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HomeMy WebLinkAboutFile #7 - Correspondence/Legal Documents (1983) OF R / ;� . z THE CITY OF ENTON POLICY DEVELOPMENT DEPARTMNT • 235-2552 0 IMMO MUNICIPAL BUILDING 200 MILL AVE. O. RENTON,WASH.98055 9,0 �o• .. I 0•447.. SE PI BARBARA Y. SHINPOCH M E M O R A D U M MAYOR I October 26, 1983 - TO: Barbara Y. Shinpoch, Mayor i FROM: David R. Clemens Policy Development Director SUBJECT: Update on the Forbes' Litigation Since it has been several months since my last report on the Policy Development Department's involvement in the Forbes' litigation, the following is a brief summary of the intensive work accomplished since the first of September. As you are already aware, Steve Munson and I, along with Mike Parness and Don Persson, have spent extensive hours watching the various films exhibited by Mr. Forbes at the Renton Theater. In addition, Gene Williams and I have worked extensively on updating various exhibits which were originally submitted to the Federal District Court in our previous action. The result of all this work is approximately 220 hours have been expended by this department in the last seven weeks. For myself, over 140 hours have been spent on this subject with in excess of 55 of those hours outside of the normal working hours. As a result, the three-day Labor Day holiday weekend was exhausted on this subject along with Sunday, October 9th, and both days of last weekend encompassing some 19 1/2 hours of work. As we have previously discussed, I intend to use "comp." time for the six weekend days utilized on the Forbes' case. The first three of those will be utilized to take the Thanksgiving week and hold the remaining three days to be included with our proposed European vacation in 1984. Since the City Council's budget wrap-up is proposed for Tuesday night, November 22nd, one of three days of the Thanksgiving work week, I will be in town and available to attend that session and fully intend to do so. If you have any questions with regard to this subject, please feel free to contact me at your convenience. DRC:0366G:wr • • , i OF R� O THE CITY OF RENTON c) cy z. POLICY DEVELOPMENT DEPARTMENT • 235-2552 '.1 . ' o O MUNICIPAL BUILDING 200 MILL AVE. SO. RENTON,WASH. 98055 9 _ ii H 9-97-F0 SEPS-��� BARBARA Y. SHINPOCH MEMORANDUM MAYOR l' 6/y .-•//i17/ r/(- ; .N1Z C''`C --ln,.,.J • i is/7/1 j ,i TL6 7 i4 i s X-rated-theater:,law overturned PORTLAND.(AP)-._The state: .hospital,-day-care center,school, Land Use,,Board of r Appeals..-has:'.nursing: home,:::public park: :or overturned. Multnomah; County's '' playground. • ::.;- - ordinance regulating the location , John.'T.'Bagg. of Salem, the of adult businesses, including X- board's hearings.officer, ruled Fri- rated theaters. '. day: in..a 24-page report that the The ordinance prohibited adult _ordinance.did not contain enough . businesses:.within 1,0001 feet'of a facts to. justify the.1,000-foot dis- residential district,church,library, ,tans. ... , .. . i ‘-fr'ii/ Z i//C/ CJe .�l%C"/ pA7l7 , ii/ de-4 i/i/>�iZ/71: ,e(/6-Cl-- I . W/c/ _9/Me-lG !�/ 4T,ei// ll/ �`7e/C''%/'c 7Y-e"!ji/cl%s' ,di-1/ 4 '• - J. , : :47 . It wasa tough.job; but sornebody:• hadlo, do it You would • - , have!1:' thought A'•: - ; • that David Clem -4 — ens, the,: city of Renton's'directOr -Z•!R'. of polidy develop- ment, 4was talk- , ing about just an? •,;;,;.,rr • other bureau!. c rat i c report: AOF:i:fY : ft: „ "Well, basically %W.,,I;f:fr'f: : ' what we did," , explained, was 1 ••.• information." That's: one Eallt LACMS - Times staff columnist way of :describ- ing how Clemens . „ . and a few other city-hall employees recently spent a whole bunch of their working hours. , Another way might be, "Man, am I tired! What a week of watching movies! First we saw,'Body Talk,' then 'Luscious,' then 'Little'French Maid,' then 'Hot Dreams,' then. 'Love in Strange .Places,' then•• • 'Naughty Girls Need Love Too'! "Tomorrow they're gonna have us sit,through a: double bill, 'Night Hunger—100 Years of Uncontrolla- ble Lust' and a rerun of 'Deep Throat'!.Andi got a master's degree in political science for this?" Life sure IS full of little ironies.' ' ' , To Stopa porno theater from Operating,the city of Renton now is the owner of 65 full-length dirty movies it will use as evidence in its Superior Court battle. "We now have one of the _world's largest%captive • municipal collections of pornographic movies" said Larry Warren,city attorney. Actually;,.the movies are on videocassettes: At an : average cost of$70 a cassette, Renton has sheik out $4,550 for them. Furthermore, the city is doing,what Larry Warren,called "a computer analysis": of the films. , • , What that'- means is that city employee sae through and'tabulated the content of the films. With an estimated running time of 75 minutes a movie:\the employees watched 811/4 hours of XXX action. . The reason the city bought those'particular'45 movies is because they were shown this year at ttio • Renton Theater, whose owner is charged witt violating a dirty-movie ordinance. . • \ • "The judge told us we needed some sort of method of getting the information across to the jury:"without:. ' showing 65 films," said Larry Warren. "You have to• capsulize the information somehow." ' . „. That's hbw David Clemens and Other city \ employees ended ,up watching the porno flicks, I tabulating every-thing from,how long the opening . credits ran, to the amount of,'"straight dialog" in, comparison tO "activities" banned by city law. , • -Those activities 'are listed in •some detail .in: • 1'4' "" " One of ironies of this case it that city employees now have been exi, i;4..ed to more ..-i• 4tittography than the average American would be in a Iffetim . • maybe some that;:you don't.i ' '' The ordinance also is quite'sp,' , as to what "anatomical areas" can't be shoe_;__ ,'tn a manner which appeals.to:a.prurient interest." For example, ' show a "female4 breast below.,a:point .immediately . - above the;top:of°the areola,".and.you're,in,trouble. ,j. And a certain ssoiiething better not light tip the screen in "a discernible turgid state." .:. . On Jan. 9, �vhen the trial is-scheduled towbegin,the�, city,attorney plans'to:have,ready a,computer print- out that's the,result Of.all-this work And what wa the:effect•on the city employees who watched all those' dirty:;.rnoviesOise-.of the ironies of this ckse is that they now have been • exposed to more 'pornography than 'the 'average . American would n a lifetime.• Included among the three or four employees who did the tabulating was a woman. . <' . What was their•reaction to hour_ after hour of, movies such.as',"Little french Maid,".described in its publicity as "sleazy-. . .'gross sex . . :warped fantasy love . . . filthy sex'. . . It,is the dirtiest film ever made . . ."? f' . . ' - David Clen1eri'r5, their boss,wasn't very eager to discuss the experience. 1, , "Not only because we're in litigation, but because it's a sore subject:,This`has taken up a lot of time and effort," he said. '` ; And a lot of money. Barbara Shinpoch, mayor of Renton, didn't 'have•an estimate on the wages paid ' employees to watch dirty movies. But she said that so . far, the city of some ,31,000 has spent $150,000 to $200,000 on the case. , • "There's something crazy going on out there. , That's in excess of $5 for every.citizen," said,Roger . Forbes, the POrno King of Seattle,. who -runs the Renton Theater along with-eight other adult.movie houses. "And tley haven't yet gone to trial."' Forbes said he 'has spent more than' $200,000 himself in the legal battle. Just as the Renton officials believe in their!cause, Forbes said he's fighting for a principle. He saidi the court case might.,"cost me . - every dime I've,got:" . Meanwhile, tits videocassettes are stacked•in the city attorney's office, evidence that will surely • wind its way through the inevitable appeals. Warren, the city attorney, has been quoted as saying the fight 'could last 10 years.,, . . ': Warren said' he'didn't do any tabulating of the dirty movies. He had sympathy for thee employees who did the work.' ' . "I.think mostly-these people were drafted. At first there were some jokes about volunteering," Warren said. "But when it came down to the actuality, they • didn't think it was very much,fun. I think the interest . • ebbs very rapidly." ' . I Even Roger Forbes agreed with the city attorney on this issue. ; . ' "I got saturated with that material years ago," he • said. "These days,;I might see five or six of them a year. You know,;after a,certain amount of curiosity, :: I it quickly ends up being boring.." . Said the mayor of Renton: "I think maybe we owe • 1 the people. who ,watched all that stuff some combat pay." . Or maybe just a few afternoons off. There's got to be a Walt Disney,matinee showing somewhere. • I • • • . Page A2• Tuesday,October 11;1983 Record Chronicle: "-- - • �• City, •�= �- or es e � _ under _att e wa in .Superior. :. curt . f ' Warren argued Monday.that the ' They also say the city must pro- to-take pre-trial depositions from nando Valley- Girls and Society •` _, , '- By-ED PENHALE - • '. constitutionality of the anti-pornog- . vide evidence that some harm would -,,"e ert witnesses expected xpected to be Affairs. CountyBureau - raphy law:should not be in question, come to the community in the abs- . called to testify by Forbes'lawyers. Burns,Forbes'other lawyer,said - The city of Renton's legal battle to contrary to the opinion of Forbes' ence of the anti-pornography law. Among those witnesses will be the Renon ordinance is vague and - .. stop X-rated-film-showman Roger lawyers, because-a'federal'court: • Warren told Holman the Renton Pepper Schwartz,:a_University of' 'that the sentence structure of the law Forbes from screening pornograph-. , judge •already.'has'ruled:that the ordinance was patterned-after simi 'Washington sociology"professor also'will come under attack in the • •,-;',s : '` ' • is movies at the downtown Renton:: zoning law.is constitutional. • , lar laws elsewhere in the country who's gained celebrity status as co-: -legal battle.Theater moved slowly Monday to:.: Judge Nancy Ann Holman took the, that have been upheld by the courts: author of a new book entitled Arne* One of the expert witnesses to be '`' ward a trial in King County Superior "; arguments on,:.constitutionality, and argued that obscenity should not can.Co les. - Court as lawyers for. both'.sides''..-,under•;advisement and•it was•not . be at issue. � called by an,For Burns'attorneys will be a - � ., :' � Smith, one of Forbes' two attor• grammarian, said. � � • skirmished in pre-trial legal argu-' 'clear',when she would"rule-on War-:' "Our ordinance is not an obscenity ney s,said the expert witnesses gen- Prurient interest meats. ren's motion seekinga pre-trial judg law," the Renton city attorney told erally will testify that X-rated - The advisory jury to be empaneled' - 'City ordinance - : • • merit that the law is constitutional, • the judge."It's a zoning law." - movies shown at the Renton Theater for the case is expected to be asked ' ,,' Renton City Attorney Larry War- Continues today•• . _•• - The ordinance prohibits continu- .are"helpful"to many people in that whether it believes films shown at 'F 4 , ren is trying to focus.the case on a Pre-trial hearings will continue. ous showing of films that appeal to a they provide"fantasy enrichment," .the Renton Theater appeal, • by coin- . t E narrow set -'issues related<to -' �aoday,•,Holman'will;be.out of.town ;:""'prurient" = meaning .lustful'= are a means of"self-education and triunity standards, fo a prurient.in-' " � v ,W � Forbes' attack on Renton's anti-- 'next week,so selection of an advis- ' interest at any location within 1,000 can be therapeutic. ' terest. pornography ordinance,"while 'ory jury that will consider the case feet of schools residences and- It's expected that the jury in the The jurydecision would �' fw,,,, °"�✓'�Forbes' lawyers, --binding judge, not be' ,; , -'• 'w::.-, -.y.y ". Jack Burns and has been scheduled for Oct.Oci 24.. 'churches, but is not intended as an case will view a 10-film sample of the on the however,and F :, : �;r;�Robert Smith,are continuing to clial- ' Forbes'lawyers contend that•obs- outright ban on the showing of blue" types of movies shown at the Renton she would make the final decisions ,,-, ' ., • 1-;' b' ' •lenge the law on all fronts. , ' •cenity-is an issue in the case and are movies in Renton. ` :'_ The city is.seeking an injunction'' . preparing to attempt to demonstrate 'E ert'witnesses eater. titles include Deepon whether the theater is being ;cam {+ 'Theater. The eth that would prohibit'Forbes fromThroat, The Devil in Miss Jones, Up operated in violation of the Renton that .films shown at. the .Renton Renton's lawyers will be travelin Coining,g acid Comin , Taboo II,Debbie Does anti-pornography law,and on wheth= � -.� ��=` ''` _ continually exhibiting adult movies Theater don't qualify=.as>.obscene .-: to Los Angeles, San Francisco and;-.`;Dallas,',Pandora's Mirror, Little er:an injunction,should be issued •Larry Warren• at the Renton Theater. :•: ;'materials under legal standards -;::--Minneapolis over the zlext two weeks French Maid, Body Talk, San Fer- against Forbes. ;!_;v s' orator' • _ . . �� . _ . . . . Pétrovitsky m .• 'S Schools__-_ • ..';. (Coritiitped from page Al) area east of Renton,isn't optimistic that seven feet lower,than they.now are,as• f ' jects which have been approved,but for PNB's work can be expedited. "They some hills are removed,.Grant said. , ':,._. ,• • ' ' `" -' ' which no buildin rmits have been Grandview s g (PNB officials)still maintain they need Deeper'excavation' principal .: r�ci pal .: numb r�b .when .she'. - issued.Several large projects have con- 12 to 14 months to do their work on the The phone cons•an claims-that-the • ditioas attached hinging construction on phone lines prior to our beginning any ' ;,� PetrovitskyRoad wideningproposed roadway Calls ti for_a deeper heard 'new school won . be built' soon - —but allow- construction of the•road," Grant said excavation than they had anticipated,'trig developers to proceed within the next Monday. He had met with phone com- _Grant added, - i- - :.• . • year.or so if the road isn't improved. pany officials last week. " BY Jn4I KERSIi1YER :,.'ramps are so steep that wheelchair-confined "He did that(proposal)once before,in "There was nothing from the meeting "I have got a"little problem with our ,. Staff Rep4yter.;'.; ,.., . " students can't struggle up them. They can't early 1982, but kind of got shot down,' to indicate how to avoid the year delay,or own engineers in that at the time the � t.' - , : even go down without assistance. said Jack.Sherwood;president of Fair- may a 1� year delay,"he added. engineering was beta done the (road)en eerie g y ;The bad news is slowly.sinking in at Grand-' _., Students carried wrw.ei r•..Pp.,a unmenieners Aacneiatinn - ph.e.,,,,,,i,,..._,,a,-rn i,a.,P , ,,.,:., were aware of the location of the_nhone 1 2 3 4 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 5 CITY OF RENTON, a municipal )corporation, et al. , 6 ) Plaintiffs, '; ) NO. 82-2-02344-2 7 ) 8 vs . ) PLAINTIFFS' BRIEF RE: PLAYTIME THEATRES, INC. , a ) DEFINITION OF "APPEAL TO 9 Washington corporation, et ) PRURIENT INTEREST" 10 al. , ) Defendants . ) 11 12 I. ISSUES PRESENTED 13 A. What is the legal definition in the State of Washingto 14 of "appeal to a prurient interest"? 15 B. What is the specific element of the zoning ordinance 16 definition of "used" which is tested by "appeal to a prurient 17 interest"? 18 II. ARGUMENT 19 A. The legal definition of "appeal to a prurient interest" in the State of Washington is taken from 20 the leading case of State of Washington v. J-R Distributors . 21 The appropriate definition of "appeal to a prurient interE 22 23 for the purposes of this action is set forth in State of Washir 24 v. J-R Distributors , Inc. , 82 Wn. 2d 584, 512 P. 2d 1049 (1973) , 25 cert den. , 418 U. S . 949, 41 L.Ed. 2d 1166, 94 S. Ct. 3217 (1974) ; 26 Does the material " . . . produce an itching or a restless crav 27 for the lewd, licentious , and lascivious, in sexual matters ." 28 at 648-9 . PLAINTIFFS' BRIEF RE: DEFINITION OF WARREN & KELLOGG, "APPEAL TO PRURIENT INTEREST" - 1 ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. BC RENTON, WASHINGTON 98f 255-8678 1 This definition is based upon Websters Third New International 2 Dictionary, page 1829 (1971) which defines the term "prurient" 3 as follows : 4 "la: marked by restless craving; itching with curiousity. b: having or easily susceptible 5 to lascivious thoughts or desires . c: tending to excite laxciviousness . . . ." 6 This plain and easily understood definition is constitutionally 7 8 grounded, and should be adopted by the Court herein for the 9 purpose of construction of the zoning ordinance under question and the measurement of the "pruriency" of the land use actually 10 11 operated by the Defendants at the Renton Theater. 12 B. In order for the zoning ordinance to be violated 13 the trier of fact must find that the exhibition of "specified sexual activities" and "specified anatomical 14 areas" has been done in a manner which "appeals to a prurient interest" . 15 The definition of an "adult motion picture theater" which 16 17 may not be located within 1,000 feet of certain family-orientec 18 uses and zones within the City of Renton, is as follows : "An enclosed building used for presenting motion 19 picture films , video cassettes , cable television, 20 or any other such visual media, distinguished or characterized by an emphasis on matter depicting, describing or relating to ' specified sexual act- 21 ivities' or 'specified anatomical areas' as here- after22 defined, for observation by patrons therein." (Emphasis added) . 23 See Ordinance No. 3526, § I. 24 When the City was unsuccessful in its effort to persuade 25 the federal court to authoritatively construe the ordinance so 26 as to preclude the regulation of an "innocent" exhibition, the 27 City amended Ordinance No. 3526 to specifically add a mens rea 28 element to the "use" which was sought to be regulated. The Ci WARREN & KELLOGG, PLAINTIFFS' BRIEF RE: DEFINITION OF ATTORNEYS AT LAW "APPEAL TO PRURIENT INTEREST" - 2 +00 SO. SECOND ST.. P. O. BC RENTON, WASHINGTON 881 255-8678 1 could have made an "innocent" exhibition an affirmative defense 2 to a prosecution for abatement of a public nuisance per se under 3 the ordinance. However, the City chose to assume the burden of 4 establishing the "pruriency" of the "use" as a part of its case 5 in chief in order to state and prove its cause of action. 6 The amendment added the following definition of "used" as 7 included in the definition of "adult motion picture theater" set 8 forth above: 9 "The word 'used' in the definition of "Adult motion picture theater" herein, describes a 10 continuing course of conduct of exhibiting 11 ' specifi(ed) sexual activities' and ,' sp.ecifi(ed) anatomical areas ' in a manner which appeals to a prurient interest." (Emphasis added) . 12 13 See Ordinance Nos . 3629. and 3637, @§ I. It is clear that the 14 element of the definition of the "use"which must appeal to 15 a prurient interest is the exhibition of "specified sexual 16 activities" and "specified anatomical areas" . It is only 17 incidental in this case that the particular visual media which 18 the Defendants have utilized in their operation is motion picture 19 film. The provisions of the ordinance would have been violated 20 (and the land use would be a nuisance per se) if the visual 21 media for exhibition of sexually explicit material had been some 22 other form of presentation. 23 For this reason, the Court must clearly focus on the land 24 use operated by the Defendant at the Renton Theater, including 25 all of its operational characteristics, in determing whether the 26 exhibition of sexually explicit materials at the Renton Theater 27 has in fact been carried on in a fashion which appeals to a 28 prurient interest. . PLAINTIFFS' BRIEF RE: DEFINITION OF WARREN & KELLOGG. P.S. "APPEAL TO PRURIENT INTEREST" - 3 ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. BOX 626 RENTON, WASHINGTON 98057 255,8678 1 III. CONCLUSION 2 The legal definition of "appeal to a prurient interest" in 3 the State of Washington is. an " . . . itching or a restless cravi: 4 for the lewd, licentious, and lascivious , in sexual matters. " 5 J-R Distributors, . Inc. , supra, at 648-9. 6 The zoning ordinance is violated and the offending land us 7 becomes a nuisance per se when the operations of the land use 8 in exhibiting "specified sexual activities" and "specified 9 anatomical areas" is done in a manner which "appeals to a 10 prurient interest" . 11 Dated: October 12, 1983. 12 Respectfully submitted, 13 14 15 Lawrence J. Warren Attorney for Plaintiffs 16 17 18 19 20 I ` 21 22 23 24 25 26 27 28 PLAINTIFFS' BRIEF RE: DEFINITION OF WARREN & KELLOGG, "APPEAL TO PRURIENT INTEREST" - 4 ATTORNEYS AT LAW 100 60. SECOND ST., P. O. BC RENTON, WASHINGTON 98( 255-8678 _- intormea or the verdicts,Lockheed's corporate three- � s •�Yvua c. „�,.��a wu,as area ,u� vzeuius.. the ruesaay case,the victim's husband released her at approximately the 16600 - of publicity in Los Angeles,Grover Nobles,said only: resident didn't resist arrest. ' .Charges soon was to have returned home soon from block of Jones Road Southeast,according ' av no comment". In addition to the Tuesday attack,the ' • Charges are.expected to be filed within working a late-night shift. . -- -_-- Tman is a suspect in at least seven other ' the next couple of days. The East Hill rapist either locked openIli . to police. The woman went to a,nearby rapes that coon house for.help, and King County police Soviet official: Radar failed•• '. :' county police-believe-were- —The-East Hill rapist attacked three-- doors,or entered through unlock ;were called about 1:30 a.m. g - committed by the-so-called East Hill women in early 1982, then disappeared ed garage doors.Sometimes he cut tele-..-,. MOSCOW-An official source said Tuesday that two•••• rapist•' ,.-, '.` for 11 months.The rapes started again in • phone lines,and he wore a nylon stocking ` Flier East Hill victims described the Soviet radar failures and.confusion by defense cowman-. •'' • • ''One man,eight rapes ':- February of this year. . • - over.his head. ,- : ;. ,:;s •. rapist as a white male,25 to 35 years old,5 > ders allowed a South Korean jetliner to fly through Soviet. ' Although there were some differences The last attack before`this week was :The Tuesday rapist removed • his nylon' feet 8 inches to 6 feet,weighing 160 to 200 airspace between the Tuesdayattack and other Aug. 1 near Kentridge High School, mask during part of the one-hourabduc- .pounds, medium build with brown hair Pa : g g g $ :� 'shot down.Details,A8. • -. ' rapes• east of the.Kent-Renton areas, between Kent and Renton. Five rapes tion. Nelson said the• victim.;,,probably and a:mustache.Police had said he might • county police Detective Spence Nelson were in the general area of 132nd Avenue wouldn't be asked to identify her attacker•. drive a light-colored mid-to-late 1970s said he believed they all were committed Southeast and Southeast 256th Street, from a police line-up until at least today. Honda car. :; 'Elsewhere in the news . • • by the same man. : east of Kent. :- • The Panther Lake woman's 3-year-old Police spokesman Frank Kinney said :' Emergency cleanup crews are back at Western •"Nelson said that the'32-year-old man Asked if the man in custody had been child:was awakened when the attacker. the man arrested Tuesday was described i E; Processing in Kent,this time working undera state already was a suspect in the East Hill considered. a prime East Hill suspect...apparently used his.foot and a crowbar to as.a white male.in•his mid-20s,6'1, 150 I rape cases before the Tuesdaypounds,with. brown hair. I Contract to cover two acres of contaminated soil which P crime,in before the arrest, Nelson only replied break a door. The nearest neighbors threaten to wash into Mill Creek.Details,A3. which a.woman in her mid-20s was that he was"a suspect."He said the man didn't hear the attacker breaking into the King County Police Sgt. Howard 'Stock market prices took their sharpest drop in more abducted.about 12:30 a,m.Tuesday from hadn't been under "physical•surveill- residence. '` , - . Reynolds said last week that police had :than two months Tuesday,reversing a week-long advance her Panther Lake home. . ance." The,suspect has lived, .in the Victims weren't taken from their interviewed about 200 suspects, and :that carried the market to record highs.Details,Al 1. The woman was assaulted in the'Fair- Seattle area for about 10 years, but homes in any.of the other East Hill rape discounted 90 to 95 percent of them as ) ■Immediate steps must be taken to raise the salaries of wood'or Maple Valley areas,and released Nelson wouldn't comment further about cases. Police theorize that the Tuesday suspects. ' •all teachers rather than concentrate only on rewarding i Some with merit pay,a congressional task force said .• a a 'Tuesday.Details,A8. Court decision favors Hoppe,� .. Ridder exchan exchange Weather barbs o n taxpractices • , Rentons .anti orn law- . p . . • •• By JANET LaBRANCHE ' assessment process more efficient and Fair after morning f0 . • Nancy upheldfair by switching from a four-to a two- I 9 9. , dodge Ann Holman the Staff Reporter By ED-PENHALE Fair todayexcept local morning fog:Highs mid 60s, constitutionality of the ordinance as she Citing an erosion of public faith in King year cycle of property assessments. Coon Bureau y Hoppe's office, - Light variable wind.Increasing cloudiness tonight.Lows County � ` adopted the conclusions reached by U.S. CountyAssessor•Hanle Ho "The assessor should be a watchdog," mid 40s.Partly cloudy Thursday.Slight chance of ' A King County Superior Court ruling District Court Judge Walter McGovern Democratic challenger Ruthe Ridder he said. "I question whether [Ridder] showers.Highs near 60.The high temperature Tuesday Tuesday that the city of Renton's anti- when he ruled Feb. 17 that the Renton •• Tuesday exchanged barbs with the long- would watchdog'taxes." was 63,with a low of 30.There were.01 inches of . pornography zoning ordinance is con- ordinance is constitutional. Forbes has • time conservative before the Tuk- Ridder, the first serious contender to precipitation.The total precipitation for the year stands stitutional kept the city on a courtroom appealed McGovern's decision to the wila/Sea Tac Chamber of Commerce. face Hoppe since he became county • at 30.53 inches.Details,A11. - collision course with X-rated-movie Ninth Circuit Court of Appeals. Ridder said the assessor no longer has assessor in 1971, clutched her half-size . .. • showman Roger Forbes. Holman's decision,in part,means the the respect of his staff or of the public. reading glasses and took aim at problems ,' A state court decision: finding the. Superior Court case generally will be She criticized differing assessment prac- in the assessor's office. . I S i • ordinance.unconstitutional would have.- treated as a zoning matter,rather than a tices used for residential and commercial i` ...,. sunk Renton's quest?for an injunction full-blown obscenity trial, said Renton properties. She said 14,000 tax appeals were,filed in. n.1982 70 rcent of which were suc- Stopping Forbes. from exhibiting adult City Attorney Larry Warren, although Hoppe countered Ridder's charges by ' • movies being shownat the Forbes-owned, questions surroundingthe nature of the .. his anti-tax anti-big cessful. She •criticized the use of differ- Astrograph 89• Sports B1-B7 citing i3 government mg assessment formulas for downtown Business All State Al2 . Renton Theater in the downtown area of sexually explicit films shown at the .philosophy that has won him re-election Seattle •commercial •properties.erties. . Classified ads 08.811 • Stocks All the city. : -. Renton Theater will remain sharply at :in every assessor campaign since 1971. P P Comics Alt Television A11' • • Now the case will move to an Oct.24 issue when the judge and an advisory • "Both of us have a record,"Hoppe said. With a 106 percent levy limit, the d Crossword B10 Tides All trial and legal showdown on,whether jury hear the case later this month.. "I have demonstrated a cmmitment to amount of property tax collected in King l Editorials/opinions A10 Valley Living Section C films shown at the theater are lewd The Renton ordinance prohibits con- lower taxes and reduced.government." County.annually is a set figure. _ , Going on • Weather All- ' - ' enough to meet the city's definition of the tinuous showing of films that appeal.to a Ridder,a former state senator,has done "The money is the same,"Ridder said, Hazel Bl l ' World A649' . • • type of films which, under the zoning' prurient interest"—defined by Warren the opposite,he said. ' "but if major buildings are valued at the .National AS-AB ' Zggy Bl1 . • • • ordinance,may not be shown near Renton as a"lustful interest"—at any location Hoppe said he has reduced the size of lower end of the scale, then somebody Police A3 schools,homes or churches. • (Continued on page A2) his staff, and has made the property (Continued on page A2) j t I E• . i' • tvans, ;. ; :;x_, ,,5 ,_ ;s;,: ---- - �•_.,.,. •�a,�. • at 7 p.m.and 9:30 p.m. .No-v..