and commercial
areas, the court held that even though some ten adult
theatres would be forced to relocate, the ordinances were
valid under Young. The residents of Seattle had expressed
concerns about the attraction of transients, parking and
traffic problems, increased crime, decreasing property
values, and interference with parental responsibilities to-
ward children. "In short, the goal of the City in amend-
ing its zoning code was to preserve the character and
quality of residential life in its neighborhoods * * *. A
second and related goal * * * was to protect neighborhood
children from increased safety hazards, and offensive and
dehumanizing influence created by location of adult movie
theatres in residential areas." 585 P.2d at 1155.
The effect of the Seattle restrictions was to force adult
theatres into an area consisting of approximately 250
acres (or less than 1% of the city's acreage). Id. at
1156. Noting that this Court had approved the "con-
centration" as well as the "dispersal" method of zoning
theatres in Young, the Washington Supreme Court ruled
that Seattle's planning effort "must be accorded a suffi-
cient degree of flexibility for experimentation and in-
novation." 585 P.2d at 1159. This Court denied certiorari
in the case. 441 U.S. 946 (1979).
A year later, and partly as a result of these two deci-
sions, events began unfolding in Renton, Washington.
Appellant Renton is a small city, with a 1981 popula-
tion of 32,200,2 whose northern border is approximately
2 Cl. aff., Jan. 27, 1982, at 1. The terms "aff.", "test." and "dep."
refer to "affidavit," "testimony" and "deposition", respectively.
"Cl." refers to David R. Clemens, Renton's Policy Development
Director; "And." refers to Bruce Anderson, an associate real
5
one mile from the southern border of Seattle. In mid-
1980, the Renton City Council began to study the regula-
tion of adult entertainment land uses.3 The Council and
its Planning and Development Committee held numerous
meetings—all of them open to the public—to consider this
issue.4 Testimony was taken at several meetings. At one
meeting, for example, 64 persons attended, and 28 of
them spoke.° Among those offering statements were the
head of the Renton Chamber of Commerce and the Su-
perintendent of Schools.° There was testimony about adult
theatres in relation to their impact on commercial prop-
erty values, concern about crime, the deterioration of resi-
dential neighborhoods, effects on children, etc.7 In the
meantime, the office of the City's Acting Planning Di-
rector had received and studied documents from Seattle
underlying that city's own ordinance,including a summary
of findings and conclusions, and the Director had studied
the Northend Cinema decision.° This Court's findings and
decision in Young were also reviewed,9 as well as the ap-
proaches taken by numerous other cities, inside and out-
side the State of Washington.10 There was a report from
the Renton City Attorney's office and from the Acting
estate broker testifying for Appellee Playtime; "Forbes" refers to
Roger H. Forbes, President of Playtime; "John." refers to Jimmy
Johnson, an executive with a company that acquires adult theatres;
and "Burns" refers to Jack R. Burns, a Playtime attorney.
8 Burns aff.,Jan.27,1982,at Exs.1-10.
4 Cl. dep., Mar. 3, 1982, at 41-44. The Committee alone held at
least six meetings. Id.
°Cl. aff., Jan. 27, 1982, at 3; see also Cl. dep., Mar. 4, 1982, at 35.
6 Cl. test., Jan. 29, 1982, at 27-29; Cl. dep., Mar. 3, 1982, at 45-48.
7 Cl. dep., Mar. 4, 1982, at 14; Cl. test., Jan. 29, 1982, at 34;
Cl. aff., Jan. 27, 1982, at 3-5. See also Renton, Wa., Ordinance
3629 (May 3, 1982), App. 81a.
8 Cl.test.,Jan.29, 1982,at 31-33.
0 Cl.dep.,March 4,1982,at 7-8.
10 Id.at 5-12,50-52.
6
Planning Director, who himself had had prior experience
with similar problems in California." All of these pro-
ceedings were carried out in the usual way, following
normal City Council procedures.12
After almost a year's study of adult uses, the City
Council adopted an ordinance (No. 3526) on April 13,
1981, which defined an "adult motion picture theater"
in terms of a building "used for" the exhibition of visual
media depicting "specified sexual activities" or "specified
anatomical areas." App. 78a. It prohibited such theatres
from locating within 1,000 feet of any residential area,
church, park, or religious facility or institution, or within
one mile of any school. The ordinance was modeled after,
and was virtually identical to, the ordinances that had
been approved in Young and Northend Cinema. See App.
99a-139a (where the Detroit and Seattle ordinances are
set forth in their entirety). At the time the first Ren-
ton ordinance was enacted, there were no adult theatres
located in Renton, nor any sign that one would move
into the city.
Nine months later, on January 20, 1982, Appellees
Playtime Theatres, Inc.," and Kukio Bay Properties, Inc.,
brought a suit in the United States District Court for the
Western District of Washington alleging that Kukio had
contracted to purchase two motion picture theatres in
downtown Renton and to lease them to Playtime."'
11 Cl. aff., Jan. 27, 1982, at 3; Cl. test., Jan. 29, 1982, at 33-34;
Cl. dep., Mar. 4, 1982, at 17.
12 Cl.dep., Mar.4, 1982,at 24-25.
13 Playtime was the same company that had operated adult
theatres in Seattle, Tacoma, and at least three other cities in the
State of Washington. Forbes dep., Apr. 9, 1982, at 6, 8.
14 Playtime's President admitted that he was fully aware in
December or January, when he was considering the possibility of
entering Renton, that there was an ordinance then in place prohib-
iting adult theatres in the area where he was seeking to locate.
Forbes dep., May 27, 1982, at 15-17.
7
Kukio and Playtime conceded in their Complaint that
their theatres would "continuously operate exhibiting
adult motion picture film fare to an adult public audi-
ence." App. 61a. The Complaint alleged (App. 67a-71a)
that Renton's ordinance was unconstitutional on its face
and as applied to the plaintiffs under, among other things,
the First and Fourteenth Amendments, and that it was
not susceptible of a constitutional construction. App. 68a-
69a. Kukio and Playtime (hereinafter collectively
"Playtime") sought, inter alia, a declaratory judgment
and a preliminary and permanent injunction. App. 75a-
76a.
On May 3, 1982, the City Council passed a second
zoning ordinance (No. 3629), amending the prior one.
Insofar as relevant here, the amendment (a) spelled out
the fact that in passing the prior ordinance, the City
Council had relied upon the decisions in Young and
Northend Cinema (App. 81a) ; (b) summarized some of
the testimony received at its public hearings (App. 81a-
85a) ; (c) set forth findings of fact that had formed the
basis of the prior ordinance (id.) ; (d) defined "used"
in the prior ordinance to mean "a continuing course of
conduct" (App. 87a) ; and (e) reduced the restriction on
locating near schools from one mile to 1,000 feet. App.
87a.15
Among the City 'Council's findings were these: (1)
the location of adult theatres in close proximity to resi-
dential areas, churches, parks, and schools may lead to
increased criminal activities, including prostitution; (2)
the location of adult theatres has a deteriorating effect on
the areas of the city in which they are located; and (3)
reasonable regulation of adult theatre locations will pro-
15 The amendment also declared a state of emergency to exist,
and it included a severability clause and a declaration that a viola-
tion of the ordinance was a public nuisance, which was subject to
abatement by civil action. App. 88a-89a.
8
tect the character of the community and its property
values while providing access to those who desire to
patronize adult theatres. App. 82a-84a.
Finally, on June 14, 1982, the City Council, on advice
of counsel, adopted a third ordinance (No. 3637) which
reenacted Ordinance 3629 without an emergency clause.
App. 90a. These three ordinances will hereinafter be re-
ferred to collectively as "the ordinance".
By drawing a series of circles around the areas re-
stricted by the ordinance, one could determine that the
effect of the ordinance was to set aside 520 acres within
which adult theatres could locate.'6 The set-aside zone
contained "primarily developed, existing commercial de-
velopment of various types" as well as "areas that are
currently underdeveloped and in the process of transition
to developed uses." 17 The area set aside included land
"in all stages of development from raw land to developed,
improved and occupied office space, warehouse space and
industrial space." 18
After a hearing, a Magistrate submitted a report rec-
ommending that Renton's ordinance be held in violation
of the First Amendment. App. 37a.19 A preliminary in-
junction issued, but the District Court later granted sum-
mary judgment in Renton's favor and dissolved the in-
junction.
16 Cl.aff.,May 26, 1982,at 2.
17 Cl.test.,June 23,1982,at 62.
18 Cl.aff.,May 26, 1982,at 2.
19 There were several attempts by Renton to have the District
Court abstain in favor of the state court, but both courts below
held that federal jurisdiction was appropriate. Even though we
believe the courts below were in error in regard to abstention (cf.
Huffman V. Pursue, Ltd., 420 U.S. 592 (1975) ; Middlesex County
Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423 (1982)),
that issue is not pursued in this appeal.
9
The District Court ruled that Renton's ordinance "in
its essential features is virtually identical" to the Detroit
and Seattle ordinances, except that the word "used" was
more precisely defined in the Renton ordinance. App.
26a. The intrusion into First Amendment interests was
not substantial because the ordinance's restrictions were
even narrower than those in the Detroit and Seattle ordi-
nances, no theatre had been closed, there was no content
limitation, and the availability of 520 acres contradicted
the notion of a substantial restriction on protected
speech. According to the District Court, the burden of
having to locate a theatre within the set-aside area was
no different than the burden upon other land users "who
must work with what land is available to them in the
city." App. 27a. The trial court found that the acreage
available to Playtime and other adult theatres was com-
prised of land "in all stages of development * * * that is
criss-crossed by freeways, highways, and roads * * *."
App. 28a.
Furthermore, the District Court found that Renton's
ordinance met all four parts of the O'Brien test.20 In
particular, Renton's articulated interests in protection of
its community through zoning were furthered by its ordi-
nance. There was no evidence that the secondary effects
of adult land uses in Renton would be different than
those in Seattle, Tacoma, or Detroit, and the experience
of other cities and towns "must constitute some evidence"
for the City Council to consider; the "observed effects in
nearby cities provides persuasive circumstantial evidence
of the undesirable secondary effects" Renton was at-
tempting to obviate. Renton, according to the District
Court, was entitled to experiment in this admittedly deli-
cate and serious area. App. 30a. While some citizens at
public meetings predictably expressed concerns that
would have formed an impermissible basis for the ordi-
10 See n.1,supra.
10
nance, these statements "should not negate the legitimate,
predominate concerns of the City Council * * *." App.
31a. Thus, because Renton's "effort to preserve the qual-
ity of its urban life * * * is minimally intrusive of a
particular category of [the] protected expression" de-
scribed in Young (App. 32a), the District Court granted
Renton's motion for summary judgment.
The Ninth Circuit reversed and held Renton's ordi-
nance in violation of the First Amendment. App. 22a.
It refused to review the District Court's O'Brien rulings
under a clearly erroneous test but instead considered
them as mixed questions of law and fact, subject to de
novo review. The Ninth Circuit ruled:
1. Renton improperly relied on the experience of other
cities in trying to prove a significant governmental in-
terest to support its enactment. The Court of Appeals
distinguished Renton's ordinance from that in Young
because Detroit's ordinance dispersed adult theaters,
whereas Renton's concentrated them in one area. App.
17a. Furthermore, Renton had to "justify its ordinance
in the context of Renton's problems—not Seattle's or De-
troit's problems." Id.; emphasis in original. "Renton has
not studied the effects of adult theaters and applied any
such findings to the particular problems or needs of
Renton." App. 19a. Detroit's studies "are simply not
relevant to the concerns of the Renton ordinance * * *."
Id.
2. Without disagreeing that 520 acres were outside the
restricted zone, the court concluded that the land was
not "available" in the constitutional sense because "a sub-
stantial part" was undeveloped or already occupied by
various industrial and commercial concerns. App. 13a.
3. Because some citizens at public hearings had ex-
pressed disapproval of adult movies, there was "at least
an inference that a motivating factor behind the ordi-
nance was suppression of the content" of speech. The
11
test was not the "predominate" concern of the City
Council; where mixed motives are apparent, the test is
whether " `a motivating factor in the zoning decision was
to restrict' " First Amendment rights.21
THE QUESTIONS PRESENTED ARE SUBSTANTIAL
'Cities and towns across the country have struggled
since Young to regulate the location of adult establish-
ments within their borders. Only a few of their zoning
ordinances have been upheld—and only one federal Cir-
cuit has sustained the validity of a Young-style adult
theatre ordinance on the merits.22 Most have been struck
21 App.20a (quoting Tovar v. Billmeyer, 721 F.2d 1260, 1266 (9th
Cir. 1983) (emphasis by the Playtime court), cert. denied, 105
S. Ct.223 (1984)).
One sentence in the Court of Appeals' decision (App. 20a-21a)
could be read to mean that this case was being remanded for fur-
ther hearings on the issue of intent. The Ninth Circuit's remand
"for proceedings consistent with this opinion" does not, of course,
preclude this Court from treating the lower court's decision as final
for purposes of appeal. See generally Moore v. New York Cotton
Exchange, 270 U.S. 593, 603 (1926) ; Gulf Refining Co. v. United
States, 269 U.S. 125, 136 (1925). Moreover, this case is not inter-
locutory as it relates to the issues here presented for review.
Subsequent to the decision below, Playtime filed with the District
Court a "Motion for Entry of Judgment" with an accompanying
memorandum arguing that the record is complete and may not be
supplemented, and therefore the only remaining course of action
now open, consistent with the Ninth Circuit's opinion, is the entry
of a judgment declaring the Renton ordinance unconstitutional,
granting a permanent injunction, and setting the matter down for
a hearing on Playtime's damage claims.
Even if Playtime is wrong in its Motion, any new proceeding
would require Renton to submit evidence under the wrong standard,
as demonstrated below.
22 Genusa v. City of Peoria, 619 F.2d 1203 (7th Cir. 1980). See
also Northend Cinema, Inc. v. City of Seattle, supra; City of Whit-
tier v. Walnut Properties, Inc., 149 Cal. App. 3d 633, 197 Cal. Rptr.
127 (2d Dist.), vacating 189 Cal. Rptr. 12 (2d Dist. 1983) ; County
12
down because of an actual or practical unavailability of
alternative sites,23 an intent to inhibit,24 or the effect of
inhibiting,25 one or more existing or imminent adult es-
tablishments; and/or an intent to suppress the content
of adult films.26 In summary, Young-style ordinances
of Sacramento v. Superior Court, 137 Cal. App. 3d 448, 187 Cal.
Rptr. 154 (3d Dist. 1982) ; Hart Book Stores, Inc. v. Edmisten,
612 F.2d 821 (4th Cir. 1979) (statutory prohibition against two
adult establishments in one building tantamount to zoning and
upheld under Young), cert. denied, 447 U.S. 929 (1980) ; Lydo
Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211 (9th Cir.
1984) (appeal from preliminary injunction).
23 E.g., Basiardanes v. City of Galveston, 682 F.2d 1203, 1209,
1212, 1214 (5th Cir. 1982) ; Alexander v. City of Minneapolis, 531
F. Supp. 1162, 1168-69 (D. Minn. 1982), aff'd, 698 F.2d 936 (8th
Cir. 1983) ; CLR Corp. v. Henline, 520 F. Supp. 760, 767 (W.D.
Mich. 1981), aff'd, 702 F.2d 637 (6th Cir. 1983) ; Purple Onion, Inc.
v.Jackson, 511 F. Supp. 1207, 1209, 1214, 1215-17 (N.D. Ga. 1981) ;
E&B Enterprises v. City of University Park, 449 F. Supp. 695, 697
(N.D.Tex. 1977) ; Bayside Enterprises,Inc. v. Carson, 450 F. Supp.
696, 701-702 (M.D. Fla. 1978). Cf.Lydo Enterprises,Inc.v. City of
Las Vegas, 745 F.2d at 1213-15 (preliminary injunction denied
where theatre owner failed to show that alternative sites were not
available) ; Deerfield Medical Center v. City of Deerfield Beach, 661
F.2d 328, 336 (5th Cir. 1981) (re abortion clinics) ; Keego Harbor
Co. v. City of Keego Harbor, 657 F.2d 94, 96-99 (6th Cir. 1981)
(ordinance totally prohibited adult theatres).
24 E.g., Tovar v. Billmeyer, 721 F.2d at 1264-65; Kuzinich v.
County of Santa Clara, 689 F.2d 1345, 1348-49 (9th Cir. 1982) ;
Basiardanes v. City of Galveston, 682 F.2d at 1216; Avalon Cinema
Corp.v. Thompson, 667 F.2d 659, 661-662 (8th Cir. 1981). See also
Ebel v. City of Corona, 698 F.2d 390, 393 (9th Cir. 1983) ; Fantasy
Book Shop,Inc.v. City of Boston,652 F.2d 1115, 1119, 1124-25 (1st
Cir. 1981).
25 E.g., Alexander V. City of Minneapolis, 531 F. Supp. at 1170;
Purple Onion, Inc. V. Jackson, 511 F. Supp. at 1212, 1217, 1224. Cf.
Bayou Landing, Ltd.v. Watts, 563 F.2d 1172, 1175 (5th Cir. 1977),
cert. denied, 439 U.S. 818 (1978).
26 E.g., Purple Onion, Inc. v. Jackson, 511 F. Supp. at 1210; E&B
Enterprises V. City of University Park, 449 F. Supp. at 697. Cf.
Bayou Landing, Ltd. v. Watts, 563 F.2d at 1175.
13
have been upheld only in the Seventh Circuit and have
been stricken on various grounds by Circuit courts in the
First, Fifth, Sixth, Eighth, and Ninth Circuits.
This case demonstrates only too well the problems
faced by cities seeking to limit the effects of adult the-
atres on their communities, while leaving a reasonable
outlet for adult film fare. Before any theatre had en-
tered the city, Renton held lengthy hearings in the demo-
cratic fashion, letting all interested residents have their
say and following its usual and normal legislative proce-
dures. It studied what had occurred in other jurisdic-
tions, but it tailored its ordinance to fit Renton's particu-
lar circumstances. The City Council set forth detailed
findings and reasons for its action. Its ordinance did not
unduly inhibit speech; instead, it set aside what the Dis-
trict Court found was a "large percentage of land within
the city" (App. 27a) for the location of adult theatres and
for the showing of their films. Yet Renton's attempt
went for naught. The Ninth Circuit, reviewing the Dis-
trict Court's findings de novo, struck down Renton's ordi-
nance as unconstitutional. The Court of Appeals was
wrong in several crucial respects.
1. Renton Properly Relied on the Experience of Other
Cities
The Ninth Circuit erred in ruling that Renton could
not rely upon the experience of other cities in enacting
its adult theatre zoning ordinance.
Although purporting to rely upon Young, the court
failed to note that the Detroit ordinance approved in that
case was itself based in part upon the experience of other
cities. As Justice Powell noted in his concurring opin-
ion, the evidence introduced before the Detroit City Coun-
cil "consisted of reports and affidavits from sociologists
and urban planning experts, as well as some laymen, on
the cycle of decay that had been started in areas of other
14
cities, and that could be expected in Detroit, from the
influx and concentration of such establishments." 427
U.S. at 81 n.4 (Powell, J., concurring) ; emphasis added.27
Moreover, the Ninth Circuit's ruling would effectively
prohibit any city from enacting an ordinance in advance
of the entry of adult theatres into its environs. A city
can hardly rely upon its own experiences unless and un-
til adult theatres build or buy within the city limits and
introduce the deleterious effects that the ordinance is de-
signed to obviate in the first instance. Must a city really
wait until adult theatres have started the "cycle of de-
cay" that has already been found to evolve in other
areas? Nothing in Young or any other of this Court's
decisions requires such a result.28
This concept is especially pertinent here, where Renton
was relying in part upon an ordinance adopted by a city
located virtually on its borders. Renton was not reaching
out and relying entirely upon the experience of cities lo-
cated in areas very different from its own—as was at
least partially true in Young (see n.27, supra). Renton,
virtually a suburb of Seattle, could legitimately conclude
that whatever problems Seattle had encountered would
soon be its own—when and if an adult theatre moved
into Renton.29
27 Justice Powell's statement was supported by the record in that
case. Experts recited their experiences in many different cities and
towns in Michigan (Appendix in Young at 18-19), New York City
(id. at 30, 35), and cities in countries as far away as Sweden,
Denmark, West Germany, France, Britain and Italy. Id. at 32.
28 On the contrary, were a city to await the entry and deleterious
effects of adult theatres, it would run the risk encountered by other
cities of being accused of drawing its zoning lines with the intent
of closing down a particular theatre (or theatres) already operat-
ing within its borders. See, e.g., cases cited in n.24, supra.
29 Moreover, Renton's ordinance can hardly be said to have im-
posed an onerous economic burden on Playtime. Any disadvantage
it suffered was of its own doing, with full knowledge of the facts.
See n. 14, supra.
15
The opinion below imposes an impermissible burden on
cities and towns. If they cannot rely upon the experi-
ences of others, they must replicate within their own
borders the testimony, exhibits and evidence already in-
troduced elsewhere. Particularly for small cities and
towns, such a requirement can be prohibitively expensive
and impractical. Again, nothing in this Court's decisions
requires such a result, and the facts in Young support
an opposite conclusion.
The decision below, although supported by language
from other Circuits in several other cases,30 is in direct
conflict with the Seventh Circuit's decision in Genusa v.
City of Peoria, supra. There, the argument was made
that Peoria's ordinance should be struck down because
the City had not conducted its own surveys or relied
upon its own experiences, but instead had based its con-
clusions on what had occurred in other cities. The Sev-
enth Circuit rejected that argument:
Even though here, unlike in Young, the city has not
demonstrated a past history of congregated adult
uses causing neighborhood deterioration, we agree
with the district court that a city need not await
deterioration in order to act. A legislative body is
entitled to rely on the experience and findings of
other legislative bodies as a basis for action. There
is no reason to believe that the effect of congregated
adult uses in Peoria is likely to be different than the
effect of such congregations in Detroit. [619 F.2d
at 1211; footnote omitted.]
The California state courts also disagree with the ap-
proach taken by the Ninth Circuit. In one case, for ex-
ample, a court wrote:
Goldie [an adult book store operator] asserts that
the identical ordinance must be tested anew each
30 See, e.g., Avalon Cinema Corp. v. Thompson, 667 F.2d at 661-
662; see also CLR v. Henline, 520 F. Supp. at 767.
16
time it is enacted by a different governmental entity
by establishing the actual existence of local condi-
tions which would justify it. Goldie's thesis would
deny to lawmakers in one locale the benefit of the
wisdom and experience of lawmakers in another
community, no matter how similar the circum-
stances; it would, as it were, require the reinvention
of the wheel countless times over when mere access
to common knowledge would render the considerable
effort involved unnecessary. [County of Sacremento
v. Superior Court, 137 Cal. App. 3d at 455, 187 Cal.
Rptr. at 158.31]
The Ninth Circuit's contrary ruling imposes imper-
missible and wholly unnecessary burdens on municipal
legislative bodies. There is simply no basis for courts
setting such arbitrary guidelines for the types of "evi-
dence" a city council may consider in its legislative
processes.
2. Renton Set Aside a Permissible Zone for the Location
of Adult Theatres
The court below ruled that, even though Renton had
effectively set aside 520 acres of land on which adult
theatres could locate, this land was constitutionally "un-
available" because a portion of it is presently undevel-
oped, or is developed for existing commercial uses. App.
13a-14a.
The Ninth Circuit gave no thought to, and made no
accommodation for, the problem of small communities.
Under its approach, in fact, the more incompatible a
31 See also Ebel V. City of Corona, 698 F.2d at 392, where the
objection that the City Council had not made adequate findings of
fact was rejected by the court because the city "gave notice, held
hearings, issued a report of the City Planning Commission, and
gave reasons for its action in the preamble to the ordinance", and
this was all that was required for a "legislative act". Accord, Lydo
Enterprises, Inc. v. City of Las Vegas, 745 F.2d at 1215. Cf. Fan-
tasy Book Shop, Inc. v. City of Boston, 652 F.2d at 1125.
17
theatre is with the quality of the community, the greater
its right to locate there. A small, predominantly residen-
tial city or town with a centrally located, modest com-
mercial development will be unlikely to have much space
"available" for adult theatres. Yet under the Ninth Cir-
cuit's reasoning, it has less power to protect itself than
cities like Detroit with more space and many similar uses.
But even if the focus is properly on the practical avail-
ability of Renton's own set-aside zone, the Ninth Circuit
was wrong. To begin with, it misconstrued the record in
important respects. The court cited such properties as
the Longacres Racetrack and a city sewage plant as being
within the set-aside area, when in fact the racetrack and
the plant are clearly and unequivocably outside the set-
aside area.32 The confusion can only be accounted for
by the fact that the court relied on a map, and accom-
panying testimony, submitted at an early TRO hearing
in this case,33 prior to the time that the permissible dis-
tance from schools was reduced from one mile to 1,000
feet. The map also contained a number of errors because
it had to be prepared within a few hours' time.34 When
the errors were corrected and the ordinance as amended
taken into consideration, the set-aside area became sub-
stantially different (and larger),35 and many of the
"uses" included by the Ninth Circuit fell outside the set-
aside area.36 The court's error was particularly egregious
32 See maps at App. 140a-142a.
33 Cl. test., June 23, 1982, at 77, 84; see Cl. aff., Jan. 27, 1982
(incl. map).
34 Cl.test.,June 23, 1982,at 77-85.
35 The TRO testimony, prior to correction, estimated the size of
the set-aside area to be approximately 400 acres, with about half
of it unoccupied. See Cl. dep., Mar. 3, 1982, at 30-40.
36 Compare map attached to Cl. aff., Jan. 27, 1982, with map at-
tached to Cl. aff., May 26, 1982.
18
because it treated the District Court's findings as part
"law," reviewed them de novo, and overturned them.
In addition to its view of the facts, the Ninth Circuit's
underlying thesis is fatally flawed. Its approach raises
serious concerns of great import to cities and towns
throughout the country. The court assumed that unless
property is immediately available for purchase from a
willing seller, the ordinance has the effect of " `suppress-
ing, or greatly restricting access to, lawful speech.'" 37
Even if an ordinance resulting in a "substantial restric-
tion" on the showing of adult films would violate the First
Amendment, that is clearly not the case in situations like
this one. We begin with the fact that Renton did not
set aside a small, restricted area of land. The set-aside
area is physically large enough to accommodate more than
400 theatres and surrounding parking lots.38 It consti-
tutes over 4% of all the land in the City (as compared
to Seattle's set-aside area of less than 1%).38 Its acreage
is larger than one-fourth of the entire area of Renton
occupied by single-family residences and exceeds the
amount of land in the City used for parks and recrea-
tion.40 Witnesses for both Renton and Playtime testified
that much of the 520 acres is simply unoccupied land,
adjoined and criss-crossed by both highways and interior
37 App. 13a n.11 (quoting Young, 427 U.S. at 71 n.35).
38 Playtime's own attorney assumed that an adult theatre seating
400 persons would require 6000 sq. feet of space. Cl. dep., Mar. 3,
1982, at 68-72. Renton's Policy Development Director testified that
such a building would need 40,000 additional sq. feet for parking,
plus or minus 10% for error, or a maximum total of 52,000 sq. feet
for the entire theatre area. Id. A 520-acre area would encompass
22,651,200 sq. feet, or some 435 theatre areas.
39 Cl. aff., Jan. 27, 1982, at 6. This estimate for Renton was made
before the set-aside zone was enlarged by the second ordinance.
Therefore, the percentage today would be even larger.
40 Cl.aff.,Jan.27,1982,at 2.
19
access roads.41 So long as this land is within reasonable
driving distance of the City's populated areas 42 and
physically accessible, why is it not constitutionally "avail-
able" for the location of adult theatres? The Court of
Appeals does not say. The court does assume, however,
that a "fully-developed shopping center" and "a business
park containing buildings suitable only for industrial use"
are not constitutionally "available".43 This theme appar-
ently follows the approach of Playtime's real estate ex-
pert, who testified that much of the land was not "avail-
able" because it was occupied, and a number of property
owners told him they would not sell to an adult theatre
owner.44
This approach is wholly specious for two reasons.
First, property can be purchased through third parties,
with the identity of the true purchaser disguised. But
even more importantly, the court's approach gives the
adult theatre owner a preferred position above every
other potential purchaser of property. He does not have
to compete in the marketplace for property like everyone
else, including drug stores, hair salons and theatre own-
ers showing regular fare. Even the business offices of the
media, also protected by the First Amendment, enjoy no
such privilege.45 Under the Ninth Circuit's thesis, a city
41 Cl. aff., May 26, 1982, at 2-3; John. test., June 23, 1982, at
29-31; Cl. test., June 23, 1982, at 54-59, 61-62, 84-85; Cl. test.,
Jan. 29, 1982 at 16-17, 27, 42-43, 49-50, 51, 53, 56-57, 61-64; And.
aff., June 15, 1982, at 4-9.
42 The entire land area of Renton consists of only 15.3 square
miles. Cl. aff., Jan. 27, 1982, at 1.
43 App. 13a. There was, however, unrebutted testimony that
theatres can be built in areas designated "industrial park." Cl.
test., Jan. 29, 1982, at 60, 63-64.
44 And.aff.,June 15,1982,at 5-8.
45 Churches, too, must obey zoning laws in the free exercise of
their religion and must buy property under the ordinary rules of
20
must establish the existence of a "turnkey" location for
the adult theatre operator; property must stand ready
to be sold to such an operator from a willing seller. This
reasoning is in direct conflict with the view of those
courts (including the Seventh Circuit) which have up-
held set-aside areas (see n.22, supra), and we submit
that it was never the intent of this Court in Young.
A set-aside zone should be deemed "available" in the
constitutional sense when it is accessible—both in terms
of distance from populated areas of the city and in terms
of internal streets and highways—and when an ordinary
theatre operator could build or buy a theatre there at
such time as property becomes available in the ordinary
course of business. The fact that others have already
built or bought within the area should not be a disquali-
fication; to the contrary, it demonstrates that the zone
is a frequented, accessible and desirable area. That some
present owners express no immediate desire to sell is also
not a disqualifying factor; that is a fact of life faced by
all potential purchasers 46 Owners constantly change
their minds, either voluntarily or through the vicissitudes
of business life.
In summary, if Renton's set-aside zone is not consti-
tutionally "available," it is fair to say that virtually no
supply and demand. See American Communications Ass'n v. Douds,
339 U.S. 382, 397-398 (1950) ; Lakewood, Ohio Congregation of
Jehovah's Witnesses, Inc. v. City of Lakewood, 699 F.2d 303, 307-
309 (6th Cir.), cert. denied, 104 S. Ct. 72 (1983).
46It should be noted, however, that even Playtime's real estate
witness could not testify that all property owners within the set-
aside zone would not sell. Some owners told him they would sell,
some said they did not think the property was "suitable" for this
use, and he could not reach others. And. aff., June 15, 1982, at 4-9.
And even some 22 acres owned by the City is not wholly immune
from sale to third parties. In fact, the City Council voted as
recently as five months ago that in the future the City would study
the possible "purchase, trade or sale" of certain of its property.
Minutes, Renton City Council, Sept. 24, 1984, at 1.
21
small city or town in this country will be capable of
setting aside a permissible zone, consistent with its other
legitimate interests, for the location of adult theatres.
The result of such a development will be loss of control
by small cities and towns over the "quality of life" of
their communities.
3. The Court of Appeals Erroneously Implied an Im-
proper Legislative Motive
The Ninth Circuit apparently ruled 47 that the expres-
sion by citizens at public hearings of views aimed at the
content of adult films raised an inference of an im-
proper motive by the City Council, and that even if this
motive was merely "a" motivating factor in its zoning
decision, this was enough to invalidate the ordinance.
App. 20a. The court erred in several respects.
First, there is a serious question as to whether motive
or intent—either of citizens or of the City Council it-
self—has a part to play in a case like this, where any
burden on the adult theatre owner's First Amendment
interests is only incidental. When independent legitimate
reasons exist for minimal restrictions on First Amend-
ment freedoms, this Court has refused to undertake an
analysis of the motivation behind the legislative enact-
ment. See, e.g. United States v. O'Brien, 391 U.S. at
383-386. Here, the legitimate reasons relate to the very
protection of neighborhoods through zoning approved in
Young.
But even if motive or intent is relevant, the Court of
Appeals was still wrong to second-guess a city council.
47 The District Court noted that the City Council had sum-
marized ideas put forth at public hearings, including concerns
reflecting citizens' values "which might be impermissible bases for
justification of restrictions affecting first amendment interests."
App. 31A. The Court of Appeals interpreted this statement as a
recognition that "many of the stated reasons [made by the City
Council] for the ordinance were no more than expressions of dislike
for the subject matter." App. 19a-20a; footnote deleted.
22
There was no evidence that any member of the City
Council had an improper motive. Nevertheless, the court
went behind the specific findings of the Council as to why
the ordinance was passed. It apparently concluded that
because some citizens at an open meeting expressed per-
sonal views adverse to the content of adult films, an
inference was raised that at least one motive of the
Council itself was improper, and this was sufficient to
invalidate the entire ordinance.
The court should not have imputed the motives of
some citizens to the City Council. Village of Arlington
Heights v. Metropolitan Housing Development Corp., 429
U.S. 252, 267-270 (1977).48 The effect of the Ninth Cir-
cuit's ruling on city governments would be to cancel hear-
ings preceding the adoption of zoning ordinances, to close
them to the public, or to pre-censor approved speakers.
None of these results is practical, all are undemocratic,
and they may even be unconstitutional in denying citi-
zens their own First Amendment rights to speak. See
City of Madison Joint School District v. Wisconsin Em-
ployment Relations Comm'n, 429 U.S., 167, 174-176
(1976). Most jurisdictions (including the State of Wash-
ington) now require by law that such proceedings be
open to the public, precisely so that citizens can express
a wide variety of views on the subjects under considera-
tion. City councils should not be held responsible for the
fact that some citizens do not like adult films. As a
matter of fact, the Ninth Circuit ruling would constitute
an invitation to adult theatre owners such as Playtime to
induce citizens to appear at hearings and express imper-
48 The record in Young showed that a number of citizens had
complained in that case about content. For example, one Detroit
resident whose letter was introduced into evidence complained to
the Mayor, "They have pornography available in their back room,
and it is disgusting * * *" (Appendix in Young at 26), and an
attorney for the city conceded: "The concern of the neighborhood
over the showing of this kind of movie has been evidenced time and
again by picketing, by calls and letters to our office, to the Mayor,
to the Common Council and so on." Id. at 48.
23
missible views, thus dooming in advance any subsequently-
enacted ordinance, no matter how well intended.
If the motive of a city council—as opposed to speak-
ers at a hearing—is deemed relevant, a court should
look to the predominant motive behind the ordinance. An
attempt by a court to define "a" single motivating factor
behind a legislative act is simply improper.49 In this
case, all of the City Council's stated reasons were con-
sistent with a concern about effects. To the extent that
its findings could be said to relate to content, the legisla-
tive intent was to oppose not adult films per se but
rather the showing of adult films in certain locations.
By locating the films nearby, in an accessible and com-
modious area, the City Council is giving adult films their
full play, but without the deleterious effects that evidence
has clearly shown will follow if adult theatres are located
in all areas of the City.
Finally, even if the City Council's own motives could be
' said to be based on objectives not heretofore sanctioned
by this Court, we respectfully urge that those objectives
be approved. It would be ironic indeed if a city could
zone adult theatres because of commercial considerations
I
49In City of Las Vegas v. Foley, 747 F.2d 1294, 1297 (9th Cir.
1984), for example, another panel of the Ninth Circuit held that
legislators could not even be questioned about their subjective rea-
sons for passing an ordinance, because the ordinance is to be
measured by such objective facts as stated intent and effect. And
it was precisely because of this problem of delving into the legisla-
tive mind-set that Judge Wallace concurred only in the result in
the Ninth Circuit's decision in Tovar v. Billmeyer, supra. He wrote
that the majority, by adopting an "a motivating factor" test (721
F.2d at 1266), was refusing to follow the "clear and precise stand-
ard" already adopted by the court in Ebel v. City of Corona, 698
F.2d at 393, to the effect that an ordinance is unconstitutional only
if its "real purpose" is to obstruct the exercise of protected First
Amendment rights. 721 F.2d at 1267 (Wallace, J., concurring). He
pointed out that the very nature of the legislative process means
that there will always be more than a single purpose for any legis-
lative action. Id. at 1268.
24
such as lowering of residential property values, and not
on the ground that these theatres have an unstable and
debilitating effect on the families living in those same
residences. Such a result would elevate property values
over human values. The stability and cohesiveness of
families and parents' efforts to raise their children in
suitable surroundings free from crime and blighted areas
are also worthy of protection. These were precisely the
kind of principles that this Court recognized as a valid
basis for zoning in Village of Belle Terre v. Boraas, 416
U.S. 1, 9 (1974) : "It is ample to lay out zones where
family values, youth values, and the blessings of quiet
seclusion and clear air make the area a sanctuary for
people." 5°
Some of the confusion in regard to legislative intent
may have been caused by uncertainty arising out of two
of this Court's decisions, Village of Arlington Heights
and O'Brien. Arlington Heights dealt with a land area
rezoned after a developer contracted to build racially
integrated housing. The Court held, on the one hand,
that a plaintiff need not prove that the challenged action
"rested solely on racially discriminatory purposes," be-
cause rarely is a legislature motivated by a single con-
cern. "When there is proof that a discriminatory pur-
pose has been a motivating factor in the decision [to
rezone], * * * judicial deference is no longer justified."
429 U.S. at 265-266; emphasis added; footnote deleted.
On the other hand, the Court held that the mere fact that
opponents of integrated housing who spoke at various
meetings "might have been motivated by opposition to
minority groups" did not invalidate the ordinance. Id. at
267-270.
60 See also Berman v. Parker, 348 U.S. 26, 32-33 (1954) ; Paris
Adult Theatre I v. Slaton, 413 U.S. 49, 58-59 (1973) (citizens have
legitimate interest in protecting "the style and quality of life" and
"the total community environment").
25
The court below focused upon the "a motivating factor"
language in Village of Arlington Heights and wholly ig-
nored this Court's holding in that case.
In the second case, O'Brien, the Court flatly refused to
inquire into legislative motives—an inquiry the Court
called "a hazardous matter". The Court ruled that if a
statute is otherwise constitutional, courts may look to
legislative history for an interpretation of it, but may
not void the statute because of perceived intent on the
part of some legislators. 391 U.S. at 384.51 In the instant
case, the Ninth Circuit improperly engaged in the "guess-
work" eschewed in O'Brien.
We respectfully suggest that this Court may have un-
wittingly given conflicting signals to the lower courts in
regard to legislative intent by its decisions in Arlington
Heights and O'Brien. The resulting confusion should now
be resolved in the context of attempts by cities to zone
adult uses.
4. Cities' Legitimate Attempts to Zone Adult Theatres
Are Jeopardized By the Decision Below
In Young, this Court was apparently divided over
which standard to use in testing the regulation of adult
establishments.62 A plurality of four treated adult films
61 See also Hart Book Stores, Inc. v. Edmisten, 612 F.2d at
820-830.
52 This split has not gone unnoted by the lower courts (see many
of the cases in nn.22-26, supra) and by the commentators. E.g.,
Friedman, Zoning "Adult" Movies: The Potential Impact of Young
v.American Mini Theatres,28 Hastings L.J. 1293 (1977) ; Stevenin,
Young v. American Mini Theatres, Inc.: Creating Levels of Pro-
tected Speech, 4 Hastings Const. L. Q. 321 (1977) ; Aver, The Zon-
ing of Adult Entertainment: How Far Can Planning Commissions
Go? 5 Comm/Ent. L.J. 293 (1982) ; Pearlman, Zoning and the
First Amendment, 16 Urb. Law. 217 (1984) ; Note, Content Regula-
tion and the Dimensions of Free Expression, 96 Harv. L. Rev. 1854
(1983) ; Note, Second Class Speech: The Court's Refinement of
Content Regulation, 61 Neb. L. Rev. 361 (1982) ; Note, Municipal
Zoning Restrictions on Adult Entertainment: Young, Its Progeny
and Indianapolis' Special Exceptions Ordinance, 58 Ind. L. J. 505
(1983).
26
as meriting a lower level of protection than other films,
while Justice Powell reached the same result by applica-
tion of the O'Brien four-part test.
Regardless of which standard is applied, Renton has
not violated the First Amendment. Its ordinance is more
narrowly tailored than that approved in Young, because
it defines "use" even more restrictively than Detroit did.63
Since its set-aside area is ample to accommodate all of
the adult theatres that could possibly want to locate in
the city, no suppression of speech has occurred or could
occurs¢
Applying the O'Brien test, it is clear that (i) zoning is
within the City's constitutional power; (ii) Renton's ordi-
nancefurthers its important and substantial governmen-
tal interests, including the prevention of decay in resi-
dential and commercial areas and the control of crime;
(iii) the assertion of its governmental interests is un-
related to the suppression of free expression but instead
is closely tailored to the achievement of those interests;
and (iv) any incidental restriction on speech is no greater
than is essential in furtherance of Renton's governmental
53 The ordinance here requires no separation between adult uses,
so that an operator need not consider the character of other uses
when locating his business. No special licensing or waiver provi-
sions, with their inherent difficulties of discretion, are included.
Likewise, the requirement of continuous exhibition precludes regu-
lation of any incidental or innocent exhibition of sexually explicit
material. Renton's ordinance therefore satisfies the concerns ex-
pressed by Justice Blackman in his dissenting opinion in Young,
427 U.S. at 88-96 (Blackman, J., dissenting).
64 This case is thus at the furtherest extreme from Schad v.
Borough of Mount Ephraim, 452 U.S. 61 (1981), where nude
dancing was entirely prohibited.
This appeal also does not involve any of the issues presented in
another case from the State of Washington presently before the
Court, Brockett v. Spokane Arcades, Inc., 725 F.2d 482 (9th Cir.),
prob. juris. noted, 53 U.S.L.W. 3235 (U.S. Oct. 1, 1984) (Nos. 84-28
and 84-143).
27
interests because the market for expression of adult films
is "essentially unrestrained" in view of the existence of
520 acres available for adult theatres.
If Renton's ordinance is not sustained, no such ordi-
nance can withstand scrutiny, and the hope held out in
Young for a reasonable approach to the serious second-
ary effects of adult establishments will be dashed for
good.65 This case, therefore, presents questions of extraor-
dinary importance to small communities throughout the
United States. Young's progeny demonstrate the confu-
sion of well intentioned courts seeking to implement this
Court's rulings. The lower courts, as well as city govern-
ments and city planners, need and deserve thoughtful
guidance in dealing with the First Amendment's impact
on the zoning of adult theatres. Only if the decision be-
low is reversed can cities' efforts to meet this "admittedly
serious problem" 58 be accorded "a sufficient degree of
flexibility for experimentation and innovation" 57 in this
vital area of "innovative land-use regulation." 68
55 See cases cited in nn.23-26,supra.
56 Young,427 U.S.at 71 (plurality opinion).
57 Northend Cinema,585 P.2d at 1159.
68 Young,427 U.S.at 73 (Powell,J.,concurring).
28
CONCLUSION
For the reasons expressed above, this Court should note
probable jurisdiction and reverse the judgment below.
Respectfully submitted,
E. BARRETT PRETTYMAN, JR.*
JAMES G. MIDDLEBROOKS
HOGAN &HARTSON
815 Connecticut Avenue, N.W.
Washington,D.C.20006
(202) 331-4685
LAWRENCE J.WARREN
DANIEL KELLOGG
MARK E.BARBER
ZANETTA L.FONTES
WARREN&KELLOGG,P.S.
100 South Second Street
Renton,Washington 98057
(206) 255-8678
Counsel for Appellants
* Counsel of Record
No.
IN THE
'tt irrntr C1nttrt of Or nttrd 'tatrL
OCTOBER TERM, 1984
THE CITY OF RENTON, et al.,
v.
Appellants,
PLAYTIME THEATRES, INC.,
a Washington corporation, et al.,
Appellees.
On Appeal from the United States Court of Appeals
for the Ninth Circuit
APPENDIX TO
JURISDICTIONAL STATEMENT
E. BARRETT PRETTYMAN, JR.*
JAMES G. MIDDLEBROOKS
HOGAN &HARTSON
815 Connecticut Avenue, N.W.
Washington, D.C. 20006
(202) 331-4685
LAWRENCE J. WARREN
DANIEL KELLOGG
MARK E.BARBER
ZANETTA L. FONTES
WARREN&KELLOGG,P.S.
