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HomeMy WebLinkAboutFile #6 - Correspondence/Legal Documents (1982-1983) Q_l 6 WJ P I A- OF . R4, .?' OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON C.) t% �` OZ a � �`' POST OFFICE BOX 626 100 S 2nd STREET • RENTON. WASHINGTON 98057 255-8678 k x ^' LAWRENCE I.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY DAVID M. DEAN, ASSISTANT CITY ATTORNEY 0,9gTFO SEP1°°�P February 18, 1983 MARK E. BARBER, ASSISTANT CITY ATTORNEY ZANETTA L.FONTES, ASSISTANT CITY ATTORNEY TO: Barbara Y. Shinpoch, Mayor Members of the City Council • FROM: Lawrence J. Warren, City Attorney RE: Playtime v. City of Renton We are pleased to enclose a copy of the decision entered this date by Judge McGovern in the above matter. This decision denied Playtime' s request for permanent injunctive relief against the enforcement of the ordinance, and granted the City' s motion for summary judgment that the ordinance is constitutional. I 1 The basis of the Court ' s ruling is Judge McGovern's finding j at page 7, line 9, that: " . . . there is not a substantial intrusion upon first amendment interests . Plaintiffs are not virtually excluded from Renton by being confined to the 'most unattractive, inaccessible, and inconvenient' areas . . .Renton's exhibits, affidavits , memoranda, and oral argument persuade the Court that acreage in all stages of development from raw land to developed, industrial, warehouse, office, and shopping space that is criss-crossed by freeways., highways , and roads cannot be so characterized. . . . Ample, accessible real estate is available for the location of adult theatres in Renton. " Therefore, finding no substantial impact upon the free exp- ression of protected speech, the Court upheld the ordinance. • . I' The Court refused to abstain, it appearing that .the Court = wished to dispose of this matter on the merits . Under the . . . .. circumstances , we are pleased with the favorable outcome , although as a matter of principle we would prefer that the federal district court refuse to interfere with matters of such great interest to the State. • I. Barbara Y. Shinpoch, Mayor Members of the City Council February 18, 1983 Page two We have received some indication that Mr. Forbes ' intends to continue with his exhibition of pornographic films in violation of our ordinance despite today' s ruling by Judge McGovern. Of course, this is a matter of grave concern to our office. For public comment we are assuming that he will adhere to the ordinance just as he did before the entry of the Preliminary Injunction last month. However, if he does in fact continue to exhibit films in violation of our ord- inance, we will bring a recommendation to the City Council for an appropriate course of action to force compliance with the ordinance which has been found to be valid. We should anticipate that Mr. Forbes ' will immediately file a Notice of Appeal from this decision to the Court of Appeals in San Fransisco. He will almost surely request that Court to enter an order restraining the enforcement of our ordinance pending completion of that review. We will keep each of you informed regarding these developments . This is .a great day of victory for all of us. We are greatly pleased with the outcome. However, we are bearing in mind that this journey is not yet completed. The findings of the Judge regarding the availability of suitable land for location. of an adult theatre will be more difficult for the opposition to overcome than for us to uphold. However, the real time for celebration will be when the judgment is finally entered in favor of the City and the regulatory scheme established by its ordinance. Lawrence J. Warren City Attorney : LJW:kh enc. cc: Clerk Dave Clemens 1 • 2 '•! i: FILED IN THE �'3 UNITED STATES DISTRICT COURT r WESTERN DISTRICT OF WASHINGTON FEB 181983 5 BRUCE RIFKIN, Clerk 6 ..... Deputy 7 . UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON 9 • PLAYTIME THEATRES, INC . , et