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HomeMy WebLinkAboutPlaytime Theaters Court Case (1981-1983) ! i • 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 CITY OF RENTON, a municipal )' corp•ration; LAWRENCE J. ) NO . C83-744C 11 WARR! N, City Attorney of the ) City of Renton; STATE OF ) MEMORANDUM IN SUPPORT OF MOTION 12 WASHINGTON, ex rel. LAWRENCE J . ) TO REMAND TO STATE COURT, AND WARRIN, City Attorney for the ) FOR AWARD' OF COSTS PURSUANT TO 13 City of Renton , ) 28 U.S. C. 1447( c) 14 Plaintiffs , ) ) Date: June 10, 1983 15 vs . ) Time: 9 : 30 a .m. ) Before : John C. Coughenour , Judg 16 PLAY IME THEATRES, INC . , ) Place: 609 U.S. Courthouse a Washington corporation; ) Seattle , Washington 17 KUKIO BAY PROPERTIES, INC. , ) a Washington corporation; ) ' . 18 ROGER' H. FORBES and JANE ) DOE FORBES, husband and ) 19 ) wife; ROBERT B. McRAE ) 20 and ELIA C. McRAE; ) DOES 1 through 10 , ) 21 ) Defendants . ) . 22 ) 23 STATEMENT OF FACTS 24 This is the second time that the state court cause of 25 action filed by the City of Renton (King County, Washington , 26 Sup rior Court Cause No . 82-2-02344- 2, entitled " City of 27 Renton , et al . , vs . Playtime Theatres , Inc . , et al . ") has been 28 remdved to this Court pursuant to 28 U . S. C. 1441 , et seq . MEMORANDUM IN SUPPORT OF MOTION , WARREN&KELLOGG,P.S. TO REMAND TO STATE COURT. . . PAGE 1 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 i Foll wing the remand of the prior removal action, the City of 2 Renton decided not to assert its right to claim recovery of 3 costs due to the improvident removal to this Court without 4 proper jurisdiction. 28 U.S . C. 1447(c) , based upon its belief 5 that these Defendants should be entitled to "one free bite" . 6 However, their second removal in absolute disregard of 7 the provisions of 28 U.S. C. 1447 and the prior Report and 8 Recommendation of Magistrate Sweigert and the prior Order of 9 Remand entered by Chief Judge Walter T. McGovern, compels the 10 Plaintiffs in this action to insist upon an award of the 11 substantial costs of these proceedings to obtain the remand of 12 the tate court action . 13 The grievous actions of the Defendants in this removal 14 acti n are an attempt to disrupt and frustrate the City' s 15 action to abate the public nuisance which exists at the Renton 16 Theater . 17 In support of this request for remand po the state court 18 and for award of costs, the Plaintiffs submit the following 19 'statement of facts : 20 1 . On February 19, 1982 , the City of Renton ( "City" ) , . 21 bro ght suit in the state court against Playtime Theatres , 22 Inc. and Kukio Bay Properties , Inc . , (hereafter "Playtime" ) 23 see ing a declaratory judgment regarding City of Renton 24 Ordnance No . 3526 . 25 2 . On or about March 8 , 1982, Playtime filed a 26 petition to remove the state court action alleging the s me 27 jurisdictional statutes as in the present petition . 28 MEM F RANDUM IN SUPPORT OF MOTION WARREN&KELLOGG,P.S. TO EMAND TO STATE COURT. . . PAGE 2 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 3. On March 12, 1982, the City filed its motion to 2 rema d the state court action, which motion was heard by 3 Magistrate Philip K. Sweigert on April 9 , 1982 . 4 4. The Magistrate filed his Supplemental Report and 5 Recommendation on December 9 , 1982 recommending remand . 6 5. On January 13 , 1983, Chief Judge Walter T . 7 McGo ern entered an order in Cause No . C82-263M approving the 8 Supplemental Report and Recommendation of Magistrate Sweigert g and remanding the cause of action to the King County , 10 Was ington, Superior Court . 11 6. On February 18 , 1983 , Chief Judge Walter T . 12 McGovern entered his final order in Cause No. C82-59M, finding 13 tha City of Renton Ordinance No . 3526 , as amended , was 14 con titutional . 15 7 . On May 19 , 1983 , the Plaintiffs filed amended 16 complaint . This amended complaint added additional 17 all gations and causes . of action alleging the maintenance by 18 the Defendants of a public nuisance at the Renton Theater by 19 reason of the exhibition of sexually explicit and obscene 20 motion picture films in" violation of the provisions of the 21 City of Renton zoning code . 22 8 . On May 19, 1983 , the Plaintiffspfiled a motion for 23 Preliminary and Permanent Injunction which motion was noted 24 for hearing in the state court on June 13, 1983 . The object 25 of the motion was to restrain the Defendants from use of the 26 Renton Theater as an adult motion picture theater in violation 27 of the City of Renton zoning code . 28 MEM RANDUM IN SUPPORT OF MOTION WARREN&KELLOGG,P.S. TO EMAND TO STATE COURT. . . PAGE 3 ATTORNEYS ATLAW '100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 • 1 9 . In anticipation of the presentation of evidenceiat 2 the Preliminary Injunction hearing, the Plaintiffs served upon 3 Defendant Playtime Theatres, Inc . , a Notice of Deposition Upon q Oral Examination and Subpoena Duces Tecum which required 5 Playtime Theatres , Inc . to designate an individual to testify I 6 concerning matters designated in the notice at a deposition 1 7 and to bring them evidence essential to the establishmentlof i i 8 the laintiffs' case . 9 10 . The Plaintiffs further caused to be served upon I 10 the Manager of the Renton Theater on May 19 and 25, 1983, 1 11 Subpoenas Duces Tecum requiring them to appear in the 1 12 Presiding Department of the King County, Washington, Superior 13 Court on June 13, 1983 at 9 : 30 a .m. and to bring with them the 1 14 fil s which were then being exhibited at the Renton Theater. 11 . On May 26, 1983 , a Subpoena Duces Tecum was served 15 I 16 upo Playtime Theatres , Inc . requiring it to bring to the �' described in the subpoena ich were in their 17 hearing 28 films de b P � I 18 pos ession or control . 19 12 . On June 3 , 1983 the Defendants filed a Petition I 20 for Removal seeking to once again remove the same state court 21 action to this Court . I 22 ARGUMENT 23 A . The petition for removal must be dismissed and the state court proceedings remanded to I 24 the King County, Washington , Superior Court I for further proceedings . 1 25 The legal argument in support of the City's motion to 26 rem-nd the state court action back to the King County , 27 Was ington, Superior Court is most eloquently stated in the 28 MEMORANDUM IN SUPPORT OF MOTION WARREN&KELLOGG,P.S. TO REMAND TO STATE COURT. . . PAGE 14 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 ` r-- 1 Supplemental Report and Recommendation of Magistrate Philip K. 2 Swei ert filed in. Cause No. C82-263M on December 9, 1982 . 3 Portons of Magistrate' sopinion o inion are incorporated herein 4 verb-tim as follows : 5 "Under 28 U.S. C. §1441 , a lawsuit brought in 6 a state court may be removed by a defendant to federal court , if it might have been brought there 7 originally . Grubbs v . G . E . Credit Corp . , 405 8 U.S. 699 ( 1972) . . . 9 "It is well settled that jurisdiction is not conferred by allegations that defendant intends to 10 assert a defense based on the Constitution or a 11 federal law. Gully v . First Nation } Bank, 299 12 U.S. 109 , 113 (1936 ) . Federal law must be an essential element of the plaintiff's cause of 13 action . ( emphasis added) 'The controversy must be 14 disclosed upon the face of the complaint , unaided 15 by the answer or by the petition for removal . ' Id . "The provision in the statute for removal of 16 cases 'arising under the Constitution, treaties , 17 or laws of the United States' (§1441 (p) ) embraces 18 the same class of cases as is covered by the original jurisdiction statute .. State of Tennessee 19 v . Union and Planters Bank , 152 U . S . 454 , 461 20 ( 1894) . Thus, while :this Court is not responsible 21 for determining whether City of Renton' s action was properly brought under the state declaratory 22 judgment law, it must examine whether a federal 23 court could have ever asserted original 24 jurisdiction over it . It is , after all , federal law which will determine whether the complaint 25 raises a federal question . Shamrock Oil & Gas 26 Corp. v . Sheets , 313 U .S. 100, 104 ( 1941 ) . "I have examined the complaint filed by City 27 of Renton , and conclude that it presents no 28 MEMORANDUM IN SUPPORT OF MOTION WARREN&KELLOGG,P.S. TO REMAND TO STATE COURT. . . PAGE 5 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 ' I . 1 justiciable controversy which would justify federal jurisdiction. First , Playtime and Kukio 2 have not demonstrated that- the City would have any 3 standing to file such a suit in federal court . It 4 is a prerequisite of justiciability that judicial relief will prevent or redress a claimed injury . 5 Simon v. Eastern Kentucky Welfare Rights Org. , 426 6 U.S. 26, 38-39 ( 1976) . Here , the City of Renton 7 has made no claim that any present or threatened 8 conduct of Playtime or Kukio will cause it any damage . Where there is no injury alleged to be 9 caused by defendants there is no standing. A suit � . 10 for declaratory judgment in federal court will not 11 negate the requirement of standing or justiciability . For this reason aline , a suit 12 such as this one would be outside of a federal 13 court' s jurisdiction ." 14 Magistrate ' s Supplemental Report and Recomendation , 15 pages 2 - 3 . 16 The burden of proof is upon the Defendants seeking 17 remittal to prove their allegations regarding original and 18 sub 'ect matter jurisdiction in this court . Wilson vs . 19 Republic Iron Company , 257 U . S . 92 , 97 , -42 :S ..Ct . 35, 66 L . Ed . 20 144 ( 1921 ) ; Volume 1A , Moore ' s Federal 'Practice , § 0 . 68 21 (4 . 1 ) , page 529, footnote 40 . Petitioners allege that removal of ttie state action is 22 23 proper under 28 U . S . C. 1443. However, this broad assertion 24 cannot withstand any critical analysis . It has been stated 25 that 28 U . S. C. 1443, which provides for removal of certain 26 types of civil rights cases , has been so narrowly construed 27 tha it is available only in rare instances . Volume 1A , 28 Moore, supra, Section 0 . 157 (13) , page 164 ; Greenwood v. M ME ORANDUM IN SUPPORT OF MOTION WARREN&KELLOGG,P.S. TO REMAND TO STATE COURT. . . PAGE 6 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 1 Peacock, 384 U.S. 808, 86 S. Ct . 1800, 16 L. Ed . 2d 944 (1960 . 2 In the amended its complaint , the City added additional causes 1 3 of aLtion for injunctions and declaratory judgments regarding 1 4 abatement of the public nuisance as set forth in the 1 5 ordinances , and under RCW Chapter 7 . 24, 7. 40, 7 .48 and. 7 . 48A . 6 All actions are brought pursuant to state law. If the 7 petitioners are able to remove this state action to federal I 8 court under Section 1443, then no zoning case or nuisance I 9 abatement case under other state statutes could be heard Iin 1 10 state court . By necessity., -every_ zoning and ' nuisance I 11 abatement case impacts property rights and is subject Ito al12 cla' ms of due process and deprivation, of proprietary 13 interests . Any individual asserting damage caused by a zoning 14 enactment of a municipality could then seek to remove an 15 action filed against that party by the municipality. to Federal I 16 court. The action commenced by the City of Renton in state 1 17 court is a case involving the enforcement of, Renton' s land' use 18 regulation held constitutional by Judge McGovern, and is not a I 19 civil rights case . 1 1 20 As stated previously , the -'right of removal by1 a 1 21 defendant for the protection of civil rights under 28 U .S1. C . 22 144 is a very restricted one . Subdivision ( 1 ) requires Itwo I 23 dis inct showings : that the right upon which the petitioner 24 relies is (1 ) a "right under any law providing for . . . eglual 25 civil rights ," and (2) that the petitioner is "denied ! or 26 cannot enforce" that right in the state court . In Georgia) v. 27 Rachel , 384 U .S . 780, 792, 86 S. Ct . 783, 16 L. Ed . 2d 1925 1 28 ( 1966) , the Supreme Court held that the law relied on "must be MEMORANDUM IN SUPPORT OF MOTION WARREN&KELLOGG,P.S. TO REMAND TO STATE COURT. . . PAGE 7 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 II H 1 construed to mean any law providing for specific civil rights 2 stat d in terms of racial equality ." (emphasis ours) . It 3 shou d be noted that the denial of civil rights must be by 4 stat constitution or statute. Rachel , supra, at ftn . 10. 5 With regard to 28 U. S. C. 1443 (2 ) , it has an even 6 narr•wer meaning than Section 1443(1) . Moore states that: • 7 " . . . (T)he petitioner must show that the act or failure to act complained of was 'under color of 8 authority. ' 9 "Thus §1443(2) 'confers a privilege of removal only upon federal officers or 'agents and those 10 authorized to act with , or for them in affirmatively executing duties, under any. federal 11 law providing equal civil rights . ' ' If , on the other hand, the defendant is sued MT' non-action 12 rather than action, i . e . , ' for , refusing to do any act on the ground that it would be inconsistent 13 with such law, ' then removal under §1443(2) is available only to state officers and those acting 14 under them. And the reference in §1443(2) to 'any law providing for equal rights' is limited to a 15 federal law providing for rights defined in terms of racial equality; and which 'manifests an 16 affirmative intention that a beneficiary of such law should. be able to do something and not merely 17 to one where he ,may have a valid defense or be entitled to have civil or criminal liability 18 imposed on those interfering with him. '" Vol . 1A Moore ' s , Sec . 0 . 165 , p . 351 -352 ( footnotes . 19 omitted) . 20 ' Fro the foregoing , it is apparent that the petitioner' s 21 req est for removal fails under any reading of Section 1441 . 22 In their Petition to Remove , Playtime► alleges that this �3 Cou t could have federal question jurisdiction if the City' s 24 amended complaint had been filed in federal court . This is 25 not so. As found by Magistrate Sweigert in the prior remand , 26 there is no ground for federal question jurisdiction in his 27 amended complaint which relies solely upon state causes of 28 action . The City' s state amended complaint may collaterally MEM RANDUM IN SUPPORT OF MOTION WARREN&KELLOGG,P.S. TO EMAND TO STATE COURT. . . PAGE 8 ATTORNEYS ATUIW T00 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 l` 1 rais a federal question, but it does not present a basic 2 federal question . Gully v . First Nat . Bank in Meridian, 299 3 U .S. 109 , 57 S. Ct . 96, 81 L. Ed . 70 (1936) drew a distinction 4 between basic and collateral federal issues and limits 5 removal , because of a general federal question, to cases where 6 the complaint presents a basic federal question. Vol. 1A 7 Moore's, supra, Section 0 . 160, p. 189-192 . An action is not 8 removable where the federal question appears in the complaint 9 by way of an anticipated defense or because the defendant has 10 a d fense which raises a federal -question . (See Vol. 1A 11 Moore's, supra, Sec . 0. 160, p. 191-192 and cases cited in t 12 footnote 36) . 13 Principles of state sovereignty, as well as petitioner' s 14 failure to fall within the provisions of appropriate 15 jurisdictional statutes , as alleged in their petition to 16 remove , requires that this court enter an order again 17 remLding the civil . action entitled "City of Renton , a 18 municipal corporation, et al . , vs . Playtime Theatres , Inc . , a 1,9 Was ington . corporation and .=KukioInc . a Was in ton corporation, et al ." to ; t:he .King County Superior , 20 g P 21 Cou t . 22 B. The petition for removal has pbeen filed improvidently_and without jurisdiction . �3 Therefore, this court must allow in addition to the remand of the cases the payment of 24 just costs incurred by the_Plaintiffsj_ including reasonable attorneys fees against 25 the_Defendants cursuant to 28 U . S . C . 1 I�T7Tc1—i because of the filing of the 26 petition for removal in bad faith. 27 Under 28 U . S. C. 1447( c) this Court has the power to 28 ord-r the payment of costs . Under 28 U.S. C. 1446 (d) , a party MEMORANDUM IN SUPPORT OF MOTION WARREN&KELLOGG,P.S. TO REMAND TO STATE COURT. . . PAGE 9 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 r 1 seek'ng removal must file a bond ". . .conditioned that the 2 defe dants . . . will pay all costs and disbursements incurredlby 3 reason of the removal proceedings should it be determined that 4 the case was not removable or was improperly removed ." 5 Althought there are cases to the contrary, it has been 6 held that the recovery of reasonable attorney's fees expendled 7 by a party in opposing a petition for removal , arel a 8 reco erable cost under 28 U. S. C. 1447(d) . Usually, recovery 9 of ttorney' s fees has been limited to cases where some 10 element of bad faith has been involved in the filing of the 11 petition to remove . Eller v. M.L .D . Trust, 241 F.Supp . 800 } I 12 (D. Mont. 1965) ; Smith v . Student Non-Violent CoordinatLng 13 Comittee , 421 F. 2d 522 (5th Cir . 1970) . Algonquin Gas 14 Transmission Company v . Gregory , 105 F . Supp . 64 (D . Conn . 15 1952) . 16 The City contends that this second removal of the state 17 court action by Playtime and their identical attorney, is � an 18 exa ple of such grievous bad faith filing which has incurral of subs=tantial costs Eby ,, the 19 necessitated the 20 Plaintiffs . The amended complaint filed in .the .state cout , 21 like the original complaint before it , clearly does not state 22 grinds upon which to confer jurisdiction upon the federal 23 court. Particularly in view of the prior remand, and ,the 24 affect of the second removal action upon the Plaintiffs' plan 25 to present evidence to the Superior Court to obtain a 26 preliminary injunction to abate the nuisance , it is City' s 27 con ention that this second removal was done wantonly land 28 MEMORANDUM IN SUPPORT OF MOTION WARREN&KELLOGG,P.S. TO REMAND TO STATE COURT . . . PAGE 10 ATTORNEYS AT IW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 oppr ssively and has been interposed for the sole purpose of 2 harr sment and delay . 3 In this action, the court should exercise its discretion y to g ant to the City as taxable costs, its attorney's fees and 5 cos s incurred , in opposing the Defendants petition for 6 remo al. The amount requested is set forth in separate 7 affidavits in support of the Motion for Recovery of Costs and 8 Attorney's Fees . 9 C. The order of remand as requested must be entered forthwith in order to preserve the 10- • motion hearing date .scheduled in the King County Superior Court on June 13 , . 1983 , and 11 in order to preserve the evidence subpoenaed for the hearing which may othet.wise not be 12 available by subpoena to the City. 13 The City has very carefully subpoenaed certain evidence 14 which it deems necessary to the presentation in support of fits 15 mot' on for Preliminary Injunction at the hearing on June 13, 16 198 . The filing of the Petition for Removal has disrupted 17 the orderly presentation of evidence in behalf of the City' s 18 case and threatens to prevent the City from using the legal - 19 pro ess of - the courts in - order :to : compel . the attendance of 20 wit esses and the production --of :evidence for examination by . 21 . the Court. The Defendants' and their agents have been 22 sub oenaed to hold in their possession and .to deliver to the 23 hea ing certain films which, when the subpoenas were served , 24 wer in the possession of the Defendants or their agents . If 25 the subpoenas are allowed to lapse because of the pendency of 26 this removal petition, then the Defendants may claim to be �7 relaxed from the effect of the subpoenas and thereafter 28 MEMORANDUM IN SUPPORT OF MOTION WARREN do KELLOGG,P.S. TO REMAND TO STATE COURT. . . PAGE 11 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.ROX 626 RENTON,WASHINGTON 98057 255-8678 1 insist that the films are no longer in their possession as 2 they were when the original subpoenas were served . 3 For this reason this court must fashion its remedy in an 4 expeditious fashion to preserve the evidence which has been 5 prop rly subpoenaed so that the City' s hearing on its motion 6 for preliminary injunction in the Superior Court is not 7 frustrated. 8 CONCLUSION 9 The City respectfully requests an order immediate 10 :. rema ding this cause to the King County, Washington, Superior its costs, includingattorney's fees 11 Court, and awarding Y � } 12 taxable against Playtime Theatres , Inc . and Kukio Bay 13 Properties, Inc . in the sums as set forth in the attorneys fee 14 affidavits , which have been incurred by the Plaintiffs in 15 opposition to the Defendants Petition for Removal . 16 DATED: June , 1983. 17 Respectfully submitted , . 18 . 19 :LAWTF:ZNJE J. WARREN 20: 21 22 ► 23 24 25 26 27 28 MEMORANDUM IN SUPPORT OF MOTION WARREN&KELLOGG,P.S. TO REMAND TO STATE COURT. . .PAGE 12 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 I 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 CITY OF RENTON, a municipal . ) corporation; LAWRENCE J. ) . NO . C83-744C 11 WARR N, City Attorney of the ) City of Renton; STATE OF ) MEMORANDUM IN SUPPORT OF MOTION 12 WASHINGTON, ex rel. LAWRENCE J . ) TO REMAND TO STATE COURT, AND WARR1N, City Attorney for the ) FOR AWARD' OF COSTS PURSUANT TO 13 City of Renton , ) 28 U.S. C. 1447( c) 14 Plaintiffs , ) ) Date : June 10, 1983 15 vs . ) Time: 9 : 30 a .m. ) Before : John C. Coughenour , Judg 16 PLAY IME THEATRES, INC. , ) Place: 609 U.S. Courthouse a Washington corporation; ) Seattle , Washington 17 KUKIO BAY PROPERTIES, INC. , ) a Washington corporation; ) 18 ROGE' H. FORBES and JANE ) DOE FORBES, husband and ) 19 ) wife; ROBERT B. McRAE .) 20 and. ELIA C. McRAE; ) DOES 1 through 10 , ) 21 ) Defendants . ) 22 ) �3 STATEMENT OF FACTS 24 This is the second time that the state court cause , of 25 action filed by the City of Renton (King County, Washington , 26 Sup rior Court Cause No . 82-2-02344- 2, entitled " City of �7 Ren on, et al . , vs . Playtime Theatres , Inc . , et al . ") has been 28 rem ved to this Court pursuant to 28 U . S. C. 1441 , et seq . MEM RANDUM IN SUPPORT OF MOTION WARREN&KELLOGG,P.S. TO EMAND TO STATE COURT. . . PAGE 1 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 i i 1 Follring the remand of the prior removal action , the City Of 2 Renton decided not to assert its right to claim recovery of 3 costs due to the improvident removal to this Court without 4 proper jurisdiction. 28 U.S. C. 1447(c) , based upon its belief 5 that these Defendants should be entitled to "one free bite" . 6 However, their second removal in absolute disregard ,of I 7 the provisions of 28 U.S. C. 1447 and the prior Report and 8 Reco mendation of Magistrate Sweigert and the prior Order jof 9 Remand entered by Chief Judge Walter T. McGovern , compels the 10 Plaintiffs in this action to insist upon an award of the 11 substantial costs of these proceedings to obtain the remandiof 12 the state court action . 13 The grievous actions of the Defendants in this removal 14 action are an attempt to disrupt and frustrate the City' s 15 action to abate the public nuisance which exists at the Renton 16 Theater . 17 In support of thip request for remand po the state court 18 and for award of costs, the Plaintiffs submit the following 19 statement of facts : 20 . 1 . On February 19, 1982 , the City of Renton ("Cityj' ) , 21 brought suit in the state court against Playtime Theatres , 22 Inc. and Kukio Bay Properties , Inc . , (hereafter "Playtime" ) - i 23 seeking a declaratory judgment regarding City of Renton 24 Ordinance No . 3526 . 25 2 . On or about March 8 , 1982 , Playtime filed a 26 petition to remove the state court action alleging the same 27 jurisdictional statutes as in the present petition . 28 MEM RANDUM IN SUPPORT OF MOTION WARREN&KELLOGG,P.S. TO DEMAND TO STATE COURT. . . PAGE 2 ATTORNEYSATLAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 3. On March 12, 1982, the City filed its motion to 2 rema d the state court action, which motion was heard by 3 Magi trate Philip K. Sweigert on April 9 , 1982 . 4 14 . The Magistrate filed his Supplemental Report and 5 Reco mendation on December 9 , 1982 recommending remand . 6 5. On January 13, 1983, Chief Judge Walter T . 7 McGo ern entered an order in Cause No . C82-263M approving the 8 Supplemental Report and Recommendation of Magistrate Sweigert 9 and remanding the cause of action to the King County , 10 Washington, Superior Court . 11 6 . On February 18 , 1983 , Chief Judge Walter T . t 12 McGo ern entered his final order in Cause No. C82-59M, finding 13 that City of Renton Ordinance No . 3526 , as amended, was 14 constitutional . 15 7 . On May 19 , 1983 , the Plaintiffs filed amended 16 complaint . This amended complaint added additional 17 all gations and causes . of action alleging the maintenance by 18 the Defendants of a public nuisance at the Renton Theater by 19 reason of the exhibition of sexually explicit and obscene 20 motion picture films in violation of the provisions of the 21 City of Renton zoning code . 22 8 . On May 19, 1983 , the Plaintiffs ,filed a motion for �3 Preliminary and Permanent Injunction which motion was noted 24 for hearing in the state court on June 13, 1983 . The object 25 of the motion was to restrain the Defendants from use of the 26 Renton Theater as an adult motion picture theater in violation 27 of the City of Renton zoning code . 28 MEM RANDUM IN SUPPORT OF MOTION WARREN&KELLOGG,P.S. TO EMAND TO STATE COURT. . . PAGE 3 ATTORNEYS AT LAW 700 SO.SECOND ST.,P.C.1 BOX 626 RENTON,WASHINGTON 98057 255-8678 rr 1 9 . In anticipation of the presentation of evidence at 2 the 'reliminary Injunction hearing, the Plaintiffs served upon 3 Defeidant Playtime Theatres, Inc . , a Notice of Deposition Upon ti 4 Oral Examination and Subpoena Duces Tecum which required 5 Play ime Theatres , Inc . to designate an individual to testify 6 conc-rning matters designated in the notice at a deposition 7 and o bring them evidence essential to the establishment of 8 the laintiffs' case . 9 10 . The Plaintiffs further caused to be served upon 10 the Manager of the Renton Theater on May 19 and 25, 1983, 11 Subpoenas Duces Tecum requiring them to appear in the 12 Presiding Department of the King County, Washington, Superior 13 Court on June 13, 1983 at 9 : 30 a .m. and to bring with them the 14 film: which were then being exhibited at the Renton Theater . 15 11 . On May 26, 1983, a Subpoena Duces Tecum was served 16 upon Playtime Theatres, Inc . requiring it to bring to the 17 hearing 28 films described in the subpoena w'iich were in their 18 possession or control . 19 12 . On June 3 , 1983 the :Defendants filed a Petition 20 for Removal seeking to once again remove the same state court 21 action to this Court . 22 ARGUMENT ► 23 A. The petition for removal must be dismissed and the state court proceedings remanded to 24 the King County, Washington, Superior Court for further proceedings . 25 The legal argument in support of the City's motion to 26 rem-nd the state court action back to the King County, 27 Was ington, Superior Court is most eloquently stated in the 28 MEM RANDUM IN SUPPORT OF MOTION WARREN&KELLOGG,P.S. TO EMAND TO STATE COURT. . . PAGE 4 ATTORNEYS AT LAW 100 SO.SECOND ST.,I.O.BOX 626 RENTON,WASHINGTON 98057 2554678 1 Supp emental Report and Recommendation of Magistrate Philip K. 2 Swei ert filed in Cause No . C82-263M on December 9, 1982 . 3 Portons of the Magistrate' s opinion are incorporated herein y verb-tim as follow s : : 5 "Under 28 U.S. C. §1441 , a lawsuit brought in 6 a state court may be removed by a defendant to federal court, if it might have been brought there 7 originally . Grubbs v . G . E . Credit Corp . , 405 8 U .S. 699 ( 1972) . . . 9 "It is well settled that jurisdiction is not • conferred by allegations that defendant intends to 10 assert a defense based on the Constitution or a 11 federal law. Gully v . First National Bank, 299 12 U .S. 109 , 113 (1936) . Federal law must be an essential element of the plaintiff's cause of 13 action . (emphasis added) 'The controversy must be 14 disclosed upon the face of the complaint, unaided 15 by the answer or by the petition for removal . ' Id . "The provision in the statute for removal of 16 cases 'arising under the Constitution, treaties , 17 or laws of the United States' (§14414) ) embraces 18 the same class of cases as is covered by the original jurisdiction statute .. State of Tennessee 19 v . Union and Planters Bank., 152 U . S . 454 , 461 20 ( 1894) . Thus , while this Court is not responsible 21 for determining whether City of Renton' s action was properly brought under the state declaratory 22 judgment law, it _ must examine whether a federal 23 court could have ever asserted original 24 jurisdiction over it. It is , after all , federal law which will determine whether the complaint 25 raises a federal question . Shamrock Oil & Gas 26 Corp. v . Sheets , 313 U .S. 100 , 104 ( 1941 ) . "I have examined the complaint filed by City 27 of Renton , and conclude that it presents no 28 MEMORANDUM IN SUPPORT OF MOTION WARREN&KELLOGG,P.S. TO REMAND TO STATE COURT. . . PAGE 5 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 cambk 1 justiciable controversy which would justify federal jurisdiction . First , Playtime and Kukio 2 have not demonstrated that the City would have any 3 standing to file such a suit in federal court . It 4 is a prerequisite of justiciability that judicial relief will prevent or redress a claimed injury . 5 Simon v. Eastern Kentucky Welfare Rights Org. , 426 6 U.S. 26, 38-39 ( 1976) . Here , the City of Renton 7 has made no claim that any present or threatened 8 conduct of Playtime or Kukio will cause it any damage . Where there is no injury alleged to be 9 caused by defendants there is no standing. A suit ! . 10 for declaratory judgment in federal court will not negate the requirement of standing or 11 justiciability . For this reason aline , a suit 12 such as this one would be outside of a federal 13 court' s jurisdiction ." Magistrate ' s Supplemental Report and Recomendation , 14 15 pages 2 - 3 . 16 The burden of proof is upon the Defendants seeking 17 remo al to prove their allegations regarding original and 18 subject matter jurisdiction in this court . Wilson vs . 19 Republic Iron Company, 257 U . S . 92 , 97 , A2 .S . Ct . 35, 66 L . Ed . 20 144 ( 1921 ) ; Volume 1A , Moore ' s Federal Practice , § "0 . 168 21 (4 . 1 ) , page 529, footnote 40 . 22 Petitioners allege that removal of tape state action is �3 pro er under 28 U . S. C. 1443. However, this broad assertion i 24 can of withstand any critical analysis . It has been stated 25 tha 28 U . S. C. 1443, which provides for removal of certain 26 typ s of civil rights cases , has been so narrowly construed 27 tha it is available only in rare instances . Volume ;1A , 28 Moore, supra, Section 0 . 157 (13) , page 164 ; Greenwood v. MEMORANDUM IN SUPPORT OF MOTION WARREN&KELLOGG,P.S. TO REMAND TO STATE COURT. . . PAGE 6 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.SOX 626 RENTON,WASHINGTON 98057 255-8678 1 i 1 1 Peacock, 384 U.S. 808 , 86 S. Ct . 1800 , 16 L. Ed . 2d 944 (19661p . 2 In t� e amended its complaint , the City added additional causlies 11 3 of action for injunctions and declaratory judgments regarding i 4 abatement of the public nuisance as set forth in the 5 ordinances, and under RCW Chapter 7 . 24, 7. 40, 7 .48 and 7 . 48A . I 6 All actions are brought pursuant to state law. If the 7 petitioners are able to remove this state action to federal 8 court under Section 1443, then no zoning case or nuisance 9 abatement case under other state statutes could be heard in 10 state court . By necessity., -every zoning and nuisance 11 abatement case impacts property rights and is subject to 12 claims of due process and deprivation, of proprietary 13 interests . Any individual asserting damage caused by a zoning I 14 enactment of a municipality could then seek to remove Ian 1 15 action filed against that party by the municipality to Fede*al I 16 court. The action commenced by the City of Renton in state I 17 court is a case involving the enforcement of, Renton' s land use 18 regulation held constitutional by Judge McGovern, and is not a 19 civil rights case . 20 As stated previously , the -right of removal by1 a I 21 defendant for the protection of civil rights under 28 U .S . C . 22 1443 is a very restricted one . Subdivision (1 ) requires two I 23 distinct showings : that the right upon which the petitioner 24 rel• es is (1 ) a "right under any law providing for . . . equal 25 civil rights ," and (2) that the petitioner is "denied for i 26 cannot enforce" that right in the state court . In Georgia v. 1 27 Ractiel , 384 U . S . 780, 792, 86 S. Ct . 783, 16 L. Ed . 2d 925 I 1 28 ( 1966 ) , the Supreme Court held that the law relied on "must be I MEM RANDUM IN SUPPORT OF MOTION WARREN&KELLOGG,P.S. TO EMAND TO STATE COURT. . . PAGE 7 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 I C. _ I • cons rued to mean any law providing for specific civil rights ours) . 2 stated in terms of racial equality ." (emphasis It 3 shou d be noted that the denial of civil rights must be by 4 stat constitution or statute . Rachel , supra, at ftn . 10. 5 With regard to 28 U. S. C. 1443 (2) , it has an even 6 narrower meaning than Section 1443(1) . Moore states that: 7 " . . . (T)he petitioner must show that the act or failure to act complained of was 'under color of 8 authority. ' 9 "Thus §1443(2) 'confers a privilege of removal only upon federal officers or 'agents and those 10 authorized to act with or for them in affirmatively executing duties under any federal 11 law providing equal civil rights . ' If , on the other hand, the defendant is sued rot non-action 12 rather than action, i.e . , ' for refusing to do any act on the ground that it would be inconsistent 13 with such law, ' then removal under §1443(2) is available only to state officers and those acting 14 under them . And the reference in §1443(2) to 'any law providing for equal rights' is limited to a 15 federal law providing for rights defined in terms of racial equality ; and which 'manifests an 16 affirmative intention that a beneficiary of such law should be able to do something and not merely 17 to one where he ,may have a valid defense or be entitled to have civil or criminal liability 18 imposed on those interfering with him. '" Vol . 1A Moore' s , Sec . 0 . 165 , p . 351 -352 ( footnotes 19 omitted) . 20 From the foregoing , it is apparent that ' the petitioner' s 21 request for removal fails under any reading of Section 1441 . 22 In their Petition to Remove , Playtime► alleges that this 23 Court could have federal question jurisdiction if the City' s 24 amended complaint had been filed in federal court . This is 25 not so. As found by Magistrate Sweigert in the prior remand , 26 the e is no ground for federal question jurisdiction in this 27 ame ded complaint which relies solely upon state causes of 28 action . The City' s state amended complaint may collaterally MEM I RANDUM IN SUPPORT OF MOTION WARREN&KELLOGG,P.S. TO 'EMAND TO STATE COURT. . . PAGE 8 ATTORNEYS AT LAW • 100 SO.SECOND ST.,I.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 • 1 rais a federal question, but it does not present a basic 2 federal question . Gully v . First Nat . Bank in Meridian, 299 3 U . S. 109 , 57 S. Ct . 96, 81 L. Ed . 70 (1936) drew a distinction 4 between basic and collateral federal issues and limits 5 removal , because of a general federal question, to cases where 6 the complaint presents a basic federal question . Vol. IA 7 Moore' s, supra, Section 0 . 160, p. 189-192 . An action is not 8 remoTable where the federal question appears in the complaint I 9 by way of an anticipated defense or because the defendant has 10 a d fense which raises a federal question . (See Vol . 111A 11 Moore's, supra, Sec . 0. 160 , p. 191-192 and cases cited 12 footnote 36) . 13 Principles of state sovereignty, as well as petitioner' s 14 failure to fall within the provisions of appropriate 15 jurisdictional statutes , as alleged in their petition ;to 16 remove , requires that this court enter an order again 17 remanding the civil . action entitled "City of Renton ,1 a 18 municipal corporation, et al . , vs . Playtime Theatres , Inc . ; a 19 Washington corporation and Kukio Bay Properties . J.L a 20 WashLngton corporation, et al ." to .-the King County Superior 21 Court . 22 B. The petition for removal haspbeen filed improvidently and without jurisdiction . 23 Therefore , this court must allow in addition to the remand of the case , the payment of 24 just costs incurred by the_Plaintiffs± including reasonable attorneys fees against I 25 the Defendants pursuant to 28 U . S . C . 1 4�171c ) because of the filing ,of the 26 petition for removal in bad faith. 27 Under 28 U . S . C. 1447( c) this Court has the power to 28 order the payment of costs . Under 28 U.S. C. 1446 (d) , a party MEMORANDUM IN SUPPORT OF MOTION WARREN&KELLOGG,P.S. TO REMAND TO STATE COURT. . . PAGE 9 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O!BOX 626 RENTON,WASHINGTON 98057 255-8678 1 1 seeking removal must file a bond ". . .conditioned that the 1 2 defendants . . . will pay all costs and disbursements incurred by 1 3 reason of the removal proceedings should it be determined triat 1 4 the case was not removable or was improperly removed ." 1 I 5 Althought there are cases to the contrary, it has been 1 6 held that the recovery of reasonable attorney's fees expended • I 7 by a party in opposing a petition for removal , are a 8 reco erable cost under 28 U.S.C. 14147( d) . Usually, recovery 9 of attorney' s fees has been limited to cases where some 10 element of bad faith has been involved in . the filing of the 1 11 petition to remove . Eller v. M.L .D . Trust , ' 241 F.Supp . 800 1 12 (D. Mont . 1965 ) ; Smith v . Student Non-Violent Coordinating Gas 13 Committee, 421 F. 2d 522 (5th Cir . 1970) . Algonquin_ 1 14 Transmission Company v . Gregory, 105 F . Supp . 64 (D . Conn . I 15 1952) . 1 16 The City contends that this second removal of the state i 17 court action by Playtime and their identical attorney, isian 18 example of such grievous bad faith filing which has 19 necJssitated the incurral of substantial costs by , .'.t�.he' 20 Plaintiffs . The amended complaint filed ,in .the state court , I 21 like the original complaint before it , clearly does not state 22 gro nds upon which to confer jurisdiction► upon the fede'al 23 court . Particularlyin view of the prior remand, and the i 24 affect of the second removal action upon the Plaintiffs' plan ?5 to present evidence to the Superior Court to obtain a 1 26 preliminary injunction to abate the nuisance , it is City' s 27 con ention that this second removal was done wantonly and 28 I1 1 MEM RANDUM IN SUPPORT OF MOTION WARREN&KELLOGG,P.S. TO PEMAND TO STATE COURT. . . PAGE 10 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 7 1 oppr ssively and has been interposed for the sole purpose of 2 harr sment and delay . 3 In this action , the court should exercise its discretion 4 to grant to the City as taxable costs , its attorney's fees and 5 costs incurred , in opposing the Defendants petition for 6 removal. The amount requested is set forth in separate 7 affi•avits in support of the Motion for Recovery of Costs and 8 Atto ney's Fees . . 9 C. The order of remand as requested must be entered forthwith in order to preserve the . • 10 motion hearing date scheduled in the King County Superior Court on June 13 , 1983 , and 11 in order to preserve the evidence subpoenaed for the hearing which may otherwise not be 12 available by subpoena to the City. 13 The City has very carefully subpoenaed certain evidence 14 which it deems necessary to the presentation in support of its 15 motion for Preliminary Injunction at the hearing on June .13, 16 1983. The filing of the Petition for Removal has disrupted 17 the orderly presentation of evidence in be1alf of the City' s 18 case and threatens to prevent the City from using the legal 19 pro ess of the courts in - order _ to ;,.compel the attendance of .. ,..20 wit esses • and the production :of ._evidence for examination by 21 the Court . The Defendants' and their agents have been 22 sub oenaed to hold in their possession andpto deliver to the 23 hea ing certain films which, when the subpoenas were served , 24 wer in the possession of the Defendants or their agents . If 25 the subpoenas are allowed to lapse because of the pendency of 26 thi removal petition, then the Defendants may claim to be 27 rel ased from the effect of the subpoenas and thereafter 28 MEM RANDUM IN SUPPORT OF MOTION WARREN do KELLOGG,P.S. TO EMAND TO STATE COURT. . .PAGE 11 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.SOX 626 RENTON,WASHINGTON 98057 255-8678 1 insist that the films are no longer in their possession as 2 they were when the original subpoenas were served . 3 For this reason this court must fashion its remedy in an 4 expeditious fashion to preserve the evidence which has been 5 properly subpoenaed so that the City' s hearing on its motion 6 for preliminary injunction in the Superior Court is not • 7 frustrated . 8 CONCLUSION 9 The City respectfully requests an order immediate 10 remanding this cause to the King County, Washington, Superior 11 Cour , and awarding its costs, including attorney's fees , 12 taxable against Playtime Theatres , Inc . and Kukio Bray 13 Prop rties, Inc . in the sums as set forth in the attorneys fee which have been incurred bythe Plaintiffs 'in 14 affidavits , 15 opposition to the Defendants Petition for Removal . 16 DATED: June , 1983 . 17 Respectfully submitted , s 18 19 LAW ;ENCE J. WARREN 20 21 22 ► 23 24 25 26 27 28 MEMO'ANDUM IN SUPPORT OF MOTION WARREN&KELLOGG,P.S. TO REMAND TO STATE COURT. . .PAGE 12 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O 1 BOX 626 RENTON,WASHINGTON 98057 255-8678 OF JR. 4 a© . OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON 0 0 AO ®© G POST OFFICE BOX 626 100 2nd AVENUE BUILDING • RENTON. WASHINGTON 98055 255-8678 0 cmaaaLAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY ®�� DAVID M. DEAN, ASSISTANT'CITY ATTORNEY 0 . 1) 53.��ro•�P March 12, 1982 MARK E. BARBER, ASSISTANT CITY ATTORNEY TO: Barbara Y. Shinpoch, Mayor Members of City Council FROM: Daniel Kellogg, Assistant City Attorney RE : Playtime Theatres vs City of Renton At the hearing on Friday on our Motion to Dismiss Mr. Forbes ' Complaint for lack of jurisdiction, or for abstention of the Court ' s jurisdiction, Magistrate Sweigert indicated his tentative oral opinion was that the Motion should be denied. It appeared that the Magistrate did not feel comfortable extending the rule expressed by the Supreme Court in "quasi-criminal" enforcement actions to apply to this action which seeks declaratory and injunctive relief in addition to damages and attorneys ' fees . As previously, the Magistrate ' s report to Judge McGovern will be . made late next week. Judge McGovern will accept objections and ' written arguments upon the Magistrate ' s report for a period of ten days following the Magistrate ' s report . Thereafter , Judge McGovern will issue his ruling. In all candor, we should expect his decision to affirm the Magistrate ' s report just as we expected affirmance in the temporary restraining order hearing. We enclose to you our Motion and Brief in Support thereof for remand of our State Court action back to the King County Supe*r,i.or, Court . We expect this motion to be argued on April 9 , 1982 # 9 : 30 A.M. We also tentatively agreed to continue Mr. Forbes '' deposition to that afternoon. We expect to give a report to the Council in Executive Session , on Monday night regarding the outcome of the hearing and a recommendation for further legislation based upon the recommendation of Mr. Clancy. Daniel Kellogg DK:nd Encl . i • • E OWE I{ HAY 3 I. 3 � 3 4 CITY CLERK 5 IN THE UNITED STATES COURT OF APPEALS 6 FOR THE NINTH CIRCUIT PLAYTIME THEATRES, INC. , a ) NO . 83-3805 7 Washington corporation , et al . , ) ) DC # 82-59M 8 Appellants , ) RESPONSE OF APPELLEES TO ) AFFIDAVIT OF JACK IR . 9 vs . ) BURNS DATED MAY 26, 1983, ) OBJECTIONS THERETO, AND 10 CITY OF RENTON, et al . , ) REQUEST TO STRIKE ALL OR ) PORTIONS THEREOF 11 Appellees . ) 12 STATE OF WASHINGTON ) 13 ) ss COUNTY OF KING ) I 14 LAWRENCE J. WARREN, being first duly sworn upon oath , 15 deposes and says : I am the City Attorney for The City of 16 Renton and one of the attorneys representing The City 'of 17 Renton herein . I make this Affidavit upon my own personal 18 knowledge . 19 1 . City of Renton acknowledges that it has filed a 20 First Amended and Supplemental Complaint for Declaratory 21 Judgments , Injunctions , Abatement of Moral Nuisances (RbW 22 7. 24, 7. 40, 7.48 and 7.48(A) . ) 23 2. The primary purpose for filing that action is to 24 seek abatement of the violations of the various city 25 ordinances that are the basis of this appeal . As such , 26 allegations concerning those ordinances and the continuing 27 operation of Appellants ' theater are appropriate subject 28 AFFIDAVIT OF LAWRENCE J. WARREN WARREN&KELLOGG,P.S. PAGE 1 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 mat ers for discussion in the Affidavit of Mr . Burns to this 2 Cou t . 3 3. However , the entire second and third pages of r . 4 Burns' Affidavit and the top one-half of the fourth page of 5 his Affidavit address matters that are not before this Court 6 in this action. Those portion of the Affidavit should be 7 str cken for the following reasons. 8 a. The subject matter of the Washington moral 9 nui-ance statutes (RCW Chapter 7.48 and 7.48(A) ) is not before 10 thi- Court on this appeal . 11 b . Arguments concerning the efficacy of those 12 statutes can be made to the Superior Court as defenses . 13 c . The City of Renton was not a party to the 14 Fed ral Court actions which Appellants cites , and has further 15 mad allegations in its complaint , not mentioned to this Court 16 in Le Affidavit of Appellant, which would serve as a legal 17 bas' s for the revival of those portions of the law decla>jed 18 unc nstitutional in the case of Spokane Arcades v . Brocket , 19 631 F. 2d 139 (9th Circuit 1980 ) . Once again this is matter 20 to •e heard by the State court . 21 4. Mr. Burns in his Affidavit notes that House Bill 22 No. 626 is being challenged in the Ninth Circuit as being 23 unc•nstitutional on its face and that Appellants are parties 24 in wo of those appeals . The City of Renton is not a party to 25 eit er of those appeals and has alleged the State law as a 26 bas' s for recovery of its costs and attorney's fees of 27 aba ement . Such a pleading was necessary to state a complete 28 clam for relief to the trial court . If Appellants arguments AFFIDAVIT OF LAWRENCE J. WARREN WARREN&KELLOGI,P.S. PAGE 2 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 • • 1 are correct and there has been a stay issued to the State of 2 Washington against enforcement of this particular statute , 3 that argument can be made in the trial court which can render 4 appbopriate relief to the Appellant. Once again, this subject 5 matter of the Washington moral nuisance statute is not before 6 this Court in this action . 7 5. The Court should also be aware that the ordinances 8 challenged by Appellant on this appeal were enacted well 9 before sexually explicit movies were shown in Renton. 10 Playtime Theatres brought its action challenging the City' s 11 ordinances ,' claiming that it could not show its sexually 12 explicit films in Renton at the location it desired and that 13 the ordinances were a violation of, its rights . Once ' a 14 preliminary injunction against the enforcement of the 15 ordinance was granted , on January 20 , 1983 , Playtime 16 imm diately began showing its sexually explicit films . It ias 17 con inued to show those films to this date despite the fact 18 that the preliminary injuncton was disolved as being 19 "im rovidently granted" by Chief Judge Walter T. McGovern yin 20 his final judgment dated February 18, 1983. Now Playtime 21 claims that the ordinance does not apply to it , or that it is 22 not violating the ordinance, which is a direct contradiction 23 to its earlier position. 