100 South Second Street
Renton, Washington 98057
(206) 255-8678
* Counsel of Record Counsel for Appellants
WILSON • EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001
TABLE OF CONTENTS
Appendix A Page
Decision of United States Court of Appeals for
Ninth Circuit, in Playtime Theaters, Inc. v. City
of Renton, 748 F.2d 527 (9th Cir. 1984), de-
cided November 28, 1984 la
Appendix B
Decision of United States District Court for the
Western District of Washington, in Playtime
Theatres, Inc. v. City of Renton, No. C82-59M,
decided February 18, 1983 23a
Appendix C
Judgment of United States District Court for the
Western District of Washington, in Playtime
Theatres, Inc. v. City of Renton, No. C82-59M,
entered February 18, 1983 33a
Appendix D
Order of United States District Court for the
Western District of Washington, in Playtime
Theatres, Inc. v. City of Renton, No. C82-59M,
entered April 29, 1983, denying Plaintiff's Mo-
tions to Alter and Amend and For Stay Pending
Appeal 34a
Appendix E
Order of United States District Court for the
Western District of Washington, in Playtime
Theatres, Inc. v. City of Renton, No. C82-59M,
entered January 13, 1983, denying Defendants'
Motions to Dismiss and For Summary Judgment
and Granting Preliminary Injunction Pendente
Lite 35a
ii
TABLE OF CONTENTS—Continued
Appendix F Page
Report and Recommendation of Hon. Philip K.
Sweigert, Magistrate, United States District
Court for the Western District of Washington,
in Playtime Theatres, Inc. v. City of Renton,
No. C82-59M, entered November 5, 1982 37a
Appendix G
Order of United States District Court for the
Western District of Washington, in Playtime
Theatres, Inc. v. City of Renton, No. C82-59M,
entered February 23, 1982, adopting the Febru-
ary 3, 1982 Report and Recommendation of
United States Magistrate Philip K. Sweigert 46a
Appendix H
Judgment of United States District Court for the
Western District of Washington, in Playtime
Theatres, Inc. v. City of Renton, No. C82-59M,
entered February 23, 1982, denying Plaintiffs'
Motion for a Temporary Restraining Order 48a
Appendix I
Report and Recommendation of Hon. Philip K.
Sweigert, Magistrate, United States District
Court for the Western District of Washington,
in Playtime Theatres, Inc. v. City of Renton,
No. C82-59M, entered February 3, 1982 49a
Appendix J
Notice of Appeal, Playtime Theatres, Inc. V. City
of Renton, 748 F.2d 527 (9th Cir. 1984), filed
February 4, 1985 55a
Appendix K
Amended and Supplemental Complaint for Declar-
atory Judgment and Preliminary and Permanent
Injunction, in Playtime Theatres, Inc. V. City of
Renton, No. C82-59M 57a
TABLE OF CONTENTS—Continued
Appendix L Page
Renton, Washington, Ordinance 3526 (April 13,
1981) 78a
Appendix M
Renton, Washington, Ordinance 3629 (May 3,
1982) 81a
Appendix N
Renton, Washington, Ordinance 3637 (June 14,
1982) 90a
Appendix 0
Detroit, Michigan, Ordinance 742-G (Nov. 2,
1972) 99a
Appendix P
Detroit, Michigan, Ordinance 743-G (Nov. 2,
1972) 113a
Appendix Q
Detroit, Michigan, Ordinance 891-G (May 2,
1974) 118a
Appendix R
Seattle, Washington, Ordinance No. 105565 (May
17, 1976) 126a
Appendix S
Seattle, Washington, Ordinance No. 105584 (June
1, 1976) 138a
Appendix T
Trial Exhibit A-1, Map of Renton, Washington,
Detailing Zoned Areas. 140a
Appendix U
Trial Exhibit A-2, Enlarged Area of Trial Ex-
hibit A-1 141a
Appendix V
Trial Exhibit A-3, Aerial Photo with Overlay of
Area Shown in Trial Exhibit A-2 142a
la
APPENDIX A
UNITED STATES COURT OF APPEALS
NINTH CIRCUIT
Nos. 83-3805, 83-3980
PLAYTIME THEATERS, INC.,
a Washington corporation, et al.,
Plaintiffs-Appellants,
V.
THE CITY OF RENTON, et al.,
Defendants-Appellees.
THE CITY OF RENTON,
a municipal corporation, et al.,
Plaintiffs-Appellants,
V.
PLAYTIME THEATERS, INC.,
a Washington corporation, et al.,
Defendants-Appellees.
Argued and Submitted May 9, 1984
Decided Nov. 28, 1984
Robert Eugene Smith, Encino, Cal., for Playtime Thea-
ters, Inc.
Lawrence J. Warren, Daniel Kellogg, Warren & Kel-
logg, Renton, Wash., for City of Renton.
2a
Appeal from the United States District Court
for the Western District of Washington
Before FLETCHER and FARRIS, Circuit Judges, and
JAMESON,* District Judge.
FLETCHER, Circuit Judge:
These consolidated cases are declaratory judgment ac-
tions involving the constitutionality of the City of Ren-
ton's zoning ordinances regulating the location of adult
motion picture theaters.
In case number 83-3805, Playtime Theaters, Inc.
("Playtime") appeals the district court's order denying a
permanent injunction and finding that the ordinance fur-
thers a substantial governmental interest, is unrelated to
the suppression of speech, and is no more restrictive than
necessary to further that interest. Case number 83-3980
is a declaratory action involving the same parties and is-
sues, filed by the City of Renton in state court after fed-
eral proceedings had begun. This action was twice re-
moved to federal court and twice remanded to state court.
Renton appeals the district court's denial of its motion for
fees and costs on the second removal. We reverse in num-
ber 83-3805 and affirm in number 83-3980.
I
BACKGROUND
In April, 1981, the City of Renton enacted ordinance
number 3526 which prohibited any "adult motion picture
theater" ' within one thousand feet of any residential
*Hon. William J. Jameson, Senior United States District Judge
for the District of Montana, sitting by designation.
1 The first ordinance defined an "adult motion picture theater" as
an enclosed building used for presenting motion picture films,
3a
zone or single or multiple family dwelling, any church or
other religious institution, and any public park or area
zoned for such use. The ordinance further prohibited any
such theater from locating within one mile of any public
or private school. At the time this ordinance was en-
acted, no adult theaters were located in Renton, although
there were other theaters within the proscribed area.
In January, 1982, Playtime acquired two existing thea-
ters in Renton with the purpose of exhibiting adult mo-
tion pictures in at least one, the Renton Theater, which is
video cassettes, cable television, or any other such visual media,
distinguished or characterized by an emphasis on matter de-
picting, describing or relating to "specified sexual activities"
or "specified anatomical areas" as hereafter defined, for ob-
servation by patrons therein.
The ordinance defined these terms as follows:
2. "Specified Sexual Activities":
(a) Human genitals in a state of sexual stimulation or
arousal;
(b) Acts of human masturbation, sexual intercourse or
sodomy;
(c) Fondling or other erotic touching of human genitals,
pubic region,buttock or female breast.
3. "Specified Anatomical Areas":
(a) Less than completely and opaquely covered human
genitals, pubic region, buttock, and female breast below a
point immediately above the top of the areola; and
(b) Human male genitals in a discernible turgid state,
even if completely and opaquely covered.
The second ordinance expanded the defined term of "used" as:
a continuing course of conduct of exhibiting "specific [sic
specified?] sexual activities" and "specified anatomical area["]
in a manner which appeals to a prurient interest.
4a
located within the area proscribed by ordinance number
3526.2
Just prior to closing the sale of the theater, on Janu-
ary 20, 1982, Playtime filed an action in federal court,
seeking a declaration that the ordinance was unconstitu-
tional and a permanent injunction against its enforce-
ment.
A month later, on February 19, 1982, Renton brought
suit in state court seeking a declaratory judgment that
the ordinance was constitutional on its face and as ap-
plied to Playtime's proposed use. The complaint alleged
that an actual dispute existed because of the pending fed-
eral lawsuit and because Playtime asserted that the ordi-
nance was unconstitutional. On February 22, 1982, Ren-
ton moved to dismiss Playtime's federal action on the
grounds that the federal court should abstain in favor of
the state action, citing Younger v. Harris, 401 U.S. 37,
91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Huffman v.
Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482
(1975).
On March 8, 1982, Playtime removed the state action
to federal court and Renton moved to remand. On March
25, the magistrate filed his recommendation that absten-
tion was improper in the first action and on April 9, he
recommended that the removed state action be remanded
for lack of jurisdiction because the complaint failed to
state a claim upon which relief could be granted. The
district court approved both recommendations, denying
the motion to dismiss the federal action on May 5, 1982,
and remanding the state action on January 13, 1983.
2 For the purposes of this opinion, "adult motion picture theater"
or "adult theater" refers to the definition used by the City. See
supra note 1. We express no view as to the effect of this definition
on the constitutionality of the ordinance. See infra note 18.
5a
On May 3, 1982, Renton passed an emergency ordi-
nance, amending ordinance number 3526. The new ordi-
nance added an elaborate statement of reasons for the
enactment of the ordinances,' it further defined the word
3 The City gave the following reasons in the amended ordinance:
1. Areas within close walking distance of single and multiple
family dwellings should be free of adult entertainment land
uses.
2. Areas where children could be expected to walk, patronize
or recreate should be free of adult entertainment land uses.
3. Adult entertainment land uses should be located in areas
of the City which are not in close proximity to residential
uses,churches, parks and other public facilities, and schools.
4. The image of the City of Renton as a pleasant and attrac-
tive place to reside will be adversely affected by the pres-
ence of adult entertainment land uses in close proximity to
residential land uses, churches, parks and other public fa-
cilities, and schools.
5. Regulation of adult entertainment land uses should be
developed to prevent deterioration and/or degradation of
the vitality of the community before the problem exists,
rather than in response to an existing problem.
6. Commercial areas of the City patronized by young people
and children should be free of adult entertainment land
uses.
7. The Renton School District opposes a location of adult
entertainment land uses within the perimeters of its policy
regarding bussing of students, so that students walking to
school will not be subjected to confrontation with the
existence of adult entertainment land uses.
8. The Renton School District finds that location of adult
entertainment land uses in areas of the City which are in
close proximity to schools, and commercial areas patronized
by students and young people, will have a detrimental effect
upon the quality of education which the School District is
providing for its students.
9. The Renton School District finds that education of its
students will be negatively affected by location of adult
entertainment land uses in close proximity to location of
schools.
10. Adult entertainment land uses should be regulations [sic]
by zoning to separate it from other dissimilar uses just as
6a
any other land use should be separated from uses with
characteristics different from itself.
11. Residents of the City of Renton, and persons who are
non-residents but use the City of Renton for shopping and
other commercial needs, will move from the community or
shop elsewhere if adult entertainment land uses are allowed
to locate in close proximity to residential uses, churches,
parks and other public facilities, and schools.
12. Location of adult entertainment land uses in proximity
to residential uses, churches, parks and other public facili-
ties, and schools, may lead to increased levels of criminal
activities, including prostitution, rape, incest and assaults
in the vicinity of such adult entertainment land uses.
13. Merchants in the commercial area of the City are con-
cerned about adverse impacts upon the character and
quality of the City in the event that adult entertainment
land uses are located within close proximity to residential
uses,churches, parks and other public facilities, and schools.
Location of adult entertainment land uses in close proximity
to residential uses, churches, parks and other public facili-
ties, and schools, will reduce retail trade to commercial
uses in the vicinity, thus reducing property values and tax
revenues to the City. Such adverse affect [sic] on property
values will cause the loss of some commercial establish-
ments followed by a blighting effect upon the commercial
districts within the City, leading to further deterioration
of the commercial quality of the City.
14. Experience in numerous other cities, including Seattle,
Tacoma and Detroit, Michigan, has shown that location of
adult entertainment land uses degrade the quality of the
area of the City in which they are located and cause a
blighting effect upon the City. The skid row effect, which
is evident in certain parts of Seattle and other cities, will
have a significantly larger affect [sic] upon the City of
Renton than other major cities due to the relative sizes
of the cities.
15. No evidence has been presented to show that location of
adult entertainment land uses within the City will improve
the commercial viability of the community.
16. Location of adult entertainment land uses within walking
distance of churches and other religious facilities will have
an adverse effect upon the ministry of such churches and
7a
"used," 4 and it reduced the required distance from
schools from one mile to 1000 feet. The ordinance also
contained a clause stating that the federal litigation cre-
ated an emergency making immediate adoption of the
new ordinance necessary.° The ordinance was reenacted
on June 14, 1982, without the emergency clause.
will discourage attendance at such churches by the prox-
imity of adult entertainment land uses.
17. A reasonable regulation of the location of adult enter-
tainment land uses will provide for the protection of the
image of the community and its property values, and pro-
tect the residents of the community from the adverse effects
of such adult entertainment land uses, while providing to
those who desire to patronize adult entertainment land uses
such an opportunity in areas within the City which are
appropriate for location of adult entertainment land uses.
18. The community will be an undesirable place to live if it is
known on the basis of its image as the location of adult
entertainment land uses.
19. A stable atmosphere for the rearing of families cannot be
achieved in close proximity to adult entertainment land
uses.
20. The initial location of adult entertainment land uses will
lead to the location of additional and similar uses within
the same vicinity, thus multiplying the adverse impact of
the initial location of adult entertainment land uses upon
the residential, [sic] churches, parks and other public facili-
ties, and schools, and the impact upon the image and quality
of the character of the community.
4 See supra note 1.
8 The emergency clause stated:
The City Council of the City of Renton finds and declares that
an emergency exists because of the pendency of litigation
against the City of Renton involving the subject matter of this
ordinance, and potential liability of the City of Renton for
damages as pleaded in that litigation, and that the immediate
adoption of this ordinance is necessary for the immediate
preservation of public peak [sic], health, and safety or for the
support of city government and its existing public institutions
and the integrity of the zoning of the City of Renton. There-
8a
On June 23, 1982, the magistrate heard Playtime's mo-
tion for preliminary injunction and Renton's motions to
dismiss and for summary judgment. On November 5,
1982, he filed his recommendation to deny Renton's mo-
tion and to grant Playtime a preliminary injunction. He
found that the ordinance "for all practical purposes ex-
cludes adult theaters from the City," that only 200 acres
were not restricted by the ordinance, and that all of
these areas were "entirely unsuited to movie theater
use." He further found that Renton had not established
a factual basis for the adoption of the ordinance and
that the motives behind the ordinance reflected "simple
distaste for adult theaters because of the content of the
films shown." On January 11, 1983, the district court
entered an order approving and adopting these findings
and granting a preliminary injunction.° For the first
time, Playtime began showing adult movies at the Ren-
ton Theater.
On February 8, 1983, the parties entered into a stipu-
lation to submit the case for hearing on whether a per-
manent injunction should issue on the basis of the rec-
ord already developed. On February 17, 1983, the dis-
trict court vacated the preliminary injunction and de-
nied the permanent injunction. The court found that 520
acres were available as potential sites for adult theater
use and that this ordinance did not substantially restrict
first amendment interests.' The court further held that
fore, this ordinance shall take effect immediately upon its
passage and approval by the Mayor.
The City used this clause as justification for a renewed motion to
dismiss and a motion for summary judgment, both of which were
filed on May 4, the next day.
6 We denied the City's application for a writ of mandamus to
stay the preliminary injunction.
7 The court did not explain the variance between this finding
and its prior finding, made at the time it granted the preliminary
injunction, that only 200 acres were available.
9a
Renton was not required to show specific adverse impact
on Renton from the operation of adult theaters but could
rely on the experiences of other cities. Lastly, the court
found that the purposes of the ordinance were unrelated
to the suppression of speech and that the restrictions it
imposed were no greater than necessary to further the
governmental interest.
On May 19, 1983, after denial of the permanent in-
junction, and after the notice of appeal was filed in this
court, Renton filed an amended complaint in state court
seeking, in addition to the originally requested declara-
tory relief, abatement of the operation of Playtime's adult
theaters. On June 8, 1983, Playtime removed the action
to federal court on the ground that Renton sought to en-
force statutes that had been declared unconstitutional by
this court. The district court remanded because the case
did not arise under federal law; the federal issue was
only a defense. It denied Renton's motion for costs and
fees because it found that the petition raised serious
questions of law and that Playtime had not acted in bad
faith. Renton appeals the denial of costs and fees.
II
JURISDICTION
Renton argues that abstention was appropriate in this
case because it involves vital state interests, see Railroad
Commission v. Pullman Co., 312 U.S. 496, 501, 61 S.Ct.
643, 645, 85 L.Ed. 971 (1941), and because the exercise
of federal jurisdiction would interfere with the pending
state action, see Younger v. Harris, 401 U.S. 37, 91 S.Ct.
746, 27 L.Ed.2d 669 (1971). We do not agree.
A. Pullman Abstention is Inappropriate in This Case.
We recently held that the Pullman abstention doctrine
was inapplicable in a facial challenge to Washington's
anti-obscenity statute. J-R Distributors, Inc. v. Eiken-
10a
berry, 725 F.2d 482 (9th Cir. 1984). We recognized that
Pullman abstention would almost never be appropriate
in first amendment cases because such cases involve
strong federal interests and because abstention could re-
sult in the suppression of free speech. Id. at 487-88.
Similarly, we find that the district court in the case at
hand appropriately declined to abstain because "absten-
tion would not eliminate or materially alter the constitu-
tional issues presented." Spokane Arcades, Inc. v. Broc-
kett, 631 F.2d 135, 137 (9th Cir. 1980), aff'd mem., 454
U.S. 1022, 102 S.Ct. 557, 70 L.Ed.2d 468 (1981).
B. Younger Abstention is Inappropriate in This Case.
We find Younger abstention inappropriate as well.
Federal courts, concerned for federal-state comity, have
employed Younger abstention to prevent federal inter-
ference with pending state criminal proceedings. Goldie's
Bookstore, Inc. v. Superior Court, 739 F.2d 466, 469 (9th
Cir. 1984) ; see also Huffman v. Pursue, Ltd., 420 U.S.
592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). In this case,
Renton asked the district court to abstain in favor of a
state court action that sought only a declaration of the
ordinance's constitutionality.
The cases applying Younger abstention have arisen in
criminal or quasi-criminal contexts. We have refused to
extend Younger to civil cases generally. See Goldie's
Bookstore, 739 F.2d at 469-70; Champion International
Corp. v. Brown, 731 F.2d 1406 (9th Cir. 1984). We
agree with the district court's refusal to do so in this
case as well. As we discussed in Mio f sky v. Superior
Court, 703 F.2d 332 (9th Cir. 1983), in each of the cases
in which Younger has been applied in a civil context, the
civil suits "bore similarities to criminal proceedings or
otherwise implicated state interests vital to the operation
of state government." Id. at 337 (emphasis added).
These dual requirements are not present in a civil case
seeking only declaratory relief.
11a
Playtime did not violate the ordinance prior to chal-
lenging it. Thus, it was not even potentially subject to
the sort of enforcement action to which Younger applies.
In Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561,
45 L.Ed.2d 648 (1975), the plaintiff challenged a local
ordinance prohibiting topless dancing in bars. Three
bars in the town were affected and all complied with the
ordinance prior to commencing suit in federal court. The
day after the federal complaint was filed, one bar, M & L,
resumed topless dancing and was prosecuted criminally.
The other two bar owners remained in compliance. The
court held that Younger abstention applied to M & L,
but the retention of jurisdiction over the other two bar
owners was proper because they were not subject to
criminal prosecution prior to the issuance of the prelimi-
nary injunction. Playtime's position is like that of the
two bars in Doran.
Playtime showed adult films in Renton for the first
time after the district court entered its preliminary in-
junction. By the time Renton amended its complaint in
the state action to include abatement of the nuisance,
making it the sort of enforcement action to which
Younger might arguably apply,'8 final judgment denying
s In Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43
L.Ed.2d 482 (1975), the Supreme Court held that a federal court
could not enjoin enforcement of a state judgment in a nuisance
abatement action brought by the state against an adult theater.
The Court rejected the argument that Younger was restricted to
criminal proceedings, but carefully limited its holding by recog-
nizing that the state action was "in important respects . . . more
akin to a criminal prosecution than are most civil cases. . . . The
proceeding is both in aid of and closely related to criminal stat-
utes . . . ." Id. at 604, 95 S.Ct. at 1208. In Judice v. Vail, 430 U.S.
327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977), the Court held that
Younger applied to a state civil contempt proceeding because the
state's "interest in the contempt process . . . vindicates the regular
operation of its judicial system." Id. at 335, 97 S.Ct. at 1217.
In Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d
486 (1977), abstention was required in deference to a prior state
civil action brought by the state of Illinois to recover welfare pay-
12a
the injunction had already been granted in the district
court. At this point, abstention was inappropriate.9
III
THE STANDARDS FOR REGULATION OF SPEECH
THROUGH THE USE OF THE ZONING POWER
Local governments may zone for the public welfare.
See Berman v. Parker, 348 U.S. 26, 32-33, 75 S.Ct. 98,
102-103, 99 L.Ed. 27 (1954). The power is considerable
ments obtained by fraud. The Court noted, however, that the
action was "an ongoing civil enforcement action . . . brought by the
State in its sovereign capacity." Id. at 444, 97 S.Ct. at 1918. And,
in Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994
(1979), abstention was required as to a pending state proceeding
in which the state was seeking custody of children abused by their
parents.
9 The court in Huffman recognized that
"When no state criminal proceeding is pending at the time the
federal complaint is filed, federal intervention does not result
in duplicative legal proceedings or disruption of the state
criminal justice system; nor can federal intervention, in that
circumstance, be interpreted as reflecting negatively upon the
state court's ability to enforce constitutional principles."
Huffman, 420 U.S. at 603, 95 S.Ct. at 1207-1208 (quoting Steffel v.
Thompson, 415 U.S. 452, 462, 94 S.Ct. 1209, 1217, 39 L.Ed.2d 505
(1974)).
If, however, "state criminal proceedings are begun against the
federal plaintiffs after the federal complaint is filed but before any
proceedings of substance on the merits have taken place in the
federal court, the principles of Younger v. Harris should apply in
full force." Hicks v.Miranda, 422 U.S. 332, 349, 95 S.Ct. 2281, 2292,
45 L.Ed.2d 223 (1975) (emphasis added). In Hicks, state officials
confiscated allegedly obscene movies and brought an action in state
court against two employees of the theater. The theater owners
sought injunctive relief in federal court and the day after the
owners filed the federal complaint, the state charged the theater
owners along with their employees in state court. The court applied
Younger because "appellees were charged . . . prior to answering
the federal case and prior to any proceedings whatsoever before the
three judge court." Id. at 349-50, 95 S.Ct. at 2292.
13a
but it must be exercised within constitutional limits.
See Schad v. Borough of Mount Ephraim, 452 U.S. 61,
68, 101 S.Gt. 2176, 2182, 68 L.Ed.2d 671 (1981). We
have an obligation to scrutinize strictly zoning decisions
that infringe first amendment rights. Tovar v. Bill-
meyer, 721 F.2d 1260, 1264 (9th Cir. 1983), cert. de-
nied, U.S. , 105 S.Ct. 223, 83 L.Ed.2d 152
(1984).1°
The district court found that 520 acres in Renton were
available for adult theater sites. Although we do not
quarrel with the conclusion that 520 acres is outside the
restricted zone, we do not agree that the land is avail-
able.11 A substantial part of the 520 acres is occupied
by:
(1) a sewage disposal site and treatment plant;
(2) a horseracing track and environs;
(3) a business park containing buildings suitable
only for industrial use;
10 We note that obscenity is not at issue in this case. The City
asks us to take notice of a state superior court decision in City of
Renton v. Playtime Theaters, No. 82-2-02344-2 (Superior Court,
King County, Washington, March 9, 1984), in which an advisory
jury ruled that four out of ten movies shown by Playtime are
obscene. The City did not argue before the district court that
Playtime's movies were obscene. We would not reach the issue
in any event since this case does not involve the enforcement of
an anti-obscenity statute.
11 Although this circuit has not considered what "available"
means in this context, we draw support from the Court's statement
in Young that "[t]he situation would be quite different if the
ordinance had the effect of suppressing, or greatly restricting
access to, lawful speech." 427 U.S. at 71 n. 35, 96 S.Ct. at 2453
n. 35. See Basiardanes v. City of Galveston, 682 F.2d 1203, 1214
(5th Cir. 1982) (expanding on footnote in Young, court noted
that permitted locations were "among warehouses, shipyards, un-
developed areas, and swamps.").
14a
(4) a warehouse and manufacturing facilities;
(5) a Mobil Oil tank farm;and
(6) a fully-developed shopping center.
Limiting adult theater uses to these areas is a sub
stantial restriction on speech. Thus, the Renton ordi-
nance, although patterned after the Detroit zoning or-
dinance upheld in Young v. American Mini Theaters,
Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976),
is quite different in its effect. The Detroit ordinance
prohibited the location of an adult theater within 1,000
feet of another adult theater or other use having similar
deleterious effects on neighborhoods, or within 500 feet
of a residential area. There was no showing in Young
that the ordinance seriously limited the number of sites
available for adult theaters. The Renton ordinance's
prohibition against adult theaters within 1,000 feet of
schools, parks, churches, and residential areas would re-
sult in a substantial restriction on this activity.
The Supreme Court developed a useful test to measure
a challenged regulation affecting speech in United States
v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20
L.Ed.2d 672 (1968), cited with approval in Schad, 452
U.S. at 69 n. 7, 101 S.Ct. at 2183 n. 7. Under this test,
a regulation is constitutional only if (1) it is within
the constitutional power of the government; (2) it fur-
thers an important or substantial governmental interest;
(3) the governmental interest is unrelated to the sup-
pression of free speech; and (4) the incidental restric-
tion on first amendment freedom is no greater than es-
ential to further that interest. O'Brien, 391 U.S. at 377,
88 S.Ct. at 1679. Here, Renton bears the burden of prov-
ing that the elements of this test are satisfied. See First
National Bank v. Bellotti, 435 U.S. 765, 786, 98 S.Ct.
1407, 1421, 55 L.Ed.2d 707 (1978).
15a
IV
STANDARD OF REVIEW
The parties stipulated that the record developed at the
preliminary injunction stage would serve as the record
upon which the court could decide the permanent injunc-
tion. The parties in effect submitted the case for trial
upon an agreed record, the district court resolving any dis-
puted issues of fact presented by the record.12 We review
these factual determinations under a clearly erroneous
standard. We do not, however, apply a clearly erroneous
standard of review to the district court's findings on the
O'Brien factors because our recent decision in United
States v. McCanney, 728 F.2d 1195 (9th Cir.) (en bane),
cert. denied, U.S. , 105 S.Ct. 101, 83 L.Ed.2d
46 (1984), and the Supreme Court's recent decision in
Bose Corp. v. Consumers Union of United States, Inc.,
U.S. , 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984),
require us to review them de novo.
12 In Starsky v. Williams, 512 F.2d 109 (9th Cir. 1975), we
recognized,
"[W]hile summary judgment cannot be granted where there
are questions of fact to be disposed of, even by consent of all
concerned, there is no reason why parties cannot agree to try
a case upon affidavits, admissions and agreed documents. In
effect, that is what was done here. No objection whatever was
made at the time of submission that there were questions of
fact which could not be decided upon the evidence before the
trial court."
Id. at 113 (quoting Gillespie v. Norris, 231 F.2d 881, 883-84 (9th
Cir. 1956)). This statement applies here as well.
Playtime asserts that summary judgment was improper because
it relied on the district court's findings on the preliminary injunc-
tion in entering into the stipulation. Thus, Playtime argues, when
the district court inexplicably changed its findings of fact, it created
material disputed issues of fact that would make summary judg-
ment improper. Although we sympathize with Playtime's argument,
we agree with Renton. Playtime made a tactical choice not to sub-
mit further documentation or testimony and cannot now complain.
l6a
In McConney we held that mixed questions of fact and
law are subject to de novo review when they require us
"to exercise judgment about the values that animate legal
principles . . . ." 728 F.2d at 1202. In no area of law
is the consideration of the values behind legal principles
more important than when state action threatens to in-
fringe on activity protected by the first amendment.
In Bose Corp., the Supreme Court held that a trial
court's finding as to "actual malice" in a libel case was
subject to de novo review. The question as framed by
the Court was "whether the evidence in the record . . .
is of the convincing clarity required to strip the utter-
ance of First Amendment protection. . . . Judges . . .
must independently decide whether the evidence in the
record is sufficient to cross the constitutional threshold.
. . ." 104 S.Ct. at 1965. The Court recognized that it
"has regularly conducted an independent review of the
record both to be sure that the speech in question actually
falls within the protected category and to confine the
perimeters of any unprotected category within accept-
ably narrow limits in an effort to ensure that protected
expression will not be inhibited." Id. 104 S.Ct. at 1962.
We have a similar duty in the case at hand.l'3
V
APPLICATION OF THE O'BRIEN FACTORS
A. Renton Has Not Shown a Substantial Govern-
mental Interest.
The record presented by Renton to support its as-
serted interest in enacting the zoning ordinance is very
i3 We will not deal with the first factor of United States v.
O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672
(1968), in detail, for all agree that such a zoning ordinance is with-
in the constitutional power of the government. See Berman v.
Parker, 348 U.S. 26, 32-33, 75 S.Ct. 98, 102-103, 99 L.Ed. 27
(1954) ; see also Schad v. Borough of Mount Ephraim, 452 U.S.
61, 68, 101 S.Ct. 2176, 2182, 68 L.Ed.2d 671 (1981).
17a
thin. The ordinance itself contains only conclusory state-
ments. No record of the public hearing was made or
preserved. City officials who attended testified that the
hearing was held, but said little else. To uphold the sub-
stantiality of the governmental interest, the district court
had to justify Renton's reliance on the experiences of
other towns and cities, particularly Detroit and Seattle,
citing the Seventh Circuit's decision in Genusa v. City
of Peoria, 619 F.2d 1203 (7th Cir. 1980).
In Genusa, the court relied on Young to uphold a pro-
vision of a zoning ordinance which required, just as the
Detroit ordinance did, the dispersal of adult uses. Id.
at 1211. Although the Renton ordinance purports to copy
Detroit's and Seattle's, it does not solve the same prob-
lem in the same manner. The Detroit ordinance was in-
tended to disperse adult theaters throughout the city so
that no one district would deteriorate due to a concentra-
tion of such theaters. The Seattle ordinance, by contrast,
was intended to concentrate the threaters in one place so
that the whole city would not bear the effects of them.
The Renton ordinance is allegedly aimed at protecting
certain uses—schools, parks, churches and residential
areas—from the perceived unfavorable effects of an adult
theater.
This court and the Supreme Court require Renton to
justify its ordinance in the context of Renton's problems
—not Seattle's or Detroit's problems. In Young, the plu-
rality found that the record disclosed a factual basis for
the council's determinations, 427 U.S. at 71, 96 S.Ct. at
2452, and Justice Powell cited "reports and affidavits
from sociologists and urban planning experts, as well as
some laymen." Id. at 81 n. 4, 96 S.Ct. at 2457-58 n. 4
(Powell, J., concurring)14 Similarly, in the Seattle case,
14 The Court in Schad recognized that ordinances must address
particular problems, citing Justice Powell's concurrence in Young:
Emphasizing that the restriction was tailored to the particular
problem identified by the City Council, [Justice Powell] ac-
18a
the zoning ordinance was the "culmination of a long pe-
riod of study and discussion." Northend Cinema, Inc.
v. City of Seattle, 90 Wash.2d 709, 711, 585 P.2d 1153
(1978), cert. denied, 441 U.S. 945, 99 S.Ct. 2166, 60
L.Ed.2d 1048 (1979). By contrast, in Schad, which in-
validated an ordinance prohibiting live nude dancing in
the town, the Supreme Court stressed that the Borough
had not adequately justified its substantial restriction by
evidence in the record. 452 U.S. at 72, 101 S.Ct. at 2184.
The Court cited by way of contrast the full record made
in Young. Id.
In Kuzinich v. County of Santa Clara, 689 F.2d 1345
(9th Cir. 1982), we reversed summary judgment vali-
dating a zoning ordinance regulating adult theaters and
bookstores in part because of lack of evidence. We said,
"While the ordinance here was said to be copied after
the Detroit ordinance validated in Young, we find very
little evidence bearing on the concentration of adult en-
terprises." Id. at 1348. We found that "[c]onclusions
alone support the thesis that adult bookstores and movie
theaters have any different impact upon traffic and litter-
ing than other kinds of businesses have." Id. Further,
in Ebel v. City of Corona, 698 F.2d 390, 393 (9th Cir.
1983), we remanded for "factual findings on the validity
of the city's assertions of harm." Accord Basiardanes
v. City of Galveston, 682 F.2d 1203, 1215 (5th Cir. 1982)
(contrasting record in Young against "empty" record
before it) ; Fantasy Book Shop, Inc. v. City of Boston,
652 F.2d 1115, 1125 (1st Cir. 1981) (remanding for
factual findings to support city's assertions, stating, "the
government bears the burden of proving some empirical
knowledged that "[t]he case would have present[ed] a dif-
ferent situation had Detroit brought within the ordinance types
of theaters that had not been shown to contribute to the de-
terioration of surrounding areas."
Schad, 452 U.S. at 72 n. 10, 101 S.Ct. at 2184 n. 10 (quoting Young,
427 U.S. at 82, 96 S.Ct. at 2458 (Powell, J., concurring)).
19a
basis for the projections on which it relies.") ; Avalon
Cinema Corp. v. Thompson, 667 F.2d 659, 661-62 (8th
Cir. 1981) (en bane) (contrasting Young and requiring
city to present evidence to justify its restriction) ; Keego
Harbor Co. v. City of Keego Harbor, 657 F.2d 94,' 98
(6th Cir. 1981) (reversing because city's post hoc justi-
fications failed to support ordinance).
As in Kuzinich, we find Renton's justifications conclu-
sory and speculative. Renton has not studied the effects
of adult theaters and applied any such findings to the
particular problems or needs of Renton. The studies
done by Detroit on the problems of concentrating adult
uses are simply not relevant to the concerns of the Ren-
ton ordinance—the proximity of adult theaters to certain
other uses. We do not say that Renton cannot use the
experiences of other cities as part of the relevant evi-
dence upon which to base its actions, but in this case
those experiences simply are not sufficient to sustain Ren-
ton's burden of showing a significant governmental in-
terest.
B. Renton Has Not Proved That The Regulation is
Unrelated to the Suppression of Speech.
Renton must prove that its zoning decision was "mo-
tivated by a desire to further a compelling governmental
interest unrelated to the suppression of free expression."
Tovar v. Billmeyer, 721 F.2d 1260, 1266 (9th Cir. 1983) ;
see also Lydo Enterprises v. City of Las Vegas, 745 F.2d
1211, 1214-1215 (9th Cir. 1984).15 Both the magistrate
and the district court recognized that many of the stated
15 In Lydo Enterprises v. City of Las Vegas, 745 F.2d 1211
(9th Cir. 1984), the court, citing Schad, 452 U.S. at 67-70, 101
S.Ct. at 2181-2184, and O'Brien, 391 U.S. at 377, 88 S.Ct. at 1679,
reaffirmed that an ordinance that restricts free expression must
further "a substantial governmental interest unrelated to the sup-
pression of free expression." 745 F.2d at 1215. In that case, in the
context of a preliminary injunction, the court held that the plain-
tiffs had not developed an adequate record to enjoin enforcement
of the ordinance.
20a
reasons for the ordinance were no more than expressions
of dislike for the subject matter.16 The record before us
raises at least an inference that a motivating factor be-
hind the ordinance was suppression of the content of the
speech as opposed merely to regulating the effects of the
mode of that speech. See Tovar, 721 F.2d at 1266. The
record does not reveal that Renton has rebutted the in-
ference. As discussed above, the City had little empirical
evidence before it to demonstrate the alleged deleterious
effects of adult theaters.
The district court upheld the ordinance on the ground
that Renton's predominate concerns were legitimate. But
that is not the test in this Circuit. Where mixed motives
are apparent, as they are here, Tovar requires that the
court determine whether "a motivating factor in the zon-
ing decision was to restrict plaintiffs' exercise of first
amendment rights." Id. at 1266 (emphasis added) 17
Neither the facts before the Renton City Council nor
those presented to the district court appear to justify
the ordinance's restriction on protected expression. Ren-
ton has not shown that it was not motivated by a desire
to suppress speech based on its content." Given the in-
18 See supra note 3.
17 The Tovar test is consistent with other constitutional cases
regarding land use decisions. See, e.g., Village of Arlington Heights
v. Metropolitan Housing Development Corp., 429 U.S. 252, 266,
97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977) ("[d]etermining whether
invidious discriminatory purpose was a motivating factor demands
a sensitive inquiry into such circumstantial and direct evidence
of intent as may be available,' (emphasis added)).
18 The recent Supreme Court decision in Members of City Coun-
cil v. Taxpayers for Vincent, U.S. —, 104 S.Ct. 2118, 80
L.Ed.2d 772 (1984), upholding an ordinance prohibiting the posting
of signs on public property, lends support to the result we reach
in this case. In Vincent, the ordinance applied to all signs, regard-
less of the content of their message. The court noted there was
"no claim that the ordinance was designed to suppress certain
ideas that the City finds distasteful." Id. 104 S.Ct. at 2126.
21a
ferences raised in the record before us, we remand for
reconsideration, particularly in light of Tovar.
Renton argues, additionally, that even if it has ef-
fectively banned adult theaters, the ordinance is con-
stitutional because similar adult theaters exist in nearby
Seattle. The Supreme Court rejected such an argument
in Schad and we reject it here as well. " 'Wine is not to
have the exercise of his liberty of expression in appro-
priate places abridged on the plea that it may be exer-
cised in some other place.' " Schad, 452 U.S. at 76-77,
101 S.Ct. at 2187 (quoting Schneider v. New Jersey, 308
U.S. 147, 163, 60 S.Ct. 146, 151, 84 L.Ed. 155 (1939) )19
VI
COSTS AND FEES ON SECOND REMOVAL
In number 83-3980 Renton claims it is entitled to fees
under 28 U.S.C. § 1447(c), because the Playtime's second
removal was in bad faith.2° We review the court's finding
19 In view of our holding, we need not address the overbreadth
or vagueness issues raised by Playtime. Playtime also argues that
the fact that Renton's ordinance is directed only at adult theatres
and not other adult uses is a denial of equal protection. We do
not denigrate the validity of this issue, but need not reach it.
ao The district court's ruling was oral and no written opinion or
docket entry was made. Although Fed.R.App.P. 4(a) (2) validates
a notice of appeal filed after announcement of a decision or order,
it contemplates the entry of a judgment under Fed.R.Civ.P. 58, 79.
No such entry was made in this case; thus, under Rule 4(a) (2),
the notice of appeal has no date of entry to which to conform.
Nonetheless we conclude that we have jurisdiction over this
appeal under Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct.
1117, 55 L.Ed.2d 357 (1978). In Bankers Trust, the Supreme Court
held that the parties to an appeal could waive Rule 58's separate
judgment requirement when the district court clearly evidenced its
intent that its order would represent the final decision in the case
and the parties did not object to the absence of a separate judg-
ment. Id. at 387-88, 98 S.Ct. at 1121-22. We find those factors
present here. The remand order was entered in the docket and no
further proceedings could have existed in federal court. Neither
22a
of an absence of bad faith under the clearly erroneous
standard. See Dogherra v. Safeway Stores, Inc., 679 F.2d
1293, 1298 (9th Cir.), cert. denied, 459 U.S. 990, 103
S.Ct. 346, 74 L.Ed.2d 386 (1982).
Renton stresses that this was the second removal pe-
tition, but fails to mention that the first was remanded
because the second step of deciding if the case could be
removed if it had stated a cause of action. The second
removal was on the basis of Renton's amended complaint,
which did state a cause of action. This complaint, how-
ever, sought enforcement of state laws that had been
declared unconstitutional by other courts. Under the cir-
cumstances, the district court did not err in finding no
bad faith.
VII
CONCLUSION
The City failed to sustain its burden of justifying its
ordinance under the test of United States v. O'Brien, 391
U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672
(1968), as applied in similar cases by the Supreme Court
and this court. Accordingly, we reverse and remand case
number 83-3805 for proceedings consistent with this
opinion.
The district court did not clearly err in denying the
City's motion for costs and fees in connection with the
second removal. Accordingly, we affirm in case number
83-3980.
AFFIRMED in part, REVERSED in part, and RE-
MANDED.
party has objected to the lack of a separate judgment here. Al-
though the district court's order in Bankers Trust was contained
in a written opinion, we do not find that fact controlling except
as it bears on the clarity of the court's intent. The transcript of
the hearing on the remand leaves no doubt as to the district court's
intent. Thus, the oral decision was an appealable order.
23a
APPENDIX B
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
No. C82-59M
PLAYTIME THEATRES, INC., et al.,
Plaintiffs,
V.
CITY OF RENTON, et al.,
Defendants.
No. C82-263M
(Remanded)
CITY OF RENTON, et al.,
Defendants.
V.
PLAYTIME THEATRES, INC., et al.,
Plaintiffs,
[Filed Feb. 18, 1983]
ORDER
24a
INTRODUCTION
On January 11, 1983, the Court entered its order ap-
proving and adopting the magistrate's report and recom-
mendation and denying defendants' motions to dismiss
and for summary judgment, and granting preliminary
injunction pendente lite. A separate order was entered
January 11, 1983 approving and adopting the magis-
trate's supplemental report and recommendation and
granting the motion to remand Cause No. C82-263M
to King County Superior Court.
On February 10, 1983, a hearing was had pursuant to
the parties' January 31, 1983 Stipulation and Order
separating damages claims from plaintiffs' prayer for
permanent injunction and submitting the matter to the
Court on the evidence considered by Magistrate Sweigert.
The Court has considered the evidence that was before
the Magistrate, has considered the parties' memoranda,
affidavits and oral arguments. Accordingly, the Court
rules that abstention would be improper and plaintiffs'
prayer for a permanent injunction must be DENIED.
FEDERAL ABSTENTION
The City of Renton argues that the preliminary in-
junction was improvidently granted, that the permanent
injunction must be denied, and that this Court must
abstain and dismiss this action for lack of jurisdiction.
Renton supplements its earlier argument and authori-
ties on this issue with Mio f sky v. Superior Court of State
of California, et al., in No. 80-4589, slip op. (9th Cir.
Jan. 3, 1983). Renton argues that Mio f sky aids the
resolution of the abstention issue herein by refining the
meaning of the term "vital state interest" without giv-
ing it such overbreadth to deprive the federal court of all
of its 42 U.S.C. § 1983 jurisdiction. Renton asserts that
the city's interest in establishing zones and setting set
backs is a "vital state interest" of the sort that requires
25a
the Court to abstain from acting in the case at bar pend-
ing the outcome in State Court on the Complaint for
Declaratory Judgment. The Miofsky court distinguished
the cases cited for abstention:
In each of these cases, the state or an agent of the
state was a party to the proceeding deemed insu-
lated from federal court intervention. In addition,
each of these civil suits bore similarities to criminal
proceedings or otherwise implicated state interests
vital to the operation of state government.
Id. at 7. The context of the Miofsky suit was a complaint
that state court proceedings violated plaintiff's federally
protected rights under Section 1983.
Miofsky does little to refine the term "vital state inter-
ests" beyond reasoning that abstention is improper in a
Section 1983 civil rights action. The Court is unper-
suaded that federal abstention would be proper here.
"The state judicial proceeding in this case is purely civil
in nature, regardless of the importance of the state
policies which the city asserts." Magistrate's Supple-
mental Report and Recommendation at 5. Although
zoning, which is the underlying subject matter of the
declaratory judgment's suit in state court, may be an
important function performed by a city, this alone does
not prevent a federal court from scrutinizing the consti-
tutionality of the city's actions. The Court concludes that
the state court action is no bar to continue jurisdiction
over plaintiff's suit for injunctive relief.
PERMANENT INJUNCTION
I.
In determining the propriety of a permanent injunc-
tion, the Court must first find that there is a threatened
violation of a legal right which would produce irrepara-
ble harm and for which any other remedy would be
26a
insufficient. The hardship must tip in favor of the
plaintiff.