al . , ) 10 ) . Plaintiffs, ) 11 ) v. ) No. C82-59M 12 . ) CITY OF RENTON, et al . , ) 13 ) Defendants. ) 14 ) ORDER ) 15 CITY OF RENTON, et al. , . ) ) 16 Plaintiffs, ) 17 v. ) No. C82-263M )' (REMANDED) 18 PLAYTIME THEATRES , INC. , et al. ) 19 Defendants. ) ) 20 • 21 INTRODUCTION 22 . On January 11 , 1983, the Court entered its order 23 approving and adopting the magistrate 's report. and 24 recommendation and denying defendants ' motions to dismiss 25 • and for summary judgment , and granting preliminary 26 injunction• pendente lite. . A separate order was entered 27 January 11 , 1983 approving and adopting the magistrate 's 28 ORDER - 1 1 supplemental report and recommendation and granting the 2 motion to remand Cause No . C82-263M to King County Superior 3 Court . 4 • On February 10, 1983, a hearing was had pursuant to the 5 parties ' January 31 , 1983 Stipulation and Order separating 6 damages claims from plaintiffs ' prayer for permanent 7 injunction and submitting the matter to the Court on the 8 evidence considered by Magistrate Sweigert . The Court has 9 considered the evidence that was before the Magistrate, has 10 considered the parties ' memoranda, affidavits and oral 11 arguments. Accordingly, the Court rules that abstention ' 12 would be improper and plaintiffs ' prayer for a permanent 13 injunction must be DENIED. 14 15 FEDERAL ABSTENTION 16 The City of Renton argues that the preliminary 17 injunction was improvidently granted, that the permanent 18 'injunction must be denied, and that this Court must abstain 19 and dismiss this action for lack of jurisdiction. 20 Renton supplements its earlier argument and 21 authorities on this issue with Miofsky v. Superior Court 22 of State of California, e.t al . , in No. 80-4589, slip op . 23 (9th Cir. Jan. 3, 1983).. Renton argues that Miofsky aids 24 the resolution of the abstention issue herein by refining 25 the meaning of the term "vital state interest" without 26 giving it such overbreadth to deprive the federal court of 27 28 ORDER - 2 I 1 all of its 42 U.S .C . § 1983 jurisdiction. Renton asserts 2 that the city 's interest in establishing zones and setting 3 set backs is a "vital state interest" of the sort that 4 requires the Court to abstain from acting in the case at bar 5 pending the outcome in State. Court on the Complaint for 6 Declaratory Judgment . The Miofsky court distinguished the 7 cases cited for abstention: 8 In each of these cases, the state or an agent of 9 the state was a party to the proceeding deemed insulated from federal court intervention. In lU addition, each of these civil suits bore similarities to criminal proceedings or otherwise 11 implicated state interests vital to the operation of state government . _ 12 . 13 Id. at 7. The context of the Miofsky suit was a 14 complaint that state court proceedings violated plaintiff 's 15 federally protected rights under Section 1983. Miofsky does little to refine the term "vital state 16 17 interests" beyond reasoning that abstention is improper in. a 18 Section 1983 civil rights action. The Court is unpersuaded 19 that federal abstention would be proper here. "The state • 20 judicial proceeding in this case is purely civil in nature, 21 regardless of the importance of the state policies which the city asserts. " Magistrate ' s. Supplemental Report and 22 23 Recommendation at 5. Although zoning, which is the 24 underlying subject- matter of the declaratory judgment 's 25 suit in state court , may be an important function performed by a city, this alone does not prevent a federal court from 26 27 scrutinizing the constitutionality of the city 's actions . 28 ORDER . - 3 � I 1 The Court concludes that the state court action is no bar to 2 continue jurisdiction over plaintiff 's suit for injunctive 3 relief. •• 4 5 PERMANENT INJUNCTON 6 I . 7 In determining the propriety of a permanent injunction, 8 the Court must first find that there is a threatened 9 violation of a legal right which would produce irreparable 10 harm and for which any other remedy would be insufficient. 