24 6. If the Court strikes the portions of the Affidavit 25 of r. Burns that are irrelevant to the proceeding before this 26 Cou t, there is little more than a statement of the action 27 pen ing in the State court, and a claim, supported largely by 28 irrelevant allegations , that there will be irreparable harm ;to AFFIDAVIT OF LAWRENCE J. WARREN WARREN&KELLOGG,P.S. ATTORNEYS T LAW PAGE 3 100 SO. ECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 411 1 App llants if a Stay or Injunction Pending Appeal is not 2 gra ted. However, no facts to support such a broad allegation 3 hav- been stated. 4 5 LAWRENCE J. WARREN 6 7 SUBSCRIBED AND SWORN to on May 31 , 1983. 8 9 10 Notary Public in and for the State of Washington, residing 11 at Renton. 12 13 14 15 0 16 17 18 • 19 20 21 22 23 24 25 26 27 28 AFFIDAVIT OF LAWRENCE J. WARREN WARREN&KELLOGG,P.S. PAG 4 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTO i 98957 255-8678 J. E DANIELCKELLOGGRREN DE WARREN & KELLOGG, P. S. Attorneys at Law “AyI. 15b3 100 South Second Street P.O. Box 626 Renton , Washington 98057 . CITY CLERK (206) 255-8678 JAMES CLANCY Attorney at Law 9055 LaTuna Canyon Road Sun Valley, California (213) 352-2069 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PLAYTIME THEATRES, INC. , a ) Washington Corporation , et al . , ) NO. 83-3805 ) Pl intiffs-Appellants , ) DC # 82-59M ) Western District vs . ) Washington ) (Seattle) THE CITY OF RENTON, et al . , ) ) Defendants-Appellees . ) ) RESPONSE TO APPLICATION FOR STAY , OR ALTERNATIVELY, INJUNCTION PENDING APPEAL AND SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES TABLE OF CONTENTS TABLE OF AUTHORITIES ii I . SUMMAR OF APPELLEE'S POSITION 2 II. RESPON E TO FACTUAL ALLEGATIONS 5 III. ARGUME T 11 A. STAY PENDING APPEAL 11 The request for stay pending appeal should be denied. Appellants are not likely to prevail on the merits and will suffer no irreparable harm if the stay is denied . The Appellee' s substantial governmental interests will be frustrated , and great harm to the public interest will be occasioned by grant of a stay pending appeal . B. INJUNCTION PENDING APPEAL 13 The alternative request for an injunction pending appeal should be denied . The status quo at the commencement of this litigation should be maintained . The request for injunction relief is untimely. Until there has been a declaration in the State court that the films being exhibited are in violation of the ordinance , the Appellants can suffer no jeopardy. C. APPELLANTS CLAIMED FIRST AMENDMENT RIGHTS ARE NOT IMPERMISSABLY INFRINGED BY THE RENTON ORDINANCES 14 1 . The mandate of Young remains unabated . 15 2. The Renton ordinances meet the standards set forth in United States v . O' Brien. 16 3 . Vagueness , Prior Restraint , Equal Protection and Overbreadth 18 IV. CONC USION 21 1 TABLE OF AUTHORITIES Alpine Lakes Protection Society v . Schlapfer , 518 F . 2d 1089 (9th Cir . 1975 ). 11 Basiardanes v . City of Galveston , 682 F. 2d 1203 (5th Cir . 1982) 21 City of Renton vs . Playtime Theatres , Inc. , King County , Washington Superior Court Cause No . 82-2-02344-2 6 Erznoznik v City of Jacksonville , 442 U. S. 205, 95 S. Ct . 2268, 45 L. Ed. 2d 672 ( 1968 ) 15 Evans v . Buchanan , 424 F . Supp . 875 ( Del . 1976 ) 11 Northend Cinemas , Inc . vs . City of Seattle , 90 Wn . 2d 709 , 585 P . 2d 1153 (1978 ) , cert . den . 441 U. S. 946 3, 7, 12, 15, 20 , 2,1 Playtime Teatres , Inc . vs . City of Tacoma , 9th Circuit Court of Appeals Cause No . • 81 -3544 (unpublished opinion dated October 25, 1982) 3, 12, 15, 21 Schad v. Borough of Mt . Ephraim, 452 U. S. 61 , 101 S. Ct . 2176, 68 L. Ed . 2d 671 ( 1981 ) 20 Scripps-Howard Radio v. Federal Communications Commission , 316 U. S . 4, 62 S. Ct . 875 ( 1942) 11 United States v . O' Brien, 391 U. S. 367, 88 S. Ct . 1673, 20 L. Ed . 2d 672 ( 1968) 16 Young v . American Mini Theaters , 427 U. S . 50, 96 S. Ct . 2440, 49 L. Ed . 2d 310 ( 1976 ) 3, 7, 12, 13, 14, 15, 16 , 17., 18, 19, 20, 21 , 1, 1 1 LAWRENCE J. WARREN DANIEL KELLOGG 2 WARREN & KELLOGG, P. S. Attorneys at Law 3 100 South Second Street P.O. Btx 626 4 Renton Washington 98057 (206) 255-8678 5 JAMES CLANCY 6 Attorney at Law 9055 LATuna Canyon Road 7 Sun Valley, California 8 (213) 352-2069 9 IN THE UNITED STATES COURT OF APPEALS 10 FOR THE NINTH CIRCUIT 11 PLAYTII1IE THEATRES, INC. , a ) Washington Corporation , et al . , ) NO. 83-3805 12 ) Plaintiffs-Appellants , ) DC # 82-59M 13 ) Western District vs . ) Washington 14 ) (Seattle) THE CITY OF RENTON, et al . , ) 15 ) Defendants-Appellees . ) 16 ) 17 18 ESPONSE TO APPLICATION FOR STAY, OR ALTERNATIVELY, 19 INJUNCTION PENDING APPEAL AND SUPPORTING 20 MEMORANDUM OF POINTS AND AUTHORITIES 21 22 TO THE HONORABLE JUDGES OF SAID COURT: 23 24 COME NOW Defendants-Apellees, THE CITY OF RENTON, et al , 25 and respectfully respond to the Application for Stay, or ; 26 Alternatively, Injunction Pending Appeal as follows : 27 28 RESPON E TO APPLICATION FOR STAY, OR WARREN&KELLOGG,P.S ALTERN ITIVELY INJUNCTION PENDING APPEAL AND ATTORNEYS AT LAW no SO.SECOND ST.,P.O.BOX 626 SUPPORTING MEMORANDUM . . . PAGE 1 RENTON,WASHINGTON 98057. 255-8678 1 1, ) 1 I . SUMMARY OF APPELLEE' S POSITION 2 'he City of Renton has enacted ordinances restricting 3 the location of an adult motion picture theater within 1 ,000 4 feet f'om certain family-oriented uses . There exists in the 5 City , as found by Chief Judge Walter T . McGovern , a 6 substantial area of 520 acres where such adult motion picture 7 theaters may be located . The ordinances further allow the 8 showing of adult motion picture films throughout the city so 9 long as the films are not shown as a continuing course of 10 conduct in a manner appealing to a prurient interest . 11 he ordinances were passed in three enactments . The 12 first ordinance , No . 3526 , predated Appellants' ownership of 13 the Renton Theater by many months . The remaining two 14 ordinances , Nos . 3629 and 3637 , predated the initial showing 15 of sexually explicit films at the Renton Theater by over six . 16 months . These facts are without dispute . Copies of the three 17 ordina ces are attached hereto as Attachments "A" , "B" and 18 "C" . 19 ppellants have cited a number of facts from the ' 20 Magistrate's Report and Recommendation dated November 5, 1982 . 21 However , those facts are NOT the facts of this case . The 22 United States District Court 's final judgment dated February �3 18, 1983 established the facts of this case which findings 24 bind this Court unless they are clearly erroneous. F. R. C. P . 25 52(a) . In the final judgment Chief Judge McGovern found that 26 the order granting the Preliminary Injunction was 27 " improvidently granted.. " ( Final Order , pages 4 - 13. ) 28 Hereinafter references to Final Order will be to the judgment RESPONSE TO APPLICATION FOR STAY, OR WARREN&KELLOGG,P.S. ATTORALTERNATIVELY INJUNCTION PENDING APPEAL AND .SECON ST P.O. ALTERNATIVELY, 100 SO.SECOND ST.,P. .BOX 626 SUPPORTING MEMORANDUM . . . PAGE 2 RENTON,WASHINGTON 98057 255-8678 1 of Chief Judge Walter T. McGovern dated February 18, 1983 , 2 entered upon the Order dated February 17, 1983 which is the 3 basis of this Appeal . A copy of the Judgment and Order is 4 attached as Attachment "D" . 5 Appellants' request for a stay or injunction should be 6 denied for a number of reasons : 7 1 . Appellants are not likely to prevail on the merits 8 of this appeal. The ordinances being enforced are patterned 9 closely after ordinances approved in Young vs . American Mini 10 Theaters , 427 U. S. 50, 96 S. Ct. 2440, 49 L. Ed. 2d 310 ( 1976 ) , 11 Northend Cinemas , Inc . vs . City of Seattle , 90 Wn . 2d 709, 585 i 12 P. 2d 1153 ( 1978 ) , cert . den. 441 U. S. 946 , (Final Order, 13 page 4 , line 23 through page 5, line 6 , ) , and Playtime 14 Theatres , Inc . vs . City of Tacoma , 9th Circuit Court of 15 Appeals Cause No . 81 -3544 (unpublished opinion dated October 16 25, 1982) . A copy of the last opinion is attached as 17 Attachment "E" . Therefore , Appellants are not likely to 18 prevail on the merits of this appeal . 19 The Appellants will suffer no irreparable harm by 20 �. the denial of the stay or injunction. The only enforcement 21 action available to the City is a civil action requesting a 22 determination of whether the Appellants' operations are in 23 violation of the ordinances . Appellant fear that it might 24 lose tte State Court enforcement action is not sufficient to 25 amount to irreparable injury or irremediable harm. 26 3. Issuance of a stay will cause great harm to the 27 public interest of the City of Renton and its residents in the 28 enforcement of the ordinances which have been held to be RESPONSE TO APPLICATION FOR STAY, OR WARREN&KELLOGG,P.S.. ALTERNATIVELY, ATTORW I INJUNCTION PENDING APPEAL AND .SECON ST.,S AT P.O. 100 SO.SECOND ST.,P. .BOX 626 SUPPORTING MEMORANDUM . . . PAGE 3 RENTON,WASHINGTON 98057 255-8678 ,, 1 constitutional . The important state interests furthered by 2 the or1dinances justify the MINIMAL INTRUSION upon First 3 Amendment rights . (Final Order, page 8, lines 10 - 12, and , 4 page 9-,I lines 1 - 13. ) 5 4 . Denial of the stay or injuction will preserve the 6 status quo . All of the ordinances were passed before 7 Appellants began showing sexually explicit films on January 8 20, 1983. Appellant has invented a "status quo" that did not 9 exist at the beginning of this case , and came into existence 10 only because of the entry of a preliminary injunction, which 11 was vacated as "improvidently granted . " (Final Order , page 12 13, limes 5 - 7) . 13 5. The ordinances are a reasonable "time, place , 14 manner" restriction upon protected expressions . There is a 15 substantial area in Renton where an adult motion picture 16 theater could be lawfully located . (Final Order, page 6 , 17 lines )4 - 9 and lines 23 - 25. ) Sexually explicit films may 18 present y be shown at the present location of the theater as 19 long as they do not amount to a continuous course of conduct 20 appealing to a prurient interest . See Attachments "B" and 21 "C" , Section I. 22 6 . This Court has no jurisdiction to entertain this 23 request for a stay, and should abstain. See Petition for Writ 24 of Mand mus and/or Writ of Prohibition and Supplement thereto 25 which as filed herein in relation to this case under United ' 26 States Court of Appeals for the Ninth Circuit Cause No . 27 82-7721 . 28 RESPONSE TO APPLICATION FOR STAY, OR WARREN&KELLOGG,P.S. ATTORALTERNATIVELY INJUNCTION PENDING APPEAL AND .SECON ST.,YS AT P.O. f 100 50.SECOND ST.,P. .BOX 626 SUPPORTING MEMORANDUM . . . PAGE 4 RENTON,WASHINGTON 98057 255-8678 ,, I, 1 7. Appellants' application for a stay or injunction 2 is un imely. An action has been filed by the City of Renton 3 in th1 State Court seeking enforcement of the ordinances . A 4 copy of the Amended and Supplemental Complaint which has been 5 filed by the City of Renton is attached as Attachment "F" . 6 Until a decision is rendered in that case determining whether 7 Appellants are in fact in violation of the ordinances , 8 Appellants will continue to show sexually explicit films . 9 8. The City of Renton has alleged in the State Court! 10 action that the movies which Appellants are exhibiting are 11 obscene under common law and State law, and further constitute 12 a moral nuisance under State law and are therefore not 13 protected free speech as claimed by Appellants . 14 9. In its request for a Stay, Appellant has asked 15 this Court to overlook the findings and conclusions of Chief 16 Judge Walter McGovern in favor of the findings and conclusions 17 of United States Magistrate Philip K. Sweigert , which 18 Conclusions were rejected by Chief Judge McGovern in the Final 19 Order . No authority or precedent is cited for such a request . 20 Judge McGovern's findings as set forth in in the Final Order 21 are binding upon this Court unless clearly erroneous . 22 F. R. C. P. 52(a) . 23 II. RESPONSE TO FACTUAL ALLEGATIONS 24 COME NOW THE DEFENDANTS-APPELLEES and in response to the, 25 factual allegations contained in Application for Stay or, I; I 26 Alternatively, Injunction Pending Appeal, admit, deny and 27 allege as follows 28 RESPONSE TO APPLICATION FOR STAY, OR WARREN&KELLOGG,P.S. ATTORALTERNATIVELY INJUNCTION PENDING APPEAL AND .SECON ST.,P.S AT .B f 100SO.SECONDST.,P.O.BOX626 SUPPORTING MEMORANDUM . . . PAGE 5 RENTON,WASHINGTON9B057 255-8678 1 1 . Paragraphs 1 and 2 are admitted except that the 2 fictious name of the theater should be the Renton Theater and 3 not the Rex Theater . 4 2. In answer to Paragraph 3 , the allegation that the 5 films exibited are nonobscene speech is denied. Appellees 6 allele that the movies are obscene as alleged in the Amended it 7 and Supplemental Complaint filed in the State Court action 8 entitled City of Renton , et al , vs . Playtime Theatres , Inc . , 9 et al, State of Washington, King County Superior Court Cause 10 No . 8. -2-02344-2. (See Attachment "F) " . 11 3. Paragraphs 4, 6 , 7 and 8 are admitted with the 12 further statement that the ordinances speak for themselves and 13 are substantially more detailed than the partial quotations 14 contained therein . 1 15 4 . Paragraph 5 is admitted , with the exception of the 16 alleg tion that sexually explicit adult films are to be shown 1 17 from "time to time" . The City in its State Court action 18 (See Attachment "F" , pages 6 and 7) has alleged that since 19 January 20, 1983 Appellants have shown nothing but sexually 1 20 explicit adult films which are obscene . I 21 5. Paragraphs 9 and 10 are admitted . However , 22 Appellees object to the references to the Magistrate's Report 23 and Recommendation as a basis for factual allegations in 1 24 support of the requested stay in this Court . It should be ' 25 further noted that Paragraphs 9 and 10 attempt to collaterally 26 attack the legislative processes of a governmental body 27 through the testimony of those not involved as members of that 28 RESPONSE TO APPLICATION FOR STAY, OR WARREN&KELLOGG,P.S. ALTERNATIVELY INJUNCTION PENDING APPEAL AND ATTORNEYS AT LAW f 100 SO.SECOND ST.,P.O.BOX 626 SUPPORTING MEMORANDUM . . . PAGE 6 RENTON,WASHINGTON 98057 255-8678 .. I 1 legislative body. As a result those allegations should be 2 stricken . 3 6 . Appellees specifically deny and object to the 4 alleg tions contained in Paragraphs 11 through 19. The 5 findings and conclusions of the United States Magistrate are 6 not t e findings and conclusions found by Chief Judge McGovern 7 in the Final Order . Therefore , the factual allegations of the 8 Appellants as set forth in the application must be stricken 9 to the extent that the facts alleged are inconsistent with the II 10 Final Order. The actual statement of facts as found by Chief 11 Judge McGovern is as follows : 12 a . In certain areas of the City of Renton films, 13 described in the Ordinance may not be shown as a continuing 14 course of conduct in a manner which appeals to the prurient 15 interest . This intrusion upon First Amendment rights is not 16 subst ntial under the circumstances for several reasons , 17 including : 18 i . The restrictions are slightly narrower 19 than those in the cases of Young and Northend Cinemas . 20 ii . No theater has been closed under 21 Renton's ordinance . 22 iii . There is no content limitation on the 23 creators of adult movies . (Final Order, page 5, line 20 24 through page 6 , line 4 . ) 25 b . There is 520 acres of land in all stages of 26 development available within the City for location of adult 27 theaters . This constitutes a large percentage of the land 28 RESPONSE TO APPLICATION FOR STAY, OR WARREN&KELLOGG,P.S. ATTORNEYS AT LAW ALTERNATIVELY, INJUNCTION PENDING APPEAL AND 100 SO.SECOND ST.,P.O.BOX 626 SUPPORTING MEMORANDUM . . . PAGE 7 RENTON,WASHINGTON 98057 255-8678 1 available for business development within the City . (Final 2 Order , page 6 , lines 4 - 6, and 23 - 24) . 3 c. The message of no individual or group has 4 been silenced . (Final Order , page 7 , lines 1 - 2) . li 5 d. The number of adult motion picture theaters 6 within the City has not been reduced because none existed and 7 none were attempting to establish themselves in Renton prior 8 to the adoption of the ordinance . (Final Order , page 7 , lines 9 2 - 5 . 10 e . Plaintiffs are not virtually excluded from 11' the City for the following reasons : 12 i . Acreage in all stages of development 13 from ^aw land to developed industrial warehouse , office and 14 shopping space is available . 15 ii . The area is criss-crossed by freeways , 16 highways and roads . 17 iii . Ample , accessible real estate is 18 available for the location of adult theaters . (Final Order , 19 page 7 , line 10 - page 8 , line 7 ) . 20 f. Renton ' s interest in protecting and 21 preserving the quality of its neigborhoods , commercial 22 districts and the quality of urban life through effective land 23 use planning are furthered by this Ordinance . (Final Order , ; 24 page 9 , lines 20 - 24) . 25 g . The observed effects on nearby cities 26 provide persuasive circumstantial evidence of the undesirable 27 f adult land uses which Renton seeks to secondary affects o 28 it RESPONSE TO APPLICATION FOR STAY, OR WARREN&KELLOGG,P.s. ATTORALTERNATIVELY INJUNCTION PENDING APPEAL AND .SECONDSTYS P.O. f 100 SO.SECOND ST.,P.O.BOX 626 SUPPORTING MEMORANDUM . . . PAGE 8 RENTON,WASHINGTON 98057 255-8678 , 1, , i I 1 preclude from within 1 ,000 feet of family oriented uses . 2 (Final Order, page 10, lines 16 - 20) . 3 h. The governmental interest asserted by the 4 City of Renton is unrelated to the suppression of free 5 expression . (Final Order, page 11 , lines 8 - 9) . 6 7. In response to Paragraph 20 Appellees admit that ,a 7 Stipulation and Order dated January 31 , 1983 was entered. 'A 8 copy of the Stipulation is attached as Attachment "G" . 9 However , the Appellees deny the conclusions drawn in 10 Appel ants' allegation. Under the Stipulation, all parties 11 agreed that there was no further evidence which would 12 materially add to the evidence already before the Court and 13 therefore " . . . each of the parties reserve(d) the right to 14 argue their theory of the facts and law to the Court." 15 (Stipt;.lation Paragraph 3, Page 2) . 16 8. Paragraphs 21 , 23 and 24 are admitted . 17 9. Paragraph 22 is denied . 18 , 19 20 21 22 23 24 25 26 �7 28 RESPONSE TO APPLICATION FOR STAY, OR WARREN&KELLOGG,P.S. ALTERNA1IVELY INJUNCTION PENDING APPEAL AND ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626' SUPPORTING MEMORANDUM . . . PAGE 9 RENTON,WASHINGTON 98057 255-8678 1 STATE OF WASHINGTON ) ) ss 2 COUNTY OF KING ) 3 L WRENCE J. WARREN, City Attorney for the City of 4 Renton, being first duly sworn upon oath deposes and states : 5 I am th- attorney for the Defendants-Appellees herein. I have 6 read t e foregoing Response to Factual Allegations , know the 7 content. thereof and believe the same to be true . 8 9 LAWRENCE J. WARREN 10 Attorney for Defendants- Appellees 11 12 S BSCRIBED AND SWORN to before me on May 31 , 1983. 13 14 Notary Public in and for the 15 State of Washington , residing at Renton . 16 17 18 19 20 21 22 �3 24 r 25 26 27 28 RESPONS TO APPLICATION FOR STAY, OR WARREN&KELLOGG,P.S.I ALTERNA! IVELY INJUNCTION, PENDING APPEAL AND ATTORNEYS AT LAW f 100 SO.SECOND ST.,PO.BOX 626 SUPPORTING MEMORANDUM . . . PAGE 10 RENTON,WASHINGTON 98057 255-8678 1 III . ARGUMENT 2 A. STAY PENDING APPEAL ' 3 The request for stay pending appeal should be denied . Appellants are not likely to prevail on 4 the merits and will suffer no irreparable harm if the stay is denied . The Appellee ' s substantial 5 governmental interests will be frustrated , and great harm to the public interest will be 6 occasioned by grant of a stay pending appeal. 7 Stays are authorized by F . R . A . P. Rule 8 and case 8 decisions . Scripps-Howard Radio vs . Federal Communications 9 Commission, 316 U.S. 4, 62 S. Ct . 875 ( 1942) . Stays are not 10 granted as a matter of right but only as an exercise of sound 11 judicial discretion . Evans v . Buchanan, 424 F. Supp . 875 12 (Del 1976) . The test for issuance of a stay pending appeal 13 is as follows : the party seeking a stay must show that ( 1 ) it 14 likely will prevail on the merits of the appeal; (2) it will 15 suffer irreparable harm if the stay is denied; (3) other 16 inte ested parties will not suffer substantial harm; and (4 ) 17 no h rm will be done to the public interest . Alpine Lakes 18 Protection Society v . Schlapfer , 518 F . 2d 1089 (9th Cir . 19 1975) . 20 1 . Appellants are not likely to prevail on the merits. 21 The Appellants have not stated facts which can form the basis 22 for this Court to grant a stay. The facts stated by 23 Appelkants are not the facts as found by Judge McGovern. As 24 noted previously , the findings of the trial court are binding 25 upon this Court unless they are clearly erroneous . F. R. C . P. 26 52(a) . 27 As noted in Part C of this Memorandum at page 12, the 28 ordinances in question are closely patterned after the Detroit RESPOISE TO APPLICATION FOR STAY, OR WARREN&KELLOGG,P.S. ALTERNATIVELY INJUNCTION PENDING APPEAL AND ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 SUPPORTING MEMORANDUM . . . PAGE 11 RENTON,WASHINGTON 98057 255-8678 1 ordinance , Young vs . American Mini Theaters , supra , the ' 2 Seattle ordinance , Northend Cinemas v. Seattle, supra, and the 3 ordinance in Tacoma, Washington, which was held by this Court 4 to be constitutional in the case entitled Playtime Theatres , 5 Inc . , et al . vs . Tacoma, et al, U. S. Court of Appeals for the 6 Ninth Circuit Cause No . 81 -3544 , unreported decision dated 7 October 25, 1982. (See Attachment "E" ) The ordinances in 8 question followed the approach approved by the Supreme Court 9 of the United States , the Supreme Court of the State of 10 Washington, and by this Court , and adopted verbatim the 11 definitions previously approved by the Courts . With the 12 approah and technical language having been so approved , 13 Appellants' attack has little likelihood of prevailing. 14 2. Appellants can show no irreparable harm. 15 The Appellants can show no irreparable injury if the 16 stay is denied . No criminal sanctions may be imposed because 17 of a violation of the ordinance . The ordinances require only 18 that the Appellants respond to a civil proceeding for a 19 decision of whether the Appellants' exhibition of sexually 20 explicit films is in violation of the zoning ordinances . 21 Appellants' jeopardy is imminent only following a judicial 22 determination of a violation of the ordinance after a civil' 23 trial . It is untimely to claim injury now, before such 24 judicial determination . 25 3. Appellees and the public interest will suffer 26 substantial harm by the issuance of a stay . 27 The Appellants must show that no other interested 28 parties will suffer substantial harm, and that no harm will be RESPONSE TO APPLICATION FOR STAY, OR WARREN&KELLOGG,P.S. ATTORALTERNATIVELY INJUNCTION PENDING APPEAL AND .SECON ST.,S AT P.O. � 100 SO.SECOND ST.,P. .BOX 626 SUPPORTING MEMORANDUM . . . PAGE 12 RENTON,WASHINGTON 98057 255-8678 . 1 done to the public interest . Such a showing is not possible 2 in this case . The City of Renton and its residents have a 3 substantial and continuing interest in the maintenance and 4 integri y of its zoning code . The abatement of uses which are 5 in vio ation thereof, including the Appellants' use , must 6 occur a the earliest possible date to avoid the undesirable 7 secondary effects of Appellants' sexually explicit film fare 8 which are shown in a continuing course of conduct and in a 9 manner hich appeals to a prurient interest . The minimal 10 intrusi n upon Appellants' claimed First Amendment rights is 11 not suf icient to justify the issuance of a stay of Chief 12 Judge cGovern' s decision pending this appeal . Young vs . 13 America Mini Theaters , at 2453. 14 B INJUNCTION PENDING APPEAL 15 The alternative request for an injunction p nding appeal should be denied . The status quo 16 at the commencement of this litigation should be maintained. The request for injunctive relief is 17 untimely . Until there has been a declaration in the State court that the films being exhibited are 18 in violation of the ordinance, the Appellants can suffer no jeopardy. 19 Appellants came to town with a lawsuit in their hand 20 directl challenging the Renton ordinance . No adult motion 21 picture films were shown until the issuance of the Preliminary 22 Injunct 'on . At that juncture Appellants immediately began 23 showing a continuous exhibition of sexually explicit movies . 24 (See Am nded and Supplemental Complaint attached as Attachment 25 26 "F" , pa es 6 and 7 ) . When the injunction was dissolved as "improvidently granted" by the ruling of Chief Judge McGovern 27 Appellant continued to show these films . It is a factual and 28 RESPONS TO APPLICATION FOR STAY, OR WARREN&KELLOGG,P.S. ALTERNA IVELY INJUNCTION PENDING APPEAL AND ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 SUPPORT NG MEMORANDUM . . . PAGE 13 RENTON,WASHINGTON98057 255-8678 1 leg 1 fiction that injunctive relief would preserve the status 2 quo pending appeal . Rather , it would have the effect of 3 furtaering the deterioration of the neighborhoods which the 4 City sought to avoid by means of its ordinances , a legitimate 5 basis for the passage of this type of ordinance under Young 6 vs . American Mini Theaters , supra , and as acknowledged by 7 Chief Judge McGovern . (Final Order, page 9, lines 15 - 19 ) . 8 Appellants' request for injunctive relief is untimely. 9 The my enforcement action pending against Appellants is the 10 State Court action to seek a declaration that the films being 11 shown violate the ordinance , are obscene , and amount to a 12 moral nuisance under State law. Until there is such a finding 13 there is no intrusion on Appellants' ability to show its 14 films except the very existence of the Ordinances , which 15 Appellants are routinely and flagrantly ignoring. 16 C. APPELLANTS ' CLAIMED FIRST AMENDMENT RIGHTS ARE NOT IMPERMISSABLY INFRINGED 17 BY THE RENTON ORDINANCES . 18 ppellants have dedicated a substantial portion of their; 19 brief to a review of a number of cases dealing with prior', 20 restraint , overbreadth and vagueness . Yet Appellants have not , 21 quoted from the leading case , Young vs . American Mini ' 22 Theaters , which controls each of these areas and is ', 23 definitive. The City of Renton in passing its ordinances 24 adopte large portions of the ordinance approved in Young. 25 The Yong approach was further narrowed by including the 26 requirement that no violation occurs unless there is a 27 continuous course of conduct of showing sexually explicit 28 films in a manner appealing to a prurient interest . RESPONSE TO APPLICATION FOR STAY, OR WARREN&KELLOGG,P.S.ATTOR ' ALTERNATIVELY, INJUNCTION PENDING APPEAL AND .SECON ST.,S AT P.O. 100 SO.SECOND ST.,P. .BOX 626 SUPPORTtNG MEMORANDUM . . . PAGE 14 RENTON,WASHINGTON 98057 255-8678 !I 1 1 . The mandate of Young remains unabated. 2 Appellants must in some fashion overcome the mandate of 3 Young vs . American Mini Theaters , supra. See also Northend 4 Cinemas , Inc . vs . Seattle , supra , and Playtime Theaters , Inc . 5 vs . Tacoma, 9th Cir . Cause No . 81 -3544 , unreported decision 6 dated October 25, 1982 . In Young the Court holds that the 7 language of the Detroit ordinance (which is virtually 8 indentical to the language of the Renton ordinances) is not 9 unconstitutionally vague as to the theater operators who (like 10 the Appellant here) propose to offer adult film fare on a 11 regul r basis . Young, at 59. Furthermore , complaints of 12 vagueness may not be raised on behalf of others if the 13 regulations deterrent effect on legitimate expression is not 14 "both real and substantial" and the regulation is "readily 15 subje t to a narrowing construction by the state courts ." 16 Young, at 60, quoting from Erznoznik vs . City of Jacksonville , 17 422 U. S. 205 , 216, 95 S. Ct . 2268, 45 L. Ed . 2d 125. 18 art II of the plurality opinion contains the essence of 19 the court' s decision relating to the power of the municipality 20 to co trol the location of theaters exibiting sexually 21 explicit material . There the court noted that the ordinance 22 imposed no limit upon the total number of adult theaters which 23 may operate in the City, and that " . . . the market for this 24 commodity is essentially unrestrained ." Young, at 62. The 25 Court concluded : 26 " . we have no doubt that the municipality P Y may control the location of theaters as well as the 27 location of other commercial establishments , either by confining them to certain specified 28 commercial zones , or by requiring that they be RESPONSE TO APPLICATION FOR STAY, OR WARREN&KELLOGG,P.S. ALTERNATIVELY INJUNCTION PENDING APPEAL AND ATTORNEYS AT LAW f 100 SO.SECOND ST.,P.O.BOX 626 SUPPORTING MEMORANDUM . . . PAGE 15 RENTON,WASHINGTON 98057 255-8678 1 dispersed throughout the City. The mere fact that the commercial exploitation of material protected 2 by the First Amendment is subject to zoning, and other licensing requirements , is not a sufficient 3 reason for invalidating these ordinances . 4 " . . . 5 "Reasonable regulations of the time , place and manner of protected speech , where those 6 regulations are necessary to further significant governmental interests , are permitted by the First 7 Amendment . . . " At 62-63. 8 Justice Powell' s concurring opinion commends the Detroit 9 type ordinance as " . . . an example of innovative land use 10 reg lation , implicating First Amendment concerns only 11 incidentally and to a limited extent ." At 73. Through 12 reliance upon the four-part test of United States vs . O 'Brien, 13 391 U. S. 367, 88 Sup . Ct . 1673, 20 L. Ed. 2d 672 ( 1968 ) , 14 Justice Powell reached the identical conclusion as that of the 15 plurality opinion--that this particular strategy of urban 16 planning has no significant effect upon accessibility of 17 erotic material. Therefore the ordinance did not constitute a 18 stifling of expression. Stevens , J. , at 34, n. 35; Powell , 19 J. , at 80, N. 4. 20 2. The Renton Ordinances meet the standards set forth in United States 21 vs . O 'Brien. 22 The ordinances in question here also satisfy the four- 23 part test of O ' Brien , supra . First , enactment of the 24 ordinance is within the police power of the City of Renton. 25 Second, as noted by Justice Powell in Young, the interests 26 furthered by the adoption of the ordinances are important and 27 substantial . 28 RESPONSE TO APPLICATION FOR STAY, OR WARREN&KELLOGG,P.S. ALTERNATIVELY, INJUNCTION PENDING APPEAL AND ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 SUPPORTING MEMORANDUM . . . PAGE 16 RENTON,WASHINGTON 98057 255-8678 1 "Without stable neigborhoods, both residential and commercial , large sections of a modern City 2 quickly can deteriorate into an urban jungle with tragic consequences to social , environmental and 3 economic values . While I agree with respondents that no aspect of the police power enjoys immunity 4 from searching constitutional scrutiny, it also is undeniable that zoning , when used to preserve the 5 character of specific areas of a City, is perhaps ' the most essential function performed by local 6 government , for it is one of the primary means by which we protect that sometimes difficult to 7 define concept of quality of life'" . Young, at 80. ( citation omitted . ) 8 Third , the governmental interest asserted is entirely 9 unrelated to the suppression of free expression. Ordinance 10 No . 3526 was enacted nearly one year before Appellant 11 announced their intention to operate an adult motion picture 12 theater within the City, and after a period of study which 13 pre-d ted the enactment of the ordinance by nearly another 14 year . Had the City Council intended to restrict the message 15 purveyed by adult theaters , the legislation adopted would have 16 compl tely prohibited their location , or substantially 17 restricted their number . 18 Finally, the incidental restriction upon Appellants' 19 claimed First Amendment rights is not greater than is 20 essential . The restrictions imposed are the product of 21 careful legislative study in order to protect the quality of 22 life enjoyed by residents . As the Supreme Court stated : 23 . the city' s interest in attempting to 24 preserve the quality of urban life is one that must be accorded high respect . Moreover , the city 25 must be allowed a reasonable opportunity to ecperiment with solutions to admittedly serious li 26 problems ." Young, at 71 . 27 28 RESPONSE TO APPLICATION FOR STAY, OR WARREN&KELLOGG,P.S. • ATTORALTERNATIVELY INJUNCTION PENDING APPEAL AND .SECON ST.,S AT P.O. f 100 SO.SECOND ST.,P. .BOX 626 SUPPORT�,NG MEMORANDUM . . . PAGE 17 RENTON,WASHINGTON 98057 255-8678 I ' 1 3 . Vagueness , Prior Restraint , Equal Protection and Overbreadth. 2 Ordinances such as the ones before this Court have been 3 subject to attack on four grounds : Vagueness , Prior 4 Restraint , Equal Protection, and Overbreadth. 5 a . Vagueness : 6 Here as in Young, there can be doubt as to the 7 applicability of the ordinances to the operations of the 8 Appellants . 9 "We find it unnecessary to consider the validity 10 of either of these arguments in the abstract . For even if there may be some uncertainty about the 11effect of the ordinances on other litigants , they are unquestionably applicable to these 12 respondents . " Young vs . American Mini Theaters , at Page 2446. 13 Appellants are faced with no dilemma. The Appellants have 14 continually shown film fare exhibiting "specified sexual 15 activities" and "specified anatomical areas" in a manner which 16 appeals to a prurient interest . Now it only remains for the 17 King County Superior Court to rule upon the City' s allegation 18 of such a course of conduct and to restrain the continued 19 violation of the zoning code . Abatement of the zoning 20 violation may only occur after a judicial finding against 21 Appellants . Therefore , no arbitrary and capricious action of 22 the City can occur upon enforcement . 23 The terms which are the component parts of the 24 definition of "used" are, for the most part, carefully crafted 25 terms of art from prior judicial decisions . The ordinances 26 are not unconstitutionally vague . Their applicability to the 27 Appellants is clear . 28 RESPONSE TO APPLICATION FOR STAY, OR WARREN&KELLOGG,P.S. ALTERNATIVELY, ATTOR INJUNCTION PENDING APPEAL AND .SECON ST.,S AT P.O.BOX 626 SUPPORTING MEMORANDUM . . . PAGE 18 RENTON,WASHINGTON 98057 255-8678 1 b . Prior Restraint: 2 Appellants claim that the ordinances are a prior 3 restraint because of the claimed necessity of prior 4 administrative action to allow the opening of an adult motion 5 picture theater. Such claim is false . Chief Judge McGovern 6 found that 520 acres of land is presently available for 7 development of an adult motion picture theater . No "special 8 use" or other permit is required for location of an adult 9 motion picture theater in the business or commercial zones of 10 the City, provided that the separation from family-oriented 11 uses is maintained as required by the ordinances . Therefore , 12 Chief Judge McGovern found that the ordinance imposed no 13 substantial restriction upon the market for this commodity. 14 "The ordinances are not challenged on the ground that they impose a limit on the total 15 number of adult theaters which may operate in the city of Detroit . There is no claim that 16 distributors or exhibitors of adult films are denied access to the market or, conversely, that 17 he viewing public is unable to satisfy its appetite for sexually explicit fare . Viewed as an 18entity , the market for this commodity is essentially unrestrained . " Young vs . American 19 Mini Theaters , at 2448 20 Equal Protection 21 ,; . . the city' s interest in the present and future character of its neighborhoods adequately 22 supports its classification of motion pictures . e hold that the zoning ordinances requiring that 23 4dult motion picture theaters not be located Within 1 ,000 feet of two other regulated uses does 24 not violate the Equal Protection Clause of the Fourteenth Amendment . " Young vs . American Mini 25 Theaters , at 2453 26 " . . . we are also persuaded that the 1 , 000-foot restriction does not , in itself , create an 27 impermissible restraint on protected cmmunication . The city's interest in planning 28 and regulating the use of property for commercial RESPONSE TO APPLICATION FOR STAY, OR WARREN&KELLOGG,P.S. ALTERNATIVELY, ATTORINJUNCTION PENDING APPEAL AND .SECON ST.,P.S AT .B 100SO.SECONDST.,P.O.BOX626 SUPPORTING MEMORANDUM . . . PAGE 19 RENTON,WASHINGTON 98057 255-8678 1 purposes is clearly adequate to support that kind 1 of restriction applicable to all theaters within 2 the city limits . " Young vs . American Mini Theaters , at 2448 3 4 d . Overbreadth 1 The Appellants claim that the ordinances are overbroad I 5 and that they include within their prohibitions matters beyond 6 7 the specific evils intended to be controlled . Appellants further claim that the' definitions contained within the 8 1 ordinances for an "adult motion picture theater". and "use" 9 lack precision. These definitions were approved by th.e 10 Supreme Court of the United States and the State of Washington 11 1 in t e cases of Young vs . American Mini Theaters , supra, and 12 13 Northend Cinemas v. Seattle , supra. See Northend Cinemas vs . Seattle , at pages 715 and 716 attached hereto as Attachment 14 1 "H" . The assertion that the definitions include matter 15 containing mere nudity ignores the definition. of "use" which 16 requires a continuing course of conduct of exhibiting 17 "specified sexual activities" and "specified anatomical areas" 18 in a m .nner which appeals to a prurient interest . 19 Thus , the ordinance in question is a narrowing of the 20 ordinance approved by the United States Supreme Court in Young 21 vs . American Mini Theaters . The ordinance is not 122 unconstIitutionally overbroad . 23 Exceptions to the doctrine set forth in Young vs . 24 I1 American Mini Theaters , supra, have been limited primarily to 25 those 'instances in which a protected use has been banned 26 outright, as in Schad vs . Borough of Mt . Ephraim, 452 U. S. 61 , 27 101 S. Ct . 2176 , 68 L. Ed . 2d 671 ( 1981 ) , or have been 28 RESPONSE TO APPLICATION FOR STAY, OR WARREN&KELLOGG,P.S. ALTERNATIVELY INJUNCTION PENDING APPEAL AND um AT LAW f 50.SECOND ST.,P.O.BOX 626 SUPPORTING MEMORANDUM . . . PAGE 20 RENTON,WASHINGTON 98057 255-8678 1 effectively excluded by confining the use to the most 1 2 unattractive, inaccessible and inconvenient areas of the city, 3 as In Basiardanes vs . City of Galveston , 682 F . 2d 1203, 1214 1 4 (5th Cir . 1982 ) . As has been stated many times , there are II 5 large areas of the City of Renton in all stages of development 6 and easily accessible which may be utilized for Appellants' 7 adult motion picture theater. There can be no claim of 8 exclusion or effective exclusion. Therefore this case is 9 controlled by Young vs . American Mini Theaters . 10 IV. CONCLUSION 11 The ordinances in question on this appeal are closely 12 patte ned after the ordinances and definitions approved by the 13 United States Supreme Court in Young , supra, by the Washington 14 Supreme Court in Northend Cinemas v. Seattle, supra, and by 15 this Court in Playtime Theatres , Inc. v . Tacoma , supra. Under 16 the findings and conclusions of Chief Judge Walter T. McGovern 17 in the final judgment in the trial court, which findings are 18 binding upon this Court unless clearly erroneous , F. R. C. P. 19 52( a) , it is unlikely that Appellants will prevail on the 20 merits of this appeal. 21 Furthermore , Appellants will sustain no irreparable harm 22 by denial of the relief requested . The only enforcement 23 remedy available to the Appellees under the ordinances is a 24 civil action for a judicial determination whether the 25 Appellants' operations are in violation of the zoning code . 26 By contrast , issuance of the stay or injunction pending appeal 27 would substantially frustrate the public interest of 28 I RESPONSE TO APPLICATION FOR STAY, OR WARREN&KELLOGG,P.S. ALTERNATIVELY INJUNCTION PENDING APPEAL AND ATTORNEYS AT LAW i 7 100 SO.SECOND ST.,P.O.BOX 626 SUPPORTING MEMORANDUM . . . PAGE 21 RENTON,WASHINGTON 98057 255-8678 1 enforcement of the ordinances found to be constitutional by 2 Chief Judge McGovern. 3 Finally, issuance of injunctive relief will not preserve 4 the status quo at the commencement of this litigation when no 5 adult motion picture theater was in operation . 6 Therefore , Appellants' application for a stay , or 7 alternatively, injunction pending appeal should be denied . 8 DATED: May 31 , 1983. 9 10 LAWRENCE J. WARREN 11 Warren & Kellogg , P. S. Attorneys for Appellees 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESPONSE TO APPLICATION FOR STAY, OR WARREN&KELLOGG,P.S. ATTORALTERNATIVELY INJUNCTION PENDING APPEAL AND .SECON ST P.O. f 100 SO.SECOND ST.,P. .BOX'626 SUPPORTING MEMORANDUM . . . PAGE 22 RENTON,WASHINGTON 98057 255-8678 1. .k , - ...,_,,... , • . .„ . . . + . • .• , „ . I . . .. ... . . , 01 Imo, Ff.... CITY OF RENTON, WASHINGTON �i ORDINANCE v:- NO. 3526 j . AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON, it RELATING TO LAND USE AND ZONING THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO II ORDAIN AS FOLLOWS: . SECTION I: Existing Section 4-702 of Title IV (Building Regulations) of Ordinance No. 1628 entitled "Code of General Ordinances of t-le City of Renton" is hereby amended by adding the following 1 \ subsections: . 1. "Adult Motion Picture Theater": An enclosed building used for presenting motion picture films, video cassettes, cable television, or any other such visual media, distinguished or characterized by an emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas" as hereafter defined, for observation by patrons therein. • 1 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. I 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 I of the areola; and 1• (h) Human male genitals in a discernible turgid state, I I even if completely and opaquely covered. CERTIFICATE •-1- I, the undenig,ed, ('�Ecoet� /1 •. rk of the _ I, City of Renton. Washington, certify that this A-DCits a true and MTV CO Of.C44)./. A,,/CC...g.....3.-” ..6.. . Subscribed Sealed this -i/`Ida./of .ww'ti.g, 19E"o4 ` /� ,/ " City�L1LCG�t1 ,Cleft c'-J l.:l .. I X,; . . •� 1 SECTION II: There is hereby added a new Chapter to Title , IV (Building Regulations) of Ordinance No. 1628 entitled "Code of • Genera Ordinances of the City of Renton" 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, • I A-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 measured ' by fol owing a straight line, without regard to intervening- buildings, from t e nearest point of•the property 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 passa,e, approval and thirty days after its publication. PASSED BY THE CITY COUNCIL this 13th day of April , 1981 b ores 'A, City C 1 e ead" "G erk APPROVED BY THE MAYOR this 13th day of April. , 1981. �a..l.►......,�j..S o 4, Approved as to form: Barbara Y. Shinpoc , Mayor 4r ure ce ren, City Attorney Date cf Publication: 1981 • May 15, • iiiii,..._ . • ...a: la ,:IMb,7/1.gN1 1 • --— 7 •' ' QIUNIf'or RING /{1) MceAin-fen, �a /IL.I:a,r•FIl ,,.+ (?7Mrebf erld h I.e Per W Crl/at■a.la. copy of d[Mcnce Me ,j� l'M lorecase Orernlnce is a Mae celr mom my aflKc,end do Wrthe, /....N MtCilr ofIlrnlon,al p+pre.e ern Me • _x to 4w. mid,f>et IM aen:lye Inn/aMy lad'moiling In Whom M•Ife/e0r I d Assam.PC csunlo tit or,kW end MN IAe cell of the coy . ab as* • CI:Y OF RENTOt7. WASIIIi1CrOu r • ORDINANCE NO. 3E29 AN ORDINANCE OF THE CITY OF RENTOa, 1JAStIINC'f0;!RELATING TO LAND USE AND ZONING • • WHEREAS, on April-13. 1981, the City Council of the City . of Renton adopted Ordinance No. 3526, which Ordinance was approved by the ;Mayor on April 13, 1961. 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 -R•', i f " opinion of the United States Supreme Court in the case of Younn v. t •/, American Rini Theaters_, 427 US 50, and of the Supreme Court of l . - the State of Washington in the case of Northend Cinemas v. Seattle, • • M, 90 Wn 2d. 709 - . to limit the location of adult motion picture theaters, as that term is define d therein o to promote ote the City of Renton's great interest in protecting and preserving the quality of its 4 neighhorloods•, commercial districts, and the quality of urban life through . ffective land use planning; and WHEREAS, the City Council, through its Planning and I _ Development Committee, held a public meeting on March 5, 1931, to receive testirion, from the public concerning the subject of regulation r' of adult entertainment land uses, nt which the following testimony was received which the City Council believes to be true, and which formed th basis for the adoption of Ordinance No. 3526: . �. Areas within close walking distance e and multiple family dwellings shouldbe free lofladult • entertainment land uses. • 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 r c h are not in nroximity to resid,,ftialuses , churches , parks le and other public facilities , and schools. 4. The image of the City of Renton as a pleasant and attractive place to reside will he adversely �-ti. • J ..,: affected by the presence of adult entertainment • land uses in close proximity to residential land • • uses, churches, parks and other public facilities, • and schools. S. Regulation of adult entertainment land uses should • be developedto 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 d. 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 perimeters . of its policy regarding bussing of students, so that • . • students walking to school will not be subjected to s• confrontation'with the existence of adult entertain- . • ment land uses. . t . 8. The Renton School District finds that location of adult entertainment land uses in areas of the City which are in close proximityto schools, and • • ' commercial areas pat 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 • 1 its students will be negatively affected by location 1 of adult entertainment land uses in close proximity to location of schools. • 10. Adult entertainment land uses should be regulated 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 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 vicinity of such adult entertainment land uses. . 13. Merchants in the commercial area• of the City are concerned about adverse impacts upon the character - anJ 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 -2- J • adult entertainment land uses in close proximity 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 I - City. Such adverse affect on property'values will cause the loss of some commercial establishments followed' by a blighting effect upon the commercial '.: districts within the City, leading to further deterioration of the commercial quality of the City. „ . ..- ::: ' . .f. 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 areas of the City in which they are located ja' - and cause a blighting effect upon the city. The •• A. skid row effect, which is evident in certain parts lei , of Seattle and other cities, will have a significantly • • • . larger affect upon the City of Renton than other n;. major cities .due to the relative sizes of the cities. 1 a . • . 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. • 4 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 attendance 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 protection 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 lanu 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. . 