Renton's Ordinance, really a series of three ordinances:
3526, 3629, and 3637, is an attempt to preclude the opera-
tion of "adult motion picture theatres" in zones which
are within 1,000 feet from certain other specified uses
or zones. "Adult motion picture theatres" refers to those
theatres exhibiting films characterized by an emphasis on
matter relating to "specified sexual activities" or "speci-
fied anatomical areas" as a "continuing course of con-
duct . . . in a manner which appeals to a prurient inter-
est." The subject matter of the films is given a detailed
definition, but the "continuing course of conduct" lan-
guage is not. The ordinance in its essential features is
virtually identical to the ordinances in Young v. Ameri-
can Mini Theatres, 427 U.S. 50 (1976) and Northend
Cinema, Inc. v. City of Seattle, 90 Wash. 2d 709, 585
P.2d 1153 (1978) except that the word "used" in de-
scribing "adult motion picture theatre" is defined with
the "continuing course of conduct" language.
A first amendment interest is affected. The ordinance
deals not with obscene material, but sexually explicit
material. It is concerned with the exhibition of films in-
side the theatre and not with "pandering," "the business
of purveying textual or graphic matter openly advertised
to appeal to the erotic interest of their customers."
Pinkus v. United States, 436 U.S. 293, 303 (1978).
II.
Since expression protected by the first amendment is
the subject of Renton's ordinance, the next inquiry is
whether there is actual intrusion upon this first amend-
ment interest and if so, the nature of the intrusion.
There is some intrusion: in certain areas of Renton,
films described in the ordinance may not be shown as a
continuing course of conduct in a manner which appeals
27a
to a prurient interest. This intrusion is not substantial
under the circumstances for several reasons. Renton's
restrictions are slightly narrower than those in the cases
cited supra, because of the "continuing course of conduct"
language. No theatre had to be closed under Renton's
ordinance, for no theatres were operating or were con-
sidering operating when it was enacted. There is no
content limitation on the creators of adult movies. The
520 acres of land in all stages of development available
for location adult theatres (David R. Clemens Affidavit of
May 27, 1982, unrebutted, and his June 23, 1982 testi-
mony at 36-41) belies there being substantial intrusion
upon plaintiffs' first amendment right. The real question
is whether in spite of the acreage available to plaintiffs
to locate a theatre, the economic impact results in a sub-
stantial, impermissible effect upon first amendment
rights.
Young notes that "the inquiry for first amendment
purposes is not concerned with economic impact; rather,
it looks only to the effect of this ordinance upon freedom
of expression." 427 U.S. at 78 (Powell, J., concurring).
The effect of Renton's ordinance is that plaintiffs or
others wishing to exhibit adult film fare and not having
a theatre already built and ready for occupancy, must
consider whether demand is such that construction of a
theatre is feasible. This impact is no different than that
upon other land users who must work with what land is
available to them in the city. With a large percentage of
land within the city available to plaintiffs, the financial
feasibility of the various locations is for them to analyze.
To conclude otherwise would be to place a burden on the
city that Constitutional analysis does not require. More-
over, the message of no individual or group has been
silenced. The number of such establishments has not
been reduced because none existed and none were at-
tempting to establish themselves in Renton prior to the
ordinance. The ordinance merely specifies where adult
28a
theatres may not locate and in doing so, stifles no ex-
pression. See, Young, 427 U.S. at 81, n.4 (Powell, J.,
concurring).
The Court concludes that there is not a substantial
intrusion upon first amendment interests. Plaintiffs are
not virtually excluded from Renton by being confined to
the "most unattractive, inaccessible, and inconvenient"
areas. But see Basiardanes v. City of Galveston, 682
F.2d 1203, 1214 (5th Cir. 1983) Renton's exhibits, affi-
davits, memoranda, and oral argument persuade the
Court that acreage in all stages of development from raw
land to developed, industrial, warehouse, office, and shop-
ping space that is criss-crossed by freeways, highways,
and roads cannot be so characterized. Significant cited
cases to the contrary are distinguishable: Schad v. Bor-
ough of Mount Ephraim, 452 U.S. 61 (1981) (live en-
tertainment including nude dancing was not a permitted
use, and concerns such as trash, police protection, and
medical facilities were not sufficient justifications for the
exclusion). Basiardanes (available sites much less de-
sirable than in Renton, and the zoning ordinance was
passed after the theatre was leased for showing adult
films) ; Avalon Cinema Corporation v. Thompson, 667
F.2d 659 (8th Cir. 1981) (zoning ordinance enacted
after suggested adult use) ; Keego Harbor Co. v. of Keego
Harbor, 657 F.2d 94 (6th Cir. 1981) [sic] (no location
within city that was not within 500 feet of a bar or other
regulated use). Ample, accessible real estate is available
for the location of adult theatres in Renton.
III.
The insubstantial intrusion upon first amendment in-
terests by Renton's ordinance must be considered against
the governmental interest which led to its enactment.
Under the four-part test of United States v. O'Brien, 391
U.S. 367, 377 (1968), a governmental regulation is justi-
29a
fled despite incidental impact upon first amendment
interests
1. If it is within the constitutional power of the
government,
2. If it furthers an important or substantial govern-
mental interest,
3. If the governmental interest is unrelated to the
suppression of free expression, and
4. If the governmental restriction is no greater than
necessary for the furtherance of that interest.
As in Young, the first two elements of the test are
met. The ordinance was within the City of Renton's
power to enact. Nor is there any doubt that the interests
sought to be furthered by this ordinance are important
and substantial.
Without stable neighborhoods, both residential and
commercial, large sections of a modern city quickly
can deteriorate into an urban jungle with tragic
consequences to social, environmental, and economic
values. While I agree with respondents that no
aspect of the police power enjoys immunity from
searching constitutional scrutiny, it also is unde-
niable that zoning, when used to preserve the charac-
ter of specific areas of a city, is perhaps "the most
essential function performed by local government,
for it is one of the primary means by which we
protect that sometimes difficult to define concept of
quality of life." Village of Belle Terre v. Boraas,
416 U.S., at 13 (Marshall, J., dissenting).
Young, 427 U.S. at 80 (Powell, J., concurring). The
critical inquiries are whether these interests are fur-
thered by the ordinance and whether the governmental
interest is unrelated to the suppression of free expression,
element three.
30a
Renton's interests, articulated in the ordinance, "in
protecting and preserving the quality of its neighbor-
hoods, commercial districts, and the quality of urban life
through effective land use planning," are furthered by the
ordinance. The ordinance states in item 14, p. 3, Nos.
3629 and 3637:
14. Experience in numerous other cities, including
Seattle, Tacoma and Detroit, Michigan, has shown
that location of adult entertainment land uses de-
grade the quality of the areas of the City in which
they are located and cause a blighting effect upon
the city. The skid row [sic] effect, which is evident
in certain parts of Seattle and other cities, will have
a significantly larger affect upon the City of Renton
than other major cities due to the relative sizes of
the cities.
There was no evidence adduced to show that the sec-
ondary effects of adult land uses would be different or
lesser in Renton than in Seattle, Tacoma, or Detroit.
Certainly, Renton must justify its ordinance, but in so
doing, experiences of other cities and towns must consti-
tute some evidence to the legislative body considering
courses of action. Genusa v. City of Peoria, 619 F.2d
1203, 1211 (7th ,Cir. 1980). If the goal of preservation
of the quality of urban life is to have any meaning, a
city need not await deterioration in order to act. Id.
The observed effects in nearby cities provides persuasive
circumstantial evidence of the undesirable secondary ef-
fects Renton seeks to preclude from within 1,000 feet of
residential zones, schools, religious facilities, and public
parks. Although the effects in other cities are starkly
shown when adult uses are congregated, Renton need not
await such congregation. Similarly, no negative infer-
ence can be drawn from Renton's choosing to address only
one form of "adult" usage. It's [sic] effort would have
been bolstered by considering other "adult" uses in view
of other cities' experiences, but inclusion of these other
31a
"adult" uses is not mandatory. The city being aware
that it is treading in a delicate area between valued
interests might understandably be loath to tackle the
description, restriction, and rationale of more than one
such usage at a time. "[T]he city must be allowed a
reasonable opportunity to experiment with solutions to
admittedly serious problems." Young, 427 U.S. at 71.
The governmental interest is unrelated to the suppres-
sion of free expression, and the third element is satisfied.
Concern with preventing undesirable secondary effects is
not the kind of apprehension aimed at regulating the con-
tent of an adult theatre's exhibitions. Rather, it is a per-
missible classification based on deleterious secondary ef-
fects. Young, 427 U.S. at 70, 71.
Renton solicited testimony through its City Council
and the Council's Planning and. Development Committee.
It summarized some ideas put forth at those public
meetings in its ordinance. Predictably, some citizens ex-
pressed concerns reflecting their values which might be
impermissible bases for justification of restrictions af-
fecting first amendment interests. See, e.g., Erznoznik
v. City of Jacksonville, 422 U.S. 205 (1975) (overbroad
effort to protect privacy interests of certain citizens from
"offensive" speech—nude movie fare visible from public
street). The inclusion of these statements should not
negate the legitimate, predominate concerns of the City
Council nor lessen the value of the circumstantial evi-
dence of adult land uses' effects in nearby cities. Argu-
ably, some of the statements may be construed as charac-
terizations of the community's quality of life that is
presently sought to be preserved. Citizens' judgments as
to a city's quality of life is [sic] necessarily subjective.
It is necessary to separate these subjective characteriza-
tions of the city's quality of life from the goals of protecting
and preserving it and the evidence that the means will
further the end. Renton could have written its ordinance
32a
in such a way as to better distinguish these aspects of
the problem, but this is not a material consideration.
Finally, part four of the O'Brien test is satisfied for
the restriction is no greater than necessary to further the
governmental interest. The 1,000-foot aspect of the re-
striction does not preclude adult theatres from locating
anywhere in the city as in Keego Harbor. Renton's ordi-
nance is similar to others that have been upheld except
for the "continuing course of conduct" language discussed
earlier which has some narrowing effect.
Renton's effort to preserve the quality of its urban life
by enacting an ordinance which regulates adult theatre
location is minimally intrusive of a particular category
of protected expression described in Young as being of "a
lesser magnitude than the interest in untrammeled politi-
cal debate." 427 U.S. at 70. Renton's effort under the
circumstances is not unconstitutional under the first
amendment. Injunctive relief from enforcement of the
ordinance would be improper. NOW, THEREFORE,
For the foregoing reasons, the Court having reconsid-
ered its de novo review which led to the entry of the
preliminary injunction, the order granting preliminary
injunction must be vacated as improvidently granted,
and plaintiffs' prayer for permanent injunction against
enforcement of the ordinance is DENIED. Accordingly,
the City of Renton's Motion to Dismiss for Lack of Juris-
diction is DENIED, and its Motion for Summary Judg-
ment is GRANTED.
SO ORDERED.
DATED this 17th day of February, 1983.
/s/ Walter T. McGovern
WALTER T. MCGOVERN
Chief
United States District Judge
33a
APPENDIX C
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF WASHINGTON
Civil Action Docket No. C82-59M
PLAYTIME THEATRES, INC., et al.
vs.
CITY OF RENTON, et al.
JUDGMENT
This action came on for (hearing) before the court,
United States District Judge Walter T. McGovern pre-
siding. The issues having been duly (heard) and a de-
cision having been duly rendered, it is ordered and ad-
judged that plaintiffs' prayer for permanent injunction
is DENIED, City of Renton's motion to dismiss for lack
of jurisdiction is DENIED and City of Renton's motion
for summary judgment is GRANTED.
[Filed Feb. 18, 1983]
Dated at: Seattle, Washington
Date: 18 February 1983
/s/ [Illegible]
For the Court
34a
APPENDIX D
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
No. C82-59M
PLAYTIME THEATERS, INC.,
a Washington corporation, et al.,
v.
Plaintiffs,
THE CITY OF RENTON, et al.,
Defendants.
[Filed Apr. 29, 1983]
ORDER DENYING PLAINTIFF'S MOTIONS TO
ALTER AND AMEND JUDGMENT AND FOR
STAY PENDING APPEAL
THE COURT having considered all the material rele-
vant to Plaintiff's motions to alter and amend judgment
and for stay pending appeal, including the parties' briefs,
concludes that its judgment should remain as earlier en-
tered. NOW, THEREFORE,
IT IS HEREBY ORDERED, ADJUDGED and DE-
CREED that Plaintiff's Motion to Alter and Amend
Judgment is DENIED, and its Motion for a Stay Pend-
ing Appeal is DENIED.
DATED this 29th day of April, 1983.
/s/ Walter T. McGovern
WALTER T. MCGOVERN
Chief
United States District Judge
35a
APPENDIX E
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
Case No. C82-59M
PLAYTIME THEATRES, INC., et al.,
v.
Plaintiffs,
CITY OF RENTON, et al.,
Defendants.
Case No. C82-263M
CITY OF RENTON, et al.,
V.
Plaintiffs,
PLAYTIME THEATRES, INC., et al.,
Defendants.
[Filed Jan. 13, 1983]
ORDER DENYING DEFENDANTS' MOTIONS TO
DISMISS AND FOR SUMMARY JUDGMENT AND
GRANTING PRELIMINARY INJUNCTION
PENDENTE LITE
The Court, having considered plaintiffs' motion for
preliminary injunction, defendants' renewed motion to
dismiss and motion for summary judgment, the Report
and Recommendation of United States Magistrate Philip
K. Sweigert, and the balance of the records and files
herein, does hereby find and ORDER:
(1) Said Report and Recommendation is hereby ap-
proved and adopted;
36a
(2) Defendants' motion for summary judgment and
renewed motion to dismiss and [sic] hereby DENIED;
(3) Defendant City of Renton, its officers, agents,
servants, employees, successors, attorneys, and all those
in active concert or participation with them, are en-
joined from enforcing City of Renton Ordinance No.
3637 against plaintiffs, said preliminary injunction to
remain in effect pending a decision by this Court on
the merits and until further order of the Court; and,
(4) The Clerk of Court is to direct copies of this Or-
der to all counsel of record and to Magistrate Sweigert.
DATED this 11th day of January, 1983.
/s/ Walter T. McGovern
Chief
United States District Judge
37a
APPENDIX F
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
Case No. C82-59M
PLAYTIME THEATRES, INC., et al.,
Plaintiffs,
V.
CITY OF RENTON, et al.,
Defendants.
Case No. C82-263M
CITY OF RENTON, et al.,
Plaintiffs,
V.
PLAYTIME THEATRES, INC., et al.,
Defendants.
REPORT AND RECOMMENDATION
INTRODUCTION AND SUMMARY CONCLUSION
On February 23, 1982, the Court, approving and adopt-
ing a Report and Recommendation filed February 3,
1982 (Dkt. #22), entered an order denying plaintiffs'
motion for temporary restraining order (Dkt. #39).
38a
Three motions are presently before the Court: First,
plaintiffs' motion for preliminary injunction, second, de-
fendants' renewed motion to dismiss, and, third, defend-
ants' motion for summary judgment. At a hearing con-
ducted on June 23, 1982, the undersigned heard oral
testimony, received documentary evidence, and heard the
arguments of counsel with respect to all three motions.
Based thereon and upon the affidavits and the balance
of the record before me, and for the reasons set forth
herein in some detail, I conclude that plaintiffs have
established both a clear likelihood of success on the merits
and irreparable injury. I recommend that the Court
enjoin enforcement of Renton's zoning ordinance dealing
with adult theatres. I also, of course, recommend denial
of defendants' dismissal and summary judgment motions.
THE RECORD BEFORE THE COURT
(A) The Ordinances.
In April of 1981, the City of Renton enacted Ordinance
No. 3526 providing that adult motion picture theatres as
defined therein were prohibited:
(1) Within or within 1,000 feet of any residen-
tial zone or single family or multiple family use;
(2) Within one mile of any public or private
school;
(3) Within 1,000 feet of any church or other
religious facility or institution; and,
(4) Within 1,000 feet of any public park or P-I
zone.
Early in 1982, plaintiffs acquired two existing theatre
buildings in the City of Renton. It was their intention to
show feature length sexually explicit adult films in one of
them. The theatre buildings, however, were located in an
area proscribed by Ordinance No. 3526, prompting plain-
39a
tiffs to commence the present action seeking damages and
an injunction prohibiting enforcement of the ordinance on
due process, First Amendment, and equal protection
grounds. Their principle contentions are that the City
of Renton failed to factually support a sufficient govern-
mental interest justifying intrusion upon protected speech
and that the ordinance was not a mere locational restric-
tion but a virtual prohibition of adult theatres in the City
of Renton.
While the case was pending, more specifically in May,
1982, defendant City of Renton enacted Ordinance No.
3629, which amended Ordinance No. 3526. The principle
changes were:
(1) The amending ordinance contained an elab-
orate statement of the reasons for enacting both Or-
dinance No. 3526 and Ordinance No. 3629;
(2) A definition of the word "used" was added;
(3) Violation of the use provisions of the ordi-
nance was declared to be a nuisance per se to be
abated civilly and not by criminal enforcement;
(4) The required distance of an adult theatre from
a school was reduced from one mile to 1,000 feet;
and,
(5) A severability clause was added.
The amending ordinance, No. 3629, also contained an
emergency clause and was to be effective as of the date
of its passage and approval by the mayor, May 3, 1982.
On June 14, 1982, defendants passed yet a third ordi-
nance, No. 3637, which was identical to Ordinance No.
3629 in all respects except that the emergency clause was
deleted and the ordinance was to become effective thirty
days following its publication.
While plaintiffs argue that the only ordinance before
the Court is No. 3526, they are clearly incorrect. Their
40a
request for injunctive relief obligates the Court to con-
sider any and all changes in the applicable zoning scheme
to the date of its ruling.
(B) Events Leading to Passage of the Ordinances.
The City of Renton presently has no theatres which
exhibit sexually explicit adult films. It appears that in
May of 1980, at the suggestion of a City of Renton hear-
ing examiner, the mayor suggested to the City Council
that they consider the advisability of passing zoning leg-
islation dealing with adult entertainment uses, specifi-
cally "adult theatre[s], bookstore[s], film and/or novelty
shop[s]" prior to the time any such businesses might seek
to locate in the city. The mayor's memorandum suggested
that some cities had experienced difficulties in "re-doing"
their zoning ordinances once such uses were established
in the community.
On March 5, 1981, the Planning and Developing Com-
mittee of the Council held a meeting for the purpose of
taking public testimony on the subject. While there is no
record of that meeting, Mr. Clemens, then the City's act-
ing Planning Director who was present at the meeting,
testified that the Superintendent of Schools, and the Presi-
dent of the Renton Chamber of Commerce spoke to con-
cerns about adverse affects which adult entertainment
uses would have upon the economic health of Renton's
businesses and upon children going to and from school.
He also testified that other citizens spoke generally about
the adverse affects of such uses. Mr. Clemens further
testified that he and his department reviewed the deci-
sions of the Washington State Supreme 'Court in North-
end Cinemas v. Seattle, 90 Wn. 2d, 709, and of the United
States Supreme Court in Young v. American Mini Thea-
tres, 427 U.S. 50 (1976), and presented the information
from their review to the Planning and Development Com-
mittee. He indicated generally that review of those cases
41a
indicated that adult entertainment uses tend to decrease
proprty values and increase crime.
On April 6, 1981, the Planning and Development Com-
mittee of the Council recommended that an appropriate
zoning ordinance be written to reflect the following condi-
tions:
"(a) No adult motion picture theatre will be al-
lowed in an area used or zoned residential or in any
P-I public use area.
"(b) A suitable buffer strip of 1,000 feet from
any residential or P-I area also be a banned area;
"(c) The area enclosed in a one mile radius of any
school (this is the minimum student walking dis-
tance) would also be a banned area."
Ordinance No. 3526 was the result.
(C) The Effect of the Ordinance.
While the record would indicate that there are some
200 acres of property within the city limits of Renton
where an adult theatre might conceivably locate, the testi-
mony and affidavits show that, with but one exception,
none of that property would be suitable for the location
of a theatre. The area is largely undeveloped and what
development there is is entirely unsuitable for retail
purposes in general and for theatre purposes in partic-
ular. The developed areas include:
(1) A Metro sewage disposal site and treatment
plant;
(2) Longacres Racetrack and environs;
(3) A business park containing buildings suitable
only for industrial use;
(4) Warehouse and manufacturing facilities;
42a
(5) A Mobile Oil tank farm; and,
(6) A fully developed shopping center.
The entire area potentially available for the location
of an adult theatre is far distant from the downtown
business district, not well lit during night time hours,
and also generally devoid of pedestrian and vehicular
traffic during such hours.
The two sites which are potentially suitable are fully
developed and occupied by fast food restaurants.
DISCUSSION
As indicated in my prior Report and Recommendation,
the party requesting injunctive relief must clearly show
either: (1) probable success on the merits and possible
irreparable injury, or (2) sufficient serious questions as
to the merits to make them a fair ground for litigation
and a balance of hardship tipping decidedly in favor of
the party seeking relief. Los Angeles Memorial Coliseum
Commission v. N.F.L., 634 F. 2d 1197 (9th CCir. 1980).
I conclude that plaintiffs meet the foregoing test.
(1) Probability of Success on the Merits.
A city's authority to zone is a well recognized aspect
of the police power. But when a zoning ordinance in-
fringes upon speech protected by the First Amendment,
it must be narrowly drawn to further a substantial gov-
ernment interest. Schad v. Borough of Mt. Ephraim, 452
U.S. 61 (1981) ; Kuzinich v. County of Santa Clara,
F. 2d , No. 81-4460 Ninth Circuit slip op. October 12,
1982. The City of Renton's zoning ordinance relating to
adult theatres plainly implicates First Amendment rights.
It is not limited to motion picture theatres catering to
those with an appetite for obscene films falling outside
the protections of the First Amendment, Miller v. Cali-
fornia, 413 U.S. 15 (1973). Rather, patterned upon the
43a
ordinance approved in Young v. American Mini Theatres,
427 U.S. 50 (1976), it regulates sexually explicit but
nonobscene films as well.
Defendant City of Renton contends, however, that no
First Amendment rights are involved because the ordi-
nance only regulates the time, place, and manner of the
operation of adult theatres. It relies on American Mini
Theatres, supra. However, I believe the ordinance in
American Mini Theatres is clearly distinguishable. The
ordinance in the instant case, for all practical purposes,
excludes adult theatres from the City of Renton and there-
fore greatly restricts access to lawful speech. The ordi-
nance approved in American Mini Theatres had no such
effect.
Defendants contend that the City has provided an
area within which adult theatres may locate. However,
while in theory such area is available, in fact, the area
is entirely unsuited to movie theatre use. Restricting adult
theatres to the most unattractive, inaccessable, and incon-
venient areas of the city has the effect of suppressing or
greatly restricting access to lawful speech. American
Mini Theatres, supra, 427 U.S. at 71 n. 35. See Basi-
ardanes v. City of Galveston, 682 F. 2d 1203 (5th Cir.
1982) ; Avalon Cinema Corporation v. Thompson, 667
F. 2d 659 (18th Cir. 1981) ; Keego Harbor Co. v. City of
Keego Harbor, 657 F. 2d 94 (6th Cir. 1981) ; Alexander
v. City of Minneapolis, 531 F. Supp. 1162 (N.D. Minn.
1982) ; Purple Onion, Inc. v. Jackson, 511 F. Supp. 1207
(N.D. Ga. 1981) ; Bayside Enterprises, Inc. v. Carson,
450 F. Supp. 696 (M.D. Fla. 1978) ; E & B Enterprises
v. City of University Park, 449 F. Supp. 695 (N.D. Tex.
1977) ; cf. Deerfield Medical Center v. City of Deerfield
Beach, 661 F. 2d 328 (5th Cir. 1981).
Because the Renton ordinance drastically impairs the
availability in Renton of films protected for adult view-
ing by the First Amendment, it must be reviewed under
the stringent standards of Schad, supra. Schad directs
44a
the court to examine the strength and legitimacy of the
governmental interest behind the ordinance and the pre-
cision with which it is drawn. Unless the governmental
interest is significant and is advanced without undue re-
straint on speech, the ordinance is invalid. Schad, 452
U.S. at 70.
The City of Renton has asserted that it has a substan-
tial governmental interest in zoning restrictions which
will prevent deterioration of its neighborhoods and its
downtown areas. But it is not sufficient to assert such
interest. The City must establish a factual basis for its
asserted reasons and that it considered those facts in
passing the ordinance. Those reasons must be unrelated
to the suppression of free expression. United States v.
O'Brien, 391 U.S. 367 (1968) ; Kuzinich v. County of
Santa Clara, supra.
Many of the conclusory statements of the reasons for
enacting the Renton ordinances reflect simple distaste for
adult theatres because of the content of the films shown.
Those statements directed at legitimate fears such as pre-
vention of crime and deterioration of business and resi-
dential neighborhoods are based principally upon the
Planning Departments review of other court cases in
which zoning legislation regulating the location of adult
businesses has been approved. The City had little or no
empirical evidence before it when the initial ordinance
was passed. More is required. Avalon Cinema Corpora-
tion v. Thompson, supra; Keego Harbor Co. v. City of
Keego Harbor, supra; Basiardanes v. City of Galveston,
supra. I conclude that the manner in which the ordinance
was enacted, its narrow focus on adult theatres to the
exclusion of other adult entertainment uses which would
presumably contribute to the same concerns, and the fact
that most of the findings set forth in the amendatory
ordinance reflect citizen distaste for adult theatres be-
cause of the film fare shown, suggests an improper mo-
tive.
45a
Even assuming that the City has established a sub-
stantial governmental interest, however, the ordinance
will not pass constitutional muster. The ordinance must
be narrowly drawn to serve that interest with only a
minimum intrusion upon First Amendment freedoms.
Schad, supra. Here the intrusion upon First Amendment
expression is not minimal. Adult theatres are, for all
practical purposes, excluded from the City of Renton. The
ordinance constitutes a prior restraint on speech and
should be held to be unconstitutional.
(2) Irreparable Injury.
Irreparable injury is clear. Plaintiffs may not exhibit
sexually explicit adult films without being subjected to
civil abatement proceedings. The loss of First Amend-
ment freedoms for even minimal periods of time unques-
tionably constitutes irreparable injury in the context of
a suit for injunctive relief. Elrod v. Burns, 427 U.S.
373 (1976) ; Deerfield Medical Center v. City of Deer-
field Beach, supra; Citizens for a Better Environment v.
City of Park Ridge, 567 F. 2d 689 (7th Cir. 1975).
I recommend that the Court enjoin enforcement of City
of Renton Ordinance No. 3637 pending disposition on the
merits. A proposed form of Order accompanies this Re-
port and Recommendation.
DATED this 5th day of November, 1982.
/S/ PHILIP K. SWEIGERT
United States Magistrate
46a
APPENDIX G
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
No. C82-59M
PLAYTIME THEATRES, INC.,
a Washington corporation,
and
KUKIO BAY PROPERTIES, INC.,
a Washington corporation,
Plaintiffs,
V.
THE CITY OF RENTON, et al.,
Defendants.
[Filed Feb. 23, 1982]
ORDER
THIS MATTER came on to be heard before the under-
signed judge of the above-entitled Court upon plaintiffs'
objections to the February 3, 1982 Report and Recom-
mendation of United States Magistrate Philip K. Sweigert
in the above-entitled cause. That Report and Recommen-
dation is on file herein.
This Order is based upon the complete record and files
herein, including but not being limited to the affidavits
of Gary F. Kohlwes, David R. Clemens and Jack R.
Burns, together with a transcript of the testimony of
David R. Clemens produced before said U.S. Magistrate
on January 29, 1982.
47a
Having considered de novo each and all of the fore-
going, together with plaintiff's Motion for a Temporary
Restraining Order, the response thereto and the Reports
and Recommendation of the United States Magistrate,
now, therefore, it is hereby ORDERED
(1) Said Report and Recommendation is hereby ap-
proved and adopted;
(2) Plaintiffs' Motion for Temporary Restraining Or-
der is hereby DENIED; and,
(3) The Clerk is to direct copies of this Order to all
counsel of record and to Magistrate Sweigert.
DATED this 23rd day of February, 1982.
/s/ Walter T. McGovern
WALTER T. MCGOVERN
Chief
United States District Judge
48a
APPENDIX H
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
No. C82-59M
PLAYTIME THEATRES, INC., et al.
V.
Plaintiffs,
THE CITY OF RENTON, et al.,
Defendants.
[Filed Feb. 23, 1982]
JUDGMENT
This matter having come on for consideration before
the Court, Honorable Walter T. McGovern, Chief United
States District Judge, presiding, and the issues having
been duly considered and a decision having been duly
rendered, adopting and approving report and recommen-
dation of the Magistrate and denying plaintiffs' motion
for Temporary Restraining Order,
IT IS HEREBY ORDERED AND ADJUDGED, that
plaintiffs' motion for a Temporary Restraining Order is
hereby DENIED.
DATED this 23rd day of February, 1982.
/s/ John A. McLellan
Deputy
United States District Clerk
49a
APPENDIX I
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
Case No. C82-59M
PLAYTIME THEATRES, INC.,
a Washington corporation,
and
KUKIO BAY PROPERTIES, INC.,
a Washington corporation,
v. Plaintiffs,
THE CITY OF RENTON, et al.,
Defendants.
REPORT AND RECOMMENDATION
INTRODUCTION AND SUMMARY CONCLUSION
Plaintiffs, Playtime Theatres, Inc., and Kukio Bay
Properties, Inc., recently acquired two existing theatre
buildings in the City of Renton and wish to commence
showing feature length sexually explicit adult films in one
of them. The theatre buildings are located in areas not
zoned for such use. Plaintiffs filed the instant suit claim-
ing that the Renton zoning ordinance in question is un-
constitutional for a number of reasons. Because plaintiffs
wished to commence showing the adult films on Friday,
January 29, 1981, they sought a temporary restraining
order prohibiting the City of Renton from enforcing its
ordinance. The matter was referred to me by Order of
50a
Reference dated January 22, 1982, and a hearing was
held on January 29, 1982. Having heard the arguments
of counsel and considering the affidavits and limited testi-
mony and documentary exhibits admitted at that hearing,
I recommend that the Court deny the request for a tem-
porary restraining order for the reasons hereinafter set
forth.
DISCUSSION
In this Circuit, the party requesting injunctive relief
must clearly show either: (1) probable success on the
merits and possible irreparable injury, or (2) sufficiently
serious questions as to the merits to make them a fair
ground for litigation and a balance of hardship tipping
decidedly in favor of the party seeking relief. Los An-
geles Memorial Coliseum Commission v. N.F.L., 634 F. 2d
1197 (9th Cir. 1980). Further, federal courts should
proceed with caution and restraint when considering a
facial challenge to the constitutionality of an ordinance.
Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).
Finally, the Court must also bear in mind that a tem-
porary restraining order is ordinarily for the purpose of
maintaining the last uncontested status quo between the
parties until full hearing of an application for prelimi-
nary injunction can take place.
The ordinance in question provides that adult motion
picture theatres as defined therein are prohibited:
(1) Within or within 1000 feet of any residential zone
or single family or multiple family use;
(2) Within one mile of any public or private school;
(3) Within 1000 feet of any church or other religious
facility or institution; and
(4) Within 1000 feet of any public park or P-I zone.
Plaintiffs' complaint challenges the constitutionality of
the ordinance on the following grounds: First, they claim
51a
that certain definitional sections are so vague and over-
broad as to deny them due process. Second, they claim
that confinement of adult theatres to certain areas is an
impermissible prior restraint on protected First Amend-
ment speech. Third, they argue the classification of thea-
tres based on the content of the films shown violates
First Amendment and equal protection guarantees.
Plaintiffs did not pursue their vagueness or overbreadth
arguments at the hearing or in their brief but focused
only on the First Amendment and equal protection claims.
Defendants contend that the ordinance is not facially
invalid for vagueness or overbreadth but is a reasonable
regulation of the place in which "adult motion picture
theatres" may be located within Renton and has only an
incidental effect upon exercise of First Amendment rights.
Defendants rely principally on Young v. American Mini
Theatres, Inc., 427 U.S. 50, 49 L.Ed. 2d 310 (1976), re-
hearing denied, 429 U.S. 873 (1976) (hereinafter re-
ferred to as Young).
In Young, the Supreme Court approved the creation
and definition of an adult theatre zoning use in the City
of Detroit which was clearly identical to the Renton zon-
ing use at least in its definitional provisions. The Court
also approved regulation of location of that use. The
Court reasoned that since the ordinance only controlled
the location of adult businesses and did not restrict the
content of the speech disseminated therein, it was merely
a time, place, or manner restriction. Id. at 63, 71. The
Court held that the City had a strong governmental in-
terest in protecting the quality of its neighborhoods, Id. at
71, 72, which justified the zoning scheme which classified
businesses on the content of their material, and treated
adult businesses (including theatres) different from other
businesses.
The Court indicated in Young, however, that the "sit-
uation would have been quite different if the ordinance
52a
had the effect of suppressing, or greatly restricting access
to, lawful speech." Id. at 71 n. 35. Accordingly, the crit-
ical inquiry is the "effect" the ordinance's limitations
have on the exercise of First Amendment rights.
In their affidavits and through the limited testimony
and exhibits admitted at the hearing, plaintiffs have at-
tempted to distinguish the Renton ordinance from that
approved in Young in two respects: First, they contend
that the City of Renton failed to factually support its con-
clusion that adult movie theatres have an adverse effect
on residential neighborhoods including incidental ameni-
ties close thereto such as parks, churchs, and schools—
thus the city established no important state interests jus-
tifying its intrusion upon protected speech. Second, plain-
tiffs attempted to show that rather than a mere loca-
tional restriction, the Renton ordinance amounts to a vir-
tual prohibition of adult theatres in that city—that even
though there may be property available, it is not commer-
cially feasible. I will address these contentions separately.
(1) Basis for the City's Ordinance.
The affidavit submitted by Mr. Clemens, the Policy De-
velopment Director of the City of Renton, and his testi-
mony at the hearing, indicated that the ordinance in
question was only adopted after a period of study and
following public hearings at which the City Council heard
testimony indicating that adult entertainment land uses
would have an adverse affect on property values within
the business and residential areas of the city. He also
indicated that he had reviewed a summary of the findings
and conclusions made when Seattle enacted a similar
ordinance—those findings noted the deterioration of busi-
ness and community neighborhoods where adult enter-
tainment uses are permitted. Those findings prompted
Seattle to enact an ordinance restricting adult entertain-
ment uses to one specific area of the city. Plaintiffs con-
tend that the city heard no expert testimony and that
53a
they cannot rely on the Seattle experience. I disagree.
There is no reason to require that Renton receive expert
testimony to show what has been shown to be generally
experienced elsewhere. See Genusa v. City of Peoria, 619
F. 2d 1203 (7th ,Cir. 1980).
(2) Whether the Ordinance Suppresses or Greatly Re-
stricts Access to Adult Fare.
After reviewing the maps and affidavits, and hearing
the testimony of Mr. Clemens, I conclude that although
some of the approximately 400 acres which the city as-
serts is available for the location of adult entertainment
uses is definitely not available, and although much of it is
not ideal, the record at this stage of the proceeding would
indicate that there are many adequate sites available.
Plaintiffs' argument that such sites are not economically
practicable is not relevant. The constraints of the ordi-
nance may create economic hardship or loss for those
who engage in the adult entertainment business, but that
was also true in Young. See Justice Powell's concurring
opinion at 78. The First Amendment inquiry is not con-
cerned with economic impact but only the effect upon
freedom of expression. All that is required is that those
who wish to exhibit sexually explicit films be given ample
area to do so, and that those who seek to view them be
given access. The City of Renton appears to have pro-
vided ample area.
CONCLUSION
Applying the standards applicable in this Circuit to a
motion for injunctive relief, I conclude that although
there is some possibility of per se irreparable injury be-
cause plaintiffs are prevented from showing films argu-
ably protected under the First Amendment, plaintiffs have
not clearly established a probability that they will suc-
ceed on the merits. Rather, it appears that the case is
54a
controlled by Young and that the ordinance only inciden-
tally affects protected speech or expression.
As to the alternate test, I conclude that although the
allegations in plaintiffs' complaint are sufficiently serious
to be fair grounds for litigation, the balance of hardships
does not tip decidedly in plaintiffs' favor. Although plain-
tiffs will not be able to show the sexually explicit films
they desire to show unless and until this matter is con-
cluded in their favor, they may continue to exhibit other
films. The hardship upon them is no more severe than
the general hardship imposed upon the one who desires
to use a particular piece of property in a manner incom-
patible with its zoning. Weighed against this impact is
the city's strong interest in assuring compliance with its
zoning laws.
A proposed form of Order accompanies this Report and
Recommendation.
DATED this 3d day of February, 1982.
/s/ Philip K. Sweigert
PHILIP K. SWEIGERT
United States Magistrate
55a
APPENDIX J
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 83-3805
D.C. No. C-82-59M
PLAYTIME THEATRES, INC.,
a Washington corporation, et al.,
Plaintiffs/Appellants,
vs
THE CITY OF RENTON, et al.,
Defendants/Appellees.
NOTICE OF APPEAL TO THE SUPREME COURT
OF THE UNITED STATES
NOTICE IS HEREBY GIVEN that the City of Renton,
the Appellee above named, hereby appeals to the Supreme
Court of the United States from the judgment entered in
this action on November 28, 1984.
This appeal is taken pursuant to 28 U.S.C. 1254 (2).
DATED this 4th day of February 1985.
/s/ Daniel Kellogg
DANIEL KELLOGG
Attorney for City of
Renton, et al.
56a
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 83-3805
D.C. No. C-82-59M
PLAYTIME THEATRES, INC.,
a Washington corporation, et al.,
Plaintiffs/Appellants,
vs
THE CITY OF RENTON, et al.,
Defendants/Appellees.
CERTIFICATE OF SERVICE
I certify that a copy of the Notice of Appeal to the
Supreme Court of the United States was served on the
parties to this action on February 4, 1985, by mailing
copies, postage prepaid, to them at the following ad-
dresses:
Jack R. Burns
10940 N.E. 33rd Pl., Suite 107
Bellevue, Washington 98004
Robert E. Smith
16133 Ventura Blvd., Suite 1230
Encino, California 91436
I certify under penalty of perjury that the foregoing
is true and correct.
/s/ Daniel Kellogg
DANIEL KELLOGG
57a
APPENDIX K
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
No. C82-59M
PLAYTIME THEATRES, INC.,
a Washington corporation,
and
KUKIO BAY PROPERTIES, INC.,
a Washington corporation,
VS.
Plaintiffs,
THE CITY OF RENTON,
and
THE HONORABLE BARBARA Y. SHINPOCH,
as Mayor of the City of Renton,
and
EARL CLYMER, ROBERT HUGHES, NANCY MATHEWS, JOHN
REED, RANDY ROCKHILL, RICHARD STREDICKE AND TOM
TRI1\IM, as members of the City Council of the City of
Renton; serve on: DELORES H. MEAD, City Clerk.
and
JIM BOURASA, as acting Chief of
Police of the City of Renton,
Defendants, jointly and
severally, in their
representative capacities
only.
AMENDED AND SUPPLEMENTAL COMPLAINT
FOR DECLARATORY JUDGMENT AND
PRELIMINARY AND PERMANENT INJUNCTION
COME NOW Playtime Theatres Inc. and Kukio Bay
Properties Inc., bodies corporate of the State of Washing-
58a
ton, by and through their attorneys, Jack R. Burns and
Robert Eugene Smith, of counsel, and seek a declaratory
judgment as well as a preliminary and permanent injunc-
tion with respect to City of Renton Ordinance No. 3526
entitled: "An Ordinance Of The City Of Renton, Wash-
ington, Relating To Land Use and Zoning;" enacted and
approved by the Mayor and City Council on or about the
13th day of April, 1981 and in support of their cause of
action, state:
I. JURISDICTION
1. This is a civil action whereby plaintiffs pray for a
preliminary and permanent injunction enjoining the de-
fendants from enforcement of the City of Renton Ordi-
nance No. 3526, a copy of which is attached hereto as
Exhibit "A" in support of this complaint, the contents of
which are incorporated herein by reference, on the
grounds that said ordinance and the multiple provisions
thereof are unconstitutional as written, and/or as threat-
ened to be applied to the plaintiffs in the case at bar.
Further, plaintiffs pray for a declaratory judgment to
determine the constitutionality of said Ordinance, as writ-
ten and/or as threatened to be applied to the plaintiffs.
The allegations to be set forth in the premises establish
that there are presented questions of actual controversy
between the parties involving substantial constitutional
issues in that said ordinance, as written and/or in its
threatened application, is repugnant to the rights of the
plaintiffs herein under the First, Fourth, Fifth, Sixth,
and Fourteenth Amendments to the Constitution of the
United States.
2. Jurisdiction is conferred on this court for the res-
olution of the substantial constitutional questions pre-
sented by the provisions of 28 USCA § 1131(a) which
provides in pertinent part:
(a) The district court shall have original jurisdiction
of all civil actions wherein the matter in cantroversy
59a
exceeds the sum or value of $10,000.00, exclusive of
interest and costs, and arises under the Constitution
laws or treaties of the United States.
as well as 28 USCA § 1343(3) which provides in perti-
nent part that the district courts shall have original ju-
risdiction of any civil action authorized by law to be
commenced by any person:
To redress the deprivation, under color of any any
state law, statute, ordinance, regulation, custom or
usage, of any right, privilege or immunity secured
by the Constitution of the United States . . ."
and the organic law which further authorizes the institu-
tion of this suit founded on 42 USCA § 1983, which pro-
vides in pertinent part as follows:
Every person who, under color of any statute, ordi-
nance, custom or usage, of any state or territory sub-
jects, or causes to be subjected, any person of the
United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges or
immunities secured by the Constitution and the laws,
shall be liable to the party injured in an action at
law, sued in equity, or other proper proceeding for
redress.
Plaintiffs' prayer for declaratory relief is founded on
Rule 57 of the Federal Rules of Civil Procedure, as well
as 28 USCA § 2201, which provides in pertinent part:
. Any court of the United States, upon the filing
of an appropriate pleading, may declare the rights
and other legal relations of any interested party
seeking such declarations, whether or not further re-
lief is or could be sought . . .
The jurisdiction of this court to grant injunctive relief is
conferred by 28 USCA § 2202, which provides:
Further necessary or proper relief based upon a
declaratory judgment or decree may be granted after
60a
reasonable notice and hearing against any adverse
party whose rights have been determined by such
judgment.
II. PARTIES
3. Playtime Theatres, Inc., a corporate body of the
State of Washington plans to operate pursuant to a writ-
ten lease agreement, a motion picture theatre which is
located at 504 South 3rd Street, within the city limits of
Renton, State of Washington. The enterprise will be op-
erated under the name of the Roxy Theatre. Playtime
Theatres, Inc. will also operate pursuant to a written
lease agreement, the Renton Theatre at 507 South 3rd
Street, within the city limits of Renton, State of Wash-
ington.
Kukio Bay Properties, Inc., a body corporate of the
State of Washington has purchased the motion picture
theatres described in the preceeding paragraph and has
leased said theatres to Playtime Theatres, Inc.
That on January 26, 1982, Kukio Bay Properties, Inc.
purchased of said theatres for the sum of $800,000.00.
That immediately thereafter, Kukio Bay Properties, Inc.
took possession of said theatres. That on or about the
27th day of January, 1982, by a written agreement,
Kukio Bay Properties, Inc. leased said theatre premises to
Playtime Theatres, Inc. for a period of ten years com-
mencing on January 27, 1982. In addition, Playtime
Theatres, Inc. will have the option to renew said leases
for an additional term of ten years terminating on Jan-
uary 26, 2002. The lease agreements to be entered into
by the parties provide that the premises by [sic] used for
the purpose of conducting therein adult motion picture
theatres. Playtime Theatres, Inc. took possession of said
theatres on or about January 27, 1982 and on January
29, 1982 planned to begin exhibiting feature length mo-
tion picture films for adult audiences.
61a
From on or about January 29, 1982, under the opera-
tion and management of Playtime Theatres, Inc., one of
said theatres would continuously operate exhibiting adult
motion picture film fare to an adult public audience but
for the threats of the defendants to enforce their wholly
unconstitutional zoning ordinance.
4. The defendant, City of Renton, is a municipal cor-
poration of the State of Washington.
5. The Honorable Barbara Y. Shinpoch is named de-
fendant herein in her capacity as Mayor of the City of
Renton, having the titular title. In that capacity, she is
the head of City government and approved the questioned
ordinance in the case at bar.