11 The hardship must tip in favor of the plaintiff. 12 Renton ' s Ordinance, really a series of three ordi- 13 nances : 3526, 3629, and 3637, is an attempt to preclude the 14 operation of "adult motion picture theatres" in zones which 15 are more than 1 , 000 feet from certain other specified uses 16 or zones. "Adult motion picture theatres" refers to those 17 theatres exhibiting films characterized by an emphasis on 18 matter relating to "specified sexual activities" or "speci- • I 19 fied anatomical areas" as a "continuing course of con- 20 duct. . . in a manner which appeals to a prurient interest . " 21 The subject matter of the films is given a detailed defini- 22 tion, but the "continuing course of conduct" language is 23 not . The ordinance in its essential features is virtually 24 25 26 27 28 ORDER - 4 .. . I I 1 1 identical to the ordinances in Young v. American Mini 2 Theatres , 427 U.S . 50 ( 1976) and Northend Cinema , Inc . 3 . v . City of Seattle , 90 Wash. 2d 709 , 585 P .2d 1153 4 • ( 1978) except that the word "used" in describing "adult 5 motion picture theatre" is defined with the "continuing 6 course of conduct" language . . 7 A first amendment interest is affected. The ordinance 8 deals not with obscene material, but sexually explicit . 9 material . It is concerned with the exhibition of films I 10 inside the theatre and not with "pandering, " "the business 11 of purveying textual or graphic matter openly advertised to 12 . appeal to the erotic interest of their customers . " Pinkus 13 v . United States , 436 U.S . 293, 303 ( 1978) . 1 14 I 15 II. 16 Since expression protected by the first amendment is 17 the subject of Renton 's ordinance , the next inquiry is Ii 11 18 whether there is actual intrusion upon this first amendment 19 interest and if so, the nature of the intrusion. I 20 There is some intrusion: in certain areas of Renton, - 21 films described in the ordinance may not be shown as a I 22 continuing course of conduct in a manner which appeals to a 23 prurient interest. This intrusion is not substantial under 11 I 24 I the circumstances for several reasons . Renton 's 25 restrictions are slightly narrower than those in the cases 26 cited supra, because of the "continuing course of conduct" I 27 _ .Ii 28 ORDER - 5 1 language . No theatre had to be closed under Renton ' s 2 ordinance, for no theatres were operating or were 3 considering operating when it was enacted . There is no 4 . content limitation on the creators of adult movies. The 520 5 acres of land in all stages of development available for 6 locating adult theatres (David R . Clemens Affidavit of 7 May 27, 1982, unrebutted,. and his June 23, 1982 testimony at 8 36-41 ) belies there being substantial intrusion upon 9 . plaintiffs ' first amendment right. The real question is 10 whether in spite of the acreage available to plaintiffs to 11 locate a theatre, the economic impact results in a substan- 12 tial , impermissible effect upon first amendment rights. 13 . Young notes that "the inquiry for first amendment 14. purposes is no.t concerned with economic impact ; rather, it ,I 15 looks only to the effect of this ordinance. upon freedom of j 16 expression. " 427 U.S . at 78 (Powell, J . , concurring) . 1 17 The effect of Renton 's ordinance is that plaintiffs or ;1 18 others wishing to exhibit adult film fare and not having a 19 theatre already built and ready for occupancy, must consider !I 1 20 whether demand is such that construction of a theatre. is 21 feasible . This impact is no different than that upon other 22 land users who must work with what land is available to them j 23 in the city . With a large percentage of land within the 24 city available to plaintiffs, the financial feasibility of 25 the various locations is for them to analyze . To conclude 26 otherwise would be to place a burden on the city that 27 28 ORDER - 6 ., 1 Constitutional analysis does not. require. Moreover, the 2 message of no individual or group has been silenced. The 3 number of such establishments has not been reduced because 4 • none existed and none were attempting to establish 5 themselves in Renton prior to the ordinance . The ordinance 6 merely specifies where adult theatres may not locate and in 7 doing so, stifles no expression. See, Young, 427 U.S . 