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Playtime 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 .7,- 06,,-ie r,- A.,, k,cw , 431,) , ,,), 1 1 (VY1 t•I a 1/Y\-2- 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 Exhibit A-1 a _._._,r •r, _._._. ,�„_ ,m....,1 i N p.,r.a I 11 i t,�,3 I ,,, i .4 p.: i «:. Mgr 1 z Z C ,I # I W r, �IlAim.' lilt L,.,.1 a W C I i i Q * . 14, ,,,.�s_ � Wi �► AP i�a i i i e ADULT ENTERTAINNIt NT AREA AS PER ORDNANCE # 363/ I'" PIO"Vitt. 0 0 REZONE REQUIRED •,..' ...,q.' / -44-00.4, t , 4440 1 , ****"............. .. - i X tx..1 "Mill********Iiii*doet 4 0011144114411iiiik,kaiks /e , ,.. ,..,. 'Ss 6,VIIIIP'Xile. ..... '..... ....." '''' ''''' 4. . ....,- , ...... ..... ...., ." . i I / '...i' ..,.., , \ 1 ..- , \ _- - \ _- \ -- __ , . \ .... ‘ l.- ... _ ..- -- --- , \ \ • . . * 'I , . 1 .. . ...- 1 r \ /''''. . .1 . .. \ 1 I i ..6.1 1 1 r 1 .10.....1.................., . , ,.. . . .,. .. ,. .:''' „:„,..;.;„,,,•:,' -' , . . . . . ..... I I 1 1.' -,.-, A - ..' I I r 1 4, :F 1 43 i 0 (0 il 1 1 . 1 ii-z til et -7 ! .- t!...., 142a APPENDIX V Exhibit A-3 w • Fes , .•; • � ` fi- 4 _ y t" .. , , ........,:, _ , , ,gr. ......„ ..... .„, .,,,...,,,,...4-i.,,- •' 1.,' . . , , A ' ., PI lw i` • 1rr;-. . ..) '4.*-1# ,ti 4 IIIIIIIIIIIIIPI,"- . it 71 r•:,, , , . r( . q� U , '.t1�• r 4 k„... r C7 t I i 1 CC \ . 11. ill co, Jf IQ W a fl I lir ''''. IN.''.,,LCIS'011Z *VI r+ ''' t t7\-\\'‘,., ,,_ . ‘..., L I i 1i 1 OS R x t .. i } g //:8 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