6. Earl Clymer, Robert Hughes, Nancy Mathews, John
Reed, Randy Rockhill, Richard Stredicke and Tom Trimm
are named as defendants herein as members of the City
Council of the City of Renton who enacted the wholly
unconstitutional ordinance as a part of their alleged leg-
islative function.
8. Jim Bourasa is named a defendant herein in his
capacity as Acting Chief of Police of the City of Renton
who is primarily responsible for seeing to the enforce-
ment of the City of Renton ordinances, civil, criminal and
quasi-criminal in nature.
9. The defendants in their official capacities as afore-
said have acted and/or threaten to act to plaintiffs' im-
mediate and irreparable harm under color of authority
of the Ordinance No. 3526 heretofore identified as Ex-
hibit "A".
The named defendants, in their official capacity as
afore-mentioned, are joined herein to make enforceable
to them and/or their agents, servants, employees and
attorneys, any Preliminary and/or Permanent Injunction,
Declaratory Judgment, and/or other Order of this Court.
62a
III. FACTUAL ALLEGATIONS
10. The instant ordinance was passed with the sole
purpose to prevent the opening of any adult motion pic-
ture theatre within the city limits of Renton and to effec-
tively censor the kinds of protected First Amendment
press materials available to adult citizens of the City of
Renton and adult visitors to the City.
11. That no criminal, quasi-criminal and/or civil pre-
ceeding is pending in the city courts of the City of
Renton or in the state courts in the State of Washington
against the plaintiffs and/or their agents, servants and
employees as of the date of the filing of this suit with
respect to this matter.
12. That on the 19th day of January, 1982, Mike
Parness, Administrative Assistant to the Mayor of the
City of Renton has, as aforesaid, advised that if the prop-
erty of the plaintiffs is used to exhibit adult motion pic-
ture films, then enforcement proceedings will be com-
menced forthwith.
13. That the City of Renton Ordinance No. 3526 was
enacted by the City Council and approved by the Mayor
as a part of a systematic scheme, plan and design, under
color of enforcement of the said ordinance to deny dis-
tributors and/or exhibitors of adult films access to the
marketplace, and to deny to the interested adult public,
access to such erotic materials which are not otherwise
obscene under the test set forth in Miller v. California,
413 U.S. 15 (1973). See Young v. American Mini Thea-
tres, 427 U.S. 50 (1975) at pages 62 and 71.
14. That requiring the plaintiffs to conform to this
wholly unconstitutional zoning ordinance by not using the
locations they have contracted to purchase, and requiring
them to move their business to a selectively obscure geo-
graphical location, violates the plaintiffs' rights under
the First, Fifth, Sixth and Fourteenth Amendments to
63a
the Constitution of the United States. Indeed, by this
selective ordinance, which would shutter motion picture
theatres such as the Roxy Theatre and Renton Theatre,
which show as part of their fare, erotic films, the City of
Renton by its agents, servants and employees will be de-
nying the plaintiffs and other persons lawfully engaged
in the exhibition of adult film fare presumptively pro-
tected by the First Amendment to the Constitution of
the United States, [Heller v. People of the State of New
York, 413 U.S. 483 (1973) ; and Roaden v. Commonwealth
of Kentucky, 413 U.S. 496 (1973)1, access to the market-
place as well as the right of the interested adult public
to have access to adult film fare, and will deny the plain-
tiffs the right to engage in said business in the City of
Renton; and unless restrained, the City, under color of
enforcement of its zoning laws, will cause said businesses
to cease and close up; and unless restrained, defendants
will continue to seek to enforce said ordinance and this
will have the effect of totally depriving your plaintiffs, as
well as others similarly situate, from their normal busi-
ness activities. This will have a chilling effect on the
dissemination and exhibition of adult film fare to those
interested adults who seek to satiate their educational,
entertainment, literary, scientific and artistic interests
in such press materials. The ordinance places an in-
tolerable burden upon the exercise of First Amendment
rights, arbitrarily and capriciously descriminates [sic] as
to the nature of film fare exhibited based upon an assump-
tion which is not rationally related to a valid public pur-
pose nor necessary to achieve a compelling state interest
in violation of the Equal Protection Clause of the Four-
teenth Amendment of the Constitution of the United
States, establishes classifications which are arbitrary and
capricious and constitutes an abuse of legislative discre-
tion and is not rationally related and also deprives plain-
tiffs of their equal rights under the Fourteenth Amend-
ment of the Constitution of the United States; and fur-
ther by its use has language that is intrinsically vague
65a
Renton, it is necessary to obtain a special permit, condi-
tional use or variance.
17. The process of applying for a special permit, con-
ditional use or variance vests unfettered discretionary au-
thority in the Hearing Examiner, Board of Adjustment
and/or City Council to deny such special permit, condi-
tional use or variance. No objective written criteria,
standards or guidelines have been established which
would in any way limit this discretionary authority. In
addition, the ordinances of the City of Renton set no
time limit for the City Council to make a decision rela-
tive to an application for a special permit, conditional use
or variance. The City Council has the discretion to with-
hold making a decision for an unreasonable length of
time if it chooses to do so. The various matters to be
considered by the Hearing Examiner and/or the Board
of Adjustment in the granting or denial of a special per-
mit, conditional use or variance are vague and aesthetic
qualities that are not capable of objective measurement
and, as such, they create the potential for an unreason-
able burden upon free speech and, as applied to plaintiffs
and a motion picture theatre, they are impermissibly
overbroad and unconstitutional.
18. That requiring the plaintiffs to submit to a wholly
unconstitutional exercise of unbridled discretion at the
hands of a Hearing Examiner or Board of Adjustment
and/or the City Council, in the absence of narrowly drawn,
reasonable and difinitive [sic] standards to be followed
in the exercise of said discretion violates plaintiffs' rights
under the First, Fifth and Fourteenth Amendments to
the Constitution of the United States. Interstate Circuit
v. Dallas, 390 U.S. 676 (1968) and Shuttlesworth v. City
of Birmingham, 394 U.S. 147 (1969).
19. Further, since the Hearing Examiner, Board of
Adjustment and/or the City Council have no narrowly
drawn, reasonable and definitive standards to be fol-
66a
lowed by them in the exercise of the discretion conferred
upon them by the Renton Zoning Code in making a deter-
mination about the issuance of a special permit, condi-
tional use or variance, it would be an exercise in futility
to engage in such administrative process because of the
patently unconstitutional character of the zoning provi-
sions in question.
20. The provisions of the Renton Zoning Code which
apply to the issuance of special permits, conditional uses
or variances, establish classifications which are arbitrary
and capricious and constitute an abuse of legislative dis-
cretion, and also permit censorship by standardless ra-
tionale subject to abusive discretion by the defendants in
violation of plaintiffs' substantive and due process rights
under the pneumbra [sic] of the First, Fifth and Four-
teenth Amendments of the Constitution of the United
States; and further, have language that is intrinsically
vague and void under the First and Fifth Amendments
to the United States Constitution and void for impermis-
sible overbreadth.
IV. BASIS IN LAW FOR RELIEF
21. Plaintiffs have the right to engage in the business
of offering for exhibition adult motion picture film fare
for profit by virtue of the First Amendment to the Con-
stitution or adult film fare which is presumptively pro-
tected under said constitutional amendment, and the pub-
lic, including both adult citizens and visitors to the City
of Renton have the same constitutional right to view said
adult motion picture film fare as may be offered for said
exhibition to said adults in a nonintrusive manner.
Heller v. New York, 413 U.S. 483, 37 L.Ed.2d 745, 93
Sup.Ct. 2789 (1973). Further, the conduct of the de-
fendants and their agents, servants, employees and/or
attorneys and others, acting under their direction and
control in attempting to refuse to allow plaintiffs to op-
67a
erate their businesses in the City of Renton, unless they
remove themselves to some obtuse selectively obscure
geographical site, will have the draconian effect of deny-
ing plaintiffs and others similarly situate, access to the
marketplace, and the viewing adult public the right to
satisfy its interest for adult film fare.
22. As a further result of the unconstitutional ordi-
nance enacted by the City Council and approved by the
Mayor, as well as the threatened conduct of the defend-
ants to force plaintiffs to not engage in their businesses,
plaintiffs have been required to retain attorneys to pursue
their rights under the First, Fourth, Fifth, and Four-
teenth Amendments to the Constitution of the United
States, and the defendants, acting under color of pretense
of law, as aforesaid, have threatened to initiate actions
to enforce the said ordinance, which actions are and/or
threaten to be, repugnant to the Constitution of the
United States.
23. The City of Renton zoning ordinance designated
herein as Ordinance No. 3526, is clearly repugnant to the
First, Fourth, Fifth and Fourteenth Amendments to the
Constitution of the United States as written and as threat-
ened to be applied, for the following reasons:
(a) Said ordinance is void for vagueness in that it
fails to establish by its terms, definitive standards,
criteria and/or other controlling guides defining
words, inter alia "other religious facility or institu-
tion" in Section II(A) (4) or "distinguished or char-
acterized by an emphasis on matter depicting, de-
scribing or relating to "specified sexual activities" as
used in Section I(1) of said ordinance, as well as the
words "erotic touching" as used in Section I(2) (C) ;
and as such is a deprivation under color of state law
of plaintiffs' right to due process under the First,
Fifth and Fourteenth Amendments to the Constitu-
tion of the United States.
68a
(b) Said ordinance is void for impermissible over-
breadth by means which sweep unnecessarily broadly
and thereby invade the area of protected freedoms in
that the same sets forth standards at variance with
those minimum standards prescribed by the Supreme
Court of the United States, in connection with the
exercise of First Amendment rights, and in partic-
ular, those provisions which set forth the "specified
anatomical areas" and "specified sexual activities" in
Section I(2) and Section I(3).
(c) Said ordinance is further void for impermissible
overbreadth and deprives plaintiffs of due process
and equal protection of the law through the arbi-
trary and uncontrolled power conferred by the en-
actment of said ordinance to the defendants' enforce-
ment of zoning laws for the exercise of otherwise
clear First Amendment rights and therefore the same
is invalid under the First and Fifth Amendments to
the Constitution of the United States made obliga-
tory on the States under the due process provisions
of the Fourteenth Amendment.
(d) Said ordinance, lacking precision and narrow
specificity in the standards to be employed by defend-
ants in the operation of their legislative power to
enact zoning laws, constitutes a prior restraint under
color of state law on the exercise of plaintiffs of
their rights under the First, Fifth and Fourteenth
Amendments to the Constitution of the United States
and as written, which is and has been, under the
facts alleged herein, susceptible to arbitrary, capri-
cious and uncontrolled discretion on the part of de-
fendants herein, their agents, servants and employees.
(e) Said ordinance is void in that it fails, by its
terms, to establish procedural safeguards to assure a
prompt decision on the challenge to the arbitrary
zoning classification, and if a zoning challenge is de-
69a
nied, the ordinance fails by its terms to provide for
a prompt final judicial review to minimize the deter-
rent effect of an interim and possibly erroneous zon-
ing classification under procedures which places the
burden on plaintiffs to both expeditiously institute
judicial review and to persuade the courts that the
activity sought to be licensed and the procedure and
ordinance employed to authorize the same, is without
the ambit of the First Amendment, and the abate-
ment of the nonconforming use is not a proper exer-
cise of authority.
(f) Said ordinance is further void in that the same,
by its terms, places an impermissible burden upon
the exercise of plaintiffs' First Amendment rights.
(g) Said ordinance is further void as violative of the
Equal Protection Clause of the Fourteenth Amend-
ment, in that the same creates a statutory classifica-
tion which has no rational relationship to a valid
public purpose nor is the same necessary to the
achievement of a compelling state interest by the
least drastic means.
(h) Said ordinance is repugnant to the substantive
due process provisions of the Fifth and Fourteenth
Amendments to the Constitution of the United States
because the same permits deprivation of liberty and/
or property interests for the exercise of First Amend-
ment rights by unreasonable, arbitrary and capri-
cious means without a showing of a real and sub-
stantial relationship to any state or city subordinat-
ing interest which is compelling to justify state or
city action limiting the exercise by plaintiffs of their
First Amendment freedoms.
(i) Said ordinance is impermissibly overbroad and
repugnant to the procedural due process require-
ments of the Fifth and Fourteenth Amendments to
the Constitution of the United States, in that the
70a
same employs means lacking adequate safeguards,
which due process demands, to assure presumptively
protected press materials, sought to be distributed to
an interested adult public, the constitutional protec-
tion of the First Amendment.
(j) Said ordinance is vague and impermissibly over-
broad and thus repugnant to the First, Fourth, Fifth
and Fourteenth Amendments to the United States
Constitution, in that said ordinance, by its provisions,
permits inherent powers of censorship and suppres-
sion constituting a prior restraint on the exercise of
plaintiffs' First Amendment rights as well as the
interested adult public who may desire to view pre-
sumptively protected press materials for the ideas
presented therein.
(k) Said ordinance, and particularly Section I(2), in
defining "specified sexual activities" defines that
phrase in part as "erotic touching" and is thus void
for vagueness in that "erotic" is a word that can
mean many things to many people and without fur-
ther clarification confers on defendants unbridled dis-
cretion in the interpretation of that term and as
such, is violative of the plaintiffs' rights under the
First, Fifth and Fourteenth Amendments to the Con-
stitution of the United States.
(1) Said ordinance and particularly 'Section II(A)
as it purports to establish restrictions, requirements
and conditions for an alleged adult theatre imposes
burdens, restrictions and conditions that are not
justified by any compelling state interest and as
such, the classification is an invidious and arbitrary
discrimination as to a class and as such, is a denial
of plaintiffs' rights under the Fourteenth Amend-
ment to the Constitution of the United States, partic-
ularly where, as here, protected First Amendment
activity is involved.
71a
(m) The plaintiffs will suffer immediate and sub-
stantial economic harm if said ordinance is applied
to them and the result of the application of said
ordinance to the activities of the plaintiffs will result
in a forfeiture of substantial business interests and
assets.
24. Plaintiffs herein aver that their rights afforded
under the First, Fourth, Fifth, Sixth and Fourteenth
Amendments to the Constitution of the United States
have been violated by said defendants in the enactment
of a wholly unconstitutional ordinance, and that unless
this Court grants the relief prayed for, said plaintiffs
and others similarly situate, as well as the interested
adult public, will suffer irreparable harms.
25. Plaintiffs aver that the aforesaid action of the de-
fendants in enacting said ordinance, and the threatened
enforcement thereof by said defendants acting under color
of state law, is in furtherance of a scheme, plan and
design to prevent any business activity which may offer
for sale or exhibition adult press materials in the City of
Renton to the adult public.
26. Those portions of the Renton Municipal Code con-
tained in Chapter 4-722 relative to the issuance of special
permits, conditional uses and variances, are clearly re-
pugnant to the First, Fourth, Fifth and Fourteenth
Amendments to the Constitution of the United States as
written and as threatened to be applied, for the following
reasons:
(a) Said provisions are void for vagueness in that
they fail to establish by their terms definitive stand-
ards, criteria or other controlling guides defining con-
cepts such as, inter alia
* *
72a
Special Permits: Recognizing that there are certain
uses of property that may be detrimental to the pub-
lic health, safety, morals and general welfare . . .
The purpose of a conditional use permit shall be to
assure, by means of imposing special condition and
requirements on development, that the compatibility
of uses, a purpose of this Title, shall be maintained,
considering other existing and potential uses within
the general area of the proposed use.
* * * *
The examiner may deny any application if the char-
acteristics of the intended use would create an in-
compatible or hazardous condition.
* * * *
The examiner shall have the right to limit the term
and duration of any such conditional use permit and
may impose such conditions as are reasonably neces-
sary and required.
* * * *
The conditions imposed shall be those which will rea-
sonable assure that nuisance or hazard to life or
property will not develop.
* * * *
The examiner may, after a public hearing, permit
the following uses in districts from which they are
prohibited by this Chapter where such uses are
deemed essential or desirable to the public conveni-
ence or welfare and are in harmony with the vari-
ous elements or objectives of the comprehensive plan.
* * * *
The hearing examiner shall be empowered to ap-
prove conditionally approve or disapprove said condi-
tional use permit applications based on normal plan-
ning considerations, including, but not limited to the
73a
following factors: (a) suitability of site; (b) con-
formance to the comprehensive plan; (c) harmony
with the various elements or objectives of the com-
prehensive plan; (d) the most appropriate use of
land through the city; (e) stabilization and conser-
vation of the value of property; . . . and prevention
of neighborhood deterioration and blight; (o) the
objectives of zoning and planning in the community;
(p) the effect upon the general city's welfare of this
proposed use in relation to surrounding uses in the
community.
That the granting of the variance will not be mate-
rially detrimental to the public welfare or injurious
to the property improvements in the vicinity and
zone in which subject property is situated.
* *
That approval shall not constitute a grant of special
privilege inconsistent with the limitation upon uses
of other properties in the vicinity and zone in which
the subject property is situated.
* * * *
That the approval is determined by the examiner or
Board of Adjustment is a minimum variance that
will accomplish the desired purpose.
and as such are a deprivation under color of law of
plaintiffs' right to due process under the First, Fifth
and Fourteenth Amendments to the Constitution of
the United States. Said provisions are void for im-
permissible overbreadth by means which sweep un-
necessarily broadly and thereby invade the area of
protected freedoms in that the same set forth stand-
ards at variance with those minimum standards pre-
scribed by the Supreme Court of the United States
in connection with the exercise of First Amendment
rights.
74a
(b) Said provisions are further void for impermis-
sible overbreadth and deprive plaintiffs of due proc-
ess and equal protection of the law through the arbi-
trary and uncontrolled discretionary power conferred
by said provisions upon the Hearing Examiner,
Board of Adjustment and City Council and, there-
fore, the same are invalid under the First and Fifth
Amendments to the Constitution of the United
States made obligatory on the States under the due
process provisions of the Fourteenth Amendment.
(c) Said provisions lack precision and narrow speci-
ficity in the standards to be employed by the Hearing
Examiner, Board of Adjustment and/or City Council
in the exercise of the discretion used in the opera-
tion of the City of Renton's legislative power to en-
act ordinances providing for zoning and, as such,
constitute a prior restraint under color of state law
and the exercise by plaintiffs of their rights under
the First, Fifth and Fourteenth Amendments to the
Constitution of the United States and as written,
which is and have been, under the facts alleged
herein, susceptible to arbitrary, capricious and un-
controlled discretion on the part of the defendants
herein, their agents, servants and employees.
(d) Said provisions are void in that they fail by
their terms to establish procedural safeguards to
assure a prompt decision on a challenge to the capri-
cious denial of a special permit, conditional use or
variance. The provisions fail by their terms to pro-
vide for a prompt final judicial review to minimize
the deterrent effect on an interim and possibly erro-
neous and arbitrary denial of a zoning special per-
mit, conditional use or variance and, thus, the bur-
den is on plaintiffs to both expeditiously institute
judicial review and to persuade the courts that the
activity sought to be pursued and the procedures and
ordinances employed to prohibit the same are with-
out the ambit of the First Amendment.
75a
V. RELIEF SOUGHT
27. Plaintiffs are entitled to and desire that this Court
enter a declaratory judgment, declaring Ordinance No.
3526 to be unconstitutional as written and/or as defend-
ants purport to apply it, in whole or in part, to be repug-
nant to the First, Fourth, Fifth, Sixth and/or Fourteenth
Amendments to the Constitution of the United States.
28. Plaintiffs seek a preliminary and permanent in-
junction to prohibit the enforcement by defendants, and/
or their agents, servants, employees, attorneys, and others
acting under its direction and control of the provisions
of Ordinance No. 3526.
WHEREFORE, plaintiffs pray:
1. That defendants be required to answer forthwith
this Amended and Supplemental Complaint in conform-
ance with the rules and practices of this Honorable Court.
2. That a Declaratory Judgment be rendered declaring
Ordinance No. 3526 to be unconstitutional as written, in
whole and/or in part, and that this Court further declare
the ordinance to be unconstitutional in its threatened ap-
plication to the plaintiffs.
3. That a Preliminary Injunction issue from this Court
upon hearing, restraining defendants and their agents,
servants, employees, and attorneys, and others acting
under their direction and control, pending a hearing
and determination on plaintiffs' application for a Perma-
nent Injunction, from enforcing or executing and/or
threatening to enforce and/or execute the provisions of
Ordinance No. 3526 in whole and/or in part, by arrest-
ing plaintiffs, their agents, servants or employees, and/or
threatening to arrest plaintiffs, their agents, servants
and employees and/or harassing, threatening to close, or
otherwise interferring with plaintiffs' peaceful use of the
premises.
4. That upon a final hearing, that this Court issue its
Permanent Injunction prohibiting the defendants and/or
76a
their agents, servants and employees, and/or others in
concert with them, from enforcing Ordinance No. 3526 in
whole or in part because of its patent unconstitutionality.
5. That upon a final hearing this Court award to the
plaintiffs such damages as they shall have sustained by
reason of loss of business, the expenditure of assets to
enforce and protect the rights guaranteed to them under
the Constitution of the United States, their reasonable
attorney's fees and such other damages as may be estab-
lished at the time of trial.
6. And for such other and further relief as may be ap-
propriate under the circumstances of this case.
DATED this day of February, 1982.
Respectively submitted,
HUBBARD, BURNS & MEYER
By /s/ Jack R. Burns
JACK R. BURNS
Attorney for Plaintiffs
Of Counsel:
Robert Eugene Smith, Esq.
16133 Ventura Blvd.
Penthouse Suite F.
Encino, California 91436
(213) 981-9421
STATE OF WASHINGTON )
) SS.
COUNTY OF KING
COMES NOW Jack R. Burns who, after being duly
sworn, did depose and say:
1. That Playtime Theatres, Inc. and Kukio Bay Prop-
erties, Inc. are bodies corporate of the State of Washing-
ton, in good standing.
77a
2. That affiant is one of the attorneys for said corpo-
rations. Affiant further states that he is authorized to
speak on their behalf.
3. That said corporations are the plaintiffs in the
within proceedings.
4. That he has read the complaint to which this affi-
davit is affixed and asserts that the factual allegations
contained therein are true and correct to the best of his
information, knowledge and belief.
5. That the enforcement of the City of Renton Ordi-
nance No. 3526 will, if upheld, have the effect of depriv-
ing plaintiffs of access to the marketplace to exhibit their
presumptively protected First Amendment wares of adult
film fare; and further, will deny to interested adults, the
access to such material for their information, education,
entertainment, literary, scientific or artistic interests, as
well as subject plaintiffs, their agents, servants and em-
ployees to criminal arrests and confiscatory fines and for-
feitures of property interests; and would further destroy
the property and interest of said corporations in the loca-
tion of their theatres operated at 504 South 3rd Street,
and 507 South 3rd Street, in the City of Renton, and
subject said plaintiff corporations to grievous financial
harm as well as to also chill their rights of free speech
as guaranteed by the First Amendment. Dombrowski v.
Pfister, 380 U.S. 479 (1965).
/s/ Jack R. Burns
JACK R. BURNS
SUBSCRIBED AND SWORN to before me this 8th
day of February, 1982.
/s/ (Illegible)
Notary Public in and for the
State of Washington residing
at (illegible)
78a
APPENDIX L
CITY OF RENTON, WASHINGTON
ORDINANCE NO. 3526
AN ORDINANCE OF THE CITY OF RENTON,
WASHINGTON, RELATING TO LAND
USE AND ZONING
THE CITY COUNCIL OF THE CITY OF RENTON,
WASHINGTON, DO ORDAIN AS FOLLOWS:
SECTION I: Existing Section 4-702 of Title IV
(Building Regulations) of Ordinance No. 1628 entitled
"Code of General Ordinances of the City of Renton" is
hereby amended by adding the following subsections:
1. "Adult Motion Picture Theater": An enclosed build-
ing used for presenting motion picture films, video cas-
settes, cable television, or any other such visual media,
distinguished or characteristic by an emphasis on matter
depicting, describing or relating to "specified sexual ac-
tivities" or "specified anatomical areas" as hereafter de-
fined, for observation by patrons therein.
2. "Specified Sexual Activities":
(a) Human genitals in a state of sexual stimula-
tion or arousal;
(b) Acts of human masturbation, sexual inter-
course or sodomy;
(c) Fondling or other erotic touching of human
genitals, pubic region, buttock or female breast.
3. "Specified Anatomical Areas"
(a) Less than completely and opaquely covered hu-
man genitals, pubic region, buttock, and fe-
79a
male breast below a point immediately above
the top of the areola; and
(b) Human male genitals in a discernible turgid
state, even if completely and opaquely covered.
SECTION II: There is hereby added a new Chapter
to Title IV (Building Regulations) of Ordinance No. 1628
entitled "Code of General Ordinances of the City of Ren-
ton" relating to adult motion picture theaters as follows:
A. Adult motion picture theaters are prohibited within
the area circumscribed by a circle which has a radius
consisting of the following distances from the following
specified uses or zones:
1. Within or within one thousand (1000') feet of any
residential zone (SR-1, SR-2, R-1, S-1, R-2, R-3,
R-4 or T) or any single family or multiple family
residential use.
2. One (1) mile of any public or private school
3. One thousand (1000') feet of any church or other
religious facility or institution.
4. One thousand (1000') feet of any public park or
P-1 zone.
B. The distances provided in this section shall be meas-
ured by following a straight line, without regard to in-
tervening buildings, from the nearest point of the prop-
erty parcel upon which the proposed use is to be located,
to the nearest point of the parcel of property or the land
use district boundary line from which the proposed land
use is to be separated.
SECTION III: This Ordinance shall be effective upon
its passage, approval and thirty days after its publication.
80a
PASSED BY THE CITY COUNCIL this 13th day of
April, 1981.
/s/ Delores A. Mead
DELORES A. MEAD
City Clerk
APPROVED BY THE MAYOR this 13th day of April,
1981.
/s/ Barbara Y. Shinpoch
BARBARA Y. SHINPOCH
Mayor
Approved as to form:
/s/ Lawrence J. Warren
LAWRENCE J. WARREN,
City Attorney
Date of Publication: May 15, 1981
81a
APPENDIX M
CITY OF RENTON, WASHINGTON
ORDINANCE NO. 3629
AN ORDINANCE OF THE CITY OF
RENTON, WASHINGTON RELATING TO
LAND USE AND ZONING
WHEREAS, on April 13, 1981, the City Council of the
City of Renton adopted Ordinance No. 3526, which Ordi-
nance was approved by the Mayor on April 13, 1981, and
became effective by its own terms on June 14, 1981; and
WHEREAS, it was the intention of the City Council
of the City of Renton in the adoption of that Ordinance
to rely upon the opinion of the United States Supreme
Court in the case of Young v. American Mini Theatres,
427 US 50, and of the Supreme Court of the State of
Washington in the case of Northend Cinemas v. Seattle,
90 Wn 2d, 709, to limit the location of adult motion pic-
ture theaters, as that term is defined therein, to promote
the City of Renton's great interest in protecting and
preserving the quality of its neighborhoods, commercial
districts, and the quality of urban life through effective
land use planning; and
WHEREAS, the City Council, through its Planning and
Development Committee, held a public meeting on March
5, 1981, to receive testimony from the public concerning
the subject of regulation of adult entertainment land uses,
at which the following testimony was received which the
City Council believes to be true, and which formed the
basis for the adoption of Ordinance No. 3526:
1. Areas within close walking distance of single and
multiple family dwellings should be free of adult
entertainment land uses.
2. Areas where children could be expected to walk,
patronize or recreate should be free of adult en-
tertainment land uses.
82a
3. Adult entertainment land uses should be located
in areas of the City which are not in close proxi-
mity to residential uses, churches, parks and
other public facilities, and schools.
4. The image of the City of Renton as a pleasant
and attractive place to reside will be adversely
affected by the presence of adult entertainment
land uses in close proximity to residential land
uses, churches, parks and other public facilities,
and schools.
5. Regulation of adult entertainment land uses
should be developed to prevent deterioration and/
or degradation of the vitality of the community
before the problem exists, rather than in response
to an existing problem.
6. Commercial areas of the City patronized by young
people and children should be free of adult enter-
tainment land uses.
7. The Renton School District opposes a location of
adult entertainment land uses within the perim-
eters of its policy regarding bussing of students,
so that students walking to school will not be sub-
jected to confrontation with the existence of adult
entertainment land uses.
8. The Renton School District finds that location of
adult entertainment land uses in areas of the City
which are in close proximity to schools, and com-
mercial areas patronized by students and young
people, will have a detrimental effect upon the
quality of education which the School District is
providing for its students.
9. The Renton School District finds that education
of its students will be negatively affected by loca-
tion of adult entertainment land uses in close
proximity to location of schools.
83a
10. Adult entertainment land uses should be regu-
lated by zoning to separate it from other dis-
similar uses just as any other land use should be
separated from uses with characteristics different
from itself.
11. Residents of the City of Renton, and persons who
are non-residents but use the City of Renton for
shopping and other commercial needs, will move
from the community or shop elsewhere if adult
entertainment land uses are allowed to locate in
close proximity to residential uses, churches,
parks and other public facilities, and schools.
12. Location of adult entertainment land uses in
proximity to residential uses, churches, parks and
other public facilities, and schools, may lead to
increased levels of criminal activities, including
prostitution, rape, incest and assaults in the vi-
cinity of such adult entertainment land uses.
13. Merchants in the commercial area of the City are
concerned about adverse impacts upon the char-
acter and quality of the City in the event that
adult entertainment land uses are located within
close proximity to residential uses, churches, parks
and other public facilities, and schools. Location
of adult entertainment land uses in close proxi-
mity to residential uses, churches, parks and
other public facilities, and schools, will reduce
retail trade to commercial uses in the vicinity,
thus reducing property values and tax revenues to
the City. Such adverse affect on property values
will cause the loss of some commercial establish-
ments followed by a blighting effect upon the com-
mercial districts within the City, leading to fur-
ther deterioration of the commercial quality of
the City.
14. Experience in numerous other cities, including
Seattle, Tacoma and Detroit, Michigan, has shown
84a
that location of adult entertainment land uses de-
grade the quality of the areas of the City in
which they are located and cause a blighting ef-
fect upon the city. The skid row effect, which is
evident in certain parts of Seattle and other cities,
will have a significantly larger affect upon the
City of Renton than other major cities due to the
relative sizes of the cities.
15. No evidence has been presented to show that loca-
tion of adult entertainment land uses within the
City will improve the commercial viability of the
community.
16. Location of adult entertainment land uses within
walking distance of churches and other religious
facilities will have an adverse effect upon the
ministry of such churches and will discourage at-
tendance at such churches by the proximity of
adult entertainment land uses.
17. A reasonable regulation of the location of adult
entertainment land uses will provide for the pro-
tection of the image of the community and its
property values, and protect the residents of the
community from the adverse effects of such adult
entertainment land uses, while providing to those
who desire to patronize adult entertainment land
uses such an opportunity in areas within the City
which are appropriate for location of adult en-
tertainment land uses.
19. The community will be an undesirable place to
live if it is known on the basis of its image as the
location of adult entertainment land uses.
20. A stable atmosphere for the rearing of families
cannot be achieved in close proximity to adult
entertainment land uses.
85a
21. The initial location of adult entertainment land
uses will lead to the location of additional and
similar uses within the same vicinity, thus multi-
plying the adverse impact of the initial location
of adult entertainment land uses upon the resi-
dential [sic], churches, parks and other public
facilities, and schools, and the impact upon the
image and quality of the character of the com-
munity.
and
WHEREAS, since the adoption of Ordinance No. 3526,
it has come to the attention of the City Council of the
City of Renton that it would be appropriate to set forth
in writing the findings of fact which were the basis for
the adoption by the City Council of Ordinance No. 3526;
and
WHEREAS, the City Council finds that, in order to
choose the least restrictive alternative available to ac-
complish the purposes for which Ordinance No. 3526 was
adopted, and to include a severability clause which was
inadvertently omitted from Ordinance No. 3526, and to
make certain other technical amendments to Ordinance
No. 3526, that it is necessary for the City Council to
adopt legislation amending Ordinance No. 3526 to accom-
plish the foregoing purposes; and
WHEREAS, the City Council, at its duly called special
meeting on February 25, 1982, held a public hearing upon
the subject matter of land use regulations of adult motion
pictures within the City of Renton, at which public hear-
ing the City Council received comments from the public
on that subject matter at which the following testimony
was received, which the City Council believes to be true,
and which, together with the findings heretofore set forth
as the basis for the adoption of Ordinance No. 3526, form
the basis for the adoption of this Ordinance:
1. Many parents have chosen the City of Renton in
which to raise their families because of the lack
86a
of pornographic entertainment outlets with its in-
fluence upon children external to the home.
2. Location of adult entertainment land uses on the
main commercial thoroughfares of the City gives
an impression of legitimacy to, and causes a loss
of sensitivity to the adverse affect of pornography
upon children, established family relations, re-
spect for marital relationships and for the sanc-
tity of marriage relations of others, and the con-
cept of non-aggressive consenual sexual relations.
3. Citizens from other cities and King County will
travel to Renton to view adult film fare away
from areas in which they are known and recog-
nized.
4. Property values in the areas adjacent to the adult
entertainment land uses will decline, thus causing
a blight upon the commercial area of the City of
Renton.
5. Location of adult entertainment land uses within
neighborhoods and commercial areas of the City
of Renton is disrupting to youth programs such
as Boy Scouts, Cub Scouts and Campfire Girls.
Many such youth programs use the commercial
areas of the City as a historical research resource.
Location of adult entertainment land uses in close
proximity to residential uses, churches, parks and
other public facilities and schools is inappropriate.
6. Location of adult entertainment land uses in close
proximity to residential uses, churches, parks and
other public facilities, and schools, will cause a
degradation of the community standard of moral-
ity. Pornographic material has a degrading effect
upon the relationship between spouses.
87a
NOW THEREFORE, THE CITY COUNCIL OF THE
CITY OF RENTON, WASHINGTON DO ORDAIN AS
FOLLOWS:
SECTION I: Existing Section 4-702 of Title IV
(Building Regulations) of Ordinance No. 1628 entitled
"Code of General Ordinances of the City of Renton" is
hereby amended by adding the following subsections:
"Used" The word "used" in the definition of "Adult
motion picture theater" herein, describes a continuing
course of conduct of exhibiting "specific sexual activities"
and "specified anatomical areas" in a manner which ap-
peals to a prurient interest.
SECTION II: Existing Section 4-735 of Title IV
(Building Regulations) of Ordinance No. 1628 entitled
"Code of General Ordinances of the City of Renton" is
hereby amended by adding the following subsections:
(C) Violation of the use provisions of this section is
declared to be a public nuisance per se, which shall be
abated by City Attorney by way of civil abatement pro-
cedures only, and not by criminal prosecution.
(D) Nothing in this section is intended to authorize,
legalize or permit the establishment, operation or mainte-
nance of any business, building or use which violates any
City of Renton ordinance or statute of the State of Wash-
ington regarding public nuisances, sexual conduct, lewd-
ness, or obscene or harmful matter or the exhibition or
public display thereof.
SECTION III: Existing subsection (A) (2) of Section
4-735 of Title IV (Building Regulations) of Ordinance
No. 1628 entitled "Code of General Ordinances of the City
of Renton" is hereby amended to read as follows:
2. One thousand feet (1,000') of any public or pri-
vate school.
88a
SECTION IV: City of Renton Ordinance No. 3526
is hereby amended by adding the following section to read
as follows:
If any section, subsection, sentence, clause, phrase or
any portion of this ordinance is for any reason held to be
invalid or unconstitutional by the decision of any court of
competent jurisdiction, such decision shall not affect the
validity of the remaining portions of this ordinance. The
City Council of the City of Renton hereby declares that it
would have adopted City of Renton Ordinance No. 3526
and each section, subsection, sentence, clause, phrase or
portion thereof irrespective of the fact that any one or
more sections, subsections, sentence, clauses, phrases or
portions be declared invalid or unconstitutional.
SECTION V: If any section, subsection, sentence,
clause, phrase or any portion of this ordinance is for any
reason held to be invalid or unconstitutional by the deci-
sion of any court of competent jurisdiction, such decision
shall not affect the validity of the remaining portions of
this ordinance. The City Council of the City of Renton
hereby declares that it would have adopted this ordinance
and each section, subsection, sentence, clause, phrase or
portion thereof irrespective of the fact that any one or
more sections, subsections, sentences, clauses, phrases or
portions be declared invalid or unconstitutional.
SECTION VI: The City Council of the City of Renton
finds and declares that an emergency exists because of
the pendency of litigation against the City of Renton in-
volving the subject matter of this ordinance, and potential
liability of the City of Renton for damages as pleaded in
that litigation, and that the immediate adoption of this
ordinance is necessary for the immediate preservation of
public peak [sic], health, and safety or for the support
of city government and its existing public institutions
and the integrity of the zoning of the City of Renton.
89a
Therefore, this ordinance shall take effect immediately
upon its passage and approval by the mayor.
PASSED BY THE CITY COUNCIL this 3th day of
May, 1982.
/s/ Delores A. Mead
DELORES A. MEAD
City Clerk
APPROVED BY THE MAYOR this 3th day of May,
1982.
/s/ Barbara Y. Shinpoch
BARBARA Y. SHINPOCH
Mayor
Approved as to form:
/s/ Lawrence J. Warren
LAWRENCE J. WARREN
City Attorney
Date of Publication: May 7, 1982
90a
APPENDIX N
CITY OF RENTON, WASHINGTON
ORDINANCE NO. 3637
AN ORDINANCE OF THE CITY OF RENTON,
WASHINGTON AMENDING ORDINANCE NO.
3526 RELATING TO LAND USE AND ZONING
AND AMENDING ORDINANCE NO. 3629 BY
DELETING THE EMERGENCY CLAUSE AND
RE-ENACTING THE REMAINDER THEREOF
WHEREAS, on April 13, 1981, the City Council of the
City of Renton adopted Ordinance No. 3526, which Ordi-
nance was approved by the Mayor on April 13, 1981, and
became effective by its own terms on June 14, 1981; and
WHEREAS, on May 3, 1982, the City Council of the
City of Renton adopted Ordinance No. 3629 amending
Ordinance No. 3526, which Ordinance was approved by
the Mayor on May 3, 1982, and became effective on its
passage and by the terms of the Ordinance; and
WHEREAS the City Council wishes to remove the
emergency clause from Ordinance No. 3629 and re-enact
the remainder of Ordinance No. 3629 in its entirety; and
WHEREAS, it was the intention of the City Council of
the City of Renton in the adoption of Ordinance No. 3526
to rely upon the opinion of the United States Supreme
Court in the case of Young v. American Mini Theatres,
427 US 50, and of the Supreme Court of the State of
Washington in the case of Northend Cinemas v. Seattle,
90 Wn 2d, 709, to limit the location of adult motion pic-
ture theaters as that term is defined therein, to promote
the City of Renton's great interest in protecting and
preserving the quality of its neighborhoods, commercial
districts, and the quality of urban life through effective
land use planning; and
WHEREAS, the City Council, through its Planning and
Development Committee, held a public meeting on March
91a
5, 1981, to receive testimony from the public concerning
the subject of regulation of adult entertainment land uses,
at which the following testimony was received which the
City Council believes to be true, and which formed the
basis for the adoption of Ordinance No. 3526:
1. Areas within close walking distance of single and
multiple family dwellings should be free of adult
entertainment land uses.
2. Areas where children could be expected to walk,
patronize or recreate should be free of adult en-
tertainment land uses.
3. Adult entertainment land uses should be located
in areas of the City which are not in close prox-
imity to residential uses, churches, parks and
other public facilities, and schools.
4. The image of the City of Renton as a pleasant
and attractive place to reside will be adversely
affected by the presence of adult entertainment
land uses in close proximity to residential land
uses, churches, parks and other public faciilties,
and schools.
5. Regulation of adult entertainment land uses
should be developed to prevent deterioration and/
or degradation of the vitality of the community
before the problem exists, rather than in response
to an existing problem.
6. Commercial areas of the City patronized by
young people and children should be free of adult
entertainment land uses.
7. The Renton School District opposes a location of
adult entertainment land uses within the perim-
eters of its policy regarding busing of students,
so that students walking to school will not be sub-
jected to confrontation with the existence of adult
entertainment land uses.
92a
8. The Renton School District finds that location of
adult entertainment land uses in areas of the City
which are in close proximity to schools, and com-
mercial areas patronized by students and young
people, will have a detrimental effect upon the
quality of education which the School District is
providing for its students.
9. The Renton School District finds that education
of its students will be negatively affected by loca-
tion of adult entertainment land uses in close
proximity to location of schools.
10. Adult entertainment land uses should be regula-
tions by zoning to separate it from other dis-
similar uses just as any other land use should be
separated from uses with characteristics different
from itself.
11. Residents of the City of Renton, and persons who
are non-residents but use the City of Renton for
shopping and other commercial needs, will move
from the community or shop elsewhere if adult
entertainment land uses are allowed to locate in
close proximity to residential uses, churches, parks
and other public facilities, and schools.
12. Location of adult entertainment land uses in
proximity to residential uses, churches, parks and
other public facilities, and schools, may lead to
increased levels of criminal activities, including
prostitution, rape, incest and assaults in the vi-
cinity of such adult entertainment land uses.
13. Merchants in the commercial area of the City are
concerned about adverse impacts upon the char-
acter and quality of the City in the event that
adult entertainment land uses are located within
close proximity to residential uses, churches,
parks and other public facilities, and schools.
Location of adult entertainment land uses in close
93a
proximity to residential uses, churches, parks and
other public facilities, and schools, will reduce re-
tail trade to commercial uses in the vicinity, thus
reducing property values and tax revenues to the
City. Such adverse affect on property values will
cause the loss of some commercial establishments
followed by a blighting effect upon the commer-
cial districts within the City, leading to further
deterioration of the commercial quality of the
City.
14. Experience in numerous other cities, including
Seattle, Tacoma and Detroit, Michigan, has shown
that location of adult entertainment land uses
degrade the quality of the area of the City in
which they are located and cause a blighting ef-
fect upon the City. The skid row effect, which is
evident in certain parts of Seattle and other
cities, will have a significantly larger affect upon
the City of Renton than other major cities due to
the relative sizes of the cities.
15. No evidence has been presented to show that lo-
cation of adult entertainment land uses within
the City will improve the commercial viability of
the community.
16. Location of adult entertainment land uses within
walking distance of churches and other religious
facilities will have an adverse effect upon the
ministry of such churches and will discourage at-
tendance at such churches by the proximity of
adult entertainment land uses.
17. A reasonable regulation of the location of adult
entertainment land uses will provide for the pro-
tection of the image of the community and its
property values, and protect the residents of the
community from the adverse effects of such adult
entertainment land uses, while providing to those
94a
who desire to patronize adult entertainment land
uses such an opportunity in areas within the City
which are appropriate for location of adult enter-
tainment land uses.
18. The community will be an undesirable place to
live if it is known on the basis of its image as
the location of adult entertainment land uses.
19. A stable atmosphere for the rearing of families
cannot be achieved in close proximity to adult en-
tertainment land uses.
20. The initial location of adult entertainment land
uses will lead to the location of additional and
similar uses within the same vicinity, thus multi-
plying the adverse impact of the initial location
of adult entertainment land uses upon the resi-
dential [sic], churches, parks and other public
facilities, and schools, and the impact upon the
image and quality of the character of the com-
munity.
and
WHEREAS, since the adoption of Ordinance No. 3526,
it has come to the attention of the City Council of the
City of Renton that it would be appropriate to set forth
in writing the findings of fact which were the basis for
the adoption by the City Council of Ordinance No. 3526;
and
WHEREAS, the City Council finds that, in order to
choose the least restrictive alternative available to accom-
plish the purposes for which Ordinance No. 3526 was
adopted, and in [sic] include a severability clause which
was inadvertently omitted from Ordinance No. 3526, and to
make certain other technical amendments to Ordinance
No. 3526, that it is necessary for the City Council to
adopt legislation amending Ordinance No. 3526 to accom-
plish the foregoing purposes; and
95a
WHEREAS, the City Council, at its duly called special
meeting on February 25, 1982, held a public hearing upon
the subject matter of land use regulations of adult motion
pictures within the City of Renton, at which public hear-
ing the City Council received comments from the public
on that subject matter at which the following testimony
was received, which the City Council believes to be true,
and which, together with the findings heretofore set forth
as the basis for the adoption of Ordinance No. 3256, form
the basis for the adoption of this Ordinance:
1. Many parents have chosen the City of Renton in
which to raise their families because of the lack
of pornographic entertainment outlets with its in-
fluence upon children external to the home.