8 at 81 , n.4 (Powell, J . , concurring) . 9 The Court concludes that there is not a substantial 10 intrusion upon first amendment interests . Plaintiffs are 11 not virtually excluded from Renton by being confined to the 12 "most unattractive, inaccessible, and inconvenient" areas . 13. • But see Basiardanes v . City of Galveston, 682 F. 2d 1203, 14 , 1214 (5.th Cir. 1983) Renton 's exhibits, affidavits, memo- 15 randa, and oral argument persuade the Court that acreage in 16 all stages of development from raw land to developed, 17 industrial, warehouse, office, and shopping space that is 18 criss-crossed by freeways, highways, and roads cannot be so . 19 characterized. Significant cited cases to the contrary are 20 distinguishable : Schad v. .Borough of Mount Ephraim, 45_2 U.S . 21 61 ( 1981 ) (live entertainment including nude dancing was not 22 a permitted use , and concerns- such as trash, police protec- 23 tion, and medical facilities were not sufficient justifica- 24 tions for the exclusion) . Basiardanes (available sites much 25 less desirable than in Renton, and the zoning ordinance was 26 passed after the theatre was leased for showing adult 27 28 ' ORDER - 7 '1 1 films ) ; Avalon Cinema Corporation v . Thompson, 667 F . 2d 659 2 ( 8th Cir.. 1981 ) (zoning ordinance enacted after suggested 3 adult use ) ; Keego Harbor Co. v . of Keego Harbor, 657 F .2d 94 4 . ( 6th Cir. 1981 ) (no location within city that was not within 5 - 500 feet of a bar or other regulated use) . Ample, acces- 6 sible real estate is available for the location of adult 7 theatres in Renton. 8 9 III . ' 10 The insubstantial intrusion upon first amendment 11 interests by Renton 's ordinance must be considered against 12 the governmental interest which led to its enactment. • Under 13 the four-part test of United States v. O 'Brien, 391 U.S . 14 367, 377 ( 1968) , a governmental regulation is justified 15 despite incidental impact upon first amendment interests 16 1 . If it is within the constitutional power of the 17 - government, 18 2. If it furthers an important or substantial 19 governmental interest, 20 3. If the governmental interest 'is unrelated too the 21 suppression of free expression, and 22 4. If the governmental .restriction is no greater than 23 necessary for the furtherance of that interest . 24 25 26 27 28 ORDER - 8 • 1 As in Young, the first two elements of the test are 2 met . The. ordinance was within the City of Renton 's power to 3 enact. Nor is there any doubt that the interests sought to 4 be furthered by this ordinance are important and 5 . substantial. 6 Without stable neighborhoods, both residential and 7 commercial, large sections of a modern city quickly can deteriorate into an urban jungle with 1 8 tragic consequences to social, environmental, and economic values . While I agree with respondents 9 that no aspect of the police power enjoys immunity . from searching constitutional scrutiny, it also is , 10 undeniable that zoning, when used to preserve the character of specific areas of a city, is perhaps 11 "the most essential function performed by local government , for it is one of the primary means by 12 which we protect that sometimes difficult to define concept of quality of life . " Village of 13 Belle Terre v. Boraas, 416 U.S . , at 13 ' (Marshall, J . , dissenting) . 14 15 Young, 427 U .S . at 80 ( Powell, J . , concurring) . The 16 critical inquiries are whether these interests are furthered 17 by the ordinance and whether the governmental interest is I 18 unrelated to the suppression of free expression, element 19. three. 