-3 at the 6"- .f.S f1 I s, Lovvry . ' Performing Arts Center, 700 E a,o :: : • Main.Tickets fort - 6eshoware$12:5Q - .r:�• _ es e fioppe rile d— 8 - � er (Continued .--- .. al a from , g dmi i n: page Al) su rr — This=' r_ i ` s�•a s`2� - e' n`• - - di d- P vices - - o + for ■ ++ Y in .it to!• Lo s +te rrific h bu' , ilea�d-dod �to havexhe results we ad 4uarters and Royer �' r r. i•: ..proposal" to allow 'for +down" today. •He even-tossed a complimentjoined Lowry at the podium microphone •Con •• some new nuclear armament.Lowry also °~-' ,(Continued-from page Al)Ai ::..'~• ;',rr,•j; Boy;2,'nearly drowns. criticized votes Evans already has made Coone s :way, to urge all Democrats to supportP . :eIse.is-makin - ,� :,, Y y,-crediting his opponent Lowry, malting toe,difference?! • • { as the temporwiary a stro In his concession speech,Royer stress- Not- oNy.;:did sHoppe come under attack by Ridder;- in his family S.p001 P Cry appointee to Jackson's n-s:and,vigorous campaign• ed that"job Na 1 is to beat Dan Evans in - members of the Chamber luncheon audience asked tough. A 2-Year-old boy was home and • old U.S. Senate seat._votes Jbya Evans It Was allSWeeroess and light on the ++ old U.Sinst an expansionDemocratic side.Royer not only made an November. a- - questionslocalas well:°.. o well Tuesday f terern o in h drown. of unemployment early concessionto "No one is going to fight harder for -A stryfire official asked TaHoppe%vh he a agreed to value on! Monday afternoon in the back compensation and for keeping allyLowry,but an unusu- Mike Lowry than Charlie Royer," the 11-story office tower at Sea-Ta ffice Center nearJackson yard.of his house in the McMicken in Lebanon for up to the next the18 ow gracious one..Royer even told his Seattle mayor said. International Marinesnte. a n campaign workers that he had "Betweenwas first for half its ccastruction cost when it Heights area,according to Fire Dis- me and Mike,Dan Evans is put on the tax rolls in 1979. trict 24 spokesman Ron Wieland. • Evans;with his wife Nancreadied buses and cars for them to troop Y and over to the Laryheadquarters.csfo going to have no place to-hide,"Royer `` How can You justify taxing homeowners at 100 percent of .. son`;Daniel at his side, beamed eldestto;his" The Royer caravan then noisily swept whiler Mike going to a ibeee a butterfly most of our[fire value and servicesinesses at 50 percent,when • The child, Zane shortly aft r 3 ] are provided on the _ had:been found unconscious in the i 2. 'Anti-porn 1 :commercial strip?"asked Joe Brennan,fire commissioner pool by his mother shortly after 3 for King County Fire District 24,which serves the area. • p.m..Monday,Wieland said.He is tlte, son of a Cynthia ,Noyes and Gary • �� • • • , Hoppe said assessors must equalize values. In a sworn '' (Continued from page Al) 4. statement in a lawsuit in King. County Superior Court Sleeman: • Warren contends, that a less houses are banned by the ordinance. the invtimethe showed office e tower assessment,Hoppe • i o es pulled the child out of the within 1,000,feet of schools, residences complex test would however,e t ate sinceenga studiesat Y P and churches. Burns also said language of the ordi- about 75 percent property B a was being airport't t pool,and-then about fivedblocks And uhc esnton Theater,the c- con- the Renton ordinance,he says,is a zoning.. nance is so va a as to make it difficult to P t t' the tends,lies within a no-porno-movie one. law and not an obscenit re area was'being assessed at about half its true value. away. Firefighter John Madsen rep- �� - Y gelation. determine exactly what it prohibits. Hoppe said that Fire District to24's$ operating revenue has Renton's lawyers contend that all the Jack Burns,Forbes other lawyer,ar- increased from$160,000 in 1976 to$562,000 in 1983.He said vived-the child Wieland said, and Y gued strenuously before Holman Tues- •lenges raised bytBurns head beenject d g g need to prove to show Forbes in violation day that the Renton ordinance is uncon- Medic.I took-him to Children's Os- the ct is state the revenues it needs property that there is - ` thopedic Hospital in Seattle.He wa§ of the ordinance is that the films shown at stitutional on several federal court and that there was no the Renton Theater appeal to a lustful and grounds. reason to co ider them again. no current guideline for valuing released Tuesday. In adopting the law, the Renton City - under_` sexual interest, while Forbes' lawyers The language construction,except to value it according to the amount that • The child apparently had been Council went beyond regulating land-use ing to Warren,was patterned after accord- , has been expended. contend the city must show the films to be and engaged in regulating the exhibition lar zoning laws upheld by both Washing- under water for four to five minutes; : "shameful or morbid."major pm-trial issue to..- of materials protected by the First ton and U.S.supreme courts.: A pre-trial judge is what still to standards .. Amendment,according-to Burns. : Language Vague- Holman agreed, accepting _;. the jury will use in evaluating the nature He added that the Renton law denies ordinance doesn't imMcGovern's pose that the Renton of the films shown at the Renton Theater. -Forbes • ' Three-prong test equal protection of his First on the showing of blue movies outrightevebry • ,: Robert Smith, one of two lawyersAmendment rights, noting that adult where within Renton city limits, and # " bookstores are not affected by the ordi- doesn't intrude in any substantial way on - •. ' Y representing Forbes, suggested to Hol- nance and that the 10 adult movies to be Forbes'First Amendment rights. { man that the full, three-prong test for shown to the — obscenity, as set forth by-the U.S. Sup- sample of Renton Thee the case fares a. were e250eacrestin Renton found there A.reme Court,should be applied by the jury can be purchased orrented in the legally which an to the films, same adult movie house could be oper- . •;'. are'�s of Renton- where adult movie- ated under the ordinance: t. • Weyco project bonds �. _ • OK'd • Chronicle• . The Industrial Development �� { P Corp.rP• The Port's action is the first step in 212 Wells Ave.S.,Renton,WA 98055 ofethe Port.of Seattle Tuesday gave• a tax-exempt financingCam)872-8800 preliminary approval to the issuance processi hat - s•:. of Si million in bonds to benefit a _ should be completed within several c;►aAatlar.: - Weyerhaeuser Co.project in Kent, months,said Cliff Muller,the Port's cI ,s.dwa ®rt��° • • The project consists of the con- chief.financial officer. - . town.ws.....:. >.,:. :.. : 8724620 26880 struction,installation and equipping We•yerhaeuser must now acquire• Spits ney ...:`:' :....: 972 es�e • of a new sewn q PDinB fmancing • unary • , dory fiber resource for sale of the bonds and 8724672. �� u , recovery plant to replace two exist- set up a tousles to:issue n�Car RECORD r- ing leased fealties. make interest principal, eXCIFit SONNYer v��.yG+Raiocca pass,o,.a r ��.published • ., .payments and.-take AO "°"�'Q°"Boos w ++Dron HomedA9e0 Wleased eu_er spokesman Steve �a. ` "1p�°ors Media KW Home a®w care of financial arrangemegts. r � woo six months. any Mail delivery is988 a Pierce said the project could mean Then it must apply to the state paid d Kent WAcounty of see, a �mode King ^tY•.SeaonddaypoetaQe - 1 P De artment of Commerce and snappers.P.O.ee.,3o,K,,,,w�seoi2 • an additional 15 to 25 jobs phased in' D N changes w the vnl.y "She'd been hospitalized two #: 44;T J r s`r y�S' .„(..',� "��`1�., r',;0 41: 'p, s .;c :+PF< - ._... , 7,.". ;''',7 x i 5, '\ or three times over the last year and a half Zareat said x >.•- m .f r :' ,_._ ., x`-r - - ,; ;. 1 ' ; ° '''''""End „^ f.F .,Y.'-,auX�i-u":.- 'L'.---- •-L— w'-''—1''-.,�t - +7x�t :«>- ;•--- +... KK c�St'Fiq."-- i=3 'Y'..SK "4 ' r 7. .` 36sa•-ax,..*'c.' 4,< � . ,�ic -�hd even to her closest friends,she didn't actually � -- -• - - - - � --- - �� �," *�*'w acknowledge it." 1 - ' , Gene Coulon Park, no longer packed with people now that fall is here, is a peaceful setting for those_ seeking solitude staff to by DUANE HAMAMURA ` Miss Hackett arrivedat the 198;Golden Globes in a- -• = ---` - , .--,--- :._ - - • ' — - _ --. ' ; wheelchair,but walked to the stage to receive her award, "'' = Miss Hackett was born March 1,1934,in Harlem to an. Irish father and Italian mother.She.made her acting Expanded Coulon ,: Park receives. hIah marks it Woods. , s park by the end of this year.The current - In addition;Webley said,°his depart- s the director said, and the problem has : By f N HINMAN Reporter total.is about 670,000,he said. :ment is studying usage of the park and is become more managable. Elsewhere in the.news The group picnic shelter was booked by planning some-changes that should en- Webley said a million people are ex- The expanded version of Gene Coulon 94 different groups during the summer hance the usage.Some changes could be pected to visit the park next year,so the ■A new Grandview School for special education,long Memorial Beach Park has ended its first and each group consisted of 60 to 300 very minor, he said, such as.relocating . city is looking for ways to ease the in the planning process,has now been placed in jeopardy • season with high-marks.. people. picnic tables or benches, or possibly. - parking problems that visitors ex- by a drastic reduction in available state matching funds. , "I was extremely pleased with people's The city had estimated it would take in moving or adding drinking fountains. perienced this year. 'We're looking at Details,A2. reaction to the.park,"said John Webley, about $8,000 from parking fees at the - Two complaints were heard fairly .other potential parking,off site,"he said. ■A record 33 candidates will be on Tuesday's primary Renton's park director."People seemed boat launch ramp.Instead,revenue is at consistently from visitors to the park last Parking is available at the nearby Boeing ballot as Washington voters take the first step in selecting to feel they got their value." $18,700,Webley said. summer—the mess left by the geese and parking lots on evenings and weekends, a successor toSen.Henry M.Jackson.Details,A8. This summer marked the first season's The expansion and facelifting given to the lack of parking.'Webley.said the city but'it wasn't utilized very well last ' IITwo U.S.Marines were slightly wounded and a U.S. use for the expanded park, which in- the park on Lake Washington was essen- has made progress in solving both those . summer.Webley said the city will try to helicopter was hit by small arms fire Sunday at the eludes an additional mile of beachfront tially complete prior to the start of the problems. educate people to use those lots and is Marine encampment near Beirut International Airport. on Lake Washington and numerous summer 'season this year. But Webley Nearly a third of the goose population studying the idea of running a shuttle to j Details,AS. amenities, such as fishing piers,larger said more features will be added. An was relocated to an Oregon lake earlier the park boat launch ramps, a restaurant and underwater fishing reef, in the design this year, leaving about 100 resident While the summer rush is over, the i viewing decks. The expansion project stage now by the state Game Depart- geese. "The geese are.-going to be a park still will beckon visitors through the cost $9 million, fueled by a $7 million went,should be in place by next spring, constant management problem,"Webley winter months. "It's a-different kind of ' tr 'voter-approved municipal bond. Webley said.An educational project that said. They tend to multiply and other park in the winter,"Webley commented. The numbers from the park's first will identify many of the trees, shrubs geese move in to take the place of those "Winter use is a much more intimate one .season are impressive.Webley estimated and groundcovers in the park should be moved. But there was a noticeable im- without all the crowds. You can find a'- that 700,000 people will have visited the finished before next summer. provement when the.geese were moved, nook and listen to the waves." - . , Low clouds, then sunny . Local morning fog or low clouds through Tuesday - - - J otherwise mostly fair.Highs low to mid 60s.Lows low to .City, Roger Forbes readyfor main event ' mid 40s.Winds northerly 5 to 15 mph.The high y' temperature Sunday was 64,with a low of 40.There was no precipitation.The total precipitation for the year portray the issue as an obscenity case,a list of pre-trial motions," Warren said. federal judge earlier this year,but War- I,..� stands at 30.52 inches.Details,A7. , . By JAN HINMAN constitutional quagmire Renton attor- The motions will include attempts to ren said the city will have to prove the , Staff Reporter ' . neys want to avoid at all cost. . exclude certain defense witnesses, a constitutionality of the ordinance all over Roger-Forbes and the city of Renton ` The ordinance, has been upheld _as . request for a partial summary judgment,: again in the state court even though"we -' . will meet today in King County Superior - constitutional, but that decision will be a request to define certain terms that will see it as an issue that's already been: . Inside _ _ - Court for the start of a trial that will for naught if the city can't enforce it. • be used in the trial, and other motions decided." The'constitutional arguments determine the future of X-rated movies Larry Warren,city attorney,acknow- generally intended to speed up the main also will be given during the first week of in Renton.i ,. ledged that situation is a possibility."It's part of the' trial. . the trial. I "' Astrograph B5 sportsBi.B4 Although this trial will be justonemore possible to have an ordinance that's ' The city's ordinance prohibits adult Attoneys for Forbes are fighting the • Classified ads B4-87 ;`' state A8 in,a series.of legal battles between the constitutional and it doesn't apply.In that movies from being shown on a continuing constitutionally of the ordinance at every Comics Al • Television A7 - city and Forbes-owner of a string of ' caserwe'd be left with a very beautifully ,basis in theaters within 1,000 feet of turn.The earlier federal ruling has been . Crossword B8 Tides A7 - pornographic theaters — it will.be a constructed ordinance that doesn't do churches,schools,parks and single-fami• appealed to the Ninth Circuit Court of- Deaths A3 Valley Wing B8 deciding one:The city will be attempting anything." . ,ly residential areas. The city contends Appeals in San Francisco in addition to Editorials/opinions A6 Weather A7 to prove that Forbes has violated a city The first week of the trial in the Forbes has been showing movies at the bringing the issue up again at the state , Hazel B7 World A4,A5,A7 ordinance with the filing he has offered at courtroom of Judge Nancy Ann Holman Renton that violate the city's ordinance. level. . . National A4,AS Althe downtown Renton theater. Forbes' will be taken up with preliminary legal The ordinance that controls adult thee- After the pre-trial motions and the Ziggy B7 attorneys,on the other hand,will try to- maneuvering. "I've got a whole laundry tors was declared constitutional by a (Continued on page A2) Jbal/y /(Pee,-c/ gi,,Q4,'e/ ,o- /0 -43 i • 1 :. .1 SIIC Tuna• n cup ma K� IL.:.Urafla vie_ _ ____ „ _ SCflOOI : pro ect ' . By ANN STROSNIDER ;r ._._ , -the office'of the-state-Superititen=;those, projects unless we get;our. 'desire to cut the wood and pay for it. ' Daniel said,"but I would assume that Administration:Center,:near 120th • • Staff Reporter dent of Public Instruction(SPI). •, money." r "They're.essentially walking away as soon as the state school fund starts Avenue Southeast .and Southeast Satellite facilities The -problem, -McCarthy .ex--from their contracts,"he said. getting replenished,we would be a 256th Street„was expected to begin ' A new Grandview School for spe The districts which have agreed to plained;is that the school construe- McCarthy said the school con- high priority." next fall. cial education, long in the planning participate in the Grandview project ' tion fund gets its funds from the sale :struction.. fund now stands at $.66 . But McCarthy didn't hold.;out • process, has now been placed in are Kent,Renton,Auburn,Tahoma, of :timber'_managed .by _the state:, million instead of the $118 million much hope for quick replenishment ,Rng patted out. jeopardy by a drastic reduction in South Central, Enumclaw,Highline Department of:Natural Resources. originally forecast. Construction of the funds.The problem is a serious McCarthy said the SPI office had the encouragedialKent to begin planning."Nw available state matching funds. and Federal Way. "Private industry bids on the timber projects already begun will more one,he said,which can be solved only the special education projects."Now y Plans call for the school to be built Two satellite special education but does7'not pay for it until it is than use up the available money,he by the state Legislature.He doubted We've- pulled the rug out from under on a wooded site in the Kent School facilities, to be-built at Kentwood actually cut. The amount of timber said. . there •would be any new money District,but to draw students from High, School and :at Covington being cut at.this time is much less. - Kent .School Superintendent Dr. available for the next.18 months. them overnight, he acknowledged. eight local districts.The school was_ 'Elementary,also are jeopardized by than anticipated." • George Daniel said the news about Daniel said Kent was planning to•. Under the 90 percent matching to receive 90 percent of its funding the lack of state funds. • - Walking away from contracts the construction fund took him corn- go to bid on the two satellite projects formula,the state would have contri- -or $2.8 million from the state "The impact on Kent[and the other .McCarthy says the timber was bid pletely by surprise when it was in the next two months and to begin buted $500,000 for the Kentwood common school construction fund, districts in the consortium]is direct at high prices several years ago. announced at a state school board construction on them early next High School addition.and $400,000 •,~ according to Terry McCarthy, ad- and profound," said McCarthy. Now, with a depressed market for meeting in Seattle Friday. spring. Grandview construction at a for the Covington Elementary addi- ; - ministrative assistant for budget in "They are not in a position to build wood products,timber firms have no "I.don't have all the details yet," site behind the Kent School District tion.. ' ' City Forbes . ■ : - Fire marshal (Continued from page Al) • week of the trial the judge will either violate its ordinance. • y delivers theme constitutionalquestion are settled, _ .,e, .iti ;, . - "find it unconstitutionally vague or In the upcoming trial,law ers forit ;4.: r Warren said, the main part of the she'll say what we are going to trial Forbes are expected to contend that ' for prevention • trial will begin. That's scheduled to about,what issues,"he said. the movies being shown at the Re- p start on Oct. 24 when an advisory nton Theater do not appeal to a t •'.-: 3 " jury will be chosen. Burns will have some high-pow- , ,� . « t , "We think our case is real simple," reed help in the Forbes case from prurient interest. They plan to call E ,' ,,yy Renton's fire marshal wants pro-. Robert,Eu ene Smith, a nationall members of Renton's City Council, s ;,`,, o� ''. ple to stop and think. Warren said. The city will tr o gY the city's mayor and police chief an s .t '-k ` t' "You have to learn to protect prove its ordinance has been viol- recognized expert on the First other"expert"witness to prove their -;' £ :: , ;, A ,,..; :,`�,,',:: r; #' yourself from-dangers," said Jim ated by showing that the movies Amendment who has a formidable contentions. r� Matthew. The mistakes that people shown at the Renton Theater appeal track record in defending theater The city's lawyers will be seeking g ' 4 make cause the most fires, not to "prurient"— lustful-interests. owners rights to show movies such rulinga. that Forbes is operating in ''> :;_`-;"•":,;::; :`. :- >< y- `T' °'xs electrical or a ui ment malfunc- as thosepresented byForbes. p C-0'`_=' .,, .,,,:„....:,, q p Warren said Forbes is"trying to turn violation of the ordinance'and will q' • , ;-_,[: :• .- Y "a:'; ; bons.His catch phrase this week- it into an obsenity trial which would ask for an injunction to The city plans to show 10 of the j prevent s . ,.,. ° -:rr ;t � °; the theme for Fire Prevention Week be more difficult for the city to win. further showing of pornographic x" *' ,x"' — is "learn not to burn allyear .' , t movies it contends violate the city's a rg .,. w, e x �� - - Jack Burns Forbes attorney,indi- .ordinance to the judge and jury films. . - '; through. - cated Warren's view of his oppo- . during the trial.Warren Said that will Although the city's attorneys have- � w ;: °.:;"' �' For exam le, Matthew said the nent's strategy is correct said they believe some of the movies u f w, -, ,�` i ,• ,.N 1 '', ,, 1' most common Cause of stove-related be four days of movies in a trial that : , r • •& l - "The key issue in this trial is Forbes has shown could be classifiedro- „s Y y he expects to last two weeks after „ b„ _,.-,f g fires•is •dirty chimne s. theobsc determination of involved community Ivry selection. as teat d by the First Amendment,therefore >Ys x -;; , r% a;--: `" ? :�T1 "We're trying to sponsor a more they , --. °' y Programs for people, said Camille standards'and obscenity of films. The lengthy battle between the .contend the cityneed show onlythat. x Radcliff, a fire prevention officer. That looks like it might be one of the city and Forbes,began in early 1982 the movies appeal to prurient inter-. '. /• Later this month, the Renton Fire .,,,,, r ;x: ' - £ i f err i".r Department will s nsora primary issues,"Burns said. when Forbes bought the Renton and ests as defined by the city's ordi- �' ��, � � `r ^, k,�{ :�� p sponsor workshop .� Once the"vagueness"of the ordi- Roxy theaters in downtown Renton. Hance. .. ,,,t , ,, -. * ,,a on wood-burning stoves.A date will Hance is cleared up in the first week . General audience films.were shown'' The jury will serve in an advisory , rR 4 i X . � be announced soon of the-trial,the next stage will be the at the Roxy,which later was sold by. 'capacity and Judge Holman will . ' ' x ,: '- , . The fire prevention bureau also is "obscenity stage,"Burns said."The Forbes,but the Renton opened with make the final decision herself on _ :*-" urging people to put smoke detectors fact is,we don't understand what the Deep Throat and The Devil in Miss whether Forbes is violating the city's' `, - • in their homes—and to make sure I ' (city's) ordinance.is; In _the`first Jones,films which the citycontends ordinance. r x,, t r sk z , : that the batteries aren't run down. ; _ Batteries should be checked each i { month,"*.e* '" l• Matthew said: That's only TESi ! Watt quits . ■ ■ =._s people takout -. 1 , School lo ted at 314 South Foul. ,_ Street , Renton , King 2 County, Washington . ANSWER: 3 4 • . 5 . . INTERROGATORY ' NO. 6: . 6 If you deny that the Renton Theater above described is located 7 within 1 ,000 feet from Renton High School located at 400 South Second Street , Renton , King County , Washington , or within 8 1 ,000 feet from St . Anthony's Parchial School located at 314" South Fourth Street , Renton, King County, Washington, then 9 state the number of feet from the Renton Theater property , . more particularly described above , to the nearest portion of a 10 lot which is a public or private school use . 11 ANSWER: 12 13 • 14 15 I elitiP16r 16 REQUEST FOR ADMISSION NO. 10: V fO 7 1* I 17 • Admit that since on or about January 20, 19.83 and thereafter,;; that defendant Playtime Theatres , Inc . , has exhibited , Or, 18 caused to be exhibited , for observation by patrons andI possessed for the purpose of such exhibition , the following 19 motion picture films which have been exhibited at the Renton Theater located in Renton , King County, Washington on the 20 below listed dates : 21 . PROGRAM DATE EXHIBITED t II '22 J.Reev.44yeedem 01/20/83 through 02/10/83 23 02/11/83 through 02/17/83 24 25 • "-- 02/18/83 through 03/03/83 26 • -n i+ s..m • 03/04/83 through 03/10/8'3 27 . ' .,,1. fit 03/11/83 through 03/17/83 WARREN& KELLOGG.P.S l'rl • REQ. FOR ADMISSION , INTERLOCKING ATTORNEYS AT LAW INTERROG . AND REQ. PRODUCTION -9- . 100 SO.SECOND ST../.O.ROYf RENTON,WASHINGTON moo: _ -- 13.. •9 - / / • i . 2 ' 03/18/83 through 03/24/83 • 3 - , 199-1 1 - iv• • 1L 4 • 03/25/83 through 03/31/83 5 ' 6 04/01/83 through 04/07/83 7 04/08/83 through 04/14/83 8 ' 4$" 1aae a D... .1. ,' 04/15/83 through 04/21/83 ' 9 tifix So Between the Sheets . • 10' ._-_, „ T ; 4 ' a Ca a _ 04/22/83 through 04/28/83 • 11 i 12 ' 04/29/83 through 05/05/83 i gil N16LL UM* . IILi : 73 ,_ _ 05/06/83 through 05/12/83 iI eci-- ? Stormy I1 ; Young Doctors In Lust 05/13/83 through 05/19/83 05/20/83 through 05/26/83 , 17 -mew -- 4 n n 1 F saLi c , 18 05/27/83 through 06/02/83 I 19 20 grA It Puss and Boots 06/03/83 through 06/09/83 21 06/10/83 through 06/16/83 et, �CC�[1V1CS 8 22 'I ?3 r ' 1• • - 06/17/83 through 06/23/83 !; trp, 3t The Best of Alex De Renzy '' 24 06/24/83 through 06/30/83 i; 25 { 26 werek.A.ii LCcp O 07/01 /83 through 07/07/83 27 07/08/83 through 07/14/83 28 WARREN & KELLOGG,P.SJ REQ. FOR ADMISSION , INTERLOCKING ATTORNEYS AT LAW INTERROG . AND REQ. PRODUCTION - 10- T,O SO.SECOND ST..►.O.BOX T6' RENTON.WASHINGTON 96057 1 2 WA 4113 Nasty Girls 07/15/83 through 07/21/83 3 it' a___.d„ V-11-, 191. 1 -+ 07/22/83 through 07/28/83 4 rr n,.; e ffa i .. 1 • . 5 ti/A 4? Hot Dreams Commencing 07/29/83 rm ocrf V/9/19 1/5/g3 "wag.06,,,t- gmI!Ls Nlp` -s� 4 'SC,oci15. 8/fz(ir'b 7 020,. - V/ iv! tr3 54-& -cs.T. r'e..�-� s6 c/ re3.7_Gmr--61T.w.�se-:.� 4•(I /r9/S3 Taat.t-ra SVx.r7g3 ilg.3.114 77.14es.a4C-' * sail- ,/r/ R3 vc7sc rTarsc�1." �2t/�3 ;' ; S7 .4., sue- q&o , k 9/9/st3 wxaait 9hr/13 A a 69 ca-44. «-p-- - ()Am `�//4/B 3 TAi014,4 9/2 2/93 e/ Q.f . Ixalt 9 f 23/83 -0,1, 9/2/4BS G2 43 4/?e/e3 1.4/b++34 a y /`'w^-taa' . .,. . , .. . A4e“4 , . . , 46 /7. 6 a? ti.ey -,./ ./mge..6,,,cc--. , ii : &Crieel MA/5 a/e-e, tc-.0 [ ; , ,i , * ,i,/ 6/ 4 . . 6 , .i 4 (%c-, , 'I 6� Yki i7t 4, , I7 i i . 'i ini /.. - . / r IN THE SUPERIOR COURT OF WASHINGTON FOR KING COUNTY CITY OF RENTON, a municipal ) ' corporation; LAWRENCE J. WARREN, ) NO. 82-2-02344-2 City Attorney of the City of ) Renton; STATE OF WASHINGTON ) TRIAL BRIEF OF CITY OF ' ex rel. LAWRENCE J. WARREN , ) RENTON IN ORDINANCE City Attorney of the City ) ENFORCEMENT ACTION j of Renton, ) Plaintiffs , ) ) vs . ) ) PLAYTIME THEATRES, INC. , ) a Washington Corporation, ) KUKIO BAY PROPERTIES, INC. , ) a Washington corporation , ) ROGER H. FORBES and JANE DOE ) FORBES, husband and wife , ) ROBERT B. McRAE and ELIA C. ) McRAE and DOES 1 THROUGH 10, ) ) Defendants . ) ) SUMMARY This action is before the Court to seek a declaration as to the constitutionality of certain City ordinances regulating the location of adult motion picture theaters , and further to enforce the City ordinance as to violations alleged to have been committed by Playtime Theatres , Inc . The City has previously submitted its Brief requesting that the ordinances be held constitutional. The city has also submitted a Brief and Motion for partial summary judgement concerning all issue - in the ordinance enforcement , except for the issue of appea TRIAL BRIEF OF CITY OF RENTON IN ORDINANCE ENFORCEMENT ACTION PAGE 1 to the prurient interest . Those issues covered in previously submitted briefs in this action will not be discussed in this Brief. Factually , there is little or no dispute before the Court . In support of its request to enforce its ordinance , the City has , through request for admission and interrogatories , established all facts necessary to prove its case with the exception of ( 1 ) a continuous course of conduct and (2) that the exhibition is "in a manner appealing to the prurient interest" . It is admitted that the movies have been shown continuously since January 20, 1983 and that all of the movies are of a sexually explicit nature meeting the definition of the ordinance . Therefore , it is anticipated grant summaryjudgment as to the issue of that the Court will � g continuous course of conduct . The sole remaining issue to be decided by the Court and submitted to an advisory jury is what constitutes an appeal to the prurient interest . That will be the subject matter of this Brief. ISSUES 1 . What is the appropriate legal definition of appeal to prurient interest? 