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. 27. A stable atmosphere for the rearing of families • cannot be achieved in close proximity to adult entertainment land uses. - 21. The initial location of adult entertainment land uses will lead to the location of additional and . similar uses within the same vicinity, thus 'multiplying ithe adverse impact of the initial location of adult i entertainment land uses upon the residential, churches , parks and other public facilities , and schools , and . the impact upon the image and quality of the character of the community. -3- . • . and ' • .WHEREAS. since the adoption of Ordinance No. 3526. it1111[ has come to the attention of the City Council of the City of Renton ` that it ould be appropriate to set forth in writing the findings • Pf of fact which were the basis for the adoption•by the City Council - of Ordinance No. 3526; and ' I ' WHEREAS. the City Council finds that, in order to choose , the leas restrictive alternative available to accomplish the purposes for which Ordinance No. 3526 was adopted, and to include a severabilii • clause which was inadvertently omitted from Ordinance No. 3526, and to make certain other technical amendments to Ordinance No. 3526, • • that it it necessary for the City Council to adopt legislation . . amending Ordinance No. 3526 to accomplish 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 hearing 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. Nany parents have chosen the City of Renton in • which to raise their families because of the lack of pornographic entertainment outlets with its influence upon children external to the home. 2. Location of adult entertainment land uses on the . main commercial thoroughfares. of the City gives t an impression of legitimacy to. and causes a loss i of sensitivity to the adverse affect of pornography upon children. established family relations, respect 1 for marital relationships and for the sanctity of marriage relations of others , and the concept of non-aggressive consenual sexual relations. 1 • -4- ' i i . J 1 . a . • :. ..,: . .. .. ' . 3... Citirens from other cities and King County will travel to Renton to view adult film fare away from areas in which they are I;gown and recognized. Property values in the areas adjacent to the adult entertainment land uses will decline, thus causing • T a blight upon the commercial area of the City of Renton. 5. Location of adult entertainment land uses within • Its f; neighborhoods and commercial areas of the City of l• Renton is disrupting to youth programs such as Boy r • 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 residenti:,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 morality. Pornographic material has a degrading effect upon the relationship between spouses. • NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASH!: • • DO ORDAIN AS FOLLOWS: • SECTION I_: Existing Section 4-702 of Title IV (Building • Reguiat ons) of Ordinance No. 1628 entitled "Code of General Ordinance 1 of the City of Renton" is hereby amended by adding the following sub- section : • "Used". The word "used" in the definition of "Adult moti . picture theater" herein, describes a continuing course of conduct of exhibiting "specific sexual activities" and "specified anatomical are:' I - 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 Ordinance of the City of Renton" is hereby amended by aiding the following subsecii. (C) Violation of the use provisions of this section is deck' to be public nuisance per. se, which shall be abated by City Attorney: by way of civil abatement procedures only, and not by criminal prosecul (D) Clothing in this section is intended to authorize, • } legali a or permit the mtablishment , operation or maintenance of any business, building or use which violates any City of Renton ordinance • 1 or statute of the State of Washington regarding public nuisances , • 1 sexual conduct, lewdness. or obscene or harmful matter or the exhibition or public display thereof. • 1I 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 x,' to read as fbllous: - ' • N. • 2. One thousand feet (1,000') of any public or private school. SECTION IV: City of Renton Ordinance No. 3526 is hereby -.! amended by a ding the following section' to read as follows: it. ' If nv section, subsection, sentence, clause, phrase or 1 • any portion'_of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent t' jurisdiction; such decision shall not affect the validity of the • . • I� .' . remaining portions of this ordinance: The City Council of the City ,of Renton h rebv declares that it would have adopted City of Renton . Ordinance N . 3526 and each section, subsection. sentence, clause, phrase or p rtion• thereof irrespective of the fact that any one or more sections. subsections, sentences, clauses, phrases or portions be declared invalid or unconstitutional. E SECTION V: If any section, subsection, sentence, clause, phrase or a y portion of this ordinance is for any reason held to be invalid or nconstitutional by the decision of any court of competent I jurisdictio , such decision shall not affect the validity of the remaining p rtions 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 Ithereof irrespective of the fact that any one or more sections . sub- 1 sections, sentences , clauses , phrases or portions be declared invalid i or unconstitutional. . St TIO;I VI: The City Council of the City of Renton finds and declare.: that an emergency exists because of the pehdency of i • litigation a;;ainst the City of Renton involving the subject matter of • this ordinance, and potential liability of the City of Renton for damages as pleaded in Oat litigation, ana that the immediate adoption -6- 11 ...... . • _ ,. . . i _... of this . • , . ,,. . ,.. . _..... H. ,.. . - . .. _ . • . • . . it • • • .. '';:i'• is ordinance is necessary for the Immediate preservation of . . .. ...... . public peak, health, and safety or for the support of city government • .,, :.= and its existin& public institutions and the integrity of the zoning of the City of Renton._ Therefore, this ordinance shall take effect . .. . immediately upon its passage and approval by the mayor, A:I ...- i• t:..1 PASSED BY THE CITY COUNCIL this 30 day of Hay. 1982. • . . • .... rz• ;:t: e ores . . ea , .ity drerk : • -I, , . :.".• ••:: AP ROVED BY THE MDR this 30 day of Hay. 1982. , r- • . I .4i: • _ . Ita14.k.b., •S k..111.90CIA. . ? EiF5-a-i-1411-1tinpoch-,-NaTiir- . . . ,Approved as to form: • . • . . •: --„ . . . (1..24%,.,/,..i: .,,p4/6„....„ • . Lawrence .1.7 V.11rr en-.7.:ISFXIZE.Foftigy • . . -, • Date of Publication: Hay 7. 1982 . ..i':• . il• • vt: P:- • . .. . ./. . . • • • • • - • • . . • . . , 1 . - • . • , . , i . ! ' • . • 1 . • • -7- . . - i 1 i • . . CITY OF RENTON, WASHINGTON • . p. 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 I' DELETING THE EMERGENCY CLAUSE AND RE-ENACTING • THE REMAINDER THEREOF • • WHEREAS, on April 13, 1981, the City Council of the City I' of Renton adopted Ordinance No. 3526, which Ordinance was approved ' . by the Mayor on April 13, 1981, and became effective by its own II terms on June 14, 1981; and . 'WHEREAS, on May 3, 1982, the City Council of the City of l' Renton adopted Ordinance No. 3629 amending Ordinance No. D526, u which Ordinance was approved by the Mayor on May 3, 1982, and' became effective o its passage and by the terms of the Ordinance; d and WHEREAS th City Council wishes to remove the emergency p clause from Ordinance No. 3629 and re-enact the remainder of Ordinance No. 3629 in its entirety; and WHERREAS, 't was the intention of the City Council of the City of Renton. in he adoption of Ordinance No. 3526 to rely upon I the opinion of the United States Supreme Court in the case of Young v. American Mini Theaters, 427 US 50, and of the. Supreme Court of the State of Washingto in the case of Northend Cinemas v. Seattle_, 7 90 Wn 2d, 709, to limit the .location of adult motion picture theaters as that term is defined therein, to promote the City of Renton's great interest in rotecting and preserving the quality of its neighborhoods , co ercial districts , and the quality of urban life II through effective and use planning; and WHEREAS; the City Council, through its Planning and 11 Development Committee, held a public meeting on March 5, 1981, to II C[Allf1CA?E . II I, C+e enders ++ed,DEL cces A, MrA-D 'Civic of Me C?ty of 4i i rtlor+, W a 045€10r1, certify That this is a W. arad orx ct oo�of.Q.R4.:N Ft v?C.t.....�!�R...a4�.3.7 .',ubsuibed and Seafed Mit alb day cf cZk.00. 19%. ...,L. .u:.0 27. z.a. :.,: I1 C,� Ce r 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 • 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, parksII 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 sch ools. • 5. Regulaltion 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- tainmefit land uses. 7. The Renton School District opposes a location of adult entertainment land uses within the perimeters • • of itspolicy regarding busing of students, so that students walking to school will not be subjected to confrontation with the existence of adult entertain- ment 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 qualityl 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 adul entertainment land uses in close proximity to loca ion of schools. -2- 10. Adult entertainment Land uses should be regulations • by zoning to separate it from other dissimilar uses • just as any other land use should be separated from - 1 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, incast and assaults in the vicinity of such adult • entertainment land uses. 13. Merchants in the commercial aria of the City are concerned about adverse impacts upon the character ' andlquality of the City in the event that adult entertainment land uses are located within close proximity to residential uses, churches, parks and j other public facilities, and schools. Location of adult entertainment land uses in close proximity to residential uses, churches, parks and other . public facilities, and schools, will reduce retail trace to commercial uses in the vicinity, thus ' red cing property values and tax revenues to the '• City. Such adverse affect on property values will • eaue the loss of some commercial establishments , followed by a blighting effect upon the commercial districts within the City, leading •to further • deterioration of the commercial quality of the City. . 14. Exp rience in numerous other cities, including Seattle, Tac ma and Detroit, Michigan, has shown that location of dult entertainment land uses degrade the quality . of the area of the City in which they are located andlcausc 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 upon the City of Renton than 'other majthr cities due to the relative sizes of the cities. 15. No vidence 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 waling distance of churches and other religious fac cities will have an adverse effect upon the ministry of such churches and will discourage attendance at such churches by the proximity of , adult entertainment land uses. -3- • 1 17. A reasonable regulation of the location of adult • entertainment land uses will provide for the protection • of she image of the community and its property values, and protect the residents of the community from the adv rse 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 ent rtainment land uses. 20. The initial location of adult entertainment land . use will lead to the location of additional and sim lar uses within the same vicinity, thus multiplying • the adverse impact of the initial location of adult ent rtainment land uses upon the residential, churches, par s and other public facilities, and schools , and the impact upon the image and quality of the character of the community. and WHEREAS, since the adoption of Ordinance No. 3526, it • has come to the -ttention 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 restricFive alternative available to accomplish the purposes for which Ordinance No. 3526 was adopted, and in include a severability , clause which was 'nadvertently omitted from Ordinance No. 3526, and to make certain other technical amendments to Ordinance Igo. 3526, that it is necessary for the City Council to adopt legislation amending Ordinance No. 3526 to accomplish the foregoing purposes ; and I 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, a which public hearing the City Council received i comments from the public on that subject matter at which the following testimony was rec ived, which the City Council believes to be true, 11 -4 • . and which; toge her with the findings heretofore set forth as the basis for the a option of Ordinance No. 3256, form the basis for a 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 influence upon children external to the home. 1 • 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. Citiiens from other cities and King County will travel to Renton to view adult film fare away from areas in whi h they are known and recognized. 4. Pro erty values in the areas adjacent to the adult ent rtainment 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 Sco ts, .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 morality. Pornographic material has a degrading effect upon the • relationship between spouses. NOW THERFORE, THE CITY COUNCIL OF THE CITY OF RENTON. • WASHINGTON DO OBTAIN AS FOLLOWS: . SUCTION Existing Section 4-702 of Title IV (Building Regulations) of rdinance No. 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended by adding the following subsections : -5- e . • "Used" The word "used" in the definition of "Adult B .. cotion picture t eat'er" herein. describes a continuing course of -' onduct of exhibl'ting•"'specific sexual activities" and "specified anatomical area .n a manner which appeals to a prurient interest. SECTION I: Existing Section 4-735 of Title IV (Building I. Regulations) of rdinance No. 1628 entitled "Code of General Ordinances of the City of RI•nton" 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 procedures only. and not by criminal prosecution. (D) Nothing in this. section is intended to authorize, legalize or permit the establishment, operation or maintenance of any business , building or use which violates any City of Renton • ordinance or statute of' the State of Washington regarding public ' nuisances, sexual conduct, lewdness, or obscene or harmful matter or the exhibition or public display thereof. • SECTION IIII: 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 folio s: 2. ne thousand feet (1,000') of any public or rivate school. SECTION IV: City of Renton Ordinance No. 3526 is hereby amended by addin the following section to read as follows: If any s ction, subsection, sentence, clause, phrase or any portion of this ordinance is for any reason held to be invalid or unconstitutio al 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 -6- 1 • , . 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 1 more sections, subsections, sentences, clauses, phrases or portions be declared invalid or unconstitutional. • SECTIO! 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 decision of any court of competent jurisdiction, such decision shall not affect the validity of the 1 remaining portions of this ordinance. The City Council of the. City I 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, sub- sections, sentences, clauses, phrases or portions he declared invalid or unconstitutioonal. . 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. f�c:/;�.g.._,/ a. l?•/I0.�. . Delores A. Mead, CCity Clerk ' APPROVEi BY THE MAYOR this 14th day of June, 1982. • Barbara Y. Shinpoch, Mayor Approved as to orm: • • I (,4.«r•atwa,� G-....c..� Lawrence J. Larlren, City Attorney Date of Publication: Juno In, 19e2 , 1 I I -(;.-4.y.l s JUDG .- T ON DECISION BY TH : OURT . • FOR THE ,p Ptititr Sigel poiriti a intri • WESTERN DISTRICT OF WASHINGTON • CIVIL ACTION DOCKET NO. D C82-59M PLAYTIME THEATRES, INC. , et al 1 I vs. JUDGMENT CITY OF RENTON, et al This action came on forU 1u (hearing)before the court, Unite d States District Judge (Magistrate) G • Walter T. McGovern presiding. The issues having been duly tried (heard) =-._ r and a decision havin been duly rendered, it is ordered and adjudged [hat plaintiffs' payer for permanent injunction is DENIED, City of Renton's motion to dismiss for lac of jurisdiction is DENIED and City of Renton's motion for summary judgment i GRANTED. VTCr UNITED STATES DISTRICT CO1J • WESTERN DISTRLOT.OF.WASHINOTCI,4 FEBil 81983 BRIkE RIFKIN, Clerk By.......... .... Depu Ity J , i • . Dated at: Seattle, Washington Date: 18 February 1983 —11./0q________, Clerk of the Court I/r IS' 1 ' 2 FILED IN THE 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON • 4 FEB 1 8 1983 5 BRUCE RIIFFKIN, Clerk 6 By..Y» ................ Deputy 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON 9 PLAYTIME THEATRES, INC . , et al. , ) 10 ) Plaintiffs, ) 11 ) v. ) No. C82-59M 12 ) CITY OF RENTON, et al. , ) 13 ) Defendants. ) 14 ) ORDER ) 15 CITY OF RENTON, et al. , ) 16 Plaintiffs, ) 17 v. ) No. C82-263M ) (REMANDED) 18 PLAYTIME THEATRES , INC. , et al. ) 19 Defendants. ) 20 _ . 21 INTRODUCTION 22 On January 11 , 1983, the Court entered its order 23 approving and adopting the magistrate 's report and 24 recommendation and denying defendants ' motions to dismiss 25 and for summary judgment , and granting preliminary 26 injunction pendente lite. A separate order was entered 27 January 11 , 1983 approving and adopting the magistrate 's 28 ORDER - 1 • 1 supplemental report and recommendation and granting the 2 motion to remand Cause No . C82-263M to King County Superior 3 Court . 14 0 February 10, 1983, a hearing was had pursuant to the 5s January1 1983 Stipulation and Orderseparating parties ' 3 , p p g 6 damages claims from plaintiffs ' prayer for permanent 7 injunction and submitting the matter to the Court on the 8 evidence considered by Magistrate Sweigert . The Court has 9 consid red the evidence that was before the Magistrate, has 10 considered the parties ' memoranda, affidavits and oral 11 arguments. Accordingly, the Court rules that abstention 12 would be improper and plaintiffs ' prayer for a permanent 13 injunction must be DENIED. 14 15 FEDERAL ABSTENTION 16 The City of Renton argues that the preliminary 17 - injunction was improvidently granted, that the permanent 18 injunction must be denied, and that this Court must abstain 19 and dismiss this action for lack of jurisdiction. 20 Renton supplements its earlier argument and 21 authorities on this issue with Miofsky v. Superior Court 22 of State of California, et al . , in No. 80-4589, slip op . 23 (9th Cir. Jan. 3, 1983) . Renton argues that Miofsky aids 24 the resolution of the abstention issue herein by refining 5 the meaning of the term "vital state interest" without 26 giving it such overbreadth to deprive the federal court of 27 28 ORDER - 2 1 1 all of its 42 U.S .C . § 1983 jurisdiction. Renton asserts 2 that t e city 's interest in establishing zones and setting 3 set backs is a "vital state interest" of the sort that 14 requires the Court to abstain from acting in the case at bar 5 pending the outcome in State Court on the Complaint for 6 Declara ory Judgment . The Miofsky, court distinguished the 1 7 cases cited for abstention: • 8 Ind each of these cases, the state or an agent of the state was a party to the proceeding deemed 9 insulated from federal court intervention. In 10 addition, each of these civil suits bore s 'lmilarities to criminal proceedings or otherwise 11 i plicated state interests vital to the operation 1 o state government . 12 13 Id. at 7. The context of the Miofsky suit was a 14 complaint that state court proceedings violated plaintiff 's 1 federa ly protected rights under Section 1983. 15 16 Miofsky does little to refine the term "vital state 17 interests" beyond reasoning that abstention is improper in a 18 Section 1983 civil rights action. The Court is unpersuaded 19 that federal abstention would be proper here. "The state 20 judici 1 proceeding in this case is purely civil in nature, 21 regardless of the importance of the state policies which the 22 city asserts. " Magistrate 's Supplemental Report and 23 Recommendation at 5. Although zoning, which is the 24 underlying subject matter of the declaratory judgment 's 25 suit in state court , . may be an important function performed 1 26 by a city, this alone does not prevent a federal court from 27 scrutinizing the constitutionality of the city 's actions . 28 ORDER - 3 1 1 1 1 The Court concludes that the state court action is no bar to 2 continue jurisdiction over plaintiff 's suit for injunctive 3 relief. 4 5 PERMANENT INJUNCTON 6 I . 7 In determining the propriety of a permanent injunction, 8 the Court must first find that there is a threatened 9 violation of a legal right which would produce irreparable 10 harm and for which any other remedy would be insufficient. 11 The hardship must tip in favor of the plaintiff. 12 Renton 's Ordinance, really a series of three ordi- 13 nances : 3526, 3629, and 3637, is an attempt to preclude the 14 operation of "adult motion picture theatres" in zones which 15 are within 1 ,000 feet from certain other specified uses 16 or zo es. "Adult motion picture theatres" refers to those 17 theatres exhibiting films characterized by an emphasis on 18 matter relating to "specified sexual activities" or "speci- 19 fied : natomical areas" as a "continuing course of con- 20 duct. . .in a manner which appeals to a prurient interest . " 21 The subject matter of the films is, given a detailed defini- 22 tion, but the "continuing course of conduct" language is 23 not . The ordinance in its essential features is virtually 24 25 26 0 27 28 ORDER - 4 • I 1' identical to the ordinances in Young v. American Mini 2 Theatres, 427 U.S . 50 ( 1976) and Northend Cinema, Inc. 3 v . City of Seattle , 90 Wash. 2d 709, 585 P .2d 1153 4 ( 1978) except that the word "used" in describing "adult 5 motion picture theatre" is defined with the "continuing 6 course of conduct" language. 7 A first amendment interest is affected. The ordinance 8 deals not with obscene material, but sexually explicit 9 material. It is concerned with the exhibition of films 10 insid the theatre and not with "pandering, " "the business 11 of purveying textual or graphic matter openly advertised to 12 appeal to the erotic interest of their customers . " Pinkus 13 v . United States , 436 U.S . 293, 303 ( 1978) . 14 - 15 II. 16 . ince expression protected by the first amendment is 17 the subject of Renton 's ordinance, the next inquiry is 18 wheth r there is actual intrusion upon this first amendment 19 inter st and if so, the nature of the intrusion. 20 There is some intrusion: in certain areas of Renton, 21 films described in the ordinance may not be shown as a 22 continuing course of conduct in a manner which appeals to a 23 prurient interest. This intrusion is not substantial under 24 the circumstances for several reasons . Renton 's 25 restrictions are slightly narrower than those in the cases 26 cited supra, because of the "continuing course of conduct" 27 28 . ORDER - 5 1 language . No theatre had to be closed under Renton 's 2 ordinance, for no theatres were operating or were 3 considering operating when it was enacted . There is no 4 content limitation on the creators of adult movies. The 520 5 acres of land in all stages of development available for I . 6 locating adult theatres (David R. Clemens Affidavit of 7 May 27, 1982, unrebutted, and his June 23, 1982 testimony at 8 36-41 ) belies there being substantial intrusion upon g • plaintiffs ' first amendment right. The real question is 10 whether in spite of the acreage available to plaintiffs to 11 locate a theatre, the economic impact results in a substan- 12 tial , impermissible effect upon first amendment rights. 13 Young notes that "the inquiry for first amendment 14 purposes is not concerned with economic impact ; rather, it 15 looks only to the effect of this ordinance upon freedom of 16 expression. " 427 U.S . at 78 ( Powell, J . , concurring) . 17 The effect of Renton 's ordinance is that plaintiffs or 18 others wishing to exhibit adult film fare and not having a 19 theatre already built and ready for occupancy, must consider 20 whether demand is such that construction of a theatre is 21 feasible . This impact is no different than that upon other 22 land users who must work with what land is available to them 123 in the city. With a large percentage of land within the 24 city vailable to plaintiffs, the financial feasibility of , 25 the various locations foranalyze. To conclude i' s them to 26 otherwise would be to place a burden on the city that 27 28 ORDER - 6 • • • • 1 Constitutional analysis does not require. Moreover, the 2 message of no individual or group has been silenced. The 3 number of such establishments has not been reduced because 4 none existed and none were attempting to establish 5 themselves in Renton prior to the ordinance . The ordinance 6. merely specifies where adult theatres may not locate and in 7 doing so, stifles no expression. See, Young, 427 U.S . 8 at 81 , n. 4 (Powell, J . , concurring) . . 9 The Court concludes that there is not a substantial 10 intrusion upon first amendment interests. Plaintiffs are 11 not virtually excluded from Renton by being confined to the 12 "most Lnattractive, inaccessible, and inconvenient" areas . 13 But see Basiardanes v . City of Galveston, 682 F. 2d 1203, 14 1214 ( Ith Cir. 1983) Renton 's exhibits, affidavits, memo- 15 randa, and oral argument persuade the. Court that acreage in 16 all st ges of development from raw land to developed, 17 • industrial, warehouse, office, and shopping space that is 18 criss-crossed by freeways, highways, and roads cannot be so 19 characterized. Significant cited cases to the contrary are 20 distinguishable : Schad v. Borough of Mount Ephraim, 452 U.S . 21 61 ( 1981 ) (live entertainment including nude dancing was not 22 a permitted use , and concerns such as trash, police protec- 23 tion, and medical facilities were not sufficient justifica- 24 tions ror the exclusion ) . Basiardanes (available sites much 25 less desirable than in Renton, and the zoning ordinance was 26 passed after the theatre was leased for showing adult 27 28 ORDER - 7 • films ) ; Avalon Cinema Corporation v. Thompson, 667 F . 2d 659 2 ( 8th Cir. 1981 ) (zoning ordinance enacted after suggested 3 adult use ) ; Keego Harbor Co. v. of Keego Harbor, 657 F .2d 94 4 ( 6th Cir. 1981 ) (no location within city that was not within 5 500 feet of a bar or other regulated use ) . Ample, acces- 6 sible real estate is available for the location of adult 7 theatres in. Renton. 8 9 III . 10 The insubstantial intrusion upon first amendment 11 interests by Renton 's ordinance must be considered against 12 the governmental interest which led to its enactment. Under 13 the four-part test of United States v. O 'Brien, 391 U.S . 14 367, 3 7 ( 1968) , a governmental regulation is justified 15 despit incidental impact upon first amendment interests 16 1 . If it is within the constitutional power of the 17 government, 18 2. If it furthers an important or substantial 19 govern•ental interest, 20 3. If the governmental interest is unrelated to the 21 suppre sion 'of free expression, and 22 4. If the governmental restriction is no greater than 23 necessary for the furtherance of that interest. 24 25 26 27 28 • ORDER - 8 1 As in Young, the first two elements of the test are 2 met . The ordinance was within the City of Renton 's power to 3 enact . Nor is there any doubt that the interests sought to 4 be furthered by this ordinance are important and 5 substa tial. 6 Without stable neighborhoods, both residential and 7 commercial, large sections of a modern city giickly can deteriorate into an urban jungle with 8 tragic consequences to social, environmental, and eFonomic values . While I agree with respondents 9 that no aspect of the police power enjoys immunity from searching constitutional scrutiny, it also is 10 undeniable that zoning, when used to preserve the character of specific areas of a city, is perhaps 11 "the most essential function performed by local government , for it is one of the primary means by 12 which we protect that sometimes difficult to dfine concept of quality of life." Village of 13 Belle Terre v. Boraas, 416 U.S . , at 13 (Marshall, J . , dissenting) . • 14 • 15 Young, 427 U.S . at 80 ( Powell, J. , concurring) . The 16 critical inquiries are whether these interests are furthered 17 by the ordinance and whether the governmental interest is 18 unrelated to the suppression of free expression, element 19 three . - 20 Renton 's interests, articulated in the ordinance, "in 21 protecting and preserving the quality of its neighborhoods, 22 commercial districts, and the quality of urban life through 23 effective land use planning, " are furthered by the 24 ordinance . The ordinance states in item 14, p. 3, Nos . 3629 25 and 3637 : 26 27 28 . ORDER - 9 • • I . ' - • 1 14. Experience in numerous other cities, includ- 2 • ing Seattle , Tacoma and Detroit, Michigan, has shown that location of adult entertainment land uses degrade the quality of the areas of the City 3 in which they are located and cause a blighting 4 effect upon 'the city. The skid row [sic ] effect, which is evident in certain parts of Seattle and 5 other cities, will have a significantly larger affect upon the City of Renton than other major 6 cities due t:o the relative sizes of the cities. 7 There was no evidence adduced to show that the 'secondary 8 effects of adult land uses would be different or lesser in 9 Renton than in Seattle, Tacoma, or Detroit. Certainly, 10 Renton must justify its ordinance, but in so doing, 11 experiences of other cities and towns must constitute some 12 • evidence to the legislative body considering courses of 13 action. Genusa v. City of Peoria, 619 F.2d 1203, 1211 . � . 14 (7th Cir. 1980) . If the goal of preservation of the quality 15 of urban life is to have any meaning, a city need not await 16 deterioration in order to act . Id. The observed effects 17 in nearby cities provides persuasive circumstantial evidence 18 of the undesirable secondary effects Renton seeks to 19 preclud from within 1 ,000 feet of residential zones, 20 schools, religious facilities, and public parks. Although 21 the eff cts in other cities are starkly shown when adult I 22 uses ar congregated, Renton need not await such J' 23 congregation. Similarly, no negative inference can be drawn 24 from Re ton 's choosing to address only one form of "adult" 25 usage. It 's effort would have been bolstered by considering 26 other " - dult" uses in view of other cities ' experiences, but 27 28 ORDER - 10 1 inclus on of these other "adult" uses is not mandatory . The 2 citybeingaware that it is treadingin a delicate area r 3 between valued interests might understandably be loath to 4 tackle the description, restriction, and rationale of more 5 than one such usage at a time. " [T]he city must be allowed 6 a reasonable opportunity to experiment with solutions to 7 admitt dly serious problems . " Young, 427 U.S . at 71 . 8 The governmental interest is unrelated to the suppres- 9 sion of free expression, and the third element is satisfied. 10 Concern 'with preventing undesirable secondary effects is not 11 the ki d of apprehension aimed at regulating the content of 12 an adult theatre 's exhibitions. Rather, it is a permissible 13 classification based on deleterious secondary effects. 14 Young, 427 U.S . at 70, 71 . 15 Renton solicited testimony through its City Council and 16 the Council 's Planning and Development Committee. It 17 summarized some ideas put forth at those public meetings in 18 its ordinance. Predictably, some citizens expressed 19 concerns reflecting their values which might be impermis- 20 sible bases for justification of restrictions affecting 21 first mendment interests. See, e. g. , Erznoznik v. City of 22 Jacksonville 422 U.S . 205 ( 1975) (overbroad effort to 23 protect privacy interests of certain citizens from "offen- 24 sive" speech --nude movie fare visible from public street ) . 25 The inclusion of these statements should not negate the 26 legitimate, predominate concerns of the City Council nor 27 28 ORDER - 11 . I 1 lessen the value of the circumstantial evidence of adult 2 land uses ' effects in nearby cities. Arguably, some of the 13 statements may be construed as characterizations of the 4 community 's quality of life that is presently sought to be 5 preserved. Citizens ' judgments as to a city 's quality of g life is necessarily subjective. It is necessary to separate 7 these subjective characterizations of the city's quality of 8 life from the goals of protecting and preserving it and the 9 evidence that the means will further the end. Renton could 10 have written its ordinance in such a way as to better 11 distin wish these aspects of the problem, but this is not a 12 material consideration. 13 Finally, part four of the O 'Brien test is satisfied 4 for the restriction is no greater than necessary to further 15 the governmental interest. The 1 ,000-foot aspect of the 16 restriction does not preclude adult theatres from locating 17 anywhere in .the city as in Keego Harbor. Renton 's 1 18 ordinance is similar to others that have been upheld except 19 for the "continuing course of conduct" language discussed 20 earlier which has some narrowing effect . 21 Renton 's effort to preserve the quality of its urban 22 life by enacting an ordinance which regulates adult theatre 23 location is minimally intrusive of a particular category of 24 protected expression described in Young as being of "a 5 lesser magnitude than the interest in untrammeled political 26 debate. " 427 U.S . at 70. Renton 's effort under the 27 28 ORDER - 12 1 circumstances is not unconstitutional under the first 2 amendment . Injunctive relief from enforcement of the 3 ordinance would be improper. NOW, THEREFORE , 4 For the foregoing reasons, the Court having 5 reconsidered its de novo review which led to the entry of 6 the preliminary injunction, the order granting preliminary 7 injunction must be vacated as improvidently granted, and 8 plaintiffs ' prayer for permanent injunction against 9 enforcement of the ordinance is DENIED. Accordingly, 10 the Ci y of Renton 's Motion to Dismiss for Lack of 11 Jurisdiction is DENIED, and its Motion for Summary Judgment 12 is GRANTED. 13 SO ORDERED. 14 / DATED this !/I � ' day of February, 1983. 15 16L)/46;440 16 17 . c Chief United States District Judge 18 19 20 0 21 22 23 24 125 26 • 27 28 ORDER - 13 ,. i I " 0. .' s 193Z • I• I iY Alfuti' LY F [_ E D 1 IN THE UNITED STATES COURT OF APPEALCCT 2 O I ,_ FOR THE NINTH CIRCUIT PHiLLIP B. 1� :; =I�RY 2 C!�05,U :.'_'S'ui kFT.V!S 3 PLAYTIME THEATRES, INC. , a Washington ) No. 81-3544 • - 4 I corporation, and KUKIO BAY PROPERTIES, ) D.C.# CV 80-523 INC. , a Washington corporation, ) MEMORANDUM 5 I ) Plaintiff-Appellants, ) 6 ) v. ) 7 ) THE CITY OF TACOMA and THE HONORABLE ) I 8 ... I MIKE PARKER, as Mayor of the City, and ) 1M 9 ERLING MORK as City Manager of Tacoma, ), et al. , Q x- 3� 3. 10 Defendants-Appellees. 11r . 1 .: nr • 12 Appeal from the United States District Court for the Western District of Washington , 13 Jack E. Tanner, District Judge, Presiding Argued and submitted October 5, 1982 14 Before: WRIGHT, HUG, and SCHROEDER, Circuit Judges. 15 • 16 This case involves several challenges to a Tacoma 17 zoning ordinance patterned after the measure approved in 18 I ' Young v. American Mini Theatres, Inc. , 427 U.S. 50, 96 S. I 19 Ct. 2440 (1976). Tacoma's ordinance, like Young, requires 1 20 1 adult theatres to be 1,000 feet from similar uses but, i I t 21 1i unlike Young, it also restricts all theatres to a specified 22 area designated the "B" district. 23 The district court found that there were 24 approximately five to seven locations within the "B" I ,' 25 - district where adult businesses could locate or relocate I + 26 I after the ordinance went into effect. The district court 1 27 also found that adult uses had existed in that area for some II 28 time, and that the area was served by adequate • 29 transportation. The district court concluded that the { 30 ' ordinance had not unduly restricted public access to adult ! 31 1 ! 1 entertainment. li 32 1 1 i lb 1 1 •I1 i 1 94, 98 (6th Cir. 1981) . The record contains evidence that/*/<1.'?":. ": - . . . adult uses regulated by the ordinance contributed to 2 i ; neighborhood deterioration. Contrast Avalon Cinema, supra , 1 3 i ' 4 at 661-62. Appellants also dispute the reasonableness of the 5 ' 1 ordinance's amortization provision. The Washington law on ' 6 termination of nonconforming uses requires that, in each 7 8 case, the court examine the hardship to the terminated party ••12 9 and determine whether it is more compelling than the benefit to the public. City of Seattle v. Martin, 54 Wash. 2d 541, !� �.; 10 ' 342 P.2d 602, 604 (1959) . In Northend Cinema, Inc. v. City '; �s'- 11 of Seattle, 90 Wash. 2d 709, 585 P.2d 1153 (1978), cert. 12 f denied, 441 U.S. 946, 99 S. Ct. 2166 (1979) , the Washington 13 1 ' Supreme Court upheld identical amortization provisions in an 1 14 • adult use zoning ordinance. The district court found the 15 I amortization provision reasonable in this case, and ! . 16 - affirmance is virtually compelled by Northend Cinema, supra, 17 a case resembling this one in many respects,lincluding the ! 18 fact that appellants in both cases have benefited from a • 19 • stay of the amortization provisions pending appeal. 20 - The challenge to the waiver provisions of the 21 ` ordinance must also fail, as appellants have never sought J 22 `1 such a waiver, and therefore lack standing to attack these 23 provisions. Young v. American Mini Theatres, Inc. , 427 U.S. 24 at 58-59, 96 S. Ct. at 2446-47. , 25 Affirmed. , 26 IC. 27 28 . 29 30 31 { 32 -3- i . 1 i _ - --.: ._ - r - i 1 1 ' i 1 2 3 4 5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY 0 RENTON, a municipal , ) corpor: tion; ' LAWRENCE J. WARREN, ) 7 City A torney of the City of ) NO . g Z - 2 - 0 2 3 44 - 2 8 Renton; STATE OF WASHINGTON, ) ex rel LAWRENCE J. WARREN , ) AMENDED SUMMONS ON City A torney of the City of )/ FIRST AMENDED AND 9 Renton , ) SUPPLEMENTAL COMPLAINT ) FOR DECLARATORY 10 Plaintiffs , ) JUDGMENTS; INJUNCTIONS ; ) ABATEMENT OF MORAL 11 v . ) NUISANCES (R.C.W. CHAPTER ) 7. 24, 7.40, 7. 48 AND 12 PLAYTIME THEATRES, INC. , ) 7. 48A) a Wash ngton corporation , ) 13 KUKIO AY PROPERTIES, INC . , ) a Washington corporation , ) 14 ROGER . FORBES and JANE DOE ) FORBES husband and wife , ) 15 ROBERT B. McRAE and ELIA C. ) McRAE nd DOES 1 THROUGH 10 , ) 16 Defendants . ) ) 17 18 THE STATE OF WASHINGTON TO : PLAYTIME THEATRES , ( INC . , a Washington corporation , 19 KUKIO BAY PROPERTIES , INC . , a Washington corporation , 20 ROGER H. FORBES and JANE DOE FORBES, husband and wife , 21 ROBERT B. McRAE and ELIA C. McRAE, and 22 DOES 1 THROUGH 10 �3 A lawsuit has been started against you in the above- entitl d Court by CITY OF RENTON , , a municipal corporation; 24 LAWRENCE J. WARREN, City Attorney of the City of Renton; STATE 25 OF WAS INGTON, ex rel . LAWRENCE J. WARREN, City Attorney of the Ci y of Renton , Plaintiffs . Plaintiffs' claim is stated in the written Complaint , a copy of which is served upon you 26 with t is Summons . 27 I . order to defend against this lawsuit , you must respond to the complaint by stating your defense in writing, and serve 28 a copy upon the undersigned attorney for the Plaintiffs within AMENDED SUMMONS WARREN&KELLOGG, P.Sl ATTORNEYS PAGE 1 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057' 255-8678 . , 1 twenty (20) days after the service of this Summons , excluding , the thy of service, or a default judgment may be entered . 2 against you without notice. A default judgment is one where Plaintiff is entitled to what he asks for because you have not . 3 responded. If you serve a Notice of Appearance on the . undersigned attorney, you are entitled to notice before a 4 default judgment may be entered. 5 Y•u may demand that the Plaintiffs file this lawsuit with, the Court . If you' do so, the demand must be in writing, and 6 must b- served upon the person signing this Summons . Within fourte-n ( 14) days after you serve the demand, that person , 7 must ile this lawsuit with the Court, or the service on• you of thi: Summons and Complaint will be void. 8 I you wish to seek the advice of an attorney in this 9 matter, you should do so promptly so that your written : response, if any, may be served on time . 10 T is Summons is issued pursuant to Rule 4 of the Superior 11 Court Civil Rules of the State of Washington. 12 D= ted: May l&' , 1983. 13 14 L WRENCE J. R N 15 of Warren & ellogg, P.S. Attorneys for Plaintiff 16 17 18 19 20 21 • 22 23 24 25 26 27 28 AMENDED SUMMONS WARREN&KELLOGG,P.S. PAGE 2 ATTORNEYS AT LAW II 100 SO.SECOND ST.,P.O.BOX i626 RENTON,WASHINGTON 98057 255-8678. 1 2 3 4 5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY •F RENTON, a municipal ) corpo ation; LAWRENCE J. WARREN, ) 7 City Attorney of the City of ) NO . $ Rento ; STATE OF WASHINGTON, ) ex rel. LAWRENCE J. WARREN , ) FIRST AMENDED AND City Ittorney .of the City of ) SUPPLEMENTAL COMPLAINT 9 . Renton , ) FOR DECLARATORY " 10 ) JUDGMENTS; INJUNCTIONS; Plaintiffs , ) ABATEMENT OF MORAL 11 ) NUISANCES (R.C.W. CHAPTER v . ) 7.24, 7 .40 , 7 .48 AND ) 7. 48A) 12 PLAYTIME THEATRES, INC. , ) 13 a Was ington corporation, ) KUKIO BAY PROPERTIES, INC. , ) a Was ington corporation, ) 14 ROGER H. FORBES and JANE DOE ) FORBE", husband and wife, ) 15 ROBERT B. McRAE and ELIA C . ) 16 McRAE and DOES 1 THROUGH 10, ) ) 17 ,Defendants . ) ) 18 Now comes the City of Renton joined by Lawrence J. 19 Warren, its City Attorney, and for their Complaint against the 20 Defendants herein complain and allege as follows : 21 ALLEGATIONS COMMON TO ALL COMPLAINTS 22 1 . Plaintiff City of Renton is a municipal corporation 23 organ zed and existing under the laws of the State of, 24 Washington and the Optional Municipal Code (R . C.W. Chapter 25 35A) . Lawrence J. Warren, as Plaintiff and as relator for the , 26 State of Washington, is now and at all times herein mentioned ) 27 was th- City Attorney of the City of Renton . 28 FIRST' AMENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,PS. ATTORNEYS AT LAW FOR DECLARATORY JUDGMENTS; INJUNCTIONS ; 100SO.SECONDST.,P.O.BOX626 ABATEMENT OF MORAL NUISANCES - PAGE 1 RENTON,WASHINGTON 98057 255-8678 • I 1 Plaintiffs are informed and believe and therefore' 2 alleg- that the Defendant Kukio Bay Properties , Inca 3 (here nafter "Kukio") and the Defendant Playtime Theaters , 4 Inc. , (hereinafter "Playtime") are corporations organized and' 5 existing under the laws of the State of Washington, with their 6 • princ pal places of business located in King County , 7 Washi gton . 8 Plaintiffs are informed and believe and therefore' 9 allege that on or about January 26, 1982, the Defendant Kukio 10 purch. sed two motion picture theaters within the city limits 11 of Re ton, King County, Washington known as the Renton Theater, 12 and Roxy Theater, commonly described as 507 and 504 South, 13. Third Street, respectively, and more particularly described as 14 folio s : 15 RENTON THEATER: Lot 4 and the West 2 feet of Lot 3, Block 34, 16 Slither's Second Addition to the Town of Renton , 17 according to the plat recorded in Volume 10 of Plats, page 28, records of King County, Washington , 18 and 19 ROXY THEATER: Lots 1 and 2, Block 6, Smither' s Sixth Addition to 20 t e Town of Renton, according to the plat recroded in Volume 26 of Plats, page 47, records of King 21 County, Washington, 22 Situated in King County, Washington 23 4. The Renton Theater is located within the following, 24 distances of the following existing zones and uses : 25 a . Adjacent to a multiple residential use located at , 26 306 Morris Ave. So .', Renton; and 30 feet from a single family ' 27 residential use located at 310 Morris Ave. So . , Renton . 28 b. 30 feet from a church commonly known as Awareness of FIRST AMENDED AND SUPPLEMENTAL ,COMPLAINT WARREN&KEuocc,P.s. ATTORNEYS AT LAW FOR DE LARATORY JUDGMENTS; INJUNCTIONS ; ,00 SO.SECOND ST.,P.O.BOX;626 ABATEM! NT OF MORAL NUISANCES - PAGE 2 RENTON,WASHINGTON980S7 255-8678 1 Life hristian Metaphysics Church and located at 311 Smithers 2 Ave. So . ; 270 feet from a church commonly known as St . 3 Anthony's Catholic . church located at 406 So. 4th Street,; and 4 280 f-et from a church commonly known as Martin Luther King,, 5 Jr. , emorial Baptist Church located at 324 Smithers Ave. So. 6 . 620 feet from Renton High School located at 400 So • 7 2nd S reet ; and 470 feet from St. Anthony's Parochial School 8 located at 314 So . 4th Street . 9 The Roxy Theater is located within the following 10 dista ces of the following existing zones and uses : 11 Adjacent to a multiple residential use. 12 0 . 210 feet from a church commonly known as Awarenes 13 r of Lire Christian Metaphysics Church located at 311 Smither 14 Ave. So . ; 420 feet from a church commonly known as St . 15 Anthony' s Catholic Church located at 406 So . 4th Street ; and 16 430 f-et from a church commonly known as Martin Luther King, 17 Jr . , emorial Baptist Church located at 324 Smithers Ave. So . 18 420 feet from Renton High School located at 400 So . 19 2nd S . ; and 530 feet from St . Anthony' s Parochial School, 20 located at 314 So. 4th Street . 21 t . Defendant Roger H. Forbes and Jane Doe Forbes , whose 22 true ame is unknown to Plaintiffs, are a marital community, �3 under the laws of the State of Washington . The obligation of, 24 Roger H. Forbes is the obligation of the marital community .', 25 Plaintiffs are informed and believe and therefore allege that 26 the Defendant Roger H. Forbes is the President and soled 27 offic-r , director and stockholder of the Defendant Playtime, 28 and h:s been since the incorporation of Playtime in 1976 : WARREN&KELLOGG,P.S. FIRST AMENDED AND' SUPPLEMENTAL COMPLAINT ATTORNEYS AT LAW FOR D:CLARATORY JUDGMENTS; INJUNCTIONS ; too SO.SECOND ST.,P.O.BOiX626 ABATEt ENT OF MORAL ,NUISANCES - PAGE 3 RENTON,WASHINGTON 98857 255-8678 1 Plain iffs are informed and believe and therefore allege that 2 the nefendant Roger H. Fobes is the President and sole 3 offie •r, director and stockholder of the Defendant Kukio and 4 has been since the incorporation of Kukio in 1976. Plaintiffs 5 are , nformed and believe and therefore allege that the 6 defendant Roger H. Forbes is the only person who is authorized 7 to mai e management decisions for the Defendant Playtime and 8 the Defendant Kukio. 9 Plaintiffs are informed and believe and therefore 10 alleg: that the Defendant Roger H. Forbes was and riow is th 1 11 princ pal and alter-ego of the Defendant Playtime and the 12 Defendant Kukio and that he is beneficially interested in the; 13 incom: , profits , and financial success of said , corporations, 14 and h.s dominated, influenced, and controlled the business and 15 affai s of said corporations so that there is such a unity of 16 inter:st in ownership between said person and said corpora-1, 17 tions The said corporations are not organized for a lawful 18 purpo-e as required by R. C.W. 23A .08 .010. Therefore, the 19 indiv ' duality and separateness of said person and said, 20 corpo ations has ceased to exist , and that adherence to the 21 fiction of the separate existence of said Defendants herein 22 would, under the circumstances, tolerate a fraud and promote', �3 an in 'ustice . 24 Defendants Robert B. McRae and Elia C . McRae ,' 25 husba d and wife , are a marital community existing under thee, 26 laws of the State-of Washington . Defendants McRae are Sellers, 27 under that certain Real Estate Contract dated January 26 , e 28 1982 , and recorded under King County Recording No . 