20 Renton 's interests , articulated in the ordinance, "in 21 protecting and preserving the quality of its neighborhoods, 22 commercial districts, and the quality of urban life through 23 effective land use planning, " are .furthered by the 1 , I 24 ordinance . The ordinance states in item 14, p. 3, Nos . 3629 25 and 3637 : 26 '1 27 . 28 ORDER - .9 ' 1 14. Experience in numerous other cities , includ- 2 ing Seattle , Tacoma and Detroit, Michigan, has shown that location of adult entertainment land 3 uses degrade the quality of the areas of the City in which they are located and cause a blighting 4 effect upon the city. The skid row [sic ] effect , which is evident in certain parts of Seattle and 5 other cities, will have a significantly larger affect upon the City of Renton than other major 6 cities due •to the relative sizes of the cities. 7 There was no evidence adduced to show that the secondary 8 effects of adult land uses would be different or lesser in 9 • Renton than in Seattle , Tacoma, or Detroit . Certainly, 10 Renton must justify. its ordinance, but in so doing, 11 experiences of other cities and towns must constitute some 12 evidence to the legislative body considering courses of 13 action. Genusa v. City. of Peoria, 619 F.2d 1203, 1211 14 ( 7th Cir. 1960) . If the goal of preservation of the quality 15 of urban life is to have any meaning, a city need not await 16 deterioration in order to act . Id. The observed effects 17 in nearby cities provides persuasive circumstantial evidence 18 of the undesirable secondary effects Renton seeks to 19 preclude from within 1 , 000 feet of residential zones ,, • 20 schools, religious facilities, and public parks. Although 21 the effects in other cities are starkly shown when adult 22 uses are congregated, Renton need not await such ' 23 congregation. Similarly, no negative inference can be drawn 24 from Renton 's choosing to address only one form of "adult" 25 usage. It 's effort would have been bolstered by considering 26 other "adult" uses in view of other cities ' experiences, but 27 I 28 ORDER - 10 1 inclusion of -these other "adult" uses is not mandatory . The 2 city being aware that it is treading in a delicate area 3 between valued interests might understandably be loath to 4 • tackle the description, restriction, and rationale of more 5 - than one such usage at a time. " [T]he city must be allowed 6 a reasonable opportunity to experiment with solutions to 7 admittedly serious problems . " Young, 427 U.S . . at 71 . 8 The governmental interest is unrelated to the suppres- 9 sion of free expression, and the third element is satisfied . 10 Concern with preventing. undesirable secondary effects is not 11 the kind of apprehension aimed at regulating the content of 12 an adult theatre 's exhibitions . Rather, it is a permissible 13 classification based on deleterious secondary effects. 14 Young, 427 U.S . at 70, 71 . . 15 Renton solicited testimony through its City Council and 16 the Council 's Planning and Development Committee. It 17 summarized some ideas put forth at those public meetings in 18 its ordinance. Predictably, some citizens expressed 19 concerns reflecting their values which might be impermis- 20 sible bases for justification of restrictions affecting 21 first amendment interests . See, e . g: , Erznoznik v. City of 22 Jacksonville, 422 U.S . .205 ( 1975) (overbroad effort. to 23 protect privacy interests of certain citizens from ".offen- 24 sive" speech --nude movie fare visible from public street ) . i 25 The inclusion of these statements should not negate the 26 legitimate, predominate concerns of the City Council nor 27 . . 28 ' ORDER - 11 1 lessen the value of the circumstantial evidence of adult 2 land uses ' effects in nearby cities. Arguably, some of the 3 statements may be construed as characterizations of the 4 community 's quality of life that is presently sought to be 5 preserved. Citizens ' judgments as to a city 's quality of 6 life is necessarily subjective. It is necessary to separate 7 these subjective characterizations of the city 's quality of 8 life from the goals of protecting and preserving it and the 9 evidence that the means will further the end. Renton could 10 have written its ordinance in such a way as to better 11 distinguish these aspects of the problem, but this is not a 12 material consideration. 