2. What factor does contemporary community standards II play in the definition of prurient interest? �I ARGUMENT General Principles It should be recalled by this Court that this case involves a zoning ordinance of the City of Renton regulating • �I TRIAL BRIEF OF CITY OF RENTON IN ORDINANCE ENFORCEMENT ACTION PAGE 2 the location of adult motion picture theaters . The type of ordinance and the great majority of the language used in the City's ordinance have been approved in the cases of Young v. American Mini Theatres , 427 U.S. 50, 49 L.Ed 2d 310, 96 S.Ct . 2240 (1976 ) and Northend Cinema v. Seattle , 90 Wn. 2d 709 , 585 P.2d 1153 ( 1978) . To emphasis the zoning nature of a Young type ordinance , the Supreme Court stated in Young, supra, at page 2448 : " . . .The mere fact that the commercial exploitation of material protected by the first amendment is subject to zoning and other licensing requirements is not a sufficient reason for invalidating these ordinances." The court further states at page 2453: "Since what is ultimately at stake is nothing more than a limitation on the place where adult films may be exhibited, even though the determination of whether a particular film fits that characterization turns on the nature of its content , we conclude that the City' s interest in the cipm- ,, -9oio �me tot_ act -.o-f, 74-- :a„ice,014:rhooAd,s a equately supports its classification of motion pictures . We hold that the zoning ordinances requiring that adult motion picture theaters not be located within one thousand .( 1 , 000 ) feet of to other regulated uses does not violate the equal protection clause of the fourteenth amendment ." A similar result was reached in Northend Cinema v . Seattle , supra, at page 719, when the court states : "We conclude the Citys' paramount interest in protecting , perserving and approving the character and quality of its residential neighborhoods is sufficient to justify this kwd3mzr,3nm,ikin+atory zon- rrgt We g-u �a= i o'ri�o f f e l o'e a t iTOW it-'aiu ov-ih_e.ai;_e.r s . We find no \violation of First Amendment or equal protection guarantees . " The opinions in Young, supra, and Northend Cinema , supra established that an ordinance such as that adopted by the Cit TRIAL BRIEF OF CITY OF RENTON IN ORDINANCE ENFORCEMENT ACTION PAGE 3 of Renton ( a Young style ordinance ) is a zoning ordinance passed under the police power of the City . The operative language and all but part of one definition in the Renton ordinances are identical to that previously approved by the courts in Young, supra, and Northend Cinema , supra . The only additional operative language that the .Renton ordinances contain is within the definition of "used" . The definition of "used" incorporates the previously judicially approved terms of "specified sexual activities" and "specified anatomical areas" but then adds the additional qualifying terms that the use must be a "continuing course of conduct . . . in a manner that appeals to a prurient interest . " Without these terms there would be no issue before this court 'I '.I as the theater operator has admitted that the movies have specified sexual activities and specified anatomical areas . (See Answer to Request for Admission , Attachment A. ) As Judge McGovern noted on page 4 of his Order (Attachment B) in the Federal declaratory action involving these ordinances : " . . . The subject matter of the film is given a detailed definition , but the ' continuous course of conduct ' language is not . The ordinance in its essential features is virtually identical to the ordinances in Young v. American Mini Theatres , 427 U .S. 50 ( 1976 ) and Northend Cinema, Inc . v. City of Seattle , 90 Wn. 2d 709 , 585 P. 2d 1153 (1978) except that the word ' used ' in describing ' adult motion picture theaters' is defined with the ' continuing course of conduct' language . " The Federal Court , then at page 7 , states : " . . . The Court concludes that there is not a substantial intrusion upon first amendment interest . . . Significant cited cases to the contrary are distinguishable : . . . " TRIAL BRIEF OF CITY OF RENTON IN ORDINANCE ENFORCEMENT ACTION PAGE 4 j, The Court then concludes on page 12: "Renton ' s effort to preserve the quality of its urban life by enacting an ordinance which regulates adult theatre location is minimally intrusive of a particular category of protected expression described in Young as being of ' a lesser magnitude than the interest in untrammeled political debate . ' 427 U.S. at 70. Renton' s effort under the circumstances is not unconstitutional under the first amendment . Injunctive relief from enforcement of the ordinance would be improper . " Having determined that the ordinance is facially constitutional, and further having considered that the ordinance is constitutional as applied to this particular theater, the only task remaining for the Superior Court is to determine the meaning of the term "Wp_eals--•-to--a-pru-rie-n-t-Th :i.n-te.rese'!as it relates to a zon•ing—ardn-a-nce The court, of course , may consider the obscenity cases to assist it in obtaining a definition, of appeal to a prurient interest . However , it is unnecessary to go beyond that definition and take in the remaining definitions of obscenity cases . 1 . What is the appropriate legal definition of appeal to prurient interest? The leading case in Washington on the elements on obscenity in State v. J-R Distributors , Inc . , 82 Wn 2d 584 , 512 P .2d 1049 ( 1973) . That case specifically defines the term "appeal to the prurient interest in sex" when it states at page 648 and page 649 : . . . ( 1 ) Does the allegedly obscene work. . . appeal to the prurient interest in sex (does it produce an itching or a restless craving for the lewd , , , in sexual matters) (5) as viewed by the average person TRIAL BRIEF OF CITY OF RENTON IN ORDINANCE ENFORCEMENT ACTION PAGE 5 applying contemporary state wide community standards ; Footnote 5 states : "The parenthetical language employed merely restates an authoritative definition of the term 'prurient' : (A) marked by restless craving; itching with curiosity. . . (B) having or easily susceptible thoughts or desires . . . (C) tending to excite . . .Websters Third New International Dictionary Page 1829 ( 1971 ) . This then , is the definition of appeal to a prurient interest in the State of Washington. The Supreme Court of Arizona has approved the following definition of "appeal to a prurient interest" in State v . Barte 591 P.2d 546 at 550-52: "The term appeal to the prurient interest means to exciet lustful thoughts , a shameful or morbid interest in sex or nudity, arouse sexual desires or sexually impure thoughts , inclined to or disposed to lewdness, having lustful ideas or desires . "A prurient interest in sex is not the same as a I candid, wholesome , or healthy interest in sex . Marterial does not appeal to the prurient interest , I just because it deals with sex or shows nude bodies . Prurient interest is an unhealthy, unwholesome , morbid , degrading or shameful interest in sex , a leering or longing interest . An appeal to the prurient interest is an appeal to sexual desire , not an appeal to sexual interest . An interest in sex is normal, but if the material appeals to an abnormal interest in sex , it can appeal to the prurient interest . . ." In Miller v. California, 413 U.S. 15, at 24-25 ( 1973) the Supreme Court , for the first time , announced a definitive "test" for determining obscenity. In addition, the court gave "a few plain examples" of the type of "hard-core" sexual conduct which can be found to be patently offensive under the state and federal law. This test has not been changed. The TRIAL BRIEF OF CITY OF RENTON IN ORDINANCE ENFORCEMENT ACTION PAGE 6 I ' only significant explanation came from the Court in Smith v. United States , 431 U.S. 291 , at 301-02, 309 ( 1977) , when it clarified that "patent offensiveness" , as well as "prurient ' appeal" , were questions of fact to be determined by the application of contemporary community standards by the hypothetical average person. An addendum was added in Pinkus v. United States , 436 U. S. 293, at 298, 300 ( 1978) , when the Court held that children are not be be considered part of the "community" when applying contemporary standards but that "the community includes all adults who constitute it , and a jury can consider them all in determining relevant community standards". . I . , at 300 . In Miller , supra, at 30, the court phrased a reference to applying community standards to prurience in the words : When triers of fact are asked to decide whether "the average person , applying contemporary community standards" would consider certain materials "prurient ," it would be unrealistic to require that the answer be based on some abstract formulation . The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions , has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions of the law. (Emphasis added . ) It was in footnote 20 of Roth v. U.S. , supra at 487, that the Court said in its own words that appeal to prurient interest meant "having a tendency to excite lustful thoughts" . In Mishkin , supra , at 508 ; Hamling , supra at 127-29 ; and Pinkus , supra at 301-03, the Court made it clear that when the materials are intended to stimulate a specific deviant grou • or a specific deviant sexual interest , then the jury caf TRIAL BRIEF OF CITY OF RENTON IN ORDINANCE ENFORCEMENT ACTION PAGE 7 decide whether the average person would find the appeal of the matter to the "general" prurient interest or .the deviant prurient interest . In Mutual Film Corp . v. Industrial Com. , 236 U. S. 230, at 242 ( 1915 ) , cited with approval in footnote 20 of Roth v . U . S. , supra , the Court made the general observation about the attraction from the general interest , eager and wholesome it may be , in their subjects , but a prurient interest may be excited and appealed to ." The Court later characterized this trait in Ginzburg v . United States , 383 U . S . 463 , at 471 ( 1966 ) , as "the widespread weakness for titillation by pornography" . The Supreme Court has used various descriptive words to illustrate what prurience may mean. Material can be prurient when it either attracts or repulses , as stated in Mishkin at 508 . Attractively erotic material , even to the average person , has been held obscene . Ginzburg , supra; Hamling , supra. See also Penthouse v. McAuliffe , 610 F . 2d (5th Cir . !' 1980) . Bizzare material , repulsive to the average person , has also been found obscene . Mishkin, supra; Ward v. Illinois , supra. ; i The Court used the words "lewd" and "lascivious" in Roth , footnote 20, and also gave approval to the Model Penal Code' s use of "shameful or morbid" . In another case which sought to separate protected sexual expression for political purposes from the pornographic prurience of obscenity , the Court in Cohen v. California , 403 U.S. 15 , at 20 (1971 ) , said that "to TRIAL BRIEF OF CITY OF RENTON IN ORDINANCE ENFORCEMENT ACTION PAGE 8 prohibit obscene expression, such expression must be , in some significant way, erotic" . One of the best analyses of this mixture of "tendency to arouse lustful thoughts" and the appeal to a "shameful or morbid interest" is set out in State v. Bartanen, 591 P .2d 546 , at 550-52 (Supreme Court, Arizona, En Banc . 1979 ) . The trial court charged the jury : The Arizona Supreme Court upheld and approved this definition as a synthesis of the "appeal" and the "tendency" functions of prurience . As stated by the court, at 552: "The trial court herein used both the so-called "appeal" approach to obscenity, that is , does the material appeal to a morbid , shameful , disgusting , unhealthy, unwholesome , degrading interest in sex, as well as a "tendency" of the material to excite "lustful ideas or desires" . "We believe the trial court correctly instructed the jury . " However, as pointed , out in Mishkin , supra at 508 ; II Hamling, supra at 128-30 ; and Pinkus , supra at 301 -03, it is II proper , when the evidence calls for it, to allow the jury to measure the material "by its appeal to the prurient interest not only of the average person but also of a clearly defined deviant group" . Hamling , supra at 128. In Hamling , supra at 128, the Court noted that : "Petitioners appear to argue that if some of the material appeals to the prurient interest of sexual deviants while other parts appeal to the prurient interest of the average person , a general finding that the material appeals to a prurient interest in sex is somehow precluded ." The Court TRIAL BRIEF OF CITY OF RENTON IN ORDINANCE ENFORCEMENT ACTION PAGE 9 relied on Mishkin in rejecting this contention, and stated in Hamling, supra at 129 : The District Court' s instruction was consistent with this statement in. Mishkin. The jury was instructed that it must find that the materials as a whole appealed generally to a prurient interest in sex. In making that determination, the jury was properly instructed that it should measure the prurient appeal of the materials as to all groups . 2. What factors does contemporary community standards play in the definition of prurient interest? In order to provide some objectivity to obscenity law, and avoid the problems with the old "Hicklin Rule" of judging obscenity by its impact on the young or sensitive, the Court has chosen carefully its wording . Miller , supra , at 24 , stated that the guidelines is "whether ' the average person , applying contemporary community standards' would find that the work, taken as a whole , appeals to the prurient interest" . Roth, supra, at 489 , stated "whether to the average person , applying contemporary standards . . . " . (Emphasis added . ) Miller , supra , at 30, also said : "triers of fact are asked to II decide whether ' the average person , applying contemporary community standards' would consider certain materials ' prurient". (Emphasis added) . It is important to note that the Court did not say that the "jury" was to decide whether the matter appealed to the prurient interest of the average person applying contemporary community standards, but rather that the jury determine whether the average person , if the average person applied those standards , would find the appeal to be to a prurient TRIAL BRIEF OF CITY OF RENTON IN ORDINANCE ENFORCEMENT ACTION PAGE 10 interest . The question is whether the appeal of the material would be found to be an appeal to a generally erotic or shameful interest in sex, whether that interest was that of an average person or that ' of a deviant class . This subtle distinction is not a harmless one and is important . If a court were to charge a jury that they must find the matter obscene , if at all , only when it appeals or excites a shameful or morbid interest in an average person or in the jury, then confusion would result and the whole purpose of obscenity law would be thwarted . Smith , supra , 431 U . S. , at 301 -02 , made clear that prurient appeal and patent offensiveness were to be judged by "the average person applying contemporary community standards" . In Pinkus , supra, 436 U. S. , at 300-01 , the Court Stated : Cautionary instructions to avoid subjective personal and private views in determining community standards can do no more than tell the individual juror that in evaluating the hypothetical "average person" he is to determine the collective view of the �I community, as best as it can be done . Pinkus , supra, at 298, 300, held that it was the adult !i community which was to be considered . Many cases have held that obscenity is not to be determined by its effect only on a "sensitive" , "insensitive" , "prudish" , or "tolerant" person but on the "average" person who comprises the synthesis of the entire adult community, including those people. See : Pinkus , supra , at 304 ; Miller , supra , at 30 , 30 ; Roth , supra , at 489-90. See also: Schauer, The Law of Obscenity , at 67-77 TRIAL BRIEF OF CITY OF RENTON IN ORDINANCE ENFORCEMENT ACTION PAGE 11 (D . C. : B.N.A. , 1976 ) . As more fully set out below, the Supreme Court' s language in Roth, Mishkin , and Miller require the jury to determine whether the average person would consider certain material prurient , i. e . , whether that is the intended "appeal" of the work. In applying community standards , this average person' s viewpoint is applicable to both prurience and offensiveness . It is not unlike deciding how th average person would measure the appeal of the material if the jury handed the average person a hypothetical yardstick and the "yardstick" was contemporary community standards . As stated in Smith v. U.S. , supra , 431 U. S. , at 302: "community standards simply provide the measure against which the jury decides the questions of appeal to prurient interest and patent offensiveness" . Closely connected to the inappropriateness of expert testimony is the appropriateness of allowing jurors and courts I to construct this community standards "yardstick" out of their own knowledge of the views on candor and decency of their neighbors in the community. This is analogous to the use of character evidence in other cases, where a character witness testifies not on his opinion of the defendant's vercity and reputation but on the witness' s knowledge and familiarity with the defendant's reputation for veracity which exists in others in the community as a. whole . The witness does not say, "I know hi's a fine guy" , the witness is permitted only to say , "everyone knows he' s a fine guy. " The Court in Smith , supra, at 302, repeated the language TRIAL BRIEF OF CITY OF RENTON IN ORDINANCE ENFORCEMENT ACTION PAGE 12 8/OZ/90 SZVG NII2i of Hamling v. United States , 418 U. S. 87, at 104-05 (1974) , where the Court held: A juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination , just as he is entitled to draw on his knowledge of the propensities of a "reasonable" person in other areas of the law. Hamling , supra, at 105 , also said it another way by stating, "our emphasis on the ability of the juror to ascertain the sense of thee 'average person , applying contemporary community standarGs/' without the benefit of expert evidence" . That the geographical area comprising the "community" need not be national , or even statewide , is evident . The preferred area is that from which the jury is drawn , in order to allow them as much freedom from confusion in using their own knowledge of the standards . Miller , supra , at 30-32 , sought to minimize the jury' s need to deal with an "abstract formulation" by allowing less than a national standard. As explained in Hamling, supra , at 105 ; "Our holding in Miller that California could consitutionally proscribed obscenity in terms of a ' statewide' standard did not mean that any such precise geographic area is required as a matter of constitutional law" . In Jenkin v. Georgia, 418 U. S. 153, at 157 (1974) , the Court approved of a charge that did not specify any geographical size for the "community" : We agree that the Supreme Court of Georgia' s implicit ruling that the Constitution does not require that juries be instrcted in state obscenity TRIAL BRIEF OF CITY OF RENTON IN ORDINANCE ENFORCEMENT ACTION PAGE 13 cases to apply the standards of a hypothetical statewide community . Miller approved the use of such instructions ; it did not mandate their use . What Miller makes clear is that state juries need not be instructed to apply "national standards ." We also agree with the Supreme Court of Georgia ' s implicit approval of the trial court's instruction directing jurors to apply "community standards" without specifying what "community ." Miller held that it was constitutionally permissible to permit juries to rely on the understanding of the community from which they came as to contemporary community standards , and the States have considerable latitude in framing statutes under this element of the Miller decision . A State may choose to define an obscenity offense in terms of "contemporary community standards" as defined in Miller without further specification, as was done here , or it may choose to define the standards in more precise geographic terms, as was done by California in Miller. In Hamling, supra, at 105-06 , however , the Court suggests that the better practice is to employ the vicinity of the area the jury is drawn from as the geographical "community" : The result of the Miller cases , therefore , as a matter of constitutional law and federal statutory construction, is to permit a juror sitting in obscenity cases to draw on knowledge of the community or vicinage from which he comes in deciding what conclusion "the average person, applying contemporary community standards" would reach in a given case . Since this case was tried in h the Southern District of California, and presumable jurors from throughout the judicial district were available to serve on the panel which tried petitioners , it would be the standards of what "community" upon which the jurors would draw. But this is not to say that a District Court would not be at liberty to admit evidence of standards �I existing in some place outside of this particular district , if it felt such evidence would assist the jurors in the resolution of the issues which they I( were to decide . Using the vicinage as the community would not thereby shelter the jury from receiving relevant evidence on standards • statewide nor preclude evidence on the acceptance or obscenity TRIAL BRIEF OF CITY OF RENTON IN ORDINANCE ENFORCEMENT ACTION of the specific material in other parts of the community. In fact , this type of "evidence concerning the ' degree of public acceptance of the material in the United States'" was provided for in the Model Penal Code, Section 251 . 4(4) (d) . See: Model Penal Code and Commentaries , Part II, pp. 480, 505, (Phila: A.L. I . , 1980) . In Paris Adult Theatre v. Slaton , 431 U . S . 49 , at 56 ( 1973) , the Court held that once the allegedly obscene material is placed in evidence , the jury can decide all facets of the test on the application of their own knowledge , without the need for expert testimony. As stated by the Court at page 56 : Nor was it error to fail to require "expert" affirmative evidence that the materials were obscene when the materials themselves were actually placed in evidence . . . . the films , obviously , are the best evidence of what they represent . The court expanded on this concept in Kaplan v . California, 413 U.S. 115, at 121 (1973) : We also reject in Paris Adult Theatre I v . Slaton , I� . . .any constitutional need for "expert" testimony on 11 behalf of the prosecution, or for any other ancillary evidence of obscenity, once the allegedly obscene material itself is placed in evidence . Paris Adult Theatre I, 413 U. S. at 56, 37 L. Ed 2d at 456 . The defense should be free to introduce appropriate expert testimony, see Smith v. California, 361 U. S. 147, 164-65, 4 L.Ed 2d 205 , 80 'I S. Ct . 215 ( 1959) (Frankfurter, J. , concurring) , but in "the cases in which this Court has decided obscenity questions since Roth, it has regarded the material as sufficient in themselves for \the determination of the question . " Ginzburg v. United States, 383 U. S. 463 , 465, 16 L.Ed 2d 31 , 86 S. Ct . 942 ( 1966 ) . See United States v. Groner , 479 F .2d 577, 479-586 (CA 5 1973) . The purpose and misuse of expert testimony was mentioned TRIAL BRIEF OF CITY OF RENTON IN ORDINANCE ENFORCEMENT ACTION by the Court in Paris Adult Theatre , supra , at 56 , footnote 6 : This is not a subject that lends itself to the traditional use of expert testimony. Such testimony is usually admitted for the purpose of explaining to lay jurors what they otherwise could not understand. . .No such assistance is needed by jurors in obscenity cases ; indeed the "expert witness" practices employed in thse cases have often made a mockery out of the otherwise sound concept of expert testimony. . . "Simply stated , hard core pornography. . . can and does speak for itself . " . . . We reserve judgment, however , on the extreme case , not presented here, where contested materials are directed at such a bizarre deviant group that the experience of the. trier of fact would be plainly inadequate to judge whether the material appeals to the prurient interest . . . (Citations omitted. ) The limitations on the admissibility of evidence lie in the broad discretion of the trial court , as evidenced by the many rulings upheld by the Court excluding comparables , expert witnesses , and other evidence in Hamling v. U. S. , supra , at 124-27. See also: Long v. 130 Market Street , 440 A. 2d 517 , 521 (Superior Ct . , Pa . , 1982) , where the court refused testimony of "expert" as to his knowledge of availability of similar pornography elsewhere in the state. TRIAL BRIEF OF CITY OF RENTON IN ORDINANCE ENFORCEMENT ACTION PAGE 16 - . -, ,--- 0 --,-, PLEASE PRINT OR TYP ALL INFOF_.... ON. �- ,,;,1// File Original Application with the APPLICATION FOR ANNUAL FOR OFFICE. USE ONLY: City. Keep Copy or your records. GENERAL BUSINESS LICENSE LICENSES'ARE DUE BY JANUARY 31st Cam Iflc?t'1'TON CODE EACH YEAR.' . CITY OF• RENTON �+- ,...., New . Re w J iccnsc 72 if a new business, the license is FINANCE DEPARTMENT + f nn(71 I i due by opening date. Contractors ! •' 1 $_ v�e ICY."4.3 /g r not located in the City may renew 200 MILL AVENUE SOUTH i I -"Ar ount ! rilow.paid Date Initial , on commencement of work in the City. • ')aU Licenses arc not prorated. All RENTON, WASHINGTON. 98055 • Get.-� licenses expire December 31st. APPROVED - Building Division 235-2608 FEE MUST ACCOMPANY APPLICATION. . ' STATE TAX #y_k,QQ_3ov_�,�s rj, i A1'1T12(517LU - 171.7e Department . 1. Business Name C/�ii•l-x"i^ (TN_i.c.)(-!.1 e':> G� 2. Business Address ,7 Q ill , ?y',- T, if7 S e.il�ort' .:. .. •Wa. ifls /}c'aS S :Number,,' ' Street • • . City State Zip Code 3. Mailing Address ' (IF DIFFERENT) Number or Box . City ,• State Zip Code 4. Business Phone f.2.24,-•(u957,57- 5. State License ' ')— 6—7 qe '' 6. 'Opening date in' City..Jr,e 6"�'. '/,ij' 7. Check one: /_7 Corporation /_7 Partnership L Individual Owner , ' 8. Check one or more boxes that apply to your business: • 1.-7 Contractor. / 7 Home Business /-7 Office : /✓ Sales /? Industry-Manufacture /? Services ' /-7 Hotel-Motel /'Institution-Education 9. Describe in detail, the type of business; including any' special processes''o'r special'.equipment: C_ '7- r 5 c. re.--ir � Lec. / Acis,'ei ,c l-c /a of �,e' ' c.cli'f/ is/o,i -4 r a ic.)e./er�, �4 6 el . .�//Y 1 'e •V'I c-r+ 'J r ' 10. List the Name, Home •Address, Phone and Title of OWNERS'PARTNERS or CORPORATION OFFICERS .of business. . �1)0v161(.jj 0 R (�to9 e'2 &TO/3C/ / -f ve. ,C. ,�rn7�}7ie WfaE JI ��3"-�e- rl�.. i . 11. Insert below the total number of empoyees (including owners);, :the; license 'fee, 'penalty, if• due, and the total fee due. Businesses outside the City Limits, count only those employees working in the City. Penalty Fee Schedule for failure to pay License Fee within thirty (30) days of date due is 5% of the license fee for the first month and an additional'5% for each suceeding month, but not exceeding 25%. RATE BASIC FEE ' No. EMPLOYEES , LICENSE FEE 'PENALTY TOTAL FEE DUE' A. 1 through 5 Employees '$ 40.00 'lVrt'e" - y0. B. 6 through 10 Employees 60.00 ' • C. 11 through 20 Employees 120.00 V. 21 through 100 Employees: 240.00 Plus $5.00 per employee ' ' ' over 21 in number. • ' E. 101 through 200 Employees: 640.00 ' Plus $3.50 per employee i over 101 in number. , • • F. 201 or more Employees: 500.00 ' . Plus $3.00 per employee - over 201 in number. . 12.' I hereby certify that the statements and information furnished by me, on this application are true and complete, to the best of my knowledge. , Signature /0)--i2ereec: R ih-c.7rXX Title ( 7.0.11al c�,ec. .