8201260640, ' FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,Pls. ATTORNEYS AT LAW FOR DECLARATORY JUDGMENTS; INJUNCTIONS ; loo SO.SECOND ST.,P.o.BOK626 ABATE ENT OF MORAL NUISANCES - PAGE 4 RENTON,WASHINGTON 98457 255-8678 1 by which Defendant Kukio purchased the real property more 2 particularly described above. That Real Estate Contract was' 3 amende• by instrument in writing dated March 18, 1983, and. 4 recor• ed under King County Recording No . 8303311087 . , 5 Defend-nts McRae may claim some interest in the real property 6 which is the subject of this action. 7 9. Plaintiffs are informed and believe and therefore 8 allege that the Defendants Does 1 through 4 are the managers 9 or ac ing managers and/or persons in charge of the Renton 10 Theate' . 11 1i . Plaintiffs are informed and believe and therefore 12 allege that the Defendants Does -5 through 10 are the writers , 13 creat• rs , solicitors , promoters , advertisers , publicists , 14 distri•utors, and/or suppliers of the motion picture films , 15 being upplied to and exhibited at the Renton Theater and are 16 in som- way responsible for the creation and/or maintenance of 17 the u-es hereinafter described and alleged as occurring at 18 said l.cation. 19 1 . The true names and capacities , whether individual , 20 plural corporate, associate, or otherwise of the Defendants 21 Does 1 through 10 are unknown to Plaintiffs , who therefore sue . 22 said Defendants by such fictitious names and will ask leave of 23 court to amend this complaint to show said Defendants true 24 names .nd capacities when the same have been ascertained by , 25 the Plaintiff. 26 1 . Plaintiffs are informed and believe and therefore �7 allege that on or about January 26, 1982, the Defendant Kukio ,, 28 leased said Renton Theater and Roxy Theater to the Defendant I FIRST L MENDED AND SUPPLEMENTAL COMPLAINT . WARREN&KELLOGG,P.s. ATTORNEYS AT LAW FOR DE LARATORY JUDGMENTS; INJUNCTIONS ; 100 SO.SECOND ST.,P.O.BOX 626 ABATEM , NT OF MORAL NUISANCES - PAGE 5 RENTON,WASHINGTON 98057 255-8678 1 Playtime by written agreement for a period of ten years 2 commenting on or about January 27, 1982, with an option to 3 renew the lease for an additional term of ten years 4 ter-min. ting on January 26, 2002. Said lease agreements , 5 provid=d that such premises were to be used for the purpose of 6 conducing the business of an "adult motion picture theater" 7 exhibiting "adult film fare ." The Defendant Playtime took 8 posses-ion of the theaters on or about January 27, 1982 , and 9 commented operating said theaters as non-adult motion picture 10 theate s , in that said theaters exhibited motion picture films 11 which to not reasonably come within the definition of "adult 12 film f. re ." 13 1 . Beginning on or about January 20 , 1983 and 14 repeat=dly and continuously thereafter, the Defendants and 15 each o them have commercially exhibited , or caused to be 16 exhibi ed, as a regular course of business , and possessed for 17 the pu pose of such exhibition, the following motion picture 18 films hich have been exhibited continuously at the Renton i9 Theate on the below listed dates : 20 PROGRAM DATE EXHIBITED 21 1 ) D=ep Throat 1/20/83 - 2/10/83 22 Dovil In Miss Jones 23 2 ) Blue Jeans 2/11/83 - 2/17/83 N.ughty Network 24 3 ) A erican Desire 2/18/83 - 3/3/83 25 All American Girls 26 4 ) Foxholes 3/4/83 - 3/ 10/83 Randy, The Electric Lady 27 5 ) Scoundrels 3/11/83 - 3/17/83 28 Foxtrot FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S.iATTORNEYS AT LAW FOR DECLARATORY JUDGMENTS; INJUNCTIONS ; 100 SO.SECOND ST.,P.O.BOX 626 ABATEMENT OF MORAL NUISANCES - PAGE 6 RENTON,WASHINGTON 980571 255-8678 1 PROGRAM DATE EXHIBITED 2 6 ) I resistible 3/18/83 - 3/24/83 S , heherezade, One Thousand and 3 One Erotic Nights 4 7 ) Satisfactions 3/25/83 - 3/31/83 P. ndora's Mirror 5 6 8 ) D-bbie Does Dallas 4/1 /83 - 4/7/83 D-bbie Does Dallas II 7 9 ) L the Girls Lost 4/8/83 - 4/14/83 8 R ng of Desire 10) T e Dancers 4/15/83 - 4/21/83 9 B-tween the Sheets 10 11 ) D. ddy' s Little Girl 4/22/83 - 4/28/83 T e Little French Maid 11 12) E ery Which Way She Can 4/29/83 - 5/5/83 12 Nightlife 13 13) E pose Me Now 5/6/83 - 5/12/83 14 Siormy 15 14) Y.ung Doctors in Lust 5/13/83 - 5/ /83 I timate Explosions 16 1 . For the purpose of marshalling evidence to prove the 17 doing .f wrongful acts , Plaintiff City of Renton directed 18 certai individuals , acting as its agents to enter the Renton 19 Theate , and view and photograph the visual images, conduct 20 and scenes being depicted on the motion picture screen 21 therein, and tape record the sound track being played in said 22 theate . Said individuals acting as agents of the City of 23 Renton, paid the required admission fee at the time they 24 entered the Renton Theater with funds supplied by the City of 25 Renton . 26 15 . Time-and-motion studies of each of the 28 motion 27 picture films named in Paragraph 13 above , have been prepared . 28 Such time-and-motion studies , consisting of a chronological FIRST A ENDED AND • SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S. ATTORNEYS AT LAW FOR DECI ARATORY JUDGMENTS; INJUNCTIONS ; 100 SO.SECOND ST.,P.O.BOX 626 ABATEME T OF MORAL NUISANCES - PAGE 7 RENTON,WASHINGTON98057I 255-8678 1 series of photographs timed in their relative order of 2 appear.nce , fairly and accurately depict the sexual conduct, 3 normal and perverted, actual and simulated being portrayed on 4 the mo ion picture screen on the dates such photographs were 5 taken . 6 FIRST CAUSE OF ACTION 7 D:CLARATORY JUDGMENT RE CITY OF RENTON ORDINANCE 8 N•s . 3526, 3629 and 3637. (Chapter 7 . 24 R.C.W. ) 9 C.mes now the Plaintiff City of Renton to request a 10 declar- tory judgment pursuant to Chapter 7 .24 R.C.W. and to 11 compla'n and allege as follows: 12 1 : . Plaintiff City of Renton incorporates herein by 13 refere ce each and every allegation of Paragraphs 1 through 14 15, in•lusive , as though set forth herein in full . 15 1 . On April 13, 1981 , the Plaintiff City of Renton 16 enacte. City of Renton Ordinance No . 3626 entitled : "An 17 Ordina ce of the City of Renton, Washington, Relating to Land 18 Use an. Zoning" (hereinafter referred to as the "Renton Adult 19 Use Ordinance" ) , a true and correct copy of which is attached 20 hereto as Attachment "A" and incorporated herein by reference 21 as tho gh set forth herein in full . By the terms of said 22 ordina ce , an "adult motion picture theater" , as defined in 23 the ordinance, is a prohibited land use within the area 211 circum-cribed by a circle which has a radius consisting of the 25 following distances from the following specified uses or 26 zones : �7 a . Within , or within one thousand feet of, any residential zone , or any single family or 28 multiple family residential use . FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN& KELLOGG,P.S.', ATTORNEYS AT LAW FOR DECLARATORY JUDGMENTS; INJUNCTIONS ; 100 SO.SECOND ST.,P.O.BOX 626 ABATEMENT OF MORAL NUISANCES - PAGE 8 RENTON,WASHINGTON 980571 255-8678 1 b Within one mile of any public or private school . 2 c Within one thousand feet of any church or other 3 religious facility or institution. 4' d Within one thousand feet of any public part or P-1 zone . 5 1 : . On May 3, 1982, the City Council of the City of ' 6 Renton passed and adopted Ordinance No. 3629 as an emergency 7 measur: , to be effective as of the date of its passage and 8 approv.l by the mayor on May 3, 1982, amending Ordinance No . ' 9 3526. • A copy of Ordinance 3629 is attached hereto as 10 Attach I ent "C" and incorporated herein by reference as though 11 set fo th herein in full . The principle changes were: 12 The 13 a statement of amending reasons for for enactment of both Ordinance No. 3526 and Ordinance 1 14 No . 3629 ; 15 (2) A definition of the word "used" was added; 16 (3 ) Violation of the use provisions 17 of the ordinance was declared to be a nuisance per se which was required to be 18 abated by civil action and not by criminal 19 enforcement ; ( 4 ) The required distance of an 20 adult theatre from a school was reduced from one mile to 1 , 000 feet ; and , 21 (5 ) A severability clause was added . 22 19. On June 14, 1982 , the City Council of the City of 23 Renton sassed a third ordinance, No. 3637, which was identical 24 to Ordinance No . 3629 in all respects except that the j 25 26 emergen y clause was deleted and the ordinance was to become effective as a regular ordinance thirty days following its 27 publication . A copy of Ordinance No. 3637 is attached hereto 28 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S. ATTORFOR DECLARATORY JUDGMENTS; INJUNCTIONS ; .SECONESTYS P.O. 100SO.SECONDST.,P.O.BOX626 ABATEMENT OF MORAL NUISANCES - PAGE 9 RENTON,WASHINGTON 98057 255-8678 • as Attachment "D" and incorporated herein by reference as 1 2 though set forth herein in full . 3 21 . On January '20 , 1982 , the Defendants Kukio and , 4 Playtime filed an ' action in the United States District Court 5 for th- Western District of Washington at Seattle entitled 6 "Compl= int for Declaratory Judgment and Preliminary 7 Injunction" , alleging federal jurisdiction under 28 U.S. C. § 8 1131 (a , 42 U.S.C. § 1983 and 28 U.S.C. § 2202 and Rule 57 of 9 the F: deral Rules of Civil Procedure , challenging the 10 constitutionality of City of Renton Ordinance No. 3526. On 11 Februa y 9, 1982, the Defendants Kukio and Playtime filed and 12 served a new verified Complaint entitled "Amended and 13 Supplemental Complaint for Declaratory Judgment and , 14 Preliminary and Permanent Injunction" , a copy of which is 15 attach:d hereto as Attachment "B" and incorporated herein by 16 refere ce as though set forth herein in full. 17 21 . On February 19, 1982, the Plaintiff City of Renton l 18 filed he within civil action in King County Superior Court 19 seekin: a declaratory judgment that Ordinance No . 3526 was 20 constitutional as applied to the use of the Renton and Roxy 21 theate s as proposed and described in the Defendants Kukio and 22 Playti e 's verified Amended and Supplemental Complaint and in �3 the de,osition of the Defendant , Roger H. Forbes , taken on 24 April ' , 1982. Concommitantly, the City of Renton moved to 25 dismis- the above, described federal action and for summary 26 judgme t in such action on several grounds, including grounds 27 that he U. S . District Court lacked subject matter 11 28 jurisdiction to adjudicate the constitutionality of Renton FIRST MENDED AND SUIPPLEMENTAL COMPLAINT FOR DE LARATORY JUDGMENTS• INJUNCTIONS ; WARREN&KELLOGG,P.sl, f ATTORNEYS AT LAW ABATEM NT OF MORAL NUISANCES - PAGE 10 100 SO.SECONDST.,P.O.BOX 626 RENTON,WASHINGTON 98057, 255-8678 1 • 1 Zoning Ordinance No. 3526 as applied to the theaters because, 2 of th= pendency of the state action. On February 18, 1983 , 3 the U.S. District Court denied the City's Motion to Dismiss on Jurisdictional Grounds but granted the City of Renton' s Motion, 5 for S mmary Judgment . On April 29, 1983 the Court filed its 6 order denying the Defendants' Motion to Amend or Alter its 7 Judgment in the federal action. 8 22. A controversy and dispute now exists between the 9 Plain iff City of Renton and the Defendants relating to their 10 legal rights and duties and the effect of "City of Renton', 11 Adult Use Ordinance" , being Ordinance No. 3526 as amended by 12 Rento Ordinances No . 3629 and No . 3637, upon Defendants as' 13 . . folio s : 14 - • Plaintiff City of Renton claims that the "City of, 15 Renton Adult Use Ordinance" , as amended, is constitutional on 16 its face . Defendants claim that said ordinance is 17 unconstitutional omits face . 18 b. Plaintiff' City of Renton claims that the "City of, 19 Renton Adult Use Ordinance" , as amended, is constitutional as 20 appli -d to the "adult motion picture theater" land use 21 origi ally proposed by the Defendants and the "adult motion 22 picture theater" land use actually employed by said Defendants 23 from -nd after January 20, 1983, as more fully described in , 24 Paragraphs 14, 15 and 16 of this Complaint . Defendants claims 25 that said ordinance is unconstitutional as applied to the land ' 26 use a- originally proposed and as actually employed- by the , 27 Defendants from and' after January 20, 1983. ' 28 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P:S. FOR DECLARATORY JUDGMENTS; INJUNCTIONS ; ATTORNEYS AT LAW ABATEMENT OF MORAL NUISANCES - PAGE 11 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 c . Plaintiff City of Renton claims that the component 2 parts of the "City of Renton Adult Use Ordinance" as , origin lly enacted and as amended are independent and ; 3 4 severable and that this Court has the duty and obligation to 5 interp et the same in a constitutional manner, so as to give 6 effect to the general purpose of the City Council of the City • 7 of Ren on and its manifest intention. Defendants claim that 8 said .rdinance is not susceptible of a constitutional ' 9 construction and is not severable . 10 d. . Plaintiff City of Renton claims that , pursuant to 11 the pro isions of the "City of Renton Adult Use Ordinance", as 1 12 amended , an "adult motion picture theater" is a permitted use 13 within the B- 1 and more intensive land use zoning classifica- 14 tions c rrently in use within the City of Renton except to the 15 extent that the specific use is prohibited by the terms of 16 said ordinance , and that there is no requirement that an 17 application be made for a special permit, conditional use or 18 variance prior to the commencement of such specific land use . 19 Defendants claimed in their verified "Amended and Supplemental 20 Complaint for Declaratory Judgment and Preliminary and 21 Permanent Injunction" , filed on February 9, 1982 in the United 22 States District Court for the Western District of Washington , , �3 entitled Playtime Theaters , Inc . , a Washington Corp . , and 24 Kukio Bay Properties , Inc . , a Washington Corp . v. The City of 25 Renton, et al. , No . C 82-59M, that the "City of Renton Adult 26 Use Ordnance" , as amended , provides a new use classification 27 within the zoning laws of the City of Renton of an "adult motion .icture theater" which is not a permited use within any i 28 FIRST A ENDED AND SUPPLEMENTAL COMPLAINT FOR DEC ARATORY JUDGMENTS• INJUNCTIONS ; WARREN&K ,P.S. ATTORNEYSS A ATT L LA AW ABATEME T OF MORAL NUISANCES - PAGE 12 100 SO.SECOND ST..P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 zoning classification currently in the City of Renton, thereby 2 requir' ng the Defendants to obtain a special permit , condi 3 tional use or variance prior to commencement of such use. 4 e Plaintiff City of Renton claims that the "City of 5 Renton Adult Use Ordinance" , as amended , prohibits the 6 Defend. nts from using the specific motion picture theater . 7 premises described herein as an "adult motion picture 8 theater ." Defendants deny such claim. 9 2 : . That no adequate remedy other than that herein 10 prayed for exists by which the rights of the parties hereto 11 may be determined. 12 W EREFORE, Plaintiff City of Renton prays for relief as 13 follow- : 14 1 That the Court declare that the "City of Renton 15 Adult se Ordinance" , being Ordinance No. 3526, as amended by 16 Ordina ce No . 3629 and No . 3637, is constitutional on its 17 face, alid for all purposes and in full force and effect . 18 2. That the Court declare that the "City of Renton 19 Adult se Ordinance" , as amended, is constitutional as applied 20 to the land use originally proposed and the land use actually 21 employ:d by Defendants from and after the period commencing on 22 Januar 20, 1983 and' continuing through and including the date 23 of the filing of this Amended and Supplemental Complaint . 24 3. . That the Court declare that it was the manifest 25 intent ' on of the ,Renton City Council to make the component 26 parts •f City of Renton Ordinances No . 3526 , No . 3629 and No . 27 3637 - independent and severable and that such parts. are 28 indepe dent and severable . FIRST MENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S. FOR DECLARATORY JUDGMENTS; INJUNCTIONS ; ATTORNEYS AT LAW ABATEM NT OF MORAL NUISANCES - PAGE 13 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 980571 255-8678 • 1 4, That the Court declare that an "adult motion picture • 2 theate " is a permitted use within the B-1 and more intensive 3 land u e zoning classifications currently in use within the ' 4 City o Renton , except to the extent that it may be prohibited 5 by the "City of Renton Adult Use Ordinance" , as amended, and 6 that t erefore no special permit, conditional use or variance • 7 application is required prior to the commencement of the land 8 use of an "adult motion picture theater" in areas of the city 9 in which it is not prohibited by said ordinance . 10 5. That the Court declare that the Defendants' use, 11 during the period commencing on January 20, 1983 and 12 continuing through and including the date of the filing of 13 this Amended and Supplemental Complaint , of the specific 14 motion picture theater premises more particularly described ; 15 herein, as an "adult motion picture theater" as defined in the 16 ordina ce was and is prohibited by the "City of Renton Adult i 17 Use Ordinance" , as amended, and constitutes a per se public 18 nuisan•e . 19 6 . That the Court award the Plaintiff its costs and 20 attorn=y's fees as provided by law and such other and further 21 relief as the Court deems just and proper . 22 SECOND CAUSE OF ACTION 1 I JUNCTION RE CITY OF RENTON ORDINANCE Nos . 3526 , AS 23 A ENDED BY ORDINANCES Nos . 3629 and 3637. (R .C.W. 24 C APTER 7. 40) 25 C mes now the Plaintiff City of Renton pursuant to the 26 provis ' ons of R. C.W. Chapter 7 . 40 to request an injunction 27 against the Defendants herein and to complain and allege as follows : 28 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.s. FOR DECLARATORY JUDGMENTS; INJUNCTIONS ; ATTORNEYS AT LAW ABATEMENT OF MORAL NUISANCES - PAGE 14 100 sq.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057, 255-8678 1 • 1 24. Plaintiff City of Renton incorporates herein by 2 reference each and every allegaton of Paragraphs 1 through 21 , ' 3 inclusive, as though set forth herein in full . 4 2" . That there is no plain, adequate or speedy remedy at 5 law av: ilable to the Plaintiff and that the Plaintiff willi . 6 suffer irreparable damage unless the Defendants are restrained . 7 from exhibiting at the Renton Theater the type of motion 8 pictur= films described in Paragraph 13 of this Complaint , and 9 from f rther use of the Renton Theater as an "adult motion 10 pictur- theater." 11 W EREFORE, Plaintiff City of Renton prays for relief as 12 follows : 13 1 . For issuance of a preliminary injunction during the 14 pendency of this proceeding restraining the Defendants and 15 each of them from use of the Renton Theater as an "adult 16 motion picture theater , " that is , for the purpose of . 17 exhibi ing motion picture films depicting , describing or 18 relating to " specific sexual activities" and "specified 19 anatomical areas , " as defined in Renton Ordinance 3526 , as ' 20 amended by Ordinance Nos. 3629 and 3637, as a continuing 21 course of conduct and in a manner which appeals to a prurient 22 interest ; and 23 2. A permanent injunction restraining the Defendants 24 and each of them from use of the Renton Theater as an "adult 25 motion picture theater" , that is , for the purpose of 26 exhibiting motion picture films depicting , describing or �7 relating to "specific sexual activities" and "specified 28 anatomical areas" as defined in Renton Ordinance No. 3562, as I FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S. FOR DECLARATORY JUDGMENTS; INJUNCTIONS ; ATTORNEYS AT LAW ABATEMENT OF MORAL NUISANCES - PAGE 15 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057, 255-8678 i 1 amende by Ordinance Nos. 3629 and 3637, as a continuing 2 course of conduct and in a manner which applies to a prurient ! • intere t ; and 3 3. For- entry of an order that the trial on the merits 5 of th permanent injunction restraining the Defendants , from ' 6 use of the Renton Theater as an "adult motion picture theater" 7 and fr.m exhibiting at the Renton Theater motion picture films 8 which depict "specified sexual activities" be advanced and , 9 consol' dated with the hearing upon the application for the 10 prelim'nary injunction. 4 That the Court award the Plaintiff its costs and 11 12 attorney's fees as provided by law. 13 5 , That the Court grant such other and• further relief 14 as the Court deems just and proper . 15 THIRD CAUSE OF ACTION. 16 D CLARATORY JUDGMENT RE LEWD AND OBSCENE SUBJECT M TTER (MOTION PICTURE FILMS) BEING EXHIBITED AT THE R NTON THEATER AND USE OF THE RENTON THEATER AS A 17 M RAL NUISANCE (CHAPTER 7. 24 R.C.W. ) 18 C mes now, the Plaintiffs City of Renton and Lawrence J. 19 Warren both as the City Attorney of Renton, and as the 20 relato on behalf of the State of Washington to request a 21 declar_ tory judgment pursuant to Chapter 7 . 24 R. C.W. and 22 R. C.W. Sections 7 . 48.056, 7 . 48 . 058 and 7 .48 .900, and R .C.W. �3 Sectio s 7 . 48A .020 , 7. 48A .030 and 7. 48A .900, and to complain 24 and al ege as follows : 1 25 2• . Plaintiffs incorporate herein by reference each and 26 every llegation of Paragraphs 1 through 15, inclusive , as 27 though set forth herein in full . 28 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT FOR DECLARATORY JUDGMENTS ; INJUNCTIONS ; WARREN& KELLOGG,P.S. f f ATTORNEYS AT LAW ABATEMENT OF MORAL NUISANCES - PAGE 16 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057, 255-8678 . •; . 1 2 ' . Statutes ( a) On November 8, 1977 , Initiative , 2 Measur: No . 335 was approved by the electorate of this state , 3 and i- codified as Chapter 7.48 Nuisances ; being R.C.W. 4 Sectio s 7. 48. 050, 7. 48. 052, 7. 48. 054, 7. 48. 056, 7. 48. 058, 5 7. 48 .0; 0, 7.48.062, 7.48 . 064, 7 .48 .066, 7.48.068, 7.48.070 , 6 7. 48. 0 2, 7. 48. 074, 7. 48. 076, 7. 48. 078, 7. 48. 080, 7. 48. 085, ! . 7 7 .48 .0. 0, 7 .48. 100, and 7 .48 .900. R. C.W. Section 7 .48.900 is , 8 a seve ability clause which provides as follows : 9 7 48.900 Severability--Initiative Measure No. 335 . II any provision of this 1977 amendatory act , or its 10 application to any person or circumstance is held invalid , the : remainder of the act , or the 11 application of the provision to other persons or c rcumstances is not affected . 1.2 ( 0 ) Substitute House Bill No. 626 entitled "An Act 13 Relatiig to Pornography and Moral Nuisances" , was passed by 14 the St. te Legislature during its 1982 Regular Session and was 15 signed into law on April 1 , 1982 by the Governor of the State 16 of Was ington, to take effect immediately. Sections 1 through 17 9 of s.. id act are codified as Chapter 7 . 48A Moral Nuisances ; 18 being R . C . W. Sections 7 . 48A . 010 , 7 . 48A . 020 , 7 . 48A . 030 , ' 19 7 . 48A . I40 , 7 . 48A . 050 , 7 . 48A . 060 , and 7 . 48A . 900 . R . C . W. 20 Sectio 7.48A . 900 is a severability clause which provides as 21 follow- : 22 7. 48A .900 Severability--If any provision of this act 23 o its application to any person or circumstance is h:ld invalid , the remainder of the act or the 24 application of the provision to other persons or c ' rcumstances is not- affected . 25 2:. Each . of the motion picture films described in 26 Paragr.ph 13 above , is "lewd matter" and "obscene matter" as 27 the t: rm "lewd matter" is defined in R . C .W. Section 28 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S. FOR DECLARATORY JUDGMENTS; INJUNCTIONS ; ATTORNEYS AT LAW ABATEMDNT OF MORAL NUISANCES - PAGE 17 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 ' 1 7.48 .00 (2) , and in R. C.W. Section 7 .48A.010 (2) , and as said 2 term is construed and applied by the Washington State Supreme 3 Court . The visual; depictions and allegations regarding the 4 story line content appearing in the legends of the time-and- 5 motion studies referred to in Paragraph 15 above will show by • 6 specific pleading that the 28 lewd and obscene films described 7 in Paragraph 13 are all of one genre ; namely, hard core 8 pornography. 9 29. Each of the motion picture films described in 10 Paragraph 13 above, is subject matter which is outside the 11 protection of the Federal Constitution under the test 12 articulated by the United States Supreme Court in Miller v. 13 California, 413 U.S. 15, and Paris Adult Theater v. Slayton, 14 413 U. . 49 . 15 3 . The Defendants' course of conduct and use of the 16 premis s ' at 507 South Third Street , Renton, Washington, for 17 the pu pose of exhibiting obscene motion pictures as described 18 above, establishes said premises as a public nuisance under 19 the Revised Code of Washington in that the explicit sexual 20 conduct and lewdness , which occurs in said motion pictures in 21 two di ensional form and the exhibition of the same to the 22 public at the Renton Theater constitutes a violation of �3 specific community standards established by the Washington 24 Crimin.1 Statutes ) which proscribe such sexual conduct in 25 public in three dimensional form. 26 31 . The images and conduct portrayed upon the public �7 screen and the accompanying sounds produced in such public 28 theate incident to the exhibition of the motion picture films FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S.' ATTORNEYS AT LAW FOR DE LARATORY JUDGMENTS; INJUNCTIONS ; 1oo SO.SECOND ST.,P.O.BOX 626 ABATEMENT OF MORAL NUISANCES - PAGE 18 RENTON,WASHINGTON 98057 255-8678 1 described in Paragraph 13 above constitute a public nuisance 2 on su•h dates , which is separate and apart from the positive 3 print and sound ;projector instrumentalities which were used 4 for t eir production. The exhibition of said motion pictures 5 at said theater is "indecent and offensive to the senses" so, 6 as to essentially interfere with the comfortable enjoyment of . 7 life . nd property and, therefore, constitutes an actionable 8 public nuisance per se under R. C.W. Section 7 . 48. 010. 9 32. The lewd and obscene motion picture films described 10 in Paragraph 13: above are unlawful subject matter and 11 contraband as to which no property rights may be acquired'' 12 under R.C.W. Section 7 . 48. 090. 13 33. The moneys received by the Defendants as admission 14 price to the exhibition of the lewd and obscene motion picture 15 films described in Paragraph 13 above constitute gain derived 16 from . wrongful , act , an unjust enrichment , and a moral 17 nuisance under R. C.W. Section 7 . 48. 054( 1 ) as personal property 18 used 'n conducting and maintaining a moral nuisance . As such 19 they .re subject to forfeiture to the City of Renton and King 20 County, and to an accounting under R. C.W. Section 7 .48.090 . 21 34 . The instrumentality by which such nuisance is made 22 possib e is a positive print of the motion picture through, 23 which a light source is passed from a motion picture projector 24 which rojects images from such positive print onto the screen 25 of, a d broadcasts sounds in, said motion picture theater . ' 26 The p sitive prints of said lewd and obscene films and all 27 copies of a like nature each constitute a moral public 28 nuisance under R . C. W. Section 7 . 48 . 052 (3 ) . FIRST MENDED AND SUPPLEMENTAL COMPLAINT WARREN & KELLOGG, P.S. FOR DE LARATORY JUDGMENTS ; INJUNCTIONS ; ATTORNEYS AT LAW ABATEM NT OF MORAL NUISANCES - PAGE 19 100SO.SECONDST.,P.O.80X626 RENTON,WASHINGTON 98057 255-8678 1 3 . . Pursuant to R.C.W. Section 9 .66 .010, R.C.W. Section 2 7 . 48. 1 '0, and R.C.W. Section 7 . 48. 130, the acts of Defendants , and each of them, in maintaining the business operation 3 4 locate* at the premises commonly known as the Renton Theater , 5 are un awful and constitute a public ,nuisance . 6 34 . Pursuant to R. C . W. Section 7 . 48A . 020 ( 1 ) , the • 7 premis-s commonly' known as the Renton Theater is a moral ), 8 nuisance in that it is a place where lewd and obscene films , 9 as defined in RjC .W. Section 7 . 48A . 010 ( 2 ) , are publicly 10 exhibi ed as a regular course of business , or are possessed 11 for the purpose of such exhibition. • 12 3 . Pursuant to R.C.W. Section 7. 48A .020(2) , each andll 13 every lotion picture film specifically named in Paragraph 13 14 above, is a moral nuisance in that each and every film is a 15 lewd : nd obscene film, as defined in R . C .W. Section )) 16 7. 48A :010(2) , which has been publicly exhibited , or possessed 17 for su h purpose at a place which is a moral nuisance under 18 Sectiol 7 . 48A .020(11 ) . 19 3; . The Defendants , and each of them , have with 20 knowleege maintained each and every moral nuisance, as defined ), 21 in R.0 W. Section 7 . 48. 050( 1 ) and R. C.W. Section 7 . 48A .010( 1 ) . 22 3° . The Renton Theater is a place where lewd and obscene )) 23 films , as defined by R. C.W. Section 7 . 48. 050(2) , are publicly 24 exhibited as a regular course of business , or are possessed 25 for th- purpose of such exhibition and , pursuant to R. C. W. 26 Sectio 7 .48.052 ( 1 ) , is a moral nuisance . 27 40 . Each and every motion picture film specifically ;I 28 named in Paragraph 13 above is a lewd and obscene film, as FIRST AMENDED AND SUPPLEMENTAL COMPLAINT FOR DEILARATORY JUDGMENTS ' INJUNCTIONS ; WARREN&KELLOGG,P.S. > > ATTORNEYS AT LAW ABATEMINT OF MORAL NUISANCES - PAGE 20 1oo SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 define by R. C.W. 'Section 7 .48 .050(2) , which has been publicly 2 exhibited , or possessed for such purpose at a place which is a 3 moral nuisance under R.C.W. Section 7 .48 .052( 1 ) , and, pursuant . 4 to R.C.W. Section 7 . 48. 052, is a moral nuisance. 5 _ 41 . Each and all of the foregoing acts and conduct in 6 the use of Defendjants' property for the purposes and in the 7 manner aforesaid, are maintained and perpetuated by the 8 Defendants with malice; that is , with a willful , conscious 9 disreg rd of the rights of the Plaintiffs , and with a motive 10 and willingness to vex, harass , annoy, or injure the rights of 11 the Pl intiffs . 12 4 . Plaintiffs are informed and believed and based on 13 such ' nformation and belief allege that the Defendants and 14 each o them will continue to exhibit the same and other lewd 15 and ob cene motion picture films in the future at the Renton 16 Theate 17 4 . Plaintiffs have no plain, speedy , or adequate remedy 18 at law to prevent the acts and conduct aforesaid ; and unless 19 the s me is abated , Plaintiffs will suffer and are now 20 suffer ng irreparable damage and loss . 21 44 . A controversy and dispute now exists between the 1 22 Plaintiffs and the Defendants relating to their legal rights 23 and duties regarding the nature of the subject matter (motion 24 picturEJ films) being exhibited by the Defendants at the Renton 25 Theater , the nature of the use being made by the Defendants of 26 the Re ton Theater and the applicability of certain sections 27 of the Revised Code of Washington to the circumstances of this 28 lawsui as alleged in Paragraphs 26 through 43. FIRST MENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S. FOR DECLARATORY JUDGMENTS; INJUNCTIONS ; ATTORNEYS AT LAW ABATEM NT OF MORAL NUISANCES - PAGE 21 1aoSOON,W SHING.ON980576 RENTON,WASHINGTON 98057 255-8678 1 45. No adequate remedy other than that herein prayed for 2 exists by which the rights of the parties hereto may be 3 determined. 4 WHEREFORE, Plaintiffs , City of Renton and City Attorney 5 of Renton as the City Attorney of Renton and as the relator 6 for the State of Washington pray for relief as follows : 7 1 . That the Court declare that pursuant to the 8 severability provisions of R . C .W. Section 7 . 48 . 900 , the 9 provisions of R. C.W. Sections 7.48,050, 7 .48 .052( 1 ) and (3) , ' 10 7. 48. 054( 1 ) , 7. 48. 056 , 7 . 48. 058, 7 . 48. 060, 7 . 48. 064, 7. 48. 070', 11 7 .48.0 6 and 7 . 48 .090 are severable and valid and can be , 12 applie in a constitutional manner to the circumstances and 13 the pa ties in this lawsuit . 14 2. That the Court declare that pursuant to the 15 sever bility provisions of R . C .W. Section 7 . 48A . 900 , the 16 provisions of R. C'.W. Sections 7 . 48A .010, 7. 48A .020, 7. 48A .030,1 17 and 7 .48A.040 are severable and valid and can be applied in a 18 constitutional manner to the circumstances and the parties in 19 this lawsuit . 20 3. That the Court declare that the Plaintiff City 21 Attorney of Renton has standing to bring a declaratory 22 judgme t action seeking a determination regarding the validity 23 of suc statutory provisions , the existence of moral nuisances 24 in the City of Renton and the right to have the same abated . 25 4 That the Court declare that each of the motion 26 pictur films named in Paragraph 13 is lewd and obscene matter 27 as tha term is defined in R . C.W. Section 7 . 48 . 050 (2) , and in 28 FIRST MENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S. FOR DELARATORY JUDGMENTS ; INJUNCTIONS ; ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 ABATEMENT OF MORAL NUISANCES - PAGE 22 RENTON,WASHINGTON 98057 255-8678 1 R. C.W. Section 7.48A.010(2) and as construed and applied by 2 the Washington State Supreme Court . 3 5 That the Court declare that the real estate known as . 4 the R nton Theater is and has been a moral nuisance since 5 Januar 20, 1983 under the provisions of R. C.W. Section 6 7. 48. 0 2( 1 ) and R.C.W. Section 7 . 48. 020( 1 ) . 7 6 That the Court declare that each of the motion 8 pictur films named in Paragraph 13 is a moral nuisance under ' 9 R. C.W. Section 7 .418A. 020 (2) . 10 7 That the Court declare that each of the motion 11 pictur films named in Paragraph 13 is lewd and obscene matter 12 as a atter of law, that such films are contraband and that 13 there re no property rights therein under Washington law. 14 8 That the Court declare that the moneys paid as 15 admiss' on price to the exhibition of the above described lewd 16 and ob cene films are derivative contraband and the subject of 17 forfei ure ; that the Plaintiffs are entitled to an accounting , 18 and th t such moneys are to be forfeited to the City of Renton 19 and Ki g County. 20 9r That the Court award Plaintiffs their costs and 21 attorney's fees as provided by law. 22 10 . That the Court grant such other and further relief 23 as the Court deems just and proper . 24 FOURTH CAUSE OF ACTION 25 I JUCTION RE MORALNUISANCES (R. C.W. CHAPTER 7. 40 , 7 . 48 AND 7. 48A) 26 C•mes now the. Plaintiff Lawrence J. Warren , both as the 27 City Attorney of ;Renton, and as the relator on behalf of the 28 FIRST MENDED AND' 'SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S. FOR DECLARATORY JUDGMENTS; INJUNCTIONS ; ATTORNEYS AT LAW ABATEMNT OF MORAL NUISANCES - PAGE 23 10050.SECONDST.,P.ON980576 RENTON,WASHINGTON 98057 255-8678 . I III 1 State .f Washington to request an injunction pursuant to the 2 provis ons of R.C.W.' Chapter 7 . 40, and R .C.W. Chapters 7 . 48 3 and 7 .48A, (R. C.W. Sections 7.48.056, 7 .48.058, 7 .48.060, I'I 4 7 . 48 . 064 , 7 . 48 . 070 , 7 . 48 . 076 , 7. 48A . 020 , 7. 48A . 030 , 5 7 . 4A . 040 [ 1 ] ) , restraining the Defendants from. further 6 mainta ning the herein described moral nuisances at the Renton 7 Theate and to coeplain and allege as follows : 8 4t . Plaintiffs incorporate herein by reference each and 9 every . )legation olf Paragraphs 1 through 15, and 27 through 43 10 inclus ve, as though set forth herein in full . 11 4 . That there is no plain, adequate, or speedy remedy 12 at law available to the Plaintiff and that the Plaintiff will 13 suffer irreparable damage unless the Defendants are restrained 14 from :xhibiting the lewd and obscene films described in 15 Paragraphs 13 of this Complaint and from further maintaining 16 the mo al nuisances which exist at the Renton Theater as a 17 result of such exhibitions . 18 W EREFORE, Plaintiff prays for relief as follows : 19 1 For issuFance of a preliminary injunction during the 20 penden y of this proceeding restraining the Defendants and 21 each •f them from exhibiting the lewd and obscene films 22 described in Paragraphs 13 of this Complaint at the Renton 23 Theate . 24 2. For issuance of a permanent injunction restraining 25 the De endants and each of them from exhibiting the lewd and 26 obscen: films desciribed in Paragraphs 13 of this Complaint and 27 other ewd and obscene films at the Renton Theater . 28 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P. II` • FOR DEILARATORY JUDGMENTS• • ATTORNEYS AT LAW > INJUNCTIONS ; 100 SO.SECOND ST.,P.O.80X 626 ASATEM : NT OF MORAL, NUISANCES - PAGE 24 RENTON,WASHINGTON 98057 255-8678, • • •, • a . ' 1 3. For the entry of an order that the trial on the, 2 merits of the permanent injunction restraining the Defendants, 3 from -xhibiting the lewd and obscene films described in, 4 Paragraphs 13 of this Complaint be advanced and consolidated 5 with he hearing upon the application for the temporary' 6 injunc ion, pursuant to Washington Court Civil Rule 65(a) (2) ,I • 7 and R.C.W. Section 7 .48 .064. ' 8 4. That the Court award the Plaintiff its costs ofi' 9 abatem-nt, including a reasonable attorney' s fee pursuant to , 10 R.C.W. Section 7 . 48. 076 and 7 . 48. 090. 11 5. That the Court grant such other and further relief' 1.2 as the Court deems just and proper. ' 13 FIFTH CAUSE OF ACTION 14 Ai:ATEMENT OF MORAL NUISANCES (R. C.W. CHAPTER 7. 48 A D .48A 7 ) 15 C.mes now the Plaintiff Lawrence J. Warren, both as the ,, 16 City Attorney of Renton, and as the relator on behalf of the 17 State of Washington , to request abatement of the moral' 18 nuisan es being maintained by the Defendants at the Renton ', 19 Theate and reformation of said real property pursuant to the ',', 20 provisions of the common law and R. C.W. Chapter 7 . 48 and ', 21 7. 48A , and to complain and allege as follows : 22 4 : . Plaintiffs incorporate , herein by reference each and ' 23 every allegation of Paragraphs 1 through 15, and 27 through 431'' 24 inclusve, as though set forth herein in full . 25 11 W EREFORE, Plaintiff prays far relief as follows : 26 1 . That the, Court, pursuant to R. C.W. Section 7 .48 . 260 , 11 27 order that the aforesaid nuisances be abated and removed at , 28 FIRST MENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S. FOR DE LARATORY JUDGMENTS; INJUNCTIONS ; ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.ROX 626 ABATEM NT OF MORAL NUISANCES - PAGE 2,5 RENTON,WASHINGTON98057 255-8678 i l 1 the expense of the, Defendants and issue a warrant of abatement 2 which awards to Plaintiffs an estimated sum, to defray the ) 3 expens: of such abatement . 4 2 That the Court , pursuant to R . C .W. Section i . 5 7.48A. 040, determine that the Defendants , and each of them, 6 have with knowledge maintained moral nuisances , and impose a 7 civil penalty and judgment of an amount as the Court may 11 8 determ ne to be appropriate . 1 9 3 That the Court , pursuant to R. C.W. Section 7 . 48. 056, 10 abate the aforesaid moral nuisances as defined in .R.C.W. 11 Sectio 7 . 48. 052, 1and R. C.W. Section 7 . 48. 054, and enjoin the 12 use thereof pursuant to R . C.W. Section 7 . 48 . 058 and 13 perpet ally enjoin the Defendants , and each of them, from 14 mainta ning the same . 15 4 That the Court , pursuant to RCW Section '7 . 48. 076 , II 16 order that the entire expenses of abatement , including I � 17 attorn:y' s fees , shall be recoverable by the Plaintiffs as a 18 part of their costs of the lawsuit . 19 5 That the; Court, pursuant to R. C.W. Section 7 . 48. 078 , 20 enter :n order of abatement as part of the judgment in this 21 cause , which order; shall direct the removal from the place of 22 all p-.rsonal property and contents used in conducting the 23 nuisan4e and that the Court direct the sale of such thereof as 24 belong to the Defendants notified or appearing, in the manner 25 provid:d for the stale of chattels under execution , except that 26 the positive prints of obscene films shall not be sold but 27 shall oe destroyed or otherwise disposed of by the Court . 28 , FIRST AMENDED AND (SUPPLEMENTAL COMPLAINT WARREN&KELLOGG, FOR DEILARATORY JUDGMENTS; INJUNCTIONS ; ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 ABATEM ' NT OF MORAL NUISANCES - PAGE 26 RENTON,WASHINGTON 9805 255-8678' 1 6. That the Court, pursuant to R. C.W. Section 7 .48.078 , 2 impose against Defendants and each of them, a penalty of Three • 3 Hundre• Dollars ($300.00) for the maintenance " of each andll 4 every nuisance as defined in R.C.W. Section 7. 48. 052 and'I 5 Section 7 . 48 . 054 , which penalty shall be collected by 6 execut' on as in civil actions , and when collected , shall be • 7 paid i to the current expense fund of King County. 8 7. That the Court, pursuant to R. C.W. Section 7 . 48. 078, 9 issue an order reforming the real estate and directing the 10 effect al closing of the Renton Theater against its use by the 11 Defend-nts for any purpose and keeping it closed for a period 12 of one year. 13 8 . That the Court, pursuant to R. C.W. Section 7 . 48. 090: 14 • ( 1 ) d=clare that all moneys and other consideration declared 15 to be a moral nuisance under R.C.W. Section 7 . 48. 056 are the 16 subjec of forfeiture to the City of Renton and King County 17 and a e recoverable as damages ; and, (2) after judgment 18 agains the Defendants, and each of them, in these proceedings' . 19 order that an accounting be made by the Defendants , and each 20 of them, of all moneys received by them which have been 21 declar-d to be a public nuisance ; and (3 ) order an amount 22 equal o the sum of' all moneys estimated to have been taken in 23 as gross income for such unlawful commercial activity be 24 forfei ed to the general funds of the City of Renton and 'King 'il 25 County , to be shared equally, as a forfeiture of the fruits of 26 an unlawful enterprise and as partial restitution for damages 27 done t• the public welfare , public health , and public morals; 28 and ( ) determine the amount of the costs of abatement and FIRST ,MENDED AND j SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S. FOR DE LARATORY JUDGMENTS; INJUNCTIONS ; ATTORNEYS AT LAW ABATEMENT OF MORAL NUISANCES - PAGE 27 1oosOON,W SHING.ON980526 RENTON,WASHINGTON 98057 255-8678 1 assess the same as ,a lien on the real property known as the 2 Renton Theater. 3 9 That the 'Court award the Plaintiff its costs andll . I 4 • attorn:y's fees as provided by law. 5 10 . That the Court grant such other and further relief 6 as the Court deems just and proper. • 7 DiTED: May /jg , 1983. 8 9 0,--vtacePlikt Lawrence J. Wa ' �en 10 Attorney for P� aintiffs 11 STATE OF WASHINGTON ) ) ss 12 COUNTY OF KING ) 13 Lawrence J. Warren, City Attorney of the City of Renton, being first duly sworn upon oath, deposes and states : I am 14 the a torney for the Plaintiffs herein . I have read the foregoing First Amended and Supplemental Complaint for 15 Declaratory Judgments ; Injunctions ; Abatement of Moral Nuisances (R. C.W. Chapter 7.24, 7.40, 7.48 and 7 .48A) , know 16 the co tents thereof and believe the same to be true except as to matters which are therein stated upon my information or 17 belief and as to those matters that I believe it to be true . 18 Lawrence J. W ren 20 . ' Attorney for laintiff s 21 S BSCRIBED AND SWORN to before me on May /S , 1983 . 22 23 NOTARY UBLIC in a : , •r the 24 State of Washington, - siding at Renton . 25 26 27 28 FIRST &MENDED AND ;SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S. FOR DE LARATORY JUDGMENTS; INJUNCTIONS ; ATTORNEYSATLAW I 100 SO.SECOND ST.,P.O.BOX 626 ABATEM : NT OF MORAL NUISANCES - PAGE 28 RENTON,WASHINGTON 98057 255-8678 ¢, 4,..77 I 1 C -4-,rt$ .7 ci' d•u LiP,h .G' j I 1 2 3 FILED IN THE ' UNITED STATES DISTRICT COUR1 WESTERN DISTRICT OF WASHINcVTON. 4 5 FEB 8 - 1983 6 BRUCE RIFKIN, Clerk By - uri 7 1 �• . -UNITED STATES DISTRICT COURT 8 FOR THE ,WESTERN DISTRICT .OF WASHINGTON g AT SEATTLE 10 PLAYTIME HEATRES, INC. , a ) . Washingt•n corporation, et al. ,) 1 11 ) NO. C82-59M . Plaintiffs, ) 12 vs. ) 1 I ) STIPULATION AND ORDER 13 THE CITY OF RENTON, et al. , ) 14 Defendants. ) 1 ) 15 16 W REAS, this � Court has heretofore entered its Preliminary 7 i 17 InJunctio pendente lite against the enforcement of City of Renton 18 Ordinance No. 3637 after the taking of substantial evidence and 19 considera ion of numerous exhibits; and 20 WHIREAS, the development of further testimony before the 21 Court wo ld. not materially add to the evidence already before the 1 22 Court re ative to plaintiff' s claims that Ordinance N:o. 3637 is 23 unconstit tional and: the interests of Judicial economy, both for 24 the Cour , and- for the parties, would be served by a , speedy and _ y 25 efficient resolutionlof the legal issues pending before the Court; 1 F 26 NO , THEREFORE the parties stipulate as follows: ' e.r Burns &Meyer, P.S. I, STIPULATI N AND ORDER 10940 N.E. 33rd Place•Suite 107 Page 1 Bellevue,WA 98004 •(2061 828-3636 I t , • 1 STIPULATION 2 1 . Plaintiffs' claims for damages should be severed from plaintiffs' prayer forapermanent injunction against the — 3 P y � n g enforce 4 ment of City of Renton Ordinance No. 3637. 5 2 With respect to the plaintiffs' claims that City of 6 Renton O dinance No.L 3637 is unconstitutional and their prayer for 7 a perman-nt injunction against its enforcement, the matter shold be set for hearingbythe Court at the earliest available date. At g such healing, the matter shall be submitted to the Court based upon 10 the live testimony,.jaffidavits, deposition testimony and exhibits 11 previous y heard and considered by Magistrate Sweigert at the 12 hearings held relative to the plaintiffs' Motions for a Temporary • 13 Restrain ng Order and Preliminary Injunction and defendanOs 14 Motions io Dismiss Plaintiffs' Complaint and for Summary Judgment. 15 3 At such hearing, each of the parties reserve the right 16 to argue their theory of the facts and law to the Court. 17 4 . Inasmuch as all issues have been fully : briefed in 18 matters ireviously before the Court, no additional briefs will be 19 submitte• , unless called for by the Court. However, each party 1 20 shall be permitted to draw to the attention of the Court, without 21 argument, pertinent land significant authorities which come to the II 22 attentio7 of a party after the date of this stipulation stating the 23 reasons for the supplemental citations. Any response shall be made 24 promptly and shall be similarly limited. 25 / 26 / Burns &Meyer, P.S. STIPULATI•N AND ORDER 10940 N.E. 33rd Place•Suite 107 Page 2 Bellevue,WA 98004•(206)828.3636; • • • 1 D TED this 3` day of January, 1983. 2 1 BURNS & MEYER, P.S. • 4 BY & / e 5 J- ck ' . Burns ttor ey for Plaintiffs 6 7 8 • Larry Warre g • Attorney fo efendants 10 • 11 ORDER 12 I IS SO ORDERED • �1.GC, 13 D TED this •' •— day of 1983. 