13 . Finally, part four of the O ' Brien test is satisfied 14 for the restriction is no greater than necessary to further 15 the. governmental interest. The 1 ,000-foot aspect of the 16 restriction does not preclude adult theatres from locating 17 anywhere in the city as in .Keego Harbor. Renton 's 18 ordinance is similar to others that have been upheld except 19 for the "continuing course of conduct" language discussed 20 earlier which has some narrowing effect. 21 Renton 's effort to preserve the quality of its urban 22 life by enacting an ordinance which regulates adult theatre . I 23 location is minimally intrusive of a particular category of . 24 protected expression described in Young as being of "a 25 lesser magnitude than the interest in untrammeled political 26 debate." ' 427 U.S . at 70.' . Renton 's effort under the 27 28. ORDER - 12 , I ' I 1 circumstances is not unconstitutional under the first 2 amendment . Injunctive, relief from enforcement of the 3 ordinance would be improper. NOW , THEREFORE , 4 . For the foregoing reasons , the Court having 5 - reconsidered .its de novo review which led to the entry of the preliminary injunction, the order granting preliminary 7 injunction must be vacated .as improvidently granted, and I� 8 plaintiffs ' prayer for permanent injunction against ' 9 enforcement of the ordinance is DENIED. Accordingly, 10 the City of Renton ' s Motion to Dismiss for Lack of j I 11 Jurisdiction is DENIED, and its Motion for Summary Judgment 12 is GRANTED. . 13 SO. ORDERED. 14 `�DATED this /7< day of February , 1983. 15 J 16 �— 17 WATT LR c R (. Chief United States District Judge 18 l 19 _ j 20 1 21 22 23 24 25 26 27 I 28 ORDER - 13 1 i I • OF R ? � `� ' OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON V `$ POST OFFICE BOX 626 100 S 2nd STREET • RENTON.WASHINGTON 98057 255-8678 O LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY 9,c P`O DAVID M. DEAN, ASSISTANT CITY ATTORNEY 09gTFD �O MARK E. BARBER, ASSISTANT CITY ATTORNEY SEP� December 6 , 1982 ZANETTA L.FONTES, ASSISTANT CITY ATTORNEY CITY OF RENTON TO: Barbara Y. Shinpoch, Mayor DEC t 15:1R2 Members of Renton City Council POuC7 FROM: Daniel Kellogg, Assistant City Attorney DEVELOPMENT OFPT Attached you will find a copy of the Petition and Writ ofMandate and/or Prohibition which we have filed in the Ninth Circuit Court of Appeals in San Francisco. The purpose of this Writ is to request that' the Ninth Circuit Court enter an order directing Judge McGovern to enter an Order of Dismissal of the District Court .action because of the lack of jurisdiction under the "abstention doctrine". This Petition is drawn in such a fashion that if the Petition is denied by the Ninth Circuit that the Petition can be very quickly • placed in the required format for filing with the Supreme Court o.f the United States . Quite frankly, we do not expect the Ninth Circuit to grant the Writ. However, if the. Supreme Court should decide to face this matter of abstention in local zoning cases , we believe that our case will give them a good opportunity to do so . The second brief is our reply to .the response which Mr. Forbes ' attorneys made to our objections to the Magistrate's report. This document was filed in the District Court proceedings to put it at issue and to correct some of the incorrect statements which had been made by Mr. Forbes ' lawyers in their response. There is no indication when Judge McGovern will rule on our Motion for Dismissal . We would not be surprised by a delay past the first of the year, particularly in view of the Judge' s extra- ordinary heavy trial calendar. Please contact our office if you have fur stions . • Daniel Ke ogg DK:nd Encl . is cc : Dave Clemens 1 City Clerk , ' • , 1 1 2 3 _ I 4 1 5 6 i 7 8 UNITED STATES DISTRICT COURT 9 FOR THE WESTERN DISTRICT OF WASHINGTON 1 . 