�p_,/i•�' Date ,:2,/i ,c> . } • Av N. 1 2 3 4 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 5 CITY OF RENTON, a municipal ) corporation, et al. , 6 " ) 7 vs ) NO. 82-2-02344-2 ) 8 PLAYTIME THEATRES, INC. , a ) SECOND JOINT STIPULATION Washington corporation, ) RE: MARSHALLING OF EVIDENCE g et al. , ) ) 10 ) 11 COME NOW the Plaintiffs, by their attorneys of record, 12 and all Defendants except Defendants FEY and MARIS, by JACK R. 13 BURNS, their attorney of record, and stipulate as follows 14 regarding the marshalling of evidence to be presented to the • 15 Court and jury in this matter : 16 1. The parties agree that the following ten (10) films 17 are an accurate representative sample of the films which have 18 been continuously exhibited at the Renton Theater, 507 South , 19 Third Street, Renton, King County, Washington, since January ,0, 20 1983, through and inclusive of the date of trial herein: 21 Deep Throat 1 evil In Miss Jones 22 vPandora' s Mirror ✓The Little French Maid 23 Up and Coming Taboo II 24 /Debbie Does Dallas Body Talk 25 San Fernando Valley Girls Society Affairs 26 27 ////////// 28 ////////// SECOND JOINT STIPULATION RE: WARREN & KELLOGG. P.S. ATTORNEYS AT LAW MARSHALLING OF EVIDENCE - 1 ,00 SO. SECOND ST., P. O. SOX 626 RENTON, WASHINGTON 98057, 255-8678 C c 1 2. The parties further stipulate, therefore, that in order 2 for the Plaintiffs to bear their burden of proof herein that the 3 Plaintiffs need not exhibit to the Court and jury all of the films 4 which have been exhibited at the Renton Theater since January 20, 5 1983. Furthermore, the parties stipulate that the exhibition 6 to the Court and jury of any films other than the films listed 7 in Paragraph 1 above would constitute cumulative evidence of 8 the films exhibited by the Defendants at the Renton Theater, as- 9 474-/ o 10 3. The parties further reiterate their previous agreement 11 that video tape copies of any of the films which have been 12 exhibited at the Renton Theater shall be admissible into evidence 13 as fair and accurate representations of the actual films which 14 have been exhibited, without objections as to best evidence or 15 upon any other ground. 16 4. The parties further agree that this Second Joint 17 Stipulation Re: Marshalling of Evidence shall specifically 18 revoke the Joint Stipulation Re: Marshalling of Evidence dated 19 September 8, 1983 and filed herein. The Defendants hereby 20 specifically withdraw their objection that the Court and jury 21 must view all of the films which have been exhibited by the 22 Defendants at the Renton Theater since January 20, 1983. 23 DATED: September 2,1 , 1983. 24 \ JACK R. BURNS 4 AWRENCE J. N 26 cif Co nsel for all Defendants - of Counsel r Plaintiffs except Defendants FEY and MARIS 27 -- 28 SECOND JOINT STIPULATION RE: MARSHALLING OF EVIDENCE - 2 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. BOX 626 RENTON, WASHINGTON 98057 255-8678 • OF R4 A THE CITY OF RENTON o tJ p4 z POLICY DEVELOPMENT DEPARTMENT • 235-2552 wIL n MUNICIPAL BUILDING 200 MILL AVE.SO. RENTON,WASH.98055 0,9,0 Pam, 94, FD SEP1 BARBARA Y. SHINPOCH MAYOR MEMORANDUM September 15, 1983 TO: Lawrence J. Warren, City Attorne FROM: David R. Clemens Policy Development Director j RE: DEPOSITION, FORBES LITIGATION I have reviewed the deposition taken September 7th, and the revisions are extremely minor and are noted on the photo copies inserted in the'•deposition document. If you have any questions, please feel free to contact me at your convenience. DRC:wr Attachment • ' yl III • IIII I INTER—OFFICE MEMO TO: Larry Warren, City Attorney DATE September 14, 1983 FROM: David R. Clemens, Policy Development Driect • 1. RE: FORBES DATA Attached are the latest data sheets for the initial 16 films. I decided not to do the various sorting options until you decide what it is we really need,, or if you want significant changes to the text. Once any changes are made, then I can do the sorting and save a whole bunch of time over trying to edit each of the sorted tables later. If you are still serious about watching and cataloging all 60+ films, we have to find an acceptable way of doing it. I can't afford to spend the time necessary to watch all of the films and still do any other work. I would suggest that if all of the films must be done that I bring the VCR in and we set up .a team to watch the films and take down the data. I don't see any reason why we can't come up with an acceptably accurate process which I can testify to. I just can't afford to spend another 75 hours at home watching this stuff. There just aren't enough hours in the day to do that alone! By the way, 16 films involved 41 hours total, with 28 of those on my own time. Some of those hours were on the computer, however. 1 . 4 MISS NARF'RET & NANCY 3 PANDORA' S MIRROR 327 . __: 6 C) 0. 9 3 PANDORA' S MIRROR 333 337 4 1 0. 6 NANCY BARES ALL 3 PANDORA' S MIRROR 337 352 15 8 2. 1 CARLOS & LANCE & NANCY 3 PANDORA' S MIRROR 352 381 29 8 4. 1 CARLOS, NANCY, LANCE, DRIVER 3 PANDORA' S MIRROR 381 402 21 C) _ 3 PANDORA' S MIRROR 402 420 18 6 2. 6 LIZ CONSOLES PETER 3 PANDORA' S MIRROR 420 428 8 7 1 . 1 LIZ CONSOLES PETER 3 PANDORA' S MIRROR 428 455 27 2 3. 8 L_I Z CONSOLES PETER 3 PANDORA' S MIRROR 455 460 5 6 0. 7 LIZ CONSOLES PETER 3 PANDORA' S MIRROR 460 517 57 0 8. 1 3 PANDORA' S MIRROR 517 523 11 4 1 . 6 BONNY LAMAY 3 PANDORA' S MIRROR 528 540 12 6 1 . 7 BONNY & THE STAR 3 PANDORA' S MIRROR 540 555 15 3 2. 1 MS MELON & THE SECRETARY 3 PANDORA' S MIRROR 555 566 11 5 1 . 6 BONNY & THE STAR 3 PANDORA' S MIRROR 566 586 20 2 2. 8 BONNY & THE STAR 3 PANDORA' S MIRROR 586 611 25 0 3. 6 3 PANDORA' S MIRROR 611 623 12 11 1 . 7 THE HELL FIRE CLUB 3 PANDORA' S MIRROR 623 627 4. 6 0. 6 THE HELL FIRE CLUB 3 PANDORA'S MIRROR 627 635 8. 5 1 . 1 THE HELL FIRE CLUB 3 PANDORA' S MIRROR 635 673 38 8 5. 4 SEAT FIT FOR A QUEEN 3 PANDORA' S MIRROR 673 684 11 C► 1 . 6 3 PANDORA'S MIRROR 684 688 4 6 0. 6 PANDORA & WEIGHTLIFTERS 3 PANDORA' S MIRROR 688 7s i 1 13 8 1 . 8 PANDORA & WEIGHTLIFTERS PANDORA' S MIRROR 701 703° 2 0 0. 3 3 PANDORA' S MIRROR 703 100►C► E :School located at 314 South Fourth Street , Renton , King i County, Washington . ANSWER: • 6 . i y INTERROGATORY ' NO . 6: • i ' If you deny that the Renton. Theater above described is located i T within 1 ,000 feet from Renton High School located at 400 South + Second Street , Renton , King County , Washington , or within 3 1 ,000 feet from St . Anthony's Parchial School located at 314 , , 4 South Fourth Street , Renton, King County, Washington, then 9 state the number of feet- from the Renton Theater property , _ . more particularly described- -above, to the nearest portion of a 3 lot which is a public or private school use . 1 ANSWER : "i 1 . a 2 4 P 1 e 3 =i 4 ,i. 5 11 p f 6 REQUEST FOR ADMISSION NO. 10: 'I� 1 7 . .Admit that since on or about January 20, 1983 and thereafter , 1 ''' that defendant Playtime Theatres , Inc . , has exhibited , or 8 caused to be exhibited , for observation by patrons and possessed for the purpose of such exhibition , the following ',I ' 9 motion picture films which _.have been exhibited at the Renton Theater located in Renton , King County , Washington on the _ 1 0 below listed dates : ! ' . { YI 1 . PROGRAM DATE EXHIBITED A 2 1 Deep Throat 01/20/83 through 02/10/83 LDevil In Miss Jones . 3 3 Blue Jeans 02/11/83 through 02/17/83 j . 1 4 1 Naughty Network t ' 1 5 • S American Desire 02/18/83 through 03/03/83 jai' • '' All American Girls t t. 6 \ • [, `i 9 Foxholes 03/04/83 through 03/10/83 • 7 ( Rand , The Electric Lady x `.' 8 1 Scoundrels 03/11/83 through 03/17/83 . WARREN & KELLOGG, P.S. REQ. FOR ADMISSION , INTERLOCKING - ATTORNEYS AT LAW •.- INTERROG. AND REQ . PRODUCTION _9_ 1oo SO.SECOND Sr..P.O.BOX 626 II t _ RENTON.WASHINGTON 98057 1 . Cn:o^::rv2rz•»....r.,;!:cs.'k:r:-cs^frxF..no;,...nr.--r_:,.;c�.,r_,,.., a....v-..:-."T.?,_-"'a:^..a-._........ _. _. -,. _-.._?7�.--iC+.`.-"':.—. _..: ...-. .. _--- .. .. .... -..-, V',- t.. -- ..,. ...., + I- .. •: , _. . Ai( --------,,T. . , . M Foxtro� 2 03/18/83 through !! Irr,4 stible 3 .ySc,7eherezade , 1001 Erotic Nights 4 03/25/83 through --43 Satisfactions 5 0 Pandora's Mirror 6 )( Debbie Does Dallas 04/01 /83 through 1t Debbie Does Dallas II 7 04/08/83 through 11 Little Girls Lost g i 8 f: Ring of Desire g It The Dancers 04/15/83 through le Between the Sheets '10 SI Daddy' s Little Girl 04/22/83 through 11 ' sL The Little French Maid ' 12 ' i Every Which Way She Can 04/29/83 through al Night Life 13 sr Expose Me Now 05/06/83 through 14 , 24 Stormy 15 I Young Doctors In Lust 05/13/83 through 1,2 Intimate Explosions 0 Up and Coming 05/20/83 through Nights 18 Up, and Comming 19 3• Insatiable 05/27/83 through C 20 31 Ps and Boots 21 3� a uc ion Cindy 06/03/83 Pee phol 3 through pi us 22 .3 Bodyes Talk �3 Jr Little r 06i10/83 through Girls Blue 06, 3t The Best of . II 24 Alex De Re 3? Tinsel Town nZY 06/17/83 25 , , 32' Princess Seka through 06/� 26 0.31 Skin Deep gee Bab 6/�4/83 throu h g ?7 e I 06/3 4/ Doing It O OT/01/8 OT/08g 3 through 0BabY Cakes 7/0 7 REQ, FOR NIVT�C. �83throughINTERROG. AND /E • . RODTON`�G- 10., 1 2 4 Nasty Girls 07/15/83 through 07/21/83 f' Little Dariin' s 3 4r San Fernando Valley Girls 07/22/83 through 07/28/83 4 fg Brief Affair 5 41 Hot Dreams Commencing 07/29/83. Trwteoof Bfq/I 4. Society Affairs 49 ile-k «k,.s �`�`b`'=� £?c u gls /83 -1,-tezoO&M' Slit 18 --S7b 04z,.s.rr2 Y S/ ocrs. g 7w12e0•?- 8/ t*/ 81 Sz74,0s CAhms€Q- Grre-r-Cie,�tee-/•..� 4- ��19183 T,ct�,cad �/is'/F3 7- .ss— 7.a amo�r g/2c /g/ 83 �r e— 4-tie- ,c 9/, 2ectrrt 9//s"//3 .45-04E- /.✓ CITY OF RENT( T N? 2944 FINANCE DEPARTMENT RENTON, WASHINGTON 98055 % 9O 19 0� RECEIVED OF OQJr-Q. C ibtA 0 CO TOTAL I O OC) OA) 1-! •-' ■ ' • (LL1f(B irt IN THE SUPERIOR COURT OF THE STATE. OF WASHINGTON IN AND FOR THE COUNTY OF KING CITY OF RENTON, et al, No. 82-2-02344-2 Plaintiffs, vs . SUBPOENA PLAYTIME THEATRES, INC. , et al, ). Defendants THE STATE OF WASHINGTON, to: DAVID CT,EMENTS GREETINGS: YOU ARE HEREBY COMMANDED to be and appear at the offices of JACK R_ BURNS, 10940 N.E_ 33rd Place, Suite 107 . Bellevue, ,Washington, on , the 7th day of September, 1983 at the hour of 1 : 30 o'clock p .m. , of said day, then and there to testify as a witness at the request of the defendants for purposes of estahl ishing their case, in the above-entitled cause, and to remain in attendance upon the undersigned or other Notary Public until discharged;and I-EREIN FAIL NOT AT YOUR PERIL WITNESS my hand and official seal this Zy day of , 19 712, Office, Post Office Address and Telephone.of Attorneys Issuing Subpoena: • JACK R. BURNS . •w YC 10940 N.E. 33rd Place Suite 107 No . ' • blic in and for the State of Washington Bellevue, Washington 98004 BURTON, WILKERSON & PHELPS, INC. COURT REPORTERS Seattle Office Eastside Office 1206 Bank of Calif.Center 911 Old Nat'l Bank Bldg. DX03 SUbpO@naSeattle,WA 98164 Bellevue,WA 98004 (206)623-7178 (206)454-4808 OF RA, OFFICE OF THE CITY ATTORNEY• RENTON,WASHINGTON O C.) j 'Z POST OFFICE BOX 626 100 S 2nd STREET • RENTON. WASHINGTON 98057 255-8678 n mom '" LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY 04 Qom' DAVID M. DEAN, ASSISTANT CITY ATTORNEY °q � August 25, 1983 MARK E.BARBER, ASSISTANT CITY ATTORNEY �TFD SEP.1 * ZANETTA L.FONTES, ASSISTANT CITY ATTORNEY MARTHA A.FRENCH, ASSISTANT CITY ATTORNEY CITE' OF RENTON AUG 2 J 1983 . TO: MAYOR BARBARA SHINPOCH and POLY MEMBERS OF CITY COUNCIL DEVELOPMENT DEPT, FROM: Daniel Kellogg, Assistant City Attorney RE: City of Renton vs . Playtime Theatres, Inc. , et al. On August 23, 1983 Larry and I attended a Pre-Trial Status Conference in the Superior Court litigation on Playtime Theatres, Inc. This matter was heard before Judge Nancy Ann. Holman, the Judge to which our case has been pre-assigned to hear all pre-trial motions and the trial itself. We had strongly supported the pre-assignment of our case although this is a very unusual practice. Pre-assignment means that we will not have to introduce this complicated case before each judge before a motion is argued. Judge Holman will become intimately familiar with this case just as Larry and I have. This should greatly assist the economical presentation of the matter. We are pleased with Judge Holman' s appointment as the pre- assigned judge. We have always regarded her very highly as a competent trial judge. Her conduct of the Status Conference on the 23rd indicated that this confidence is well placed. Unfortunately Judge Holman is scheduled for the entire month of September as the Civil .Motions . Judge. This means that our previously scheduled trial date of September 19, 1983 could not stand. We objected. to the continuance because we have to attempt to bring this matter on for trial at the earlist possible date to avoid a prior restraint argument by the Defendants. Notwithstanding our objection, Judge Holman continued the trial to, start on October 10, 1983 at 9 : 30 A.M. ` Actually, there will be a series of procedural motions which will start on October 10 and possibly last for several days. The trial may not begin until a week or so after that date. • MAYOR SHINPOCH & MEMBER OF CITY COUNCIL Page 2 August 25, 1983 We are in the process of discovering the evidence for presentation by our side and to rebut the evidence which we anticipate will be presented by the Defendnats. We will keep you advised of further developments in this regard. Daniel Kellogg DK:bjm cc: City Clerk David Clemens James J. Clancy " I OF R,4 OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON o `/. POST OFFICE BOX 626 100 S 2nd STREET I RENTON. WASHINGTON 98057 255-8678 o 0 LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY "90 G3 DAVID M. DEAN, ASSISTANT CITY ATTORNEY 0-r SEP E���P MARK E. BARBER, ASSISTANT CITY ATTORNEY Fp ZANETTA L.FONTES, ASSISTANT CITY ATTORNEY August 16, 1983 MARTHA A.FRENCH, ASSISTANT CITY ATTORNEY TO : Dave Clemens , Policy Development Director FROM: Mark E. Barber , Assistant City Attorney RE : City of Renton vs Playtime Theatres , Inc . Dear Dave : Enclosed please find approximately 21 photographs which I was able to take of the Exhibits at the Federal Courthouse in Seattle . There are so many photos because I flipped up the overlays and took photos of each outlined area upon the maps , commencing with the basic chart and then adding overlays . I hope these photographs will assist you in preparing the new exhibits for Superior Court. I have the negatives so if you need larger prints of these photographs , please do not hesitate to contact me. 'i Mark E. Barber •,I MEB :nd Encl . cc : Dan Kellogg 'I OF RA, � ,� OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON� U 4$ Z A/w POST OFFICE BOX 626 100 S 2nd STREET • RENTON.WASHINGTON 98057 255-8678 imIL LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY 0,94 Qom. DAVID M. DEAN, ASSISTANT CITY ATTORNEY 9'9T SEP E��� MARK E.BARBER, ASSISTANT CITY ATTORNEY Eo June 27, 1983 ZANETTA L.FONTES, ASSISTANT CITY ATTOR�EY . .I TO: Barbara Y. Shinpoch, Mayor Members of Renton City Council FROM: Daniel Kellogg, Assistant City Attorney '.I RE: City of Renton v. Playtime Theatres , Inc.. Dear Madam. Mayor and Members of the Council : 1 This is to supplement our previous Memo regarding the above captioned matter. Judge Ishikawa denied Playtime's motions to dismiss our Complaint. We are proceeding to prepare for the matter of the Preliminary Injunction on July 11 , 1983 . Daniel ellogg DK:nd . • . cc : City Clerk . Dave Clemens li,I 'II 1 2 3 5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY OF RENTON, a municipal ) corporation; LAWRENCE J. ) 7 WARREN; City Attorney of the ) NO. 82-2-02344-2 City of Renton; STATE OF ) 8 WASHINGTON, ex rel. LAWRENCE ) STATEMENTS OF FACTS RE J. WARREN, City Attorney for ) PLAINTIFFS' OPPOSITION TO 9 the City of Renton , ) DEFENDANTS' MOTIONS FOR ) DISMISSAL UNDER 10 Plaintiffs , ) ) 11 vs . ) ) 12 PLAYTIME THEATRES, INC. , a ) CITY OF RENTON Washington corporation; KUKIO ) 13 BAY PROPERTIES INC. , a ) JUN 2 3 1983 Washington corporation; ROGER ) . 14 H. FORBES and JANE DOE FORBES , ) POLICY DEVELOPMENT DEPT. husband and wife; ROBERT B. ) 15 McRAE and ELIA C. McRAE; and ) DOES 1 THROUGH 10, ) 16 ) Defendants . ) 17 ) 18 The following statement of facts is submitted in support 19 of the Plaintiffs' memoranda in opposition to Defendants' 20 motion for dismissal of Plaintiffs' first cause of action for 21 declaratory judgment , and Defendants' motion for dismissal re 22 RCW 7. 48. 050-. 100, both of, which motions are based upon CR 23 12(b) (6) . The following facts are essential to a proper 24 understanding of the legal principles involved in these 25 motions for dismissal: 26 ( 1 ) On June 24, 1976 the United States Supreme Court 27 decided the case of Young vs. American Mini-Theatres, Inc. , 28 STATEMENTS OF FACTS RE PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTIONS WARREN do KELLOGG,P.S. FOR DISMISSAL PAGE 1 ATTORNEYS goo So..SECOND ST.,r.o.sox e26 RENTON,WASHINGTON 98057 1 1 427 U.S. 50, 96 S.Ct . 2440, 49 L. Ed . 2d 310 (1976) , upholding II 2 a Detroit zoning ordinance which prohibited under the power of 3 the zoning code the use of certain properties for specified 4 adult entertainment land uses . l' 5 (2) In May of 1980, the City of Renton had no theaters 6 within its jurisdiction which exhibited sexually explicit 7 films . The. City Council began consideration of the enactment ,i II 8 of zoning legislation dealing with adult entertainment land 9 uses. Thereupon, a committee of the City Council held public 10 hearings on the subject b 'ect matter and received testimony I�11 concerning the adverse affect of adult entertainment land uses 12 upon family oriented land uses within the City. On April 13, 13 1981 the City Council enacted Ordinance No . 3526. A copy of 14 Ordinance No. 3526 is attached hereto as Attachment "A" and by 15 this reference incorporated herein. The ordinance followed 16 the Young case and the decision of the Washington State 17 Supreme Court in Northend Cinemas vs . Seattle, 90 Wn . 2d 709, 18 585 P.2d 1153 (1978) and added definitions of "adult motion 19 picture theater" , "specified sexual activities" , and 20 "specified anatomical areas" . The ordinance prohibited the 21 location of an "adult motion picture theater" within the 22 following distances from the following specified uses or 23 zones : 24 One thousand feet ( 1 , 000 ' ) of any residential zone or any single family or multiple family 25 residential use . 26 One mile of any public or private school . 27 One thousand feet ( 1 ,000 ' ) of any church or other religious facilities or institution. 28 STATEMENTS OF FACTS RE PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTIONS WARREN&KELLOGG,P.S. ATTORNEYS AT LAW FOR DISMISSAL PAGE 2 nno SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 eee_11te11 1 One thousand feet ( 1 , 000' ) of any public park or �I P-1 (Public District) zone . 2 (3) In December of 1981 or January 1982, Defendant 3 Kukio Bay Properties, Inc . ( "Kukio") entered into an agreement 4 to purchase the Roxy Theater and the Renton Theater which are 5 located across the street from each other in downtown Renton. 6 j . The theaters were purchased with the intention of leasing the 7 . same to Playtime Theatres, Inc . ( "Playtime") the operating 8 company which intended to use the premises for the purpose of 9 exhibition of adult motion picture films . Both Kukio and 10 Playtime are owned by a single shareholder, Roger H. Forbes . 11 (4) On January 20, 1982, six (6) days prior to the 12 closing of the purchase of the theaters, Playtime and Kukio 13 filed an action in the United States District Court for the 14 Western District of Washington at Seattle entitled "Complaint 15 for Declaratory Judgment and Preliminary Injunction" , alleging 16 federal jurisdiction under 28 U. S. C. Section 1131 (a) , 42 17 U. S. C.. Section 1983, 28 U. S. C. Section 2202, and Rule 57 of 18 the Federal Rules of Civil Procedure , challenging the 19 constitutionality of Ordinance No. 3526. 20 (5) On January 29, 1982, Kukio and Playtime brought on 21 their motion for a temporary restraining order seeking a 22 restraint against enforcement of the ordinance which motion 23 . was denied by United States District Judge Walter T. McGovern 24 based upon report and recommendation of Magistrate Phillip K. 25 Sweigert . 26 (6 ) On February 9, 1982, Playtime and Kukio filed and 27 served a new complaint entitled "Amended and Supplemental 28 STATEMENTS OF FACTS RE PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTIONS WARREN&KELLOGG,P.S. ATTORNEYS TFOR DISMISSAL PAGE 3 1ooSO. ECONDSTARO OX626 RENTON,WASHINGTON 98057 1 Complaint for Declaratory Judgment and Preliminary Permanent 2 Injunction" which complaint raised a new issue under the 3 zoning ordinances of the City of Renton that a conditional use 4 permit must be obtained prior to the opening of an adult 5 motion picture theater. This allegation was made despite the. 6 fact that at the hearing on the motion for temporary ;' i 7 restraining order on January 29, 1982, David R. Clemens , 8 Director of Policy Planning of the City of Renton, had 9 testified to a contrary administrative interpretation; that is .II 10 that an adult motion picture theater was a permitted use under 11 the zoning ordinance as administered by the City of Renton, I � 12 subject only to separation from the uses specified in 13 Ordinance No. 3526. C ', 14 (7) On February 19, 1982, the City of Renton filed a I` 15 civil action in this court seeking a Declaratory Judgment that 16 Ordinance No . 3526 was constitutional as applied to the 17 proposed use of the Renton Theater as an adult motion picture 18 theater as alleged in Plaintiffs' Amended and Supplemental 19 Complaint . 20 (8) On February 22, 1982, the City of Renton filed in 21 the United States District Court a motion to Dismiss the 22 Plaintiffs' amended and supplemental complaint based upon the 23 filing of the action in the State Court for a Declaratory 24 Judgment to resolve the controversy between the City of Renton 25 . and Playtime and Kukio. The City argued, based upon a line of 26 Supreme Court cases , that where a city ordinance is 1 , 27 constitutional on its face and the civil rights issue involves II' , 28 STATEMENTS OF FACTS RE PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTIONS WARREN do KELLOGG,P.S. FOR DISMISSAL PAGE 4 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 Ieuc7a 1 important state civil interests , the federal claim must be 2 presented to the state court in the first instance where that 3 forum was available and the State had not waived its right to 4 have the matter resolved in the state court. The City further 5 argued that the state. judiciary must be presented with an 6 opportunity to consider and interpret the city ordinance and, II 7 if necessary, invoke a limiting construction because the 8 federal courts lacked jurisdiction authoritatively to construe 9 state legislation. Therefore , the federal complaint should be 10 dismissed for failure to state a claim upon which federal 11 relief could be granted based upon "abstention" grounds . The 12 Federal court declined to dismiss the federal lawsuit holding 13 that abstention was not appropriate . Judge McGovern filed his 14 order denying the City of Renton's Motion to Dismiss based 15 upon the report of the Magistrate on May 5, 1982. 16 (9 ) On March 8, 1982, Playtime and Kukio filed a 17 petition to remove the state court action to federal court. 18 Thereafter on March 12, 1982, the City of Renton filed its 19 objections to removal and Motion to Remand the state 'I 20 declaratory judgment action back to the state court . 21 ( 10) On March 18, 1982, Playtime and Kukio filed a �I 22 Motion to Dismiss the declaratory judgment state action which 23 had been removed to the federal court. On April 9, 1982, the 24 City of Renton's Motion to Remand and Playtime and Kukio' s 25 Motion to Dismiss the state court action came on for hearing 26 before Magistrate Sweigert . At the conclusion of the hearing, 27 the Magistrate stated in an oral opinion from the bench that 28 STATEMENTS OF FACTS RE PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTIONS WARREN do KELLOGG,P.S. ATTORFOR DISMISSAL PAGE 5 .SECON ST.,P.S AT .B 100SO.SECONDST.,�.O.SOX62i RENTON,WASHINGTON 96057 1 - - f 1 the state court action should be remanded and declined to 2 dismiss the action . However, the actual Order remanding the 3 declaratory judgment State action back to the State Court was 4 not entered until January 13, 1983. 5 ( 11 ) On May 3, 1982, the City Council of the City of 6 Renton enacted Ordinance No. 3629 which amended Ordinance 3256 7 to incorporate the meaning which the City had argued could be 8 given to the ordinance by a state court . A copy of Ordinance 9 No . 3629 is attached as Attachment "B" hereto and by this 10 reference incorporated herein. The principal changes were; 11 (A) the amending ordinance contained an elaborate 12. statement of the reasons for enactment of both Ordinance No. 13 3526 and Ordinance No . 3629 ; 14 (B) a definition of the word "used" was added; 1 15 (C) violation of the use provisions of the ordinance 16 was declared to be a nuisance per se to be abated by a civil 17 action and not by criminal enforcement; 18 (D) the required distance of an adult theater from a 19 school was reduced from one mile to one thousand ( 1 ,000' ) 20 feet; and 21 (E) a severability clause was added. The amending 22 ordinance, also contained an emergency clause and was to be �3 effective as of the date of its passage and approval by the 24 mayor. 25 ( 12) On May 4, 1982, the City of Renton filed a renewed 26 Motion for Dismissal, and on May 27, 1982 a Motion for Summary .I 27 Judgment under F.R. C. P. Rule 56. 28 STATEMENTS OF FACTS RE PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTIONS WARREN&KELLOGG,P.S. ' FOR DISMISSAL PAGE 6 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 I ,GE SALVE 1 ( 13) On June 14, 1982 , the City Council of the City of 2 Renton enacted a third Ordinance No. 3637 which was identical �I 3 to Ordinance No . 3629 in all respects except that the 4 emergency clause was deleted and the ordinance was to be 1 5 effective thirty (30) days following its publication. A copy 6 of Ordinance No. 3637 is attached as Attachment "C" and by 1 7 this reference incorporated herein. , 8 (14) On June 23, 1982, U.S. Magistrate Sweigert heard 9 City of Renton' s renewed Motion to Dismiss and its Motion for 10 Summary Judgment, as well as the Playtime and Kukio Motion for 11 Preliminary Injunction requesting restraint of the enforcement ,. 12 of the ordinances pending the disposition of the litigation . 13 On November 5 , 1982, Magistrate Sweigert filed his report and 1 14 recommendation recommending denial of the City of Renton's 15 Motion to Dismiss and Motion for Summary Judgment, and the 16 granting of a Preliminary Injunction pending the conclusion of 17 the litigation. On January 13, 1983, Judge McGovern entered 18 an order approving the report and recommendation of the �I 19 Magistrate . 1' 20 ( 15) From January 27, 1982 through January 19, 1983, 21 Defendant Playtime Theatres, Inc. had operated both the Roxy 22 Theater and the Renton Theater as general release motion � � .. 23 picture theaters . However, on January 20, 1983, Defendant 111 24 Playtime Theatres, Inc. commenced showing sexually explicit II 25 films at the Renton Theater and has continuously exhibited 26 sexually explicit films since that date . A list of the films 27 exhibited and the dates of exhibition are pleaded at paragraph :' 'i1 28 d, STATEMENTS OF FACTS RE PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTIONS WARREN do KELLOGG,P.S. FOR DISMISSAL PAGE 7 ATTORNEYS 100SO.SECOECONDST.,P.O.BOX 626 RENTON,WASHINGTON 98057 ' 1 13, page 6 , line 20 through page 7 , line 15 of the First 2 Amended and Supplemental Complaint filed herein by the 3 Plaintiff. Representative depictions of the content of a 4 portion of the films exhibited since that date are compiled as it 5 Time and Motion Studies attached as attachments to the 6 Declarations of Robert S. Perry and Robert McGuire which are 7 filed herein. Those declarations describe the manner in which 8 the Time and Motion Studies are prepared based upon 9 surveillance of the actual films exhibited at the theater . 10 ( 16 ) On February 18, 1983, Judge McGovern entered his 11 final order in the federal court reversing his previous 12 decision to grant the Preliminary Injunction, and finding that 13 the Renton Ordinance No . 3526 , as amended , was constitutional . 14 On April 29, 1983, Judge McGovern entered an order denying 15 Playtime and Kukio' s motion to alter or amend the final order, 16 and further denying a requested stay of the final order 17 pending appeal of the order to the Ninth Circuit Court of 18 Appeals . 