14 15 16 //feA-/(/) CHIEF UNITED STATES DISTRICT Ju'DGE 17 18 19 20 21 22 23 24 25 26 ' Burns F,Meyer, P.S. STIPULATION AND ORDER 10940 N.E. 33rd Place•Suite 107 Page 3 Bellevue,WA 98004•(206)828-3636 708 STATE EMPLOYEES v.COMMUNITY COLLEGE Oct.1978 Oct. 1978 NORTHEND CINEMA v.SEATTLE 709 90 Wn.2d 698,585 P.2d 474 90 Wn.2d 709,585 P.2d 1153 such services is unauthorized and in violation of the State I dissent. • _ Higher Education Personnel Law. _ This is so regardless of the cost savings which might be STAFFORD and BfACHTENBACH, JJ., concur with HICKS, J. made through such a contract. -the—niajori-ty—provides—provides Reconsideration denied December 14, 1978. By—this—pronounceme legislature did not. No basis in the statute for the specifics of this rule is identified; nor does the majority refer to any express provision in the statute which is violated by the - contract or which evinces a legislative intent to govern [No.45156._ En Banc. October 19, 1978.] matters not affecting established positions and employees. NORTHEND CINEMA, INC., ET AL, Appellants, V. THE The reason for is quite simple—there is none. The rule announced is neither man- CITY of SEATTLE, Respondent.. dated nor supported by the act; it is the product of judicial - [1] Constitutional Law — Construction — Similar State and fiat. ,- Federal Provisions. As a general rule, provisions of the state Even if there were some basis of support for the majori- constitution should be given the same interpretation that the ty's decision, RCW 43.19:190(2) compels a contrary result. United States Supreme Court gives to similar provisions in the fed- eral constitution. That provision, last comprehensively amended by Laws of - 1975-76, 2d Ex. Sess., ch. 21, § 2, p. 49, 50, delegates to the [2] Statutes — Certainty — Standing To Challenge. A party to whom a statute's application is clear cannot challenge the statute state purchasing director for the Department of General _ because of alleged vagueness in other applications. Administration the power to "[p]urchase all material, sup- plies, services and equipment needed for the support, [3] Constitutional Law — Freedom of Speech — Third Party Rights. A party challenging a statute for overbreadth may not maintenance, and use of all . . . community colleges . . ." assert First Amendment rights of others unless the statute has a (Some-italics mine.) real and substantial deterrent effect on protected speech. The record contains a series of letters and memoranda [4] Constitutional Law — Freedom of Speech — Prior from the Department of General Administration specifically Restraint — Regulation.of Location. A zoning ordinance authorizing Spokane Community College to purchase par- restricting the location of adult movie theaters does not impose an , ticular services, including "janitorial services". Thus, even if impermissible prior restraint or violate First Amendment freedoms the provisions of RCW 28B.16 could be construed as where there is no restraint on the market for distribution and exhi- implyingthat the contract was outside the authority of the bition of such films.The interest of a municipality in regulating use of property for commercial purposes justifies the regulation of place college, the specific delegation evidenced by RCW 43.19.190 _ for such First Amendment speech. and these documents in the record direct a contrary result. [5] Zoning — Exhibition of Films — Classification by Content. Judicial legislation as exemplified by the majority- opin- A zoning ordinance limiting the location of theaters based on the ion is, in my view, impossible to justify when, as here, it sexual content of the films shown does not violate equal protection deliberately reaches beyond the clearly stated purpose of an or First Amendment rights where the ordinance neither promotes act. This incursion of the legislative function is particularly nor inhibits the exhibition of the films within the specified location, sdeplorable-When-it=is=accomplished-in-the_face-of=an=express— and the ordinance promotes a substantial interest of the city in pre- statute to the contrary (RCW 43.19.190). sivint the quality of its n oo eighborhds=through-effective-land=use= - planning. 710 NORTHEND CINEMA v.SEATTLE Oct.1978 Oct. 1978 NORTHEND CINEMA v.SEATTLE 711 90:Vn.2d 709,585 P.2d 1153 90Wn.2d 709,585 P.2d 1153 • [6] Zoning — Nonconforming Use — Termination — Reason- below heard extensive testimony at trial and upheld the ableness.A zoning authority has the power to require termination validity of the City's action. We affirm. of nonconforming uses within a reasonable time. In determining whether a particular period of time is reasonable, each individual • The amendments to the City's zoning code which are at use is considered on its own facts and circumstances, balancing the issue here are the culmination of a long period of study and harm or hardship to the user against the benefit to the public to be discussion of the problems of adult movie theaters in resi- gained from termination of the use. dential areas of the City. Following local resident protests HAMILTON,J.,did not participate in the disposition of this case. against the opening of such a theater in the Greenwood Nature of Action: The operators of three theaters district, the City's Department of Community Development made a study of the need for zoning controls of adult thea- sought a declaratory judgment as to the constitutionality,of ters at the request of both the City Planning Committee a zoning ordinance restricting adult movie theaters to a and the City Council Committee on Planning and Urban specified downtown area. Development. The study analyzed the City's zoning Superior Court: The Superior Court for King County, . scheme, comprehensive plan, and land uses around existing Nos. 817771, 817772, 817845, Frank J. Eberharter, J., on adult motion picture theaters. Of the 46 motion picture March 22, 1977, upheld the validity of the ordinance but theaters operating within the City, 13 showed adult motion granted a temporary injunction against its enforcement pictures exclusively, or almost exclusively. Ten of those 13 pending appeal. were located in downtown areas where such uses are now Supreme Court: Holding that the zoning restriction permitted by the challenged ordinances. The other three, did not violate First Amendment freedoms or equal protec- the Ridgemont, the Northend, and the Apple Theater, are tion guaranties, and finding the period for termination of in areas outside the designated zones which are character- the nonconforming uses reasonable, the court affirms f firms the ized by residential uses. These three theaters show "x— judgment and dissolves the injunction. rated" films almost exclusively and display advertisements , forindicating the nature of the films on the theater marquees Victor V. Hoff,j appellants Northend Cinema et al. or_fronts.' The_Depar-tment's_study concluded that zoning Charles-Stixrud-,-for-appellant Apple-Theater. - - action-should be-taken-to-confine-adult motion picture the- John P. Harris, Corporation Counsel, and Dona Cloud, aters to downtown Seattle, and recommended that a condi- Assistant, for respondent. tional use approach be adopted for adult theaters in other areas. HOROWITz, J.—The issues raised here involve the validity The Department's study and recommendation were of two Seattle city zoning_orclinances which have the effect taken up by the City Planning Commission, which held of requiring all adult motion picture theaters as defined in 1The trial court found:Films rated 'X' are identified in the Code of Self Reg- the ordinances, to be located in certain downtown areas, and terminatingall nonconformingulation of the Motion Picture Association of America as 'pictures submitted to _ il g theater uses within 90 the Code and Rating Administration which. . .are rated X because of the treat- days. The three Seattle theaters prohibited from showing ment of sex,violence,crime or profanity.' their normal adult fare at their present locations by these The advertisements generated by these theaters and the displays on their o"rciinances challenge the constitutionalityof the zoning marquees and fronts indicate the film fare therein is sexually explicit and exploits g g a market for the shocking and bizarre sexual experience. The films are one enactments in this declaratory judgment action. The court - - sequence of explicit sexual activity after another,almost completely uninterrupted by any plot. 712 NORTHEND CINEMA v.SEATTLE Oct.1978 Oct.1978 NORTHEND CINEMA v.SEATTLE 713 90 Wn.2d 709,585 P.2d 1153 90 Wn.2d 709,585 P.2d 1153 public meetings and a joint public hearing with the City enacted on May 28 and effective on or about June 27, 1976, Council Committee on the subject. At the public hearing and ordinance No. 105584, enacted June 7 and effective on Greenwood residents spoke of their concerns regarding the or about July 7, 1976. The combined effect of the ordi- deterioration of residential neighborhoods that accompa- nances is to create a land use known as Adult Motion Pic- nies location of adult movie theaters. The concerns ture Theaters, to prohibit that use in all city zones except expressed were very specific and included the attraction of the CM (Metropolitan Commercial), BM (Metropolitan transients, parking and traffic problems, increased crime, Business), and CMT (Temporary Metropolitan Commer- decreasing property values, and interference with parental cial) zones, and to require termination of all nonconforming responsibilities for children. The Planning Commission uses within 90 days of the date the use becomes noncon- subsequently voted to recommend that the City zoning forming. The land area comprising the permitted zones is code be amended to confine adult theaters to downtown approximately 250 acres. No provision is made in the ordi- areas and phase out nonconforming uses. The Commission nances for conditional uses in other zones. opposed any conditional use plan for other zones. At the trial on appellant theaters' declaratory judgment The neighborhoods in which the three appellant theaters action the court heard extensive testimony regarding the are located have a distinctly residential character. Much history and purpose of these ordinances.2 It heard expert effort and money have been invested in long-range testimony on the adverse effects of the presence of adult improvement plans for these areas. The Greenwood corn- motion picture theaters on neighborhood children and munity, in which the Northend and Ridgemont are located, community improvement efforts. The court's detailed find- has been the subject of major development plans for years. ings, which include a finding that the location of adult the- Millions of dollars of development funds have been aters has a harmful effect on the area and contribute to invested to improve the quality and conditions of the corn- neighborhood blight, are supported by substantial evidence munity. Ongoing projects include improved sidewalks, in the record. Its refusal to enter appellant Apple Theater's lighting, and traffic control, and a new shopping mall. The proposed findings was not error, as these were either First Hill Community, in which the Apple Theater is unsupported by the record, or not related to ultimate facts ----- -- -- - - -located,-has not been the subject of such elaborate devel= concerning a material issue. In re Kennedy, 80 Wn.2d 222, opment plans, but has received substantial funds for neigh- 492 P.2d 1364 (1972). borhood improvement and is designated a residential area The central question raised is whether, in view of these in the City's long range plans. In short, the goal of the City facts, the action of the City in creating the adult motion in amending its zoning code was to preserve the character picture theater use and confining that use to certain zones and quality of residential life in its neighborhoods, as spe- within the downtown area is constitutional. A second ques- cifically found-by-the-court-below. A second-and-related tion is whether the City may constitutionally imp6ae a-90- goal, the court found, was to protect neighborhood children day termination period on nonconforming uses. We answer from increased safety hazards, and offensive and dehuman- izinginfluence created by location of adult movie theaters 2In view of the extensive record developed at the trial of the City's planning in residential areas. These goals are an integral part of the studies,meetings and hearings,we find the City has fully sustained its burden of demonstrating the conditions and need for its zoning action. Appellant Apple City's long-range land-use planning effort. Theater's objection to the record in this regard is unfounded. See Parkridge o. Thus in.May and June of 1976 the Seattle City Council Seattle, 89 Wn.2d 454, 573 P.2d 359 (1978). See also Abbenhaus v. Yakima, 89 amended the zoning_ordinancewith-ordinanceNo.105565, Wn.2d-855,-576-P.2d-888-(1978) 714 NORTHEND CINEMA v.SEATTLE Oct.1978 Oct.1978 NORTHEND CINEMA v.SEATTLE 715 90 Wn.2d 709,585 P.2d 1153 90 Wn.2d 709,585 P.2d 1153 both questions affirmatively, for the reasons discussed Supreme Court. See Housing Authority v. Saylors, 87 hereafter. We turn first to the constitutionality of the cre- Wn.2d 732, 739, 557 P.2d 321 (1976). ation and confinement'of the adult motion picture theater A. Vagueness use. Appellants' first argument is that the definition of Adult Motion Picture Theater (set out in the margin)3 is so vague as to deny them due process of law. They do not attack the Appellants make three constitutional arguments against included definitions of "Specified Sexual Activities" or the Seattle zoning provisions. First, they claim the defini- "Specified Anatomical Areas," but argue they are not ade- tion of an adult motion picture theater is so vague as to quately informed of (1) how much "depicting, describing, deny them due process of law. Second, they claim the con- or relating" to the specified areas is necessary before a film finement of such theaters to designated zones is an imper- is "distinguished or characterized by an emphasis" thereon; missible prior restraint on• protected First Amendment speech. Third, they argue the classification of theaters (2) what "depicting, describing or relating to" means; or based on the content of the films shown there violates First (3) how frequently such films must be shown before a building is "used" for the purpose. Amendment and equal protection guaranties. [1] In response to these contentions we find the decision [2] We note at the outset that the definition of adult theater use contained in the Seattle ordinance is identical of the United States Supreme Court in Young v. American in all relevant respects to the definition upheld in Young.'` Mini Theatres, Inc., 427 U.S. 50, 49 L. Ed. 2d 310, 96 S. Ct. Furthermore, as in Young, the complaining theaters show 2440 (1976) (hereinafter referred to as Young) dispositive. adult films almost exclusively. They do not claim they In that case the court approved the creation and definition of an adult theater zoning use identical in all relevant 30rdinance No.105565 Definition of Adult Motion Picture Theater respects to the Seattle zoning use. 'It also approved regula- (§ 1) tion of location for that use. Although appellants argue the 'An enclosed building used for presenting motion picture films distinguished or characterized by an emphasis on matter depicting, describing or relating to Seattle ordinance differs from the Detroit ordinance, those 'Specified Sexual Activities' or 'Specified Anatomical Areas', as hereinafter - _- -- differences do-not-have significance, as--dis= defined,for observation by patrons therein: - cussed below. We need not, of course, construe the provi- "'Specified Sexual Activities" sions of our state constitution identically with the '1.Human genitals in a state of sexual stimulation or arousal; corresponding provisions of the federal constitution. Darrin '2.Acts of human masturbation,sexual intercourse or sodomy; '3.Fondling or other erotic touching of human genitals,pubic region,buttock v. Gould, 85 Wn.2d 859, 868, 540 P.2d 882 (1975). In this or female breast. case, however, we find the reasoning of Young persuasive. It "Specified Anatomical Areas" acknowledges and_accomm_odatea the imnortflnt interest. of '1.Less than completely and opaquely covered: '(a)human genitals, pubic region, (bYbuttock, and (c)female breast below a the state in exercising its police power to protect city point immediately above the top of the areola;and neighborhoods against degradation, while preserving the '2.Human male genitals in a discernibly turgid state,even if completely and democratic principles the constitutional provisions were opaquely covered.' designed to protect. We therefore find it appropriate to 4Adult Motion Picture Theater apply the general rule that language in our state constitu- 'An enclosed building with a capacity of 50 or more persons used for present- - bag material distinguished or characterized by an emphasis on matter depicting, tion will be given the same interpretation as that given the describing or relating to 'Specified Sexual Activities' or 'Specified Anatomical federal constitutional provision by the United States 716 NORTHEND CINEMA v.SEATTLE Oct.1978 Oct. 1978 NORTHEND CINEMA v.SEATTLE 717 90 Wn.2d 709,585 P.2d 1153 90 Wn.2d 709,585 P.2d 1153 desire to show any other type of film. Therefore, the ordi- ordinance which is uncertain is readily subject to a narrow- nance is fully adequate to give them notice of the regulated. ing and constitutionally sound construction. These conclu- use, and they have no standing to challenge it for vague- sions accord with those of the court in Young under ness. Young, supra at 59. substantially identical circumstances. Appellants' due pro- [3] Nor do appellants have standing to assert the First cess claim must therefore be dismissed for lack of standing. Amendment rights of others and challenge the ordinance B. Prior Restraint for facial overbreadth. The special rule giving standing to one whose own rights are not violated to challenge an ordi- Appellants next argue the ordinance is an impermissible ordi- nance for overbreadth applies onlyif the ordinance's deter- prior restraint on protected First Amendment speech PP because it prohibits the screening of nonobscene films (i.e., rent effect on protected First Amendment speech is "both protected speech) outside the designated zones. real and substantial" and the ordinance is not easily sus- [4] As pointed out above, ceptible to a narrowingconstruction. Erznoznik v. Jack- appellants make no showing P that the market for distribution and exhibition of these sonville, 422 U.S. 205, 216, 45 L. Ed. 2d 125, 95 S. Ct. 2268 films is in fact restrained under the ordinance. There was (1975). We are not persuaded those elements are present testimony at trial that adult movie theaters would easily here. First, there is no evidence that the effect of this ordi- be able to find a location in the designated zones. Further- nance will be a substantial deterrence to protected First more, although potential viewers would be able to see the Amendment speech. It does not limit the total number of films only in those downtown areas, there is no evidence adult theaters which may operate in the City, or signifi- that this places any burden on the adult movie market. cantly inhibit viewers from gaining access to the films. The Under these circumstances, where there is no restraining court below specifically found the ordinance does not have effect on the market, and no substantial deterrent effect on any significant deterrent effect on the exhibition or viewing individual rights of free speech, the City's most important of adult motion picture films.5 Second, any language in the interest in regulating use of its property for commercial Areas,'(as'defined below)for observation by patrons therein. purposes is clearly sufficient to justify the zoning regulation here. We conclude the zoning regulation of location of adult _ . . . 'For_the purpose_of this Section,'Specified Sexual Activities'_is_defined_as:_ _ _ movie theaters is a reasonable regulation of place for First '1.Human Genitals in a state of sexual stimulation or Amendment speech g Amend- '2.Acts of human masturbation,sexual intercourse or sodomy. p eCh which does not violate First'3.Fondling or other erotic touching of human genitals,pubic region,buttock ment freedoms. See Young at page 63. The different treat- or female breast. ment accorded adult movie theaters as distinguished from 'And'Specified Anatomical Areas'is defined as: other types of movie theaters is a different issue, which we '1.Less than completely and opaquely covered: (a)human genitals,pubic reg- ion,(b)buttock,and(c)female breast below a point immediately above the top of discuss next. the areola;and C Classi€lc-ation Based-on-C eh ten t '2.Human male genitals in a discernibly turgid state, even if completely and The final objection made to the constitutionality of the opaquely covered.' zoning scheme is that it classifies theaters on the basis of 5Since we hold the ordinance does not place a substantial burden on First the content of the films shown, and treats adult movie the- Amendment speech, no presumption of unconstitutionality is raised. Appellants' argument the ordinance is presumptively invalid must therefore be rejected. Nor aters differently from other theaters showing films pro- must the City choose the least restrictive alternative available to accomplish its tected by the First Amendment. This, appellants claim, e, as alleged by appellants, since there is no substantial burden on free violates both the First Amendment and equal protection guaranties. _— —gym 718 NORTHEND CINEMA v.SEATTLE Oct.1978 Oct.1978 NORTHEND CINEMA v.SEATTLE 00 Wn.2d 709,585 P.2d 1153 90 Wn.2d 709,585 P.2d 1153 719 The United States Supreme Court, considering this the appellants, the ordinance is not a disguised form of argument in Young, departed from traditional First i censorship. The record is replete with testimony regarding Amendment jurisprudence and upheld both the classifica- the effects of adult movie theater locations on residential tion of films based on sexually explicit content and the dif- neighborhoods. The evidence is more than adequate to ferent treatment accorded the theaters showing them. The support the finding below that the goal of the ordinance is majority in Young did not reach agreement on a rationale to preserve the character and quality of residential life in for this result, but two elements appear to have been dis- the City. positive. We find those elements present here, and are per- The choice of methods for locating adult movie theaters, suaded the Seattle scheme does not deny or infringe on the that is to concentrate them in the business areas of the City rights of free speech and equal protection. rather than disperse them (as did the Detroit ordinance), is [5] The first element is that the ordinance has only a not of constitutional significance. The City's planning effort slight and neutral effect on protected speech. No real must be accorded a sufficient degree of flexibility for exper- restraint or deterrent effect is evident. The ordinance regu- imentation and innovation. Young, supra at 71, 73. We lates only the place where these films can be shown. It cannot substitute our judgment of what would be the most demonstrates a reasonable decision that the public welfare effective method of regulation in this regard. It should also is best served by having this particular type of speech take be noted that the majority in Young specifically approved place only in certain areas of the community. The ordi- the concentration method. Young, supra at 62, 71. nance thus remains neutral regarding the content of the Nor do we find it significant that the Detroit ordinance films—it neither approves nor disapproves of that content,s upheld in Young had a provision allowing waiver of the and neither promotes nor inhibits exhibition of the films. ordinance restriction while the Seattle ordinance does not. The second element is the City's great interest in pro- Our conclusion that the City may regulate the location of tecting .and preserving the quality of its neighborhoods adult movie theaters is not dependent in any way on the through effective land-use planning. The record demon- existence of possible waiver for existing theater locations. strates the City's sincere and sustained effort to enhance The-Detroit-waiver- provision-likewise played no part inthe and improve the quality of life in Seattle. Zoning is an reasoning of the majority in Young. Nor is there any show- extremely important tool for achieving land-use goals in a ing the appellants are constitutionally entitled to exemp- municipality. See Belle Terre v. Boraas, 416 U.S. 1, 39 L. tions from the zoningrestriction in this particular case. Ed. 2d 797, 94 S. Ct. 1536 (1974). Thus, "the city's interest Appellants therefore fail to show any constitutional defi- in attempting to preserve the quality of urban life is one ciency in this regard. that must be accorded high respect." Young, supra at 71. We conclude the City's paramount interestJn_protecting, We emphasize that the purpose of the ordinance is not-to preserving, and improving the character and quality of its regulate the content of speech. Contrary to the assertions of residential neighborhoods is sufficient to justify this non- aFour of the justices in Young reasoned that society has less interest in pro- discriminatory zoning regulation of the location of adult tecting sexually explicit expression than other types of protected speech. This movie theaters. We find no violation of First Amendment reasoning is not essential to the result reached,and we do not adopt it as the basis or equal protection guaranties. for the result reached here.We note,moreover,that our decision is confined in its effect to regulation by zoning of sexually explicit speech in films under the partic- 7The City also asserts an interest in protecting children as a justification for the ordinance. This interest alone will not support a classification based on the /dnr-circumstances-of-this-case. content of speech.Erznoznik v.Jacksonville,422 U.S.205,213,45 L. Ed. 2d 125, 720 NORTHEND CINEMA v.SEATTLE Oct.1978 Oct.1978 NORTHEND CINEMA v.SEATTLE 90 Wn.2d 709,585 P.2d 1153 90 Wn.2d 709,585 P.2d_1153 721 We therefore turn to the final issue presented, the con- parties. Therefore, Northend is not bound by any lease stitutionality of the provision for termination of noncon- obligation to remain at its present location. Nor is it bound forming uses within 90 days. by its lease or its license to show adult films as opposed to II any other type of film. Furthermore, whatever costs it has Appellants contend the 90-day termination provision expended for improvements to the building or necessary denies them equal protection in that no other nonconform- equipment have either been completely recovered through ing use must be terminated in such a short period, and depreciation or were contemplated to be left as property of denies them due process by creating an economic hardship the lessor. outweighing the public benefit to be gained by termination. Gaiety Theaters, Inc., operator of the Ridgemont Thea- [6] With regard to the equal protection argument, ter, is similarly situated. Its lease is the individual obliga- appellants fail to show they are similarly situated with tion of its president, and does not bind the corporation to other nonconforming users. This is particularly evident remain at its present location. It is not bound by its lease or because the calculation of a reasonable termination period, its license to' show adult films. Furthermore, it has as discussed below, depends on the facts and circumstances expended no funds on physical improvements. of the particular case. Since each case must be determined Apple Theater, Inc., is the lessee and operator of the on its own merits, the equal protection analysis does not Apple Theater. Apple entered into a new 3-year lease just prior to adoption of the ordinance, and while public hear- apply.In Seattle v. Martin, 54 Wn.2d 541, 342 P.2d 602 (1959) ings were being held on the proposal. It is not obligated by this court recognized the power of a municipality to require its lease, or by its license, to show adult films. Furthermore, termination of nonconforming uses within a reasonable all costs it has expended in improvements to the building period of time. We adopted a balancing test to determine or necessary equipment have either been recovered through the reasonableness of the termination period, that is, depreciation or were contemplated to be left as property of whether the harm or hardship to the user outweighs the the lessor. _ _ ._benefit_to the_ public__to be_.gained_from_termination of the _ __ _ _ In the face of these facts, the_court below found-appel - - - - -use. Seattle v. Martin,-supra at 544. As pointed out above, lants had not come forward with any clear evidence of eco- this test is applied on a case-by-case basis, looking to the nomic harm. The main thrust of their objection, that circumstances of each nonconforming user. Applying this simply having to move to another location or show a differ- test to each of the appellants here, we conclude the 90-day ent type of film is substantial economic harm, is unsup- termination period is not unreasonable and does not deny ported by any clear evidence. The court had a right to appellants due process of law. conclude that appellants' allegations they will suffer eco- Northend Cinema, Inc., has the license to operate the nomic harm were speculative at best. The record thus sup- Northend Theater. The evidence at trial showed the owner ports the finding of the court below that Northend and and lessor of the building is an officer of the corporation. - Gaiety will incur no economic damage, and Apple will incur The leasing arrangement is thus very informal and may be no clear economic damage, by enforcement of the characterized as terminable at will or on short notice by the ordinance. 1 ., The public benefit to be gained by termination, we have 95 S.Ct.2268(1975).We recognize,however,that the particular needs of children said, is a step toward controlling deterioration of city are a significant element in determining the quality of urban residential 'neighborhoods. 722 SPOKANE v.J-R DISTRIBUTORS Oct.1978 Oct. 1978 SPOKANE v.J-R DISTRIBUTORS 723 90 Wn.2d 722,585 P.2d 784 -- 90 Wn.2d 722,5$5 P.2d 784 - neighborhoods, and toward productive land-use planning. [3] Municipal Corporations —Nuisance- Powers of Cities — This benefit is well supported by the record. Statutory Provisions. RCW 35.22.280(30), which authorizes We conclude the benefit to the public through termina- first-class cities to declare what is a nuisance and abate the same, of these uses within 90 days outweighs the harm ! does not grant the power to exercise control over the courts in con- tionY g nection with the abatement of nuisances. appellants will sustain thereby. The termination period is reasonable, and appellants have suffered no violation of due [4] Municipal Corporations — Powers — Conflict With State Law — Effect. Municipal ordinances are invalid insofar as they process. i • conflict with state law on the same subject or with a detailed rule of - We are mindful that this ordinance was passed in 1976. A court relating to judicial procedure. temporary injunction against enforcement of the zoning [5] Statutes — Construction —Partial Invalidity — Effect. If a restrictions pending this appeal has allowed appellants to' statute cannot achieve its legislative purpose without a portion continue normal business operations in the intervening which is invalid,the entire statute will be of no effect. months. Much more than 90 days' time has elapsed. Appel- lants have therefore had more than ample time to prepare Nature of Action: A city sought to abate an adult ordi- for the contingency of having to terminate their present bookstore as a "moral nuisance" pursuant to a city nance which provided for proceedings in the superior court. adult movie theater use. The temporary injunction is dissolved and the judgment Superior Court: The Superior Court for Spokane below is affirmed. County, No. 235149, Marcus M. Kelly, J. Pro Tern., dis- missed the action on March 21, 1977, for lack of jurisdiction WRIGHT, C.J., ROSELLINI, STAFFORD, UTTER, BRACHTEN- and held the ordinance invalid. BACH, DOLLIVER, and HICKS, JJ., and .PRICE, J. Pro Tem., Supreme Court: The court affirms the dismissal and concur. the invalidation of the ordinance, holding that a municipal- Reconsideration denied December 14, 1978. . ity has no authority to vest jurisdiction on the superior court or to direct procedure therein, and that the ordinance conflicts--with-state-law on the same subject. Richard F. Wrenn, Corporation Counsel, John J. [No.45291. En Banc. October 19, 1978.] Madden, Acting Corporation Counsel, and Greg Smith and Emmett J. Shearer, Assistants, for appellant. THE CITY OF SPOKANE, Appellant, v. J-R DISTRIBUTORS, INC., Respondent. Victor V. Hoff, for respondent. [1] Municipal Corporations—Powers —In General.The-power DonaldC. B�ckett, Prosecutin�A.ttvrney o Spokane of municipal corporations to enact laws depends upon an express or County, on behalf of Washington Association of Prosecut- implied constitutional or legislative grant. ing Attorneys, Slade Gorton, Attorney General, and [2] Municipal Corporations — Courts — Practice and Proce- Thomas F. Carr, Assistant, amici curiae. dure — Local Ordinances — Effect. Municipal corporations have no authority to confer jurisdiction upon the superior courts or HICKS, J.—The City of Spokane appeals from an order - to dictate procedural matters within such courts.. dismissing its action under ordinance No. C-23398 to abate 1 t _ _ ECEIVED 1 'i NS , 2 ctlAY 19 1983 , 3 Ci a Y Lir RENTON MAYOR'S OFFICE 5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY OF RENTON, a municipal , ) corporation; LAWRENCE J. WARREN, )7 City ttorney of the City of ) NO . 8 Renton; STATE OF WASHINGTON, ) ex re . LAWRENCE J. WARREN , ) AMENDED SUMMONS ON City Attorney of the City of ) FIRST AMENDED AND 9 Rento , ) SUPPLEMENTAL COMPLAINT 10 ) FOR DECLARATORY Plaintiffs , ) JUDGMENTS; INJUNCTIONS ; 11 ) ABATEMENT OF MORAL vs . ) NUISANCES (R. C.W. CHAPTER ) 7. 24, 7. 40, 7. 48 AND 12 PLAYTIME THEATRES, INC. , ) 7.48A) • a Washington corporation, ) 13 KUKIO BAY PROPERTIES, INC. , ) a Washington corporation, ) 14 ROGER H. FORBES and JANE DOE ) FORBES, husband and wife , ) 15 ROBERT B. McRAE and ELIA C. ) McRAE and DOES 1 THROUGH 10 , ) 16 Defendants . ) ' ) 17 18 THE STATE OF WASHINGTON TO: PLAYTIME THEATRES , INC . , a Washington corporation , 19 KUKIO BAY PROPERTIES , INC . , a Washington corporation , 20 ROGER H. FORBES and JANE DOE FORBES, husband and wife , 21 ROBERT B. McRAE and ELIA C. 22 McRAE, and DOES 1 THROUGH 10 �3 A lawsuit has been started against you in the above- entitled Court by CITY OF RENTON, a municipal corporation; 24 LAWRENCE J. WARREN, City Attorney of the City of Renton; STATE OF WASHINGTON, ex rel . LAWRENCE J. WARREN, City Attorney of 25 the City of Renton, Plaintiffs . Plaintiffs' claim is stated in the written Complaint , a copy of which is served upon you 26 with this Summons . �7 In order to defend against this lawsuit , you must respond to the complaint by stating your defense in writing, and serve 28 a copy upon the undersigned attorney for the Plaintiffs within AMENDED SUMMONS WARREN&KELLOGG,P.S. PAGE 1 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 A 1 twent (20) days after the service of this Summons , excluding the dray of service, or a default judgment may be entered 2 against you without notice. A default judgment is one where Plaintiff is entitled to what he asks for because you have not 3 responded. If you serve a Notice of Appearance on the undersigned attorney, you are entitled to notice before a 4 default judgment may be entered. 5 4ou may demand that the Plaintiffs file this lawsuit with the Court . If you do so, the 'demand must be in writing and . 6 must be served upon the person signing this Summons . Within fourteen ( 14) days after you serve the demand, that person 7 must File this lawsuit with the Court , or the service on you of this Summons and Complaint will be void. 8 If you wish to seek the advice of an attorney in this 9 matter, you should do so promptly so that your written response, if any, may be served on time . 10 This Summons is issued pursuant to Rule 4 of the Superior 11 Court Civil Rules of the State of Washington. 12 Dated: May . , 1983. 13 14 LAWRENCE J. WARREN 15 of Warren & Kellogg, P.S. Attorneys for Plaintiff 16 17 18 19 20 21 22 �3 24 25 26 27 28 AMENDED SUMMONS WARREN&KELLOGG,P.S. PAGE 2 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 A I , 1 2 3 4 5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY of RENTON, a municipal ) corporation; LAWRENCE J. WARREN, ) 7 City Attorney of the City of ) NO . 8 Rento ; STATE OF WASHINGTON, ) ex rel. LAWRENCE J. WARREN , ) FIRST AMENDED AND City Attorney of the City of ) SUPPLEMENTAL COMPLAINT 9 Renton , ) FOR DECLARATORY 10 ) JUDGMENTS; INJUNCTIONS ; Plaintiffs, ) ABATEMENT OF MORAL 11 ) NUISANCES (R.C.W. CHAPTER v . ) 7.24, 7 .40 , 7 .48 AND ) 7. 48A) 12 PLAYTIME THEATRES, INC. , ) a Washington corporation, ) 13 KUKIO BAY PROPERTIES, INC. , ) a Washington corporation, ) 14 ROGER H. FORBES and JANE DOE ) FORBES, husband and wife, ) 15 ROBERT B. McRAE and ELIA C . ) 16 McRAE and DOES 1 THROUGH 10, ) Defendants . )17 ) 18 Now comes the City of Renton joined by Lawrence J. 19 Warren, its City Attorney, and for their Complaint against the 20 Defendants herein complain and allege as follows : 21 ALLEGATIONS COMMON TO ALL COMPLAINTS 22 1 . Plaintiff City of Renton is a municipal corporation �3 organized and existing under the laws of the State of 24 Washington and the Optional Municipal Code (R . C.W. Chapter 25 35A) . Lawrence J. Warren, as Plaintiff and as relator for the 26 State of Washington, is now and at all times herein mentioned �7 was the City Attorney of the City of Renton . 28 I . FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S. ATTORFOR DECLARATORY JUDGMENTS; INJUNCTIONS ; .SECON ST.,S AT P.O. 100 SO.SECOND ST.,P. .BOX 626 ABATEMENT OF MORAL NUISANCES - PAGE 1 RENTON,WASHINGTON 98057 255-8678 1 Plaintiffs are informed and believe and therefore 2 allege that th;e Defendant Kukio Bay Properties , Inca 3 (hereinafter "Kukio") and the Defendant Playtime Theaters , 4 Inc. , (hereinafter "Playtime" ) are corporations organized and 5 existing under the laws of the State of Washington, with their 6 prin ipal places of business located in King County , 7 Washi gton . 8 Plaintiffs are informed and believe and therefore 9 alleg that on or about January 26, 1982, the Defendant Kukio 10 purch sed two motion picture theaters within the city limits 11 of Re ton, King County, Washington known as the Renton Theater 12 and oxy Theater, commonly described as 507 and 504 South 13 Third Street, respectively, and more particularly described as 14 follo s : 15 liENTON THEATER: �ot 4 and the West 2 feet of Lot 3, Block 34, 16 Smither's Second Addition to the Town of Renton , 17 according to the plat recorded in Volume 10 of Plats, page ' 28, records of King County, Washington , 18 and i'OXY THEATER : 19 Lots 1 and 2, Block 6, Smither' s Sixth Addition to 20 the Town of Renton, according to the plat recroded in Volume 26 of Plats, page 47, records of King 21 County, Washington , 22 Situated in King County, Washington 23 4. The Renton Theater is located within the following 24 distances of the following existing zones and uses : 25 a . Adjacent to a multiple residential use located at 26 306 Morris Ave . So . , Renton; and 30 feet from a single family 27 residential use located at 310 Morris Ave . So . , Renton . 28 b . 30 feet from a church commonly known as Awareness of FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN&K ,P.S. ATTORNEYSS A ATT L LA AW FOR DECLARATORY JUDGMENTS; INJUNCTIONS ; 100 SO.SECOND ST.,P.O.BOX 626 ABATEMENT OF MORAL NUISANCES - PAGE 2 RENTON,WASHINGTON 98057 255-8678 1 Life Christian Metaphysics Church and located at 311 Smithers 2 Ave. So . ; 270 feet from a church commonly known as St . 3 Antho y's Catholic church located at 406 So. 4th Street ; and 4 280 f et from a church commonlyknown as Martin Luther King, ' , 5 Jr. , emorial Baptist Church located at 324 Smithers Ave. So . 6 620 feet from Renton High School located at 400 So . 7 2nd Street ; and 470 feet from St. Anthony' s Parochial School 8 locat-d at 314 Sod. 4th Street . 9 . The Roxy ' Theater is located within the following 10 dista ces of the following existing zones and uses : 11 . Adjacent to a multiple residential use. 12 210 feet from a church commonly known as. Awareness 13 of Life Christian Metaphysics Church located at 311 Smither, 14 Ave. So . ; 420 feet from a church commonly known as St .[ 15 Anthony' s Catholic Church located at 406 So . 4th Street ; and 16 430 feet from a ,church commonly known as Martin Luther King , 17 Jr . , Memorial Baptist Church located at 324 Smithers Ave. So . 18 c . 420 feet from Renton High School located at 400 So . 19 2nd t . ; and 530 feet from St . Anthony' s Parochial School 20 locat-d at 314 So. 4th Street . . . 21 Defendant Roger H. Forbes and Jane Doe Forbes , whose 22 true name is unknown to Plaintiffs, are a marital community �3 under the laws of the State of Washington. The obligation of 24 Roger H. Forbes is the obligation of the marital community . 25 Plain iffs are informed and believe and therefore allege that 26 the efendant Roger H. Forbes is the President and sole �7 offic r, director and stockholder of the Defendant Playtime 28 and as been since the incorporation of Playtime in 1976 . FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S. ATTORNEYS AT LAW FOR D CLARATORY JUDGMENTS; INJUNCTIONS ; 100 SO.SECOND ST.,P.O.BOX 626 ABATE4ENT OF MORAL NUISANCES - PAGE 3 RENTON,WASHINGTON 98057 255-8678 1 Plaintiffs are informed and believe and therefore allege that 2 the ]befendant Roger H. Fobes is the President and sole 3 officer, director and stockholder of the Defendant Kukio and 4 has been since the incorporation of Kukio in 1976. Plaintiffs 5 are informed and believe and therefore allege that the 6 defen ant Roger H. Forbes is the only person who is authorized 7 to make management decisions for the Defendant Playtime and 8 the Defendant Kukio. 9 7 . Plaintiffs are informed and believe and therefore 10 allege that the Defendant Roger H. Forbes was and now is the 11 principal and alter-ego , of the Defendant Playtime and the 12 Defendant Kukio and that he is beneficially interested in the 13 incom , profits , and financial success of said corporations 14 m'and has dominated, influenced, and controlled the business and 15 affai s of said corporations so that there is such a unity of 16 interest in ownership between said person and said corpora- 17 tions . The said corporations are not organized for a lawful 18 purpose as required by R. C.W. 23A .08 .010 . Therefore, the 19 individuality and separateness of said person and said 20 corporations has ceased to exist , and that adherence to the 21 ficti n of the separate existence of said Defendants herein 22 would, under the circumstances, tolerate a fraud and promote 23 an injustice . 24 8 . Defendants Robert B. McRae and Elia C . McRae , 25 husband and wife, are a marital community existing under the 26 laws of the State of Washington . Defendants McRae are Sellers �7 under that certain Real Estate Contract dated January 26 , 28 1982 , and recorded under King County Recording No . 8201260640 , FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S. ATTORNEYS AT LAW FOR D CLARATORY JUDGMENTS ; INJUNCTIONS ; 100 SO.SECOND ST.,P.O.BOX 626 ABATEMENT OF MORAL NUISANCES - PAGE 4 RENTON,WASHINGTON 98057 255-8678 1 by which Defendant Kukio purchased the real property more, 2 parti ularly described above. That Real Estate Contract was 3 amendede instrument in writingdated March 18, 1 8 and' by � 9 3, 4 recorded under King County Recording No . 8303311087 . 5 Defen ants McRae ,may claim some interest in the real property) 6 which is the subject of this action. 7 Plaintiffs are informed and believe and therefore 8 alleg that the Defendants Does 1 through 4 are the managers 9 or a ting managers and/or persons in charge of the Renton 10 Theat r. 11 0. Plaintiffs are informed and believe and therefore' 12 alleg that the Defendants Does 5 through 10 are the writers ,, 13 creators , solicitors , promoters , advertisers , publicists , 14 distr'butors, and/or suppliers of the motion picture films 15 being supplied to and exhibited at the Renton Theater and are 16 in so, e way responsible for the creation and/or maintenance of 17 the hereinafter described and alleged as occurring at 18 Ises said location. 19. 1 . The true names and capacities , whether individual , 20 plura , corporate, associate, or otherwise of the Defendants', 21 Does through 10 are unknown to Plaintiffs , who therefore sue 22 said efendants by such fictitious names and will ask leave of 23 court to amend this complaint to show said Defendants true 24 names and capacities when the same have been ascertained by, 25 the Plaintiff. 26 12. Plaintiffs are informed and believe and therefore 27 alleg that on or about January 26, 1982, the Defendant Kukio 28 lease said Renton Theater and Roxy Theater to the Defendant FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S. ATTORNEYS AT LAW FOR D CLARATORY JUDGMENTS; INJUNCTIONS ; 100 SO.SECOND ST.,P.O.BOX 626 ABATE, ENT OF MORAL NUISANCES - PAGE 5 RENTON,WASHINGTON 98057 255-8678 1 Playtime by written agreement for a period of ten years 2 comme cing on or, about January 27, 1982, with an option to 3 rene the lease for an additional term of ten years 4 termi ating on January 26, 2002. Said lease agreements 5 provided that such premises were to be used for the purpose of 6 conducting the business of an "adult motion picture theater" • 7 exhibiting "adult film fare ." The Defendant Playtime took 8 possession of the theaters on or about January 27, 1982 , and 9 commenced operating said theaters as non-adult motion picture 10 theaters , in that said theaters exhibited motion picture films 11 which do not reaisonably come within the definition of "adult 12 film fare ." • 13 13. Beginning on or about January 20 , 1983 and 14 repe.tedly and continuously thereafter, the Defendants and 15 each of them have commercially exhibited , or caused to be 16 exhibited, as a regular course of business , and possessed for 17 the purpose of such exhibition, the following motion picture . 18 films which have been exhibited continuously at the Renton 19 Theater on the below listed dates : 20 PROGRAM DATE EXHIBITED 21 1 ) Deep Throat 1/20/83 - 2/10/83 22 Devil In Miss Jones �3 2 ) Blue Jeans 2/11/83 - 2/17/83 Naughty Network 24 3 ) American Desire 2/18/83 - 3/3/83 25 All American Girls 26 4 ) Foxholes 3/4/83 - 3/ 10/83 Randy, The Electric Lady 27 5 ) Scoundrels 3/11/83 - 3/17/83 28 Foxtrot WARREN&KELLOGG,P.S. FIRST AMENDED AND SUPPLEMENTAL COMPLAINT ATTORNEYS AT LAW FOR DECLARATORY JUDGMENTS; INJUNCTIONS ; 100 SO.SECOND ST.,P.O.BOX 626 ABATEMENT OF MORAL NUISANCES - PAGE 6 RENTON,WASHINGTON 98057 255-8678 1 PROGRAM DATE EXHIBITED 2 6 ) rresistible 3/18/83 - 3/24/83 cheherezade, One Thousand and 3 One Erotic Nights - 4 7 ) atisfactions 3/25/83 3/31/83 andora' s Mirror 5 8 ) bebbie Does Dallas _ 4/1 /83 - 4/7/83 6 Jebbie Does 'Dallas. II 7 9 ) ittle Girls Lost 4/8/83 - 4/14/83 ring of Des ire 8 10) he Dancers 4/15/83 - 4/21/83 9 i=etween the Sheets 10 11 ) 4addy' s' Little Girl 4/22/83 - 4/28/83 he Little French Maid 11 12) ) very Which Way She Can 4/29/83 - 5/5/83 12 ightlife 13 13) expose Me Now 5/6/83 - 5/12/83 "14 tormy 15 14) oung Doctors in Lust 5/13/83 - 5/ /83 Intimate Explosions 16 14 . For the purpose of marshalling evidence to prove the 17 doing of wrongful acts , Plaintiff City of Renton directed 18 certain individuals, acting as its agents to enter the Renton 19 Theater, and view and photograph the visual images, conduct 20 and .cenes being depicted on the motion picture screen 21 therein, and tape record the sound track being played in said. 22 theater . Said individuals acting as agents of the City of �3 Renton, paid the required admission fee at the time they 24 entered the Renton Theater with funds supplied by the City. of 25 Renton . 26 15 . Time-and-motion studies of each of the 28 motion 27 picture films named in Paragraph 13 above, have been prepared . 28 such time-and-motion studies , consisting of a chronological; FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S. ATTORNEYS AT LAW FOR DECLARATORY JUDGMENTS; INJUNCTIONS ; 100 SO.SECOND ST.,P.O.BOX 626 ABAT MENT OF MORAL NUISANCES - PAGE 7 RENTON,WASHINGTON 98057 255-8678 1 series of photographs timed in their relative order of 2 appea ance, fairly and accurately depict the sexual conduct, 3 norma and perverted, actual and simulated being portrayed on, 4 the motion picture screen on the dates such photographs were 5 taken . 6 FIRST CAUSE OF ACTION 7 'ECLARATORY JUDGMENT RE CITY OF RENTON ORDINANCE 8 ' os . 