2. Location of adult entertainment land uses on the
main commercial thoroughfares of the City gives
an impression of legitimacy to, and causes a loss
of sensitivity to the adverse affect of pornography
upon children, established family relations, respect
for marital relationship and for the sanctity of
marriage relations of others, and the concept of
non-aggressive consensual sexual relations.
3. Citizens from other cities and King County will
travel to Renton to view adult film fare away
from areas in which they are known and recog-
nized.
4. Property values in the areas adjacent to the adult
entertainment land uses will decline, thus causing
a blight upon the commercial area of the City of
Renton.
5. Location of adult entertainment land uses within
neighborhoods and commercial areas of the City
of Renton is disrupting to youth programs such
as Boy Scouts, Cub Scouts and Campfire Girls.
Many such youth programs use the commercial
96a
areas of the City as a historical research resource.
Location of adult entertainment land uses in close
proximity to residential uses, churches, parks and
other public facilities and schools is inappropri-
ate.
6. Location of adult entertainment land uses in close
proximity to residential uses, churches, parks and
other public facilities, and schools, will cause a
degradation of the community standard of moral-
ity. Pornographic material has a degrading effect
upon the relationship between spouses.
NOW THEREFORE, THE CITY COUNCIL OF THE
CITY OF RENTON, WASHINGTON DO ORDAIN AS
FOLLOWS:
SECTION I: Existing Section 4-702 of Title IV
(Building Regulations) of Ordinance No. 1628 entitled
"Code of General Ordinances of the City of Renton" is
hereby amended by adding the following subsections:
"Used" The word "used" in the definition of "Adult
motion picture theater" herein, describes a continuing
course of conduct of exhibiting "specific sexual activities"
and "specified anatomical area in a manner which appeals
to a prurient interest.
SECTION II: Existing Section 4-735 of Title IV
(Building Regulations) of Ordinance No. 1628 entitled
"Code of General Ordinances of the City of Renton" is
hereby amended by adding the following subsections:
(C) Violation of the use provisions of this section is
declared to be a public nuisance per se, which shall be
abated by City Attorney by way of civil abatement proce-
dures only, and not by criminal prosecution.
(D) Nothing in this section is intended to authorize,
legalize or permit the establishment, operation or mainte-
nance of any business, building or use which violates any
97a
City of Renton ordinance or statute of the State of Wash-
ington regarding public nuisances, sexual conduct, lewd-
ness, or obscene or harmful matter or the exhibition or
public display thereof.
SECTION III: Existing subsection (A) (2) of Sec-
tion 4-735 of Title IV (Building Regulations) of Ordi-
nance No. 1628 entitled "Code of General Ordinances of
the City of Renton" is hereby amended to read as follows:
2. One thousand feet (1,000') of any public or pri-
vate school.
SECTION IV: City of Renton Ordinance No. 3526 is
hereby amended by adding the following section to read
as follows:
If any section, subsection, sentence, clause, phrase or
any portion of this ordinance is for any reason held to be
invalid or unconstitutional by the decision of any court or
competent jurisdiction, such decision shall not affect the
validity of the remaining portions of this ordinance. The
City Council of the City of Renton hereby declares that it
would have adopted City of Renton Ordinance No. 3526
and each section, subsection, sentence, clause, phrase or
portion thereof irrespective of the fact that any one or
more sections, subsections, sentences, clauses, phrases or
portions be declared invalid or unconstitutional.
SECTION V: In any section, subsection, sentence,
clause, phrase or any portion of this ordinance is for any
reason held to be invalid or unconstitutional by the deci-
sion of any court of competent jurisdiction, such decision
shall not affect the validity of the remaining portions of
this ordinance. The City Council of the City of Renton
hereby declares that it would have adopted this ordinance
and each section, subsection, sentence, clause, phrase or
portion thereof irrespective of the fact that any one or
more sections, subsections, sentences, clauses, phrases or
portions be declared invalid or unconstitutional.
98a
SECTION VI: This ordinance shall be effective upon
its passage, and approval and thirty (30) days after its
publication.
PASSED BY THE CITY COUNCIL this 14th day of
June, 1982.
/s/ Delores A. Mead
DELORES A. MEAD
City Clerk
APPROVED BY THE MAYOR this 14th day of June,
1982.
/s/ Barbara Y. Shinpoch
BARBARA Y. SHINPOCH
Mayor
Approved as to form:
/s/ Lawrence J. Warren
LAWRENCE J. WARREN
City Attorney
Date of Publication: June 18, 1982
99a
APPENDIX 0
ORDINANCE NO. 742-G
IT IS HEREBY ORDAINED BY THE PEOPLE OF
THE CITY OF DETROIT:
Section 1. That Ordinance No. 390-G, entitled: "An
Ordinance to establish districts in the City of Detroit; to
regulate the use of land and structures therein, to regulate
and limit the heighth, the area, the bulk and location of
buildings; to regulate and restrict the location of trades
and industries and the location of buildings designed for
specified uses; to regulate and determine the area of
yards, courts and other open spaces; to regulate the den-
sity of population; to provide for the establishment of a
program to develop and upgrade the appearance of places
of businesses or other establishments and to provide a
local assessment district for the payment of the cost of
such improvements according to the benefits to be derived
therefrom; to provide for the administration and enforce-
ment of this Ordinance; to provide for a Board of Ap-
peals, and its powers and duties; and to provide a penalty
for the violation of the terms thereof," as amended, be
and the same is hereby amended by adding new sections
to be known as Section 32.0007, 32.0023, and 66.0103 and
by amending Sections 66.0000, 66.0101, 66.0102, 94.0300,
95.0300, 101.0100 and 102.0100, to read as follows:
Section 32.0007 Adult
Adult Book Store
An establishment having as a substantial or significant
portion of its stock in trade, books, magazines, and other
periodicals which are distinguished or characterized by
their emphasis on matter depicting, describing or relating
to "Specified Sexual Activities" or "Specified Anatomical
Areas", (as defined below), or an establishment with a
segment or section devoted to the sale or display of such
material.
100a
Adult Motion Picture Theater
An enclosed building with a capacity of 50 or more per-
sons used for presenting material distinguished or char-
acterized by an emphasis on matter depicting, describing
or relating to "Specified Sexual Activities" or "Specified
Anatomical Areas", (as defined below) for observation by
patrons therein.
Adult Mini Motion Picture Theater
An enclosed building with a capacity for less than 50
persons used for presenting material distinguished or
characterized by an emphasis on matter depicting de-
scribing, or relating to "Specified Sexual Activities" or
"Specified Anatomical Areas", (as defined below), for
observation by patrons therein.
For the purpose of this Section, "Specified Sexual Ac-
tivities" is defined as:
1. Human Genitals in a state of sexual stimulation or
arousal;
2. Acts of human masturbation, sexual intercourse or
sodomy;
3. Fonding or other erotic touching of human genitals,
public region, buttock or female breast.
And "Specified Anatomical Areas" is defined as:
1. Less than completely and opaquely covered: (a)
human genitals, pubic region, (b) buttock, and (c) fe-
male breast below a point immediately above the top of
the areola; and
2. Human male genitals in a discernibly turgid state,
even if completely and opaquely covered.
Section 32.0023 Cabaret
Group "D" Cabaret
101a
A cabaret which features topless dancers, go-go dancers,
exotic dancers, strippers, male or female impersonators,
or similar entertainers.
66.0000 Regulated Uses
In the development and execution of this Ordinance, it
is recognized that there are some uses which, because of
their very nature, are recognized as having serious ob-
jectionable operational characteristics, particularly when
several of them are concentrated under certain circum-
stances thereby having a deleterious effect upon the adja-
cent areas. Special regulation of these uses is necessary
to insure that these adverse effects will not contribute to
the blighting or downgrading of the surrounding neigh-
borhood. These special regulations are itemized in this
section. The primary control or regulation is for the pur-
pose of preventing a concentration of these uses in any
one area (i.e. not more than two such uses within one
thousand feet of each other which would create such ad-
verse effects).
Uses subject to these controls are as follows:
Adult
Adult Book Store
Adult Motion Picture Theater
Adult Mini Motion Picture Theater
Cabaret
Group "D" Cabaret
Establishments for the sale of beer or intoxicating
liquor for consumption on the premises.
Hotel or motels
Pawnshops
Pool or billiard halls
102a
Public lodging houses
Secondhand stores
Shoeshine parlors
Taxi dance halls
Section 66.0101.
The Commission may waive this locational provision for
Adult Book Stores, Adult Motion Picture Theaters, Adult
Mini Motion Picture Theaters, Group "D" Cabaret, hotels
or motels, pawnshops, pool or billiard halls, public lodging
houses, second hand stores, shoeshine parlors, or taxi dance
halls if the following findings are made:
a) That the proposed use will not be contrary to the pub-
lic interest or injurious to nearby properties, and that
the spirit and intent of this Ordinance will be ob-
served.
b) That the proposed use will not enlarge or encourage
the development of a "skid row" area.
c) That the establishment of an additional regulated use
in the area will not be contrary to any program of
neighborhood conservation nor will it interfere with
any program of urban renewal.
d) That all applicable regulations of this Ordinance will
be observed.
Section 66.0102
For establishments for the sale of beer or intoxicating
liquor for consumption on the premises, the Common
Council may waive the locational requirements if the find-
ings required in Section 66.0101 (a) through (d) can be
made or waived for just cause and after receiving a re-
port and recommendations from the City Plan Commis-
sion.
Section 66.0103
103a
It shall be unlawful to hereafter establish any Adult
Book Store, Adult Motion Picture Theater, Adult Mini
Theater or Class "D" Cabaret within 500 feet of any
building containing a residential, dwelling or rooming
unit. This prohibition may be waived if the person ap-
plying for the waiver shall file with the City Plan Com-
mission a petition which indicates approval of the pro-
posed regulated use by 51 per cent of the persons owning,
residing or doing business within a radius of 500 feet of
the location of the proposed use, the petitioner shall at-
tempt to contact all eligible locations within this radius,
and must maintain a list of all addresses at which no
contact was made.
The Commissioner of the Department of Buildings and
Safety Engineering shall adopt rules and regulations gov-
erning the procedure for securing the petition of consent
provided for in this section of the ordinance. The rules
shall provide that the circulator of the petition requesting
a waiver shall subscribe to an affidavit attesting to the
fact that the petition was circulated in accordance with
the rules of the Department of Buildings and Safety
Engineering and that the circulator personally witnessed
the signatures on the petition and that the same were
affixed to the petition by the person whose name appeared
thereon.
The City Plan Commission shall not consider the waiver
of locational requirements set forth in Section 66.0000
to 66.0102 until the above described petition shall have
been filed and verified.
94.0300 Permitted with Approval Uses
The following uses, and uses accessory thereto, shall be
permitted by the Commission, or Council if specified, and
subject to compliance with the provisions and standards
as set forth in Article VI, Section 65.0000 and to all con-
ditions hereinafter listed.
104a
Adult
Adult Book Stores as regulated by Section 66.0000.
Adult Motion Picture Theater as regulated by Section
66.0000.
Adult Mini Motion Picture Theater as regulated by
Section 66.0000.
Cabaret
Group "D" Cabaret as regulated by Section 66.0000.
Confection manufacture.
Dental products, surgical, or optical goods manufacture.
Fraternity or sorority houses.
Go-Cart tracks, subject to the following requirements,
except as may be adjusted by the Commission:
a) Parking areas shall be surfaced with gravel, slag, or
other comparable material and treated so as to pre-
vent the raising of dust.
b) Ingress or egress shall be only from the principal
street side of the property as may be determined by
the Commission.
c) If lighting is provided, all such lighting shall be sub-
dued, shaded, and focused away from all dwellings.
d) An opaque fence or wall of wood or masonary con-
struction, six feet in height, shall be constructed be-
tween the approved site and any adjacent property
zoned in a residential district classification. If such
fence is of wood construction, the design and type
of fence shall be subject to the approval of the
Commission.
e) In all instances where a wall or fence is required,
said wall or fence shall be protected from possible
damage inflicted by vehicles using the parking area
105a
by means of precast concrete wheel stops at least
six inches in height, or by firmly implanted bumper
guards not attached to the wall or fence, or by other
suitable barriers.
f) No part of the driving track shall be within 300
feet of property zoned in a residential district clas-
sification.
g) Any track surface or other area to be used for the
operation of a go-cart shall be of an asphaltic or
concrete material.
h) All light standards, poles, or other appurtenances
shall be effectively padded or screened so as to pre-
vent injury to drivers of the vehicles; baled hay or
other suitable shock absorbing material shall be
placed around all turns or curves in the track.
i) All vehicles shall be provided with mufflers to elimi-
nate objectionable noise. The Commission may re-
quire a change in mufflers to reduce exhaust noises,
if, in its opinion, such noise becomes a nuisance.
j) Permitted hours of operation shall be 10:00 A.M. to
10:00 P.M. Monday through Saturday, and 12:00
noon to 10:00 P.M. on Sundays.
Jewelry manufacture
Lithographing
Miniature golf courses, subject to the following require-
ments, except as may be adjusted by the Commission:
a) Parking areas shall be surfaced with gravel, slag,
of other comparable material and treated so as to
prevent the raising of dust.
bl Ingress and egress shall be only from the principal
street side of the property as may be determined by
the Commission.
106a
c) If lighting is provided, all such lighting shall be
subdued, shaded, and focused away from all dwell-
ings.
d) An opaque fence or wall of wood or masonary con-
struction, six feet in height, shall be constructed be-
tween the approved site and any adjacent property
zoned in a residential district classification. If such
fence is of wood construction, the design and type of
fence shall be subject to the approval of the Commis-
sion.
e) In all instances where a wall or fence in required,
said wall or fence shall be protected from possible
damage inflicted by vehicles using the parking area
by means of precast concrete wheel stops at least
six inches in height, or by firmly implanted bumper
guards not attached to the wall or fence, or by other
suitable barriers.
f) Loudspeakers or public address systems may be used
only for control purposes, shall play no music, and
shall be removed if, in the opinion of the Commis-
sion, such operation constitutes a nuisance.
g) No part of the playing surface of a miniature golf
course shall be located within fifty (50) feet of any
property zoned in a residential district classifica-
tion.
h) Permitted hours of operation shall be 8:00 A.M. to
10:30 P.M. Monday through Saturday, and 12:00
noon to 10:30 P.M. Sunday.
Motels or hotels as regulated by Section 66.0000
Motor vehicle body or fender bumping and painting
shops and major motor repairing provided that all opera-
tions are conducted entirely within a building, and fur-
ther provided that any wall facing, abutting, or adjacent
to residentially zoned property shall consist of a solid
blank wall with no openings whatsoever, excepting that a
107a
required secondary exit door, of minimum requirements,
shall be permitted and provided further, that all open
storage vehicles awaiting repairs or service be enclosed by
an opaque wall or fence of masonry or wood construction
six feet in height and maintained in a neat and orderly
fashion at all times.
Multiple family dwellings, which may contain non-
residential uses as specified in Article VIII, Section
86.0113.
Photoengraving.
Printing or engraving shops
Public lodging houses, as regulated by Section 66.000
Rebound tumbling centers, subject to the following re-
quirements, except as may be adjusted by the Commis-
sion:
a) Parking areas shall be surfaced with gravel, slag, or
other comparable material and treated so as to pre-
vent the raising of dust.
b) Ingress and egress shall be only from the principal
street side of the property as may be determined by
the Commission.
c) If lighting is provided, all such lighting shall be sub-
dued, shaded, and focused away from all dwellings.
d) An opaque fence or wall of wood or masonary con-
struction, six feet in height, shall be constructed be-
tween the approved site and any adjacent property
zoned in a residential district classification. If such
fence is of wood construction, the design and type
of fence shall be subject to the approval of the Com-
mission.
e) In all instances where a wall or fence shall be pro-
tected from possible damage inflicted by vehicles us-
ing the parking area by means of precast concrete
108a
wheel stops at least six inches in height, or by firmly
implanted bumper guards not attached to the wall
or fence, or by other suitable barriers.
f) Loudspakers or public address systems may be used
only for control purposes, shall play no music, and
shall be removed if, in the opinion of the Commis-
sion, such operation constitutes a nuisance.
g) No rebound tumbling apparatus or part thereof
shall be located within one hundred feet of any
property zoned in a residential district classification.
h) Permitted hours of operation shall be 8:00 A.M.
to 10:30 P.M. Monday through Saturday, and 12:00
noon to 10:30 P.M. Sunday.
Residential uses combined in structures with permitted
commercial or other uses
Restaurants, drive-in, when located on a street desig-
nated on the master plan of trafficways as a major thor-
oughfare, subject to the following requirements except as
may be adjusted by the Commission or Council:
a) An unpierced masonry wall or opaque wood fence
six feet in height shall be provided on all sides of
the premises so used; provided, that in all instances
where a wall or fence is required, said wall or fence
shall be protected from possible damage inflicted
by vehicles using the parking area by means of pre-
cast concrete wheel stops at least six inches in
height, or by firmly implanted bumper guards not
attached to the wall or fence, or by other suitable
barriers.
b) On the side of the property abutting the access
street, the above described wall or opaque wood
fence may be reduced to a height of three feet six
inches.
c) Wire mesh fencing not exceeding two inch mesh and
made of number nine or heavier wire may be used
109a
in lieu of a masonry wall on those lot lines not ad-
jacent to a street or alley but contiguous to prop-
erty zoned in a business or industrial district clas-
sification.
d) No fence or wall shall be required on that portion
of a lot line where there is a building or structure
serving the purpose of a fence or wall. Any such
building or structure located on adjacent property
shall be protected from damage as specified in a)
above.
e) The entire parking area shall be paved with a per-
manent surface of concrete or asphaltic cement and
shall be graded and drained in accordance with the
city plumbing code. Any unpaved area of the site
shall be landscaped with lawn or other horticultural
materials, maintained in a neat and orderly fashion
at all times, and separated from the paved area by
a raised curb or other equivalent barrier.
And Provided, that a written report of the Commis-
sion's decision shall be filed with the Common Council,
which shall become final 30 days after the filing thereof
unless within that time a protest against such decision is
filed with the Council signed by the applicant or by an
owner of property within 300 feet of the premises in
question. In such event the Council shall, by resolution,
approve or disapprove such use.
Rooming houses
Single or two-family dwellings, which may contain
home occupations as regulated in Section 83.0105, para-
graphs b through h
Special small tool, die, and gauge manufacturing em-
ploying not more than 15 persons in manufacturing opera-
tions, Provided, that a written report of the Commission's
decision shall be filed with the Common Council, which
shall become final 30 days after the filing thereof unless
110a
within that time a protest against such decision is filed
with the Council signed by the applicant or by an owner
of property within 300 feet of the premises in question.
In such event the Council shall, by resolution, approve or
disapprove such use.
Taxi dance halls, as regulated by Section 66.0000
Toiletries or cosmetics goods manufacture
Town houses
Wearing apparel manufacture
Wholesaling, warehousing, storage, or transfer build-
ings, but excluding steel warehousing, storage of bulk
petroleum or related products, or garbage or rubbish. All
materials must be completely enclosed within a building.
Uses similar to the above specified uses
95.0300 Permitted with Approval Uses
The following uses, and uses accessory thereto, shall
be permitted by the Commission, or Council if specified,
and subject to compliance with the provisions and stand-
ards as set forth in Section 65.0000 and to all conditions
hereinafter listed.
Adult
Adult Book Store as regulated by Section 66.0000.
Adult Motion Picture Theater as regulated by Section
66.0000.
Adult Mini Motion Picture Theater as regulated by
Section 66.0000.
Cabaret
Group "D" Cabaret as regulated by Section 66.0000.
Heliports, subject to the approval of the Common Coun-
cil after report and recommendation from the Detroit
Aviation Commission and the City Plan Commission and
111a
upon finding that such use is suitable in relation to the
features and objectives of the master plan and not con-
trary to the spirit, intent, and purpose of this district.
Motor vehicle body or fender bumping and painting
shops and major motor repairing provided that all op-
erations are conducted entirely within a building, and
further, provided, that any wall facing, abutting, or ad-
jacent to residentially zoned property shall consist of a
solid blank wall with no openings whatsoever, excepting
that a required secondary exit door, of minimum require-
ments, shall be permitted, and provided further, that all
open storage of vehicles awaiting repairs or service shall
be enclosed by an opaque wall or fence six feet in height
and maintained in a neat and orderly fashion at all times.
Multiple-family dwellings, which may be combined in
structures with permitted commercial uses
Public lodging houses, as regulated by Section 66.0000
Rooming houses
Taxi dance halls, as regulated by Section 66.0000
Town houses
Wholesaling, warehousing, storage, or transfer build-
ings, but excluding steel warehousing, storage of bulk
petroleum or related prducts, or garbage or rubbish. All
material must be completely enclosed within a building.
The following manufacturing uses:
Wearing apparel manufacturing
Confection manufacturing
Dental products, surgical, or optical goods manufac-
turing
Jewelry manufacturing
Toiletries or cosmetic manufacturing
112a
Similar manufacturing uses as determined by the Com-
mission
101.0100 Uses Permitted as a Matter of Right
All uses permitted as a matter of right in the B4 or
B5 Districts excepting new residential uses and hospitals
or other institutions for the care of humans, hotels or
motels; and provided, that the provisions of Section
66.0000 shall also apply to this Section 101.0100.
102.0100 Uses Permitted as a Matter of Right
Uses permitted as a matter of right in the B4 or
B5 districts, except public or private elementary, junior
high, or high schools; new residential uses; hotels or mo-
tels, hospitals or other institutions for the care of hu-
mans; and provided, that the provisions of Section 66.0000
shall also apply to this Section 102.0100.
Uses permitted as a matter of right in the B6 dis-
trict except wholesale or retail produce markets, stor-
age or killing of poultry or small game for retail or
wholesale trade, and meat or fish products manufacture
or processing; and provided, that the provisions of Sec-
tion 66.0000 shall also apply to this Section 102.0100.
Section 2. All ordinances or parts of ordinances in
conflict herewith are hereby repealed only to the extent
necessary to give this ordinance full force and effect.
(JCC p. 2425-30, October 3, 1972)
Passed October 24, 1972.
Approved October 26, 1972.
Published November 1, 2, 3, 1972.
Effective November 2, 1972.
GEORGE C. EDWARDS
City Clerk
113a
APPENDIX P
AN ORDINANCE to amend Chapter 5, Article 2 of the
Code of Detroit by amending Sections 5-2-1.1, 5-2-3
and 5-2-24, and by adding new sections to be known
as Sections 5-2-1.2, 5-2-9.1 and 5-2-24.1 to include coin
operated motion picture devices, adult motion picture
theaters, adult mini motion picture theaters, drive-in
theaters and concert halls and setting forth the re-
quirements therefor.
IT IS HEREBY ORDAINED BY THE PEOPLE OF
THE CITY OF DETROIT:
Section 1. That Chapter 5, Article 2 of the Code of
the City of Detroit be amended by amending Sections
5-2-1.1, 5-2-3 and 5-2-24, and by adding new sections to
be known as Sections 5-2-1.2, 5-2-9.1 and 5-2-24.1 to read
as follows:
Sec. 5-2-1.1.
No amusement consisting of an amusement park, ar-
cade, archery gallery, baseball batting and practice net,
outdoor circus, menagerie or exhibits, concert cafe, con-
cert hall, coin-operated motion picture device, golf school,
including driving nets, putting greens, practice driving
courses or miniature golf courses, kiddie ride, riding de-
vice, shooting gallery, tracks, including bicycles, go-cart,
midget auto racing or similar devices, or rebound tum-
bling or trampoline center shall hereafter be established
within the city unless a petition shall be filed with the
police department signed by fifty-one per cent of the
people living or doing business within a radius of five
hundred feet of the premises upon which the amusement
is to be established; provided, that miniature golf courses
may be established upon the petition of fifty-one per cent
of the people living or doing business within a radius
of two hundred feet of the premises upon which such
miniature golf course is to be established.
114a
It shall be unlawful for any person to hereafter op-
erate an Adult Motion Picture Theater, Adult Mini Mo-
tion Picture Theater or Drive-in Theater until he shall
have complied with the requirements of the Official Zon-
ing Ordinance, the provisions of this article and other
applicable ordinances of the City of Detroit.
Sec. 5-2-1.2. Definitions
For the purpose of this article the following words and
phrases shall have the meanings respectively ascribed to
them by this section:
Adult Motion Picture Theater:
An enclosed building with a capacity of 50 or
more persons used for presenting material distin-
guished or charcterized by an emphasis on matter
depicting, describing or relating to "Specified Sexual
Activities" or "Specified Anatomical Areas", (as de-
fined below), for observation by patrons therein.
Adult Mini Motion Picture Theater:
An enclosed building with a capacity for less than
50 persons used for presenting material distin-
guished or charcterized by an empahsis on matter
depicting, describing or relating to "Specified Sexual
Activities" or "Specified Anatomical Areas", (as de-
fined below) for observation by patrons therein.
"Specified Sexual Activities":
1. Human genitals in a state of sexual stimulation
or arousal;
2. Acts of human masturbation, sexual intercourse
or sodomy;
3. Fondling or other erotic touching of human geni-
tals, pubic region, buttock or female breast.
"Specified Anatomical Areas":
1. Less than completely and opaquely covered;
115a
(a) Human genitals, pubic region, (b) buttock,
and
(c) female breast below a point immediately
above the top of the areola; and
2. Human male genitals in a discernibly turgid
state, even if completely and opaquely covered.
Sec. 5-2-3.
The Mayor may refuse to issue a license for the op-
eration of any business regulated by this article, and
may revoke any license already issued upon proof sub-
mitted to him of the violation by an applicant, or licensee,
his agent or employee, within the preceding two years, of
any criminal statute of the State, or of any ordinance
of this city regulating, controlling or in any way relat-
ing to the construction, use or operation of any of the
establishments included in this article which evidences
a flagrant disregard for the safety or welfare of either
the patrons, employees, or persons residing or doing bus-
iness nearby.
Sec. 5-2-9.1
It shall be unlawful for any licensee, his agent or em-
ployee to knowingly permit any exhibition or advertising
in connection with any establishment regulated under
this article depicting, describing or relating to "Specified
Sexual Acitvities" or "Specified Anatomical Area" to be
displayed in any manner which is visible from any pub-
lic street or highway.
Sec. 5-2-24. The license fee for all motion picture
theaters, except adult motion picture theaters and adult
mini motion picture theaters including all motion pic-
ture theaters which, in addition to motion pictures, offer
other entertainment, amusement or diversions or which,
in addition to motion pictures, offer or exhibit regular
stage shows, so-called, or theatricals, shall be based on
seating capacity as follows:
116a
(a) Under five fundred seats, fifty-five dollars an-
nually.
(b) Five hundred to one thousand seats, seventy dol-
lars annually.
(c) One thousand one to two thousand seats, ninety-
five dollars annually.
(d) Over two thousand seats, one hundred seventy
dollars annually.
Sec. 5-2-24.1. The license fee for all adult motion pic-
ture theaters and adult mini motion picture theaters,
including those which, in addition to adult motion pic-
tures offer other entertainment, amusement or diversions
or which, in addition to adult motion pictures offer or
exhibit regular stage shows so-called, or theatricals, shall
be based on seating capacity as follows:
(A) Adult mini motion picture theaters having less
than fifty seats, fifty-five dollars annually.
(B) Adult motion picture theaters:
1. Fifty to five hundred seats, fifty-five dollars an-
nually.
2. Five hundred one to one thousand seats, seventy
dollars annually.
3. One thousand one to two thousand seats, ninety-
five dollars annually.
4. Over two thousand seats, one hundred seventy
dollars annually.
Section 2. This ordinance is declared necessary for the
preservation of the public peace, health, safety and wel-
fare of the people of the City of Detroit and is hereby
given immediate effect.
Section 3. All ordinances or parts of ordinances in
conflict herewith are hereby repealed only to the extent
necessary to give this ordinance full force and effect.
117a
(JCC p. 2430-32, October 3, 1972)
Passed October 24, 1972.
Approved October 26, 1972.
Published November 1, 2, 3, 1972.
Effective November 2, 1972.
GEORGE C. EDWARDS
City Clerk
118a
APPENDIX Q
ORDINANCE NO. 891-G
CHAPTER 68
AMENDMENT TO TEXT OF ZONING ORDINANCE
Requirement of consent of 51% of adjacent property
owners to waive prohibition against establishment
of adult businesses in certain areas of city.
AN ORDINANCE to amend Ordinance No. 390-G, en-
titled: "An Ordinance to establish districts in the City
of Detroit; to regulate the use of land and structures
therein; to regulate and limit the height, the area, the
bulk and location of buildings; to regulate and restrict
the location of trades and industries and the location
of buildings designed for specified uses; to regulate
and determine the area of yards, courts and other
open spaces; to regulate the density of population; to
provide for the establishment of a program to develop
and upgrade the appearance of places of businesses or
other establishments and to provide a local assessment
district for the payment of the cost of such improve-
ments according to the benefits to be derived there-
from; to provide for the administration and enforce-
ment of this Ordinance; to provide for a Board of Ap-
peals, and its powers and duties; and to provide a pen-
alty for the violation of the terms thereof," as amended,
by amending Sections 66.0103, 101.0300, 102.0300 and
104.0100.
WHEREAS, It has been demonstrated that the estab-
lishment of adult businesses in business districts, which
are immediately adjacent to and which serve residential
neighborhoods, has a deleterious effect on both the busi-
ness and residential segments of the neighborhood, caus-
ing blight and a downgrading of property values; and
119a
WHEREAS, The prohibition against the establishment
of more than two regulated uses within 1,000 feet of each
other serves to avoid the clustering of certain businesses
which, when located in close proximity to each other,
tend to create a "skid row" atmosphere; and
WHEREAS, Such prohibition fails to avoid the deleter-
ious effects of blight and devaluation of both business and
residential property values resulting from the establish-
ment of an adult book store, adult motion picture theatre,
adult mini motion picture theatre or Group "D" cabaret
in a business district which is immediately adjacent to
and which serves residential neighborhoods; and
WHEREAS, Concern for, and pride in, the orderly
planning and development of a neighborhood should be
encouraged and fostered in those persons who comprise
the business and residential segments of that neighbor-
hood; and
WHEREAS, Those business districts in the City of
Detroit which serve residential areas (and the downtown
loop area which serves the whole city), are designated
as B1, B2, B3, B4, B5, and B6 zoned districts; and
WHEREAS, Adult motion picture theatres, adult mini
motion picture theatres, adult book stores and Group "D"
cabarets are not permitted in B1, B2 or B3 zoned dis-
tricts, and are only permitted with the approval of the
City Plan Commission in B4, B5 and B6 zoned districts;
and
WHEREAS, the City Plan Commission should be guided
by the expressed will of those businesses and residents
which are immediately adjacent to the proposed location
of, and therefore most affected by the existence of, any
adult motion picture theatre, adult mini motion picture
theatre, adult book store or Group "D" cabaret in a
B4, B5 or B6 zoned district;
120a
IT IS HEREBY ORDAINED BY THE PEOPLE OF
THE CITY OF DETROIT:
Section 1. That Ordinance No. 390-G, entitled: "An
Ordinance to establish districts in the City of Detroit;
to regulate the use of land and structures therein; to
regulate and limit the height, the area, the bulk and
location of buildings; to regulate and restrict the loca-
tion of trades and industries and the location of buildings
designed for specified uses; to regulate and determine the
area of yards, courts and other open spaces; to regulate
the density of population; to provide for the establish-
ment of a program to develop and upgrade the appear-
ance of places of businesses or other establishments and
to provide a local assessment district for the payment of
the cost of such improvements according to the benefits
to be derived therefrom; to provide for the administra-
tion and enforcement of this Ordinance; to provide for
a Board of Appeals, and its powers and duties; and to
provide a penalty for the violation of the terms thereof,"
as amended, be and the same is hereby amended by
amending Sections 66.0103, 101.0300, 102.0300, and
104.0100, to read as follows:
Section 66.0103
It shall be unlawful to hereafter establish any Adult
Bookstore, Adult Motion Picture Theatre, Adult Mini
Motion Picture Theatre or Group "D" Cabaret in a B4,
B5 or B6 Zoned District if the proposed location is within
500 feet of a Residentially Zoned District. This prohibi-
tion shall be waived upon the presentment to the City
Plan Commission of a validated petition requesting such
waiver, signed by 51% of those persons owning, residing,
or doing business within 500 feet of the proposed location.
The Commissioner of the Department of Buildings and
Safety Engineering shall adopt rules and regulations gov-
erning the procedure for securing the petition of consent
provided for in this section of the ordinance. The rules
121a
shall provide that the circulator of the petition requesting
a waiver shall subscribe to an affidavit attesting to the
fact that the petition was circulated in accordance with
the rules of the Department of Buildings and Safety En-
gineering and that the circulator personally witnessed
the signatures on the petition and that the same were
affixed to the petition by the person whose name ap-
peared thereon.
The City Plan Commission shall not consider the
waiver of locational requirements set forth in Sections
66.0000 to 66.0102 until the above described petition, if
required shall have been filed and verified.
Section 101.0300
The following uses, and uses accessory thereto, shall be
permitted by the Commission, or Council if specified, and
subject to compliance with the provisions and standards
as specified in Section 65.0000 and to all conditions here-
inafter listed.
Adult
Adult Book Stores as regulated by Section 66.0000.
Adult Motion Picture Theaters as regulated in Section
66.0000.
Adult Mini Motion Picture Theaters as regulated by
Section 66.0000.
Cabaret
Group "D", Cabarets as regulated by Section 66.0000.
Uses permitted as a matter of right in the M2 district
Hotels or motels as regulated by Section 66.0000
Section 102.0300
The following uses and uses accessory thereto shall be
permitted by the Commission, or Council if specified, and
subject to compliance with the provisions and standards
122a
as set forth in Article VI, Section 65.0000 and to any
other conditions hereinafter listed. For heliports and
industrial uses, the Commission may approve the use only
after a report and recommendation has been received
from the Industrial Review Committee.
Any use permitted as a matter of right in the M3
district
Adult
Adult Book Stores as regulated by Section 66.0000.
Adult Motion Picture Theaters as regulated by Section
66.0000.
Adult Mini Motion Picture Theaters as regulated by
Section 66.0000.
Cabaret
Group "D", Cabarets as regulated by Section 66.0000.
Heliports
Hotels or motels
Section 104.0100
Uses permitted as a matter of right in the M3 District
Adult
Adult Book Stores as regulated by Section 66.0000.
Adult Motion Picture Theaters as regulated by Section
66.0000.
Adult Mini Motion Picture Theaters as regulated by
Section 66.0000.
Cabaret
Group "D" Cabarets as regulated by Section 66.0000
Abrasives manufacture
Acetylene manufacture
123a
Ammonia manufacture
Annealing or heat treating plants
Balls or bearings manufacture
Battery rebuilding
Bed spring manufacture
Bleaching powder manufacture
Boiler works
Bolts or nuts manufacture
Brick or building block manufacture
Candle manufacture
Carbonic gas manufacture or storage
Carbonic ice manufacture
Cattle or sheep dip manufacture
Cellophane or celluloid manufacture
Ceramic products manufacture
Chlorine gas manufacture
Clay products manufacture
Concrete batching plants
Concrete pipe or concrete pipe products manufacture
Dextrine manufacture
Docks (waterway shipping)
Dyestuffs manufacture
Elevators, grain
Engine manufacture
Feed or gain mill
Felt manufacture
Glass manufacture
124a
Glucose manufacture
Graphite manufacture
Gutta percha manufacture or treatment
Ink manufacture (from basic substance)
Jute fabrication
Open storage of equipment or supplies for building or
construction contractors
Pharmaceutical products manufacture
Phenol manufacture
Proxylin plastic manufacture or processing
Roofing materials manufacture excluding tar products
Rope manufacture
Rug manufacture
Salt works
Sewage disposal plants
Shoe polish manufacture
Soap manufacture
Starch manufacture
Steam generating plants
Sugar refining
Terra cotta manufacture
Tire manufacture
Turpentine manufacture
Wallboard manufacture
Wholesaling, warehousing, storage, or transfer building
Wire manufacture
Yeast manufacture
125a
Uses similar to the above specified uses
Accessory uses, incidental to and on the same zoning
lot as the principal use
Section 2. This Ordinance is declared necessary for the
preservation of the public peace, health, safety, and wel-
fare of the people of the City of Detroit and is hereby
given immediate effect.
(JCC p. 707-710, April 2, 1974).
Passed April 23, 1974.
Approved April 30, 1974
Published May 1, 2, 3, 1974.
Effective May 2, 1984.
JAMES H. BRADLEY
City Clerk
126a
APPENDIX R
ORDINANCE NO. 105565
AN ORDINANCE relating to land use and zoning;
amending Section 3.21, 5.3, 16.2 and 17.2 of the Zoning
Ordinance (86300) to define "adult motion picture
theater", to permit such use only in the BM, CM and
CMT zones, and to provide for termination of such
uses in all other zones.
BE IT ORDAINED BY THE CITY OF SEATTLE AS
FOLLOWS:
Section 1. That Section 3.21 of the Zoning Ordinance
(86300), as last amended by Ordinance 98426, is further
amended to read as follows:
THEATER, ADULT MOTION PICTURE
An enclosed building used for presenting motion pic-
ture films distinguished or characterized by an emphasis
on matter depicting, describing or relating to "Specified
Sexual Activities" or "Specified Anatomical Areas", as
hereinafter defined, for observation by patrons therein:
"Specified Sexual Activities":
1. Human genitals in a state of sexual stimulation
or arousal;
2. Acts of human masturbation, sexual intercourse
or sodomy;
3. Fondling or other erotic touching of human geni-
tals, pubic region, buttock or female breast.
"Specified Anatomical Areas":
1. Less than completely and opaquely covered:
(a) Human genitals, pubic region, (b) buttock,
and (c) female breast below a point immediately
above the top of the areola; and
127a
2. Human male genitals in a discernibly turgid
state, even if completely and opaquely covered.
TOWER STRUCTURE
A building or building part, more than sixty (60)
feet in height and normally residential in design,
which may or may not be built on top of a base
structure.
TRADE OR BUSINESS SCHOOL
An establishment conducted as a commercial enter-
prise for teaching trades, business or secretarial
courses, instrumental or vocal music, art, dancing,
barbering or hairdressing or for teaching similar
skills.
TRAILER HOUSE (See House Trailer)
TRAILER PARK
Any lot or any portion of any lot used or offered for
use for the accomodation of inhabited house trailers
for compensation.
TRUCK AND TRAILER SALES LOT
An outdoor area used for the display, sale or rental
of new or used trucks or truck trailers, where no
repair work is done except minor incidental repair
to vehicles to be displayed, sold or rented on the
premises.
Section 2. That Section 5.3 of the Zoning Ordinance
(86300), as last amended by Ordinance 104971, is fur-
ther amended to read as follows:
Section 5.3 Nonconforming Uses and Buildings
5.31 Continuing Existing Use
Any nonconforming building or use may be con-
tinued, subject, however, to provisions of Section
5.3.
128a
5.32 Buildings Nonconforming as to Bulk
Any building conforming as to use but which is a
building nonconforming as to bulk as of the effec-
tive date of this Ordinance may be altered, repaired
or extended; provided, that such alteration, repair
or extension does not cause such building to fur-
ther exceed the bulk provisions of this Ordinance.
5.33 Termination of certain Nonconforming Uses
(a) Any nonconforming use not involving a struc-
ture or one involving a structure having as-
sessed value of less than one hundred dollars
($100) on the effective date of this Ordinance
may be continued for no longer than one year
after said date, and any nonconforming use in-
volving a structure having an assessed value of
more than one hundred dollars ($100) but less
than three hundred dollars ($300) on the effec-
tive date of this Ordinance may be continued no
longer than two years after said date; provided,
however, the above provisions shall not apply to
any nonconforming advertising sign.
(b) All advertising signs in R and BN Zones which
have been nonconforming uses for a period of
three or more years prior to July 1, 1962, shall
be discontinued by July 1, 1963, and all other
nonconforming advertising sign uses in R and
BN Zones shall be discontinued within three
years of the date such sign became or becomes
a nonconforming use; provided, that such time
limitations may be extended for periods of not
to exceed two years at a time by the Super-
intendent of Buildings, upon application by the
owner of such sign and payment of a Twenty-
five Dollar ($25.00) filing fee, if said Super-
intendent finds that such nonconforming use is
on a lot with or adjacent to and fronting on
129a
the same street with uses (other than another
advertising sign) which are first permitted in
BC or more intensive zones or that such non-
conforming use is on a lot separated from the
nearest portion of an existing R or BN use by a
grade equal to the height of the sign above the
ground, and further finds that continuance of
such nonconforming sign will not be materially
detrimental to the public welfare or injurious to
property in the zone or vicinity in which the
sign is located, and is not otherwise inconsistent
with the spirit and purpose of the Zoning Or-
dinance and that such advertising sign has been
and will be properly maintained. Decisions of
said Superinendent hereunder shall be final, sub-
ject to review by the City Council upon applica-
tion.
(c) Advertising signs in all zones other than the
M, IG, and IH Zones which are nonconforming
because located upon and supported by a roof
or parapet of a building or structure shall be
discontinued and removed upon notification in
writing within a period of from three to seven
years from August 1, 1975 or from the date
such sign became or becomes nonconforming in
accordance with an amortization schedule estab-
lished by the Superintendent and based upon the
age, condition, cost, and remaining useful life
of the sign.
(d) Adult Motion Picture Theaters which are non-
conforming in the zone in which located shall
be discontinued within 9,0 days of the date the
use became or becomes nonconforming.
5.34 Limitations on Nonconforming Uses
(a) Subject to Section 5.33, any nonconforming
building or part may be maintained with or-
130a
dinary repair provided, however, no such build-
ing or part shall be extended, expanded or struc-
turally altered, except as otherwise required by
law, nor shall a nonconforming use be extended
or expanded, provided further, that nothing in
this Ordinance shall prevent the restoration of
a nonconforming building destroyed by fire or
other act of God.
(b) Any change of a nonconforming use in a con-
forming building shall be to a conforming use.
(c) Except as provided in Section 5.34(d) or (e), a
nonconforming use in a nonconforming building
or part may be changed only to a use permitted
in a less intensive zone than said nonconforming
use.
(d) A nonconforming building or part which has
been unoccupied continuously for one (1) year
or more shall not be reoccupied except by a
conforming use.
(e) In any zone, except an M or I Zone, a noncon-
forming use in a nonconforming building, may
be changed to a use permitted in a less intensive
zone than the zone in which the nonconforming
use would be conforming, or to another use
which is listed and grouped in the same zone
classification as an outright permitted use, pro-
vided such new use will be no more detrimental
or injurious than the previous nonconforming
use to other property in the same zone or vi-
cinity.
5.35 Existing Automobile Service Stations
Existing automobile service stations may be ex-
tended, expanded or structurally altered in the BN
and more intensive zones without obtaining condi-
tional use authorization from the Hearing Examiner
131a
or Board where the estimated cost of such improve-
ments within any 12 month period does not exceed
25 percent of the true and fair market value of such
automobile service station as computed from the as-
sessed value of the existing use.
Section 3. That Section 16.2 of the Zoning Ordinance
(86300), as last amended by Ordinance 94036, is di-
vided into Sections designated Section 16.20 through
16.23 and further amended to read as follows:
Section 16.20 Principal use permitted outright shall
be as set forth in Sections 16.21 through 16.23 of this
Article. Reference in other sections of this Ordinance
to "Section 16.2" shall mean and include Sections 16.20
through 16.23, inclusive.
Section 16.21 The following uses:
(a) Window displays.
(b) Retail store.
(c) Personal service establishment, such as beauty
shop, barber shop and shoe repair shop.
(d) Restaurant, cafe, or establishment selling alco-
holic beverages for consumption on the premises
with or without live entertainment or dancing;
taverns, package liquor stores.
(e) Bank or other financial institution.
(f) Hotel, Motel.
(g) Transportation ticket office, travel agency office.
(h) Private or public art gallery, museum and li-
brary.
(i) Locksmith
(j) Catering establishment selling at retail.
(k) Glazed display case.
132a
(I) Child care nursery.
(m) Public playground and public park, including
customary buildings and activities.
(n) Theater and adult motion picture theater.