19 ( 17) On May 19, 1983 , the Plaintiffs filed their First 20 Amended and Supplemental Complaint in this cause . The amended 21 complaint added additional allegations and causes of action 22 alleging the maintenance by the Defendants of a public 23 nuisance at the Renton Theater by reason of the exhibition of 24 sexually explicit and obscene motion picture films in 25 violation of the provisions of the City of Renton's zoning 26 code and state law. Plaintiffs further filed a Motion for 27 Preliminary and Permanent Injunction , which motion was noted 28 STATEMENTS OF FACTS RE PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTIONS WARREN do KELLOGG,P.S. FOR DISMISSAL PAGE 8 - ATTORNEYSATLAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 it 1 for hearing in this court on June 13, 1983. The object of the 2 motion was to restrain the Defendants from use of the Renton 3 Theater as an adult motion picture theater in violation of the 4 City of Renton's zoning code. 5 ( 18) In response to the ' public announcement that the 6 City of Renton intended to file an amended complaint in the 7 state court action, Kukio and Playtime filed their application 1,11 8 in the Ninth Circuit Court of Appeals for a stay of the final 9 order of Judge McGovern, which application was denied by a 10 panel of the Ninth Circuit Court of Appeals by order filed on 11 June 13, 1983. The order in its entirety reads as follows : 12 "Appellants' motion for a stay or injunction pending appeal is denied. Appellants have failed 13 at this time to establish the requisite balance of ii hardship and likelihood of success on appeal to 14 warrant relief requested." (Citation omitted) 'I 15 . ( 19) On June 3 , 1983, the Defendants once again filed a 16 petition for removal seeking to remove this state court action l 17 to federal court. Plaintiffs immediately filed objections to 18 removal and Motion for Remand, which motion was heard before 19 Judge John C. Coughenour. on June 16, 1983. At the conclusion 20 of the hearing, the federal court entered its order remanding 21 the state court action to this court based upon a want of 22 federal jurisdiction---the identical conclusion of Judge 23 McGovern on the prior remand. However, the Defendants' 11 24 improper removal of the state court action without federal 25 jurisdiction did have the effect of disrupting the hearing set 11 26 for the Plaintiffs' Motion for Preliminary Injunction on June 1 1 27 28 STATEMENTS OF FACTS RE PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTIONS WARREN&KELLOGG,P.S. T FOR DISMISSAL PAGE 9 100So SECONDYS STAP.o LAW FOR RENTON,WASHINGTON 98057 ,I 265-S678 1 13, 1983. Following remand , that motion has been reset by the II 2 Plaintiffs for July 11 , 1983. ' " 3 (20) On June 20, 1983, Defendant Playtime Theatres, 4 Inc. filed its motion requesting dismissal of Plaintiffs' ; .I 5 first cause of action for declaratory relief, and its motion 6 for dismissal of all sections of Plaintiffs' amended complaint i 7 which rely upon RCW 7. 48. 050-. 100, both of which motions are II' 8 based upon CR 12(b) (6) alleging failure to state a claim upon h 9 which relief can be granted . 10 DATED: June 24, 1983. • 11 Respectfully submitted , I , 12 13 „, DANIEL ELLOGG 14 of Attorneys for Plai ffs 15 . 16 17 18 19 jL 20 it 1 Ii 21 • 22 23 I • 24 25 I it 26 27 I i, 28 . STATEMENTS OF FACTS RE PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTIONS WARREN&KELLOGG,P.S. ATTORNEYS AT LAW FOR DISMISSAL PAGE 10 too so.SECOND ST.,P.O.BOX626 RENTON,WASHINGTON 98057 255-8678 • • M'i' CITY OF RENTON. WASHINGTON • . • ;� ORDINANCE NO. , 3526 • • • • • • AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON. • • RENTING TO LAND USE AND ZONING .. . . . THE CITY COUNCIL OF THE CITY OF RENTON'. WASHINGTON. DO . . ORDAIN AS FOLLOWS: • . SECTION I: Existing Section 4-702 of Title IV (Building • H., • Regulations) of Ordinance. No. 1628 entitled "Code of General Ordinances i; of the City of Renton" is hereby amended by adding the following • • subsections: j • 1. "Adult Notion Picture Theater": An enclosed building ` used for presentipg motion picture filt►s, video cassettes, cable television. or any other such visual media, . I distinguished or characterized i. by an emphasis on matter depicting, describing or relating to "specified ,1 sexual activities" or "specified anatomical areas" as hereafter defined, - I. -• for observation by patrons therein. • - 2. "Specified Sexual Activities": (a) Human genitals in a state of sexual stimulation / ,or arousal; • ii • (b) Acts of human masturbation, sexual intercourse • • • • .o= sodomy; • (c) Fondling or. other erotic touching of human genitals, il • pubic region, buttock or female breast. • 3. "Specified Anatomical Areas" (a) • Less than completely and opaquely covered human 11 • genitals, pubic region, buttock, and female breast below a point immediately above the top I of the areola; and • • (b) Human male genitals in a discernible turgid state, • even if completely and opaquely covered. i • CERTIFICATE •-1 - • I.the undersigned, (7Ecpee Q, riK . City of Renton, Washington, certify thet this lit a tn;e and con-act copy of.U.C.4lN4..e..C. ...g....3 svibed and Sealed L i /ride/of .W0'4. 19 Fa - - CR,• clt 'o . • .. . . . . SECTION II: There is hereby added a new Chapter to Title j - %.. IV (Building Regulations) of Ordinance 1o. 1628 entitled "Code of ' f . . - General Ordinances of the City of Renton" relating .to adult motion 1 picture theaters as follows: .• • : .,. A. Adult motion.picture theaters are prohibited within the area circumscribed by a circle which has a radius consisting I . j of the following distances from the following specified uses .or zones: 1i • 1 1. Within or within one thousand (1000') feet of any . residential zone (SR-1. SR-2, R-1, S-1, R-2, R-3. ' . R-4 or T).. or any single family or multiple family 1 • • ' residential use. •• •• •• • y. 2. One (1). mile of any public or private school • • .' 3. One thousand (1Q00') feet of any.church or other ,.. . . religious facility or institution • 1 4. One thousand (1000') feet of any public park or P-1 • . -zone. . B. • The distances provided in this section shall be measured by following a straight line, without regard to intervening- buildings. from the nearest point of'the property parcel upon which the proposed use is to be located, to the nearest point of the parcel of property I, or the land use district boundary line from which the proposed land use is to be separated. SECTION III: • This Ordinance shall be effective upon its passage, approval and thirty days after its publication. PASSED BY THE CITY COUNCIL this 13th day of April . 1961 Delores A, eac, ity Clerk APPROVED BY THE MAYOR this 13th day of April. . 19.81. 1. Approved as to form: • arbara Y. hinpoc . Mayor li' I1, gwv4,,,,ty2/1.k.-era-r...., ence en, City Attorney I Date of Publication: May 15, 1981 • i • I . . it qee, t1.J�LQl:45 it4-L:ll• ii MnAr4' 4 4 Mn �.n''}}��D.f.ry 111.. _-_1 Nr Mt Lay a/t�rl+r , ii yM�J t!0rlwea N �C+�iJ•144. Ih/�y Si IMAM.la 1 Ow IM prrKl 'I' • `: J WlK4 00 N Ion* J /+� M t aM.a.. • M hw, teed)WI Iht Yrt i, 1N� M IrMaLtr��,diag M Means Mated ' Chy M 1telq q ,' �'~~ •7�a!alai tlfaN • :.: atr Daft CITY OF RENTON, WASIIINGTON • . %" • f • ORDIAANCE ?1O. N.29 !I Ti.• '' AN ORDINANCE OF THE CITY OF RENTOiI, WAShINCPO►i . • : . . :�° RELATING TO LAUD 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 1 p 3. 1961. and became effective by its own i `, terms on June 14, 1981; and • . • • WHEREAS,it was the intention of the City Council of the _./ _ City of Renton in the adoption of that Ordinance to rely upon the _ opinion of the United States Suprepe.Court in the case of Yount, v. . -' ; . • American Mini Theaters. 427 US 50, and of the Supreme Court of the State of Washington in the case of Northend Cinemas v. Seattle. 90 Wn 2d, 709. to limit the location of adult motion picture theaters. as that term is defined therein. to •promote the City of Renton's If great interest in protecting and preserving the quality of its • IF • neighborhoods; commercial districts. and the quality of urban life through .effective land use planning; and I — . WIIE.R'IAS, the City Council. through .its Planning and Development Committee, held a public meeting on March 5. 1931. to . • receive testimor•.• from the public concerning the subject of regulation : it of adult entertainment land uses. at which the following testimony • j, • was received which the City Council believes to be true, and which • II ;i, formed the basis for the adoption of Ordinance No. 3526: II iI ' 1• Areas within elose'valkinr distance of single and � , multiple family dwellings should be free of adult • entertainment land uses. I 2. Areas where children could be expected to walk,patronize or recreate should be free of adult i'GI entertainment land uses. 'I 3. Adult entertainment land uses should be located in areas of the Ci:v 'ohich are not in close L proximity to reside.ltial uses, churches, parks and other public facilities , and schools. .1 • 4. The image of the City of Renton as a pleasant and attractive place to reside will he adversely a ' affected by the presence of adult entertainment • land uses in close proximity to residential land - uses. churches, parks and other public facilities. and schools. • • 5. Regulation of adult entertainment land uses should • II be developed to prevent deterioration and/or • degradation of the vitality of the community before the problem exists. rather than in response to an existing problem. . • 6. Commercial areas of the City patronized by young , - people and children should be free of adult enter • - tainment land uses. • • 7. The Renton School District opposes a location of • • adult entertainment land uses within the perimeters .! of its policy regarding bussing of students. so that •• .of walking to school will not be subjected to 's•• • confrontation•with the existence of adult entertain- - went land uses. . w;. � 8. • The Renton School District finds that location of , _ • adult entertainment •land uses in areas of the City ' which are in close proximity to schools, and • commercial areas patronized by students and young ' • people, will have a detrimental effect upon the • • quality of education which the School District is • • • 'providing for its students. 9. The Renton School 'District finds that education of • .I ' its students will be negatively affected by location of adult entertainment land uses in close proximity to location of schools. 10. Adult entertainment land uses should be 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 1! 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 I 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 _ • ' . and quality of the City in the event that adult ; entertainment land uses are located within close proximity to residential uses, churches ,parks and • other public facilities , and schools. Location of -2- , • I I A _s i'• . • adult entertainment land uses in close proximity • • to residential uses. churches. parks and other • • • I, • public facilities. and schools. will reduce retail • • !! trade to commercial uses in the vicinity, thus . ' ' • • . - reducing property values and tax revenues to the • City. Such adverse affect on. property-values will • cause the loss of some commercial establishments followed' by a blighting effect upon the commercial • districts within the City. leading to further ' k.. deterioration of the commercial quality of the City. • J 47 14. Experience in numerous other cities. including Seattle. Tacoma and Detroit. Ilichigan. has shown that location of adult entertainment land uses degrade the quality i• ' v ' • of the areas of the City in which they are located M: • and cause a blighting effect- upon the city. The • e skid row effect. which is evident in certain parts j "° of Seattle and other cities. will have a significantly ' • •larger affect upon the City of Renton than other • i ti major cities due to the relative sizes of the cities. 11 • 15. No evidence has been presented to show that location j '. of adult entertainment •land uses within the City will . :1, • . • improve the commercial viability of the community. 4� 16. Location of adult entertainment land uses within ,I . • walking distance of churches and other religious ;i - facilities will have an adverse effect upon the 1 • . . ministry of such churches and will discourage • attendance at such churches by the proximity of .i 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 f'! 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. 20. A stable atmosphere for the rearing of families • 11 !1I cannot be achieved in close proximity to adult entertainment land uses.- i1 • 21. The initial .location of adult entertainment land it uses will lead to the location of additional and similar uses within the same vicinity, thus multiplying the adverse impact of the initial location of adult i ' entertainment land uses upon the residential, churches , II: parks and other public facilities, and schools , and ;;I the impact upon the image and quality of the character 1 of•the community. ' ! . ;II • -3- I I it " . and • • 1 WHEREAS. since the adoption of Ordinance No. 3526. it has come to the attention of the City Council of the City of Renton ( 'I :i • that it would be appropriate to set forth in writing the findings• . r' of fact which were the basis for the adoption-by the City Council • t' of Ordinance No. 3526; and. it • WIIE!tCAS, the City Council finds that, in order to choose 1 -• the least restrictive alternative available to accomplish the purposes • • for which Ordinance Vo. 3526 was adopted. and to include a severabilit• • clause which-was inadvertently omitted from Ordinance No. 3526, and to make certain other technical amendments to Ordinance No. 3526. • • II • that it is necessary for the City Council to adopt legislation . • . . • amending Ordinance No. 3526 to accomplish the foregoing.purposes; 1 • and , • i' • • WHEREAS. the City Council. at its duly called special , 11 • meeting on February 25. 1982. held a' public hearing upon the subject Il • matter of_land use regulations of adult motion pictures within the • City of Renton. at which public hearing the City Council received " I1 • comments from the public on that subject matter at which the following; Il testimony was received. which• the City Council believes to be true. , i . and which. together with the findings heretofore set forth as the I - basis for the adoption of Ordinance No. 3256, form the basis for the adoption of this Ordinance: I' "• .1.. Many parents have chosen the City of Renton in • which to raise their families because of the lack L' of pornographic entertainment outlets with its influence u• pon children external t"o the home. I ' 2. Location of adult entertainment land uses on the • main commercial thoroughfares of the City gives Fi, an impression of legitimacy to, and causes a loss i of sensitivity to the adverse affect of pornography F • " upon children, established family relations. respect i. for marital relationships and for the sanctity of it marriage relations of others, and the concept of non-aggressive consenual sexual relations. 1j • i � II • . i , ! • - -4- • 3. Citizens from other cities and King Coe,_-; will travel wto Renton hich theytareo iknownew uandlt frecognizeilm fate d. from areas in ac en t to the adult • d I II' 4. Property values in the areas adjacent , entertainment land uses will decline. thus causing a blight upon the commercial area of the City of Renton. 5. Location of adult entertainment land uses within • � . Rento neighborhoods and commercial areas of the City of n is disrupting to youth programs such as Boy 1 a • • Scouts, Cub Scouts and Campfire Girls. Many such • 4. youth programs use the commercial areas of the City ;i •I • as a historical research resource. Location of adult entertainment land uses in close proximity to residentia uses. churches. parks and•other public facilities and • schools is inappropriate. . 6. Location of ndult entertainment land uses in close • proximity to residential 'uses. churches. parks and • • • other public facilities. and schools, will cause a i •• degradation of the community standard of morality. - Pornographic material has a degrading effect upon the '1. relationship between spouses.. [i ..NOW THEREFORE. THE CITY COUNCIL OF THE CITY OF RENTON. WASH!: DO ORDAIN AS FOLLOWS: I' i SECTION I: Existing Section 4-702 of Title IV (Building . 1 Regulations) of Ordinance No. 1628 entitled "Code of General Ordinance• of the irity of Renton" is hereby amended by adding the following sub- • sections: ' • "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 arc: i in a .manner which appeals to a.prurient interest. • ' SECTIOt. II: Existing Section 4-735 of Title IV (Building; 1 Regulations) of Ordinance No. 1628 entitled "Code of General Ordinance [I • of the City of Renton", is hereby amended by adding the follaring subsect i. (C) Violation of the use provisions of this section is decl:i to be a public nuisance per se. which shall be abated by City Attorne•: I i by way of civil abatement procedures only. .and not by criminal ,prosecut i I (1)) Nothing in this section is intended to authorize. I legalize or permit the establishment, operation or maintenance of any • business, building or use which violates any City of Renton ordinance ii j. or statute of the State of Washington regarding public nuisances . ,p sexual conduct, lewdness, or obscene or harmful matter or the 1, i exhibition or public display thereof. -5- 11, i1 • -••.,.. % ! .• . - ... • ..._ •-.. . . . . • Z.:. . - ---, . • ' • . • . . , . ..• .. . ,„ • • , . . • ' • • • , . . . . ; "••• • ' . •. . :',,'-.: • . . . . . • . . . . • . ,:::......t of this ordinance is necessary for the Immediate preservation of • . - . . ir .;, Public peak, health, and safety or for the support of city govetrsment • .• . . .. 1,, • l' 4.:•:. .. i ...;.. and its existing public institutions and the integrity of the zoning . • 1 . ti: • : • . ..: " of the City of Renton.- Therefore, this ordinance shall take effect . 1 . , .• :ie. •. .. . fc. immediately upon its passage and approval by the mayor, . • . . •$.•S ..:-• PASSED BY THE city COUNCIL this 3t.lt day of hay, 1982. ti. • . . . .. t:;. . . . • , V.... . ea . •xty Fr' :.i •. • . . ; ' f• . . • • . . . • t-.• - . . • t - APPROVED BY TliE ItAYOR this 30 day of May. 1982. • : v.. . • .:', • . il • -... . .. - . • . . . _ • . . TtIttaciara . 1A.6.0. .__4bwici..... • Eil 2.npocfiTgis . . . , • IT • ' - . • • as to form: . • • • . • . •. . . • ; .. • - . . . .. .: . . • . , • I jg a i • ..-:; . -%/6.....4.6.,.. • • • • • . *a.4...0 r.104-4, • . • . . : • EawiWCIF7 7 Vliir;eil:. CiriTv Attoy • . • • -.:. Date of Publication: flay 7. 1982 • • i - . • . !I . i E r • • . • •- i • . . • . ,, • . . • • . ; . . . , . . s• • 1 . . . . . . , • ..• • - . i - • • . . I . . . • , . . - . • . . • . ; . . . . , • . . • . . ; • • • • • , . . . . , • • —7- . . •. • i . • • i 4'� 1, . f 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 i to read as follows: r -. • 2. One thousand feet (1,000') of any public or private 1I Ir•. • school. .4; SECTION IV: City of Renton Ordinance No. 3526 is hereby amended by adding the following section' to read as follows: r • If anv section. subsection. sentence, clause. phrase or 4 - ;. anv portion••of this ordinance is for any reason held to be invalid • i • or unconstitutional by the decision of any court of competent .-,I svalidity of the ° jurisdiction, such decision shall not affect the '' ,• • • • remaining portions of this ordinance: The City Council of the City •" ' ,Of Renton hereby declares that it would have adopted City of Renton Ordinance No. 3526 and each section, subsection. sentence. clause. 1 . 1 phrase or portion- thereof irrespective of the fact that any one or • • more sections. subsections. sentences. clauses. phrases or portions be declared invalid Or unconstitutional. • . . SECTION V: If any section.•subsectiof. sentence, clause. phrase or any portion of• this ordinance is for any reason held to he ,I invalid or unconstitutional by the decision of any court of competent • jurisdiction. such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Renton hereby declares that it would have adopted this ordinance . and each section, subsection, sentence, clause, 'phrase or portion 1 thereof irrespective of the fact that any one or more sections . sub- sections. sentences, clauses , phrases or portions be declared invalid li . or unconstitutional. .t SECTION VI: The City Council of the City of Renton finds Ij 1 and declares that an emergency exists because of the pendency of ,1 '1 litigation against the City of Renton involving the subject matter of 1 this ordinance, and potential liability of the City of .Renton for damages as pleaded in that litigation, ana that the immediate adoption I ' ' :CITY OF RENTON, WASHINGTON ORDINANCE NO. 3637 AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON • . AMENDING ORDINANCE NO. 3526 RELATING TO LAND USE . AND ZONING AND AMENDING ORDINANCE NO. 3629 BY DELETING THE EMERGENCY CLAUSE AND RE-ENACTING ' • THE REMAINDER THEREOF • • • • WHEREAS. on April. 13, 1981, the City Council of the City • • of Renton adopted Ordinance No. 3526. which Ordinance was approved ' ..by the Mayor on April 13. 1981, and became effective by its own • terms on June 14, 1981; and • -WHEREAS, on May 3. 1982, the City Council of the City of • • Renton adopted Ordinance No. 3629 amending Ordinance No. 3526, which' Ordinance was approved by the Mayor on May 3. 1982, and' • became effective on its passage and by the terms of the Ordinance; ' • and • q. WHEREAS the City Council wishes to remove the emergency clause from Ordinance No. 3629 and re-enact the remainder of . Ordinance No. 3629 in its entirety; and WHERREAS, it was the intention of the City Council of the j City of Renton, in the adoption of Ordinance No. 3526 to rely upon the opinion of the United States Supreme Court in the case of Young • v. American Mini Theaters. 427 US 50, and of the Supreme Court of the • • State of Washington in the case of Northend Cinemas v. Seattle., 90 Wn 2d, 709. to limit the•location of adult motion picture theaters .. as that term is defined therein, to promote the City of Renton's ' great interest in protecting and preserving the quality of its • neighborhoods , commercial districts, and the quality of urban life through effective land use planning; and WHEREAS, the City Council. through its Planning and Development Committee. held a public meeting on March 5, 1981, to • . • CorrinC&?E . . .• I. toe ur+derskned,Decoecs, A. MICA tYerlr of ttw C?ty of iiraMon, WaiAk+filoo. certify That this is a Lw . and comet copy of Q P.,.Q.:Nf1NC.k.....81R..363.7 . Subscribed aad Sealed Ka al41 day cf 1-10(2.. 19`6. . City Clerk • y a i receive testimony from the public concerning the subject of , regulation of adult entertainment land uses. at which the following Ij 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, parks • and other public facilities, and schools. 4-. 'The image of the City'of Renton as a pleasant - -' and attractive place to reside will be adversely affected'by the presence of adult entertainment - land uses in close proximity to residential land • uses. churches, parks and other public facilities. • • and schools. 5. Regulation of adult entertainment land uses should be developed to prevent deterioration and/or degradation of the vitality of the community before • • the problem exists, gather than in response to an . existing problem. . 6. Commercial areas of the City patronized by young people and children should be free of adult enter- . • tainment land uses. 7. The Renton School District opposes a location of adult entertainment land uses within the perimeters - of its policy 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 • quality of education which the School District is providing for its students. • 9. The Renton School District finds that education of its students will be negatively affected by location of adult entertainment land uses in close proximity to location of schools. -2 • - r . . • 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 uses with characteristics different from itself. i 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 • and quality of the City in the event that adult • entertainment land uses are located within close proximity to residential uses, churches. parks and' other public facilities, and schools. Location of adult entertainment land uses in close proximity to residential uses. churches, parks and other public facilities, and schools, will reduce retail . trade to commercial uses in the vicinity, thus • reducing property values and tax revenues to the • City. Such adverse affect on property values will • cause the loss of some commercial 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. Experience in numerous other cities. including Seattle. Tacoma and Detroit, Michigan, has shown that location • of adult entertainment land uses degrade the quality of the area of the City in which they are located and cause a blighting effect upon the City. The _ skid row effect, which is evident in certain parts of Seattle and other cities, will have a significantly larger affect upon the City of Renton than other major cities due to the relative sizes of the cities. 15. Vo evidence has been presented to show that location of adult entertainment land uses within the City will improve the commercial viability of the community. 16. Location of adult entertainment land uses within walking distance of churches and other religious facilities will have an adverse effect upon the ministry of such churches and will discourage attendance at such churches by the proximity of . adult.entertainment land uses. . • -3- • 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 land uses. while providinn to those who desire to patronize adult entertainment ..land uses such an opportunity in areas • • within the City which are appropriate for location of adult entertainment land uses. • • 18. The community will be an undesirable place to live • if it is known on the basis of its image as the location of adult entertainment land uses. • ' 19. A stable atmosphere for the rearing of families • cannot be achieved in close proximity to adult entertainment land uses. 20. The initial location of adult entertainment land uses will lead to the location of additional and similar uses within the same vicinity, thus multiplying the adverse impact of the initial location of adult entertainment land uses upon the residential, churches. parks 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 attention of the City Council of the City of Renton that it.would be appropriate to set forth in writing the findings of fact which were the basis for the adoption by the City Council of Ordinance No. 3526; and • WHEREAS. the City Council finds that, in order to choose the least restrictive alternative available to accomplish the purposes for which Ordinance No. 3526 was 'adopted, and in include a 'severability clause which was inadvertently omitted from Ordinance No. 3526. and to make certain other technical amendments to Ordinance No. 3526. that it is necessary for the_ City Council to adopt legislation11 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, 11 • -4- ( • • and which; together with the findings heretofore 'set forth as the • • basis for the adoption of Ordinance no. 3256. form the basis for the adoption of this Ordinance: • • 1. Many parents have chosen the City of Renton in • • which to raise their families because of the lack • . • • • of pornographic entertainment outlets with its • influence upon children external to the home. • 2. Location of adult entertainment land uses on the main commercial thoroughfares of the City gives an impression of legitimacy to, and causes a loss of sensitivity to the adverse affect of pornography upon children, established family relations. respect ' for marital relationship and for the sanctity of ' marriage relations of others, and the concept of non-aggressive consensual sexual relations. 3. Citizens from other cities and King County will travel to Renton to view adult film fare away from areas in which they are known and recognized. . 4. Property values in the areas adjacent to the adult. , entertainment land uses will decline, thus causing a blight upon the commercial area of the City of • Renton. • , 5. Location of adult entertainment land uses within neighborhoods and commercial areas of the City of Renton is disrupting to youth programs such as Boy • Scouts, .Cub Scouts . and Campfire Girls. Many such youth programs use the commercial areas of the City as a historical research resource. Location of adult entertainment land uses in close proximity to residential uses, churches, parks and other public facilities and schools is inappropriate. • 6. Location of adult entertainment land uses in close proximity to residential uses, churches', parks and other public facilities, and schools, will cause a degradation of the community standard of morality. Pornographic material has a degrading effect upon the relationship between spouses. NOW THEREFORE. THE CITY COUNCIL OF THE CITY OF RENTON, • WASHINGTON DO ORDAIN AS FOLLOWS: . • SECTION I: Existing Section 4-702 of Title IV (Building • Regulations) of Ordinance No. 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended by adding the following • subsections: • -5- "Used" the word "used" in the definition of "Adult motion picture theater" herein. describes a continuing course of conduce of exhibiting"'specific sexual activities" and "specified anatomical area in a manner which appeals to a prurient interest. SECTION II: Existing Section 4-735 of Title IV (Building Regulations) of Ordinance No. 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended by adding the following subsections : (C) Violation of the use provisions of this section is declared to be a public nuisance per se, which shall be abated by City Attorney byway 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 III: Existing subsection (A) (2) of Section 4-735 of Title IV (Building Regulations) of Ordinance No. 