3526, 3629 and 3637. (Chapter 7 . 24 R.C.W. ) 9 omes now the Plaintiff City of Renton to request a 10 decla atory judgment pursuant to Chapter 7 . 24 R.C.W. and to 11 compl:in and allege as follows : 12 6. Plaintiff City of Renton incorporates herein by 13 refer-nce each and every allegation of Paragraphs 1 through, 14 15, i elusive, as though set forth herein in full . 15 17. On April 13, 1981 , the Plaintiff City of Renton' 16 enact d City of Renton Ordinance No . 3626 entitled : "An, Ordin nce of the City of Renton, Washington, Relating to Land 17 1$ Use a d Zoning" (hereinafter referred to as the "Renton Adult 19 Use Ordinance") , a true and correct copy of which is attached 20 heret as Attachment "A" and incorporated herein by reference 21 as t ough set forth herein in full. By the terms of said 22 ordin nce , an "adult' motion picture theater" , as defined in �3 the rdinance, is a prohibited land use within the area 24 circu scribed by ''a circle which has a radius consisting of the 25 follo ing distances from the following specified uses or 26 zones : 27 Within , or within one thousand feet of, any residential zone, or any single family or 28 multiple family residential use . FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S. ATTORNEYS AT LAW FOR D CLARATORY JUDGMENTS; INJUNCTIONS ; loo SO.SECOND ST.,P.O.BOX 626 ABATE ENT OF MORAL NUISANCES - PAGE 8 RENTON,WASHINGTON 98057 255-8678 • • I 1 .. + • Within , one mile of any public or private schoo1.1 2 Within 'one thousand feet of any church or other 3 religious facility or institution. 4 4 . Within lone thousand feet of any public part or P-1 zone . 5 8. On May 3, 1982, the City Council of the' City of 6 • R'entol passed and adopted Ordinance No. 3629 as an emergencyl, 7 measu, e , to be effective as of the date of its passage and 8 appro al by the mayor on May 3, 1982, amending Ordinance No. 9 10 3526. A copy lot' Ordinance 3629 is attached hereto as A;ttaciment "C" and incorporated herein by reference as though 11 set forth herein in full . The principle changes were: 12 ( 1,) The amending ordinance contained 13 a statement of the reasons for enactment of both Ordinance No. 3526 and Ordinance 14 No . 3629 ; 15 (2) A definition of the word "used" was addled; 16 (3)' Violation of the use provisions' 17 of the' ordinance was declared to be a nuisance per se which was required to be 18 abated by civil action and not by criminal enforcement; 19 20 (4') The required distance of an adult theatre from a school was reduced from one mile to 1 , 000 feet ; and, 21 22 .(5 ) A severability clause was added . �3 9. On June 14, 1982 , the City Council of the City of Rento passed a third ordinance, No. 3637, which was identical 24 25 to 0 dinance No . 3629 in all respects except that the 26 emerg ncy clause was deleted and the ordinance was to become effec ive as a ' regular ordinance thirty days following its 27 publi ation . A copy of Ordinance No. 3637 is attached hereto,. 28 FIRST AMENDED AND'' SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S. ATTORFOR DECLARATORY JUDGMENTS; INJUNCTIONS ; .SECON ST.,P.S AT .B 1 100SO.SECONDST.,P.O.BOX626 ABATEMENT OF MORAL NUISANCES - PAGE 9 RENTON,WASHINGTON98057 255-8678 1 a's A tachment "D" and incorporated herein by reference as 2 thoug set forth herein in full . 3 O. On January 20 , 1982 , the Defendants Kukio and 4 Playtime filed an action in the United States District Court 5 for he Western , District of Washington at Seattle entitled'' 6 "Complaint for ' Declaratory Judgment and Preliminary 7 Injun tion" , alleging federal jurisdiction under 28 U.S. C. § 8 1131 ( ) , 42 U.S.C. § 1983 and 28 U.S. C. § 2202 and Rule 57 of', 9 the ederal Rules of Civil Procedure , challenging the 10 constitu fitionality of City of Renton Ordinance No. 3526. On 11 Febru-ry 9, 1982, the Defendants Kukio and Playtime filed and 12 served a new verified Complaint entitled "Amended and 13 Supplemental Complaint for ' Declaratory Judgment and 14 Preliminary and Permanent Injunction" , a copy of which is 15 attac ed hereto as Attachment. "B" and incorporated herein by 16 reference as though set forth herein in full . 17 1 . On February 19, 1982, the Plaintiff City of Renton 18 filed the within' civil action in King County Superior Court 19 seeki g a declamatory judgment that Ordinance No . 3526 was 20 constitutional as applied to the use of the Renton and Roxy 21 theat rs as proposed and described in the Defendants Kukio and 22 Playt me's verified Amended and Supplemental Complaint and in 23 the eposition of the Defendant , Roger H. Forbes , taken on 24 April 9, 1982. Concommitantly, the City of Renton moved to 25 dismi s the above described federal action and for summary 26 judgment in such ' action on several grounds, including grounds �7 that the U. S . District Court lacked subject matter 28 juris lotion to adjudicate the constitutionality of Renton' FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S. FOR D CLARATORY JUDGMENTS; INJUNCTIONS ; ATTORNEYS AT LAW ABATE ENT OF MORAL NUISANCES - PAGE 10 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 • �I 1 Zonin Ordinance , No.• 3526 as applied to the theaters because 2 of th pendency of the state action. On February 18, 1983 , the U S. District Court denied the City's Motion to Dismiss on 3 4 Juris ictional Grjounds but granted the City of Renton' s Motion 5 for S mmary Judgment . On April 29, , 1983 the Court filed its 6 order denying the Defendants' Motion to Amend or Alter its' . 7 Judgment in the federal action. 8 '2. A controversy and dispute now exists between the 9 Plain iff City of Renton and the Defendants relating to their 10 legal rights and, duties and the effect of "City of Renton 11 Adult Use Ordinance", being Ordinance No. 3526 as amended by 12 Rento Ordinances No . 3629 and No . 3637, upon Defendants as i3 folio s : 14 Plaintiff City of Renton claims that the "City of 15 Rento Adult Use ; Ordinance" , as amended, is constitutional on, 15 its face . Defendants claim that said ordinance is 17 unconstitutional on its face . 18In Plaintiff City of Renton claims that the "City of 19 Renton Adult Use ; Ordinance , as amended, is constitutional as 20 applied to the "adult motion picture theater" land use 21 origially proposed by the Defendants and the "adult motion 22 picture theater" land use actually employed by said Defendants �3 from and after January 20, 1983, as more fully described in 24 Parag aphs 14, 15 and 16 of this Complaint . Defendants claim 25 that aid ordinance is unconstitutional as applied to the land 26 use .s originally proposed and as actually employed by the �7 Defendants from and after January 20, 1983. 28 FIRST AMENDED AND[ SUPPLEMENTAL COMPLAINT FOR D CLARATORY JUDGMENTS;• INJUNCTIONS ;• WARREN&K ,P.S. ATTORNEYSS A AT T L LA AW ABATER ENT OF MORAL NUISANCES - PAGE 11 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 Plaintiff City of Renton claims that the component ' 2 parts of the "City of Renton Adult Use Ordinance" as 3 origi ally enacted and as amended are independent and , sever ble and that this Court has the duty and obligation to 5 inter7ret the same in a constitutional manner, so as to give ' effect to thegeneral purpose of the CityCouncil of the City - . e t P P Y , 7 of Renton and its manifest intention. Defendants claim that 8 said ordinance is not susceptible of a constitutional ' 9 construction and is not severable . 10 Plaintiff City of Renton claims that, pursuant to 11 the provisions of the "City of Renton Adult Use Ordinance" , as 12 amend d, an "adult motion picture theater" is a permitted use 13 withi the B- 1 and more intensive land use zoning classifica- 14 tions currently in use within the -City of Renton except to the 15 exten that the, specific use is prohibited by the terms of 16 said ordinance , and that there is no requirement that an 17 application be made for a special permit, conditional use or 18 variance prior to the commencement of such specific land use . 19 Defen ants claimed in their verified "Amended and Supplemental 20 Compl int for Declaratory Judgment and Preliminary and 21 Perma ent Injunction" , filed on February 9, 1982 in the United 22 State District Court for the Western District of Washington, 23 entit ed Playtime Theaters , Inc . , a Washington Corp . , and 24 Kukio Bay Properties , Inc. , a Washington Corp . v. The City of 25 Rento , , et al. , No. C ,82-59M, that the "City of Renton Adult 26 Use 0 dinance" , as amended , provides a new use classification 27 withi the zoning laws of the City of Renton of an "adult 28 motio picture theater" which is not a permited use within any FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S. FOR D ' CLARATORY JUDGMENTS; INJUNCTIONS ; ATTORNEYS AT LAW ABATEMENT OF MORAL NUISANCES - PAGE 12 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 zoning classification currently in the City of Renton, thereby 2 requiring the Defendants to obtain a special permit , condi- 3 tional use or variance prior to commencement of such use . 4 e". Plaintiff City of Renton claims . that the "City of • 5 Renton Adult Use Ordinance" , as 'amended , prohibits the 6 Defendants from using the specific motion picture theater 7 prem'ises described herein as an "adult motion picture 8 theater ." Defendants deny such claim. 9 23. That no adequate remedy other than that herein 10 prayed for exists by which the rights of the parties hereto 11 may be determined. 12 WHEREFORE, Plaintiff City of Renton prays for relief as 13 follows : 14 1 . That " the Court declare that the "City of Renton 15 Adult Use Ordinance" , being Ordinance No. 3526, as amended by 16 Ordinance No . 3629 and No . 3637, is constitutional on its 17 face, valid for all purposes and in full force and effect . 18 2. That the Court declare that the "City of Renton 19 Adult Use Ordinance" , as amended, is constitutional as applied 20 to the land use originally proposed and the land use actually 21 emplo ed by Defendants from and after the period commencing on Janua 20, 1 8 and continuingthrough and includingthe date 22 Y9 3 g �3 of the filing of this Amended and Supplemental Complaint . 24 B. That the Court declare that it was the manifest 25 intention of the Renton City Council to make the component 26 parts of City of Renton Ordinances No . 3526 , No . 3629 and No . 27 3637 independent and severable and that such parts are 28 indep ndent and severable . FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN&KEuocc,P:s. FOR DECLARATORY JUDGMENTS; INJUNCTIONS ; ATTORNEYS AT LAW ABATEMENT OF MORAL NUISANCES - PAGE 13 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 • 4. That the Court declare that an "adult motion picture 1 2 theater" is a permitted use within the B-1 and more intensive 3 land use zoning classifications currently in use within the 4 City of Renton, except to the extent that it may be prohibited 5 by the "City of Renton Adult Use Ordinance" , as amended, and 6 that therefore no special permit , conditional use or variance . 7 application is required prior to the commencement of the land 8 use of an "adult motion picture theater" in areas of the city 9 in which it is not prohibited by said ordinance . 10 5. ' That the Court declare that the Defendants' use , 11 during the period commencing on January 20, 1983 and 12 continuing through and including the date of the filing of 13 this Amended and Supplemental Complaint , of the specific 14 motioi picture theater premises more particularly described 15 herein, as an "adult motion picture theater" as defined in the 16 ordinance was and' is prohibited by the "City of Renton Adult 17 Use Ordinance" , as amended, and constitutes a per se public , 18 nuisance . 19 6. That the Court award the Plaintiff its costs and 20 attoriey's fees as provided by law and such other and further 21 relie as the Court deems just and proper . 22 SECOND CAUSE OF ACTION INJUNCTION RE CITY OF RENTON ORDINANCE Nos . 3526 , AS �3 AMENDED BY ORDINANCES Nos . 3629 and 3637. (R . C.W. 24 CHAPTER 7. 40) 25 �omes now the Plaintiff City of Renton pursuant to the 26 provisions of R. C..W. Chapter 7 . 40 to request an injunction 27 against the Defendants herein and to complain and allege as 28 follows : FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S. FOR DECLARATORY JUDGMENTS ; INJUNCTIONS ; ATTORNEYS AT LAW ABATE' ENT OF MORAL NUISANCES - PAGE 14 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 24. Plaintiff City of Renton incorporates herein by 2 reference each and every allegaton of Paragraphs 1 through 21 , 3 inclusive, as though set forth herein in full . 25. That there is no plain, adequate or speedy remedy at 4 5 law available to the Plaintiff and that the Plaintiff will 6 suffer irreparable damage unless the Defendants are restrained • 7 from exhibiting at the Renton Theater the type of motion 8 picture films described in Paragraph 13 of this Complaint, and 9 from further use of the Renton Theater as an "adult motion 10 p ict re theater." 11 WHEREFORE, Plaintiff City of Renton prays for relief as 12 follows : 13 1 . For issuance of a preliminary injunction during the 14 pendency of this proceeding restraining the Defendants and 15 each of them from use of the Renton Theater as an "adult 16 motion picture theater , " that is , for the purpose of exhibiting motion picture films depicting , describing or 17 18 relating to " specific sexual activities" and "specified 19 anatomical areas , " as defined in Renton Ordinance 3526 , as 20 amended by Ordinance Nos. 3629 and 3637, as a continuing 21 course of conduct and in a manner which appeals to a prurient 22 inter7t ; and �3 2. A permanent injunction restraining the Defendants 24 and each of them from use of the Renton Theater as an "adult 25 motion picture theater" , that is , for the purpose of 26 exhibiting motion picture films depicting , describing or 27 relating to "specific sexual activities" and "specified 28 anatomical areas" as defined in Renton Ordinance No. 3562, as FIRST AMENDED AND SUPPLEMENTAL COMPLAINT FOR DECLARATORY JUDGMENTS;; INJUNCTIONS ; WARREN&K ATTORNEYSS A ATT L L G AWAW,P.S. ABATE ENT OF MORAL NUISANCES - PAGE 15 100SO.SECONDST.,P.O.80X626 RENTON,WASHINGTON 98057 255-8678 1 amended by Ordinance Nos.. 3629 and 3637, as a continuing 2 cour e of conduct and in a manner which applies to a prurient • 3 interest ; and 4 3. For entry of an order that the trial on the merits 5 of the permanent injunction restraining the Defendants . from 6 use of the Renton Theater as an "adult motion picture theater" • 7 and from exhibiting at the Renton Theater motion picture films 8 which depict "specified sexual activities" be advanced and conslilidated with the hearing upon the application for the 9 10 preliminary injunction. 11 4. That the Court award the Plaintiff its costs, and 1.2 attorney's fees as' provided by law. 13 5. That the Court grant such other and further relief 14 as the Court deems just and proper. 15 THIRD CAUSE OF ACTION 16 DECLARATORY JUDGMENT RE LEWD. AND OBSCENE SUBJECT MATTER (MOTION PICTURE FILMS) BEING EXHIBITED AT THE RENTON THEATER AND USE OF THE RENTON THEATER AS A 17 MORAL NUISANCE (CHAPTER 7. 24 R.C.W. ) 18 Comes now, the Plaintiffs City of Renton and Lawrence J. 19 Warren, both as the City Attorney of Renton, and as the 20 relator on behalf of the State. of Washington to request a 21 declaratory judgment pursuant to Chapter 7. 24 R..C.W. and 22 R. C.W. Sections 7 .48. 056, 7.48.058 and 7 .48.900, and R.C.W. 23 Sections 7 . 48A .020 , 7. 48A .030 and 7. 48A .900 , and to complain 24 and allege as follows : 25 26. Plaintiffs incorporate herein by reference each and 26 every allegation of Paragraphs 1 through 15, inclusive , as 27 thougl set forth herein in full . 28 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT FOR DECLARATORY JUDGMENTS;• INJUNCTIONS . WARREN&K ,P.S. � ATTORNEYSS A ATT L LA AW ABATE ENT OF MORAL NUISANCES - PAGE 16 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 • 1 27. Statutes ( a) On November 8, 1977 , Initiative. 2 Measu e No . 335 was approved by the electorate of this state, 3 and ' s codified as Chapter 7.48 Nuisances ; being R.C.W. 4 Sections 7. 48. 050, 7. 48. 052, 7. 48. 054, 7..48. 056, 7. 48. 058, 5 7.48.060, 7.48.062, 7.48 . 064, 7.48.066, 7.48.068, 7 .48.070 ,, 6 7. 48. 072, 7. 48. 074, 7. 48. 076, 7. 48. 078, 7.48. 080, 7. 48. 085, . 7 7.48. 90, 7.48. 100, and 7.48.900. R.C.W. Section 7.48.900 is 8 a sev rability clause which provides as follows : 9 .48.900 Severability--Initiative Measure No. 335 . f any provision of this 1977 amendatory act , or its 10 application to any person or circumstance is held invalid , the remainder of the act , or the 11 application of the provision to other persons or circumstances is not affected. 12 (b) Substitute House Bill No. 626 entitled "An Act 13 Relat ' ng to Pornography and Moral Nuisances" , was passed by 14 the State Legislature during its 1982 Regular Session and was 15 signe into law on April 1 , 1982 by the Governor of the State 16 of Wa hington, to take effect immediately. Sections 1 through 17 9 of said act are codified as Chapter 7 .48A Moral Nuisances ; 18 being R . C .W. Sections 7 . 48A . 010 , 7 . 48A . 020 , 7 . 48A . 030 , 19 7 . 48A . 040 , 7 . 48A . 050 , 7 . 48A . 060 , and 7 . 48A . 900 . R . C .W. 20 Section 7.48A.900 is a severability clause which provides as 21 follows : 22 7 . 48A .900 Severability--If any provision of this act �3 r its application to any person or circumstance is eld invalid , the remainder of the act or the 24 application of the provision to other persons or ircumstances is not affected . 25 8. Each of the motion picture films described in 26 Paragl'aph 13 above , is "lewd matter" and "obscene matter" as 27 the term "lewd matter" is defined in R . C . W. Section 28 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT FOR DECLARATORY JUDGMENTS;; INJUNCTIONS ; WARREN&K ,P.S. � ATTORNEYSS A AT T L LA AW ABATEMENT OF MORAL NUISANCES - PAGE 17 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 7.48.050(2) , and in R. C.W. Section 7.48A .010 (2) , and as said 2 term is construed and applied by the Washington State Supreme 3 Court. The visual depictions and allegations regarding the 4 story line content appearing in the legends of the time-and- 5 moti n studies referred to in Paragraph 15 above will show by specific pleadingthat the 28 lewd and obscene films described • 6 p 7 in Paragraph 18 are all of one genre ; namely, hard core 8 porn graphy. 9 29. Each of the motion picture films described in 10 Paragraph 13 above, is subject matter which is outside the 11 protection of the Federal Constitution under the test artiJulated by the United States Supreme Court in Miller v. 12 1.3 California, 413 U.S. 15, and Paris Adult Theater v. Slayton, 14 413 U.S. 49 . 15 30. The Defendants' course of conduct and use of the 16 premises at 507 South Third Street , Renton, Washington, for 17 the urpose of exhibiting obscene motion pictures as described premises public nuisance under 18 above„ establishes said as a 19 the Revised Code of Washington in that the explicit sexual 20 conduct and lewdness, which occurs in said motion pictures in 21 two dimensional form and the exhibition of the same to the 22 public at the Renton Theater constitutes a violation of �3 specific community standards established by the Washington 24 Criminal Statutes which proscribe such sexual conduct in 25 public in three dimensional form. 26 31 . The images and conduct portrayed upon the public 27 screen and the accompanying sounds produced in such public 28 theater incident to the exhibition of the motion picture films FIRST AMENDED AND SUPPLEMENTAL COMPLAINT FOR DECLARATORY JUDGMENTS;; INJUNCTIONS ;; WARREN&K ,P.S. ATTORNEYSS A AT T L LA AW ABATEMENT OF MORAL NUISANCES - PAGE 18 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 described in Paragraph 13 above constitute a public nuisance 2 on such dates , which is separate and apart from the positive print and sound projector instrumentalities which were used 3 4 for their production. The exhibition of said motion pictures 5 at said theater is "indecent and offensive to the senses" so 6 as to essentially interfere with the comfortable enjoyment of . 7 life and property and, therefore, constitutes an actionable public nuisance per se under R. C.W. Section 7 . 48. 010. 8 — 9 32. The lewd and obscene motion picture films described 10 in Paragraph 13 above are unlawful subject matter and 11 contraband as to which no property rights may be acquired 12 under R.C.W. Section 7. 48. 090. 13 33. The moneys received by the Defendants as admission 14 price to the exhibition of the lewd and obscene motion picture 15 films described in Paragraph 13 above constitute gain derived 16 from a wrongful act, an unjust enrichment , and a moral 17 nuisance under R. C.W. Section 7 . 48. 054( 1 ) as personal property 18 used in conducting and maintaining a moral nuisance . As such 19 they are subject to forfeiture to the City of Renton and King 20 County, and to an accounting under R. C.W. Section 7 .48.090 . 21 4 . The instrumentality by which such nuisance is made 22 possi le is a positive print of the motion picture through which a light source is passed from a motion picture projector 23 24 which projects images from such positive print onto the screen 25 of, and broadcasts sounds in , said motion picture theater. 26 The positive prints of said lewd and obscene films and all 27 copies of a like nature each constitute a moral public 28 nuisance under R. C.W. Section 7 . 48 . 052 (3 ) . FIRST AMENDED AND SUPPLEMENTAL COMPLAINT FOR DECLARATORY JUDGMENTS;• INJUNCTIONS ; WARREN &K ATTORNEYSS A AT ,P.S. T L LA AW ABATEMENT OF MORAL NUISANCES - PAGE 19 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 35. Pursuant to R. C.W. Section 9 .66.010, R. C.W. Section 7 . 48. 120, and R.C.W. Section 7 . 48. 130, the acts of Defendants , 2 3 and . each of them, in maintaining the business operation 4 located at the premises commonly known as the Renton Theater, 5 are unlawful and constitute a public -nuisance. 6 36 . Pursuant to R. C . W. . Section 7 . 48A . 020 ( 1 ) , the . 7 premises commonly known as the Renton Theater is a moral 8 nuisance in that it is a place where lewd and obscene films , 9 as d - fined in R . C. W. Section 7 . 48A . 010 (2 ) , are publicly 10 exhibited as a regular course of business , or are possessed 11 for the purpose of such exhibition . 12 37. Pursuant to R.C.W. Section 7. 48A .020(2) , each and 13 every motion picture film specifically named in Paragraph 13 14 above , is a moral nuisance in that each and every film is a 15 lewd and obscene film, as defined in R . C .W. Section 16 7. 48A. 010(2) , which has been publicly exhibited , or possessed 17 for such purpose at a place which is a moral nuisance under 18 Section 7 . 48A .020( 1 ) . 19 38. The Defendants , and each of them , have with 20 knowledge maintained each and every moral nuisance, as defined 21 in R. C.W. Section 7 . 48. 050( 1 ) and R.C.W. Section 7 . 48A .010( 1 ) . 22 9. The Renton Theater is a place where lewd and obscene �3 films , as defined by R. C.W. Section 7 . 48. 050(2) , are publicly 24 exhibited as a regular course of business , or are possessed 25 for tlhe purpose of such exhibition and , pursuant to R. C.W. 26 Section 7 .48. 052 ( 1 ) , is a moral nuisance . �7 40 . Each and every motion picture film specifically 28 named in Paragraph 13 above is a lewd and obscene film, as FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN & KELLOGG,P.S. FOR DECLARATORY JUDGMENTS ; INJUNCTIONS ; ATTORNEYS AT LAW ABATE'1Er T OF MORAL NUISANCES - PAGE 20 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 defined by R. C.W. Section 7.48.050 (2) , which has been publicly 2 exhibited, or possessed for such purpose at a place which is a 3 moral nuisance under R.C.W. Section 7.48.052( 1 ) , and, pursuant 4 to R.C.W. Section 7 . 48. 052, is a moral nuisance. 5 41 . Each and all of the foregoing acts and conduct in 6 the use of Defendants' property for the purposes and in the . 7 manner aforesaid, interfere with the tranquility, peace. and 8 quiet , and comfortable enjoyment of life and property , 9 generally, of the citizens of the City of Renton being 10 endangerment or interference with the interest of the public 11 in the quality of life, the total community environment, the 12 tone of commerce in the City, and the maintenance of decent 13 society. Such acts and conduct constitute willful, malicious , 14 oppressive , unlawful , . unwarranted , and unreasonable use of • Defendants' property to the extreme annoyance, disturbance , 15 16 discomfort , and irreparable harm of the citizens of Renton in 17 that the exhibition of "lewd matter" and. "obscene matter" 18 tends to the corruption of morals and to disturbance of the 19 peace and general good order and welfare of society, and such 20 activ ' ties were begun, established , and are maintained and 21 perpetuated by the Defendants with malice ; that is, with a 22 willful , conscious disregard of the rights of the Plaintiffs , �3 and with a motive and willingness to vex, harass , annoy, or 24 injur the rights of the Plaintiffs . 25 2. Plaintiffs are informed and believed and based on 26 such information and belief allege that the Defendants and 27 each of them will continue to exhibit the same and other lewd 28 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S. FOR DECLARATORY JUDGMENTS; INJUNCTIONS ; ATTORNEYS AT LAW ABATEMENT OF MORAL NUISANCES - PAGE 21 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 and obscene motion picture films in the future at the Renton Theater . 2 3 43. Plaintiffs have no plain, speedy, or adequate remedy at laiw to prevent the acts and conduct aforesaid ; and unless 5 the same is abated , Plaintiffs will suffer and are now 6 suffering irreparable damage and loss . 7 44. A controversy and dispute now exists between the 8 Plaintiffs and the Defendants relating to their legal rights 9 and uties regarding the nature of the subject matter (motion picture films) being exhibited by the Defendants at the Renton 10 11 Theater, the nature of the use being made by the Defendants of 12 the Renton Theater. and the applicability of certain sections 13 of the Revised Code •of Washington to the circumstances of this 14 lawsuit as alleged in Paragraphs 26 through 43. 15 5. No adequate remedy other than that herein prayed for exists by which the rights of the parties hereto may be 16 17 determined . 18 WHEREFORE, Plaintiffs , City of Renton and City Attorney of Renton as the City Attorney of Renton and as the relator 19 20 for the State of Washington pray for relief as follows : 21 1 . That the Court declare that pursuant to the 22 severability provisions of R. C . W. Section 7 . 48 . 900 , the 23 provisions of R. C.W. Sections 7 .48 , 050, 7 .48 .052 ( 1 ) and (3) , 24 7. 48. 054( 1 ) , 7 . 48. 056, 7. 48. 058, 7. 48. 060, 7. 48. 064, 7 . 48. 070, 25' 7 .48.076 and 7 .48.090 are severable and valid and can be applied in a constitutional manner to the circumstances and 26 27 the p rties in this lawsuit . 28 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT FOR DECLARATORY JUDGMENTS;• INJUNCTIONS ; _ WARREN&K ,P.S. � ATTORNEYSS A AT T L LA AW ABATE ENT OF MORAL NUISANCES - PAGE 22 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 That the Court declare that pursuant to the 2 severability provisions of R . C . W. Section 7 . 48A . 900 , the 3 provisions of R. C.W. Sections 7.48A.010, 7.48A.020, 7.48A.030 4 and 7. 48A .040 are severable and valid and can be applied in a 5 constitutional manner to the circumstances and the parties in 6 this lawsuit. 7 3 . That the Court declare that the Plaintiff City 8 Attorney of Renton has standing to bring a declaratory 9 judgment action seeking a determination regarding the validity 10 of such statutory provisions , the existence of moral nuisances 11 in the City of Renton and the right to have the same abated . 12 That the Court declare that each of the motion 13 picture films named in Paragraph 13 is lewd and obscene matter ' 14 as thLt term is defined in R. C.W. Section 7.48.050 (2) , and in 15 R.C.W. Section 7 . 48A .010(2) and as construed and applied by 16 the Washington State Supreme Court . 17 5. That the Court declare that the real estate known as 18 the Renton Theater is and has been a moral nuisance since 19 Januay 20 , 1983 under the provisions of R. C.W. Section 20 7 .48. 052( 1 ) and R. C.W. Section 7 .48.020 ( 1 ) . 21 6 . That the Court declare that each of the motion 22 picture films named in Paragraph 13 is a moral nuisance under 23 R.,C.W. Section 7 . 48A .020(2) . 24 7 . That the Court declare that each of the motion 25 picture films named in Paragraph 13 is lewd and obscene matter 26 as a natter of law, that such films are contraband and that 27 there are no property rights therein under Washington law. 28 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT FOR DECLARATORY JUDGMENTS;• INJUNCTIONS ; WARREN&KELLOGG,P.S. ATTORNEYS AT LAW ABATEMENT OF MORAL NUISANCES - PAGE 23 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 8. That the Court declare that the moneys paid as 1 2 admission price to the exhibition of the above described lewd 3 and obscene films are derivative contraband and the subject of forfeiture; that the Plaintiffs are entitled to an accounting, 4 5 and that such moneys are to be forfeited to the City of Renton 6 and King County. • 7 9 . That the Court award Plaintiffs their costs and 8 attorney's fees as provided by law. 9 10. That the Court grant such other and further relief 10 as the Court deems just and proper. 11 FOURTH CAUSE OF ACTION 12 INJUCTION RE MORAL NUISANCES (R. C.W. CHAPTER 7.40 , 7. 48 AND 7. 48A) 13 Comes now the Plaintiff Lawrence J. Warren , both as the 14 City Attorney of Renton, and as the relator on behalf of the 15 State of Washington to request an injunction pursuant to the 16 provisions of R. C.W. Chapter 7.40, and R. C.W. Chapters 7.48 17 and 7. 48A , (R. C.W. Sections 7 . 48. 056, 7. 48. 058, 7. 48. 060, 18 7 . 48 064 , 7 . 48 . 070 , 7 . 48 . 076 , 7 . 48A . 020 , 7 . 48A . 030 , 19 7 . 4A . 040 [ 1 ] ) , restraining the Defendants from further 20 maintaining the herein described moral nuisances at the Renton 21 Theater and to complain and allege as follows : 22 46. Plaintiffs incorporate herein by reference each and 23 every allegation of Paragraphs 1 through 15, and 27 through 43 24 inclusive , as though set forth herein in full . 25 47. That there is no, plain , adequate , or speedy remedy 26 at law available to the Plaintiff and that the Plaintiff will �7 suffer irreparable damage unless the Defendants are restrained 28 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT FOR D CLARATORY JUDGMENTS;; INJUNCTIONS ; WARREN&K ,P.S. � ATTORNEYSS A AT T L LA AW ABATE ENT OF MORAL NUISANCES - PAGE 24 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 s , 1 from exhibiting the lewd and obscene films described in 2 Para raphs 13 of. this Complaint and from further maintaining 3 the moral nuisances which exist at the Renton Theater as a 4 result of such exhibitions. 5 WHEREFORE, Plaintiff prays for relief as follows : 6 1 . For issuance of a preliminary injunction during the . 7 pend ncy of this proceeding restraining the Defendants and 8 each of them from exhibiting the lewd and obscene films desc ibed in Paragraphs 13 of this Complaint at the Renton 9• 10 Theater.' 11 2. For issuance of a permanent injunction restraining 12 the efendants and each of them from exhibiting the lewd and 13 obscene films described in Paragraphs 13 of this Complaint and 14 other lewd and obscene films at the Renton 'Theater. 15 3. For the entry of an order that the trial on the 16 merits of the permanent injunction restraining the Defendants 17 from exhibiting the lewd and obscene films described in 18 Paragraphs 13 of this Complaint be advanced and consolidated 19 with the hearing upon the application for the temporary 20 injunction, pursuant to Washington Court Civil Rule 65(a) (2) 21 and R. C.W. Section 7 . 48. 064. 22 That the Court award the Plaintiff its costs of �3 abatement , including a reasonable attorney's fee pursuant to 24 R . C.W. Section 7 . 48. 076 and 7. 48. 090. 25 . That the Court grant such other and further relief 26 as th Court deems just and proper . 27 28 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT FOR DECLARATORY JUDGMENTS;• INJUNCTIONS ; WARREN&K ATTORNEYSS A ATT L LA ,P.S. LA WARREN ABATE4ENT OF MORAL NUISANCES - PAGE 25 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 FIFTH CAUSE OF ACTION ABATEMENT OF MORAL NUISANCES (R. C.W. CHAPTER 7. 48 2 AND 7.48A) 3 Comes now the Plaintiff Lawrence J. Warren, both as the 4 City Attorney of Renton, and as the relator on behalf of the 5 Stat- of Washington , to request abatement of the moral 6 nuisances being maintained by the Defendants at the Renton 7 Theaer and reformation of said real property pursuant to the 8 provisions of the common law and .R. C.W. Chapter 7. 48 and 9 7. 48A, and to complain and allege as follows : 10 48. Plaintiffs incorporate herein by reference each and 11 every allegation of Paragraphs 1 through 15, and 27 through 43 12 inclLsive, as though set forth herein in full. 13 WHEREFORE, Plaintiff prays for relief as follows : 14 1 . That the Court, pursuant to R. C.W. Section 7 .48.260 , 15 order that the aforesaid nuisances be abated and removed at 16 the xpense of the Defendants and issue a warrant of abatement 17 which awards to Plaintiffs an estimated sum, to defray the 18 expense of such abatement . 19 2. That the Court , pursuant to R. C .W. Section 20 7.48A.040, determine that the Defendants , and each' . of them, 21 have with knowledge maintained moral nuisances , and impose a 22 civil penalty and judgment of an amount as the Court may �3 determine to be appropriate . 24 3. That the Court , pursuant to R. C.W. Section 7 . 48. 056, 25 abate the aforesaid moral nuisances as defined in R. C.W., 26 Section 7. 48. 052, and R. C_.W. Section 7 . 48. 054, and enjoin the �7 use thereof pursuant to R . C . W. Section 7 . 48 . 058 and' 28 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT FOR DpCLARATORY JUDGMENTS • INJUNCTIONS ; WARREN&K ATTORNEYS A ATT L LA ,P.S. LA WARREN ABATEMENT OF MORAL NUISANCES - PAGE 26 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 perp-tually enjoin the Defendants , and each of them, from 2 main aining the same . 3 4. That the Court, pursuant to RCW Section 7. 48. 076, 4 orde that the entire expenses of abatement , including 5 atto ney' s fees , shall be recoverable by the Plaintiffs as a 6 part of their costs of the lawsuit . • 7 5. That the Court, pursuant to R.C.W. Section 7 . 48. 078, 8 enter an order of abatement as part of the judgment in this 9 caus , which order shall direct the removal from the place of 10 all er'sonal property and contents used in conducting the 11 nuis nce and that the Court direct the sale of such thereof as 12 belong to the Defendants notified or appearing, in the manner 1.3 provided for the sale of chattels under execution, except that 14 the positive prints of obscene films shall not be sold but 15 shall be destroyed or otherwise disposed of by the Court. 16 6. That the Court , pursuant to R. C.W. Section 7 .48.078 , 17 impose against Defendants and each of them, a penalty of Three 18 Hundred Dollars ($300 .00) for the maintenance of each and 19 every nuisance as defined. - in R.C.W. Section 7. 48. 052 and 20 Section 7 . 48 . 054 , which penalty shall be collected by 21 execution as in civil actions , and when collected , shall be 22 paid into the current expense fund of King County. �3 7. That the Court , pursuant to R. C.W. Section 7 . 48. 078, 24 issue an order reforming the real estate and directing the 25 effectual closing of the Renton Theater against its use by the 26 Defendants for any purpose and keeping it closed for a period �7 of one year . 28 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT FOR DECLARATORY JUDGMENTS;• INJUNCTIONS ; WARREN&K ,P.S. ATTORNEYSS A AT T L LA AW ABATEMENT OF MORAL NUISANCES PAGE 27 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 j8. That the Court, pursuant to R. C.W. Section 7 .48.090 : 2 ( 1 ) eclare that all moneys and other consideration declared to be a moral nuisance under R. C.W. Section 7.48.056 are the 3 subject of forfeiture to the City of Renton and King . County 5 and are recoverable as damages ; and, (2) after judgment 6 against the Defendants , and each of them, in these proceedings • 7 order that an accounting be made by the Defendants , and each 8 of them, of all moneys received by them which have been decl red to be a public nuisance ; and (3) order an amount 9 10 equal to the sum of all moneys estimated to have been taken in 11 as g oss income for such unlawful commercial activity be 12 forfeited to the general funds of the City of Renton and King 13 County, to be shared equally, as a forfeiture of the fruits of 14 an unlawful enterprise and as partial restitution for damages 15 done to the public welfare, public health, and public morals ; 16 and (4) determine the amount of the costs of abatement and 17 assess the same as a lien on the real property known as the 18 Renton Theater. 9 . That the Court award the Plaintiff its costs and 19 20 attorney's fees as provided by law. 21 10. That the Court grant such other and further relief 22 as th- Court deems just and proper . 23 DATED: May , 1983. 24 25 Lawrence J. Warren 26 Attorney for Plaintiffs 27 28 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT FOR DECLARATORY JUDGMENTS;; INJUNCTIONS ; WARREN& K ,P.S. � ATTORNEYSS A AT T L LA AW ABATEMENT OF MORAL NUISANCES - PAGE 28 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 i Is i ' 1 STATE OF WASHINGTON ) ss 2 COUNT OF KING ) 3 awrence J. Warren, City Attorney of the City of Renton, being first duly sworn upon oath, deposes and states : I am the ttorney for the Plaintiffs herein. I have read the fore oing First Amended and Supplemental Complaint for 5 Declaratory Judgments ; Injunctions ; Abatement of Moral Nuisances (R.C.W. Chapter 7.24, 7.40, 7.48 and 7.48A) , know 6 the contents thereof and believe the same to be true except as • to m tters which are therein stated upon my information or 7 belie , and as to those matters that I believe it to be true . 8 9 Lawrence J. Warren 10 Attorney for Plaintiffs 11 UBSCRIBED AND SWORN to before me on May , 1983 . 12 13 NOTARY PUBLIC in and for the 14 State of Washington , residing at Renton. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT WARREN&KELLOGG,P.S. FOR DECLARATORY JUDGMENTS; INJUNCTIONS ; ATTORNEYS ATLAW ABATE ENT OF MORAL NUISANCES - PAGE 29 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 • 1.11�',!1 0 -1 2S 1982 F E 110 1 IN THE UNITED STATES COURT OF APPEALJCT 2 D I FOR THE NINTH CIRCUIT I'H;LLIP B. lry;t, =;CRY 2 CL r.°R. u.:. _:!":' or P;.a!S 3 PLAYTIME THEATRES , INC. , a Washington ) _ No. 81-3544 4 corporation, and KUKIO BAY PROPERTIES, ) D.C.# CV 80-523 INC. , a Washington corporation, ) MEMORANDUM 5 ) Plaintiff-Appellants , ) 6 ) V. • - ) 7 ) 8 THE CITY OF TACOMA. and THE HONORABLE MIKE PARKER, as Mayor of the City, and ) 9 ERLING MORK as City Manager of Tacoma, ) - et al. , - ) 10 Defendants-Appellees . 11 • 12 Appeal from the United States District Court 13 for the Western District of Washington Jack E. Tanner, District Judge, Presiding Argued and- submitted October 5, 1982 14 15 Before: WRIGHT, HUG,. and SCHROEDER, ' Circuit Judges. 16 17 This case involves several challenges to a Tacoma zoning ordinance patterned after the measure approved in 18 Young v. American Mini Theatres, Inc. , 427 U.S. 50, 96 S. 19 Ct. 2440 (1976) . Tacoma's ordinance, like Young, requires 20 adult theatres to be 1,000 feet from similar uses but, 21 - unlike Young, it also restricts all theatres to a specified 22 area designated the "B" district. ' 23 The district court found that there were 24 - approximately five to seven locations within the "B" 25 • • district where adult businesses could locate or relocate 26 after the ordinance went into effect. The district court 27 also found that adult uses had existed in that area for some 28 time, and that the area was served by adequate ' 29 transportation. The district court concluded that the 30 ordinance had not unduly restricted public access to adult 31 entertainment . 32 la .K., ... 7 i • The district court 's findings bind us unless they 2 are clearly erroneous. FED. R. CIV. P. 52(a) . The standard 3 of review is unaffected by the lack of live testimony below, _ 4 for this court has only recently reiterated that the 5 deference required by Rule 52 "must be afforded even where 6 the trial is on depositions or stipulated facts." United 7 States v. Chesher, 678 F.2d 1353, 1358 n.3 (9th Cir. 1982) ; 8 accord Steinsvik v. Vinzant, . 640 F.2d 949, 951 (9th Cir. 9 1981) ; see generally Lundgren v. Freeman, 307 F.2d 104, 10 114-15 (9th Cir. 1962) (historical analysis warrants applying 11 clearly erroneous review in this context) . The findings of • 12 _ fact are supported by the record . 13 The trial court 's findings thus g preclude appellants 14 from arguing that . a wholesale exclusion of protected 15 expression has taken place. This case .is therefore unlike 16 Schad v. Borough of Mount Ephraim, 452 U.S. 61, 101 S. Ct. 17 2176 (1981) . Nor has there .been, any showing that the effect 18 of the ordinance is to limit access to protected expression 19 which might invalidate the ordinance under the standards 20 applied in Young v. American Mini Theatres, Inc. , 427 U.S. 50, 96 S. Ct . 2440 (1976) . See Avalon Cinema Corp. v. 21 Thompson, 667 F.2d 659, 662 (8th Cir. 1981) (en banc) . 22 The legislative history of the ordinance shows a 23 legitimate purpose and a factual basis for its adoption 24 within the requirements of Young. See Id. at 71-72, 96 S. 25 • Ct. at 2452-53. There was not a sufficiently adverse effect 26 27 upon the exercise of first amendment rights to warrant application of the stricter test required when zoning 28 excludes a class of entertainment entitled to first 29 amendment protection. See Schad v. Borough of Mount H0 . Ephraim, 452 U. S. 61, 67-72, 101 S. Ct. 2176, 2182-84 31 . (1981) ; Keego Harbor Co. v. City of Keego Harbor, 657 F.2d 32 • -2- �..�—.. . . I1 1 - 1 94, 98 (6th Cir. 1981) . The record contains evidence that adult uses regulated by the ordinance contributed to 2 • neighborhood deterioration. Contrast Avalon Cinema, supra 3 t 661-62. 4 Appellants also dispute the reasonableness of the 5 rdinance' s amortization provision. The Washington law on 6 ermination of nonconforming uses requires that, in each 7 8 ase, the court examine the hardship to the terminated party 9 nd determine whether it is more compelling than the benefit to the public. City of Seattle v. Martin, 54 Wash. 2d 541, 10 342 P. 2d 602, 604 (1959) . In Northend Cinema, Inc. v. City 11 . of Seattle, 90 Wash. 2d 709, 585 P.2d 1153 (1978) , cert. 12 denied, 441 U.S. 946, 99 S. Ct . 2166 (1979) , the Washington 13 Supreme Court upheld identical amortization provisions in an 14 .dult use zoning ordinance. The district court found the 15 amortization provision reasonable in this case, and 16 affirmance is virtually compelled by Northend Cinema, supra, 17 18 a case resembling this one in many respects, }including the fact that appellants in both cases have benefited from a 19 stay of the amortization provisions pending appeal. 20 The challenge to the waiver provisions of the 21 ordinance must also fail, as appellants have never sought 22 such a waiver, and therefore lack standing to attack these 23 provisions. Young v. American Mini Theatres, Inc. , 427 U.S. . 24 at 58-59, 96 S. Ct . at 2446-47. 25 Affirmed . 26 27 28 0 • 29 30 31 32 -3- • .� .• I t R57�fl, 38 ,x - • 22205 2 AN ORDNANCE relating to zoning and amending Chapter 13. 06 of the Official Code of• the City of Tacoma by amending 3 Section 13. 06 .010 thereof by adding two new subsec- tions thereto to be known and designated as Subsec . 4 tions 66 .5 and 66 . 6; amending Section-. 13 . 06 .310 .by - - adding a new subsection thereto to be known and des- 1 ' 5 ignated .as Subsection 17; and amending Section 13. 06 .370 by adding a new subsection . thereto to be • 6 known and designated as Subsection 8. . 7 BE IT ORDAINED BY THE CITY OF TACOMA: • 8 Section 1. That Section 13 . 06. 010 of the Official 9 Code of the City .of Tacoma be and ' it is hereby amended by the 10 additi n thereto. of two new subsections, to be known and des- 11 ignated as 66. 5 and 66 . 6 , reading as follows: 12 66 . 5 THEATRE, ADULT MOTION PICTURE. An enclosed ' 13 - building used for presenting motion picture films distin- . 14 a. guishel or characterized by an emphasis on. matter . depicting, , - 15 descriping , or relating to "specified sexual activities" or I 16 "specified anatomical areas" , as hereinafter defined for ob • - 17 servation- by patrons therein. • 18 A. "Specified .Sekual Activities" shall mean: 19 (1) Human genitals in a state of sexual stimu- . 20 lation or arousal; .21 (2) ' Acts of human masturbation, sexual. inter- 22 course or sodomy; • 23 (3) Fondling or other erotic touching of human . 24 genitals, pubic region, buttock, or female . 25 • breast. . 26 B. "Specified Anatomical Areas" shall mean: - 1 - - EXCERPT PAGE 24 7 % • • Cup/ ol 1 (1) Less than completely and opaguely covered: 2 (a) Human genitals, pubic region; (b) human • 3 buttock; and (c) female breast below a point 4 immediately above the topof the areola; and S (2) Human male genitals in a discernibly turgid 6 state, even if completely and opaquely covered . 7 66 . 6 . BOOKSTORE, ADULT. An establishment having as 8 a s bstantial or significant portion of its stock in trade, 9 magazines and other periodicals which are distinguished or 10 cha acterized ' by their emphasis . on matter depicting, describ- 11. ing , or relating to "specified sexual activities" or "speci- 12 fie anatomical areas" (as defined above) , or an establishment 13 wits a segment or section devoted to the sale or, display of 14 such material. 15 Section 2. That Subsection A of Section 13 . 06 . 310 of 16 the Official Code of the City of Tacoma be and it is hereby 17 amended by adding a new subsection thereto, to be known and 18 designated as- Subsection 17 , reading as follows: 19 17 . Adult Theaters and Adult Bookstores. 20 a. DECLARATION OF PURPOSE. It is recognized that 21 there are' some uses which, because of their very 22 nature, are recognized as having serious objectional 23 operational characteristics, particularly when they 24 are located in neighborhood or community commercial 23 districts or in close proximity to residential uses, 26 or when several of them are concentrated in one area , • - 2 3 CERP; PAGE 25 }r' `r• d !ow 1 thereby having a deleterious effect upon the adjacent 2 areas. Special regulation of these uses is necessary 3 to insure that these adverse effects will not con- 4 tribute to the blighting or downgrading of the sur- 5 rounding neighborhood. The primary purposes of these 6 regulations are to prevent these uses from locating 7 and operating within neighborhood or community com- 8 mercial districts, to eliminate such uses which are 9 presently located in' those districts, and to prevent 10 the further concentration of such uses within the "B" ' 11 Business District. 12 b. LOCATION IN "B" BUSINESS DISTRICT ONLY. All • 13 "Adult Theaters" and "Adult Book Stores" shall only. t. 14 be located in the "B" Business District. Existing. . - 15 Adult Theaters and Adult Book Stores not already lo- 16 cated in the "B" Business District shall be further 17 regulated by Subsection , 8 of Section 13.06 .