(o) Advertising sign when subject to applicable pro-
visions of this and other Ordinances.
(p) Automobile rental office.
Section 16.22 Uses permitted when occupying other
than street level floor space; or, permitted when occupy-
ing street level floor space providing that such use shall
be separated from the street by a space occupied or in-
tended to be occupied by uses permitted in Section 16.21,
and also separated by a view obscuring wall located
across the rear of such permitted uses as specified in
Section 16.21:
(a) Business or Professional office.
(b) Catering establishment.
(c) Taxidermy shop.
(d) Wholesale store, including wholesale storage of
the following merchandise: jewelry, optical and
photographic goods, pharmaceuticals, and cos-
metics, and other similar high value, low bulk
articles.
(e) Telephone exchange, static transformer and
booster station, and other public utility service
use.
(f) Meeting hall, auditorium, theater, bowling lane,
skating rink, pool hall, dance hall.
(g) Radio and television studio.
(h) Appliance repair.
133a
Section 16.23 Uses permitted when occupying other
than street level floor space:
(a) Uses permitted in Sections 16.21 and 16.22 with-
out specified limitations.
(b) Trade or business school.
(c) Custom manufacture for sale at retail on the
premises of articles or merchandise from the
following previously prepared materials: bone,
canvas, cellophane, cloth, cork, feathers, felt,
fiber, fur, glass, hair, horn, leather, paper, plas-
tics, precious or semi-precious metals or stones,
sheet metal (excluding stampings of metal heav-
ier than fourteen (14) gauge), shell, textiles,
tobacco, wax, wire, wood and yarns.
(d) Experimental or testing laboratroy which does
not employ machinery or equipment prohibited
by Section 16.7(b).
(e) Private or fraternal club, lodge, social or rec-
reational building with dining and other social
facilities.
(f) Art, dance, and/or music school or studio.
(g) Printing and publishing establishment.
(h) Manufacture of musical instruments, except
pianos and organs; toys, novelties, rubber or
metal stamps, or other small moulded rubber
products; pottery and figurines or other similar
ceramic products from previously pulverized
clay, kilns to be fired by electricity or gas.
(i) Manufacture or assembly of electrical appli-
ances, electronic instruments and devices, and
radios and phonographs.
Section 4. That Section 17.21 of the Zoning Ordi-
nance, as last amended by Ordinance 104423, is further
amended to read as follows:
134a
Section 17.21 The following uses:
(a) Retail store, business and professional office,
personal service establishment, bank or other
financial institution, catering establishment, res-
taurant, cafe, or establishment selling alcoholic
beverages for consumption on the premises, with
or without live entertainment or dancing, win-
dow display space, glazed display case, trans-
portation ticket office, travel agency office, and
bakery, provided it sells its products at retail
on the premises.
(b) Hotel, apartment hotel and motel.
(c) Pool hall, public dance hall, tavern, package
liquor store, and other similar enterprises.
(d) Frozen food lockers, retail ice dispensary, not
including ice manufacture, plant nursery in-
cluding retail sales of products.
(e) Taxidermy shop, locksmith, appliance repair
shop, upholstery establishment, retail pet shop
or small animal clinic for out-patient treatment
only, retail building supply store, automobile
laundry, printing and publishing establishment,
and photographic processing laboratory.
(f) Meeting hall, auditorium, theater, adult motion
picture theater, bowling lanes, skating rink in-
cluding outdoor ice-skating rink.
(g) Automobile and pleasure boat display or sales
establishment, automobile repair, minor.
(h) Automobile rental and sales, provided that any
portion of said area not permanently maintained
in a landscaped condition shall be graded,
drained and surfaced as required in Section
23.41 (c).
(i) Parking garage and automobile rental garage,
commercial parking lot for private passenger
135a
vehicles only, open structures for parking of
private passenger vehicles only.
(j) Trade or business school, art, dance and/or
music school or studio.
(k) Laundry, dry cleaning, dyeing or rug cleaning
plants.
(1) Warehouse or wholesale store; wholesale office,
including wholesale storage of the following
merchandise: jewelry, optical and photographic
goods, pharmaceuticals, and cosmetics, and other
similar high value, low bulk articles.
(m) Experimental or testing laboratory which does
not employ machinery or equipment not per-
mitted in the CM Zone.
(n) Fire station, public and private art gallery,
library, museum, branch telephone exchange,
micro-wave or line-of-sight transmission station,
static transformer and booster station, and
other public utility service uses when necessary
due to operating requirements; but not includ-
ing yards or buildings for service or storage.
(o) Church, private or fraternal club, lodge, social
or recreational building.
(p) Advertising sign, when subject to applicable
provisions of this and other Ordinances.
(q) Uses permitted in Section 19.22, provided that
such uses shall not occupy any street level floor
space.
(r) Public or private park.
(s) Existing railroad rights of way, including pas-
senger shelter stations but not including switch-
ing, storage, freight yards or sidings.
(t) Radio and television studio.
136a
Section 5. This ordinance shall take effect and be in
force thirty days from and after its passage and ap-
proval, if approved by the Mayor; otherwise it shall take
effect at the time it shall become a law under the provi-
sions of the city charter.
Passed by the City Council the 17 day of May 1976,
and signed by me in open session in authentication of its
passage this 17 day of May, 1976.
/s/ [Illegible]
President of the City Council.
Approved by me this 28 day of May, 1976.
/s/ WM. UHLMAN
Mayor.
Filed by me this 28 day of May, 1976.
Attest /s/ [Illegible]
City Comptroller and
City Clerk.
(SEAL)
Published
By /s/ [Illegible]
Deputy Clerk.
137a
STATE OF WASHINGTON )
COUNTY OF KING ) SS
CITY OF SEATTLE
I, TIM HILL, Comptroller and City Clerk of the City of
Seattle, do hereby certify that the within and foregoing
is a true and correct copy of the original instrument as
the same appears on file, and of record in this depart-
ment.
IN WITNESS WHEREOF, I have hereunto set my
hand and affixed the seal of The City of Seattle, this
February 4, 1985.
TIM HILL
Comptroller and City Clerk
By: /s/ Linda L. Diaz
Deputy Clerk
138a
APPENDIX S
ORDINANCE 105584
AN ORDINANCE relating to land use and zoning;
amending Section 18.7 of the Zoning Ordinance (86300)
to prohibit adult motion picture theaters in the CG
and all more intensive zones.
BE IT ORDAINED BY THE CITY OF SEATTLE AS
FOLLOWS:
Section 1. That Section 18.7 of the Zoning Ordinance
(86300) is amended to read as follows:
Section 18.7 Prohibited Uses:
(a) Any use other than a permitted CG use, which
is permitted in a more intensive zone.
(b) Adult motion picture theater.
Section 2. This ordinance shall take effect and be in
force thirty days from and after his passage and ap-
proval, If approved by the Mayor; otherwise it shall take
effect at the time it shall become a law under the provi-
sions of the city charter.
Passed by the City Council the 1 day of June, 1976, and
signed by me in open session in authentication of its
passage this 1 day of June, 1976.
/s/ [Illegible]
President of the City Council.
Approved by me this 7 day of June, 1976.
/s/ WM. UHLMAN
Mayor.
Filed by me this 7 day of June, 1976.
Attest: ,/s/ [Illegible]
City Comptroller and
City Clerk.
(SEAL) By /s/ [Illegible]
Deputy Clerk.
139a
STATE OF WASHINGTON )
COUNTY OF KING ) SS
CITY OF SEATTLE )
I, TIM HILL, Comptroller and City Clerk of the City of
Seattle, do hereby certify that the within and foregoing
is a true and correct copy of the original instrument as
the same appears on file, and of record in this depart-
ment.
IN WITNESS WHEREOF, I have hereunto set my
hand and affixed the seal of The City of Seattle, this
2-5-1985.
TIM HILL
Comptroller and City Clerk
By: /s/ Dorothy J. McFarland
Deputy Clerk
140a
APPENDIX T
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No.84-1360
IN THE
'ttprrntr (nixrt of ttnr 1Ctttitri 'tatrs
OCTOBER TERM, 1984
THE CITY OF RENTON, et al.,
v.
Appellants,
PLAYTIME THEATRES, INC.,
a Washington corporation, et al.,
Appellees.
On Appeal from the United States Court of Appeals
for the Ninth Circuit
REPLY BRIEF
E.BARRETT PRETTYMAN,JR.*
JAMES G. MIDDLEBROOKS
HOGAN&HARTSON
815 Connecticut Avenue, N.W.
Washington, D.C. 20006
(202) 331-4685
LAWRENCE J.WARREN
DANIEL KELLOGG
MARK E.BARBER
ZANETTA L. FONTES
WARREN& KELLOGG, P.S.
100 South Second Street
Renton,Washington 98057
(206) 255-8678
Counsel for Appellants
* Counsel of Record
WILSON- EPES PRINTING CO., INC. - 789-0096 - WASHINGTON, D.C. 20001
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES._.____._,.___.....................___________
1. The Facts 1
2. Experiences of Other Cities 5
3. The "Availability" of the Land. 7
4. Legislative Intent 9
CONCLUSION 10
ii
TABLE OF AUTHORITIES
Cases Page
City of Renton v. Playtime Theatres, Inc., No. 82-
2-02344-2 (King County, Wash. Sup. Ct., March
9, 1984) ---------------- ----..----------- ------------------------ 9
Genusa v. City of Peoria, 619 F.2d 1203 (7th Cir
1980) 5
Michael M.v.Superior Court,450 U.S.464 (1981)-- 9
Northend Cinema, Inc. v. City of Seattle, 90 Wash.
2d 709, 585 P.2d 1153 (1978), cert. denied, 441
U.S. 946 (1979) 4, 5
Pacific Gas & Elec. Co. v. State Energy Resources
Conservation & Dev. Comm'n, 461 U.S. 190
(1983) 9
Palmer v. Thompson, 403 U.S. 217 (1971) 9
Preferred Communications, Inc. v. City of Los
Angeles, No. 84-5541 (9th Cir. Mar. 1, 1985) 6
United States V. O'Brien, 391 U.S. 367 (1968) 9
Young v. American Mini Theatres, Inc., 427 U.S.
50 (1976) 4,5, 8, 10,
IN THE
'itttt rtttr (!Iiuu't of Or 3tttttrl tFttr
OCTOBER TERM, 1984
No. 84-1360
THE CITY OF RENTON, et al.,
V.
Appellants,
PLAYTIME THEATRES, INC.,
a Washington corporation, et al.,
Appellees.
On Appeal from the United States Court of Appeals
for the Ninth Circuit
REPLY BRIEF
1. The Facts.
In their Motion to Affirm, Appellees (hereinafter
"Playtime") have adopted and compounded the error of
the Ninth Circuit by relying upon maps and testimony
which were submitted at an early TRO hearing and
which, as pointed out in our Jurisdictional Statement (p.
17), were in error because of the necessity for prepar-
ing them so quickly. At no time, for example, have the
race track or sewage treatment plant been located within
the area where adult theatres can locate (the "set-aside
zone").' At no time has the set-aside zone been "less
1 Playtime states (p. 2 n. 5) that in Renton's objections to the
Magistrate's report and recommendation, the City extolled the fact
that its set-aside zone included Longacres Racetrack. This is sim-
ply not true. What Renton's counsel stated was that "The area
2
than 200 acres".2 At no time has most of the set-aside
zone been unavailable for commercial development.3
The important points which Playtime attempts to ob-
scure are that (1) Renton's set-aside zone for the loca-
tion of adult theatres is presently made up of 520 acres
(a fact that Playtime does not dispute) ; (2) witnesses
for both parties acknowledged that many commercial
available for an adult theater or its environs already includes Long-
acres Race Track, which is one of the major adult entertainment
areas in the State of Washington. * * * This location is primarily
served by the same roadways and is located in the same area as the
Magistrate has termed inaccessible, unattractive and inconvenient."
CR 143 at 16 (emphasis added). The point counsel was making was
that the set-aside zone bordered the racetrack and was served by the
same roadways.
2 Playtime states (pp. 1-2) that as a practical matter, the land
actually"available"was less than 200 acres. The testimony cited by
Playtime (p. 2 n. 5) shows that "availability" was being used by
the witness in one of two ways: to determine whether a particular
piece of property was outside the set-aside zone,or to determine that
a specific land area inside the set-aside zone was presently being
used for other purposes. The first inquiry is irrelevant, so long as
the remaining area is large enough to give free expression to adult
theatres' rights, and the second poses one of the very issues in the
case—must premises be presently "on the market" in a kind of
turnkey operation in order to meet the constitutional requirement
of availability?
3 Playtime alleges (p. 2) that most of the available land within
the original 400 acres was "within a flood plain". A flood plain,
however, is not an uninhabitable area but only one in which a
potential flood hazard exists. The boundaries of the flood plain
extend to all areas potentially affected by a flood, which would
occur statistically but once every 100 years. The record shows that
within the flood plain,which is larger than the set-aside zone, "there
are extensive commercial developments"and "a variety of industrial
and commercial activities ranging in size from relatively small to up
to 200,000 square feet of gross floor area." Cl. test., Jan. 29, 1982,
at 40-41. The flood plain even includes the Longacres Racetrack. Id.
These facts refute any notion that this area of the City may not be
fully compatible with commercial use.
3
ventures are operating there, and (3) the area is easily
accessible and is criss-crossed by major traffic arteries.4
Playtime is correct in one respect: the introduction to
Renton's "Questions Presented" (Juris. State. at i) im-
plied that the entire 520 acres were set aside for adult
theatres before any adult theatre came to Renton. As
the body of the Jurisdictional Statement made clear,
prior to the entry of any adult theatre, the set-aside zone
was about 400 acres in size—an area, incidentally, which
would have accommodated some 335 adult theatres and
surrounding parking spaces.5 After Playtime entered
Renton, the restriction on adult theatres' proximity to
schools was reduced from one mile to 1,000 feet. The
effect was to increase the set-aside zone from 400 to 520
acres. The important point, therefore, is that Renton
acted in good faith prior to the attempted entry of any
adult theatre, and that at all times the set-aside zone has
been more than ample to accommodate all of the adult
theatres that could possibly wish to locate within the
City.
Playtime argues (pp. 3-4) that the Renton City Coun-
cil studied only court rulings and not the experiences
themselves in other cities. Playtime's argument is both
irrelevant and wrong on the facts. Whether the City
Council studied legal decisions or the facts underlying
those decisions is surely without constitutional signifi-
cance in determining whether the Council properly car-
ried out its legislative function of determining the proper
solution to the problems threatening its citizens and
4 See Juris. State.at 8-9.
6 This figure is reached by using the same calculations which are
set forth in our Jurisdictional Statement (p. 18 n. 38) and which
Playtime does not dispute. Even under Playtime's mischaracteriza-
tion of the facts, the smallest amount of land available in this case
would constitute a larger percentage of the total land in Renton
than was available for adult theatres in Seattle.
4
neighborhoods.6 But the fact is that much more was
studied than legal decisions.?
Playtime also argues (p. 3) that there was no "long
period of careful preenactment study" by the City Coun-
cil, and "[n]o written or legislative history exists" of
its meetings.8 Surely almost a year of study, meetings,
testimony, documents and the like is enough,9 and there
was ample evidence as to what occurred at its meetings.1°
6 The judicial decisions studied by Renton recited the experience
in each of the cities to which the decisions related. E.g., Young v.
American Mini Theatres, Inc., 427 U.S. 50, 52-57, 71, 74-75, 81-82
(1976) ; Northend Cinema, Inc. v. City of Seattle, 90 Wash.2d 709,
585 P.2d 1153, 1154-55 (1978), cert. denied, 441 U.S. 946 (1979).
As noted infra,what Playtime apparently seeks is to have each city
which is in the process of enacting a zoning ordinance go back and
review all of the evidence underlying the experiences upon which
the city is relying, even though the legal decisions set forth what
those experiences were, and then apply that evidence to existing
problems with adult uses in the city proposing the legislation.
7 For example, Playtime states (p. 3) that as to Seattle, Renton
reviewed only the Washington Supreme Court's ruling in Northend
Cinema and a report which discussed "legal cases * * * relative to
the propriety of regulating adult business." What Playtime fails to
note is that this same report, written by the Assistant Corporation
Counsel of Seattle, included "a summary of the Seattle experience."
Cl. dep., March 4, 1984, at 11-12.
Moreover, in addition to the many documents reviewed (see
Juris. State. at 5), Renton received advice from its own Acting
Planning Director, who had had experience with adult uses in
another State. See Juris. State. at 6 n. 11.
s Renton's counsel did indeed state, as Playtime notes (pp. 14-
15), at oral argument to the Ninth Circuit that Renton's second
ordinance was passed at least in part to set forth the legislative
history which underlay the enactment of the first ordinance. But
this was not for the purpose of "[f]abricating governmental rea-
sons as a post-hoc justification for prior legislation", as Playtime
charges (id.). The legislative history in the second ordinance was
merely a memorialization of what had already occurred.
°See Juris.State.at 5-6.
10 The District Court based its findings on substantial evidence
as to what had occurred at the various City Council and committee
hearings. See footnote citations in Juris. State. at 5-6.
5
2. Experiences of Other Cities.
Playtime seems to argue (pp. 5-8) that Renton did
not really consider the experiences of other cities, and
in any event it did not study enough of the facts under-
lying those experiences. We have already answered
these points; the record is replete with evidence that
Renton, over a period of almost a year, studied the ex-
perience of many cities, inside and outside the State of
Washington. We respectfully submit that it is not the
function of a court to pass judgment on whether a City
Council heard "only unsubstantiated assertions and con-
clusions", as Playtime asserts (p. 7), or whether it con-
sidered solid evidence. The fact is that the City Council
heard more than enough to reach the conclusion that it
had better deal in a responsible manner with the poten-
tial threat of deterioration in its neighborhoods.
Playtime's treatment of Genusa v. City of Peoria, 619
F.2d 1203 (7th Cir. 1980), is puzzling. Playtime first
argues (p. 6) that the decision below and Genusa are
not in conflict, and then states (id.) that the Ninth Cir-
cuit "declined to follow the rule of Genusa". The reason
for the failure to follow the Genusa rule, according to
Playtime (pp. 6-7), is that Renton's ordinance must
have been unrelated to the effects of "concentration",
since "clustering" is not prohibited. But Renton was not
just concerned with the effects of one or more adult
theatres; it was concerned with where those effects would
take place. It wanted the effects to manifest themselves
away from schools, churches, residences and public parks,
but in other accessible areas. As this Court and the
Washington Supreme Court have pointed out, the choice
of methods for dealing with the adult theatre problem—
whether by concentration or dispersal—is constitutionally
irrelevant."
Genusa's importance lies not in whether it was a con-
centration or dispersal case, but rather in the fact that
ii Young, 427 U.S. at 62-63; Northend Cinema, 585 P.2d at 1159.
6
the Seventh Circuit held to the common-sense view,
adopted by the District Court below (App. 30a) but re-
jected by the Ninth Circuit (App. 17a, 19a), that "[a]
legislative body is entitled to rely on the experience and
findings of other legislative bodies as a basis for action."
619 F.2d at 1211.12
Playtime virtually concedes that under its theory a
city cannot enact an adult-use zoning ordinance in ad-
vance of the entry of adult theatres. Thus, it argues
(p. 16) that adult-use ordinances are valid only if "the
cities are able to adequately identify and document a
secondary affect upon their community of a particular
land use which creates a substantial governmental inter-
est in dealing with that problem * * *" (emphasis
added). It would be impossible to meet this test until
and unless adult theatres had gained entry and caused
the secondary affects.
Finally, it is important to note that the Ninth Circuit's
ruling in regard to the impermissibility of reliance by
cities on the experience of others is already being ex-
panded to areas far removed from adult uses. Thus, in
Preferred Communications, Inc. v. City of Los Angeles,
No. 84-5541 (9th Cir. Mar. 1, 1985), the Ninth Circuit
held that a city may not, under the First Amendment,
prohibit a cable television operator from having access
to public utility facilities. The court cited the instant
case, in part, for the proposition that a city must justify
its regulations in terms of its own problems and "may
not rely on the problems faced by other communi-
ties * * *." Id., slip op. at 16-17, 24, incl. n.9. Thus,
12 The Ninth Circuit's statement (App. 19a) that "[w]e do not
say that Renton cannot use the experiences of other cities as part
of the relevant evidence upon which to base its actions" goes for
nothing, because that court would require an experience and an
ordinance exactly like those of Renton. There would never be such
a duplication. Even more to the point, how could Renton duplicate
an experience it had not yet had?
7
there is an urgent need for this Court to clarify the ex-
tent to which a city must replicate the experience of
others before it can enact legislation.
3. The"Availability"of the Land.
Playtime argues (p. 10) that the Court of Appeals did
not require property in the set-aside zone to be "immedi-
ately available for purchase". The fact is that the Court
of Appeals held the set-aside zone to be improper in part
because it was already occupied by a business park, ware-
house and manufacturing facilities, and "a fully-devel-
oped shopping center". App. 13a-14a. The only way
such a conclusion could have relevance would be if exist-
ing uses made the property constitutionally "unavail-
able".13
Playtime wants to have it both ways: if the property
is presently undeveloped, Playtime claims the property is
constitutionally "unavailable"; if the property is presently
developed, Playtime claims the property is likewise con-
stitutionally "unavailable". The only option in its view
is that the City undertake the burden of providing an
immediately occupiable building to suit its needs—some-
thing the Constitution does not require.
Playtime also uses (pp. 10-11) such words as "unat-
tractive", "undesireable", "economically unviable", "re-
mote" and "isolated" to describe the set-aside zone.
Aside from the fact that these descriptions are not sup-
ported by the record,14 Playtime nowhere explains why
such facilities as "a fully-developed shopping center"
would already have located in such an area.
Make no mistake: what Playtime and other adult
theatre owners are seeking, as a matter of constitutional
13 Of course, even if that were the proper rule—which it clearly
is not—it would ignore the fact that much of the land in the set-
aside zone is unoccupied. See Juris. State. at 18-19, incl. n. 41.
14 The District Court's findings wholly refute them. App. 27a-28a.
8
right, is to gain 'preferential access to the best sites,
located in downtown, congested areas, without regard to
the degrading effect upon the character of the surround-
ing neighborhood. This was made clear by one of Play-
time's witnesses, who stated that "in the exhibition busi-
ness you must rely on movie posters, you must rely on
marquees or walk-by and drive-in traffic in addition to
your advertising. That's a very important part of adver-
tising. And out there [in the Renton set-aside zone] you
just don't have it." 15 In other words, these adult theatre
owners are seeking not just land located near urban and
commercial areas, and easy access through boulevards
and streets, but locations in the middle of the most con-
gested areas so they can entice customers off the streets
with their advertsing. They are seeking not just avail-
ability, to which they are constitutionally entitled, but
guaranteed business, to which they are not.
As the District Court found (App. 26a-28a), Renton's
set-aside zone is large, accessible, and in all stages of
development. If this zone will not stand constitutional
muster, Young is a dead letter, and communities are
powerless to experiment in this important area of land
use planning.18
15 John. test., June 23, 1982, at 30. This same approach was
confirmed by another of Playtime's witnesses, who said that "[a]
theatre must be located in a people-oriented environment that has
regular nighttime traffic and complimentary businesses such as fast-
food outlets and restaurants." A theatre, he said, must be "gen-
erally a focal point of nighttime recreation activity." Bond aff.,
June 15, 1982, at 4.
However, the fact that an adult theatre does not have to be
centrally located in order to attract customers was demonstrated
conclusively by Playtime's own President, who testified that patrons
drive from 20 to 30 minutes from Vancouver, B.C., to Playtime's
theatre in Point Roberts, Washington (population 250), to view
adult films. Forbes dep., May 27, 1982, at 27.
16 Twice in this section of its Motion to Affirm, Playtime de-
scribes its film fare as "nonobscene" (p. 12). While it is hardly
determinative of the issues in this case,we call the Court's attention
9
4. Legislative Intent.
Playtime's discussion of a court's role in regard to
legislative fact-finding demonstrates why a review of
the instant case by this Court is imperative. Playtime
begins its discussion by stating (p. 12) that in making
a determination of legislative motive, only the objective
legislative history may be employed. However, Playtime
then says (p. 13) that where "mixed motives" are ap-
parent, a court must determine whether "a" motivating
factor was to restrict the exercise of First Amendment
rights. This test, it says (pp. 13, 14), "necessarily in-
volves a determination of the motives of the legislative
body" and "a sensitive inquiry into such circumstantial
and direct evidence of intent as may be available".
Without arguing again what the proper rule should be,17
we merely point out that the tests proposed by Playtime
clearly do not follow from this Court's opinions and ap-
pear to be wholly unworkable. A court should not be
second-guessing a city council in the performance of its
legislative functions, trying to determine "mixed mo-
tives" and engaging in a "sensitive inquiry" into the
issue of intent. This Court has repeatedly pointed out
that "inquiry into legislative motive is often an unsatis-
factory venture" 18 and has repeatedly declined to engage
in such a venture even when the legislative motive was
suspect)
to the fact that a state court has held some of Playtime's films in
Renton to be obscene. City of Renton v. Playtime Theatres, Inc.,
No. 82-2-02344-2, slip op. at 23-29, 39 (King County, Wash. Sup. Ct.,
Mar. 9, 1984).
17 See Juris. State.at 21-24.
18 Pacific Gas & Elec. Co. v. State Energy Resources Conservation
&Dev.Comm'n, 461 U.S.190,216 (1983).
19 E.g., Pacific Gas & Elec. Co., 461 U.S. at 215-216; Michael M.
v. Superior Court, 450 U.S. 464, 469-470 (1981) (plurality opinion) ;
United States v. O'Brien, 391 U.S. 367, 383-384 (1968) ; Palmer v.
Thompson,403 U.S.217, 224 (1971).
10
In any event, the point here is that if what Play-
time argues and the Ninth Circuit has adopted is to be
the test, this Court should say so, because such a ruling
will affect local legislatures and lower courts for the
indefinite future.
CONCLUSION
As evidenced by the strong amicus support from may-
ors, cities, counties and state governments from across
the country, the issues in this case are of extraordinary
importance. Local governments have attempted in vari-
ous ways with various ordinances to deal with the deteri-
oration of neighborhoods as a result of adult uses. These
efforts have been almost universally frustrated by the
lower courts, despite this Court's decision in Young. If
the good-faith attempt by Renton will not stand, cities
are helpless to experiment in this area of growing local
and regional concern. This Court should note probable
jurisdiction and reverse the decision below.
Respectfully submitted,
E.BARRETT PRETTYMAN,JR.*
JAMES G.MIDDLEBROOKS
HOGAN&HARTSON
815 Connecticut Avenue, N.W.
Washington,D.C.20006
(202) 331-4685
LAWRENCE J.WARREN
DANIEL KELLOGG
MARK E.BARBER
ZANETTA L. FONTES
WARREN&KELLOGG, P.S.
100 South Second Street
Renton,Washington 98057
(206) 255-8678
Counsel for Appellants
* Counsel of Record
C
OF R4,4
y OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON
V `b © 4 POST OFFICE BOX 626 100 S 2nd STREET • RENTON, wASHINGTON 98057 255-8678
0 LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY
4:b DAVID M. DEAN, ASSISTANT CITY ATTORNEY
'947.fo SEP� O�P MARK E. BARBER, ASSISTANT CITY ATTORNEY
ZANETTA L.FONTES, ASSISTANT CITY ATTORNEY
April 5 , 1985 MARTHA A.FRENCH, ASSISTANT CITY ATTORNEY
TO : Barbara Y. Shinpoch, Mayor
Members of the City Council
FROM: Daniel Kellogg, Assistant City Attorney
RE : City of Renton v. Playtime Theaters , Inc.
Appeal to the United States Supreme Court
Dear Madam Mayor and Members of the Council :
We understand that the United States Supreme Court will con-
sider our appeal papers at its "cert conference" on April 12 ,
1985 . The Court' s decision as to whether to accept juris-
diction in our case may be announced Monday morning, April 15 ,
1985. We will certainly notify you as soon as we receive any
word concerning the disposition of our appeal.
Many of you no doubt noticed the announcement in the media of
the filing of the friend of the court briefs on our behalf.
We have been very gratified by the support that we have re-
ceived. In addition to the brief prepared by the Washington
Attorney General on behalf of the States of Washington and
Utah (which brief was also joined by the City of Seattle) ,
briefs were filed on behalf of over 22 California cities ,
including the cities of Los Angeles and San Francisco.
The State and Local Legal Center of Washington, D.C.
prepared an excellent brief on behalf of the National
League of Cities , the National Association of Counties ,
the International City Management Association, the United
States Conference of Mayors , the Council of State Govern-
ments , the National Conference of State Legislatures , the
National Governors Association, and the American Planning
Association. These briefs add immeasurably to the
Barbara Y. Shinpoch, Mayor
Members of the City Council
April 5 , 1985
Page -2-
credibility of our claim that the questions presented by
our appeal are of substantial importance to the nationwide
policy regarding regulation of adult land uses .
p
I have also enclosed to each of you a copy of the Reply Brief
which was prepared jointly by Mr. Prettyman' s office and our
office in response to the Motion to Affirm (the responsive
pleading) filed by Playtime Theaters , Inc.
We will keep you informed of any developments regarding the
appeal.
Very tr yours ,
Daniel Kellogg
DK/jw
cc : City Clerk
cc : Mike Parness
01.'"
OF RA,,
N �.
41 OFFICE OF THE CITY ATTORNEY . RENTON,WASHINGTON
v 0 ` POST OFFICE BOX 626 100 S 2nd STREET • RENTON. WASHINGTON 9/057 255-8678
silL
iMMIP W LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY
"94 PLO' DAVID M. DEAN, ASSISTANT CITY ATTORNEY
o94TFo SEP�c_Ite� March 8, 1985 MARK E. BARBER, ASSISTANT CITY ATTORNEY
ZANETTA L.FONTES, ASSISTANT CITY ATTORNEY
MARTHA A.FRENCH, ASSISTANT CITY ATTORNEY
TO: MAYOR BARBARA SHINPOCH and
MEMBERS OF THE CITY COUNCIL
RE: City of Renton v. Playtime Theatres, Inc.
Appeal to United States Supreme Court
Dear Madam Mayor and Members of City Council :
On Tuesday, February 26, 1985, our attorney in Washington, D. C.
filed in the Supreme Court our Jurisdictional Statement, which
is the appeal paper from the Ninth Circuit' s decision of
November 28 , 1984. A copy of the Jurisdictional Statement
and Appendix is enclosed for your information.
There are substantial risks involved in this appeal. As we have
previously discussed with you, no one should assume that there
is a substantial likelihood that our case will be accepted for
review. Of the over 5000 cases that are filed in the Supreme
Court every year, only approximately 150 are accepted for review
by the Court. However, we continue to believe that our case
presents the Court with an opportunity to reaffirm and expand
its holding in Young vs. American Mini Theatres and to correct
the tendency on the part of the federal judiciary to narrow the
usefulness of Young to cities and towns across the country.
Our opponent will file their papers in opposition to our filing
on or before March 26, 1985. We will then file a reply brief
which must be filed within a few days after the opposition papers
are filed. At the conclusion of these filings, the briefs of
the parties will be submitted to the members of the Court for
their review. The decision by the Court whether to accept review
of our case will be made very shortly there after. We would
expect to hear from the Court at any time following April 15,
but not later than June 30, 1985 which will be the end of the
current term of the Court.
Mayor Barbara Shinpoch and
Members of City Council
March 8, 1985
Page 2
The Court' s review of our filing is accomplished as follows :
The papers are circulated to each Justice. In the usual
fashion, the papers are reviewed by law clerks to prepare a
summary for the Justices . Unless one Justice believes that
the case merits review, the case is denied review without any
comment. If one Justice decides to take a case to the "cert
conference" then the Justices will discuss whether the case
should be accepted for review. A case is accepted for review
if four Justices decide to accept the case.
The Supreme Court does not have the time to correct all errors
that it believes were committed by lower courts. The Supreme
Court is a policy making body and thus accepts cases with policy
implications . The decision to decline review is normally made
without comments. There is normally no indicattion of the
reason the Court decided it could not or should not review the
matter.
We have been very encouraged by our ability to secure support
of "friends of the court" (amicus curiae) . We have commitments
to file briefs in support of our filing from the National League
of Cities and the National Association of Counties and a group
of cities in California, including San Diego. In addition, we
have tentative commitments from the American Planning Association
and the states of Washington and Utah. We are seeking additional
support from other cities and municipal organizations so that the
Court is aware of the important policy questions which are raised
by our appeal . The Solicitor General has indicated that it would
be inappropriate for the United States to file a brief in support
of our position on the jurisdictional phase. However, we expect
a brief on our behalf on the merits if the Court accepts the
case for review. This amicus support is of tremendous importance
and indicates the extent to which our position is supported by
very substantial organizations.
Our office is very proud to be a part of this process. We believe
that you should also be proud of the position that you have taken
in response to this problem that confronts cities and towns across
the nation. We believe that we have given this matter our very
best efforts and we are now content to leave the matter before the
Supreme Court for its decision.
As usual , we are available to answer any questions which may arise.
Ver ru yours ,
Daniel Kellogg
DK :bjm
Enc.
�•1 C (',II
UNITED STATES COURT OF APPEALS F I L E D
':OT IS MOVEROO, F% `. FOR THE NINTH CIRCUIT NOV 2 .,
2 THIS ROOIri J i_Ji J•
3 PLAYTIME THEATERS, INC. , ) PHILLIP B. WINBERRY
a Washington corporation, .
CLERK, U.S. COURT OF APPEALS
4 ' et al. , ) No. 83-3805
)
S Plaintiffs-Appellants, )
)
6 v. ) D.C. No. C-82-59M
)
7 THE CITY OF RENTON, et al. , ) -
)
8 Defendants-Appellees. )
)
9 3
1G l )
THE CITY OF RENTON, a )
municipal corporation, et al. , ) No. 83-3980
11 )
12 Plaintiffs-Appellants, ) D.C. No. CV-89-744C
v. )
13 )
14 PLAYTIME THEATERS, INC. , a )
Washington corporation, )
15 et al. , ) OPINION
Defendants-Appellees. )
16 )
)
17
18 Appeal from the United States District Court
for the Western District of Washington
19
Hon. Walter T. McGovern, Chief District Judge and
20 Hon. John C. Coughenour, District Judge, Presiding
21 Argued and Submitted: May 9, 1984
BEFORE: FLETCHER and FARRIS, Circuit Judges , and JAMESON, *
22 District Judge
23 FLETCHER, Circuit Judge:
24
25
26
* Hon. William J. Jameson, Senior United States District Judge for
the District of Montana, sitting by designation.
These consolidated cases are declaratory judgment actions
involving the constitutionality of the City of Renton' s zoning
2
ordinances regulating the location of adult motion picture
3
theaters.
4
In case number 83-3805, Playtime Theaters , Inc. ("Playtime")
5
appeals the district court's order denying a permanent injunction
6
and finding that the ordinance furthers a substantial governmental
7
interest, is unrelated to the suppression of speech, and is no
8
more restrictive than necessary to further that interest. Case
9
number 83-3980 is a declaratory action involving the same parties
10
and issues, filed by the City of Renton in state court after
11
federal proceedings had begun. This action was twice removed to
12
federal court and twice remanded to state court. Renton appeals
13
the district court' s denial of its motion for fees and costs on
14
the second removal. We reverse in number 83-3805 and affirm in
15
number 83-3980.
16
I
17
DACHBOUBD
18
In April , 1981 , the City of Renton enacted ordinance number
19
3526 which prohibited any "adult motion picture theater"1 within
20
one thousand feet of any residential zone or single or multiple
21
family dwelling, any church or other religious institution, and
22
any public park or area zoned for such use. The ordinance further
23
prohibited any such theater from locating within one mile of any
24
public or private school. At the time this ordinance was enacted ,
25
no adult theaters were located in Renton, although there were
26
other theaters within the proscribed area.
-2-
1 •
In January, 1982, Playtime acquired two existing theaters in
1 r
Renton with the purpose of exhibiting adult motion pictures in at
2
least one, the Renton Theater , which is located within the area
3
proscribed by ordinance number 3526.2
4
Just prior to closing the sale of the theater , on January 20, L
5
1982 , Playtime filed an action in federal court, seeking a
6
declaration that the ordinance was unconstitutional and a
7
permanent injunction against its enforcement.
8
A month later , on February 19 , 1982, Renton brought suit in
9
state court seeking a declaratory judgment that the ordinance was
10
constitutional on its face and as applied to Playtime ' s proposed
11
use. The complaint alleged that an actual dispute existed because
12
of the pending federal lawsuit and because Playtime asserted that
13
the ordinance was unconstitutional. On February 22 , 1982 , Renton
14
moved to dismiss Playtime ' s federal action on the grounds that the
15
federal court should abstain in favor of the state action, citing
16
nungsr_y„Barris , 401 U. S. 37 (1971) , and Bsffmsn_ya_PQrsys-'
17
Ltj. , 420 U. S. 592 (1975) .
18
On March 8 , 1982, Playtime removed the state action to
19
federal court and Renton moved to remand. On March 25, the
20
magistrate filed his recommendation that abstention was improper
21
in the first action and on April 9, he recommended that the
22
removed state action be remanded for lack of jurisdiction because
23
the complaint failed to state a claim upon which relief could be
24
granted. The district court approved both recommendations,
25 5 , 1982 ,
denying the motion to dismiss the federal action on May
26
and remanding the state action on January 13 , 1983.
-3-
On May 3, 1982, Renton passed an emergency ordinance,
2 ! amending ordinance number 3526. The new ordinance added an
elaborate statement of reasons for the enactment of the
3
ordinances,3 it further defined the word "used, "4 and it reduced
4
the required distance from schools from one mile to 1000 feet.
S
The ordinance also contained a clause stating that the federal
6
litigation created an emergency making immediate adoption of the
7
new ordinance necessary.5 The ordinance was reenacted on June 14,
8
1982, without the emergency clause.
9
On June 23, 1982, the magistrate heard Playtime ' s motion for
10
preliminary injunction and Renton's motions to dismiss and for
I1
12 summary judgment. On November 5, 1982 , he filed his
13 recommendation to deny Renton's motion and to grant Playtime a
preliminary injunction. He found that the ordinance "for all
14
15 practical purposes excludes adult theaters from the City, " that
16 only 200 acres were not restricted by the ordinance, and that all
of these areas were "entirely unsuited to movie theater use. " He
17
further found that Renton had not established a factual basis for
18
19 the adoption of the ordinance and that the motives behind the
20 ordinance reflected "simple distaste for adult theaters because of
the content of the films shown. " On January 11 , 1983, the
21
district court entered an order approving and adopting these
22
23 findings and granting a preliminary injunction.6 For the first
24 time, Playtime began showing adult movies at the Renton Theater.
25 On February 8, 1983, the parties entered into a stipulation
to submit the case for hearing on whether a permanent injunction
26
should issue on the basis of the record already developed. On
-4-
February 17, 1983, the district court vacated the preliminary
1
3
injunction and denied the permanent injunction. The court found
that 520 acres were available as potential sites for adult theater
use and that this ordinance did not substantially restrict first
4
amendment interests.7 The court further held that Renton was not
5
required to show specific adverse impact on Renton from the
6
operation of adult theaters but could rely on the experiences of
7
other cities. Lastly, the court found that the purposes of the
8
ordinance were unrelated to the suppression of speech and that the
9
restrictions it imposed were no greater than necessary to further
10
the governmental interest.
11
12 On May 19, 1983, after denial of the permanent injunction,
13 and after the notice of appeal was filed in this court, Renton
14 filed an amended complaint in state court seeking, in addition to
15 the originally requested declaratory relief , abatement of the
16 operation of Playtime 's adult theaters. On June 8, 1983 , Playtime
17 removed the action to federal court on the ground that Renton
18 sought„to enforce statutes that had been declared unconstitutional
19 by this court. The district court remanded because the case did
20 not arise under federal law; the federal issue was only a defense.
21 It denied Renton's motion for costs and fees because it found that
22 the petition raised serious questions of law and that Playtime had
�3 not acted in bad faith. Renton appeals the denial of costs and
24 fees.
II
25
26 INBINpICTIQN
Renton argues that abstention was appropriate in this case
-5-
because it involves vital state interests, see BaillQsj_CQmmissiQn
2 y,_Pullmsn_CD. , 312 U.S. 496 , 501 (1941) , and because the exercise
of federal jurisdiction would interfere with the pending state
3
action, See YDDElgel_yA_BluxiS, 401 D.S. 37 (1971) . We do not
4
agree.
5
A. Pullman AbsteDtiQD_iS_IDBppIQpliste_in_Tbis_Csse•
6
We recently held that the 21111znn abstention doctrine was
inapplicable in a facial challenge to Washington's anti-obscenity
8
statute. J_B_DistliblatQls,_IDo.._y,_EikeDberry, 725 F. 2d 482 (9th
9
Cir. 1984) . We recognized that pla11m2D abstention would almost
10
never be appropriate in first amendment cases because such cases
11
involve strong federal interests and because abstention could
12
13 result in the suppression of free speech. I . at 487-88.
Similarly, we find that the district court in the case at hand
14
appropriately declined to abstain because "abstention would not
15
eliminate or materially alter the constitutional issues
16
17 presented. " BpQkDne_Aroajess_IDo.,_Y,_BIQokett, 631 F. 2d 135 , 137
(9th Cir. 1980) , Bff'd mew , 454 U. S. 1022 (1981) .
18
19 B. Younger AbsteltiQD_is_IDeppiDpriate_iD_Tbis_CB52.
We find YDDngel abstention inappropriate as well. Federal
20
courts, concerned for federal-state comity, have employed Yomniel
21
abstention to prevent federal interference with pending state
22
criminal proceedings. CQlsie's_Bookstore.,_IDs,_y_a_Siaperior_CQyrt,
23
739 F. 2d 466, 469 (9th Cir. 1984) ; See a1s4 BsaffmLD_YA_Plalsvel
24
25 Lt11a , 420 U. S. 592 (1975) . In this case, Renton asked the
district court to abstain in favor of a state court action that
26
sought only a declaration of the ordinance 's constitutionality.
-6-
The cases applying YQ1JDez abstention have arisen in criminal
or quasi-criminal contexts. We have refused to extend YQQDgex to
2
civil cases generally. See gpljie's_BQQks.tQre , 739 F. 2d at 469-
3
70; CbNmpiQD_IDteIDDtiQDD1_CQZ1p._Y4_BZQwD, 731 F. 2d 1406 (9th Cir.
4
1984) . We agree with the district court's refusal to do so in
5
this case as well . As we discussed in Bloisky_ys_BuperiQZ_CQVZt,
6
703 F.2d 332 (9th Cir. 1983) , in each of the cases in which
7
YQDD9ei has been applied in a civil context, the civil suits "bore
8
similarities to criminal proceedings or otherwise implicated state
9
interests vital to the QperLticD of state government. " I . at 337
10
(emphasis added) . These dual requirements are not present in a
11
civil case seeking only declaratory relief.
12
Playtime did not violate the ordinance prior to challenging
13
it. Thus , it was not even potentially subject to the sort of
14
enforcement action to which YQUD9Qs applies. In DQZen_ys_Selem
15
16 IDD4_IDL. , 422 U. S. 922 (1975) , the plaintiff challenged a local
ordinance prohibiting topless dancing in bars. Three bars in the
17
town were affected and all complied with the ordinance prior to
18
19 commencing suit in federal court. The day after the federal
20 complaint was filed , one bar, M&L, resumed topless dancing and was
prosecuted criminally. The other two bar owners remained in
21
compliance. The court held that YQ17Dget abstention applied to
22
M&L, but the retention of jurisdiction over the other two bar
23
24 owners was proper because they were not subject to criminal
prosecution prior to the issuance of the preliminary injunction.