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended to read as follows: 2. One thousand feet (1.000') of any public or private school. SECTION IV: City of Renton Ordinance No. 3526 is hereby amended by adding the following section to read as follows: If any section. subsection. sentence, clause, phrase or any portion of this ordinance is for any reason held to be invalid . or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City -6- • • • • I of Renton hereby declares•that it would have adopted City of Renton - . Ordinance No. 3526 and each section, subsection, sentence, clause. • • phrase or portion thereof irrespective of the fact that any one or • more sections, subsections, sentences. clauses, phrases or portions be declared invalid or unconstitutional. ' • SECTION V: If any section. _subsection. sentence. clause, phrase or any portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Renton hereby declares that it would have adopted 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 unconstitutional. 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. 77/40.61. Delores A. Mead, 'City Clerk APPROVED BY THE MAYOR this 14th day of June, 1982. . wl,a S LVLpce. Barbara Y. Shinpoch, Mayor Approved as to form: • Lawrence J. Larren, City Attorney Date of Publication: June 18, 1982 OF R4,4, OFFICE OF THE CITY ATTORNEY• RENTON,WASHINGTON U t% ' ~ POST OFFICE BOX 626 100 S 2nd STREET I RENTON. WASHINGTON 98057 255-8678 n ma '' ,. LAWRENCE I.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY 'SS Pam. DAVID M. DEAN, ASSISTANT CITY ATTORNEY 9.TE0 SEPS�qg� MARK E.BARBER, ASSISTANT CITY ATTORNEY June 24, 1983 ZANETTA L.FONTES, ASSISTANT CITY ATTORNEY CITY OF RBMOs TO: Barbara Y. Shinpoch, Mayor Members of. Renton City Council JUN 2 7 1983 FROM: Daniel Kellogg, Assistant City Attorney POLICY DEVELOPMENT DPPT. Re: City of Renton vs . Playtime Theatres , Inc. Dear Madam Mayor and Members of the Council: We wish to inform you of the events which have transpired since Mr. Warren' s Memorandum ,of June 15 , 1983. You will recall that Mr. Warren informed you that the , 9th Circuit Court of Appeals denied Playtime' s application for a stay of the effectiveness of Judge McGovern' s .decision in our favor pending the disposition of their appeal from that decision. This is of extreme importance to us because. it leaves us in a position to continue our State Court enforcement action. At the hearing in Federal Court on June 16 , 1983, on our Motion to Remand the case back to State Court, we were very pleased that Judge Coughenour adopted the arguments which we made and found that the Federal Court was without jurisdiction to retain jurisdiction of the State case which had been removed. Therefore, he ordered that the case be remanded to the State Court. We immediately re-noted our Motion for Preliminary Injunction for July 11, 1983. This will be the commencement of the trial of the issue between ourselves and Playtime, whether they are, in fact, violating our ordinance and are a nuisance which must be abated. It is necessary to re-note this matter because the removal of the State case to Federal court had frustrated our ability to proceed to trial at the hearing previously scheduled in the State Court on June 13, 1983. By way of interest, Playtime has. filed Motions to Dismiss our State Court case, claiming two different grounds.: First, that our cause of action requesting a Declaratory Judgment does not present a justiciable issue in that they claim it is a request for an advisory opinion to a legislative body. If this were so , our Mayor and Members of Renton City Council Page 2 June 24, 1983 first cause of action would be dismissed. However, we strongly believe that our first. cause of action, which requests a declara- ci tion by the Court that our ordinance is constitutional and that the actual use of the property by Playtime as an adult motion picture—ttheater is in violation of the terms of our ordinance. Therefore, this •is not an advisory opinion on hypothetical facts . The second ground for motion to dismiss is an attack upon Initiative 335 (RCW 7.48) . This attack is presently much more difficult for us . When we met with the Council to discuss our plan of attack, we indicated that we would rely upon several alternative theories to be sure that our chance of prevailing is maximized. We have also understood that our reliance upon Initiative 335 was tenuous because of 'prior holdings by Federal and State courts that this action is unconstitutional. We have plead the action in an attempt to give the Appellate courts another opportunity to construe this legislation in a constitutional fashion. But we understand that the trial court may well strike our reliance upon this law. This hearing will be held on "Monday, June 27, 1983, before Judge Ishikawa in the King County Superior Court. We have also noted the deposition of Playtime Theaters and certain of its employees for Friday, July 1, 1983, in order to discover the location of the films which have been subpoenaed and certain other information which we deem material to the presentation of our nuisance abatement. evidence. Also, we are continuing to subpoena theater employees to bring to the trial on July 11 , 1983, the films which have been exhibited since the filing of our amended complaint . The evidentiary pro- blems at that hearing will be enormous in view of the gap in our ability to subpoena evidence which was caused by the removal of our case to Federal Court the second time. We are enclosing to the Mayor,'-Clerk;, and Dave Clemens copies of the pleadings which we have prepared in opposition to the Motion to Dismiss . I trust that if there is an interest in reviewing those pleadings that you can contact either the Mayor or the Clerk' s office. Please feel free to contact our office if you have any questions . Daniel Kellogg DK:kh Encl. 3 cc: Clerk Dave Clemens 1 2 3 4 5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY OF RENTON, a municipal ) corporation; LAWRENCE J. . ) 7 WARREN; City Attorney of the ) NO. 82-2-02344-2 City of Renton; STATE OF ) 8 WASHINGTON, ex rel. LAWRENCE ) PLAINTIFFS' MEMORANDUM IN J. WARREN, City Attorney for ) OPPOSITION TO DEFENDANTS' 9 the City of Renton , ) MOTION FOR DISMISSAL ) UNDER CR 12(b) (6 ) RE 10 Plaintiffs , ) RCW 7.48.050-. 100 ) 11 vs. ) ) 12 PLAYTIME THEATRES, INC. , a ) Washington corporation; KUKIO ) 13 BAY PROPERTIES INC. , a ) Washington corporation; ROGER ) 14 H. FORBES and JANE DOE FORBES, ) husband and wife; ROBERT B. ) 15 McRAE and ELIA C. McRAE; and ) • DOES 1 THROUGH 10, ) 16 ) Defendants . ) 17 ) 18 I. STATEMENT OF FACTS 19 Please refer to the separate Statement of Facts 20 submitted by the Plaintiffs for the facts pertinent to the 21 motion for dismissal filed by the Defendants requesting 22 dismissal of all sections of Plaintiffs' amended complaint 23 which rely on RCW 7. 48.050-. 100 for failure to state a claim 24 upon which relief can be granted . 25 II. ARGUMENT 26 A. A motion to dismiss under CR 12 ( b) (6 ) must be denied unless there is no state of facts 27 which Plaintiffs could prove consistent with 28 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR DISMISSAL WARREN&KELLOGG,P.S. UNDER CR 12(b) (6 ) PAGE 1 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 • • 1 the complaint which would entitle the Plaintiffs to relief. 2 The function of a motion to dismiss under CR 12(b) (6) is 3 the same as that of a general demurrer. The motion should not 4 be granted unless it appears certain that the Plaintiffs would 5 be entitled to no relief under any state of facts which is 6 susceptible of proof under the claims stated. Collins vs. 7 Lomas & Nettleton Company, 29 Wash. App. 415, 628 P.2d 855 8 (1981 ) ; Gibson vs . Port of Seattle, 28 Wash. App. 508, 624 9 P.2d 1168 ( 1981 ) ; Green vs . Holm, 28 Wash. App. 135, 622 P.2d 10 869 (1981 ) ; Corrigal vs. Ball and Dodd Funeral Home, Inc. , 89 11 Wash. 2d 959, 577 P. 2d 580 ( 1978) . 12 A motion to dismiss a complaint for failure to state a 13 claim upon which relief can be granted admits the truth of 14 facts alleged therein for purposes of the motion. Madison vs . 15 General Acceptance Corporation, 26 Wash. App. 387, 612 P. 2d 16 826 (1980) . Thus , the test to be applied in resolving the 17 question whether the complaint sets forth facts showing that 18 the Plaintiffs are entitled to relief under any theory of law 19 is whether the complaint, taken in the light most favorable to 20 Plaintiffs , is sufficient to constitute a valid claim . 21 Applying these general principles of .law, it is clear that the 22 Defendants' 'request for an order "dismissing all sections of 23 Plaintiffs' complaint which rely on RCW 7.48.050-. 100 for 24 failure to state a claim upon which relief can be granted" is 25 without merit . 26 By the Defendants' failure to challenge the Plaintiffs' 27 reliance upon RCW Chapter 7.48A, Defendants have implicitly 28 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR DISMISSAL WARREN&KELLOGG,P.S. UNDER CR 12(b) (6 ) PAGE 2 ATTORNEYS AT LAW 700 SO.SECOND ST.,P.O.BOX 626 BENTON,WASHINGTON 98057 255-8678 1 acknowledged that the Plaintiffs' complaint herein states a • 2 claim upon which relief can be granted, at least under RCW 3 7. 48A. Indeed , they could not contend otherwise , since that 4 statute has been held to be constitutional in an action filed 5 in the United States District Court for the Eastern District 6 of Washington in which Defendant Playtime Theatres, Inc. and 7 Kukio Bay Properties ,. Inc . were plaintiffs . Playtime 8 Theatres, Inc. vs. Eikenberry, Cause No. C82-239RJM; Kukio Bay 9 Properties , Inc . vs . Maleng , Cause No . C82-354RJM . The 10 memorandum order finding that statute . to be constitutional 11 despite Defendants' contentions to the contrary was entered 12 therein by United States District Judge Robert J. McNichols on 13 July 2, 1982. The appeal of that matter is now pending before 14 the United States Court of Appeals for the Ninth Circuit . 15 At the very least, the amended complaint states a cause 16 of action for civil abatement of a public nuisance under RCW 17 7. 48. 010 and RCW 7. 48. 130. Those sections read , in pertinent 18 part, as follows : 19 " . . .Whatever is injurious to health or indecent or offensive to the senses . . . so as to essentially 20 interfere with the comfortable enjoyment of the life and property, is a nuisance and the subject 21 of an action for damages and other further relief." RCW 7 .48. 010. 22 "A public nuisance is one which affects equally 23 the rights of an entire community or neighborhood , although the extent of the damage may be unequal ." 24 RCW 7.48. 130. 25. The case directly in point is California ex rel. Busch vs . 26 Projection Room Theatre , 17 Cal. 3d 42, 550 P.2d 600 (1976) . 27 In Busch, the Los Angeles County District Attorney brought a 28 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR DISMISSAL WARREN do KELLOGG,P.S. ATTORNEYS AT LAW UNDER CR 12(b) (6 ) PAGE 3 /oo SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 s!Lannn 1 civil action under the special California Red Light Abatement 2 Statute to abate a motion picture theater as a public 3 nuisance . The trial court entered a judgment for the 4 defendants sustaining a general demurrer to the complaint on 5 the ground that the plaintiff had failed to state a cause of 6 action under the California Red Light Abatement Statute . On 7 appeal the California Supreme Court reversed and remanded the 8 case for trial, holding that although the complaint did not 9 state a cause of action under the Red Light Abatement Statute , 10 it did state a cause of action under Civil Code Section 3479 11 and 3480. Those sections read , in pertinent part: 12 "Section 3479. Anything which is injurious to health or is indecent or offensive to the senses , 13 or an obstruction to the free use of property so as to interfere with the comfortable enjoyment of 14 life and property. . . is a nuisance . " 15 "Section 3480. A public nuisance is one which effects at the same time an entire community or 16 neighborhood , or any considerable number of persons, although the extent of the annoyance or 17 damage inflicted upon individuals may be unequal ." 18 These sections , taken together, are nearly identical 19 with RCW 7. 48. 010 and 7. 48. 130. At the very least , the 20 provisions of the third, fourth and fifth cause of action of 21 Plaintiffs' amended complaint state causes of action under 22 common law nuisance theories sufficient to withstand challenge 23 under CR 12(b) (6) . 24 Therefore, there appearing to be facts pleaded within 25 the amended complaint which, if true, would state a claim upon 26 which relief could be granted under RCW Chapter 7. 48A or 27 28 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR DISMISSAL WARREN&KELLOGG,P.S. UNDER CR 12(b) (6) PAGE 4 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 2554678 1 7. 48. 010 and 7 .48. 130, Defendants' motion to dismiss under CR 2 12(b) (6) must be denied. 3 B. RCW 7 . 48 . 050- . 100 is not beyond constitu- tional construction by the state appellate 4 courts of the state of Washington. 5 Defendants have attacked Initiative 335 (codified as RCW 6 7. 48. 050-. 100) on two grounds . The first ground is the 7 alleged unconstitutionality of the initiative as a prior 8 restraint under the First Amendment to the United States 9 Constitution. Plaintiffs must concede that Initiative 335 was 10 held to be unconstitutional on its face in Spokane Arcades, 11 Inc . vs. Ray, 449 F.Supp. 1145 ( 1978 ) ; affirmed by the Ninth 12 Circuit Court of Appeals , 631 F.2d 135 (9th Cir. 1980 ) ; 13 affirmed by the United States Supreme Court without opinion 14 sub. nom. Brockett v. Spokane Arcades , Inc. , 454 U. S. 1165, 15 102 S. Ct. 557 ( 1981 ) . However, Defendants claim that the 16 state courts of the State of Washington are bound to blindly 17 follow this unfortunate and ill-conceived decision is based 18 upon a faulty understanding of the recent developments in the 19 analysis of state statutes by the United States Supreme Court . 20 First of all , Defendants are misunderstanding the 21 interplay of footnotes 6 and 7 of Dombrowski vs . Pfister, 380 22 U. S. 479, 490, 85 S. Ct . 1116 , 14 L. Ed . 2d 22 (1965) , as those 23 footnotes relate to a correct understanding of the decision of 24 the United States Supreme Court in Spokane Arcades, supra. 25 There the Supreme Court held that , notwithstanding that a 26 federal court may declare a state statute to be 27 unconstitutional on its face so as to warrant the granting of 28 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR DISMISSAL WARREN&KELLOGG,P.S. UNDER CR 12(b) (6 ) PAGE 5 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 2554678 1 a federal injunction against the application of the state 2 statute, the state governmental authorities may thereafter 3 seek a restrictive interpretation of the statute in the state 4' 'court and thus "revive" the statute as to prosecution against 5 others of future violations . This principle is illustrated by 6 the unusual action taken by the United States Supreme Court in 7 Metromedia, Inc. vs . San Diego, 453 U.S. 490, 521 , 101 S.Ct . 8 2882, 69 L. Ed. 2d 800 ( 1981 ) , wherein, after finding a San 9 Diego city ordinance to be unconstitutional on its face , the 10 High Court remanded the cause back to the California Supreme 11 Court for re-evaluation as to whether. the California Supreme 12 Court could render the ordinance a "limiting construction" 13 which would save the statute . Under this recent development 14 in the law, the decision of United States District Court Judge 15 Fitzgerald in Spokane Arcades had no impact upon Initiative 16 335 other than to declare that the statute could not presently 17 be applied to the Plaintiffs therein, and that they were 18 entitled to an injunction against enforcement of the statute 19 until the statute had been given a "narrowing construction" by 20 the state courts . 21 Therefore, under Dombrowski , supra, as reaffirmed by 22 Metromedia , supra, there is nothing to prevent the appellate �3 courts in the State of Washington from now asserting in a 24 state court action that , under a restrictive interpretation , 25 the provisions of Initiative 335 can be constitutionally 26 construed . This invitation to constitutional construction by 27 the state court is not a repudiation of the Supremacy Clause 28 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR DISMISSAL WARREN&KELLOGG,P.S. ATTORNEYS LAW UNDER CR 12(b) (6) PAGE 6 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-i678 1 of Article VI of the United States Constitution. Rather, it 2 is the fulfillment of the principle of statutory construction 3 that state laws shall be construed in such a fashion as to be 4 rendered constitutional . 5 Furthermore, under the circumstances of the decision in 6 Spokane Arcades , supra, the opinion is entitled to little 7 precedential value in the state courts of the State of 8 Washington . Although the Plaintiffs must concede that the 9 affirmance of the decision of the Ninth Circuit Court of 10 Appeals by the United States Supreme Court is a disposition of 11 the case on the merits, it is beyond dispute that summary 12 dispositions by the Supreme Court 13 " . . .will not be accorded the full weight of decisions in which the issues were fully explored . 14 In the words of Mr. Justice Rehnquist , ' [n]o one seriously contends that these summary affirmances 15 received the full consideration that is given to a case argued on merits and disposed of by written 16 opinion. . . ' " 17 Stern and Gressman, Supreme Court Practice, Fifth Edition, Section 4.30, page 328. 18 Furthermore, as found by the Supreme Court of the State 19 Idaho upon review of Spokane Arcades : 20 " . . .it appears that the Spokane Arcades panel made 21 little effort to construe Washington's statute in a constitutional manner. For example, in holding 22 that the Washington nuisance abatement statutes were procedurely deficient, the panel listed four 23 supposed defects , without once considering any alternative constitutional constructions . A 24 statute must be construed in a constitutional sense where reasonable and practical to do so. 25 U . S . Civil Service Commission vs . National Association of Letter Carriers , 413 U. S 546, 93 26 S. Ct . 2880, 37 L. Ed. 2d 796 ( 1973) ; United States vs. Vuitch, 402 U. S. 62, 91 S. Ct . 1294 , 28 L. Ed . 27 2d 601 ( 1971 ) ; State vs . Rawson, 100 Idaho 308, 597 P. 2d 31 (1979) . It seems clear that some , if 28 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR DISMISSAL WARREN do KELLOGG,P.S. UNDER CR 12(b) (6 ) PAGE 7 ATTORNEYS AT LAW 100 SO.SECOND ST„P.O.SOX 626 RENTON,WASHINGTON 98057 255.4678 1 not all of the reported procedural defects identified in Spokane Arcades may be cured by 2 appropriate construction." (Citations omitted) 3 State of Idaho vs. U.S. Marketing, Inc. , 102 Idaho 451 , 631 4 P. 2d 622, 625-6, fn. 4. 5 6 The Idaho Supreme Court complemented the Idaho trial court for avoiding some procedural problems in the Idaho 7 nuisance . statutes by imposing appropriate limiting 8 constructions . In view of the array of potential narrowing 9 constructions available to the state courts in order to 10 fulfill their duty to construe the statutes constitutionally , 11 the Idaho Supreme Court placed substantial doubt upon the 12 precedential value of the decision of the Ninth Circuit Court 13 of Appeals in Spokane Arcades. 14 Further doubt upon the precedential value of the Spokane 15 Arcades decision is found in the decision of the Supreme Court 16 in affirming the Ninth Circuit Court of Appeals without 17 opinion. That decision was dated November 9, 1981 , prior to 18 the appointment of Justice Sandra Day O'Conner to the High 19 Court . Chief Justice Burger was joined by Justice Powell and 20 Justice Rehnquist in dissent . A copy of the memorandum case 21 is attached hereto as Attachment "A" . Chief Justice Burger 22 urged abstention by the federal courts until the state courts 23 have been given an opportunity to interpret the law in a 24 constitutional fashion. He complained of litigants such as 25 the Plaintiffs in Spokane Arcades (and the Defendants herein) 26 who ". . .have deliberately avoided resort to the courts of the 27 28 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR DISMISSAL WARREN&KELLOGG,P.S. UNDER CR 12(b) (6 ) PAGE 8 ATTORNEYS AT LAW 100 SO.SECOND ST.,Y.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 state whose statute is being challenged . . . " (Citations 2 omitted) . The Chief Justice commended the state courts , 3 ". . .who are as capable as are federal judges of enforcing the Constitution of the United States , 4 and have taken the same oath to do so---the initial opportunity to consider the scope and 5 validity of state statutes . This is particularly so when the state law under consideration has 6 never been applied, and when its interpretation is uncertain ; in such a case the state court' s 7 construction of the statute may obviate the need for adjudication of the federal constitutional 8 issues, or the state court may resolve these issues as we would. (Citations omitted) 9 ,, 10 . ' "Even a cursory examination of the lengthy . 11 statute. . .discloses that the state courts might well have construed the law so as to avoid each of 12 these conceived deficiencies . . . 13 "In sum, both the District Court and the Court of Appeals should have declined to .act until the 14 parties have exhausted available state remedies , at least absent a showing that resort to the state 15 courts would have been futile. There was no need whatever for federal courts to render a 16 declaratory judgment as to the validity of the state law on which the state courts had not yet 17 had opportunity to speak and on behalf of parties against whom the law has not been applied. I 18 would reverse and remand with directions to do now what should have been done initially ." 19 Considered in the foregoing light, the decision of the 20 Ninth Circuit Court of Appeals in Spokane Arcades , although 21 affirmed by the United States Supreme Court, is of little 22 precedential value in. this Court . Therefore, this Court 23 should accept the invitation of Chief Justice Burger to assume 24 the responsibility of rendering a , constitutionally limiting 25 construction of Initiative 335. 26 In any event, Defendants' request for dismissal under CR 27 12(b) (6) of all sections of the Plaintiffs' amended complaint 28 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR DISMISSAL WARREN&KELLOGG,P.S. ATTORUNDER CR 12(b) (6) PAGE 9 .SECON ST.,P.S AT .B 100SO.SECONDST.,�.O.�OX626 RENTON,WASHINGTON 98057 255-8678 1 which rely upon the allegedly infirm remedies of Initiative 2 335 is improper. Should the court find the statute to be 3 constitutionally infirm, the proper remedy is for this court 4 to decline to grant the relief requested following trial of 5 the issues . 6 Defendants' second challenge against Initiative 335 is 7 based upon the case of State vs. Charboneau's, 27 Wash. App . 8 5, 615 P.2d 1321 (1980) , pet. rev. den. 94 Wn. 2d 1021 (1980) . 9 There, Division III of the Court of Appeals held that the • 10 ballot title of Initiative 335 violated Article II, Section 19 11 of the Washington State Constitution. Plaintiffs contend that 12 the decision is incorrect. The Court of Appeals invalidated 13 the Initiative because the ballot title made reference only to 14 the prohibition as nuisances of places where obscene films are 15 exhibited or obscene publications are the principal stock in 16 trade. However, the court found that sub-sections 6 and 7 of 17 Section 2 of Initiative 335 (codified as RCW 7. 48.052 (6) and 18 (7) ) declared certain other places to be nuisances in addition 19 to obscene movie theaters and obscene bookstores as described 20 in the ballot title. Hence, the court came to the conclusion 21 that the ballot title was violative of the state constitution. 22 However , the court overlooked the fact that the 23 provisions of sub-sections 6 and 7 of RCW 7.48.052 are merely 24 a re-enactment of the pre-existing provisions of RCW 7. 48. 050 25 and 7.48.240. As such, the inclusion of the previously 26 enacted statutes into Initiative 335 was mere surplusage , and 27 the question of its inclusion in the ballot title was 28 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR DISMISSAL WARREN&KELLOGG,P.S. UNDER CR 12(b) (6) PAGE 10 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 2554678 1 inconsequential. In any event, upon an appeal from a decision 2 rendered herein regarding the constitutionality of Initiative 3 335, the Washington State Supreme Court will not be bound by 4 the decision of Division III of the Court of Appeals . Upon 5 review, that court may render a proper statutory construction 6 in view of the foregoing arguement . 7 III.. CONCLUSION 8 Defendants' motion to dismiss under rule CR 12(b) (6 ) 9 must be denied . - The Plaintiffs' amended complaint states 10 abundant facts showing that the Plaintiffs are entitled to 11 relief under RCW Chapter 7 . 48A and the common law nuisance 12 statutes (RCW 7.48. 010 and 7.48. 130) , notwithstanding the 13 disposition of Initiative 335. 14 However, this Court and the appellate courts of the 15 State of Washington are under a duty to construe Initiative 16 335 in a constitutional manner despite the prior holding of 17 the facial unconstitutionality of the statute in Spokane 18 Arcades. 19 Therefore , this Court should render an appropriate 20 limiting construction of the statute , if such be necessary, 21 and revive the statute from the summary adjudication by the 22 federal courts as suggested by Dombrowski and Metromedia . 23 DATED: June ol'jl , 1983. 24 Respectfully submitted, 25 26 By DANIEL ELLO G, 27 of Attorneys for P1 iffs 28 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR DISMISSAL WARREN&KELLOGG,P.S. UNDER CR 12(b) (6 ) PAGE 11 ATTORNEYS AT LAW 100 SO.SECOND ST.,I.O.BOX 626 RENTON,WASHINGTON 98057 2SLIl678 • MEMORAI?I ff i, 1) ) statute without guidance from the state h courts, the Court of Appeals wholly ignored t an explicit severability clause and"declined". I. to preserve those parts of the statute not f r -. � found unconstitutional,' demurring that the 1:,,Q�,tIi,DUM CASES reconstruction required to salvage the statute' . would be better handled by"the legislature of the State of Washington." App to Jurisdio- ' 607 (1971) (Burger, C. J.. dissenting). The bond Statement,at 47. N l t v1po.Spokane Arcades,Brackett,e. etc.. Appal- of federalism and comity militate in loot Inc.,nc•.et aL • policieses-who are as In sum, both the District Court and the i favor of affordingd state judg Court of Appeals should have declined to act November 9, 1881. ApPeii from the United capable as are federal judges of enforcing the until Wit parties had esYtausted available i • States Court of Appeals for the Ninth Circuit, Constitution of the United State', and have • state remedies,ie least shaent a showing that The judgment is&fumed. Dissenting opinion taken the same oath to do so-the initial resort to the state courts would have been by the Chief Justice with whom Justice Pow- opportunity to consider the aches and validity futile. There was no need whatever for fed- '-' ell and Justice Rehnquist join. of state statutes.This is particularly so when era! to render • declaratory judgment Same case below.831 if'Zd 136. the state law under consideration has never as to the validity of a state law on which the been applied, suchu when its interpretationestate court,. is state courts have not yet had an opportunity Chief Justice Burger, with whom Justice uncertain; in a case the state court'' speakto and behalf el parties against Powell and Justice RehnWuist join.disssntrug• construction of the statute may obviate the whom the law onos not yet been applied. I lj The Court today affirms i decision of the IIeed for adjudication of the federal constitu- would reverse and remand t ben app ied to Court of Appeals holding unconstitutional a tional issues, or the state court may resolve o now whats have been dew initially. those issue'as we would.Harrison v NAACP, 1 Washington statute which has yet either to be 360 US 167. 3 L Ed 2d 1162, 79 S Ct 1026 + enforced in or construed by • Washington (1868?;City of Mnridiaa v Southern Be11 TeL state court I would acourts from decision &Tel Co.368 US 639,3 L Ed 2d 662,78 S Ct untilp the Wallin interpret courts are given e,an 466 (1959k Railroad Commission v Pullman .