10 PLAYTIME THEATRES, INC . , A ) • 11 Washington corporation , et al ) ) 12 Plaintiffs ) C82-59M ) REPLY OF CITY OF RENTON 13 . ) TO PLAINTIFF 'S RESPONSE vs ) TO CITY OF RENTON 'S 14 ) ' OBJECTIONS TO THE CITY OF RENTON, et al ) MAGISTRATE ' S REPORT AND 15 ) RECOMMENDATION RE 1. Defendants ) PRELIMINARY INJUNCTION 16 ) J THE CITY OF RENTON , a • ) , 17 municipal corporation ) ; ) C82-263 . 18 Plaintiffs ) 19 vs ) ) . 20 PLAYTIME THEATRES, INC . , a ) Washington corporation , ) 21 • ) ) 22 COME NOW The City of Renton , et al to reply to that part 23 of the Response of Playtime Theatres , Inc . and Kukio Bay. 24 25 i Properties , Inc . ( hereinafter designated as Playtime and Kukio) to the City' s objections to the Magistrate' s report and 26 I recommendation re preliminary injunction . The City' s reply is 27 limited and addresses only-: • 28 WARREN & KELLOGG. P.S. 1 ATTORNEYS AT LAW REPLY OF CITY OF RENTON ,00 8O. SECOND ST.. P. O. BOX 626 1 PAGE 1 RENTON. WASHINGTON 98057 ' 255-8678 1 ( a) Matters not appearing on the face of the 2 Magistrate' s Report and Recommendations re : Preliminary 3 Injunction by calling the U. S. District Judge' s attention to 4 those parts of the record which contain the City' s argument to 5 the Magistrate on such matters , and 6 (b) New issues raised by Playtime and Kukio such as 7 "pre-emption" ( see page 10) , and failure to amend the State 8 complaint ( page 2 , line 22 , et seq) which has not heretofore 9 been considered . 10 I, Proceedings of substance on the merits had not taken 11 place prior to the City of Renton ' s Motion to 12 Dismiss,. 13 The response of Playtime and Kukio , at page 2, lines 2 to 14 21 ,. that "proceedings of substance on . the merits" have taken 15 place include irrelevant arguments that their "Motion for a 16 Preliminary Injunctioon was put off" and is misleading . The 17 only Federal Court proceedings which . took place before the 18 filing of City of Renton' s Motion to Dismiss was a hearing of 19 Plaintiff'.s Motion for a Temporary Restraining Order under 20 their original complaint. Prior to the United States District 21 Court' s ruling on that matter , the Plaintiff filed an Amended 22 and Supplemental Complaint in which they urged a new theory . 23 The City of Renton' s reply is set forth in its Memorandum of 24 Points and Authorities in Support of Defendant' s Motion to 25 Dismiss Complaint p pursuant to FRCP Section 12 (b) ( 1 ) and 26 12( b) (6) at page 5 , line 9 : 27 "The plaintiffs were denied a temporary restraining order under . their original Complaint . They have abandoned 28 their. original Complaint, 71 C . J. S. , Section 716 , and , WARREN & KELLOGG. P.S. ATTORNEYS AT LAW REPLY. OF CITY OF RENTON 10050. SECOND ST.. P. O. BOX 626 PAGE 2 RENTON. WASHINGTON 98057 255.8678 4 1 pursuant to Rule 15 of the Federal Rules of Civil Procedure , have filed_ an amended pleading . Within the 2 time allowed to file a response to such amended pleading , Renton has filed a Complaint for Declaratory Judgment 3 under Chapter 7 . 24 R . C.W. wherein it seeks to have the State Court render its interpretation of the 4 constitutionality of City of Renton Ordinance No . 3526 and to resolve the same issues which the plaintiff seeks 5 to have litigated in this Federal Court. Because a State civil action is now pending in the State Court involving 6 the same issues and the construction to be given a city ordinance , this Federal action must be dismissed for the 7 following reasons. . ." (our emphasis) 8 See also "Petition for Writ of Mandamus and/or Writ of 9 Prohibition" in the United State Court of Appeals for the 10 Ninth Circuit entitled "The City of Renton vs . . U. S. District 11 Court," CA , at II. C. , II. B and II. E, on page 8 , line 12 17 through_ page 10 , line 21 , and page 32 , line 1 - 18 . 13 II. The "pending State action" is not defective . 