25
Playtime 's position is like that of the two bars in DQILD•
26
Playtime showed adult films in Renton for the first time
-7-
. -- --�. .-- '_.._. .._._!i"2...... .^^- '_�. l'!4^fP ^'SS't'3T•'+a lE'711r111+1k.1'.•/.AM't4RT"h
after the district court entered its preliminary injunction. By
2
the time Renton amended its complaint in the state action to
include abatement of the nuisance, making it the sort of
3
enforcement action to which YQQDgeI might arguably apply,8 final
4
5 judgment denying the injunction had already been granted in the
6 district court. At this point, abstention was inappropriate. 9
7
III
8 TF)F_STANDARDS_FQR_REQIJEATIQN_QF_SPEECB
TRRQNSR_TBE_DSE_QF_TIDE_ZQNIN _PQWER
9 Local governments may zone for the public welfare. J522
10 Be/Ean_y„Parlsex, 348 U. S. 26 , 32-33 (1954) . The power is
11 considerable but it must be exercised within constitutional
12 limits. SPQ SCbWLYA_BQIQDgb_Qf_BDDDt_EPbxLf h1, 452 U. S. 61, 68
13 (1981) . We have an obligation to scrutinize strictly zoning
14 decisions that infringe first amendment rights. TQYaX_YL
15 EilimeyeI, 721 F.2d 1260, 1264 (9th Cir. 1983) , Qe.t• SjeDiej , 105
16 S.Ct. 223 (1984) .10
17 The district court found that 520 acres in Renton were
18 available for adult theater sites. Although we do not quarrel
19 with the conclusion that 520 acres is outside the restricted zone,
20 we do not agree that the land is available.11 A substantial part
21 of the 520 acres is occupied by:
22 (1) a sewage disposal site and treatment plant;
�3 (2) a horseracing track and environs;
24 (3) a business park containing buildings suitable only for
25 industrial use;
26 (4) a warehouse and manufacturing facilities;
(5) a Mobil Oil tank farm; and,
-8-
(6) a fully-developed shopping center.
I i
Limiting adult theater uses to these areas is a substantial
2
restriction on speech. Thus, the Renton ordinance, although
3
patterned after the Detroit zoning ordinance upheld in YQlm9_3(..
4
hmeriDDD_Bini_TbeaterZA_SDD.& . 427 U.S. 50 (1976) , is quite
5
different in its effect. The Detroit ordinance prohibited the
6
location of an adult theater within 1,000 feet of another adult
9
theater or other use having similar deleterious effects on
8
neighborhoods, or within 500 feet of a residential area. There
9
was no showing in Youn9 that the ordinance seriously limited the
10
number of sites available for adult theaters. The Renton
11
ordinance' s prohibition against adult theaters within 1 ,000 feet
12
of schools , parks , churches , and residential areas would result in
13
a substantial restriction on this activity.
14
The Supreme Court developed a useful test to measure a
15
challenged regulation affecting speech in I1Dit2d_51ates_YL
16
Q'Brien, 391 U. S. 367, 377 (1968) , cited with approval in actad,
17
452 U.,S. at 69 n.7. Under this test, a regulation is
18
constitutional only if (1) it is within the constitutional power
19
of the government; (2) it furthers an important or substantial
20
governmental interest; (3) the governmental interest is unrelated
21
to the suppression of free speech; and (4) the incidental
22
restriction on first amendment freedom is no greater than
23
essential to further that interest. O'Brien, 391 U. S. at 377.
24
Here, Renton bears the burden of proving that the elements of this
25
test are satisfied. 5Qs< FirDt_NatiQDal_BaDk_Yia_BQ11Qtti , 435 U. S.
26
765, 786 (1978) .
-9-
1
IV
2
STANDARD_DF_REYI EW
3
The parties stipulated that the record developed at the
4
preliminary injunction stage would serve as the record upon which
5
the court could decide the permanent injunction. The parties in
6
effect submitted the case for trial upon an agreed record, the
7
district court resolving any disputed issues of fact presented by
8
the record.12 We review these factual determinations under a
9
clearly erroneous standard. We do not, however , apply a clearly
10
erroneous standard of review to the district court's findings on
II
the D'Brien factors because our recent decision in I1Dif2d_S.ates
12
YL_U''QCQDDey, 728 F. 2d 1195 (9th Cir. ) (en banc) , QQIf• dezil d, 105
13
S.Ct. 101 (1984) , and the Supreme Court' s recent decision in FQSQ
14
CQrp,17.._CQDsyID2rs_UniQD_Qf_IJDiteJ_5tztQS1_IDL. , 104 S.Ct. 1949
15
(1984) , require us to review them de DQYQ.
16
In UCQDDey we held that mixed questions of fact and law are
17
subject to de DQYQ review when they require us "to exercise
18
judgment about the values that animate legal principles . . . . "
19
728 F. 2d at 1202. In no area of law is the consideration of the
20
values behind legal principles more important than when state
21
action threatens to infringe on activity protected by the first
22
amendment.
23
In DQse_SQrp. the Supreme Court held that a trial court' s
24
finding as to "actual malice" in a libel case was subject to 13E
25
DQYQ review. The question as framed by the Court was "whether the
26
evidence in the record . . . is of the convincing clarity required
-10-
1 to strip the utterance of First Amendment protection. . . .
Judges . . . must independently decide whether the evidence in the
3 record is sufficient to cross the constitutional threshold. . . . "
104 S.Ct. at 1965. The Court recognized that it "has regularly
4
5 conducted an independent review of the record both to be sure that
6 the speech in question actually falls within the protected
category and to confine the perimeters of any unprotected category
7
within acceptably narrow limits in an effort to ensure that
8
protected expression will not be inhibited. " Id. at 1962. We
9
10 have a similar duty in the case at hand.13
V
I1
12 APPLI QATI QN_QF_TBF_Q'BB1 FN_FAQTQRB
A. BeagD_Bs5_N4t_.�bQkm_d_,�1 b5tsutia1_GQY2Ipm.eDtLi
13
IDtereSt.
14 The record presented by Renton to support its asserted
15 interest in enacting the zoning ordinance is very thin. The
16 ordinance itself contains only conclusory statements. No record
17 of the public hearing was made or preserved. City officials who
18 attended testified that the hearing was held, but said little
19 else. To uphold the substantiality of the governmental interest,
20 the district court had to justify Renton's reliance on the
21 experiences of other towns and cities , particularly Detroit and
22 Seattle, citing the Seventh Circuit ' s decision in QQD1154_1rs_Qity
23 Qf_PQQria, 619 F. 2d 1203 (7th Cir. 1980) .
24 In SiepusS, the court relied on YQ13D9 to uphold a provision of
25 a zoning ordinance which required, just as the Detroit ordinance
26 did , the dispersal of adult uses. Id. at 1211 . Although the
Renton ordinance plupQrtS to copy Detroit 's and Seattle's , it does
-11-
si
not solve the same problem in the same manner. The Detroit
ordinance was intended to disperse adult theaters throughout the
2
city so that no one district would deteriorate due to a
3
concent
ration of such theaters. The Seattle ordinance , by
4
contrast, was intended to 0=£Dtlate the theaters in one place so
5
that the whole city would not bear the effects of them. The
6
Renton ordinance is allegedly aimed at protecting certain uses --
7
schools , parks, churches and residential areas -- from the
8
perceived unfavorable effects of an adult theater.
9
This court and the Supreme Court require Renton to justify
10
its ordinance in the context of Benton's problems -- not Seattle 's
11
12 or Detroit ' s problems. In YQU139, the plurality found that the
record disclosed a factual basis for the council 's determinations,
13
427 U.S. at 71 , and Justice Powell cited "reports and affidavits
14
from sociologists and urban planning experts, as well as some
15
laymen. " .I . at 81 n. 4 (Powell , J. , concurring) .14 Similarly, in
16
the Seattle case, the zoning ordinance was the "culmination of a
17
18 long period of study and discussion. " NQ1tb2DsLCiDemD1_In41_Y1
19
City_Qf_SQ.attic, 90 Wash. 2d 709, 711 , 585 P. 2d 1153 (1978) , Qeit•
20 glQD1e , 441 U.S. 945 (1979) . By contrast, in 5Qbs3� , which
invalidated an ordinance prohibiting live nude dancing in the
21
town, the Supreme Court stressed that the Borough had not
22
adequately justified its substantial restriction by evidence in
23
the record. 452 U. S. at 72. The Court cited by way of contrast
24
the full record made in YQID9• Ise•
25
In Buzinicb_YA_CQVDty_Qf_,SBDta_CiDIZ, 689 F. 2d 1345 (9th Cir.
26
1982) , we reversed summary judgment validating a zoning ordinance
-12-
...:wi"K ..•_.`4' _' �e '.:S'i'• _: °. '.:�.n'�!!ws"lR.+IT.'•.,,e .r+. .... + .... +e r_..:. R�tr.: ,r i1t r.._u: .. :,1-s._ ... -..,asr _ .. ,.Ah;
regulating adult theaters and bookstores in part because of lack
1
of evidence. We said, "While the ordinance here was said to be
2
copied after the Detroit ordinance validated in Young, we find
3
very little evidence bearing on the concentration of adult
4
enterprises. " I . at 1348. We found that " [clonclusions alone
5
support the thesis that adult bookstores and movie theaters have
6
any different impact upon traffic and littering than other kinds
of businesses have. " I . Further, in FbQ1_y,_fity_Qf_cQIQDa, 698
8
F.2d 390, 393 (9th Cir. 1983) , we remanded for "factual findings
9
on the validity of the city's assertions of harm. " AQQQis�
10
I1 B115iDISjinI25_y.._city_Qf_cs51yeztQD► 682 F. 2d 1203, 1215 (5th Cir.
1982) (contrasting record in YQUDg against "empty" record before
12
13 it) ; FDD.itZBy_13QQk_ZbQp1_IDQ_a_y.._Cify_Qf_BQstQD, 652 F. 2d 1115,
1125 (1st Cir. 1981) (remanding for factual findings to support
14
city's assertions , stating, "the government bears the burden of
15
proving some empirical basis for the projections on which it
16
17 relies. ") ; Aya1QD_CiD2Ina_CQIj?i_y.a_TbQmp5DD► 667 F. 2d 659 , 661-62
(8th Cir. 1981) (en banc) (contrasting YQUDg and requiring city to
18
19 present evidence to justify its restriction) ; gQ ego_FaIbQI_CQ1_yl
20 City_Qf_RQugQ_B XbQX , 657 F. 2d 94, 98 (6th Cir. 1981) (reversing
because city's post hoc justifications failed to support
21
ordinance) .
22
As in Buzizib, we find Renton' s justifications conclusory
23
and speculative. Renton has not studied the effects of adult
24
theaters and applied any such findings to the particular problems
25
or needs of Renton. The studies done by Detroit on the problems
26
of concentrating adult uses are simply not relevant to the
-13-
I
concerns of the Renton ordinance -- the proximity of adult
2 theaters to certain other uses. We do not say that Renton cannot
3 use the experiences of other cities as part of the relevant
evidence upon which to base its actions , but in this case those
4
experiences simply are not sufficient to sustain Renton's burden
5
6 of showing a significant governmental interest.
B. Renton_Bas_NQt_PrQYed_Tbaf_Tbe_Beg111afiQn_is_unrelabed
7 tQ_tbQ_BuppressiQn_Qf_EpeeQb.
8 Renton must prove that its zoning decision was "motivated by
9 a desire to further a compelling governmental interest unrelated
10 to the suppression of free expression. " TQYar_Ys_Billmeyer. 721
I1 F. 2d 1260, 1266 (9th Cir. 1983) ; zee 1125Q LydQ_Enterprises_yA_City
12 Qf_Las_yegss , No. 83-1962, slip op. at 4624 (9th Cir. Oct. 23 ,
13 1984) .15 Both the magistrate and the district court recognized
14 that many of the stated reasons for the ordinance were no more
15 than expressions of dislike for the subject matter.16 The record
16 before us raises at least an inference that a motivating factor
17 behind the ordinance was suppression of the content of the speech
18 as opposed merely to regulating the effects of the mode of that
19 speech. See TQYar , 721 F. 2d at 1266. The record does not reveal
20 that Renton has rebutted the inference. As discussed above, the
21 City had little empirical evidence before it to demonstrate the
22 alleged deleterious effects of adult theaters .
23 The district court upheld the ordinance on the ground that
24 Renton's preljQminate concerns were legitimate. But that is not
25 the test in this Circuit. Where mixed motives are apparent, as
26 they are here, TQYar requires that the court determine whether "a
mQtivating_factox in the zoning decision was to restrict
-14-
plaintiffs ' exercise of first amendment rights. " isj. at 1266
2
(emphasis added) .17
z Neither the facts before the Renton City Council nor those
presented to the district court appear to justify the ordinance 's
4
restriction on protected expression. Renton has not shown that it
5
6 was not motivated by a desire to suppress speesrb based on its
content.18 Given the inferences raised in the record before us,
7
we remand for reconsideration, particularly in light of TQysr.
8
Renton argues, additionally, that even if it has effectively
9
banned adult theaters , the ordinance is constitutional because
10
11 similar adult theaters exist in nearby Seattle. The Supreme Court
12 rejected such an argument in Sebssi and we reject it here as well.
13 " ' [Olne is not to have the exercise of his liberty of expression
14 in appropriate places abridged on the plea that it may be
15 exercised in some other place. ' " SebeJ , 452 U. S. at 76-77
16 (quoting achneisler_ys_New_Jersey, 308 U. S. 147 , 163 (1939) ) .19
17 VI
18 QQSTS_ANp_FEES_QN_SEQQNp_REMQVAL
19 In number 83-3980 Renton claims it is entitled to fees under
20 28 U.S.C. S 1447 (c) , because Playtime ' s second removal was in bad
21 faith. 20 We review the court's finding of an absence of bad faith
22 under the clearly erroneous standard. See DQbe1"113_yA_EDfeway
23 Ztoxesl_Insr, 679 F. 2d 1293, 1298 (9th Cir. ) , eext. Jenie6, 459
24 U. S. 990 (1982) .
25 Renton stresses that this was the second removal petition,
26 but fails to mention that the first was remanded because the
-15-
second step of deciding if the case could be removed if it had
stated a cause of action. The second removal was on the basis of
Renton's amended complaint, which did state a cause of action.
This complaint, however, sought enforcement of state laws that had
4
been declared unconstitutional by other courts. Under the
circumstances, the district court did not err in finding no bad
faith.
7
8 VII
CONCLUSION
9
The City failed to sustain its burden of justifying its
10
ordinance under the test of DDit2d_5tBte5_YA_Q'BIieD, 391 U.S.
11
367, 377 (1968) , as applied in similar cases by the Supreme Court
12
13 and this court. Accordingly, we reverse and remand case number
83-3805 for proceedings consistent with this opinion.
14
The district court did not clearly err in denying the City's
15
motion for costs and fees in connection with the second removal .
16
Accordingly, we affirm in case number 83-3980.
17
AFFIRMED in part, REVERSED in part, and REMANDED.
18
19
20
21
22
23
24
25
26
-16-
FOOTNOTES
1
1/ The first ordinance defined an "adult motion picture
2
theater" as
3
an enclosed building used for presenting motion
4 picture films, video cassettes, cable television,
or any other such visual media, distinguished or
5 characterized by an emphasis on matter depicting,
describing or relating to "specified sexual
6 activities" or "specified anatomical areas" as
hereafter defined, for observation by patrons
7 therein.
8 The ordinance defined these terms as follows:
9 2. "SpsifiQl_5exD.41_ActiYi. iez"1
10 (a) Human genitals in a state of sexual
stimulation or arousal;
12 (b) Acts of human masturbation, sexual intercourse
or sodomy;
13 (c) Fondling or other erotic touching of human
genitals , pubic region, buttock or female breast.
14
3. "51)2cifi.efLADDtpmi.cgl_axeZzfi
15
(a) Less than completely and opaquely covered human
16 genitals , pubic region, buttock, and female breast below
17 a point immediately above the top of the areola; and
(b) Human male genitals in a discernible turgid
18 state, even if completely and opaquely covered.
19 The second ordinance expanded the defined term of "used" as:
20 a continuing course of conduct of exhibiting "specific
21 [sic specified?] sexual activities" and "specified
anatomical area[ "] in a manner which appeals to a
prurient interest.
22
2/ For the purposes of this opinion, "adult motion picture
23
24 theater" or "adult theater" refers to the definition used by
25 the City. Ze2 SDpra note 1. We express no view as to the
26 effect of this definition on the constitutionality of the
ordinance. See iDfra note 18.
-17-
3/ The City gave the following reasons in the amended
ordinance:
2
1. Areas within close walking distance of single and
3 multiple family dwellings should be free of adult
entertainment land uses.
4
2. Areas where children could be expected to walk,
5 patronize or recreate should be free of adult
6 entertainment land uses.
3. Adult entertainment land uses should be located in
7 areas of the City which are not in close proximity
to residential uses , churches, parks and other
8 public facilities, and schools.
9 4. The image of the City of Renton as a pleasant and
attractive place to reside will be adversely
10 affected by the presence of adult entertainment
11 land uses in close proximity to residential land
uses, churches, parks and other public facilities,
and schools.
12
13 5. Regulation of adult entertainment land uses should
be developed to prevent deterioration and/or
14 degradation of the vitality of the community before
the problem exists , rather than in response to an
15 existing problem.
6. Commercial areas of the City patronized by young
16 people and children should be free of adult
17 entertainment land uses.
7. The Renton School District opposes a location of
18 adult entertair.rnent land uses within the perimeters
19 of its policy regarding bussing of students , so
that students walking to school will not be
20 subjected to confrontation with the existence of
adult entertainment land uses.
21 8. The Renton School District finds that location of
adult entertainment land uses in areas of the City
22 which are in close proximity to schools, and
commercial areas patronized by students and young
�3
people, will have a detrimental effect upon the
24 quality of education which the School District is
providing for its students.
25 9. The Renton School District finds that education of
2C its students will be negatively affected by
location of adult entertainment land uses in close
proximity to location of schools.
-18-
10. Adult entertainment land uses should be regulations
[sicl by zoning to separate it from other
dissimilar uses just as any other land use should
be separated from uses with characteristics
different from itself.
11. Residents of the City of Renton, and persons who
are non-residents but use the City of Renton for
shopping and other commercial needs, will move from
5 the community or shop elsewhere if adult
Gy entertainment land uses are allowed to locate in
close proximity to residential uses, churches,
parks and other public facilities, and schools.
7
12. Location of adult entertainment land uses in
8 proximity to residential uses, churches, parks and
other public facilities, and schools, may lead to
increased levels of criminal activities , including
10 prostitution, rape, incest and assaults in the
vicinity of such adult entertainment land uses.
lI 13. Merchants in the commercial area of the City are
12 concerned about adverse impacts upon the character
and quality of the City in the event that adult
13 entertainment land uses are located within close
proximity to residential uses, churches, parks and
14 other public facilities , and schools. Location of
adult entertainment land uses in close proximity to
15 residential uses, churches, parks and other public
facilities, and schools , will reduce retail trade
16 to commercial uses in the vicinity, thus reducing
property values and tax revenues to the City. Such
17 adverse affect [sic] on property values will cause
the loss of some commercial establishments followed
18 by a blighting effect upon the commercial districts
within the City, leading to further deterioration
19 of the commercial quality of the City.
14. Fxperience in numerous other cities, including
20 Seattle, Tacoma and Detroit, Michigan, has shown
21 that location of adult entertainment land uses
degrade the quality of the area of the City in
22 which they are located and cause a blighting effect
upon the City. The skid row effect, which is
23 evident in certain parts of Seattle and other
cities , will have a significantly larger affect
24 [sic] upon the City of Renton than other major
cities due to the relative sizes of the cities.
25 15. No evidence has been presented to show that
26 location of adult entertainment land uses within
the City will improve the commercial viability of
the community.
-19-
16. Location of adult entertainment land uses within
walking distance of churches and other religious
facilities will have an adverse effect upon the
2 ministry of such churches and will discourage
attendance at such churches by the proximity of
3 adult entertainment land uses.
4 17. A reasonable regulation of the location of adult
entertainment land uses will provide for the
5 protection of the image of the community and its
property values, and protect the residents of the
6 community from the adverse effects of such adult
entertainment land uses, while providing to those
7 who desire to patronize adult entertainment land
uses such an opportunity in areas within the City
8 which are appropriate for location of adult
entertainment land uses.
9
18. The community will be an undesirable place to live
10 if it is known on the basis of its image as the
location of adult entertainment land uses .
11
19. A stable atmosphere for the rearing of families
12 cannot be achieved in close proximity to adult
entertainment land uses.
13
20. The initial location of adult entertainment land
14 uses will lead to the location of additional and
similar uses within the same vicinity, thus
15 multiplying the adverse impact of the initial
location of adult entertainment land uses upon the
16 residential , [sic] churches , parks and other public
facilities, and schools , and the impact upon the
17 image and quality of the character of the
community.
18
4/ BQu uupxa note 1.
19
5/ The emergency clause stated:
20
The City Council of the City of Renton finds and
21 declares that an emergency exists because of the
pendency of litigation against the City of Renton
22 involving the subject matter of this ordinance, and
potential liability of the City of Renton for damages as
23 pleaded in that litigation, and that the immediate
adoption of this ordinance is necessary for the
24 immediate preservation of public peak [sic] , health, and
safety or for the support of city government and its
25 existing public institutions and the integrity of the
zoning of the City of Renton. Therefore, this ordinance
26 shall take effect immediately upon its passage and
approval by the Mayor.
-20-
I
The City used this clause as justification for a renewed
motion to dismiss and a motion for summary judgment, both of
which were filed on May 4, the next day.
3
6/ We denied the City's application for a writ of mandamus
4 to stay the preliminary injunction.
7/ The court did not explain the variance between this
6 finding and its prior finding, made at the time it granted
7
the preliminary injunction, that only 200 acres were
8 available.
8/ In Byffman_YA_PmIsDe,_Lfsis , 420 U. S. 592 (1975) , the
10
Supreme Court held that a federal court could not enjoin
I1
enforcement of a state judgment in a nuisance abatement
12
action brought by the state against an adult theater . The
13
Court rejected the argument that YQ1;1192; was restricted to
14
criminal proceedings, but carefully limited its holding by
15
recognizing that the state action was "in important respects
16
. . . more akin to a criminal prosecution than are most civil
17
cases. . . . The proceeding is both in aid of and closely
18
related to criminal statutes . . . . " if]. at 604. In
19
AiDijiQQ_Y1_171311 , 430 U.S. 327 (1977) , the Court held that
20
YD131:gex applied to a state civil contempt proceeding because
21
the state's "interest in the contempt process . . .
22
vindicates the regular operation of its judicial system. "
23
Ss3. at 335. In TxBiDQI_YA_BeIDBDd.ez, 431 U. S. 434 (1977) ,
24
abstention was required in deference to a prior state civil
25
action brought by the state of Illinois to recover welfare
26
payments obtained by fraud. The Court noted , however , that
-21-
the action was "an ongoing civil enforcement action . . .
brought by the State in its sovereign capacity. " Ise. at 444.
7 And, in I'1'QQZe_Y,_$ims , 442 U. S. 415 (1979) , abstention was
3
required as to a pending state proceeding in which the state
4
was seeking custody of children abused by their parents.
5
9/ The court in ByffDAD recognized that
C
"When no state criminal proceeding is pending at
the time the federal complaint is filed, federal
intervention does not result in duplicative legal
S proceedings or disruption of the state criminal
justice system; nor can federal intervention, in
9 that circumstance, be interpreted as reflecting
negatively upon the state court' s ability to
10 enforce constitutional principles. "
11 B1afman, 420 U.S. at 603 (quoting 5teffs1_y.i_TbQmpsQD. 415
12 U. S. 452, 462 (1974) ) .
13 If, however , "state criminal proceedings are begun
14 against the federal plaintiffs after the federal complaint is
15 filed but bsfQZe_s1Dy_j2ZIn teS3ings_Qf_sDbsiDDge_QD_tbs_msrits
16 have taken place in the federal court, the principles of
17 YQungsl_y„BBZIis should apply in full force. " Bicks_Y.
(1975) (em
is 1�iIaDdD, 422 O. S. 332, 349hasis added) . In Bi;ks P
19 state officials confiscated allegedly obscene movies and
20 brought an action in state court against two employees of th
21 theater. The theater owners sought injunctive relief in
22 federal court and the day after the owners filed the federal
23 complaint, the state charged the theater owners along with
24 their employees in state court. The court applied YQ1lD921
25 because appellees were charged .
prior to answering th=
26 federal case and prior to any proceedings whatsoever before
the three judge court. ' Id. at 349-50.
-22-
•
10/ We note that obscenity is not at issue in this case.
The City asks us to take notice of a state superior court
2
decision in City_Qf_RentQn_Y.,_Playtims<_Tbeat2rz , No. 82-2-
3
02344-2 (Superior Court, King County, Washington, March 9,
4
1984) , in which an advisory jury ruled that four out of ten
5
movies shown by Playtime are obscene. The City did not argue
6
before the district court that Playtime 's movies were
7
obscene. We would not reach the issue in any event since
8
this case does not involve the enforcement of an anti-
c:
obscenity statute.
10
11/ Although this circuit has not considered what
11
"available" means in this context, we draw support from the
12
Court's statement in young that " [tlhe situation would be
13
quite different if the ordinance had the effect of
14
suppressing, or greatly restricting access to, lawful
15
speech. " 427 U. S. at 71 n. 35. .52e R,15iDrd,m3Qs_y,_city_Qf
16
17 CalyeStQn, 682 F.2d 1203, 1214 (5th Cir. 1982) (expanding on
fpotnote in young, court noted that permitted locations were
18
19 "among warehouses , shipyards, undeveloped areas , and
20 swamps. ") .
12/ In ;? arsky_ys_Williams , 512 F. 2d 109 (9th Cir. 1975) , we
21
recognized,
22
" [While summary judgment cannot be granted where
23 there are questions of fact to be disposed of, even
24 by consent of all concerned, there is no reason why
parties cannot agree to try a case upon affidavits,
admissions and agreed documents. In effect, that
25 is what was done here. No objection whatever was
made at the time of submission that there were
26 questions of fact which could not be decided upon
the evidence before the trial court. "
-23-
•
' I
Id. at 113 (quoting Cillespie_3„NQYris , 231 F.2d 881 , 883-84
(9th Cir. 1956) ) . This statement applies here as well.
` Playtime asserts that summary judgment was improper
3 because it relied on the district court's findings on the
4 preliminary injunction in entering into the stipulation. f
S Thus, Playtime argues, when the district court inexplicably
6 changed its findings of fact, it created material disputed
7 ' issues of fact that would make summary judgment improper.
8 Although we sympathize with Playtime 's argument, we agree
with Renton. Playtime made a tactical choice not to submit
10 further documentation or testimony and cannot now complain .
11 13/ We will not deal with the first factor of i7Difel_5fefes
12
Ya_Q'BZien, 391 U. S. 367 , 377 (1968) , in detail , for all
13
agree that such a zoning ordinance is within the
14
constitutional power of the government. Nee ae/man_y.,
15
Parkes, 348 U.S. 26, 32-33 (1954) ; See D1sQ 5Qbais_ys_BDII2D9b
16
Qf_nillat_Bpbrait, 452 U. S. 61 , 68 (1981) .
17
14/ The Court in ;?Abed recognized that ordinances must
18
address particular problems, citing Justice Powell's
19
concurrence in YQlr9:
20 Emphasizing that the restriction was tailored to
21 the particular problem identified by the City
Council , [Justice Powell] acknowledged that u [t] he
22 case would have presented] a different situation
had Detroit brought within the ordinance types of
23 theaters that had not been shown to contribute to
the deterioration of surrounding areas. "
24 . bB3, 452 U. S. at 72 n. 10 (quoting YQSD.g. 427 U. S. at 82
25
(Powell, J. , concurring) ) .
26
15/ In la p_] nterprises_y.,_City_Qf_LDs_Yeg.as . No. 83-1962 (9th
-24-
Cir. Oct. 23, 1984) , the court, citing BQbad , 452 U. S. at 67-
1
70, and Q_'BIlen, 391 U. S. at 377 , reaffirmed that an
21
ordinance that restricts free expression must further "a
3 substantial governmental interest unrelated to the
4
suppression of free expression. " Slip op. at 4624. In that
S case, in the context of a preliminary injunction, the court
6
held that the plaintiffs had not developed an adequate record
7
to enjoin enforcement of the ordinance.
8 16/ Bee sipla note 3.
9 17/ The TQYaI test is consistent with other constitutional
10
cases regarding land use decisions. see, f.,41 , yillzge_Qf
11
B111D9tQD_B219bt2_YA_M2tIQPQ2itaD_BDDZiDg_PQYQ1QpaeDt_CQIp• ►
I2
429 U. S. 252 , 266 (1977) (" [d]etermining whether invidious
13
discriminatory purpose was a_motlYatiDg_factQI demands a
14
sensitive inquiry into such circumstantial and direct
15
evidence of intent as may be available" (emphasis added) ) .
16
18/ The recent Supreme Court decision in BembQls_Qf_City
17
CQ13DQi1_Y.._TDIPAYPI5_fQI_YIDQ211t, 104 S.Ct. 2118 (1984) ,
18
upholding an ordinance prohibiting the posting of signs on
19
public property, lends support to the result we reach in this
20
case. In YiDQQDt, the ordinance applied to all signs ,
21
regardless of the content of their message. The court noted
22
there was "no claim that the ordinance was designed to
23 suppress certain ideas that the City finds distasteful. " Id.
24
at 2126.
25
19/ In view of our holding, we need not address the
26
overbreadth or vagueness issues raised by Playtime. Playtime
-25-
i I
also argues that the fact that Renton's ordinance is directed
only at adult theatres and not other adult uses is a denial
2
of equal protection. We do not denigrate the validity of
3 this issue, but need not reach it.
20/ The district court's ruling was oral and no written
5 opinion or docket entry was made. Although Fed. R. App. P.
�rei�ia.KY. . 4 (a) (2) validates a notice of appeal filed after announcement
of a decision or order, it contemplates the entry of a
8 judgment under Fed. R. Civ. P. 58, 79. No such entry was
9 made in this case; thus, under Rule 4 (a) (2) , the notice of
10
appeal has no date of entry to which to conform.
Nonetheless we conclude that we have jurisdiction over
12
this appeal under Bsfksrs_Trmst_CQs_y„Malliz, 435 U.S. 381
13 (1978) . In BaDksrs_Trust, the Supreme Court held that the
14
parties to an appeal could waive Rule 58 's separate judgment
15
requirement when the district court clearly evidenced its
16 intent that its order would represent the final decision in
17
the case and the parties did not object to the absence of a
18
separate judgment. Id. at 387-88. We find those factors
19
-_ present here. The remand order was entered in the docket and
20
no further proceedings could have existed in federal court.
21
Neither party has objected to the lack of a separate judgment
22 here. Although the district court's order in BsDksrs_Trys.
23
was contained in a written opinion, we do not find that fact
24
controlling except as it bears on the clarity of the court's
25
intent. The transcript of the hearing on the remand leaves
26
-26-
no doubt as to the district court 's intent. Thus , the oral
decision was an appealable order.
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
•
20
21
22
23
24
25
26
-27-
10 11
nance, these statements "should not negate the legitimate, test was not the "predominate" concern of the City
predominate concerns of the City Council * * *." App. Council; where mixed motives are apparent, the test is
31a. Thus, because Renton's "effort to preserve the qual- whether " `a motivating factor in the zoning decision was
ity of its urban life * * * is minimally intrusive of a to restrict'" First Amendment rights.21
particular category of [the] protected expression" de-
scribed in Young (App. 32a), the District Court granted THE QUESTIONS PRESENTED ARE SUBSTANTIAL
Renton's motion for summary judgment.
Cities and towns across the country have struggled
The Ninth Circuit reversed and held Renton's ordi- since Young to regulate the location of adult establish-
nance in violation of the First Amendment. App. 22a. ments within their borders. Only a few of their zoning
It refused to review the District Court's O'Brien rulings ordinances have been upheld—and only one federal Cir-
under a clearly erroneous test but instead considered cuit has sustained the validity of a Young-style adult
them as mixed questions of law and fact, subject to de theatre ordinance on the merits.22 Most have been struck
novo review. The Ninth Circuit ruled:
1. Renton improperly relied on the experience of other 21 App. 20a (quoting Tovar v. Billmeyer, 721 F.2d 1260, 1266 (9th
cities in trying to prove a significant governmental in- Cir. 1983) (emphasis by the Playtime court), cert. denied, 105
terest to support its enactment. The Court of Appeals S. Ct.223 (1984)).
One sentence in the Court of Appeals' decision (App. 20a-21a)
distinguished Renton's ordinance from that in Young
could be read to mean that this case was being remanded for fur-
because Detroit's ordinance dispersed adult theaters, ther hearings on the issue of intent. The Ninth Circuit's remand
whereas Renton's concentrated them in one area. App. "for proceedings consistent with this opinion" does not, of course,
17a. Furthermore, Renton had to "justify its ordinance preclude this Court from treating the lower court's decision as final
in the context of Renton's problems—not Seattle's or De- for purposes of appeal. See generally Moore V. New York Cotton
Exchange, 270 U.S. 593, 603 (1926) ; Gulf Refining Co. v. United
troit's problems." Id.; emphasis in original. "Renton has
States, 269 U.S. 125, 136 (1925). Moreover, this case is not inter-
not studied the effects of adult theaters and applied any
locutory as it relates to the issues here presented for review.
such findings to the particular problems or needs of Subsequent to the decision below, Playtime
ct
Renton." App. 19a. Detroit's studies "are simply not Court a "Motion for Entry withd with coth anying
of Judgment" . an accompanying
relevant to the concerns of the Renton ordinance * * *." memorandum arguing that the record is complete and may not be
Id. supplemented, and therefore the only remaining course of action
now open, consistent with the Ninth Circuit's opinion, is the entry
2. Without disagreeing that 520 acres were outside the of a judgment declaring the Renton ordinance unconstitutional,
restricted zone, the court concluded that the land was granting a permanent injunction, and setting the matter down for
not "available" in the constitutional sense because "a sub- a hearing on Playtime's damage claims.
stantial part" was undeveloped or already occupied by Even if Playtime is wrong in its Motion, any new proceeding
would require Renton to submit evidence under the wrong standard,
various industrial and commercial concerns. App. 13a.
as demonstrated below.
3. Because some citizens at public hearings had ex- 22 Genusa v. City of Peoria, 619 F.2d 1203 (7th Cir. 1980). See
pressed disapproval of adult movies, there was "at least also Northend Cinema, Inc. v. City of Seattle, supra; City of Whit-
an inference that a motivating factor behind the ordi- tier v. Walnut Properties, Inc., 149 Cal. App. 3d 633, 197 Cal. Rptr.
nance was suppression of the content" of speech. The 127 (2d Dist.), vacating 189 Cal. Rptr. 12 (2d Dist. 1983) ; County
12 9
down because of an actual or practical unavailability of The District Court ruled that Renton's ordinance "in
alternative sites,23 an intent to inhibit,24 or the effect of its essential features is virtually identical" to the Detroit
inhibiting,23 one or more existing or imminent adult es- and Seattle ordinances, except that the word "used" was
tablishments; and/or an intent to suppress the content more precisely defined in the Renton ordinance. App.
of adult films.26 In summary, Young-style ordinances 26a. The intrusion into First Amendment interests was
not substantial because the ordinance's restrictions were
of Sacramento v. Superior Court, 137 Cal. App. 3d 448, 187 Cal. even narrower than those in the Detroit and Seattle ordi-
Rptr. 154 (3d Dist. 1982) ; Hart Book Stores, Inc. v. Edmisten, nances, no theatre had been closed, there was no content
612 F.2d 821 (4th Cir. 1979) (statutory prohibition against two
adult establishments in one building tantamount to zoning and limitation, and the availability of 520 acres contradicted
upheld under Young), cert. denied, 447 U.S. 929 (1980) ; Lydo the notion of a substantial restriction on protected
Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211 (9th Cir. speech. According to the District Court, the burden of
1984) (appeal from preliminary injunction). having to locate a theatre within the set-aside area was
23 E.g., Basiardanes v. City of Galveston, 682 F.2d 1203, 1209, no different than the burden upon other land users "who
1212, 1214 (5th Cir. 1982) ; Alexander V. City of Minneapolis, 531 must work with what land is available to them in the
F. Supp. 1162, 1168-69 (D. Minn. 1982), aff'd, 698 F.2d 936 (8th city." App. 27a. The trial court found that the acreage
Cir. 1983) ; CLR Corp. v. Henline, 520 F. Supp. 760, 767 (W.D. available to Playtime and other adult theatres was corn-
Mich. 1981), aff'd, 702 F.2d 637 (6th Cir. 1983) ; Purple Onion, Inc.
V. Jackson, 511 F. Supp. 1207, 1209, 1214, 1215-17 (N.D. Ga. 1981) ; prised of land "in all stages of development * * * that is
E&B Enterprises v. City of University Park, 449 F. Supp. 695, 697 criss-crossed by freeways, highways, and roads * * *."
(N.D. Tex. 1977) ; Bayside Enterprises,Inc. V. Carson, 450 F. Supp. App. 28a.
696, 701-702 (M.D. Fla. 1978). Cf. Lydo Enterprises,Inc. v. City of
Las Vegas, 745 F.2d at 1213-15 (preliminary injunction denied Furthermore, the District Court found that Renton s
where theatre owner failed to show that alternative sites were not ordinance met all four parts of the O'Brien test.20 In
available) ; Deerfield Medical Center v. City of Deerfield Beach, 661 particular, Renton's articulated interests in protection of
F.2d 328, 336 (5th Cir. 1981) (re abortion clinics) ; Keego Harbor its community through zoning were furthered by its ordi-
Co. v. City of Keego Harbor, 657 F.2d 94, 96-99 (6th Cir. 1981) nance. There was no evidence that the secondary effects
(ordinance totally prohibited adult theatres). of adult land uses in Renton would be different than
24 E.g., Tovar V. Billmeyer, 721 F.2d at 1264-65; Kuzinich v. those in Seattle, Tacoma, or Detroit, and the experience
County of Santa Clara, 689 F.2d 1345, 1348-49 (9th Cir. 1982) ; of other cities and towns "must constitute some evidence"
Basiardanes v. City of Galveston, 682 F.2d at 1216; Avalon Cinema
Corp. V. Thompson, 667 F.2d 659, 661-662 (8th Cir. 1981). See also for the City Council to consider; the "observed effects in
Ebel v. City of Corona, 698 F.2d 390, 393 (9th Cir. 1983) ; Fantasy nearby cities provides persuasive circumstantial evidence
Book Shop,Inc. v. City of Boston, 652 F.2d 1115, 1119, 1124-25 (1st of the undesirable secondary effects" Renton was at-
Cir. 1981). tempting to obviate. Renton, according to the District
25 E.g., Alexander v. City of Minneapolis, 531 F. Supp. at 1170; Court, was entitled to experiment in this admittedly deli-
Purple Onion, Inc. v. Jackson, 511 F. Supp. at 1212, 1217, 1224. Cf. cate and serious area. App. 30a. While some citizens at
Bayou Landing, Ltd. v. Watts, 563 F.2d 1172, 1175 (5th Cir. 1977), public meetings predictably expressed concerns that
cert. denied, 439 U.S. 818 (1978). would have formed an impermissible basis for the ordi-
26 E.g., Purple Onion, Inc. V. Jackson, 511 F. Supp. at 1210; E&B
Enterprises v. City of University Park, 449 F. Supp. at 697. Cf. 2°See n.1,supra.
Bayou Landing, Ltd. v. Watts, 563 F.2d at 1175.
8 13
tect the character of the community and its property have been upheld only in the Seventh Circuit and have
values while providing access to those who desire to been stricken on various grounds by Circuit courts in the
patronize adult theatres. App. 82a-84a. First, Fifth, Sixth, Eighth, and Ninth Circuits.
Finally, on June 14, 1982, the City Council, on advice This case demonstrates only too well the problems
of counsel, adopted a third ordinance (No. 3637) which faced by cities seeking to limit the effects of adult the-
reenacted Ordinance 3629 without an emergency clause. atres on their communities, while leaving a reasonable
App. 90a. These three ordinances will hereinafter be re- outlet for adult film fare. Before any theatre had en-
ferred to collectively as "the ordinance". tered the city, Renton held lengthy hearings in the demo-
By drawing a series of circles around the areas re- cratic fashion, letting all interested residents have their
say and following its usual and normal legislative proce-
stricted by the ordinance, one could determine that the dures. It studied what had occurred in other jurisdic-
effect of the ordinance was to set aside 520 acres within tions, but it tailored its ordinance to fit Renton's particu-
which adult theatres could locate.16 The set-aside zone lar circumstances. The City Council set forth detailed
contained "primarily developed, existing commercial de- findings and reasons for its action. Its ordinance did not
velopment of various types" as well as "areas that are unduly inhibit speech; instead, it set aside what the Dis-
currently underdeveloped and in the process of transition trict Court found was a "large percentage of land within
to developed uses. The area set aside included land the city" (App. 27a) for the location of adult theatres and
"in all stages of development from raw land to developed, for the showing of their films. Yet Renton's attempt
improved and occupied office space, warehouse space and went for naught. The Ninth Circuit, reviewing the Dis-
industrial space." trict Court's findings de novo, struck down Renton's ordi-
After a hearing, a Magistrate submitted a report rec- nance as unconstitutional. The Court of Appeals was
ommending that Renton's ordinance be held in violation wrong in several crucial respects.
of the First Amendment. App. 37a.19 A preliminary in-
junction issued, but the District Court later granted sum- 1. Renton Properly Relied on the Experience of Other
mary judgment in Renton's favor and dissolved the in- Cities
junction. The Ninth Circuit erred in ruling that Renton could
not rely upon the experience of other cities in enacting
16 Cl.aff.,May 26,1982,at 2. its adult theatre zoning ordinance.
17 Cl.test.,June 23,1982,at 62. Although purporting to rely upon Young, the court
18 Cl.aff., May 26, 1982,at 2. failed to note that the Detroit ordinance approved in that
19 case was itself based in part upon the experience of other
There were several attempts by Renton to have the District 1 cities. As Justice Powell noted in his concurring opin-
Court abstain in favor of the state court, but both courts below
held that federal jurisdiction was appropriate. Even though we ion, the evidence introduced before the Detroit City Coun-
believe the courts below were in error in regard to abstention (cf. cil "consisted of reports and affidavits from sociologists
Huffman V. Pursue, Ltd., 420 U.S. 592 (1975) ; Middlesex County and urban planning experts, as well as some laymen, on
Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423 (1982)), the cycle of decay that had been started in areas of other
that issue is not pursued in this appeal.
14 7
cities, and that could be expected in Detroit, from the Kukio and Playtime conceded in their Complaint that
influx and concentration of such establishments." 427 their theatres would "continuously operate exhibiting
U.S. at 81 n.4 (Powell, J., concurring) ; emphasis added.27 adult motion picture film fare to an adult public audi-
Moreover, the Ninth Circuit's ruling would effectively ence." App. 61a. The 'Complaint alleged (App. 67a-71a)
prohibit any city from enacting an ordinance in advance that Renton's ordinance was unconstitutional on its face
of the entry of adult theatres into its environs. A city and as applied to the plaintiffs under, among other things,
can hardly rely upon its own experiences unless and un- the First and Fourteenth Amendments, and that it was
til adult theatres build or buy within the city limits and not susceptible of a constitutional construction. App. 68a-
introduce the deleterious effects that the ordinance is de- 69a. Kukio and Playtime (hereinafter collectively
signed to obviate in the first instance. Must a city really "Playtime") sought, inter alia, a declaratory judgment
wait until adult theatres have started the "cycle of de- and a preliminary and permanent injunction. App. 75a-
cay" that has already been found to evolve in other 76a.
areas? Nothing in Young or any other of this Court's On May 3, 1982, the City Council passed a second
decisions requires such a result.28 zoning ordinance (No. 3629), amending the prior one.
This concept is especially pertinent here, where Renton Insofar as relevant here, the amendment (a) spelled out
was relying in part upon an ordinance adopted by a city the fact that in passing the prior ordinance, the City
located virtually on its borders. Renton was not reaching Council had relied upon the decisions in Young and
out and relying entirely upon the experience of cities lo- Northend Cinema (App. 81a) ; (b) summarized some of
cated in areas very different from its own—as was at the testimony received at its public hearings (App. 81a-
least partially true in Young (see n.27, supra). Renton, 85a) ; (c) set forth findings of fact that had formed the
virtually a suburb of Seattle, could legitimately conclude basis of the prior ordinance (id.) ; (d) defined "used"
that whatever problems Seattle had encountered would in the prior ordinance to mean "a continuing course of
soon be its own—when and if an adult theatre moved conduct" (App. 87a) ; and (e) reduced the restriction on
into Renton.29 locating near schools from one mile to 1,000 feet. App.