— opportunity to interpret the law� d which au Co. 312 US 486, 86 L Ind 971, 61 S Ct 643 a been lhuo invalidated. T�" to do without Us411. federal chat ter'-bars enough r, , i "Preempting"stata courts en matters initiallJ Here,the Court of Appeals invalidated po dof state tions of the nuisance law dealing with the ; issuance of temporary and Permanent igjunc- The Washington "moral.060nuisance" law, tions against establishments exhibiting A E 6 Wash Revs Code $directed et seq. ibi ing tree "lewd" » " matter. on the grounds n4 i. z1 ! > prohibiting lswd or obeoew �public - ive statute directed at recen inter olio,1)"(rep limits are set forth in ' • J that a ' le- sale.a and exhibition anon ofi initiative by the vet- t e statute to confine the discretion of the • ,, en in .a Novel s initiative by vote ��w the temporary abatement in- g• i en in the November 8. 1877 election. Before "Appto Jurisdictional Statement,at ( !.. 1 the statute was even certified by the 8ecrr Junction. that there will j several corporations 44; ?J "there is no assurancethere judicial deter- .' ' engagedtary State. appellee, occur the required prompt in the exhibition, distribution. anal mination on We merits," m; and 3) "a do- • afill sale of movies. books. and atagt Chu, lease of aonobsoealty presumably unavail• i ,-1. . Feb action in the federal entsid court. On able at a trial for violation of en injunction" February ti 1878'•loss than three months (emphesis added). id., at 46. Even a euraory .. ' + afterefore the initiative'seeradoption.and apparentlystatute-which - . examination of the lengthy � � �•: Court it had ever bden applied. the Disttkx contains detailed definitions of"lewd"or"ob• Court declared the law unconstitutional. rating the standards of .i ° i scene" matter incorpo i I have previously outlined the concerns that Miller v California, 413 US 15. 37 L Ed 2d should lead a federal court to stay its hand in 419, 93 S Ct 2607 (1973), which Provides for ( ° cases such as this, when litigants have delib- consolidation of the trial on the merits and i 1 stately avoided resort to the courts of the the hearing on the temporary injunction -i state whose statute is being challenged. grants scheduling priority to cases rought 1 ° I ; 1I Vance v Universal Amusement Co. 446 US under the statute,and which does not specify 1 :N • 308,317-32D. 63 L Ed 2d 413. 100 9 Ct 1156 the defenses available i .fate courts contempt proceed- th f • -c ' J., dissenting); d. Moore v ings--discloses " t ;: City (Burger,(BnuYsr. t City of East Cleveland. 431 US 494, 621-631. well have construed the law so as to avoid } • 62 L Ed 2d 631,97 S Ct 1932(1977)(Burger, each of these perceived deficiencies. It is 4 1 Y , .1 . C.J.,dissenting) Wisconsin v Constantineau, ironic that. having exhibited no hesitation to • 400 U8 433.439-443,27 L Ed 2d 616.918 Ct construe the many provisions of this complex • r a• - • ,. - 1 488- ° ! J , l 1 OF IA z is, .?' OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON V - POST OFFICE BOX 626 100 S 2nd STREET I RENTON.WASHINGTON 98057 255-8678 Z 8181lL C n '''? ^' LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY O94 Qom' DAVID M. DEAN, ASSISTANT CITY ATTORNEY 0gTF0 SEPSEMO June 13, 1983 MARK E. BARBER, ASSISTANT CITY ATTORNEY ZANETTA L.FONTES, ASSISTANT CITY ATTORNEY CITY OF RENTON JUN 141983 TO: BARBARA SHINPOCH, MAYOR MEMBERS OF CITY COUNCIL POLICY DEVELOPMENT DEPT. FROM: Daniel Kellogg, Assistant City Attorney RE: City of Renton, et al.., v. Playtime Theatres, Inc. , et al. It has been sometime since we have brought you up to date regarding developments which have been occurring fast and furiously in our ongoing litigation with Mr. Forbes . As you know, pursuant to the resolution adopted by the Council, we filed in the King County Superior Court an Amended Complaint 'on May 19, 1983 requesting the Court to find that the Renton Theater is a public nuisance in violation of our ordinances, and requesting certain other relief under State law to obtain recovery of our attorney' s fees and other costs of abatement of this public nuisance. On that same date we filed a Motion for a preliminary and permanent injunction which was noted for hearing on June 13, 1983. The object of the preliminary . injunction was to restrain the defendants from use of the Renton Theater as an adult motion picture theater in violation • of our zoning code pending the trial. We also requested that the hearing on the permanent injunction be accelerated and consolidated with the hearing on the preliminary injunction. If granted this would resolve the entire matter at a very early date. Along with the Amended Complaint we served a Notice of Deposition and Supoena Duces Tecum on Playtime Theatres, Inc. requiring the corporation to designate an individual to appear at our offices on June 2, 1983 to testify concerning certain matters, including the identity of the distributors of the motion picture films so that we could subpoena the distributor if possible for the hearing set on the Motion for Preliminary Injunction. Mayor & Members of Council June 13, 1983 Page 2 On May 19 and 25, 1983 we served Subpoenae Duces 'Tecum on the Manager .and/or Projectionist of the Renton Theater requiring them to appear at the hearing, on June .13, 1983 and to bring with them the four specific films which were then being exhibited at the Renton Theater. On May 26, 1983, a Subpoena Duces Tecum was served upon Playtime Theatres Inc.. requiring it to bring to the preliminary injunction hearing twenty-eight • (28) films described in the subpoena if the films were in their possession or control. Mr. Forbes' attorney advised our office on June 1,. 1983 that the corporation would not appear at the deposition set for the next . day. In fact, they did fail to appear. In the meantime, Mr. Forbes ' attorney, on May 20, 1983, filed in the 9th Circuit Court of Appeals their Application for Stay or Alternatively Injunction Pending Appeal. The effect of this application was to request the 9th Circuit to restrain the enforcibility of our ordinance pendirig 'the outcome of the appeal of Judge McGovern's order, notwith- standing the fact that we had prevailed and Judge McGovern had found our ordinance to be constitutional. . On May 31, 1983 we served our response to their Application for Stay._ An extra copy of that response is enclosed to the Mayor and City Clerk should any be interested in reviewing this document. Our response argued that the request for stay should be denied since the facts as found by Judge McGovern were binding upon appeal and therefore_ the appellants are not likely to prevail. Furthermore, our substantial governmental, interest and the interest of the public in the enforcement and integrity of the Zoning Code weighed heavily against granting the stay pending appeal merely upon an allegation of First Amendment infringe- ment which had been overruled in the District Court. We argued that our ordinance was valid under Young. vs. American Mini Theaters and that the stay or injunction application must be denied. Playtime Theatre, Inca' s application for stay is pending before the panel of the Court of Appeals in San Francisco and could be decided at any moment. If the decision is to grant the stay, then the enforcement action which we have commenced would of necessity be stayed because the validity of our ordinance is in doubt. We view the likelihood of the stay being granted as being quite good. When the United States District Court in Spokane upheld the constitutionality of House Bill 626 (RCW 7.48A re: Moral Nuisance) the District Court and the Court of Appeals both granted stays against the State of Washington and the other defendants in that action. r, } , Mayor & Members of Council June 13, 1983 Page 3 Meanwhile, our office was busy preparing for the preliminary injunction hearing on June 13, 1983 and working on means to compel the deposition of Playtime. On. June 3, 1983, Mr. Forbes' attorney filed -a Petition for Removal of the proceedings in the King. County Superior -Court. . This petition was nearly identical to the petition filed over a year ago by which our original State Court action was removed to Federal Court. As you will recall, the issue of the Petition for Removal is to oust the Superior Court of jurisdiction to take further proceedings and the entire cause of action is transferred to Federal Court for resolution. This petition was filed without J notice to our office. Mr. Forbes' attorney knew when they filed their removal petition that there-was .no Federal. Court jurisdiction to support the removal petition. This issue was decided earlier this year when Magistrate Sweigert recommended and Judge McGovern ordered that our State case, which had been previously removed, should be remanded back to the Superior Court. In our judgment, the sole objective of this removal action was to disrupt our preparation for the hearing set on June 13, 1983. In this they were very successful. Since we could not stipulate to Federal jurisdiction, we lost the June 13, 1983 hearing date. Further- more, substantial dispute over the validity and enforcibility of the State Court subpoenas now exists because of the fact that they were returnable to a State. Court proceeding which has been removed and the hearing..stricken. Although we know that the four specific movies were in the custody and control of the theater personnel on the dates on which the subpoenas were served, we have every reason to believe that the personnel under subpoena will not retain the films once the subpoenas expire. In all likelihood, the individuals personally under subpoena .ij,: probably were informed by Mr. Burns that they need not comply with our subpoenas anyway. Furthermore; 'once the State case was` removed, we could no longer issue State court 'subpoenas to compel the delivery to court of the two films which were shown through last Thursday. In addition, since there was no hearing set in the Federal court, we could not obtain the issuance of a Federal Court Subpoena by the Clerk to compel the, preservation of the two films shown last week at a time when we would know that the films were in the possession of the Manager or Projectionist. Mayor & Members of Council June 13, 1983 Page 4 As you can see, the Petition for Revmoval and slow pace of the Federal Court's review of the Petition have substantially disrupted our State Court proceeding. We immediately began highly concentrated effort to compel the Federal Court to remand our case back to State Court and to award terms in the form of attorney' s fees for the necessity of this second remand proceeding. Pleadings in support o.f our motion for remand and an expedited hearing thereof were served and filed on Wednesday, June 8, 1983. We had requested a hearing on our Motion for Remand before Judge Coughenour on Friday, June 10, 1983. The Court refused to grant this hearing on the merits but scheduled- a status conference for 8: 30 A.M. that morning to consider the issues of interim relief to protect the evidence which we had subpoenaed in the State Court action. On Friday, Judge Coughenour set hearing on our Motion for Remand for June 16, 1983 at 4: 00. P.M. This is extraordinarily prompt for a hearing of this type: Judge Coughenour further ordered that the City could obtain the issuance of subpoenas to protect the evidence under subpoena in the State action. The effectiveness of these subpoenas will be hotly contested by Mr. Burns . However, he made several very damaging admissions on the record. On the whole we view the hearing to have been a limited success. At least we have done everything within our power to reserve the jurisdiction of some court to hold on to the evidence while it is in the possession of Playtime in order to support our case that the films being exhibited are a public nuisance and in violation of our ordinances . I I. To add insult to injury, Mr. Burns 'has filed a Motion for Change of Venue from the Western District of Washington to the Eastern District of Washington. This request is totally without merit j and we believe it will be promptly dismissed by the District Court even if the District Court declines to remand our case. I mention this Motion for Change of Venue only to underscore the extent to which our opponent , is apparently willing to stoop in order to attempt to keep us off balance and to frustrate our nuisance abatement proceedings ' which must be very discouraging to them. We have every reason to believe that if we can ever get this matter before a Judge on the merits that we will prevail with a "finding that this land use is a nuisance and should be abated.' . • Mayor & Council Members June 13, 1983 • Page 5 • • In summary, our Motion for .'Remand to move our State _Court case back to the King County Superior Court will be heard before Judge Coughenour on June 16, 1983 at 4: 00 P.M. Immediately upon issuance of the remand, we will set the preliminary injunction hearing for the earliest possible date. The appeal proceedings. from. Judge McGovern's order to the 9th Circuit Court of Appeals are proceeding. We • are awaiting a decision regarding Plaintiffs' application for a stay or injunction pending appeal. We understand that this. is extremely complicated. This report, though much too lengthy; merely hits the high points of the efforts which we have expended in an attempt to .prosecute our .nuisance abatement action in a competent and expeditious fashion and .to overcome the procedural obstacles which are constantly being thrown in our path. We would invite inquiries from parties desiring further information. .Very truly yours , • Daniel Kellogg DK:bjm Enc. cc: City Clerk David Clemens . ,& (1&. OF R4, 4, s?' OFFICE OF THE CITY ATTORNEY e RENTON,WASHINGTON ~• 4A • ',© POST OFFICE BOX 626- 100 S 2nd STREET • RENTON. WASHINGTON 98057 255-8678 selL , LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY .0 DAVID M. DEAN, ASSISTANT CITY ATTORNEY o91TF0 SEP�����P MARK E. BARBER, ASSISTANT CITY ATTORNEY Nay 19, 1983 ZANETTA L.FONTES, ASSISTANT CITY ATTORNEY TO: Thomas Trimm, President, and CITY OF l��P��s"C��,I Members of Renton City Council FROM: Daniel Kellogg, Assistant City Attorney MAY 2 0 1983 POLICY RE: Playtime. Theater DEVELOPMENT )EFT. Dear Tom: Following the Council meeting of May 16 , 1983 , and in careful review of the Resolution form which we presented to the Council that night, in light of the discussion during the Executive Session and the public session thereafter, our office became concerned that the form of resolution presented did not place the proper emphasis upon the Playtime litigation remedies . For that reason, we have prepared a substitute Resolution for consideration by the Council at the meeting on May 23 , • 1983 , a copy of which is enclosed for your review. We believe that you will find that the changes in the Resolution are not so much a matter of substance as they are the emphasis upon the abatement of the illegal land use which the Renton Theater comprises under our Adult Entertainment Ordinance. For that reason, we would request that the. President of the Council raise this matter for discussion during Old Business on May 23 , 1983. We would suggest that the motion be to rescind the resolution form which was adopted by motion on May 16, 1983 and to substitute in its place the form of resolution as we have redrafted it after consulting with the Mayor' s office. We would desire that this legislation be enacted at the earliest convenience of the Council in order to provide support for the legislative determination that the films displayed at the Renton Theater are in violation of our Land Use Ordinance at that location, so that our office can take whatever remedies. may be proper to assist the City in collection of the substantial Thomas Trimm and . Members of Renton City Council Page 2 . . May 19, 1983 sums of money which have been expended through the Federal Court and State Court litigation. We would request that any questions which you may have be directed either to Mr. Warren or myself. Daniel Kellogg DK:nd Encl.. . cc : Mayor . City Clerk Dave Clemens CITY OF RENTON, WASHINGTON RESOLUTION N0: • • A RESOLUTION OF THE 'CITY OF RENTON, WASHINGTON DECLARING A PUBLIC NUISANCE AND ORDERING THE . CITY ATTORNEY• TO TAKE ALL STEPS NECESSARY TO ABATE THE SAME • WHEREAS. the City ' Council of the Cit • o y f Renton has previously passed Ordinances controlling adult movie '.picture theaters , and WHEREAS : the. reasons for the passage o4 those Ordinances • still continue, and WHEREAS. upon the instructions •of the City Attorney of the City of Renton a continuous surveillance of the films being exhibited at the Renton Theater has been maintained,' which surveillance shows that, during the five month period from January 20, 1983 through this date, approximately 14 programs have been exhibited at said theater with each program containing two motion picture films . The titles of the films exhibited and the approximate playing date of each is as follows : Date ' ' Program • 1/20/83 - 2/10/83 Deep Throat' Devil in Miss Jones 2/11/83 - 2/17/83 Blue Jeans ' Naughty Network . 2/18/83 - 3/3/83 . American Desire . • All American Gi-ls • 3/4/83 - 3/10/83 Foxholes • Randy, • thdR•Electric 'Lady 3/11/83 -' 3/17/83 Scoundrels . Foxtrot • 3/18/83 - 3/24/83 . Irresistible Schererazade, One Thousand and One Erotic Nights • 3/25/83 - 3/31/83 Satisfactions . Pandora' s Mirror 4/1/83 - 4/7/83 Debbie Does Dallas Debbie Does Dallas II • • -1- 4/8/83 - 4/14/83 . Little Girls host Ring of• Desire 4/15/83 - 4/21/83 The Dancers Between the Sheets • 4/22/83 .- 4/28/83 Daddy's Little Girls The Little French Maid 4/29/83 - 5/5/83 Every Which Way She can Nightlife 5/6/83 - 5/12/83 Stormy Expose me Now 5/13/83. - present Young Doctors in Lust Intimate Explosions and WHEREAS the City Council of the City of Renton has examined portions of the aforementioned films and has received testimony that all of the above-mentioned films are of the same nature,as those portions viewed and that each and every.. one of .the above-mentioned films is obscene under the law of the State 'of Washington, NOW THEREFORE , li THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO RESOLVE AS FOLLOWS : SECTION I : . The twenty-eight films more particularly described above which have been exhibited at the Renton Theater are l a public nuisance under the City' s Ordinances controlling adult motion picture theaters and require court action to enjoin further violation of the City' s Ordinances . - - SECTION II : The City of Renton.'' .as.• expended substantial funds to defend. its ordinances regulating adult motion picture theaters and will expend further monies. in ' seeking injunction and' abatement of this public' •nuisance. . The City Attorney'.s office is directed to seek recovery of the attorneys ' fees and costs whether they be attorneys' fees , costs of preparation of evidence or whatever other costs and fees relating to this particular use. and to use whatever means are available -2- • • N. tor :uich !recovery, including the State. laws. of abatement of moral nuisances , obscenity laws ' or other available means . . SECTION III : The 'City Attorney of the City of Renton is ' directed to file on behalf of the City of Renton in .the. King County . Superior Court Cause Number 82-2-0234402,' entitled CITY OF. RENTON, a municipal corporation; LAWRENCE J.' WARREN, City Attorney of the City`• of Renton; STATE OF WASHINGTON, ex. r'el : LAWRENCE' J. WARREN, City Attorney of the City of Renton, vs . PLAYTIME' THEATRE'S,' INC.. , a Washington • corporation, KUKIO BAY PROPERTIES, INC. , a Washington corporation, ROGER H. FORBES and JANE DOE FORBES , husband 'arid' wife,' ROBERT B . McRAE and . ELIA C . McRAE and .DOES 1 THROUGH 10 , a First Amended and Supplemental I Complaint for Declaratory Judgments ; Injunctions ; Abatament of Moral . Nuisances '(RCW. CHAPTER 7 . 24, 7 . 40 , 7 .48 .AND 7 :48A) , and to join the • City of Renton as a Plaintiff to .enforce the 'statutes ,of the State of Washington relating to abatement of obscene subject matter and moral • nuisances , and the provisions of the. City Zoning Code. • PASSED BY THE CITY COUNCIL this day of May, 1983 . Maxine E. Motor, City Clerk APPROVED BY THE MAYOR this 'day 'of May, 1983'. • Barbara Y. Shinpoch, .Mayor Approved as to form:. r • • Lawrence J. Warren, City Attorney . -3- 1 cc to : . .HONORABLE WALTER. T. McGOVERN 2 LOGSED 4 • RECEl\ 5 `; Ii R1a. 1333 6U.S. ,�;; .,_r ccul,T On . 7 8 . . UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 • 10 PLAYTIME THEATRES, INC. , . ) et al. , ) NO. C82-59M 11 ) • Plaintiffs ) RESPONSE OF CITY OF RENTON, ET 12 ) AL, TO PLAYTIME THEATRES , INC. , . vs ) ET AL, MEMORANDUM IN SUPPORT OF 13 ) PLAINTIFFS' MOTION TO ALTER OR THE CITY OF RENTON, et al.', ) AMEND JUDGMENT DENYING PLAINTIFFS ' 14 • ) • PRAYER FOR A PERMANENT INJUNCTIO3 Defendants ) AGAINST THE ENFORCEMENT OF RENTON 15 ) ORDINANCE NO. 3637 . 16 ) MARCH 18 , 1983 17 INTRODUCTION 18 City of Renton Ordinance No. 3526 , passed and adopted on 19 April 13, 1981 , was modeled after the Detroit Zoning Ordinance which 20 had been .approved by the United States Supreme Court five years 21 earlier in Young, et al v. American Mini Theaters, et al , 427 U. S. 50 22 (June 24, 1976) . 23 Renton Ordinance 3526 prohibited the location of an 24 "adult motion picture theater" within certain distances of specified 25 land uses in the City of Renton; namely, residential zones , single 26 family or multiple family residential uses., public or private schools , 27 churches or other religious facilities , public parks or the P-1 zone . 28 RESPONSE OF CITY OF RENTON TO PLTFS ' MOTION TO ALTER OR DENY JUDGMENT -1 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST., P.O. COX 626 RENTON. WASNINGTON 98057 • 255.8678 1 Thereafter , the Renton City Council enacted Ordinance 2 No. 3637 as an amending Ordinance, and therein limited the reach 3 of Ordinance 3526 in two major respects : 4 (1) The City Council specifically limited the meaning of..: 5 the word "used" which appeared in the definition of "adult motion 6 picutre theater" in the model Detroit Zoning Ordinance and its "copy- 7 cat" counterpart , Renton Ordinance 3526 (see above) to prohibit only 8 that use of a theater which constitues "a continuing course of. conduct 9 of exhibiting ' specific sexual acivities ' and ' specified anatomical 10 area' in a manner which appeas to a prurient interest" ; and 11 (2) The City Council specifically limited the exercise of • 12 governmental law enforcement power which is available against suspect 13 zoning violations in the City of Renton to abatement "by City Attorney 14 by way of civil abatement procuedures only and not by criminal 15 prosecution" . The City Council also increased the "notice provisions" 16 of the ordinance by declaring that, pursuant to its traditional power 17 to abate public nuisance 1 "a violation of the use provision of this 18 section is declared to be a public nuisance per se" 19 1"Under the specific grant of authority contained in ROW 35.22.280, 20 a city of the first class in the State of Washington has the following special power: (31) to declare what shall be a nuisance • 21 and to abate the same, and to impose fines upon parties who may create, continue or suffer nuisances to exist: and in addition, 22 the following related powers: (34) to regulate the carrying on within its corporate limits of all occupations which are of 23 such a nature as to affect the public health or the good of said city, or to disturb the public peace, and which are not prohibited 24 by law, and to provide for the punishment of all persons violating such regulations, and of all persons who knowingly permit the same 25 to be violated in any building or upon any premises owned or controlled by them; (36) to provide for the punishment of all 26 disorderly conduct, and of all practices dangerous to public health or safety, and to make all regulations necessary for 27 the preservation. of public morality, health, peace and good order within its limits, . . ." ?8 RESPONSE OF CITY OF RENTON TO PLTFS ' MOTION TO ALTER OR DENY JUDGMENT - 2 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST.. P.O. COX 620 RENTON, WASHINGTON 93057 255.8378 • • 1 I. The only issue before this Court on Plaintiffs ' motion to alter. or amend the judgment pursuant 2 to FRCP Section 59 (e) is whether this court • correctly denied Plaintiffs:' prayer for a 3 permanent injunction against enforcement of Renton Ordinance No . 3637 . The original ordinance 4 No. 3526 is not an issue on this motion. ' 5 At page 1, lines 16, to 20 of their "Memorandum In Support of • 6 Motion to Alter or Amend Judgment" Plaintiffs have correctly framed 7 the issue which is before the court at this time as : • 8 • "COME NOW Playtime Theaters , Inc . , and Kukio Bay Properties , INc. , the Plaintiffs herein, and move 9 the Court to reconsider its decision filed February 10 18, 1983 denying Plaintiffs' prayer for a permanent injunction against the enforcement of Renton 11 Ordinance No. 3637" • 12 The constitutionality and application of its predecessor ordinance• . 13 No. 3526 is not before the court on this motion. What is before this 14 Court is Ordinance 3526 as clarified by amending ordinances 3629 15and 3627 . 2 16 1 See, however, 2A Sutherland, Statutory Construction (4th Addition 1973) Section 49.11, pages 265-266 where the author notes that amending legislation 17 is "strong evidence" of what the legislature intended in the first enactment: "Section.49.11. Legislative interpretations•of former.statutes. 18 Where a former statute is amended; or a doubtful meaning of a former statute rendered certain by subsequent legislation, a 19 number of courts have held that such amendment or subsequent • legislation is strong evidence of what the legislature intended 20 by the first statute. . ." Citing Groves v. Meyers,35 Wn 2d. 403, 213 P.2d 483 (1950) and Miller v. 21 St. Regis Paper Company, 366 P.2d. 214 (Wn 1963) and "wzether or not a subsequent statute sheds light on the 22 meaning of a former statute depends on a number of circumstances. Where the original law was subject to very serious doubt, by 23 permitting subsequent amendments to control the former meaning . a great deal of uncertainty in the law is removed. And the 20- , legislature is probably in the best position to ascertain the most desirable construction. In addition it is just as probable 25 that the legislature intended to clear up uncertainties, as it did to change existing law where the former law is changed in 26 only minor details. Thus, it has been ascerted that 'one well recognized indication of legislative intent to clarify, rather 27 than change, existing law is doubt or ambiguity surrounding a statute. '" - 2 8 Citing Bowen v. Statewide City Employees Retirement System, 433 P.2d 150 (Lin 1967) . RESPONSE TO CITY OF RENTON TO PLTFS ' WARREN & KELLOGG. P.S. MOTION TO ALTER OR DENY JUDGMENT - 3 ATTORNEYS AT LAW 100 SO. SECOND ST.. P.O. BOX 626 RENTON, WASHINGTON 98057 255-8878 • 1 II. The United States District Court ' s findings that 2 Ordinance 3637 was constitutional on its face under the test prescribed by the United States Supreme 3 Court in U. S . v.. O'Brien required that the Defendant' s _ summary judgment motion be granted on the ground that 4 the Plaintiffs have failed to state a claim upon which relief can be based. 5 In U. S. vs . O'Brien, 391 U. S. 367 , at 377 (May 27 , 1968) the 6 United States Supreme Court prescribed the following tests for . ? constitutionality where a claim was made, as here, that governmental 8 regulations unlawfully interferred with First Amendment freedoms : 9 " . . .To characterise the quality of the governmental 10 interests which must appear, the court has employed a variety of descriptive terms : compelling; 11 substantial ; subordinating; paramount; cogent ; strong. Whatever impression inheres in these terms , we think 12 it clear that a government regulation is sufficiently justified if it is within the constitutional power of 13 • the government; if it furthers an important or substantial governmental interest; if the governmental 14 interest is unrelated to the supression of free expression; and if the incidental restriction on 15 alleged first amendment freedoms is no greater than is essential to the furtherance of that interest . We 16 find that the 1965 amendment of Section 12(b) (3) of the Universal Military Training and Service Act 17 meets all of these requirements , and consequently that O'Brien can be constitutionally convicted for 18 violating it. " 19 In its order at page 8 , line 10 through. page 13, line 3 , the trial 20 court examined City of Renton Ordinance 3637 in the light of the 21 above described four-part O'Brien test andconcluded : 22 "Renton' s effort under the circumstnaces is not unconstitutional under the First Amendment . 23 Injunctive relief from enforcement of the order 24 would be improper . " 25 Having found, as a matter of law, that Renton Ordinance 3637 26 was constitutional on its face , the trial court was required to 27 deny the Plaintiffs ' motion for a permanent injunction and grant 28 the City' s motion for summary judgment . It is elementary that a RESPONSE OF CITY OF RENTON TO PLTFS ' WARREN & KELLOGG. P.S. MOTION TO ALTER OR DENY JUDGMENT - 4 ATTORNEYS AT LAW 100 SO. SECOND ST.. P.O. BOX 626 RENTON. WASHINGTON 98057 255-8678 1 .court has no power to grant a motion for a permanent injunction • 2 under a complaint which (1) fails to state a cause of action upon 3 which relief can be based, and (2) cannot be amended so as to cure 4 such defects . Federal Rules of Civil Procedure Section 12(b) (6) . 