•370 of 18 this chapter . • 19 c. DISTANCE REQUIREMENTS . An Adult Theater or Adult 20 Book Store may not be located within one thousand 21 feet of any other two like regulated uses or within 22 five hundred feet of a residentially zoned district. ' 23 This regulation shall 'not apply to such uses already 24 lawfully in existence at the time of passage of this 23 ordinance. • 26 d. WAIVER OF DISTANCE REQUIREMENTS . The Hearings _ 3 - - i� gym• • PAGE 26 ' , • '" , . , ay dfficenza 1 Examiner may waive the 1000 foot restriction if he ,• 2 finds: 3 (1) That the proposed use will not be contrary to 4 the public interest or injurious to nearby prop- , erties; and • 6 (2) That the proposed use will not enlarge or en- 7 courage the development ofa "skid row" area; and 8 . (3) That the establishment of an additional use of 9 this type in the area will not be contrary to any 10 program of neighborhood conservation or improvement, 11 either residential or non-residential; and 12 (4.) That all applicable regulation of this and re- '1, 13 lated ordinances will be observed fully in their in- ', • 14 tent and spirit. 15 Section 3 . That Section 13. 06 . 370 of the Official 16 Code of the City of Tacoma be and it is hereby amended by the 17 addition of a new subsection, to be known and designated as 18 Subsection 8 , reading as follows: 19 8. ADULT MOTION PICTURE THEATERS AND ADULT BOOK 20 STO'ES which are nonconforming uses in the zone in which lo- . 21 cated shall be discontinued within ninety days of the date the 22 use became or becomes nonconforming. This provision shall not 23 app y to those uses not meeting the distance requirements set 24 forvh in Section 13 . 06 . 310 of this chapter . 25 • Pas-ed SEP 4 1980 26 MIKE PARKER Mayor Attest: H. B. BOND City Clerk -7 KJC jec - 4 - EXCERPT PACE 27 • 1932 „ill' AIR/WillDi8 II E ; 11 1 IN THE UNITED STATES COURT OF APPEALJCT 2 0 I FOR THE NINTH CIRCUIT PHILLIP B. W' cERRY 2 CLERK, U.:. ::!'4' or AP'P[ 1S • PLAYTIME THEATRES , INC. , a Washington ) No. 81-3544 4 corporation, and KUKIO BAY PROPERTIES, ) D.C.# CV 80-523 INC. , a Washington corporation, ) MEMORANDUM 5 ) -Plaintiff—Appellants , ) 6 ) v.7 • ) 8 THE CITY OF TACOMA. and THE HONORABLE ) MIKE PARKER, as Mayor of the City, and ) 9 ERLING MORK as City Manager of Tacoma, ) et al. , 10 Defendants—Appellees . ) ) 11 12 Appeal from the United States District Court 13 for the Western District of Washington Jack. E. Tanner, District Judge, Presiding Argued and- submitted October 5, 1982 14 15 Before: WRIGHT, HUG,, and SCHROEDER,"' Circuit Judges. 16 17 This case involves several challenges to a Tacoma zoning ordinance patterned after the measure approved in 18 Young v. American Mini Theatres, Inc. , 427 U.S. 50, 96 S. 19 Ct. 2440 (1976) . Tacoma's ordinance, like Young, requires 20 adult theatres to be 1,000 feet from similar uses but, 21 unlike Young, it also restricts all theatres to a specified 22 area designated' the "B" district. 23 The district court found that there were 24 approximately five to seven locations within the "B" 25 district where adult businesses could locate or relocate 26 after the ordinance went into effect. The district court 27 also found that adult uses had existed in that area for some 28 time, and that the area was served by adequate 29 transportation. The district court concluded that the 30 ordinance had not unduly restricted public access to adult 31 entertainment . 32 • lb 1 • • The district court 's findings bind us unless they 2 are clearly erroneous. FED. R. CIV. P. 52(a) . The standard 3 of review is unaffected by the lack of live testimony below', - 4 or this court has only recently reiterated that the 5 eference required by Rule 52 "must be afforded even where 6 he trial is on depositions or stipulated facts." United 7 tates v. ' Chesher, 678 F.2d 1353, 1358 n.3 (9th Cir. 1982) ; 8 ccord Steinsvik v. Vinzant, ' 640 F.2d 949, 951 (9th Cir. 9 1981) ; see generally Lundgren v. Freeman, 307 F.2d 104, .10 114-15 (9th Cir. 1962) (historical analysis warrants applying clearly erroneous; review in this context) . The findings of 12 f ct are supported by the record . ' ' 13 The trial court 's findings thus preclude appellants 14 from arguing that . a wholesale exclusion of protected 15 expression has taken place. This case is therefore unlike 16 Schad v. Borough of Mount Ephraim, 452 U.S. 61, 101 S. Ct. 17 2176 (1981) . Nor has there been, any showing that the effect is of the ordinance is to limit access to protected expression 19 which might invalidate the ordinance under the standards 20 a plied in Young v. American Mini Theatres, Inc. , 427 U.S. 21 50, 96 S. Ct . 2440 (1976) . See-Avalon Cinema Corp. v. T ompson, 667 F.2d 659, 662 (8th Cir. 1981) (en banc) . 22 The legislative history of the ordinance shows a 23 legitimate purpose and a factual basis for its adoption 24 within the requirements of Young. See Id.. at 71-72, 96 S. 25 Ct. at 2452-53. There was not a sufficiently adverse effect 26 u on the exercise of first amendment rights to warrant 27 . 28 application of the stricter test required when zoning excludes a class of entertainment entitled to first 29 a endment protection. See Schad v. Borough of Mount 30 Epl raim, 452 U. S. 61, 67-72, 101 S. Ct. 2176, 2182-84 31 (1981) ; Keego Harbor Co. v. City of Keego Harbor, 657 F.2d 32 • -2- 94, 98 (6th Cir. 1981) . The record contains evidence that adult uses regulated by the ordinance contributed to 2 eighborhood. deterioration. Contrast Avalon Cinema, supra 3 t 661-62. ; . 4 Appellants also dispute the reasonableness of the 5 ordinance's amortization provision. The Washington law on 6 termination of nonconforming uses requires that, in each 7 8 case, the court examine the hardship to the terminated party 9 .nd determine whether it is more compelling than the benefit to the public. City of Seattle v. Martin, 54 Wash. 2d 541, 10 342 P.2d 602, 604 (1959) . In Northend Cinema, Inc. v. City 11 - of Seattle, 90 Wash. 2d 709, 585 P.2d 1153 (1978) , cert. 12 denied, 441 U.S. 946, 99 S. Ct . 2166 (1979) , the Washington 13 Supreme Court upheldidentical amortization provisions in an 14 adult use zoning ordinance. The district court found the 15 amortization provision reasonable in this case, and 16 . ffirmance is virtually compelled by Northend Cinema, supra, 17 a case resembling this one in many 'respects,/ including the 18 fact that appellants in both cases 'have benefited from a 19 stay of the amortization provisions pending appeal. 20 - . The challenge to the" waiver provisions of the 21 ordinance' must also fail, as appellants have never sought 22 such a waiver, and therefore lack standing to attack these 23 provisions. Young v. American Mini Theatres, Inc. , 427 U.S. 24 at 58-59, 96 S. Ct . - at 2446-47. ` 25 Affirmed. 0 ' 26 27 28 . . • 29 30 31 32 ' -3- %. Req. -` ' #5738 . ' j . • • 1 . ORDINANCE NO. 22205 • 2 AN ORDNANCE relating to zoning and amending Chapter ..13.06 of the Official Code of-- the City of Tacoma by amending - 3 . Section .13. 06 .010 thereof by adding .two new subsec-ti tions thereto to be : known and designated' as- Subsec .4 tions 66 .5 and 66 . 6; amending Section 13 .06.310 by adding anew subsection thereto to be known and des--.. 3 ignated .as Subsection 17; and amending Section . 13 . 06 . 370 by adding a new subsection thereto to be • . 6 known and designated as Subsection 8 . 7 BE IT ORDAINED BY THE CITY OF TACOMA: . 8 Section 1. That Section 13 . 06 . 010 of the Official 9 Code of the City .of Tacoma be and 'it is hereby amended by the . • 10 additi n thereto. of two new subsections , to be known and des- , 11 ignated as 66 . 5 and .66.6, reading as follows: , . . 12 66 . 5 THEATRE, ADULT MOTION PICTURE. An enclosed. 13 building usedifor presenting motion picture films distin- k 14 guished or characterized by an emphasis on matter depicting, 7'- I 15 describing , or relating to "specified sexual activities" or - 16 "specified anatomical areas" , as hereinafter defined for ob- 17 servat' on by patrons therein. . 18 A. "Specified Sexual Activities" shall mean: 19 • (1) Human genitals in a state of sexual stimu- 20 • lation or arousal; .21 (2) Acts of human masturbation, sexual, inter- 22 course or sodomy; . . 23 (3) Fondling or other erotic touching of human 24 genitals, pubic region, buttock , or female 23 breast. • • 26 B.. "Specified Anatomical Areas" shall mean: - 1 - . . • . / EXCERPT PAGE 24 • / , • I Of gaC - . • 1 1 (1) Less than completely and opaguely covered: 2 . (a) Human genitals, pubic region; (b) human • 3 buttock; and (c) female breast below a point 4 immediately above the top of the areola; and 3 (2) Human male genitals in a discernibly turgid 6 state, even if completely and opaquely covered . 7 66 . 6 . BOOKSTORE, ADULT. An establishment having as • 8 a substantial or significant portion of its stock in trade, 9 magazines and other periodicals which are distinguished or 10 characterized: by their emphasis .on matter depicting, describ- . 11. ing ► or relating to "specified sexual activities" or "speci- 12 fied anatomical areas" (as defined above), , or an establishment r 13 witll a segment or section devoted to the sale' or display of ' 14 such material . . • IS Section 2. That Subsection A of Section 13 . 06 . 310 of 16 the Official Code of the City of Tacoma be and it is hereby • 17 , amended by adding a new subsection thereto, to be known and 18 designated as' Subsection 17 , reading as follows: • 19 17 . Adult Theaters and Adult Bookstores . 20 a. DECLARATION OF PURPOSE. It is recognized that • 21 there are some uses which , because of their very 22 nature, are recognized as having serious objectional 23 operational characteristics , particularly when they 24 are located A.11 neighborhood or community commercial 23 districts or in close proximity to residential uses, 26 or when several of them are concentrated in one area , - 2 - 6 CERPT PAGE 25 1 thereby having a deleterious effect upon the adjacent . r. • ' 2 . areas. Special regulation of these uses is necessary • 3 to insure that these adverse effects will not con- ' 4 . tribute to the 'blighting or downgrading. of the ' sur- • ' 5 • 'rounding neighborhood. The primary purposes of these 6 regulations are to prevent these uses from locating 7 and operating . within neighborhood. or community coal- 8 mercial districts, to eliminate such uses which are 9 presently located in' those districts , and to prevent to the further concentration of such uses within the "B" 11 Business District.- . .. • } -la b'. LOCATION IN "B" BUSINESS DISTRICT ONLY. All . , - . 13 '"Adult Theaters" and "Adult Book .Stores" shall, only,. . • 14 . be located in the "B" Business District. Existing. .. - 15 Adult Theaters and Adult Book Stores ! not already lo- 16 cated in the "B" Business District shall be further • 17 regulated by Subsection 8 of ' Section 13 .06 .-370 of 18 this chapter . - . 19 c. DISTANCE REQUIREMENTS . An Adult Theater or Adult • 20 Book Store may not be located within one thousand 21 • feet of any other two like regulated uses or within 22 five hundred feet of .a residentially zoned district. • 23 This regulation shell 'not apply to such uses already 24 lawfully in existence at the time of passage of this 25 ordinance. • 26 d. WAIVER OF DISTANCE REQUIREMENTS. The Hearings - 3 - • o CERPT PAGE 26 ' . . . . • .. . ./ ---.. . . •. . • --- •- (1-&--) CIIY •4:.,t,• •', ' - • " - ' . . e/gacinth ._.-•-.. . . .. , . . : . , , : . . • . . . . . . .. 1 Examiner may waive the ' 1000 foot restriction if he . . . . . 2 - finds: . . , . . ... .• . . .. . . _ . -, - - . . ••• 3 .: - (1) That the, proposed-: use -will not: be contrary , to' .. . ..i . .. , 4 the public interest -or injurious to nearby prop- - Z 5 erties; and .• . • - • • . . . 6 - . (2) That the proposed use will not enlarge or en- 7 courage the development of a "skid row" area; and 8 ' . (3) That the establishment of an additional use of . . . . . 9 . this type. in the area will not be contrary. to any 10 . program of neighborhood. conservation or improvement, , . . i P . either residential or non-residential; and . .- - • . • 12 (4.) That all applicable regulation S of this anti re- • .L. . 13 • . lated ordinances will be observed fully in their in- 14 tent and spirit. . . • 15 Section 3 . That Section 13.06 . 370 of the Official . . ...... 16 Cod= of the City of Tacoma be and it is hereby amended by the 17 add ' tion of a new subsection, to be known and designated as 18 . Sub-ection 8, reading as follows: . • . . . 19 . . 8. ADULT MOTION PICTURE THEATERS AND ADULT BOOK 20 STORES which are nonconforming uses in the zone in which 107- 21 Scat d shall be, discontinued within ninety days of the date the 22 use became or becomes nonconforming . This provision shall not - r 23 apply to those uses not meeting the distance requirements set 24 forth in Section. 13. 06 . 310 of this chapter . • . . . 25 • . . • Passed SEP 24 1980 • 26 . . • . . . MIKE PARKER , • Mayor . . . . • Attest: H. B. .BOND S. . . City Clerk . ' . . . . . 'ec j KJC: . - 4 - • EXCERPT PACE 27 . . . 1 ' .1 IN THE UNITED STATES r)ISTRI ; •URT- ''.�'..f.. FOIZ TIII�. WE;'TI:RN DISTRICT OF % S 'M fGTON •:" z ' 2 i AT TACOMA . .�„P I 4?�. o`/f 4' 4 II i'I,AYTIME TllEATItES,, INC.. a . • ) • Washington corporation, and K UKIO ' ' 5 BAY PROPERTIES, INC., a Washington • ) NO. C80-523T i corporation, 6 I Plaintiff;, • ) 6e. 7 -vs- ) • -- • ili: ya ..t;: 81 THE CITY OF'TACOMA, et al., • ' ) FINDINGS OF FACT , 1' AND 91 Defendants. .). CONCLUSIONS OF LAW to • i ) H - 11 • Me'i 12 I TIIIS MATTER comes on before the undersigned judge of the above- • t( entitled court upon Plaintiff's Motion for Preliminary and Permanent Injunction• ..... 131 i and for Declaratory Judgment. By this court's Order of July 9, 1981, the trial on • .. i 14 i I 15 the merits was consolidated with the hearing•for preliminary injunction. On July 20, 1981, this matter was heard and this court! makes. the. following findings of (`;:;: 16 � ig i �I fact and conclusions of low. • 0 . 17r. I, FINDINGS OF FACT 18 ,. • 1. Plaintiffs, Playtime. Thr•eatres, inc.' (hereinafter referred to as . 19 I "Playtime") and l(tikio Il y Properties,•Inc., (hereinafter referred to as "Kukio") .•• `'9 I are corporations organi?ed and existing under the laws of the State of Washing- ., } . 21 • •• . ton. 22 . 2. The I)c frndnnt City of 'I'aeOrna (hereinafter referred to as the' . k' 1 ii : 23 ' "City") is a rnunici foal .:oi pperation and a political subdivision of the State of 24 t.•. 1 Wasliington. 1 r . 25 I 3. The Defendant the Honorable Mike Parker is Mayor of the City. i 26 - 4. 'I'he.Dcfendar:t Erline O. Mork is City Manager of the City; 27 9 5. The Defendants Hal Nielsen, Barbara Bichsel, John Hawkins, ' i1; • 7►C.: 28 t 1 Jack Hyde, Steve Kirby, Pete Rasmussen, Tim Strege, and Doug Sutherland are 291 I members of the City Council of the City. • I 3I 6. The Defendant William Perrett is Chief of Police of the City. I I .7. City of Tacoma Ordinance No. 22205 (Exhibit "A" to Plaintiffs' 32 , • . ':•t•SS 12-8-76' :I • \ i ' -EXCERPT PAGE 40 •3.:N W?i...•K•: :r : -lea: ;•i:.•...L.. :„.... ,«. .,..! .. ?•4t. .,.... • . .1..,;: ... ."' 4 . • . . . .. •4,,,:i. . 91 • . : . r . • . • 1 11 . Corplaint) was passed by the. Tacoma City Council on September 24, 1980. Said il • 2 II ordinance contains definitions of what. constitutes an adult theatre or book store ii 3 and allows for their location in only the "B" Business Distrit of the City. . The i i c. 4 ordinance directs that all adult book stores and theatres located outside the "B" I 5 1 Iusiness District shall be nonconforming uses after the' passage of ninety days l • 6i from the date of the ordinance enactment (January 4, 1981). , 8. Ordinance No. 22205 additionally requires that an adult theatre • 16. 7 It 81 or an adult book store may not he located within one thousand feet of any other . f. • 9' two ike regulated uses, or within five hundred feet of a residentially zoned , 10 ; distr et. The one thousand foot restriction May be waived by the Hearings , I 11 I Examiner• of the City if he finds that the foi.rr stated criteria for a waiver are ].2. ;; met., (Exhibit "A" to Plaintiffs' Complaint; page 4). ii E„ ., 9. The original impetus for the drawing up and enactment of an 1 : 13 .1 : 141 I ordin .wee to zone adill, theatres and book stores away from residential areas 1 15 ! . came from Mayer ,Mike Parkerafter hc, attended a conference of mayors at. . 18 Harvard University and heard a seminar presentation on the "Detroit Mini- ` 171 Theatre" case. This seminar took place some time between November, 1977, and r. 18 I; January, 1978. (Parker, page 5, lines 4-12). ' • I I, 10. The City Attorney's office recommended any legislation in the • 19, ,I I I area of adult theatres and book stores be postponed until a final decision was I I 20 - I made in the Apple Theatres v. City of Seattle case. (Parker, page 5, lines 13-15) ' I, l 211 ! l • 11. A moratorium ordinance was requested by Mayor Parker to limit I 1 22� forth r adult book stores and theatres from locating outside the business district, 23 :�; ii and was passed January 22, 1980, as Ordinance No. 21953. ;.:.. 24 !Ili! I 12. Playtime leases the Community Cinema theatre, located at 5441 251 South "M" Street, within the City of Tacoma. Kukio owns the motion picture I 28 i i theatre located at -381.1 South Yakima Avenue in the City of Tacoma, known as 27 • the Rex Theatre, and lenses the tlireatre to Playtime. (Plaintiffs' Complaint, ' f : 28 e, . 1 paragr iph 3) I f-- 29 13. Mr. l;o�;er Forbes is President of both Kukio and Playtime. 30 j 31 I f (Exhib'ts 1 and 2 to.dcposition of Patricia Ann .Jones) • j 14. On or about July 23, .1979, !i ukio entered into a real estate ' • • 32 I . -2- i . PI 435.12=8-76 I EXCERPT' AGE 41 1 i 1. +. r: i.a'1•i.., r�...i'r:A:ir,.?S4;i: a;i:.{tk;:tf:Fc:d'•b?t,yii:..•}.�..:.:xlYs.P; } t S•.:: '.i.i....NY.i.+L :.:.• :1:........ .....+1' • ..•7• .. 1. 1 j! contract for the purchase of the Rex Theatre ,for the sum of $80,000.00. The ' i . ii 2 IIIdate f closing of said contract was .August 17, 1979, and immediately thereaf ter,! 3 1 Kuki took possession of said theatre. On or about the 31st day of August 1979,1 • 4 • by a written agree.incnt, 1<ukio leased said theatre'premises to Playtime for a; A . i , 5 I period of ten years commencing on ,September 1,-1979. (Plaintiffs' Complaint,; . , 6 para!raph 3, and Exhibit Ito deposition of Patricia Ann Jones) 7 15. The lease agreement entered into by Playtime and Kukio pro-i p• If s9. I 8 vide. p^emiscs were to be used for the purpose of conducting, therein, an adult' 9 moti.n picture theatre or theatres. (Plaintiffs' Complaint, paragraph 3; Exhibit 1 1 10 to deposition of Patricia Ann Jones, page 1) ' • 1-• • • .i 11 16. Playtime took possession of the Rex Theatre on or about ' i , 12 i Sept mber 1, 1979, and immediately thereafter spent $169,559.00 to remodel and! • 44. . r13 I renovate the building. (Jones, page 4, Lines 13-22). ' • j I i 14 I 17.— Playtime leased the.Community Cinema premises for a term ofi ! ' I� ten (10) years commencing January 1, 1578, and from, that date has continuously, ? 1 15 I 14 • exhil ited adult motion pictures at that location. (Plaintiffs' Complaint, [tarn-. 1 I i 1' yt • i1 18 1 18.— Playtime, Operating the Rex Theatre, had already applied fon n I bush ess• license as a theatre before the passage of Ordinance No. 21953.i 1 ' 20 (Plai tiffs' Memorandum in Support of Motion for Prelminary Injunction, para- • I , 1 graph 6; Parker, page 9, lines 2-4). 21 �l 19.— Mayor Parker, after enactment 'of the . moratorium ordinance,! 22 . , r i I requ sted that the. Planning Department study zoning regulations vis-a-vis, adult, ;'; :. . . 23 -Fl{•: . �L: then res and book stores, and that the Planning Commission hold hearings so as 24 p.:.. to r ake a determination whether the relocation of •adult theatres and book, 25 28 stor s was a proper exercise of.the zoning authority. (Parker, page 9, lines 1-7, i '19-2. ). . • , . � �. 27 c.;. 20. After the moratorium ordinance No. 21953. was passed, and the', ' f0.. 28 ! EEj�,.: li Rex Theatre, in the spring of 1980, began to exhibit adult pictures on a regularII li1'' 29 11 ' I basiN, concern was expressed by the 'Tacoma City Council by resolution that the' j 30 , ' . 1 ►.^.or torium' ordinance was hc:ing; violated by the owners of the Rex Theatre.; 1 31. • ' 1 I •(1'rirl•er, page 13, lines 18-''•1; Exhibit 2 to Deposition of Parker, pages 7 and,8). ' I 1 32 • '1 i • i .1.1•3S•12-8-76 I . ' • 1 .I EXCERPT PAGE 42 - , •1.d..P.7. ft rli ,' :i:t! � :::;'t 1:;L.?4.r:i;•s'i•-/.... w!.y Pa ti'Y0,...,. ?... ,•..Lt•, . . ;Ii-I t:',4''r, ....+L1:: u?:.t."S;• -f%,.•.:.!°:?7..i:•'•.•.',. ..:'i•.' r' •t :1 r. - i r :e .:a• + •• • • .• . ...•: .....•.\ •_.....J._L`L.... .r.•mil..J.r.•L.1. .I:.IJ::-!•..�—...•... .. i>1.1.:'.•.•:'.. '--• T.... . .•n.v ' _.tea•......._..`..� _ ..........,, • ' I n 1 II 21. As a result of the direction contained in Ordinance No. 21953 1 2 11 the Planning Department of the City, under the supervision of George Hoivik; ' ! • ,s 3 II began to research regulations on pornographic uses .as they are controlled by, i t-t. I •1 iII;i I zoning ordinances in other cities. (Ifoivik, page 11, lines 4-11). , 5 ., . 22.' In furtherance of this direction and amignment, George Hoivik 8 i • reviewed Planning Advisory Service Report No. 327,, entitled "Regulating Sex I ! 4, 7 Businesses", and a memorandum to the City Planning Commission of the City of, • -, 3 I, Seat 'lc from . the nvironmental Management Division relative to• its zoning! cont ols for adult-onlytheatres.. (Hoivik, page 12, line 15; page 13, line 1). 9 � P f? P g 1 10 23. Mloratori im Ordinance No. 21953, passed in January 1980, di i- ' . i. ' 11 rectid the Planning Commission and the Planning Department, under Section 5; / 12 of tl at ordinance, to complete a study of said'business use restrictions, and the; ri'.:.. • +r: 13 Plan 'ing Corn mission to set hearings for the •zoning ordinance, at the earliest `� 14 Ii possi le• date, with the recommendations of the Planning Commission to be 15 I transmitted ' to the City Council in accordance with procedures and laws; j I .. . ' i6 governing such business use restrictions and zoning procedures. (Hoivik, page 22,j iF 17 1 lines 9-21). L ! , in,' . 18 I 24. On or nbcxit May 5, 1980, a memorandum was submitted to the! • 19 Planning Commission from the Planning Department staff, relative to Ordinance' I , 20 •• No,. 22205, which .had been drafted by the office of the City Attorney. Thisj I • 2� memorandum was personally prepared by George Hoivik, and the information; I I ' 29I contained therein; was extracted primarily from- Planning. Advisory Service; . No. ) "Regulating r' r rBusinesses". . Report 327, Regulating Sex (Hoivik, page 30, lines 8-23;j . j • N.,. 23 . l?E• • Fxhi•it 4 to Hoivik;'s deposition). . • 24 , .: 25. After the public hearings • were • conducted by the . Planning) 25 Commission, recommendations of the Planning Commission were prepared by the • 26 'Plan ing Department staff, reviewed by the chairman, signed, and passed on to ( , 27 • I ,l.. 4. - - mem.ers of the City Council. (Hoivik, page 39, lines 3-9 and 18). •' 28 I . I . . i ' I 26. The Planning Department staff of the City of Tacoma presented i 29 I • I the Planning Commission with thirteen reasons why a law should be enacted' • ;,0 I, rerno ing adult book stores and theatres 'from residential areas. (Hoivik, page 41, 31 ;I i • I lines 9-25; page 42; page 43, lines 2-14). . 32 • • -q_ ` :•1432,12-8-76 ! • In'011, { Q11 9!!M.r.I'i''h ii .•.•. .:; nS 00...i,: al 1 SL• �' '':i &:1:'• ..,; , ;r;; Ikf;: - 1, • ;i : •�,, :� fir' 1'.. •'.° `� • • • et; • .:i:i V!;"-.i::•. 1.:%:1,i:&, ...°. .i:r.-0..Pii...::I;;..; . . . .1... .HJ,..,......., ... ....,..... . ,-�.. ..1: . .•.. .. 'IH:':' . .•. -ate......-..—.�..._. . r r i • • 1 i • 27. . The thirteen reasons were taken from information the City i 2 ( re•eived in letters and petitions and from listening to the comments of the public j 3 i at .the first hearing on the ordinance held by the Planning. Commission. (Hoivik, tt i I 4 I pare 43, lines 22-24). 5 28. The Planning Department Staff of the City of Tacoma prepared 6 • an environmrr,tal final declaration of nonsignificance and check list,. obviating • the need of an environmental impact statement. (Hoivik, q P , huge 44,.liries 19-25). . 8 29.. Cjtizens''eomments at the Planning Commission's public hearings. I � . g • ind'catecl they were concerned about lowered property values and deterioration r 1of he neighborhood where adult theatres were located. These comments were • 11 i not further researched by the Planning Department staff. (Hoivik, page 53, lines 12 it 17- 9). it... ;* 13 I - , 3(). The conclusion of the Planning Commission was that adult'lt' r I! 14 14 i theatres and adult book stores had an adverse impact on the health, safety, and • 15 welfare of persons residing within the neighborhood where such uses are located. • 1 16 I (iloivik, page 65, lines 10-18). • 1 17 32. The recommendations of the• Planning Commission ,to the City xr:• 18 • j Cot ncil concerning the adult theatre ordinance were drafted by the Planning • ; . 19 1 Del artment staff for the Planning Commission's approval and signature. The j 1 11 20 recommendations. of the Planning Commission are not the recommendations of ; : 21 I the Planning Department staff or the Planning Department of the City 9f I 22 Tacoma. lay the Charter of the City of Tacoma, and its ordinances, the Planning C:ei mission is the recommending body to the City Council. (IIoivik, page 67, I Isit.• 23 14;N line. 3-13; 'facoma City Charter Section 3.8; Tacoma City Code Chapter 13.02; I a,: . 24 f. E.0 WVli, cler, page 10,,line, 1--1 ). ,., . . 25 33. The "13" Downtown Business District of.the City of Tacoma is,en • 26 1 are. approximately thirteen hundred feet by forty-nine hundred feet, or htiproxi- 1 27 • mately one hundred and forty-five to one hundred and fifty acres. (Hoivik, page ~ 26 1 :: !j 73, ines 22-25;•page 74, lines 13-16; Exhibit 8 to Peposition of Hoivik). �' 20 ! I• ! 34. There arc approximately five to seven locations within the "f3" ' ! • . 30 i ! ' 1 i Bus ness District of Tacoma, where adult businesses could locate or relocate ` • • 31 • aftir Ordinance No. 22205 went into effect. . This number could be expanded . 4 2 , tss-12-8-7a -5- 1' , • EXCE' PAGE. 44 •=177 hM:cf-4 .tx. lv,-i1L•.,.• i'44- dial'v.r.4:�.:;.nr,S';.ia4,i.:.ir,,,4:': ,.!ii.p^'...:'';'i/�'SG:'!ittli::sk.q)...13t,1.A.'tY'.1:'$t.L.'.E.-.44: 6..4.:.,iikU.411` . ih•, I:. . •i' r r. is • • i4. t \%,'• • ✓.w3►..•-•-••.. . .... ,•-{.•..4J:i:-'.J.. • .••.•• .....1 • ..•. ..... ., .;........••..\. . •.......�I 1 ../✓.i✓:..•ii•JLi F.-►I..A.l..1J-....I-'�..I.i..•'a;1.;iiIii;✓.•:•. 1 ... .. . • 1 it,I, 1 1 1 iI upon by the waiver provisions in the ordinance allowing the Hearings Examiner of 1 2 Ii the City to waive distance requirements. (Tloivik, page 74, lines .17-25; page 75, L. I! n'• ,1 3 • II lines 1-12). 4 ii 35. The topography of the "13" f;irsiness District presents few pro- i 11 blems for building sites: (Iioivik, page 79, lines 16-21). 6 I 36. The "13" Downtown Business District, specifically the lower I i 7 I Pacific .Avenue section, has been a "tenderloin" area •for more than forty years. I ;Y_t. . ttlq 8 • I (Iioivik, page.88, lines 5-11). 1.... g 37. Adult book stores and theatres have contributed to the con- 10 { tint ation of this type of district. (Tloivik, page 89, lines 13-15). • . • I 11 I 38. No evidenceevidenceexists in the record which shows Plaintiffs could not 12 . i' relocate to the downtown business district of the City of Tacoma. . `I I :li. 13 I 39. The Court takes judicial notice of the fact that the downtown 14 � business district.is amply ,-,erv.ecl by public and private transportation. I 15 • . r- CtNCLJ'=SIi)':�iS OF__LAW I • I, r;,. 16 The,court • has jurisdiction of the parties and the subject matter herein ij'i)• 17 under: . 18 `Title 28, US'CA,'Seclion 1343(3) and (4): . . . •I . 19 Title 42, USCA, Section 1983: • . I • 20 Title 28, USCA, Section 2201: • ?1 • 1. This Court has jurisdiction of the parties and the subject matter - in this case. I • 22 I 2. The City has the right to pass zoning legislation as part of its 23 I. general police power. , 24 '" 3. Ordinance No. 22205 was passed in accordance with all applic • - 25 abl laws found in the Charter and ordinances of the City of Tacoma and under 20 .. 27 the power delegated to it by the State of Washington as a first class city.` ter.,:,. 4. - Ordinance N . 22205,, as a zoning ordinance, was properly ! AI.: 28 I ,- reviewed by the Plrt{nieg Cor missinn 'of the City of Tacoma, and as. a fact- I . I- 29 I j finding body of th City C.onncil, the Planning Corn mission passed its r•ecorn- 30 i� 1 m endations on lo. the 1 'r:•omr: i City Council after two public hearings were I ;1 adv rtiscd and held as provided by Title 13 of the Official Code of the City o,f 32 I ! -6- ?I-SS-12-8-76 \ • 1 I 1 1 . EXCERPT PAGE 45 ...... • •• :S[r7mmi7.41,#AlStPrSFn.0/..rg' Kp,..'.`.,`, Z.;4 4:..i..J•L":.11SE!.;• .'r ,\,!Q,t;{ 1 =::•r::i 1 ifi�;..r.. yl :',2 rNt:i.:001'.1J :VI! a l;S, T-S: h••i 1:'•r;.., S' L:'° ;LtV•� Ow;!i,l .1.;.::{y 14i.ta.�.w.•�t�•S�.d..�� r 'M!1 r :� j ; •1 f. 1 •:: . c1c .: .y .r. 1.1::It!ii:ii:u.lr:r::• ...._...,t::. •r;ia...,•.1::i.,;:H•.0iu•..: ..•:.•.. ... . .-..i r:y:.•,t•:•.i':i:..2i.1:...:.i.1.1....1ALl1:L.....:: _.,.l.•.i•:_iI__. .._ ':;$4ii.'::i•. :i.i. •i:i. . . ,.i ,. ... ,... .. iy•.•:ihw'..,..u.,.., 1 .. ... .. .'..,i.•:1'r•.� i•':I�i LPL:. ......:{i•I•.4:11'11V.J..•. .. .. •••.._<-......*-....-.. _....,i.... ..,wn.nee•wnct,a-���:1�N•:.•a. ----?i?la% ifirrTiki:_:..�L.__..s=p. [i4 • _ „ e r . • • • . • 1 • I -Tacoma and the Open Public Meetings Act of the State of Wahington. 1 t 2 li 5. A review of the applicable ordinance, No. 22205, shows that it 3 II only differs from. the similar adult theatre ordinance :passed by the City of J • II Seattle and upheld by the Washington State Supreme Court in North End Cinema; ' I 5 inc. v. City of Seattle, 90 Wn.2d 709,. 585 p.2d 115 (1978), cert. den. 441 US 94G • 1 (197 ), in that Part C. of Subsection 17 of the ordinance contains certain distance . ti req iremenLs, and Part I). allows for those distances to be waived `' ,r 8 by the Hearings Examiner of the City of Tacoma. r6. The language, in this case, defining adult theatres and book I 7 stores does not differ substantially from that language found in the City of Detroit _ � 11 � ordinance and upheld in Young v. American Mini-Theatres,. -12 US 50, 9G lit.• S.Ct. 2440 (1976). . : �" 12 I ' 13 • 7. . The City of Tacoma's Ordinance No. 22205 is not void for. 14 I overbreadth and has a legitimate basis through the notice power of a munici- • • pall y to regulate residential areas of that municipality by regulating certain 1 15 1 I':. is corn nerci►_rl uses. . . i, 17 8. The City of Tacoma's zoning ordinance No. 22205 does not deny 1;;. t equil protection under the�law. • 18 . 9. There has been no showing that access to adult theatres and book 19 . r stor s will be greatly restricted or denied. 20 • 10. Although the Court sees that.the. Tacoma City Planning Commis- 21 sion did make findings and recommendations on Ordinance No. 22205, according I 4 22 ':' t • to Tacoma City Code Chapter 13.02, none were actually required because a 23 ! t legi lative body is entitled to rely on the experience and findings of other ,: 24 r� legislative bodies as a basis for action. Genusa v_CitLof Peoria, 619 F.2d 1203 • ' 25 (1980). + 26 11. The ninety,clay amortization period, for a nonconforming use I 27 I ry,. • found in Ordinance No. 22265, is a reasonable one. I -. _ i• 28 • t • 1;. t 29 I r . * * �. * * * * * * • • 30 * * , * * * * * * * •i ' 31 * * * * * .* * * * * , 32 I -7- ,i•r•sa-iz-a-'ra • EXCERPE PAGE 46 ' eY: 74r."%e •�1►!}.m4if; :`jt•�i ;: +a..4... ,r,c:i••i't`,.S;M fo.i ,„!ix,K..' .'iY,t: ,t+,C:;'1'_>>.:t;;'v:t79 li'-C l'••UF d+Y ^N;t ':1!". - 1Y�,I'1A•'+1;r1V"} yi?I,j.S,✓ .r I en'ii i�::'4f•,* • • ' 1 i5: •} -ir'� t ,i• ,'a. ... ... :4..i:::...Xi!:i. .,.::'i:i: ::t:.:;•.1.•i:i:t�mi.ouui•,i:ni' ,.�1.. :a.•1 ii:�:iGi.. :u....it�,:: .•t:i�ii::t..il:.••::.3t.c. ........ .. .•. ..•.5..:.... . .... ,. . .... .:� L%giq''*i.:... . ii.Li r 1 Q 1 • , 12. Plaintiff's 'lotion for Preliminary Injunction'is denied, in that Plaintiffs have failed to establish the substantiul likelihood of prevailing on the !i II:: ,13 . '.I h merits neces`:ary to support preliminary relief. • it:. 1; 13. Declaratory judgment should issue, declaring Tacoma's Ordi- . ,4 5 I, mince No. 22205 constitutiOnul on its face and as applied to Plaintiffs. �I • 16 li 14. Defendants shall recover their statutory costs. I)A1T1) this 2-• day of K C. _1. J, 1981. 4:.: 11 UN['1'L STATES [.)ISTRIC'1' JUDGE Ili 112 • 13 - ► 14 • t • rg 16 • • a r. 17 18 ,. ; . 19 , . : •I 2 , • I 21 • '. • 22 - . f 23 t, ' II 24 25 ! • i ' � 1 26 1 : . 127 •I. • f. I I �' 28 I' _ • . • ' 129 . • 30 -8- • 131 1 32 i :i66-12-B-76 • •1` ` i I .. I 1 1. I • EXCE' PAGE 47 . -tutor neNrm,44,r:z :0•41'.0A«.• !?t.:1t3,9,...•„•b, •..n.: ,:',..?,,•t .K:f.t.S1.0ir:. >.;: +?•t:ia1 !cPs1HI B'rr;.;:lA'l;.,' ..1!;, *11'ile,'I 1jvt'`1•1. f.•':•f 1:`i: y. •t :t:' 't` it s'.. °I—.. ': • .•T;� .t: t: :j ,mow .'!•- . ...: •t•• L . '. .i: ••�;` :i:f.:::.s:..l.:1.t..JL .11a:d1�.y..aN3y?:it-..:.t: • -i';;',.n.;iiiit•:�.�:ety I I i1;:- r.1:s_.`..:,.a:i::•¢N lia7: a:ii.li:i'..:it:.w.L'...i..ai. _....11 :.♦' •.�.1�+i:FA .' 1� ...... a.n , ..... -• .. .. . t . • ../...1....1 i+. . .-.. il, :...:•wlY•.t y... ..�µ.i•t.r..a.Wiest.°.,.C:.i.S.M.I.d.nl U7'i+•.::i,c.'':.Idrr,/.t 001 , I MI I 1 I I r 1 III 1 I i;,---1 rii'„ :, i v.. PLAINTIFFS DEFENDANTS PLAYTIME THEATRES INC, n 'Washington Corp.' (TILE CITY OF TACOMA and THE HONORABLE I and KUKIO BAY PROPERTIES INC. , a Washington MMIKE KEmPARa KER, s.,MayorING fat the eiCity of ager - corporation of the City of Tacoma, and MIKE PARKER, HAL NIELSEN, BARBARA BICHSEL, JOHN HAWK',[. JACK HYDE, STEVE KIRBY, PETER RASMUSSEN, TIM STREGE and DOUG SUTHERLAND,; as mambo. ' of the City Council of the City of Tacom serve on: , H. B. Bond, City ,Clerk, Room 338, County-City Bldg. and WILI;IAM ' PERRETT, as chief of Police of ;the • • City of Tacoma, Defendants jointly and • -_- • ' severally in their representative capacity only. ..-. v'* . ' .• . _ CAUSE . ). C. - _ . . -- ' (CITE THE U.S. CIVIL STATUTE UNDER WHICH THE CASE IS FILED AND WRITE A BRIEF STATEMENT OF CAUSE) ?8 USC 1331 to declare unconst. zoning ord. for prelim and inj . relief ah • 1 ' 'ATTORNEYS ' ' Jack R. Burns Hubbard, Burns & Meyer KYLE J. CREWS' i 10604 NE 38th Pl. Suite 105 ATTORNEY AT LAW . Kirkland, Wa. 98033 • . . • 345 County City Bldg. ' 828-3636 • Tacoma, Wa. 98402 (206)593-4620 . { - . . r.;tyiY • -1 I _...-C.D_ __— •---STAT!STICALC,c (�} FILING FEES PAID I '11: ! • UMU:n NUMI3F.F1 CAHUDATE I: II :1.S�i V../1:: L-'- S. - ' . . - . . . , . _... . i • 15 Nov 80 11-2 • -80 ! 5765 I lll.ulyd I 1 i. 1'I lil �. ---..._._�-_ • . --.__� ... __.._�...... _—. --_ - I' EX " PACE 49 . . • • ►.[xs Ra0 7i?®`'•11.x.I iCvt. �7{-• .):,!�Tlp.'''"-• 'T'i", .!j f•' ?t. :p' l,.r - _ L• 1i 1 i • I • i. A ._ . . . . .. .--... .. .- ::.:::•.....:.::::*,.,:-:: :::;;:.,.: .1::: ;.._....._i. .. :1.:.....:i'::. .._:::.1i:vi •ice. DATIE mi. rnaCEIMINGs -980 • I I . •. ,. .. • f . .ov. 24 1 CMI'LT . . issued orig and 5 to USM • . • ' . . .. Dec. 10 2 API'1'EAIANCE of Kyle J. Crews for City of Tacoma . , 3 ANSWER , ' & cross claim . , In. 18 4 RETURN on serv. of S&C on William Perrett, City of TacomalErling I • Mork,Hon. Mike Parker,City Council Members . [ • 1 . . 1981i . . . . . . - . . . . . ar 9 I 5 NOTICE OF DEP. - of Michael J. Wheeler, George Hoivik, W. 1NT Perrett and. I ! •,. Mike Parker pltfs inst. . . - . - • . . . . - . .ar 10 6 MOTION - defts for summary. judgment. ._ - ,. ' .. . • ar 10 7 MEMORANDUM - in support of motion. . ' _ • ' . . r 10 8 NOTICE -of motion, April 10, 1981 at 900 a.m. . 1 . ar 13 9 AFFIDAVIT - of service of dePosition. subpoena:of Michael J. Wheeler. r ±2 10 AFFIDAVIT - of serVice of deposition subpoena df W. W. Perrett. . . r . !r. 13 11 AFFID. osvc of subp dep of.Mike Parker • , 1 • 12 , AFFID. of svc 'of subp de p of George Hoivik ' , sr 26 • 13 MOTION of pltf. for continuance of hearing on motidn for s.j . • II 14 MEMORANDUM of authorities in support of. pltfs' motion for continuance H it 15 AFFIDA IT in support of pitf's Motion for continuance of hearing on motion for . s.j . n ' 16 NOTICE of Motion for 4/10/81 . • . . . pr 3 17 MEMOR DUN - pltfs in opposition to defts motion for sj . . ,r 3 18 - AFFID: VIT '--- of Jack R. Burns in to onpoci*4^^ pr 22 19 ORDER Motion fbr Summary Judgmenr lytitrriM (cheereencfntAff Ca1.1%11* cys U' 6 20 DEPOSITION MICHAEL LPARKER 21 1 DEPOSITION GEORGE A HOIVIK . . . . . 221 DEPOSITION . WILLIAM PERRETT • s' • . , 23 1 DEPOSITION • .: MICHAEL J WHEELER . . . n 5 24 1 DEP of Patricia Ann Jones ' • • ' . . .n 8 ' Z5 I MOTION of pltff to file. hrief in excess of 20 pages : . .n 16 25a1MOTIO, • - pltfs for Prel . Inj . Oral Argument req ' d. . • • , . un ,6, i25b MiEMOR NDUM - in sup. of. . . . . • , " 27 , SIGNE ORDER granting: leave to file brief . cys mailed - - .. • - i 22 . 28 NOTICi' OF MOTION July 3, 1981 - ' for Preliminary Injunction , " 29 CERTIF CATE 61: SERVICE KYLE I CRI.WS.; 1 2 * 30 MEMORA1DUM BY DEFENDANT ' ACAtNsT' Mati6N-vOR PRELIMINARY INJUNCITON • L •. . , . . 1 13 ET FOR RIAL 11-30-81 PTC 11-25-81 at 9:00 AM counsel notified ;' . 1. 9 31 rST.I.PITTa -0N----7-1dR URDER—CONSOLIDATINC HEARINGS " 32 i ORDER CONSOLIDATING HEARING WITH TRIAL ON 'THE MERITS cys mailed • I : ' 1 le SET FN TRIAL 7-22-81 at 9:00, counsel notified by phone • . . d 7 LODGED ORDER granting permission to, participate TO CHAMBERS 7-20-81 " 33 APPLIC TION • ' for PERMISSION TO PARTICIPATE - Jul 21 34 LIST 0 EXHS bypltff , • . . I• 22 -- ENT REC. of trial to Ct. 1 st day E. Holloway Ct. report. hearing had. ' . . Parties to prepare FoF and CoL (indexed as to record) Ct. to have . \ • ruling after-5 page post trial briefs are submitte.d ; .21 LODGED 'INDINGS OF FACT AND CONCLUSIONS OF LAW to chambers 8-21,-81 • (PLTF) 24 LODGED ' FINDINGS OF FACT AND CONCLUSIONS OF LAV- by DEFT to chambers8-25 u 34 MEMO in support of CONCLUSIONS OF LAW u 35 STATEMECT . by PLAINTIFF . of PRINCIPAL LEGAL ISSUES AND LAW IN SUPPORT THEREOF - 2 36 FINDING, OF FACT AND CONCLUSIONS OF LAW u • cys mailed • . . • 36 ABSTRAC ' JUDGMENT cys mailed .. . :di • . ,1 .. „ • . . .. i , • . ,. . . , .. . ' • ' • . .• • . . • -. . . , . • • • • . , . •. . ; . . . . .. . • . • . • . . • , . . ', . . • ., ' • ' .. . . . ... .' . . . • . . • . . . • . . • " ... . - . . • . , . " ' . • .. . . . .. • . . . . .. .. . . ! - . • !. . . .. . . , ..., . . . . • • • . , , ... ,.... . • .*, . . ' . . ,. . .... : ..,.. , . . . . .......... . . • . • • . .. . , . . . • ' . . ' • . . . • . . - ' • I 1 , . rategsmumarzerosrawyposown...1>T. . ..fill,:-. 0••-•-na'9.1trr•-r-'sr'itk".• 143.t. ::; •-..,..::i:i•:•••,:::„,.• .:• .%:::111-:!: *:, •;•• :.:.:'•;t:--i•:ri••• *;' ..:1.:12:it:.t..i*::::': . . .' : : . !.! '• '.:....'.1.- -:.••• '::.: .- - • : ... . - .-.: :::.".::•i• ::: : ..i:;-: '!:' ::....:*:7•': :•'•.-::. -...; ". •! 1`• :: :::: , .i..t,t .t t.,4„.:.: . . . i, s-' ...•;- • `. :i.I.7..:. •.'. . . •::' •'• • :•:.7.- .:•_:•-;:...:ii: : ii.i;•!' ::•; ;;;;•.1-s.. ..,; ;r: ,:j.;.t.71;; ;•tr:,11-!7••-ii;ii::•!: ...:5:f*•'" i': ):: '•.'••i?•• : ••••• •;•:1....1.,.,. .!':. :::::•••;',' • • . :.•...:. i':.1N- • .•ii:'7:777: •• •7i7:7;: iiil • :::•. .i.:Z •::. • ••:...::;. 6:::::::, :•.,.i:;i. .... :. : ••• I 7 1 ' . .s . 7.7 • • '7 7 .• " ; ; ': ; 7. • •7•••••• 1 : . i•:.:,' . i'.::::; .-:I; : V.i. ,....::::::1:7.! ;"3:i;....1.::%:i'::-.?;;::::...1...,..l..............::::.1,:.••....1.1:•••&': 1....h.. . —...... ......, =-....--mili I .• i . --' I . ' 1 DCTA CIVIL DOCKET CONTINUATION S T 7PI•Nit11-7.14•0.•_ • PLAI,NTIf F DLPj_NDAN, e_ er DOCKET NO. �g D I PI�AY'1'IME THEATRES CITY Or TACO�1A • PAGE OF }, • (DATE NR. PROCEEDINGS • 1981 . Seep 15 38 M TION ptf. ' s to make additional findings _ , 1 39 N TICI: of motion noted for 9/25/81 • 41) M1 !1ORANUUM in support of mot- to make add tl findings • 41 ChR'I'II'ICATE of svc of 1138 , 39.1., 40 . Self) 18 42 AIiPEAL pltfa' Notice of - FF pd '-: Receipt 1163674 I 43 C i:l'LFICATE of ivc of '1142' ' -- CC mailed cc of Notice of Appeal, docket entries, payment notification form, cert of record; copies to counsel Sept 28 44 PELLAANT'S DESIGNATION OF CLERK"S RECORDS.. Gct2 45 filed o )[:R on pltf's motion to 1k �1al findings is DENIED Sep 30 46 filed Transcript Designation Form ( by L.make -additional. AI) requested by Mr. Bum counsel for Plaintiff . Oct 19 47 filed court reporter's TRANSCRIPT, OE PROCEEDINGS of 7-22-81 . (2 cy' Oet 19 I Received copy 3 of Transcript Designation form Oct 20 1 48 CERTIFICATE of RECORD to CA and to counsel and certified copy' of do • . • N • 1 EXCERPT 1 AGE 51 M ,+:r�Is►.•1 r~Iw•.1-:•VAT •i•••r}:•I li d'0 %19'f'iC''t�Gdl44,-t.r,PyrJi'+ •I,,rFlQr!4.- .• ._j.• . i' i. -i: • pit:;. gip•: '�'•. ,Y i. . i.:a1• • / , ICU / ' 1 2 3 4 5 IN THE SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY IIF RENTON , , a municipal ) NO. 84-2-18575-9 corporation, ) 7 ) BRIEF IN SUPPORT OF CITY'S Plaintiff, ) MOTION FOR SUMMARY JUDGMENT 8 ) s . ) 9 ) PLAYT ME THEATRES, INC. , a ) 10 corpo ation , ) ) 11 Defendant . ) 12 FACTS 13 The City of Renton has an admission tax of three percent 14 (3%) on theaters per City Code Section 5-301 (B) ( 1 ) . The City 15 also as a penalty for nonpayment of five percent (5%) of the 16 tax npaid , per month , not to exceed a total penalty of 17 twent -five percent (25%) of the amount of such taxes'. 18 Section 5-301 (F) . A certified copy of the City's admissions 19 tax ordinance is attached hereto as Exhibit "1 " . 20 At the beginning of this suit , Playtime had not filed 21 its a missions tax return for the last quarter of 1983, all of 22 1984 and is now late for the first quarter of 1985 . In 23 respo se to Interrogatory No . 10 (Attachment A, to Motion) 24 Playtime submitted the admissions tax returns but has paid no 25 money. There is no issue pending or arguable that the money 26 is du and owing. �7 Playtime has maintained a claim of set off, 28 alter atively stated as a counter claim, that it has a right WARREN&KELLOGG,P.S. BRIEF IN SUPPORT OF CITY'S MOTION FOR ATTORNEYS AT LAW SUMMARY JUDGMENT PAGE 1 ioo SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 t o 1 to ce tain attorney' s fees under the Civil Rights Action, 42 2 U.S.0 1983. However, these attorney's fees relate to 3 chall nges to the City' s ordinance controlling the location of 4 adult motion picture theaters , and bear no relation to the 5 admis ions tax or any other issue raised by the City in this 6 action. This issue has been raised and argued in both the 7 state and federal court as evidenced by Attachments B through 8 E of he City's Motion for Summary Judgment . 9 ISSUES 10 1 . Is Playtime's defense and counter claim for 11 attor ey's fees under 42 U. S. C. 1983 barred by the doctrines 12 of r s judicata , collateral estoppel , comity or primary 13 jurisdiction? 14 2. Is the City of Renton entitled to an award of 15 attorney 's fees under RCW 4 . 84 . 185 for the maintenance by 16 Playt me of a knowingly frivolous defense? 17 ARGUMENT 18 1 . Is Playtime's defense and counter claim for 19 attorney's fees under 42 U.S. C. 1983 barred by the doctrines of res judicata, collateral 20 estoppel, comity or primary jurisdiction? 21 Washington State has strong policies involving res 22 judic- ta, collateral estoppel and issue preclusion. �3 The leading case discussing res judicata and collateral 24 estoppel in Washington State is Bordeaux v. Ingersoll Rand 25. Co . , 1 Wn.2d, 392, 429 P.2d 207 (1966) . 26 "Res judicata and collateral estoppel , kindred doctrines , designed to prevent relitigation of 27 already determined causes and curtail multiplicity of actions and harassment in the courts , are at 28 times indistinguishable and frequently inter- WARRENL&KELLOGG,P.S. BRIEF IN SUPPORT OF CITY'S MOTION FOR ATTORNEYS AT LAW SUMMA°Y JUDGMENT PAGE 2 too SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 1 changeable . If the differences must be noted,. it 2 could be said that res judicata is the more comprehensive doctrine , identifying a prior 3 judgment arising out of the same cause of action between the same parties , whereas a collateral 4 estoppel relates to and bars relitigation on a particular issue or determinative fact . Both 5 doctrines require a large measure of identity as to parties, issues and facts, and in neither can the 6 party urging the two doctrines as a defense be a stranger to the prior proceeding . He must have 7 been a party , a participant , or in privity with either , and the action out of which the bar is 8 claimed must be qualitatively the same as the case in which the doctrine is set up as a bar. Where 9 res judicata precludes relitigation of an entire cause because of an identity of parties and issues 10 culminating in a judgment , collateral estoppel is less inclusive , preventing retrial of but one or 11 more of the crucial issues or determinative facts . Owens v. Kuro, 56 Wn.2d 564, 354 P.2d 696 (1960) ; 12 Riblet v. Ideal Cement Co. , 54 Wn.2d 779, 345 P.2d 173 (1959 ) ; 2 Orland, Wash. Prac . §§ 387 (2d ed. , 13 1965) . 14 We recognize this principle in Owens v . Kuro , I , supra, when we said: 15 A judgment is not res judicata nor is one 16 collaterally estopped by judgment in a later case if there is no identity or privity of 17 parties in the same antagonistic relation as in the decided action . Riblet v. Ideal Cement 18 Co. , 54 Wn . (2d) 779 , 345 P . (2d) 173 ; Rufener v. Scott , 46 Wn . (2d) 24-, 280 P. (2d) 253. An 19 estoppel must be mutual and cannot apply for or against a stranger to a judgment since a 20 stranger's rights cannot be determined in his absence from the controversy. 21 In Northern Pac . R . v. Snohomish Cy . , 101 Wash 22 686, 172 Pac. 878 ( 1918) , we set forth the essential ingredients of res judicata: 23 To make a judgment res judicata in a subsequent 24 action there must be a concurrence of identity in four respects: ( 1 ) of subject-matter; (2) 25 of cause of action; (3) of persons and parties; and (4) in the quality of the persons for or 26 against ,whom the claim is made ." 27 See also Beagles v. Seattle-First National Bank , 25 Wn . 28 App . 25, 610 P.2d 962 (1980) ; State v. Dupard , 93 Wn. 2d 268 ; WARREN&KELLOGG,P.S. BRIEF IN SUPPORT OF CITY'S MOTION FOR ATTORNEYS AT LAW SUMMA Y JUDGMENT PAGE 3 too SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 1 272 , 609 P . 2d 961 (1980 ) ; Seattle-First National Bank v ! 2 Kawac i , 91 Wn., 2d 223, 588 P .2d 725 (1978) ; and Kyreacos v. 3 Smith 89 Wn.2d 425, 572 P.2d 723. 4 In the Superior Court action, the City's ordinances were 5 challenged under 42 U.S.C. 1983 and there was a request for 6 attor ey's fees . Both the City of Renton and Playtime were 7 parti s to that suit and they were both representing the same 8 position as in this suit . Therefore , the four unities 9 requi ed for res judicata exist in this case and the doctrine 10 shoul be applied. 11 The same analysis can be made with the federal court 12 actio . In fact , Judge Nancy Holman of the King County 13 Super or Court found that Plaintiff' s argument under 42 U. S.C. 14 1983 ad been argued in the federal court and that Playtime 15 was collaterally estopped in the state court from rearguing 16 those positions . She then went on and made an independent 17 revie of the record in the City's ordinances and found them 18 const.tutional a second time. The doctrine of res judicata is 19 appli able to this action , yet a second time , because of the 20 feder 1 court's decisions . 21 Even if the federal court action did not amount to res 22 Judie to or collateral estoppel, that issue has been decided �3 in th federal ;court , ruled on by the Ninth Circuit Court of 24 Appea s, and is now pending before the United States Supreme 25 Court Once a ' federal court has jurisdiction over an issue 26 that ould also be heard in the state courts', the doctrine of 27 prima jurisdiction divests the state court of jurisdiction. 