87a.15
27 Justice Powell's statement was supported by the record in that
case. Experts recited their experiences in many different cities and Among the City CCouncil's findings were these: (1)
towns in Michigan (Appendix in Young at 18-19), New York City the location of adult theatres in close proximity to resi-
(id. at 30, 35), and cities in countries as far away as Sweden, dential areas, churches, parks, and schools may lead to
Denmark, West Germany, France, Britain and Italy. Id. at 32. increased criminal activities, including prostitution; (2)
28 On the contrary, were a city to await the entry and deleterious the location of adult theatres has a deteriorating effect on
effects of adult theatres, it would run the risk encountered by other the areas of the city in which they are located; and (3)
cities of being accused of drawing its zoning lines with the intent
of closing down a particular theatre (or theatres) already operat- ( reasonable regulation of adult theatre locations will pro-
ing within its borders. See, e.g., cases cited in n.24, supra.
29 Moreover, Renton's ordinance can hardly be said to have im- 15 The amendment also declared a state of emergency to exist,
posed an onerous economic burden on Playtime. Any disadvantage and it included a severability clause and a declaration that a viola-
it suffered was of its own doing, with full knowledge of the facts. tion of the ordinance was a public nuisance, which was subject to
See n. 14, supra. abatement by civil action. App. 88a-89a.
6 15
Planning Director, who himself had had prior experience The opinion below imposes an impermissible burden on
with similar problems in California." All of these pro- , cities and towns. If they cannot rely upon the experi-
ceedings were carried out in the usual way, following ences of others, they must replicate within their own
normal City Council procedures.12 borders the testimony, exhibits and evidence already in-
•
After almost a year's study of adult uses, the City troduced elsewhere. Particularly for small cities and
Council adopted an ordinance (No. 3526) on April 13, towns, such a requirement can be prohibitively expensive
1981, which defined an "adult motion picture theater" and impractical. Again, nothing in this Court's decisions
in terms of a building "used for" the exhibition of visual requires such a result, and the facts in Young support
media depicting "specified sexual activities" or "specified an opposite conclusion.
anatomical areas." App. 78a. It prohibited such theatres The decision below, although supported by language
from locating within 1,000 feet of any residential area, from other Circuits in several other cases,30 is in direct
church, park, or religious facility or institution, or within conflict with the Seventh Circuit's decision in Genusa v.
one mile of any school. The ordinance was modeled after, City of Peoria, supra. There, the argument was made
and was virtually identical to, the ordinances that had that Peoria's ordinance should be struck down because
been approved in Young and Northend Cinema. See App. the City had not conducted its own surveys or relied
99a-139a (where the Detroit and Seattle ordinances are upon its own experiences, but instead had based its con-
set forth in their entirety). At the time the first Ren- elusions on what had occurred in other cities. The Sev-
ton ordinance was enacted, there were no adult theatres enth Circuit rejected that argument:
located in Renton, nor any sign that one would move Even though here, unlike in Young, the city has not
into the city. demonstrated a past history of congregated adult
Nine months later, on January 20, 1982, Appellees uses causing neighborhood deterioration, we agree
Playtime Theatres, Inc.," and Kukio Bay Properties, Inc., with the district court that a city need not await
brought a suit in the United States District Court for the deterioration in order to act. A legislative body is
Western District of Washington alleging that Kukio had entitled to rely on the experience and findings of
contracted to purchase two motion picture theatres in other legislative bodies as a basis for action. There
downtown Renton and to lease them to Playtime." is no reason to believe that the effect of congregated
adult uses in Peoria is likely to be different than the
11 Cl. off., Jan. 27, 1982, at 3; Cl. test., Jan. 29, 1982, at 33-34; effect of such congregations in Detroit. [619 F.2d
Cl. dep., Mar. 4, 1982, at 17. at 1211; footnote omitted.]
12 Cl. dep.,Mar.4, 1982,at 24-25. The California state courts also disagree with the ap-
13 Playtime was the same company that had operated adult proach taken by the Ninth Circuit. In one case, for ex-
theatres in Seattle, Tacoma, and at least three other cities in the ample, a court wrote:
State of Washington. Forbes dep., Apr. 9, 1982, at 6, 8.
Goldie [an adult book store operator] asserts that
14 Playtime's President admitted that he was fully aware in the identical ordinance must be tested anew each
December or January, when he was considering the possibility of
entering Renton, that there was an ordinance then in place prohib- 30 See, e.g., Avalon Cinema Corp. v. Thompson, 667 F.2d at 661-
iting adult theatres in the area where he was seeking to locate. 662; see also CLR V. Henline, 520 F. Su
Forbes dep., May 27, 1982, at 15-17. pp. at 767.
16 5
time it is enacted by a different governmental entity one mile from the southern border of Seattle. In mid-
by establishing the actual existence of local condi- 1980, the Renton City Council began to study the regula-
tions which would justify it. Goldie's thesis would tion of adult entertainment land uses.3 The Council and
deny to lawmakers in one locale the benefit of the its Planning and Development Committee held numerous
wisdom and experience of lawmakers in another meetings—all of them open to the public—to consider this
community, no matter how similar the circum- issue.4 Testimony was taken at several meetings. At one
stances; it would, as it were, require the reinvention meeting,
of the wheel countless times over when mere access for example, 64 persons attended, and 28 of
to common knowledge would render the considerable them spoke.5 Among those offering statements were the
effort involved unnecessary. [County of Sacremento head of the Renton Chamber of Commerce and the Su-
v. Superior Court, 137 Cal. App. 3d at 455, 187 Cal. perintendent of Schools.° There was testimony about adult
Rptr. at 158.34] theatres in relation to their impact on commercial prop-
The Ninth Circuit's contrar rulin imposes imper- erty values, concern about crime, the deterioration of resi-
missible and wholly unnecessary burdens on municipal dential neighborhoods, effects on children, etc.7 In the
legislative bodies. There is simply no basis for courts meantime, the office of the City's Acting Planning Di-
setting such arbitrary guidelines for the types of "evi-
rector had received and studied documents from Seattle
underlying that city's own ordinance, including a summary
dence" a city council may consider in its legislative of findings and conclusions, and the Director had studied
processes. the Northend Cinema decision.8 This Court's findings and
2. Renton Set Aside a Permissible Zone for the Location decision in Young were also reviewed,° as well as the ap-
of Adult Theatres proaches taken by numerous other cities, inside and out-
side the State of Washington.10 There was a report from
The court below ruled that, even though Renton had the Renton City Attorney's office and from the Acting
effectively set aside 520 acres of land on which adult
theatres could locate, this land was constitutionally "un- estate broker testifying for Appellee Playtime; "Forbes" refers to
available" because a portion of it is presently undevel- Roger H. Forbes, President of Playtime; "John." refers to Jimmy
oped or is developed for existing commercial uses. App. Johnson, an executive with a company that acquires adult theatres;
13a-14a. and "Burns" refers to Jack R. Burns, a Playtime attorney.
3 Burns aff.,Jan.27, 1982,at Exs. 1-10.
The Ninth Circuit gave no thought t0, and made no 4 Cl. dep., Mar. 3, 1982, at 41-44. The Committee alone held at
accommodation for, the problem of small communities. least six meetings. Id.
Under its approach, in fact, the more incompatible a 5 Cl. aff., Jan. 27, 1982, at 3; see also Cl. dep., Mar. 4, 1982, at 35.
31 See also Ebel v. City of Corona, 698 F.2d at 392, where the 6 Cl. test., Jan. 29, 1982, at 27-29; Cl. dep., Mar. 3, 1982, at 45-48.
objection that the City Council had not made adequate findings of 7 Cl. dep., Mar. 4, 1982, at 14; Cl. test., Jan. 29, 1982, at 34;
fact was rejected by the court because the city "gave notice, held d Cl. aff., Jan. 27, 1982, at 3-5. See also Renton, Wa., Ordinance
hearings, issued a report of the City Planning Commission, and 3629 (May 3, 1982), App. 81a.
gave reasons for its action in the preamble to the ordinance", and 8 Cl.test.,Jan.29, 1982,at 31-33.
this was all that was required for a "legislative act". Accord, Lydo
Enterprises, Inc. v. City of Las Vegas, 745 F.2d at 1215. Cf. Fan- 9 Cl.dep.,March 4, 1982,at 7-8.
tasy Book Shop, Inc. v. City of Boston, 652 F.2d at 1125. 10 Id.at 5-12,50-52.
4 17
Four years later, the Supreme Court of Washington, theatre is with the quality of the community, the greater
sitting en bane, unanimously upheld two zoning ordi- its right to locate there. A small, predominantly residen-
nances that required adult theatres to be located in cer- tial city or town with a centrally located, modest com-
tain downtown areas of Seattle. Northend Cinema, Inc. mercial development will be unlikely to have much space
v. City of Seattle, 90 Wash.2d 709, 585 P.2d 1153 (1978). • "available" for adult theatres. Yet under the Ninth Cir-
Reciting extensive studies demonstrating the problems
created by such theatres in residential and commercial cuit's reasoning, it has less power to protect itself than
cities like Detroit with more space and many similar uses.
areas, the court held that even though some ten adult
theatres would be forced to relocate, the ordinances were But even if the focus is properly on the practical avail-
valid under Young. The residents of Seattle had expressed ability of Renton's own set-aside zone, the Ninth Circuit
concerns about the attraction of transients, parking and was wrong. To begin with, it misconstrued the record in
traffic problems, increased crime, decreasing property important respects. The court cited such properties as
values, and interference with parental responsibilities to- the Longacres Racetrack and a city sewage plant as being
ward children. "In short, the goal of the City in amend- within the set-aside area, when in fact the racetrack and
ing its zoning code was to preserve the character and the plant are clearly and unequivocably outside the set-
quality of residential life in its neighborhoods * * *. A aside area.32 The confusion can only be accounted for
second and related goal * * * was to protect neighborhood by the fact that the court relied on a map, and accom-
children from increased safety hazards, and offensive and panying testimony, submitted at an early TRO hearing
dehumanizing influence created by location of adult movie in this case,33 prior to the time that the permissible dis-
theatres in residential areas." 585 P.2d at 1155. tance from schools was reduced from one mile to 1,000
The effect of the Seattle restrictions was to force adult feet. The map also contained a number of errors because
theatres into an area consisting of approximately 250 it had to be prepared within a few hours' time.34 When
acres (or less than 1% of the city's acreage). Id. at the errors were corrected and the ordinance as amended
1156. Noting that this Court had approved the "con- taken into consideration, the set-aside area became sub-
centration" as well as the "dispersal" method of zoning stantially different (and larger),35 and many of the
theatres in Young, the Washington Supreme Court ruled "uses" included by the Ninth Circuit fell outside the set-
that Seattle's planning effort "must be accorded a suffi- aside area.36 The court's error was particularly egregious
cient degree of flexibility for experimentation and in-
novation." 585 P.2d at 1159. This Court denied certiorari 32 See maps at App. 140a-142a.
in the case. 441 U.S. 946 (1979). 33 Cl. test., June 23, 1982, at 77, 84; see Cl. aff., Jan. 27, 1982
A year later, and partly as a result of these two deci- (incl. map).
sions, events began unfolding in Renton, Washington. 34 Cl.test.,June 23, 1982,at 77-85.
Appellant Renton is a small city, with a 1981 popula- 35 The TRO testimony, prior to correction, estimated the size of
tion of 32,200,2 whose northern border is approximately the set-aside area to be approximately 400 acres, with about half
of it unoccupied. See Cl. dep., Mar. 3, 1982, at 30-40.
2 Cl. aff., Jan. 27, 1982, at 1. The terms "aff.", "test." and "dep."
refer to "affidavit," "testimony" and "deposition", respectively. 36
Compare map attached to Cl. aff., Jan. 27, 1982, with map at-
"Cl." refers to David R. Clemens, Renton's Policy Development tached to Cl. aff., May 26, 1982.
Director; "And." refers to Bruce Anderson, an associate real
18 3
because it treated the District Court's findings as part Nine years ago, this Court held in Young v. American
"law," reviewed them de novo, and overturned them. Mini Theatres, Inc., 427 U.S. 50 (1976), that the City of
Detroit could use the effects of sexually explicit "adult"
In addition to its view of the facts, the Ninth Circuit's movies as a basis for placing the theatres which showed
underlying thesis is fatally flawed. Its approach raises them into restricted areas in an attempt to preserve the
serious concerns of great import to cities and towns "quality of urban life" and in furtherance of the "city's
throughout the country. The court assumed that unless interest in preserving the character of its neighborhoods."
property is immediately available for purchase from a Id. at 71. The ordinances in Detroit required already
willing seller, the ordinance has the effect of " `suppress- existing adult theatres (as well as those that would be
ing, or greatly restricting access to, lawful speech.'" 37 purchased or built thereafter) to be dispersed—that is,
Even if an ordinance resulting in a "substantial restric- they could not be located within 1,000 feet of any two
tion" on the showing of adult films would violate the First other "regulated uses" or within 500 feet of a residential
Amendment, that is clearly not the case in situations like area. Id. at 52.
this one. We begin with the fact that Renton did not The plurality opinion of Justice Stevens relied in part
set aside a small, restricted area of land. The set-aside on the concept that "there is surely a less vital interest
area is physically large enough to accommodate more than in the uninhibited exhibition of material that is on the
400 theatres and surrounding parking lots.38 It consti- borderline between pornography and artistic expression
tutes over 4% of all the land in the City (as compared than in the free dissemination of ideas of social and po-
to Seattle's set-aside area of less than 1%).39 Its acreage litical significance * * *." Id. at 61. Since the ordinances
is larger than one-fourth of the entire area of Renton did not impose a limit on the total number of adult thea-
occupied by single-family residences and exceeds the tree that could operate in Detroit, speech was not re-
amount of land in the City used for parks and recrea- strained. "[W]e have no doubt that the municipality may
tion4° Witnesses for both Renton and Playtime testified control the location of theaters as well as the location of
that much of the 520 acres is simply unoccupied land, other commercial establishments, either by confining them
adjoined and criss-crossed by both highways and interior to certain specified commercial zones or by requiring that
they be dispersed throughout the city." Id. at 62. Jus-
37 App. 13a n.11 (quoting Young, 427 U.S. at 71 n.35). tice Powell's concurring opinion treated the ease as "an
example of innovative land-use regulation" which impli-
S8 Playtime's own attorney assumed that an adult theatre seating cated First Amendment concerns only incidentally. Id.
400 persons would require 6000 sq. feet of space. Cl. dep., Mar. 3,
1982, at 68-72. Renton's Policy Development Director testified that at 73 (Powell, J., concurring). He relied upon the four-
such a building would need 40,000 additional sq. feet for parking, part test of United States v. O'Brien, 391 U.S. 367, 377
plus or minus 10% for error, or a maximum total of 52,000 sq. feet (1968).1
for the entire theatre area. Id. A 520-acre area would encompass
22,651,200 sq. feet, or some 435 theatre areas. 1 Under this test, a governmental regulation must meet the fol-
89 Cl.aff., Jan. 27, 1982, at 6. This estimate for Renton was made lowing criteria: (1) the regulation must be within the constitutional
before the set-aside zone was enlarged by the second ordinance. power of the Government; (2) the regulation must further an
Therefore, the percentage today would be even larger. important or substantial governmental interest; (3) the assertion
of the governmental interest must be unrelated to the suppression
49 Cl.aff.,Jan.27,1982,at 2. of free expression; and (4) the incidental restriction on alleged
First Amendment freedoms must be no greater than is essential
to the furtherance of the governmental interest.
2 19
lief against the enforcement of Renton's zoning ordinance access roads.41 So long as this land is within reasonable
governing the permissible location of adult theatres. Ju- driving distance of the City's populated areas 42 and
risdiction in the District Court was based on 28 U.S.C. physically accessible, why is it not constitutionally "avail-
§§ 1331, 1343(3) and 2202. The District Court denied able" for the location of adult theatres? The Court of
the requested relief. Appeals does not say. The court does assume, however,
On November 28, 1984, the United States Court of Ap- that a "fully-developed shopping center" and "a business
peals for the Ninth Circuit reversed the trial court and park containing buildings suitable only for industrial use"
held Renton's zoning ordinances in violation of the First are not constitutionally "available".43 This theme appar-
Amendment to the United States Constitution. Appel- ently follows the approach of Playtime's real estate ex-
lants' Notice of Appeal was filed in the Ninth Circuit on pert, who testified that much of the land was not "avail-
February 6, 1985. Jurisdiction lies in this Court under able" because it was occupied, and a number of property
28 U.S.C. § 1254(2). New Orleans v. Duke, 427 U.S. 297, owners told him they would not sell to an adult theatre
301 (1976) ; Doran v. Salem Inn, Inc., 422 U.S. 922, 927 owner.44
n.2 (1975). This approach is wholly specious for two reasons.
Neither court below certified to the Washington Attor- First, property can be purchased through third parties,
ney General the fact that the constitutionality of the with the identity of the true purchaser disguised. But
Renton ordinance was drawn into question and that 28 even more importantly, the court's approach gives the
U.S.C. § 2403(b) may be applicable. Pursuant to Rule adult theatre owner a preferred position above every
28.4(c) of this Court, Appellants have served three cop- other potential purchaser of property. He does not have
ies of this Jurisdictional Statement upon the Attorney to compete in the marketplace for property like everyone
General of the State of Washington. else, including drug stores, hair salons and theatre own-
ers showing regular fare. Even the business offices of the
PERTINENT CONSTITUTIONAL PROVISIONS media, also protected by the First Amendment, enjoy no
AND STATUTES such privilege.45 Under the Ninth Circuit's thesis, a city
The First Amendment to the Constitution provides: -
Congress shall make no law respecting an estab- 41 Cl. aff., May 26, 1982, at 2-3; John. test., June 23, 1982, at
lishment of religion, or prohibiting the free exercise 29-31; Cl. test., June 23, 1982, at 54-59, 61-62, 84-85; Cl. test.,
thereof; or abridging the freedom of speech, or of the Jan. 29, 1982 at 16-17, 27, 42-43, 49-50, 51, 53, 56-57, 61-64; And.
press; or the right of the people peaceably to assem- aff., June 15, 1982, at 4-9.
ble, and to petition the Government for a redress of 42 The entire land area of Renton consists of only 15.3 square
grievances. miles. Cl. aff., Jan. 27, 1982, at 1.
The full text of Renton Ordinances 3526, 3629, and 43 App. 13a. There was, however, unrebutted testimony that
3637 is set forth in the Appendix at 78a-98a. • theatres can be built in areas designated "industrial park." Cl.
test., Jan. 29, 1982, at 60, 63-64.
STATEMENT OF THE CASE 14 And.aff.,June 15, 1982,at 5-8.
This case had its genesis in two important prior judi- 45 Churches, too, must obey zoning laws in the free exercise of
cial decisions. their religion and must buy property under the ordinary rules of
20
IN THE
must establish the existence of a "turnkey" location for '1t4.?rr11tr Iuurd of Or liititrii fttrs
the adult theatre operator; property must stand ready
to be sold to such an operator from a willing seller. This OCTOBER TERM, 1984
reasoning is in direct conflict with the view of those
courts (including the Seventh Circuit) which have up-
held set-aside areas (see n.22, supra), and we submit No.
that it was never the intent of this Court in Young.
A set-aside zone should be deemed "available" in the
constitutional sense when it is accessible—both in terms THE CITY OF RENTON, et al.,
of distance from populated areas of the city and in terms Appellants,
of internal streets and highways—and when an ordinary v.
theatre operator could build or buy a theatre there at PLAYTIME THEATRES, INC.,
such time as property becomes available in the ordinary a Washington corporation, et al.,
course of business. The fact that others have already Appellees.
built or bought within the area should not be a disquali-
fication; to the contrary, it demonstrates that the zone
is a frequented, accessible and desirable area. That some On Appeal from the United States Court of Appeals
present owners express no immediate desire to sell is also for the Ninth Circuit
not a disqualifying factor; that is a fact of life faced by
all potential purchasers.46 Owners constantly change
their minds, either voluntarily or through the vicissitudes JURISDICTIONAL STATEMENT
of business life.
In summary, if Renton's set-aside zone is not consti-
tutionally "available," it is fair to say that virtually no OPINIONS BELOW
The opinion of the United States Court of Appeals for
supply and demand. See American Communications Ass'n v. Douds, the Ninth Circuit, from which this appeal is taken, was
339 U.S. 382, 397-398 (1950) ; Lakewood, Ohio Congregation of rendered on November 28, 1984. It appears at 748 F.2d
Jehovah's Witnesses, Inc. v. City of Lakewood, 699 F.2d 303, 307-
309 (6th Cir.), cert. denied, 104 S. Ct. 72 (1983). 527 and has been reprinted as Appendix A hereto. The
United States District Court for the Western District of
46 It should be noted, however, that even Playtime's real estate Washington rendered several opinions in this case, none
witness could not testify that all property owners within the set-
aside zone would not sell. Some owners told him they would sell, of which has been officially reported. Its rulings are also
some said they did not think the property was "suitable" for this reprinted as Appendices B-E and G-H hereto.
use, and he could not reach others. And. aff., June 15, 1982, at 4-9.
And even some 22 acres owned by the City is not wholly immune JURISDICTION
from sale to third parties. In fact, the City Council voted as
recently as five months ago that in the future the City would study This action was brought by Appellees in the United
the possible "purchase, trade or sale" of certain of its property. States District Court for the Western District of Wash-
Minutes, Renton City Council, Sept. 24, 1984, at 1. ington seeking, inter alia, declaratory and injunctive re-
21
small city or town in this country will be capable of
setting aside a permissible zone, consistent with its other
legitimate interests, for the location of adult theatres.
The result of such a development will be loss of control
by small cities and towns over the "quality of life" of
their communities.
3. The Court of Appeals Erroneously Implied an Im-
proper Legislative Motive
The Ninth Circuit apparently ruled 47 that the expres-
sion by citizens at public hearings of views aimed at the
content of adult films raised an inference of an im-
proper motive by the City Council, and that even if this
motive was merely "a" motivating factor in its zoning
decision, this was enough to invalidate the ordinance.
App. 20a. The court erred in several respects.
First, there is a serious question as to whether motive
or intent—either of citizens or of the City Council it-
self—has a part to play in a case like this, where any
burden on the adult theatre owner's First Amendment
interests is only incidental. When independent legitimate
reasons exist for minimal restrictions on First Amend-
ment freedoms, this Court has refused to undertake an
analysis of the motivation behind the legislative enact-
ment. See, e.g. United States v. O'Brien, 391 U.S. at
383-386. Here, the legitimate reasons relate to the very
protection of neighborhoods through zoning approved in
Young.
But even if motive or intent is relevant, the Court of
Appeals was still wrong to second-guess a city council.
47 The District Court noted that the City Council had sum-
marized ideas put forth at public hearings, including concerns
reflecting citizens' values "which might be impermissible bases for
justification of restrictions affecting first amendment interests."
App. 31A. The Court of Appeals interpreted this statement as a
recognition that "many of the stated reasons [made by the City
Council] for the ordinance were no more than expressions of dislike
for the subject matter." App. 19a-20a; footnote deleted.
22 vii
There was no evidence that any member of the City TABLE OF AUTHORITIES—Continued
Council had an improper motive. Nevertheless, the court Page
went behind the specific findings of the Council as to why Note, Municipal Zoning Restrictions on Adult the ordinance was passed. It apparently concluded that
En-
because some citizens at an open meeting expressed per- tertainment: Young, Its Progeny, and Indian-
sonal views adverse to the content of adult films, an apolis' Special Exceptions Ordinance, 58 Ind.
inference was raised that at least one motive of the L.J. 505 (1983) 25
Council itself was improper, and this was sufficient to Note,Second Class Speech: The Court's Refinement
invalidate the entire ordinance. of Content Regulation, 61 Neb. L. Rev. 361
(1982) 25
The court should not have imputed the motives of Pearlman, Zoning and the First Amendment, 16
some citizens to the City Council. Village of Arlington Urb. Law. 217 (1984) 25
Heights v. Metropolitan Housing Development Corp., 429 Stevenin, Young v. American Mini Theatres, Inc.:
U.S. 252, 267-270 (1977).4$ The effect of the Ninth Cir- Creating Levels of Protected Speech, 4 Hastings
cuit's ruling on city governments would be to cancel hear- Const. L.Q. 321 (1977) 25
ings preceding the adoption of zoning ordinances, to close Sup. Ct. R. 28.4(c) 2
them to the public, or to pre-censor approved speakers.
None of these results is practical, all are undemocratic,
and they may even be unconstitutional in denying citi-
zens their own First Amendment rights to speak. See
City of Madison Joint School District v. Wisconsin Em-
ployment Relations Comm'n, 429 U.S., 167, 174-176
(1976). Most jurisdictions (including the State of Wash-
ington) now require by law that such proceedings be
open to the public, precisely so that citizens can express
a wide variety of views on the subjects under considera-
tion. City councils should not be held responsible for the
fact that some citizens do not like adult films. As a
matter of fact, the Ninth Circuit ruling would constitute
an invitation to adult theatre owners such as Playtime to
induce citizens to appear at hearings and express imper-
48 The record in Young showed that a number of citizens had
complained in that case about content. For example, one Detroit
resident whose letter was introduced into evidence complained to
the Mayor, "They have pornography available in their back room,
and it is disgusting * * *" (Appendix in Young at 26), and an
attorney for the city conceded: "The concern of the neighborhood
over the showing of this kind of movie has been evidenced time and
again by picketing, by calls and letters to our office, to the Mayor,
to the Common Council and so on." Id. at 48.
vi 23
TABLE OF AUTHORITIES—Continued missible views, thus dooming in advance any subsequently-
Page enacted ordinance, no matter how well intended.
Village of Arlington Heights v.Metropolitan Hous- If the motive of a city council—as opposed to speak-
ing Development Corp., 429 U.S. 252(1977)____22, 24-25 ers at a hearing—is deemed relevant, a court should
Village of Belle Terre V.Boraas, 416 U.S. 1 (1974)__ 24 look to the predominant motive behind the ordinance. An
Young v. American Mini Theatres, Inc., 427 U.S. attempt by a court to define "a" single motivating factor
50 (1976) passim behind a legislative act is simply improper.49 In this
Constitutional Provisions,Statutes,and Ordinances case, all of the City Council's stated reasons were con-
U.S. Const. amend. I . 2-3, 7-11, 18, 21-23, 26 sistent with a concern about effects. To the extent that
U.S. Const. amend. XIV 7 its findings could be said to relate to content, the legisla-
28 U.S.C. § 1254(2) 2 tive intent was to oppose not adult films per se but
28 U.S.C. § 1331 2 rather the showing of adult films in certain locations.
28 U.S.C. § 1343(3) 2 By locating the films nearby, in an accessible and corn-
28 U.S.C. § 2202 2 modious area, the City Council is giving adult films their
28 U.S.C. § 2403(b) 2 full play, but without the deleterious effects that evidence
Renton, Wa., Ordinance 3526 (April 13, 1981)____2,passim has clearly shown will follow if adult theatres are located
Renton, Wa., Ordinance 3629 (May 3, 1982) 2,passim in all areas of the City.
Renton, Wa., Ordinance 3637 (June 14, 1982) 2,passim Finally, even if the City Council's own motives could be
Miscellaneous said to be based on objectives not heretofore sanctioned
Affidavit of Bruce Anderson, June 15, 1982 19, 20 by this Court, we respectfully urge that those objectives
Affidavit of Jack R. Burns, January 27, 1982 5 be approved. It would be ironic indeed if a city could
Affidavit of David R. Clemens, January 27, 1982____ 4-6, zone adult theatres because of commercial considerations
17-18
Affidavit of David R. Clemens, May 26, 1982. 8, 17, 19 49In City of Las Vegas v. Foley, 747 F.2d 1294, 1297 (9th Cir.
Deposition of David R. Clemens, March 3, 1982 ____5, 17-18 1984), for example, another panel of the Ninth Circuit held that
Deposition of David R. Clemens, March 4, 1982 5-6 legislators could not even be questioned about their subjective rea-
Deposition of Roger H. Forbes, April 9, 1982 6 sons for passing an ordinance, because the ordinance is to be
Deposition of Roger H. Forbes, May 27, 1982 6 measured by such objective facts as stated intent and effect. And
Minutes, Renton City Council, September 24, 1984 20 it was precisely because of this problem of delving into the legisla-
tive mind-set that Judge Wallace concurred only in the result in
Aver, The Zoning of Adult Entertainment: How the Ninth Circuit's decision in Tovar v. Billmeyer, supra. He wrote
Far Can Planning Commissions Go? 5 Comm/ that the majority, by adopting an "a motivating factor" test (721
Ent. L.J. 293 (1982) 25 F.2d at 1266), was refusing to follow the "clear and precise stand-
Friedman, Zoning "Adult" Movies: The Potential y ard" already adopted by the court in Ebel v. City of Corona, 698
Impact of Young v. American Mini Theatres, 28 F.2d at 393, to the effect that an ordinance is unconstitutional only
Hastings L.J. 1293 (1977) 25 if its "real purpose" is to obstruct the exercise of protected First
Note, Content Regulation and the Dimensions of Amendment rights. 721 F.2d at 1267 (Wallace, J., concurring). He
Free Expression, 96 Harv. L. Rev. 1854 (1983) 25 pointed out that the very nature of the legislative process means
that there will always be more than a single purpose for any legis-
lative action. Id. at 1268.
24 v
such as lowering of residential property values, and not TABLE OF AUTHORITIES—Continued
on the ground that these theatres have an unstable and Page
debilitating effect on the families living in those same Genusa v. City of Peoria, 619 F.2d 1203 (7th Cir.
residences. Such a result would elevate property values 1980) 11, 15
over human values. The stability and cohesiveness of Gulf Refining Co. v. United States, 269 U.S. 125
families and parents' efforts to raise their children in (1925) .. 11
suitable surroundings free from crime and blighted areas Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821
are also worthy of protection. These were precisely the (4th Cir. 1979), cert. denied, 447 U.S. 929
kind of principles that this Court recognized as a valid (1980) 12,25
Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) 8
basis for zoning in Village of Belle Terre v. Boraas, 416 Keego Harbor Co. v. City of Keego Harbor, 657
U.S. 1, 9 (1974) : "It is ample to lay out zones where F.2d 94 (6th Cir. 1981) 12
family values, youth values, and the blessings of quiet Kuzinich v. County of Santa Clara, 689 F.2d 1345
seclusion and clear air make the area a sanctuary for (9th Cir. 1982) 12
people." 50 Lakewood, Ohio Congregation of Jehovah's Wit-
nesses, Inc. v. City of Lakewood, 699 F.2d 303
Some of the confusion in regard to legislative intent (6th Cir.), cert. denied, 104 S. Ct. 72 (1983) 20
may have been caused by uncertainty arising out of two Lydo Enterprises, Inc. v. City of Las Vegas, 745
of this Court's decisions, Village of Arlington Heights F.2d 1211 (9th Cir. 1984) 12, 16
and O'Brien. Arlington Heights dealt with a land area Middlesex County Ethics Committee v. Garden
rezoned after a developer contracted to build racially State Bar Ass'n, 457 U.S. 423 (1982) 8
integrated housing. The Court held, on the one hand, Moore v. New York Cotton Exchange, 270 U.S. 593
that a plaintiff need not prove that the challenged action (1926) 11
New Orleans v. Duke, 427 U.S. 297 (1976) _________, 2
"rested solely on racially discriminatory purposes," be- Northend Cinema, Inc. v. City of Seattle, 90 Wash.
cause rarely is a legislature motivated by a single con- 2d 709, 585 P.2d 1153 (1978), cert. denied sub
cern. "When there is proof that a discriminatory pur- nom. Apple Theatre, Inc. v. City of Seattle, 441
pose has been a motivating factor in the decision [to U.S. 946 (1979). 4-7, 11, 27
rezone], * * * judicial deference is no longer justified." Paris Adult Theatre I v. Slaton, 413 U.S. 49
429 U.S. at 265-266; emphasis added; footnote deleted. (1973) 24
On the other hand, the Court held that the mere fact that Playtime Theaters, Inc. v. City of Renton, 748 F.2d
opponents of integrated housing who spoke at various 527 (9th Cir. 1984) 1,passim
meetings "might have been motivated by opposition to Purple Onion, Inc. v. Jackson, 511 F. Supp. 1207
(N.D. Ga. 1981) 12
minority groups" did not invalidate the ordinance. Id. at Schad v. Borough, of Mount Ephraim, 452 U.S. 61
267-270. .
(1981) 26
Tovar v. Billmeyer, 721 F.2d 1260 (9th Cir. 1983),
50 See also Berman v. Parker, 348 U.S. 26, 32-33 (1954) ; Paris cert. denied, 105 S. Ct. 223 (1984) 11-12. 23
Adult Theatre I v. Slaton, 413 U.S. 49, 58-59 (1973) (citizens have United States V. O'Brien, 391 U.S. 367 (1968) 3, 9-10,
legitimate interest in protecting "the style and quality of life" and 21,24-26
"the total community environment").
iv 25
TABLE OF AUTHORITIES The court below focused upon the "a motivating factor"
Cases Page language in Village of Arlington Heights and wholly ig-
Alexander v. City of Minneapolis, 531 F. Supp. nored this Court's holding in that case.
1162 (D. Minn. 1982), aff'd, 698 F.2d 936 (8th In the second case, O'Brien, the Court flatly refused to
Cir. 1983) 12 •
inquire into legislative motives—an inquiry the Court
American Communications Ass'n v. Douds, 339 called "a hazardous matter". The Court ruled that if a
U.S. 382 (1950) 20 statute is otherwise constitutional, courts may look to
Avalon Cinema Corp. V. Thompson, 667 F.2d 659 legislative history for an interpretation of it, but may
(8th Cir. 1981) 12, 15 not void the statute because of perceived intent on the
Basiardanes V. City of Galveston, 682 F.2d 1203
(5th Cir. 1982) 12 part of some legislators. 391 U.S. at 384.a1 In the instant
Bayou Landing, Ltd. v. Watts, 563 F.2d 1172 (5th case, the Ninth Circuit improperly engaged in the "guess-
Cir. 1977), cert. denied, 439 U.S. 818 (1978) 12 work" eschewed in O'Brien.
Bayside Enterprises, Inc. v. Carson, 450 F. Supp. We respectfully suggest that this Court may have un-
696 (M.D. Fla. 1978) 12 wittingly given conflicting signals to the lower courts in
Berman v. Parker, 348 U.S. 26 (1954) 24 regard to legislative intent by its decisions in Arlington
Brockett v. Spokane Arcades, Inc., 725 F.2d 482 Heights and O'Brien. The resulting confusion should now
(9th Cir.), prob. juris. noted, 53 U.S.L.W. 3235 be resolved in the context of attempts by cities to zone
(U.S. Oct. 1, 1984) (Nos. 84-28 and 84-143) 26
adult uses.
CLR Corp. v. Henline, 520 F. Supp. 760 (W.D.
Mich. 1981), aff'd, 702 F.2d 637 (6th Cir. 1983)._ 12, 15 4. Cities' Legitimate Attempts to Zone Adult Theatres
City of Las Vegas v. Foley, 747 F.2d 1294 (9th Are Jeopardized By the Decision Below
Cir. 1984) 23
City of Madison Joint School District v. Wisconsin In Young, this Court was apparently divided over
Employment Relations Comm'n, 429 U.S. 167 which standard to use in testing the regulation of adult
(1976) 22 establishments.52 A plurality of four treated adult films
City of Whittier v. Walnut Properties, Inc., 149
Cal. App. 3d 633, 197 Cal. Rptr. 127 (2d Dist.), 61 See also Hart Book Stores, Inc. v. Edmisten, 612 F.2d at
vacating 189 Cal. Rptr. 12 (2d Dist. 1983) 11 820-830.
County of Sacramento V. Superior Court, 137 Cal. 52 This split has not gone unnoted by the lower courts (see many
App.3d 448, 187 Cal. Rptr. 154 (3d Dist. 1982)_. 11-12, of the cases in nn.22-26, supra) and by the commentators. E.g.,
15-16 Friedman, Zoning "Adult" Movies: The Potential Impact of Young
Deerfield Medical Center V. City of Deerfield Beach, v.American Mini Theatres, 28 Hastings L.J. 1293 (1977) ; Stevenin,
F.2d 328 (5th Cir. 1981) 12 Young v. American Mini Theatres, Inc.: Creating Levels of Pro-
661tected Speech, 4 Hastings. Const. L. Q. 321 (1977) ; Aver, The Zon-
Doran V. Salem Inn, Inc., 422 U.S. 922 (1975) 2 ing of Adult Entertainment: How Far Can Planning Commissions
E&B Enterprises V. City of University Park, 449 ' Go? 5 Comm/Ent. L.J. 293 (1982) ; Pearlman, Zoning and the
F. Supp. 695 (N.D. Tex. 1977) 12 First Amendment, 16 Urb. Law. 217 (1984) ; Note, Content Regula-
Ebel V. City of Corona, 698 F.2d 390 (9th Cir. tion and the Dimensions of Free Expression, 96 Harv. L. Rev. 1854
1983) 12, 16, 23 (1983) ; Note, Second Class Speech: The Court's Refinement of
Fantasy Book Shop, Inc. V. City of Boston, 652 Content Regulation, 61 Neb. L. Rev. 361 (1982) ; Note, Municipal
F.2d 1115 (1st Cir. 1981) 12, 16 Zoning Restrictions on Adult Entertainment: Young, Its Progeny
and Indianapolis' Special Exceptions Ordinance, 58 Ind. L. J. 505
(1983).
26
TABLE OF CONTENTS
as meriting a lower level of protection than other films, Page
while Justice Powell reached the same result by applica- QUESTIONS PRESENTED
tion of the O'Brien four-part test.
Regardless of which standard is applied, Renton has PARTIES TO THE PROCEEDINGS
not violated the First Amendment. Its ordinance is more TABLE OF AUTHORITIES iv
narrowly tailored than that approved in. Young, because
it defines "use" even more restrictively than Detroit did.53 OPINIONS BELOW 1
Since its set-aside area is ample to accommodate all of
the adult theatres that could possibly want to locate in JURISDICTION 1
the city, no suppression of speech has occurred or could
occur.J4 PERTINENT CONSTITUTIONAL PROVISIONS
Applying the O'Brien test, it is clear that (i) zoning is AND STATUTES . 2
within the City's constitutional power; (ii) Renton's ordi- STATEMENT OF THE CASE 2
nance furthers its important and substantial governmen-
tal interests, including the prevention of decay in resi- THE QUESTIONS PRESENTED ARE SUBSTAN-
dential and commercial areas and the control of crime; TIAL 11
(iii) the assertion of its governmental interests is un- 1. Renton Properly Relied on the Experience of
related to the suppression of free expression but instead
is closely tailored to the achievement of those interests; Other Cities 13
and (iv) any incidental restriction on speech is no greater 2. Renton Set Aside a Permissible Zone for the
than is essential in furtherance of Renton's governmental Location of Adult Theatres 16
3. The Court of Appeals Erroneously Implied an
53 The ordinance here requires no separation between adult uses, Improper Legislative Motive 21
so that an operator need not consider the character of other uses
when locating his business. No special licensing or waiver provi- 4. Cities' Legitimate Attempts to Zone Adult Thea-
sions, with their inherent difficulties of discretion, are included. tres Are Jeopardized By the Decision Below 25
Likewise, the requirement of continuous exhibition precludes regu-
lation of any incidental or innocent exhibition of sexually explicit CONCLUSION 28
material. Renton's ordinance therefore satisfies the concerns ex-
pressed by Justice Blackman in his dissenting opinion in Young,
427 U.S. at 88-96 (Blackman, J., dissenting). •
54 This case is thus at the furtherest extreme from Schad v.
Borough of Mount Ephraim, 452 U.S. 61 (1981), where nude
dancing was entirely prohibited.
This appeal also does not involve any of the issues presented in
another case from the State of Washington presently before the
Court, Brockett v. Spokane Arcades, Inc., 725 F.2d 482 (9th Cir.),
prob. juris. noted, 53 U.S.L.W. 3235 (U.S. Oct. 1, 1984) (Nos. 84-28
(iii)
and 84-143).
ii 27
PARTIES TO THE PROCEEDINGS interests because the market for expression of adult films
In addition to the City of Renton, the following are is "essentially unrestrained" in view of the existence of
Appellants in this Court: Barbara Y. Shinpoch, Mayor of 520 acres available for adult theatres.
Renton; Earl Clymer, Robert Hughes, Nancy Mathews, If Renton's ordinance is not sustained, no such ordi-
John Reed, Randy Rockhill, Richard Stredicke, and Tom - nance can withstand scrutiny, and the hope held out in
Trimm, members of the Renton City Council; and Alan Young for a reasonable approach to the serious second-
Wallis, Chief of Police of the City of Renton. ary effects of adult establishments will be dashed for
Kukio Bay Properties, Inc., and Playtime Theatres, good.55 This case, therefore, presents questions of extraor-
Inc., both Washington corporations, are Appellees before Binary importance to small communities throughout the
this Court. United States. Young's progeny demonstrate the confu-
sion of well intentioned courts seeking to implement this
Court's rulings. The lower courts, as well as city govern-
ments and city planners, need and deserve thoughtful
guidance in dealing with the First Amendment's impact
on the zoning of adult theatres. Only if the decision be-
low is reversed can cities' efforts to meet this "admittedly
serious problem" 56 be accorded "a sufficient degree of
flexibility for experimentation and innovation" 57 in this
vital area of "innovative land-use regulation." 68
55 See cases cited in nn.23-26,supra.
56 Young,427 U.S.at 71 (plurality opinion).
S7 Northend Cinema,585 P.2d at 1159.
b8 Young,427 U.S.at 73 (Powell,J.,concurring).
28
QUESTIONS PRESENTED
CONCLUSION Renton, Washington, is a small city (pop. 32,200)
For the reasons expressed above, this Court should note located just outside of Seattle. Prior to the entry or
probable jurisdiction and reverse the judgment below. attempted entry of any adult motion picture theatre, the
Respectfully submitted, City enacted a zoning ordinance, fashioned after those
adopted and judicially approved in Seattle and Detroit,
E. BARRETT PRETTYMAN, JR.* which effectively set aside 520 acres of developing corn-
JAMES G. MIDDLEBROOKS mercial area for the operation of such theatres. The
HOGAN &HARTSON questions are:
815 Connecticut Avenue, N.W.
Washington,D.C. 20006 1. May a small city, in enacting a zoning ordinance
(202) 331-4685 regulating the location of adult theatres prior to the entry
of such theatres, rely upon the experience of other, larger
LAWRENCE J.WARREN cities regarding the theatres' secondary adverse impact
DANIEL KELLOGG upon residences, schools, churches and businesses, or is
MARK E.BARBER a cityrequired, under the First Amendment to the Con-
ZANETTA L. FONTES
WARREN&KELLOGG,P.S. stitution, to await the theatres' entry and consequent
100 South Second Street deleterious effects before zoning the impacted areas?
Renton,Washington 98057 2. Where a small city effectively sets aside a signifi-
(206) 255-8678 cant area of the city for the location of adult theatres, is
Counsel for Appellants its ordinance in violation of the First Amendment because
* Counsel of Record a portion of the set-aside area either is presently unde-
veloped, or is presently developed for existing commercial
purposes?
3. Where the intent of a city council in regulating
the location of adult theatres is not improperly related to
the content of adult films or the suppression of First
Amendment rights, and instead is related to such values
as preserving commercial areas and family-related neigh-
borhoods, is its regulation constitutionally void because
some citizens at a public hearing voiced criticism of film
content?
(i)
No.
IN THE
lt.prrmr Tottrt tilt ftfrs
OCTOBER TERM, 1984
THE CITY OF RENTON, et al.,
v.
Appellants,
PLAYTIME THEATRES, INC.,
a Washington corporation, et al.,
Appellees.
On Appeal from the United States Court of Appeals
for the Ninth Circuit
JURISDICTIONAL STATEMENT
E. BARRETT PRETTYMAN, JR.*
TAMES G. MIDDLEBROOKS
HOGAN &HARTSON
815 Connecticut Avenue, N.W.
Washington,D.C.20006
(202) 331-4685
LAWRENCE J.WARREN
DANIEL KELLOGG
MARK E.BARBER
ZANETTA L. FONTES
WARREN&KELLOGG,P.S.
100 South Second Street
Renton,Washington 98057
(206) 255-8678
Counsel for Appellants
* Counsel of Record
WILSON - EPES PRINTING CO.. INC. - 789-0096 - WASHINGTON. D.C. 20001