5 The fact that the trial court , in the same order, denied the City' s 6 motion to dismiss upon the same grounds (FRCP, Section 12(b) (6) ) 7. does not present an inconsistency, inasmuch as Amending Ordinance 8 3637 did not appear on the face of the "Amended and Supplemental 9 Complaint for Declaratory Judgment and Preliminary and Permanent 10 Injunction" and, under one view, a summary dismissal could only be 11. ad by summary judgment motion. 3 12 III. The Plaintiffs ' claim that the court's decision • 13 is contrary to the established facts of- the case is foreclosed by the trial court ' s finding that 14 ordinance 3637 was constitutional under U. S. v. O'Brien. As a matter of law, the court was 15 required to grant the Defendant' s Motion for Summary Judgment. 16 Plaintiffs apparently claim that this Court cannot review, de 17 novo, the evidence adduced at the hearings for Temoporary Restraining 18 Order and for Preliminary Injunction, and find new or additional facts 19or amend facts erroneously found. No authority for such a sweeping 20- 21 3See 2 Sutherland, Statutory Construction (Fourth Edition 1973) Section 39.05, page 127 where the author states: 0 22 "Court of general jurisdiction may not, according to the majority rule and in the absence of statutory provisions to the contrary, take 23 judicial notice of municipal ordinances";. But further notes that the majority rule has been the object of criticism on the 24 grounds that it frequently results in decisions not founded on all of the law of the case'. The author criticizes the majority rule and suggest that the 25 trial court should have power to- judicially notice all ordinances which are available 'to it, and point out that the Vernnnt Supreme Court in Eno v. City 26 of Burlington, 125 Vermont 8, 209 A.2d 499 (1965) has held that such could be done by agreement of the parties at time of argument even though the 27 court could not on its own motion take judicial notice of an ordinance which had not been made a of the record. , 28 RESPONSE OF CITY OF RENTON TO PLTFS' MOTION TO ALTER OR DENY JUDGMENT -5 WARREN & KELLOGG. P.S. "I ATTORNEYS AT LAW _ .100 SO. SECOND ST.. P.O. BOX 626 RENTON. WASHINGTON 98057 255-8673 1 proposition has been cited and apparently none exist. The very 2 relief requested by Plaintiffs in the instant motion is the 3 complete answer to Plaintiffs ' objection. Under FRCP 59 this Court 4 may alter or maned a previously entered erroneous decision. 5 Under the trial court' s ruling that Ordinance 3637 is constitutional 6 on its face under the four-part test of U. S. v. O'Brien (see point 7 2, supra at page 4 ) that claim is no longer available to them. 8 Because Renton Ordinance 3637 has been declared to be constitutional 9 on its face, Plaintiffs ' civil rights claim under 42 U. S. Code 10 . Section 1983 is now infirm -and requires a dismissal under FRCP 11 Section 12(b) (6) for failure to state a claim upon which relief 12 can be based. 13 . In veiw of the trial court ' s ruling, all of the allegations 14 which are aimed at raising "Schad" issues are immaterial and are 15 subject to a motion to strike under FRCP Section 12 (f) . 16 The Court' s discussion of what Plaintiffs refer to as the 17 "established facts of the case" , is nothing more than the court' s 18 response that the Schad issue and Plaintiffs ' other claims are 19 bogus and that the facts which are addressed to the Schad claim 20 are inapposite. . 21 . IV. The Plaintiffs have addressed their arguments 22 to the wrong ordinance . 23 At page 13 , lines 15 to 22 , of their Memorandum in Support 24 of Motion to Alter or Amend Judgment, Plaintiffs are in error when 25 they make the following argument : 26 "This ordinance differentiates between theaters 27 (adult/general release) solely on the basis of the image shown on the screen inside the theater . ?8 In order to justify this classification, there RESPONSE OF CITY OF RENTON TO PLTFS' MOTION TO ALTER OR DENY JUDGMENT - 6 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST., P.O. BOX 626 RENTON. WASHINGTON 98057 255-8678 1 must be some operational characteristic that distinguishes adult theaters from general 2 release theaters . As demonstrated by the deposition testimony of. David Clemens , the City 3 was unable to identify any problems unique to adult theaters other than assertions of crime 4 and decreased property values . " (our emphasis) 5 While such an argument would be apposite if this court were consider- 6 ing the constitutionality of Ordinance 3526 in its unamended form, 7 such is not the case . Here the amended Ordinance 3637 is under 8 scrutiny and that ordinance does not 'aifferentiate between theaters 9 (adult/general release) solely on the basis of the image shown on the 10 screen. " As is pointed out in the introduction to this response 11 (see page 2 , supra) the differentiation as to Ordinance 3637 is 12 not between theaters which are used to exhibit adult and general 13 .release films but rather between theaters which may exhibit "adult 14 release films" occasionally and in a ligitimate manner and those 15 which exhibit "adult release films" in a manner which appeals to 16 prurient interests and as a continuing course of conduct . When 17 one applies the minor premise to the Plaintiffs ' about described 18 . major premise that "in order to justify this classification, 19 there must be some operational characteristic , that distinguishes the 20 classification" , the conclusion is obvious that the clas-sification 21 is proper. 22 That the Plaintiffs have erroneously focused their arguments 23 is shown by their stated reliance upon the deposition testimony 24 of David Clemens which related to Ordinance 3526 and was taken 25 before Ordinance 3637 was enacted. David Clemens is a member of 2.6 1 the Administrative staff of the City and exercises no legislative .' ' 27 authority. Mr. Clements testimony is his recollection of what 28 transpired before the first ordinance was enacted. It is not di RESPONSE OF CITY OF RENTON TO PLTFS' WARREN & KELLOGG. P.S. MOTION TO ALTER OR DENY JUDGMENT - 7 ATTORNEYS AT LAW 100 SO. SECOND ST., P.O. COX 826 RENTON, WASHINGTON 93057 255-13G7a • 1 probative of the thoughts of the City Council members . The use of 2 his deposition testimony is an attempt to collaterally attack the 3 fact finding and legislative process of the City Council . Rather 4 than producing a full record for this Court to review, Plaintiffs 5 seek to attack the legislation through the testimony of one only 6 collaterally involved. Such an approach has been judicially rejected. 7 See Lillion v. Gibbs 47 Wn 2d 629, 633, 299 P. 2d 203 (1955) . 8 - "In the absence of fraud, this court will note inquire into the motives which actuated the local 9 legislative body to enact, or fail to enact , an ordinance or resolution. (citations omitted) . 10 11 There being not even a hint of fraud, the adequacy of the legislative 12 history is not a proper issue. for this Court: To review the legisla- 13 tive history would be an impermissive violation of the doctrine 14 of separation of powers . Swartout y. Spokane, 21 Wn App . 665 , 670, 586 15 P. 2d 135 (1978) "We have always held to the rule that the legislative 16 declaration of the facts constituting the emergency is conclusive , unless , giving effect to every 17 presumption in its favor, the court can say that such legislative declaration, on its face, is obviously 18 false and a palpable attempt at dissimulation. . . 19 "It is also well settled, both here and elsewhere, that, in determining the truth or falsity of a 20 legislative declaration of a fact, the court will enter upon no inquiry as, to the facts , but must ' 21 consider the question from what appears from the face of the act, aided by its judicial knowledge. " 22 And Harris v. Hornbarker, 98 Wn 2d 650, 657 P. 2d (Feb. 1983) 23 "The rule that courts generally will not inquire 24 into the motives of legislative officers acting in a legislative capacity is not new. See 1 C. 25 Antieau, Municipal Corporation Law § 5 . 5 (1982) ; 5 E. McQuillin, Municipal Corporations § 16 . 90 26 (3d rev. ed. 1981) ; Cornelius v. Seattle, 123 Wash. 550, 213 P. 17 (1923) ; Goebel v. Elliott , 178 27 Wash. 444, 35 P. 2d 44 (1934) . 28 "Municipal legislation is not to be nullified by the judicial branch of government unless the RESPONSE OF CITY OF RENTON TO PLTFS ' WARREN & KELLOGG. P.S. MOTION TO ALTER OR DENY JUDGMENT - 8 ATTORNEYS AT LAW 100 SO. SECOND ST.. P.O. 60X 626 RENTON. WASHIN,TON 9E057 255-8678 1. enactment contravenes the constitution or is manifestly unreasonable, arbitrary and capricious . 2 3 "Fleming v. Tacoma, supra at 301 (Neill , J. concurring) . _ 4 Exhibition of "specified sexual activities" or "specified 5 anatomical areas" in unrestricted portions of the business zone 6 within the City is not. a public nuisance per se. Even if the 7 Plaintiffs exhibit such acitivies in a residential zone, it is not 8 a violation of the zoning ordinance until the conduct can be shown to 9 be a "continuing course of conduct". Further , innocent or negligent 10 exhibitions do not establish a zoning violation inasmuch as the 11 continuing course of conduct must be presented "in a manner which 12 appeals to a prurient interest". 13 V. The City 'of Renton was not- required to conduct a 14 study and gather expert testimony and empirical evidence on the adverse effects of adult uses on 15 neighborhoods as a condition precedent to the enactment of Ordinances 3526, 3629 and 3637 . In 16 the performance of its legislative function , the Renton City Council was entitled to take judicial notice of both. "adjudicative facts" and 17 "legislative facts' which have already been 18 established in the development of the "model". zoning ordinance upon which the Renton ordinances 19 are based. 20 In their "Memorandum in Support of Motion to Alter or Amend 21 Judgment" at page 11 , lines 12-19 , the Plaintiffs erroneously 22 contend that the City must conduct a study and gather expert testimony 23 and empirical evidence before it can enact an adult use zoning 24 ordinance. Contrary to the Plaintiffs ' contention, identical 25 ordinances need not be tested anew each time such an ordinance is 26 enacted by a different governmental entity. There is no constitu- 27 tional requirement that each successive city independently establish 28 enactment. See City of .Whittier v. Walnut Properties , Inc . 189 RESPONSE OF CITY OF RENTON TO PLTFS' WARREN & KELLOGG. TO ALTER OR DENY JUDGMENT - 9 ATTORNEYSS AAT ATTORNEYS P.S. LAW 100 SO. SECOND ST.. P.O. COX 626 RENTON. WASHINGTON 98057 • • 1 Cal Rpt 12 (February 1, 1983) where the California Court of Appeals , 2 Second District, Division 4, held on this identical issue, at 3 page 18: 4 "The City must buttress its assertion with evidence that the State interest has a basis in fact and 5 that the factual basis was considered by the City in passing the ordinance. (Avalon Cinema Corp . v. 6 Thompson, supra, 667 F. 2d 659, 661. ) However, identical ordinances need not be tested anew 7 each time they are enacted by a different governmental entity by establishing the actual existence of local 8 conditions which would justify it. ' . . . lawmakers in one locale (should not be denied) the benefit of 9 the wisdom and experience of lawmakers in another community, no matter how similar the circumstances ; 10 . . . ' (see County of Sacramento v.. Superior Court , Goldies Bookstores , Inc . ) (1982) 137 Cal . App 3rd 11 448, 454, 455, 187 Cal Rptr 154) ' the factual basis ' behind certain types of zoning laws , insofar as those 12 zoning laws require dispersal or deconcentration, • 13 has been developed by testimony in other cases . Sociologists and urban planners have testified that a concentration of adult movie theaters in limited 14 areas leads to the deterioriation of surrounding neighborhoods . (See Young v. American Mini Theaters , 15 supra, 427 U. S. 50 at page 80, 96 S.Ct. 2440, at page 2457 , 49 L.Ed. 2d 310) . This testimony is 16 sufficient and the City. need not bring their own 17 sociologist to apply these observations to the } City of Whittier. " 18 As to identical state statutes , see 2A Sutherland, Statutory 19 Construction, (Fourth Edition 1973) Section 52. 02 "Statutes Copied 20 from Other States" at page 329 , et seq. and Section 52 . 03 "Similar-- 21 Statutes of Other States" at page 337 , et seq. The test prescribed 22 by the United States Supreme Court in U. S. v. O'Brien, supra, makes 23 no special demand of cities in the enactment of ordinances which 24 may impact the First Amendment area. The Renton City Council , 25 in performing its legislative duties is entitled to take judicial 26 notice of both "adjudicated facts" and "legislative facts" which 27 have already been established in the development of the model zoning 28 ordinance upon which the Renton adult use ordinance is based. RESPONSE OF CITY OF RENTON TO PLTFS ' WARREN & KELLOGG. P.S. MOTION TO ALTER OR DENY JUDGMENT - 10 ATTORNEYS AT LAW 100 SO. SECOND ST.. P.O. BOX 626 RENTON. WASHINGTON 98057 .155-8678 • 1 The requirements for taking judicial notice in Federal Courts 2 are set forth in Federal Rules of Evidence, Section 201 . Section 3 201 draws a distinction between "adjudicative facts" and "legislative 4 facts". "Adjudicative facts" have been described as simply the 5 facts of the particular case which are determinative of the outcome 6 of litigation. Such acts are ordinarily established by evidence " 7 unless they are of such character that by common acceptance they 8 stand as established without other proof. It is these "facts with. 9 which the rules of judicial notice deal. See 1 Jones on Evidence, 10. 6th Edition, Section 2. 9 ., See also Advisory Committee ' s Note to 11 Rule 201, as promulgated by the Supreme Court. "Legislative 12 facts" have been described as that great body of information and . 13 expository material which contributes to rationalization by capable, 14 intelligent, and objectively thinking people in the process not 15 only of ascertaining what the common law and social concepts are, 16 but also in promoting their improvement and development . It is not 17 concern with the specific facts which are relevant to the resolution 18 of a disputed factual situation in a given case . See 1 Jones on 19 Evidence, 6th Edition, Section 2. 9. See also Advisory Committee ' s 20 Note to Rule 201, as promulgated by the Supreme Court . - - 21 In veiw of the fact that the Renton City Council had before it 22 the same "model" zoning ordinance which was at issue in Apple 23 Theater , Inc. v. City of Seattle,. 90 Wn 2d 709 , 585 P . 2d. 1153 24 (Oct. 19 , 1978) it had every right to take judicial notice of the 25 findings of the trial court and conclusions of law of the Washington 26 State Supreme Court in that case, upholding those findings . See 27 in this regard, Weiner v. Mitchell , Silberberb and Knupp , 179 Ca. 28 Rptr. 533 , where the California Court of Appeal , Second District RESPONSE OF CITY OF RENTON TO PLTFS ' WARREN & KELLOGG. P.S. MOTION TO ALTER OR DENY JUDGMENT - 11 ATTORNEYS AT LAW 100 SO. SECOND ST.. P.O. BOX 626 RENTON. WASHINGTON 98057 255.8678 1 Division Three stated at page 537 : 2 ". . .We hold that it was proper for the trial court 3 and it is proper for us . . . to take appropriate judicial notice of both the pertinent facts stated 4 in the appellate opinion and of the judgment in the aforementioned U. S. v. Weiner , supra, 578 F. 2d 757 (Cf Estate of Guerin, (1961) 194 Ca. App . 2d 566 , 5 569, 15 Ca. Rptr. 12)" 6 The court in Apple Theater, Inc. , supra, thereafter stated at 1195 : 7 " . . .The record is replete with testimony regarding 8 the effects of adult movie theater locations on residential neighborhoods . The evidence is more 9 than adequate to support the finding below that the • goal of the ordinance is to preserve the character • 10 and quality of residential life in the city. . . 11 . . .We conclude the city' s paramount interest in protecting, preserving, and improving the character 12 and quality of its residential neighborhoods is sufficient to justify this non-discriminatory 13 zoning regulation of the location of adult movie theaters . We find no violation of First Amendment 14 or equal protection guarantees . . . • 15 In their Memorandum in Support of Motion to Alter or Amend 16 Judgment at page 18 , lines 13 - 20, the Plaintiffs content that, 17 because there was no special study., expert testimony, or empirical 18 data, etc. there has been a shifting of the burden of proof on the 19 issue of compelling governmental interests . The complete answer 20 to this burden of proof issue appears in that part of the Court' s 21 order at page 10, lines 0 to 20 where the court has recognized the 22 City Council ' s right to take notice of well known facts : 23 24 "Certainly, Renton must justify its ordinance, but in so doing, experiences of other cities and towns 25 must constitute some evidence to the legislative body considering course of action. Genusa v. City 26 of Peoria, 610 F. 2d 1203 , 1211 (7th Cir 1980) . If the goal of preservation of the quality of urban 27 life is to have any meaning, a city need not await deterioration in order to act . i. d. The observed 28 effects in nearby cities provides persuasive RESPONSE OF CITY OF RENTON TO PLTFS ' MOTION TO ALTER OR DENY JUDGMENT - 12 WARREN & K ATTORNEYSS A AT , P.S. T LAW AW 100 SO. SECOND ST.. P.O. DOX 628 RENTON. WASHINGTON 98057 2515-8678 9 1 circumstantial evidence of the undesireable secondary effects Renton seeks to preclude from within one 2 thousand feet of residential zones , schools , religious facilities , and public parks . " 3 4 Faced with this same issue, the Court of Appeals , Third Sitrict, 5 in County of Sacramento v. Superior Court, 187 Cal . Rptr. 154 6 (November 16, 1982) accurately observed that governmental bodies 7 are not required to reinvent the wheel countless times over where 8 mere access to common knowledge would render the considerable .. I 9 effort involved unnecessary. County of Sacramento v. Superior Court, 10 supra. 11 CONCLUSION • 12 The Defendants submit that the Court' s decision entered herein 13 is correct and not in need of correction or alteration as requested 14 by Plaintiffs . Therefore,. the Defendants request that the Plaintiffs ' 15 Motion for Correction or Alteration of the Judgment be denied. 16 Dated March 14, 1983 . 17 Res-pectful submitted 18 19 . ' Lawrence.:Jc—Warren it 20 1 21 22 23 1' 24 I , 25 26 27 _ :ti:nd 28 RESPONSE OF CITY OF RENTON TO PLTFS' ,I 14/83 MOTION TO ALTER OR DENY JUDGMENT - 13 ' WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST., P.O. BOX 626 RENTON, WASHINGTON 98057 255.8878 e Renton City Council March 7, 1983 Page Three ORDINANCES AND RESOLUTIONS continued Ordinance #3713 An ordinance was read modifying, approving and confirming the assessments LID 322 and assessment roll of Local Improvement District 322, for improvement of Puget Drive S. and Benson Road as provided by Ordinance No. 3487, and levying and assessing a part of the cost and expense thereof against the several lots, tracts, parcels of land and other property shown on the roll . Councilman Stredicke objected to high interest rate for bonds, but noted his intent to vote "yes" due to four vote requirement for passage of ordinance. MOVED BY TRIMM, SECONDED BY HUGHES, ADOPT THE ORDINANCE AS PRESENTED. ROLL CALL: 4 AYES: TRIMM, HUGHES, ROCKHILL, STREDICKE. CARRIED. Ordinance #3714 An ordinance was read providing for appropriation and transfer of funds Fund Transfer in the amount of $490, 100 (Funds 102, 103 and 104) for 1982 street for Traffic improvement projects not completed and not rebudgeted in 1983, new street Improvements improvement projects, or adjustments to existing street improvement projects. MOVED BY HUGHES, SECONDED BY ROCKHILL, ADOPT ORDINANCE AS PRESENTED. Councilman Stredicke objected to certain projects denoted in the ordinance, but indicated his favorable vote to allow passage of legislation. ROLL CALL: 4 AYES: TRIMM, HUGHES, ROCKHILL, STREDICKE. CARRIED First Reading Ways and Means Committee Vice-Chairman Stredicke presented a report recommending the following ordinances for first reading: Rainier Avenue An ordinance was read providing for appropriation and transfer of funds Corridor Bikeway in the amount of $10,000 for construction of Rainier Avenue Corridor Bikeway. MOVED BY STREDICKE, SECONDED BY HUGHES, THIS MATTER BE REFERRED BACK TO COMMITTEE FOR ONE WEEK. CARRIED. Holvick deRegt An ordinance was read changing the zoning classification of property Koering Rezone located on the western 200 feet of the Washington Technical Center plat R-072-82 bounded on the west by the proposed P-1 Channel , on the south by Grady Way, on the east by Powell Avenue S.W. and on the south and east by S.W. 7th Street from General Classification District (G-1 ) to Manufacturing Park District (M-P) for Holvick deRegt Koering, applicant , File No. R-072-82. MOVED BY STREDICKE, SECONDED BY HUGHES, THIS MATTER BE REFERRED BACK TO COMMITTEE FOR ONE WEEK. CARRIED. Financing on Ways and Means Committee Vice-Chairman Stredicke presented a report LID 325 recommending withdrawal of the request for issuance of Bond Anticipation Notes on advice of the bonding attorney and request of the Administration. MOVED BY STREDICKE, SECONDED BY HUGHES, NO ACTION BE TAKEN ON THE MATTER OF LID 325 FINANCING. CARRIED. Council Salaries Ways and Means Committee Vice-Chairman Stredicke presented a report stating the current city ordinance does not require revision regarding Council salaries according to the City Attorney. MOVED BY STREDICKE, SECONDED BY HUGHES, NO ACTION BE TAKEN ON THE MATTER OF COUNCIL SALARIES. CARRIED. NEW BUSINESS Councilman Stredicke called attention to federal and state appropriations Public Works for public works projects available in the near future, and felt city Projects staff should be prepared to apply for funds for any impending projects which would meet federal and state qualifications. Other Adult Referencing a recent letter from City Attorney Warren suggesting Entertainment consideration of zoning and other adult entertainment uses following Uses favorable decision in Playtime Theatre case, it was MOVED BY ROCKHILL, SECONDED BY HUGHES, REFER THIS MATTER TO THE PLANNING AND DEVELOPMENT COMMITTEE. CARRIED. Grant for Mayor Shinpoch reported $180,000 federal grant awarded to city for Airport improvements to Taxiway A and installation of security fencing at Renton Improvements Municipal Airport. Rescind Mayor Shinpoch advised receipt of a letter from Gardena, California, Legislation reporting that legislation adopted 41 years ago approving relocation to Relocate of Japanese-Americans to internment camps has been rescinded by that Aliens - WWII city; and requesting that all west coast cities follow suit as an act of contrition. Research has indicated that the City of Renton did not adopt legislation to enforce that action. Renton City Council March 7, 1983 i Page FoA ADMINISTRATIVE REPORT continued One Valley Mayor Shinpoch explained request from developers of One Valley Place Place Street to rename Davis Street in that project to Professional Place. Following Name discussion, it was agreed the matter would be reviewed by the Board of Public Works to allow receipt of input from all departments prior to providing a report back to Council . Newspaper Recent newspaper articles were addressed by Mayor Shinpoc 1, who explained Articles re responses to articles regarding police protection on premises of cocktail Police lounges indicate one opinion that patrol is too intensive and another Department that it is insufficient. The Volvo recently purchased by Police Department, the subject of a second article, will be utilized by three sergeants in the same manner as other vehicles for purposes of comparison. Gas Tax Addressing a proposal under consideration by the Legislature to raise gas tax, Councilman Stredicke felt the city and the A.W.C. should take a position reflecting no objection to a 7t per gallon tax increase on gasoline if a portion is returned to local agencies to reinfuse into Arterial Board Funds. Kay Johnson, Manager, Renton Chamber of Commerce, indicated intent of Chamber to notify legislators by mail of request to return portion of gas tax to cities if increase is approved. Mayor Shinpoch also agreed to transmit the city's request to the A.W.C . ADJOURNMENT MOVED BY STREDICKE, SECONDED BY TRIMM, COUNCIL ADJOURN. CARRIED. 9: 14 p.m. Maxine E. Motor, City Clerk OF R4,4 OFFICE OF THE CITY ATTORNEY r RENTON,WASHINGTON U le . WY` POST OFFICE BOX 626 100 S 2nd STREET IP RENTON, WASHINGTON 98057 255-8678 Z {tt.. 0 ^' LAWRENCE I.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY 9.0 go- DAVID M. DEAN, ASSISTANT CITY ATTORNEY o9�r�0 P SEP���O� MARK E. BARBER, ASSISTANT CITY ATTORNEY February 25 , 1983 ZANETTA L.FONTES, ASSISTANT CITY ATTORNEY , TO: HON. BARBARA SHINPOCH, MAYOR, AND MEMBERS OF CITY COUNCIL FROM: LAWRENCE .J. WARREN, CITY ATTORNEY RE: PLAYTIME THEATRES During the last week I have spent an appreciable amount of time answering inquiries from the Press 'about Playtime Theaters . I have seen my name in print and I know that I have appeared on TV. While it has been enjoyable to get publicity about a • very major victory in my legal career, I have also found it troubling that a lot of people have not received credit for their part in the victory. Much of the credit goes to the Renton City Council. The Council made it . clear to me throughout that once the decision had been made to pass the adult land use ordinance, the Council was. going to back that ordinance. During the many executive sessions that were held, the Council maintained a unified position.. There was no one complaining to the public or thE: newspapers that the Council was doing an unwise thing, or that one or more of the Council members disagreed with the majority of the Council. This unanimity made my job a great deal easier. . I was also ' greatly aided by the Council' s continued participation in the decision making process of the case. When there were policy decisions to be made,. the Council made them without shirking their responsibility, made them quickly and decisively. , This also greatly assisted me. The Mayor and the Administrative staff were likewise of great assistance. The Mayor set the tone by being positive and by giving me whatever support was necessary. Of the City staff, Dave Clemens was particularly effective in court, and provided me with first class exhibits and testimony. This enabled us to win the war of testimony at court . In fact, Page 2 Mayor and City Council February 25 , 1983 ; I 1 Judge McGovern cited in his opinion the un-rebutted testimony of Mr. Clemens to support a critical portion of his decision. Materials Mr. Clemens prepared for me enabled me to argue easily about the geographical facts of the case, and once again, these facts were reflected in the Judge' s opinion. Finally, it should be mentioned that I should not be receiving all the credit for the legal work in this case . You may recall that the City had only three days to prepare for the Temporary Restraining Order hearing in January. Dan Kellogg spent nearly every waking hour of those 72 hours working on the City' s brief (and I know there was at least one complete night spent on the project) . Dan Kellogg and Mark Barber did at least as much work on the case as I did. My participation in the case was the most visible since I presented most of the information to the City Council, and made the oral arguments and presentation of evidence on behalf of the City. I would not have been able to make those presentations in an effective manner without the help from Dan and Mark. Additionally, Jim Clancy, our consultant from California, saved us hundreds of hours with his encyclopedic knowledge of First Amendment cases . It would have taken simply too much time to have researched each of the many points that were discussed in our various briefs. Jim knew the cases and knew which case to cite for our positions . Rather than spending all of our time doing legal research, we were able to write and re-write our briefs so they were presented in a logical, straight-forward, organized way to the Court. The fact that we were able to accomplish this was reflected in Judge McGovern' s grasp of our positions at the final argument. He had obviously read our materials and understood the City' s. positions . To each of you that aided me so well in this case, Thank You. I could not have done it alone. I do not think I could have done it with even part of you. V ry truly ,' (7 Lawrence J. Warren LJW: ds cc: Dave Clemens , Jim Clancy. Dan Kellogg Mark Barber .