28 WARREN&KELLOGG,P.S. BRIEF IN SUPPORT OF CITY 'S MOTION FOR ATTORNEYS AT LAW SUMMARY JUDGMENT PAGE 4 1oo SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 . A 1 The federal court may abstain from its jurisdiction and 2 permi the state court to act . However, the City of Renton 3 argue at both the trial court and appellate level in federal 4 court that the federal court should abstain. Playtime, on the 5 other hand, argued with equal force that the federal court 6 shoul not abstain. Playtime should not be allowed to change 7 its position now, particularly since the federal courts ruled 8 with Playtime and refused to abstain . The Ninth Circuit 9 handl-d the issue as follows in Playtime Theatres , Inc. v. 10 Cit of Renton, 748 F .2d 527 (9th Cir . 1984) : 11 "Renton argues that abstention was appropriate in 12 this case because it involves vital state interest , see Railroad Commission v. Pullman Co. , 312 U. S. 13 496 , 501 , 61 S. Ct . 643, 645 , 85 L. Ed . 971 (1941 ) , and because the exercise of federal jurisdiction 14 would interfere with the pending state action, see Younger v. Harris , 401 U.S. 37, 91 S.Ct . 746, 27 15 L. Ed.2d 669 ( 1971 ) . We do not agree ." 16 Once the federal court has refused to abstain , it 17 juridiction is primary over that of the state courts . 18 2. Is the City of Renton entitled to an award of attorney's fees under RCW 4.84 . 185 for the 19 maintenance by Playtime of a knowingly frivolous defense? 20 Playtime knows that the federal court has refused to 21 abstairn in this case. It further knows that the King County 22 Superior Court has ruled that its constitutional challenge to 23 the City's ordinance was collaterally estopped by the federal 24 court ' s decision , and that the King County Superior Court 25 indep ndently held the City ordinance constitutional . 26 Howev r , despite this knowledge, Playtime once again seeks 27 28 WARREN&KELLOGG,P.S. BRIEF IN SUPPORT OF CITY 'S MOTION FOR ATTORNEYS AT LAW SUMMA Y JUDGMENT PAGE 5 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 1 attor ey' s fees from this court on an issue that it has twice 2 litig-ted. The court should penalize it for a third attempt. 3 The City claims attorney's fees under RCW 4. 84. 185 which 4 state- : 5 "Prevailing party to receive expenses for opposing 6 frivolous action or defense . 7 In any civil action, the court having jurisdiction may, upon final judgment and written findings by 8 the trial judge that the action , counterclaim, cross-claim, third party claim, or defense was 9 frivolous and advanced without reasonable cause , require the nonprevailing party to pay the 10 prevailing party the reasonable expenses , including fees of attorneys , incurred in opposing such 11 action, counterclaim, cross-claim, third party claim, or defense . This determination shall be 12 made upon post-trial motion , and the trial judge shall consider the action , counterclaim, 13 cross-claim., third party claim, or defenses as a whole ." 14 The City will present to the court , post—hearing, its 15 claim for attorney's fees should the court rule with the City 16 on th s particular issue . 17 DATED: April , 1985. 18 Respectfully submitted. 19 �. 20 �;i �1�b1Ci f c• Lawrence J. arren 21 22 23 24 25 26 27 28 WARREN&KELLOGG,P.S. BRIEF IN SUPPORT OF CITY 'S MOTION FOR ATTORNEYS AT LAW SUMMA'Y JUDGMENT PAGE 6 10o SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 ACn'1" ) 'y7 RECEIVED rs �..... .. 1 ( ;;`;.EL ON ..___.. �r 2 FEB 61985. PREF-AL1 t i.er,;- JACK R. BURNS, P.S. o COUNSEL FOR .r.c: 3 4 5 IN THE SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY 0 RENTON, a municipal ) corpor tion ) 7 ) NO. 84-2-18575-9 ' Plaintiff ) 8 ) FIRST SET OF INTERROGATORIES vs ) PROPOUNDED TO DEFENDANT 9 ) AND ANSWERS THERETO PLAYTI THEATRES, INC. a ) 10 corpor-tion ) ) 11 Defendant ) ❑ram.,.: . ) A` n r 1z MAR 51985 13 TO: PLAYTIME. THEATRES , INC . ‘=.IAP.REN&KELLOGG ._ By 14 AND TO : JACK R. BURNS , its attorney 15 Plaintiff requests you to supply the information 16 reques ed on the following pages in accordance with Rule 33 , 17 Civil 'ules for Superior Court. As required by Local Rule 33(a) 18 of the Superior Court of- King County, please answer each request 19 within the blank space provided, inserting additional pages 20 where ecessary; verify your answers on .the form provided 21 after he last interrogatory; serve a complete set of the 22 interrogatories and answers on this office ; and file the original 23 interrogatories and answers with the Clerk of the Court, within 24 twenty (20) days of receipt of these interrogatories . 25 By use of the pronoune "you" , it is intended that the 26 answers are to include all information known to you, to your 27 agents , employees . 28 THESE INTERROGATORIES ARE CONTINUING AND REQUIRE WARREN & KELLOGG. !.S. ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. BOX 626 FIRST SET OF INT. TO DEFENDANT - 1 RENTON. WASHINGTON 98057 255-8678 • 1 SUPPLEMENTAL ANSWERS UPON DISCOVERY OF FURTHER RESPONSIVE 2 INFORMATION. IF ANY INFORMATION IS NOT FURNISHED, OUR FIRM 3 WILL MOVE AT TIME OF TRIAL TO EXCLUDE FROM EVIDENCE SUCH 4 INFORMATION NOT FURNISHED OR MOVE FOR CONTINUANCE OF TRIAL 5 IN ORDER TO INVESTIGATE SUCH MATTER AND FOR APPROPRIATE TERMS . 6 DATED: February 5 , 1985 . 7 awrence J. 44 rren, Attorney 9 for Plainti . City of Renton 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. BOX 626 RENTON, WASHINGTON 98057 255-8678 1'TP CT CPT (lW TNT Tfl T1T Ta T+.NTIANT - 9 • e ,s . 1 INTERROGATORY NO. 1 : Please state the name, address , 2 phone number and position held of each person assisting in or 3 answering these Interrogatories . 4 ANSWER: 5 Jack R. Burns, 10940 N.E. 33rd Place, Suite 107 Bellevue, WA (206) 828-3636 - attorney for Defendant 6 7 8 9 INTERROGATORY NO. 2 : In its counterclaim in the 10 insta t action Playtime alleges an action under 42 USC 1983. 11 Pleas state all facts upon which you rely to arrive at the 12 concl sion that the City is committing a civil rights violation 13 by mes of this lawsuit. 14 ANSWER: 15 Plaintiff does not allege a civil rights violation by 16 means of this lawsuit 17 18 19 INTERROGATORY NO. 3 : With respect to the civil rights 20 count rclaim mentioned in the Interrogatory above , please 21 state what city, custom, practice , policy or usage you are 22 claiming violates Playtime' s civil rights . 23 ANSWER: 24 Renton ordinances no. 3526, 3629 and 3637 25 26 27 28 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. BOX 626 FIRST SET OF INT. TO PLAINTIFF - 3 RENTON, WASHINGTON 98057 255-8678 . 1 1 INTERROGATORY NO. 4: Are you claiming that enforcement 2 of the City' s admissions tax amounts to a civil rights violation? 3 If so , please state the facts upon which you rely to make that ] 4 allega ion. 5 ANSWER: 6 no 7 8 9 INTERROGATORY NO. 5 : Are you alleging that the 10 enforc-ment by the City of its garbage ordinance violates 11 Playti' e' s civil rights action? If so, please state all facts 12 upon w ich you rely to make that allegation. 13 ANSWER: 14 no 15 16 17 INTERROGATORY NO. 6 : Please state the last date 18 upon rich Playtime filed an admissions tax return with the 19 City of Renton. 20 ANSWER: 21 Date u known. This information is available from the city r-cords. 22 23 INTERROGATORY NO. 7 : Has an admissions tax return 24 been iled for the last quarter of 1983 or for any quarter 25 of 19:4? If so, please state the date upon which that admissions 26 tax r=turn was filed. If you will do so without a motion to 27 produs'e , please attach copies of such admissions tax returns . 28 ANSWER: no WARREN & KELLOGG. 'P.S. ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. SOX 626 FIRST SET OF INT. TO PLAINTIFF - 4 RENTON. WASHINGTON 98057 255-8678 1 . 1 2 See at ached. 3 4 INTERROGATORY NO. 8 : Please state the last date 5 upon which you paid rental for a garbage dumpster or other 6 garbage container from the garbage collection contractor. 7 ANSWER: 8 See at=ached. 9 INTERROGATORY NO. 9 : Has Playtime Theatres , Inc. 10 maintained a garbage can or other refuse container at the 11 Renton Theater the months of October, November and December, 1984? 12 ANSWER: 13 See attached 14 INTERROGATORY NO. 10 : State the number of paid 15 admissions at the Renton Theater as follows: 16 1. For the last quarter of 1983. See attached; 17 2. For the first quarter of 1984. See attached,1 18 3. For the second quarter of 1984. See attachedl. 19 4. For the third quarter of 1984. See attached', 20 5 . For the last quarter of 1984. See attached 21 6. For 1985 to date. Not available 22 DATED this 5th day of February, 1985 . 23 24 ence J. Warr torneY or Plaintiff 25 STATE OF WASHINGTON ) ) ss 26 COUNTY OF KING ) ,� 27 Ja'ck R. Burns , being first duly sworn 28 on oath, deposes and says : I am the attorney for Playtime WARREN & KELLOGG. ,P.S. ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. BOX 626 FIRST SET OF INT. TO PLAINTIFF - 5 RENTON. WASHINGTON 98057 255-8678 • Answer to Interrogatory No. 8 Ob 'ectded to: whether or not Defendantpaid a garbage collection 7 g 9 contractor rental for a garbage dumpster is not relevant to a detern}ination 'of whether or not a garbage container was available and used at the premises. Answer to Interrogatory No. 9 Playtime Theatres, Inc. garbage was disposed of in an appropriate refuse container. 1 • 1 Theatres , Inc. in the above-entitled action; that I have 2 read the foregoing interrogatories and answers thereto , 3 know the contents thereof, and believe the same to be true. 4 5 - t1 )Q - (2)1,1/L.-N.," 6 SUBSCRIBED AND SWOR to ".efore me this day 7 of 'fr,/Le.. 9 85 . 8 9 Notary Public in and for tie S e of Washington, residing a ��� 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WARREN & KELLOGG, P.S. ATTORNEYS AT LAW 100 EN. SECOND H P. O. 80X 628 FIRST SET OF INT. TO PLAINTIFF - 6 RENTON. WASHINGTON 98057 255-8678 (-' ADMISSION TAX RETURN ,--:-. • a CityCITY OF RENTON of• Torn of 5 U tao. PLM TEES • teeiod Eading � 19 83 THEATERS JP ;f �'�QG j Typo of Byyla:rr_ OMe.r a Messier iy►►� P.0.. BO -1ti353` " Addross /lddra. �� /off-�S�`: .. \S��a% 1 !�l/�- i I i SEATTLEI, WASH. 98111 Si Posm No. 23.1 .k.—Ag ro�ee'd Diriston of�tu�►1��1 Cor�oratioor ADMISSION TAX GROSS PfiICE "al" TAX"ER TOTAL (Do NOT ONES TICKET COLD I TICKET TAX DUE tIDE) 1 17 3 6-1R& 6 5j. 13 'x./2 133--) ( I�10 J/ °° 9 OO ,yF7 (0, i26,to • • • • • I • The undersigned taxpayer declarer that M has read the foregoing return and certifies It to be correct. DATED '1141q DAY OF ' 19_—. FOR CUTS USE Run Neese R.eelp) Da • t •Y • 7 \ . • f _ .. • ADMISSION TAX RETURN i CITY OF REN ON , , City el 1 ups 0 £, •• p faded bass Two a Dubow TI EATERS Or►eer er MaM�.r Addrexr 507 $`rd fi t, Renton. Wash. 980 55 Mdr • Cig Vona No. 7i•19.3—wprosed Division of Mwildpal Corporatioor --- ADMISSION TAX I pQOes i 'nice►ice I NUMMI TAX PCX TOTAL (DO NOT IlltA{.JLIO TICKET ,' 'p tTAX niNG j YYet 3% 07 o G o v ~ O v-/6 • co 17 90g�� , , oo 9 0 D 19D � s3� , • • ,, ...imm...........,. Tb. rrittatalosed bap.y.► damee that he as .sed tits &wagtail% nista sac; Ge.,.a.: u .. d. ,:is::;wZ. DAMP 1 . Y OF . 1? • I FOR CM'S Rio Now Oa . •1 • ADMISSION 'TAX RETURN • City o f‘ CITY OF RENTON • - . • • Torre of}. - ' . • Num` t t on Theatre • Period Esdi•y_ P 194 7 THEATERS , •Type of Owls-r. _ .Ors•r or M•au9•► _ ' .. .- • P.0. Box 12353 J Sattle;' Wa . - ' i•.9131 11' - '.-':.0 lour ig No. 2!•1913—•\ppsosed Di.isioei'of Municipal Corporations ADI�ljSSION TAX . . GROSS _ PRICE PER ' , .NUM®ER . T� TAX-PER . TOTAL (o0 NQ •: '- `: . • RALia - TICKET ' SOLD TICKET TAX DUE , ' USE),' ... . l7 _ .1yo7. .'°O.. 6 • • `io/� • -3•%. 6%20 y ; .,,. . • ray . . : 9�3� . • • The uad•rsigeed taxpayer declares th.t ks,`ss r.ad the foreyol.g rehire ud mortifies It to be.00rrema. DATED THIS —DAY OF . 19_� FOR CITY'S USE ' peash} Dots . • .. i` • ' i' '' • ADMISSION TAX RETURN _ .:. ,j,. ;,• ,. . CITY OF RENTON ' Tom of }' • _ I . • • '..%«_`, enton Theatre periodEedieg}1LLx J 19 � TREATERS Type of Bu1.;i- Owego or Me.e9.r . _ Address P.O. .Box. 12353 Sat•t 1e;:,Wes dr..• ' 6111 .. .Cite 7otm No. t).i92—Approved Di,ilt.n a Muniripil Corpoutiooi ADMISSION TAX ` GROSS . PRICE PER . NUMBER TAX PER TOTAL (DO NOT , SALES TICKET SOLD 'TICKET' TAX DUE USE) alb . 936'e & )ate .20e ?6 ,a3 8-`18" ° / o & cay3i r: 2a2 The us rsige.d taxpayer declares tkd b ►s reed the foregoing r.tun sad certifies It to be ported. . DATED 1 Y OF 19_...., -FOR CITY'S USE ' . 1 ?>Nw - t • '."_: .ADMISSION TAX RETURN ,.:. • CITY OF RENTON city of Tow• of Lm. • ` ehton Ttleatre • Period Eadiaq, ��� �i 19 �L/ ' .Type el Byyiti:u�, TARS °weer or Winegar _ . • • • cklmr. P.,O, Box •12353 Sattle, Wa Address - : ;:Gtf *ores No. 27•i9l}—•1DPeoved Division of Municipal Co ' " .,_. .. OROBS PRICE PER 'NUM®LR TAX PER -TOTAL ADMISSION TAX �wLu .'; TICKET • BOLD . • TICKET • TAX DUE t USE :.. �.. • /5 3, 18'.56p .'dO aIG,57 • 3% '. ' • 6/9555 • ;j . • The uad•rdg••d. taxpayer dealers. that ha'ha• road the,fo►•yoio9 ',shwa ••d certifies It to b• oorr•ct. •• ' . HATED ti fit . ')AY OF , 19 • ;• .• • FOR CITY'S USE • • - w N.Fk emo • RJo012)No. Date ' - • ;:•,: '4:� ;r. 1 2 3 4 i ! 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 ) vs . ) 12 PLAYTIME THEATRES, INC. , - ) a Washington corporation , ) � 3 KUKIO iiAY 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 he Court has heretofore entered an order severing the 22 Plaint ffs' First and Second Causes of Action from the 23 Plaintiffs ' Third , Fourth and Fifth Causes of Action for 24 purpos s 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 DECLARATORY JUDGMENT DECREE AND WARREATTORNEYS uouw,P.S. P RMAM MT TN.TTTN(:TTC 1 AART: 1 no SO.SECOND ST„P.O.BOX 626 AIM 1 10, 19;3 and , being recessed , recommenced on January 9 , 1984 . 2 The co rt convened an advisory jury, which advisory jury on 3 Janua y 23, 1984 , returned its Special Verdict and made 4 answers to Special Interrogatories propounded to it by the 5 Court. 6 laintiffs were represented in this action by Lawrence 7 J . Wa ren and Mark E . Barber of Warren & Kellogg , P . S . , 8 attorn ys at law. Defendants were represented by Jack Burns; 9 attorn y at law, and Robert E. Smith, attorney at law. 10 he Court previously entered its Findings of Fact and 11 Conclu ions of Law. 12 he Court 'has reviewed the voluminous pleadings in this 13 cause, and having heard the testimony presented and considered 14 the eihibits admitted into evidence , and having received and • I 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 misus- of the corporate entities of Playtime Theatres , Inc. , 20 or Ku io 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 •f Renton Ordinance Nos . 3629 and 3637, is constitutional 24 on its face , and as applied to the Renton Theater more 25 parti.ularly described below, under the Constitution of the 26 Unite. States and of the State of Washington. 27 28 WARREN&KELLOGG P.S. DECLA I ATORY JUDGMENT DECREE AND ATTORNEYS AT LAW PRRMANF.NT TN.TUNCTION PAGE 2 too SO.SECOND ST.,P.O_RiOX626 1 An "adult motion picture theater" is a permitted 2 land use within the B-1 and more intensive land use zoning 3 classi ication currently in use within the City of Renton, 4 excep 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 pictur- theater" in areas of the City in which such land use 9 is no prohibited by said ordinances. The Defendants , 10 Playtime Theatres , Inc. , a Washington corporation, Kukio Bay 11 Prope ties , Inc. , a Washington corporation , and Roger H . 12 Forbes , as sole officer, director and shareholder of 13 Defend= nts Playtime Theatres, Inc. , and Kukio Bay Properties , 14 Inc. , their successors and assigns , and any person claiming 15 any i terest 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 44 and the West 2 fee of Lot 3 , Block 314 , Smithers Second Addition to the Town of Renton , 19 according to the plat recorded in Volume 10 of 20 Plats , page 28, records of King County, Washington, situate in King County, Washington. 21 �" d as an "adult motion picture theater" , as defined in City I a 22 Rento Ordinance No . 35� , s amended by City of Renton 23 ^ t7 ext b(4�ry-t wev<< AfJ o � Ordin-nces Nos. 3629 and 3637 , A or for the purpose of � � . 24 I . 110 exhib ting motion picture films which are obscene . I *1 25 The burden of challenging any film or use at the Renton 26 Theat-r is upon the City of Renton. Any further challenge 27 beyon' the films admitted into evidence in this ease , must be 28 WARREN&KELLOGG;P.S. DECLA ATORY JUDGMENT DECREE AND ATTORNEYS AT LAW, -- _-- -----_— .. inn cn ccrnNn cr__RA.SOX 626 1 brought by the City of Renton within ninety (90) days after! 2 the final showing of any film, program, or other presentatio k 3 that the City believes violates this court' s injunction. Any, y;-4 4 such r quest for relief should be returnable to the presiding Jo judges department as an emergency measure . aK me �ri°(ief 044x. / 6�A 6 The Plaintiffs' are allowed their taxable costs 7 and st tutory attorneys fees. 8 There is no just reason for delay and this 9 judgme t should be considered final for the purposes of 10 appeal 11 (///Y 12 DATED: August 22, 1984 . 13A/4: 14 NANCY A HOLMAN , Judge 15 '16 Presented by : 17 awren' e J. men, City Attorney 19 for the City of Renton . 20 Copy eceived, a • m 21 23 J • CK BURNS . ttor ey for Defendants 24 25 26 27 28 WARREN&KELLOGG,P.S. DECLARATORY JUDGMENT DECREE AND ATTORNEYS AT LAW i k No lifw__L_I___a__•Ivv\iZ- L., oede rick,bile, iv" t ir. D� 1' `0` J ------------7a/lfaolb3 - �3 1)64 r Yn 5S ovPS Z. 3. 1�- (vte Ject,s4 S a h, ) $3 - c21i1/7 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 8 13 Satisfactions 3/25/83 - 3/31/83 14 Pandora' s Mirror 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 - 4/28/831 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. . • , iff" a. • I 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 - 7/21/8a 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 19 58 Justine 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 OFFICES OF Jack R. Burns, P.S. 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 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 o`r f r the purpose of exhibiting motion picture films which are 22 obsc ne. 23 The burden • halle • ing any film or use at the Renton 24 Thea re beyond the films • - - •ered to this Court is upon the City 25 of enton. Any appli• ation for fu 'er injunctive relief must 26 LAW OFFICES OF Jack R. Burns, P.S. 14,4 lt•=; et. - T FOR THE - 'limmo f afcg i i5trut (gond ' WESTERN DISTRICT OF WASHINGTON L CIVIL ACTION j DOCKET NO. D C82-59M • PLAYTIME HEATRES, INC. , et al I - I vs. JUDGMENT CITY OF ENTON, et al ! 71 • This action came on fortrig hearing)before the court, United States District Judge (by e) - ' Wa 1 t e r T. Mccov rn presiding. The issues having been duly bt7[gd (heard) and a decision having . - -n duly rendered, it is ordered and adjudged that plaintiffs' pr-yer 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 summiry judgment is GRANTED. j VIM TR.Tr-MN. UNITED STATES DISTRICT COU4t1 WESTERN DISTRLOT.OF.WASI,*INGTCti • FEB 81983 BRUCE RIFKIN, Clerk 6�. ......-?'. — Deputy • - • • • Dated at: Seattle; Washington Date: 18 February 1983 • • Clerk of the Court /_c' LODGED _RECEIVED DEC241984 Al SEATTLE Cl ERK U.S. DISTRICT COURT WY STERN DI;TRr4_, DEPUTY ry JUDGMENT • nitiel tati C!uurt of App a1h FOR THE NINTH CIRCUIT • TD)g-,- ARIng PLAYTIME T EATERS,INC. , a Washingt n corporation,et al . , PEC 28 1984 Pla'ntiffs-Appellants, -vs- WARREN 8;KELLOGG THE CITY 0 RENTON, et al. , By Defendants-Appellees. '83-3805 No. 83-3980 •? THE CITY 0 RENTON, etc. , et al. , DC# CV 82-59M • Pla,'ntiffs-Appellant., CV 83-744C -vs- PLAYTIME T. •ATERS,INC. , a Washington corporation, et al. , Defendants-Appellees. � I APPEAL from the United States District Court for the ____b'eisr.Q.rst District of_ WasLirigton (Seattle) _ THIS CAUSE came on to be heard on the Transcript of the Record from the United States District Court for, the Western _District of Washington (Seattle) • _and was duly submitted. ON CONSIDERATION WHEREOF, It is now here ordered and adjudged by this Court, that the judgment of the said District Court in this Cause be,and hereby is affirmed in part, reversed in part ant remanded. D A TRUE COPY EE 20 wo, B. WINBE;RY Clerk • ou by. 1' , •ep Clerk ' 910 M 4-16-85 The United States LAW WEEK ,53 LW 3739 100 Orig. Webber v.Oklahoma.The motion for Certiorari Granted 84-1356 Kohn Beverage Co. v. Teamster's Lo- leave to file a bill of comlplaint is denied. cal No. 348 84-1340Jackson Wygant v. Bd. of Ed. The 83-1925 Hillsborough Co., FL v. Automated84-1371 Farwest Steel Corp.v. DeSantis Med.Lab.The motion of the Solicitor General to petition for a writ of certiorari is granted. permit Paul J. Karkin, Jr., Esquire, to present 84-1321 Nix,Warden v.Whiteside.The motion 84-1391 [ndep.Sch. Dist. No. 3 v. Hlelms oral argument pro hac vice is granted. of respondent for leave to proceed in forma pau- 84-1392 George v.Liberty Natl.Bank&Trust pens is granted.The petition for a writ of certio- 841405 Ghibaudy v.U.S. 84-310 In re Snyder. The motion of United rari is granted. States Court of Appeals or the Eighth Circuit to 841361 U.S. v. Loud Hawk. The motion of 841407 Scott v.Baldrige,Sec.of Commerce supplement the joint ap ndix is granted. res ndents for leave toproceed in forma Po pau- 84-1424 Ciro v.U.S. 84-320 Natl. Farmers ns. Co. v. Crow Tribe. pens is granted.The petition for a writ of certio • - 84-1434 Mangrum v.Continental Casualty Co. The motion of Sac and ox Tribe of Indians of rani is granted. Oklahoma for leave to file a brief as amicus 84-1456 Erdlen v.U.S. curiae,out-of-time,is denied. 84-1474 Bartholomew v.U.S. 84-518 Johnson v. May &City Council;and Certiorari Denied 84-1489 Phelps v.U.S. 84-710 EEOC-v. Mayo City Council Balt. The motion of Natio al League of Cities for 82-1841 Bd.of Water Supply v.Nakata 84-5844 Primiano v.U.S. leave to file a brief as cus curiae is granted. 84-881 Baker v.USDC ND OK 84-5933 Bowring v.Booker, Warden 84-589 Dowling v. U.S The motion of Record- 84-930 Cherek v.U.S. 84-5979 Barngrover v.California ing Industry Association of America, Inc., for 84-932 CED's Inc.v.EPA 84-5997 McQueen v. Parole and Probation leave to file a brief as arrf icus curiae is granted. Commn. 84-648 Sedima, S.P.R. . v. IMREX Co. The 84-943 Elvrum v.Williams . motion of American Inst tute of Certified Public 84-971 Kapnison v.U.S. 84-6034 Smith v. Missouri Accountants for leave t file a brief as amicus 84-976 Bellevue Fire Fighters v. City of 84-6076 Rabb v.U.S. curiae is granted. The motion of Alliance of Bellevue 84-6090 Kane,v. FL St.Atty.Gen. American Insurers,et al. for leave to file a brief as amicus curiae is grant d.The motion of Secu- 84-1011 Oliphant v.U.S. 84-6134 Alexander,v.Illinois rides Industry Associatio for leave to file a brief 84-1016 Harrington v. U.S. - 84-6150 Smith v. Illinois as amicus curiae is grant d.d. 84-822 Am. Nail. Ba lc v. Haroco, Inc. The 84-1017 Univ.of Pittsburgh v.Krynicky 84-6190 Judd v. U.S. motion of Interinsurance�Exchange of the Auto- 84-1019 Carpenters'Local No. 1478 v.Stevens 84-6231 Doe v. MI Dept.of Soc.Ser. mobile Club of Southern California for leave to 84-1020 White v.U.S. 84-6240 Speedy v.Wyrick, Warden file a brief as amicus Furiae is granted. The motion of John Grado, t al., for leave to file a 84-1053 Ecclesiastical Order v.CIR 84-6241 Lee v.Alderman brief as amicus curiae is�granted. 84-1086 Perkins v. U.S. 84-6242 Mister Midwife v. El Paso Nursing 84-835 NJ'Dept.of Corr.v.Nash;and 84-1135 Commr.of Trans.,NY v. U.S. Home 84-776 Carchman,Mercer Co. Proscc.v. Nash 84-6244 Ward v.Oklahoma The motion of respondent to permit John 84-1151 Estate of Virginia Kremm v. Commr. Burke, Ill,Esquire,to present oral argument pro of Patents 84-6245 Kimball v. Lewellen hac vice is granted. 841157 NKC Hosp., Inc. v. Heckler, Sec. of 84-6252 Phillips v.Alabama 84-861 NLRB v. Intl. Longshoremen's Assn. H&HS 84-6257 Lucien v. Illinois The motion of American Federation of Labor and 84-1167 Pinar v. Dole,Sec.of Trans. 84-6258 Lucien v.McGinnis, Warden Congress of Industrial Organizations for leave to 84-1185 Razatos v. Colorado Sup.Ct. -file a brief as amicus curiae is granted. 84-6262 Bragg v.Cave,Judge , 841231 Strickland,Warden v.King 84-6264 Ash v.Swanson 84-1023 U.S. v. Contreras-Rojas. The motion of the Solicitor General t dispense with printing 84-1238 Roop v.Alaska 84-6265 Baker v.Alabama the joint appendix is Bra ted. 841263 Rodman v. Hensley 84-6266 Finney v. Rothgerber 84-5909 Adams v. Ful mer, Superintendent. 84-1275 Stewart v. Disneyland,Local 235 84-6267 Liberia v.New York The motion of petitioner to reconsider the order 841283 Luna v. House of Sofas denying leave to procee in forma pauperis is 84-6269 Howard v. Landry denied.Justice Powell t k no part in the consid- 84-1284 U.S.v.Squillacote 84-6274 O'Connor v. O'Connor cration or decision of thi motion. 84-1289 Port Terminal RR Assoc.v.Sims 84-6082(A-674) Attwel v.United States Postal 846276poon v. Wyoming Serv.The application to uspend the effect of the 841290 Byrne v. Mass Transit Admn. 84-6277 Vossbrinck v.Vossbrinck order denying certioraripending action on a peti- 84.]296 pA Dental Assoc.v. Med. Ser. Assoc. 84-6278 McCall v.Tove Lion for rehearing addres ed to Justice Marshall of PA y and referred to the Cou is denied. 84.1301 Amis v.Steele,Taz Collector 84-6279 Norman v.Oregon 841305 Epperson v.Estate of Buel Epperson 846280 Zarrilli v. Braunstein Appeals—Jurisdiction Noted or Postponed" 84-1308 Bosley v. Barnes 84-6288 Sockwell v. Blackburn,Warden 84-1360 City of Renton v. Playtime Theatres. 84-1309 Starnes v.Heckler,Sec.of H&HS 84-6292 Chance v. Zimmerman,Supt. The motion of National League of Cities,et al., 84-1314 Intl.Longshoremen v.Hampton Roads 84-6295 Gibbs v.Phelps,See.,LA DOC I for leave to file a brief as 'amicus curiae is Shipping Assn. 84-62% Howard v.Cupp,Supt. I granted. In this case robable jurisdiction is noted. 84-1322 Nill v.Essex Group,Inc. 84-6304 Williams v.New Jersey noted Thornburgh v. m. Coll. of Ob. Gyn. 841325 Ponterio v.Koch 84-6311 Mitchell v.Meese,Atty.Gen.of U.S. Further consideration of he question of jurisdic- 841328 Ulane v.Eastern Air Lines, Inc. 84-6313 Yocum v.U.S. tion is postponed to the h aring of this case on the 84-1330 Gould v.Mutual Life Ins.Co.of NY .84-6314 Calvente v.U.S. merits. 84-248 Pino v. Dist. C 2nd Jud. The motion 84-1336 Kern v.U.S. 84-6319 Gray v.U.S. of Navajo Nation for 1 ve to file a brief as 841338 Ramos v. Ramos 84-6324 Ingraham,v.U.S.Postal,Service amicus curiae is grant . Further consideration of the question of jurisdi lion is postponed to the 84-1339 Raske v. Bd.of Commrs. 84-6328 Fleming v. U.S. I hearing of the case on th merits. 841349 Busto v.Marietta 84-6331 Thomas v.US. 0148-8139/85/80+.50 53.1. _. 7 -3' 40 The United States LAW WEEK 4 16-85 84-6347 Jones v.U.S. The motion of American Medical Association Mandamus Denied 84-6355 Pride v.U.S. for leave to file a brief as amicus curiae is granted. The motion of Ball Memorial Hospital, 84-6297 In re Hellwarth.The petition for a writ 84-6362 Merritt v.U.S. Inc.,et al.for leave to file a brief as amici curiae of mandamus is denied. 84-6363 Tooker v.U.S. in No. 84-1353 is granted.The petitions for writs of certiorari are denied. Rehearings Denied 84-6376 Andrews v.U.S. 84-6380 Martin v.PA Bd.of La Examiners 84-5339 Wingo v. Louisiana 82-1913 Garcia v.San Antonio MTA;and 84-6382 Yates v.U.S. 84-6073 Nelson v.Louisiana 82-1951 Donovan,Sec.of Labor v.San Antonio 84-6224 Waldrop v.Alabama MTA 84-6383 Esquibel V.U.S. 83-1416 NLRB v.Action Automotive,Inc. 84-6250 Milton v.Procunier,Dir.,TDC 84-6385 Wise v.U.S. The petitions for rehearing are denied. 84-6386 Neely v.CIA 84-6251 Nuckols v.Oklahoma 84-355 New York v.Smith 84-6285 Averhart v.Indiana 84-6388 Di Noia v.New York 84-890 Brown v.U.S. 84-6389 Haywood v.Procunier, I ir.,TDC 84-6348 Copeland v. Florida yw 84-8% In re Anderson i • 84-6442 Weeks v.Alabama 84-6392I Lewis v.Procunier,Dir.,TDC 84-897 Tesch v.McCurry 84-6407J Miriti v.Schade The petitions for writs of certiorari are denied. . Justice Brennan and Justice Marshall 84-911 Koker v.Sage 84-6419I Harvey v.Smith dissenting: 84-937 Bell v.New Jersey 84-6436 DeVyver v.Smith,Supt. Adhering to our views that the death penalty is 84-952 Gerzof v.Grievance Comm. 10th Jud. The petitions for writs of certior ri are denied. in all circumstances cruel and unusual punish- ment prohibited by the Eighth and Fourteenth 84-1031 Comsat Corp.v. Franchise Tax Bd. 84-322 Reminick v. Maltz. T.e motion of Amendments, Gregg v. Georgia, 428 U.S. 153, 84-1034 Finch v.Hughes Aircraft Co. Bankers Trust Company for leave to intervene is 227, 231 (1976), we would grant certiorari and y vacate the death sentences in these cases. 84-1057 Hutcherson v.Bd.of Supervisors denied. he petition for a writ off' certiorari is denied. 84-1074 Stroom v.Carter 84-6132 Estes v.U.S.The petition for a writ of 84-1013 Bough v.Ramirez. certiorari is denied.Justice White took no part in 84-1095 Fitzpatrick v. DiMartino, Judge, Su- the consideration or decision of this petition. per Ct. The motion of respondent for 1 ve to proceed 84-1153 Otto v.U.S. in forma pauperis is granted. The petition for a 846286(A-667) Graves v.Hester,Sheriff.The writ of certiorari is denied. application for injunction addressed to Justice 84-5821 Holman v.Illinois Stevens and referred to the Court is denied.The 84-5845 Noland v.North Carolina 84-1180 Petrov v. U.S.The petition for a writ of certiorari is denied. petition for writ of certiorari is denied. 84-5925 Nuey v. Dept.Discip.Comm. Justice Brennan and Justice M rshall would 84-6020 Montgomery v.Natl.MS Society grant die petition for a writ of rtiorari and reverse the judgment of conviction. Habeas Corpus Denied 84-6037 Faison v.Davis,Judge 84-1341 Duquesne Light Co. v. t. Tax Dept. 84-6317 In re Antonelli 84-6044 Day v.DeAnda,Judge ( of WV. The petition for a writ o certiorari is 6368 In re Brown 84-6107 Howell v.Maryland denied. ustice Powell took no part in the consid- 8484-6169 Levine v.U.S. eration or decision of this petition. 84-6429 In re Ross The petitions for rehearing are denied. Justice 84-1353 Kartell v.Blue Shield of A,Inc.;and The petitions for writs of habeas corpus are Powell took no part in the consideration or deci- 84-1354 Rodkey v.Blue Shield of MA,Inc. denied. sion of these petitions. . . (.._ 0148-8139/85/SO+.50 i ti I 1 2 3 : ! 4 5 IN THE SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY ¶F RENTON , a municipal ) NO . 84-2-18575-9 7 corporation, ) ) MOTION FOR SUMMARY JUDGMENT 8 Plaintiff, ) ESTABLISHING AMOUNT OF TAX ) DUE, DISMISSING DEFENDANT 'S 9 vs. ) COUNTER CLAIM FOR ATTORNEY'S ) FEES AND FOR TERMS FOR 10 PLAYTIME THEATRES, INC. , a ) MAINTAINING KNOWINGLY corporation, ) FRIVOLOUS DEFENSE AND 11 ) COUNTER CLAIM. Defendant . ) 12 ) 13 RELIEF REQUESTED 14 The following relief is requested by means of this 15 motio 16 1 . An order establishing the amount of admissions tax 17 and p nalty due from Playtime Theatres , Inc. , to the City of 18 Renton . 19 2. An order dismissing Plaintiff' s Counter Claim for 20 attorney's fees as being barred by res judicata, collateral 21 estoppel or the doctrine of primary jurisdiction. 22 3. For an award of attorney's fees for the �3 maint- nance of a knowingly frivolous defense and Counter 24 claim 25 STATEMENT OF FACTS 26 Playtime Threatres , Inc . , maintains an adult motion �7 picture theater within the City of Renton. Playtime admits iri 28 Answe s to Interrogatories that it has failed to file an WARREN&KELLOGG,P.S. ATTORMOTIO FOR SUMMARY JUDGMENT .SECON ST P.O. 100 SO.SECOND ST.,P. .BOX 626 PAGE RENTON,WASHINGTON 98057 255-8678 f 1 I 2 admis-ion tax return or pay tax from the last quarter from 1983 or for any quarter of 1984. Playtime has also not paid 3 4 tax for the first quarter of 1985. Playtime admits in its Answe s to Interrogatories that it owes the following 5 admis- ions tax: 6 Last Quarter 1983 -- $1 , 184. 45; 7 Firs.t Quarter 1984 -- $1 ,068.72 ; 8 Second Quarter 1984 -- $774. 34; Third Quarter 1984 $727. 19 ; 9 Fourth Quarter 1984 -- $747. 07 ; 10 Playtime Theatres , Inc. has counter claimed against the City f Renton , for attorney's fees under 42 U. S.C. 1983 in 11 12 conne tion with the City's attempts to defend and enforce its 13 ordin nces concerning the location of adult motion pictures 14 theaters . The following is a synopsis of the cases : 15 Feder. 1 Court 16 In Federal District Court for the Western District of 17 Washi gton, before Chief Judge Walter T. McGovern, the City;was g anted summary judgment upholding the constitutionality 18 19 of th- City's Zoning Ordinance and dismissing Playtime's claim for d-mages and attorney' s fees under 42 U.S.C. 1983. The 20 Ninth Circuit reversed and remanded the case to the District 21 22 Court for an opinion consisted with the Nineth Circuit ' s 1 23 opinion. The City of Renton appealed and the Supreme Court of 24 the U ited States has accepted the case for review. State Court 25 26 The King County Superior Court , Judge Nancy Holman ; 27 decla ed the City's Zoning Ordinance constitutional, found 28 that the theater violated the City's Zoning Ordinance ; WARREN&KELLOGG,P.S. ATTORNEYS AT LAW MOTIO FOR SUMMARY JUDGMENT 1QB SO.SECOND ST.,P.O.BOX 626 PAGE 2 RENTON,WASHINGTON 98057 255-8678 A 1 dismissed a counter claim for damages under 42 U. S.C. 1983, 2 issued an injunction against further violation of the City's 3 ordin nce , and stayed the effect of her ruling pending appeal. 4 Playtime and others appealed to the Washington State Court of 5 Appea s , Division I . A stay as to that appeal has been 6 grant d pending action in the Unition State Supreme Court . 7 FACTS 8 The attorney' s fees claimed in this counter claim are 9 those attorney 's fees requested , denied or pending in the 10 Feder 1 and State Court actions . There is no claim that this 11 lawsuit is a source of a civil rights violation leading to any 12 13 attor ey' s fees under 42 U. S. C. 1983. In fact , Plaintiff has state. in Answers to Interrogatories : 14 "Plaintiff does not allege a civil rights violation 15 by means of this lawsuit . " 16 Rather ,. Plaintiff claims the right to civil rights 17 damages under the City' s Zoning Ordinance , citing those 18 ordinances by ordinance number. 19 Plaintiff's complaint for damages for failure to pay 20 admis ion tax is not directly rebutted by Playtime' s answer: 21 Rather, Playtime claims a right of offset for costs incurred 1 22 on appeal in the Ninth Circuit and for other sums which may be �3 award d as attorney's fees . 24 STATEMENT OF ISSUES 1 25 1 . Does Playtime' s Answers to Interrogatories and 26 Amended Answer and Counter Claim raise an issue of material �7 fact hich would prevent entry of judgment in favor of the 28 City or unpaid admission tax? WARREN&KELLOGG,P.S. MOTIO FOR SUMMARY JUDGMENT ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 PAGE RENTON,WASHINGTON 98057 7CC_W7A 1 2. Is Playtime's Defense and Counter Claim barred by 2 the doctrines of res judicata, collateral estoppel, comity ,' 3 4 and primary jurisdiction? 5 3. Are ' Playtime' s Claim of Setoff and Counter Claim frivo ous such ' as to entitle the City to an award of 6 attor ey' s fees under RCW 4. 84. 185? 7 EVIDENCE RELIED UPON 8 1 . Does Playtime 's Answers to Interrogatories 9 and Amended Answer and Counter Claim raise an issue of material fact which would prevent 10 entry of judgment in favor of the City for 11 unpaid admission tax? The City relies upon Playtime' s Answers to First Set 12 13 Interrogatories prepondered to Defendant and attachments there o, (Exhibit "A" ) . 14 15 2. Is Playtime 's Defense and Counter Claim bared by the doctrines of res judicata, collateral 16 estoppel, comity, and primary jurisdiction? The City relies upon the King County Superior Court 17 18 Judgment (Exhibit "B" ) , the District Court Judgment (Exhibit 19 "C" ) , the Ninth Circuit Judgment (Exhibit "D" ) , and the 20 Supreue Court Order Noting Probable Jurisdiction (Exhibit "E" ) . 21 22 AUTHORITY The City relies upon CR 56(c) for entry of judgment as 23 24 to the amount of tax due in that there is no geniune issue of any material fact and the City is entitled to judgment as a 25 26 matte of law. �7 On the issue of res judicata and collateral estoppel; 28 the City relies upon Bordeaux v. Ingersol Rand Co. , 71 Wn. 2d WARREN&KELLOGG,P.S. ATTORNEYS AT LAW MOTIO FOR SUMMARY JUDGMENT no SO.SECOND ST.,P.O.BOX 626 PAGE RENTON,WASHINGTON 98057 255-8678 1 2 392, 29 P. 2d 207 (1966) . The City also claims that under CR 12(b) 16) that Playtime has failed to state a claim upon which 3 relief can be granted. 4 DATED: April 0d5 , 1985 . 5 6 7 awrence J. arren 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 • 25 26 27 28 WARREN&KELLOGG,P.S. MOTION FOR SUMMARY JUDGMENT ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 PAGE RENTON,WASHINGTON 98057 255-8678 - - - - v-Vv I -- , CHAPTER 3 ADMISSION TAX SECTION: f1 5-301 Admission Tax 5-301 ADMISSION TAX: In addition to the license fees provided elsewhere . in this Title, there is hereby levied an admission tax as follows. The term "admiss on charge" or"general admission charge"shall mean the regular and customary charge f r the right or privilege to attend or be admitted to the business location within the Cit of Renton. (A) Admission Tax on Horse Racing: :g 1. Percentage Tax: There is hereby imposed and levied upon every person who pays an admission charge to a horse racing event within the City limits of the City of Renton, a tax equal to five percent (5%) on each such admission charge, xcept Turf Club memberships, upon which the tax rate shall be two percent 2%). . Filing of Statement and Payment of the Tax: Every business enterprise onducting or engaging in the horse racing business, as above specified, and i posing a charge for admission within the City limits of the City, shall on or efore the first.day of January of each year file with the Finance Director a tatement signed and sworn to by the business enterprise indicating the total mount of paid admission charges collected by such business enterprise during he last preceding twelve (12) month period, as well as all taxable admissions ade free of charge. A remittance for the amount of any unpaid admission tax levied by this Chapter shall accompany the statement. During the racing season, monthly reports of the admissions, together with the tax levied shall n e filed. (B) ° dmission Tax on Theaters and Other Events: . Admission Tax on Theaters: There is hereby imposed and levied upon every •erson who pays an admission charge to a commercial theater regularly -xhibiting motion picture films within the City of Renton, a tax of three percent (c%) of each admission charge. I, the underigned,/Y/atKi'e-F./12o7`o,e i Cl�r:; e'i uh-1 City of Renton, Washinnto:,, certify that this is a ►ruc and correct copy of ai:ko;, .:.3a.i.�: 16 -e Subscribed and Sealed this T19.Wday of���:fit', 19�.1 384 City Clerk J 5-301 5-301 B) 2. Admission Tax on Other Events: For the operation and conduct of all other -vents (including, but not limited to, professional sporting events and musical -vents)there is hereby imposed and levied upon every person who pays such n admission charge a tax equal to five percent (5%) on each such admission harge. {. Filing of Statement and Payment of the Tax: Business enterprises subject o collection and payment of admission taxes, except for horse racing business nterprises, shall quarterly, on or before April 30 (1st quarter), July 31 (2nd uarter), October 31 (3rd quarter) and January 31 (4th quarter) of each year, ile with the Finance Director a statement signed and sworn to by said business nterprise indicating the total amount of paid admission charges collected by uch business enterprise during each quarter of the year. A remittance for the mount of the admission tax levied by this Section shall accompany each ft tatement. . Exemption: The tax imposed by this Section is levied pursuant to RCW 5.12.280 and shall not apply to school activities as specified therein. • (C) ollection of Tax: The admission tax imposed under this Chapter shall be ollected at the time the admission charge is paid. Every person receiving an dmission charge upon which an admission tax is levied under this Chapter hall collect the amount of the tax imposed upon the person paying an admission harge. Such admission tax shall be deemed to be held in trust by the person equired to collect the same until remitted to the Finance Director as hereinafter provided. (D) Inspection of Records: The Finance Director, either personally or through his uthorized agents, shall have the right to inspect and examine the records of •very business enterprise subject to the taxes imposed by this Chapter and .II such records shall be retained for and be available for such inspection for , • period of five (5) years. (E) iens for Unpaid Taxes:Any and all taxes and payments due and unpaid under 'his Chapter shall be a debt to the City of Renton, and shall be a personal bligation of the taxpayer and shall be a lien upon all the properties of the taxpayer. Said lien shall have priority over all other liens and obligations except hose to the State of Washington and the United States government. Said lien hall be enforced by the Finance Director as any other lien would be enforced .gainst the defaulting debtor. (F) penalties for Nonpayment: A taxpayer who fails to remit the amount of the taxes when due shall, in addition to all other penalties provided by law, pay penalty of five percent (5%) of the amount of tax due for the first month f delinquency and an additional penalty of five percent (5%)for each succeeding onth of delinquency, but not exceeding a total penalty of twenty five percent ( 5%) of the amount of such taxes due in any event. (G) ules and Regulations: The Finance Director shall have power to adopt rules nd regulations not inconsistent with the terms of this Chapter for the purpose ` 3 384 -7 5-301 5-301 G) f carrying out and enforcing the payment of the tax herein levied. A copy of such rules and regulations shall be on file and available for public examination in the office of the Finance Director. Failure or refusal to comply with any rules nd regulations promulgated under this section shall be deemed a violation of his Chapter. (H) verpayment of License Tax:Whenever the taxpayer has made an overpayment nd within two (2) years after date of such overpayment, upon submission f proof thereof, makes application for refund or credit of the overpayment such efund or credit,shall be allowed. Any such refund made shall be drawn from he General Fund when so approved by the Finance Director. (I) pplication and,Returns -Public Record: Returns made to the Finance Director pursuant to this Chapter shall be public information and subject to inspection y all persons except to the extent those records may be deemed to be private r would result in unfair competitive disadvantage to such a taxpayer if disclosed s more particularly defined in Title 42.17 RCW. (J) Violation and Penalties: Every business enterprise violating or failing to comply ith any provision of this Chapter or any lawful rule or regulation adopted by e Finance Director pursuant thereto, upon conviction thereof, shall be punished y a fine not exceeding five hundred dollars ($500.00) or by imprisonment in he City jail for a term not to exceed ninety (90) days, or by both such fine nd imprisonment. (Ord. 3773, 12-19-83, eff. 1-1-84) • 384 •* 1 e, cTA?r 2 :411111P:; SUPERIOR COURT OF WASHINGTON ~== COUNTY OF KING 3 11hM+- 4 CITY OF RENT N, a municipal corporation NO • 5 Plaintiff 84-2-1fi575-9 vs 6 NOTE FOR CIVIL MOTION CALENDAR PLAYTIME THE TRES, INC. , a (Clerk's Action Required) 7 corporation Defendant 8 TO: THE CLERK 0 THE COURT; and to all parties named below: 9 PLEASE TAKE NOTICE that an issue of law in this case will be heard on the ;date• 0 below and the Cl rk is directed to note this issue on the Civil Motion Calendar. 1 DATE OF ARING: Friday / May 17, 1985 (Day of Week) (Calendar Date ) 2 TIME OF HEARING: 9 :30 A.M. 3 PLACE OF HEARING: 4 NATURE 0 MOTION: Summary, ,TudgmPnt 6 DATED: Typed Name: Lawrence J. WArren 7 OF: Warren & Kellogg. P. S. 8 Attorney For: Plaintiff L9 OTHER PARTIES RE'UIRING NOTICE: Phone: 255-8678 Fill In & Check Box If Backside Is Used [ ] ;0 Name: Jack R. Burns Name: :1 Address: 10940 N.E. 33rd Place Address: :2 Suite 107 . B�175-vue, WA ARnn4 !3 Phone: Phone: 828_3G36 !4 Attorney For: Defendant Attorney For: '•5 16 NOTE FOR CIVIL MOTION ALEND. ' (Affix Firm Name Cutout) ;4 . 1 - 2 3 4 5 IN THE SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY of RENTON , a municipal ) 7 corporation, ) NO. 84-2-18575-9 ) 8 Plaintiff, ) ORDER ON SUMMARY JUDGMENT 9 s . ) )10 PLAYT ME THEATRES, ,INC. , a ) I 11 corpo ation, ) ) Defendant . ) 12 ) 13 This matter having come on regularly before the 14 under igned judge in the above-entitled court upon the City of 15 1 + for SummaryJudgment , the Cityof Renton being Rento s Motion g , 16s byLawrence J. Warren, of Warren & Kellogg, P. S. represented g � , 17 its C ty Attorney and Defendant Playtime Theatres , Inc. , being 18 repre ented by Jack Burns . 19 EVIDENCE AND DOCUMENTS CONSIDERED 20 1 . Amended Complaint for Tax Monies Due and Owing and 21 to Re uire Compliance with City Garbage Ordinance; 22 2. Amended Answer and Counter Claim; 23 3. First set of Interrogatories propounded to 24 Defendant and Answers thereto; 25 4. Judgment in King County Cause No. 82-2-02344-2 ; 26 5. Judgment of United States District Court for the ?7 Weste n District of Washington Judgment in Cause No. C82-59M; 28 WARREN&KELLOGG,P.S. ATTORNEYS AT LAW ORDER ON SUMMARY JUDGMENT 100 SO.SECOND ST.,P.O.BOX 626 PAGE 1 RENTON,WASHINGTON 98057 255-8678 4 1 6 . Judgment in U. S. Circuit Court of Appeals for the 2 Ninth Circuit Judgment in Cause No . 83-3805 ; 3 7. Order noting probable jurisdiction for the United 4 State- Supreme Court in Cause No . . 84-1360 ; 5 8. Brief of City of Renton in Support of Motion for; 6 Summa y Judgment; 7 8 9. Brief of Playtime Threatres , Inc. , in Opposition of Motion for Summary Judgment . 9 Facts and Issues 10 11 There are no geniune issue as to any material fact and the C' ty of Renton is entitled to a judgment as a matter of 12 law. 13 ORDER 14 1 . The City of Renton shall have judgment against 15 Playtime Threatres , Inc. , in the amount of $4 ,501 .77 . 16 2. Judgment for penalty as authorized by Renton City 17 Code Section 5-301 (F) in the amount of $1 , 125 .44 . 18 3. Defendants' claim of set off and/or counter claim 19 is dismissed with prejudice . 20 4. Playtime Threatres , Inc. , shall file with the City 21 of Renton an admission tax return within fifteen (15) days of 22 23 entry of this judgment and shall pay that amount with the admission tax return , or , this court , upon five (5 ) days 24 25 notice , shall enter a further judgment for said delinquent admis- ions tax for the first quarter of 1985 . 26 27 28 WARREN&KELLOGG,P.S. ORDER ON SUMMARY JUDGMENT ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.ROI(626 PAGE RENTON,WASHINGTON 98057 255-8678; II y 1 2 5. The City has the right to claim attorney' s fees for m_ intance of a knowingly frivolous defense and counter 3 4 claim under RCW 4. 84. 185. 5 SUMMARY OF JUDGMENT 6 Judgm-nt Creditors : City of Renton 7 Judgm-nt Debtor: Playtime Threatres , Inc. 8 Principal Amount of Judgment: $4, 501 .77 9 Penal y to Date of Judgment: $1 , 125 .44 10 11 Costs $ 86. 00 Principal Judgment amount shall bear interest at the 12 13 rate of 13. 06%. 14 Attorney' s fees and costs and penalty shall bear inter st at the rate of 12% . 15 16 Attorney for Judgment Creditors , Lawrence J. Warren of Warrer. & Kellogg P.S. 17 18 DATED: April , 1985. 19 20 JUDGE/COURT COMMISSIONER 21 Preserted by : 22 23 LAWRENCE J. WARREN, Attorney for Plaintiff 24 Approved as to Form, Copy 25 Recei'ed, 26 27 JACK EURNS 28 Attor ey for Defendant WARREN&KELLOGG,P.S. ATTORNEYS AT LAW ORDER ON SUMMARY JUDGMENT no SO.SECOND ST.,P.O.BOX 626 PAGE RENTON,WASHINGTON 98057 255-8678