14 The response of Playtime and Kukio at pages 2 , line 22 15 through page 3 , line 3 , argues that the "pending State action" 16 may not provide a basis for abstention because "that complaint 17 has never been amended" to show that Ordinance No . 3526 was 18 subsequently amended by Ordinance No . 3627 . The simple answer 19 to this argument is that Playtime and Kukio are estopped from 20 making that argument where their improper removal of the State 21 action to the Federal court made such amendment impossible. 22 See Petition for Writ of Mandamus and/or Writ of Prohibition , 23 supra , at page 13 , lines 6 - 18; page 13, line 22 - 14; page 24 15 , line 7 - 14 ; pages 17 , . lines 6 - 12; page 27 , line 18 - 25 37; and page 32 , line 1 - page 33E , line 1 . 26 III . Because of` the nature of the governmental function , 27 at issue the fact that the federal action was filed 28 first has no relevancy on the issue of abstention . WARREN & KELLOGG. P.S. ATTORNEYS REPLY OF CITY OF RENTON 100 SO. SECONDST.AT PLO. BOX 626 PAGE 3 RENTON, WASHINGTON 98057 255-8678 , 1 The response of Playtime and Kukio at page 3 , lines 9 to 2 12 , that the tests for abstention set forth in Middlesex 3 Ethics Committee v . Garden State Bar Association , U . S. 4 , 73 L. Ed . 2d . 116 ( 1982) had not been met because "the 5 Federal action was filed first" is frivolous . See Petition 6 for Writ of Mandamus and/or Writ of Prohibition , supra , at 7 page 12, lines 1 to 13 and at page 9 , lines 9 to 16 , citing 8 Hicks v . Miranda , 42 U. S. 332 , at 349 and 354 . 9 IV. The "State interest" in the zoning power satisfied 10 the Middlesex County test for abstention . 11 Playtime and Kukio' s claim that the "State interest" 12 asserted in Middlesex County , supra , " is of far greater 13 importance to the State" then the zoning interest herein is 14 silent on the City' s contrary authorities , i .e Justices Powell 15 and Stevens in Young . See Petition for Writ of Mandamus 16 and/or Writ of Prohibition , supra , at page 33 , lines 2 through 17 page 34 , line 16. 18 V. Magistrate Sweigert did not say what Playtime and 19 Kukio say he said . 20 The response of Playtime and Kukio , at page 3 , lines 20 , 21 et seq , which cites the comments of Magistrate Sweigert in his 22 oral decision on April 9 , 1982 as authority for the 23 proposition that - there was no "opportunity in the State 24 proceedings to raise Federal constitutional challenges" is 25 deliberately misleading and improper . Magistrate Sweigert 26 never said what they claim he said . The remarks of Magistrate 27 Sweigert regarding his ruling on the "Motion to Remand" relate 28 to the requirement of Gully v . First National Bank in WARREN & KELLOGG. P.S. ATTORNEYS AT LAW REPLY OF CITY OF RENTON too SO. SECOND ST.. P. O. BOX 626 PAGE 4 RENTON. WASHINGTON 98057 255-8678 I i • 1 Meridian , 299 U . S. 109 (1936) which holds that an action may 2 not be removed unless the . Federal question appeared on the 3 face of the complaint and that removal is improper where the 4 constitutional issue may be raised as a defense . ( See 5 Objection to Removal and Motion to Remand to State Court and 6 for Costs at page 7 , line 11 ,. et seq , filed March 11 , 1982) . 7 VI. Playtime and Kukio ' s arguments that Ordinance No . 8 3637 does not deal with zoning is constructed upon a 9 non-sequitur . 10 At best , the response of Playtime and Kukio , at page 5 , 11 lines 9 to 12 , that "Renton' s ordinance does not deal with 1:2 zoning; rather it attempts to create a new catagor.y . of 13 nuisance , i .e . protected speech conducted in proximity—to i 14 certain types of structures" is an argument which is 15 constructed upon a non-sequitur. Under traditional concepts 16 of municipal law, a violation of the use provisions of any 17 zoning ordinance ( including Renton Zoning Ordinance No . 3526 , 18 as amended) is a public nuisance which is subject- to .I 19 abatement. See McQuillin Municipal Corporations , Volume •8 , 20 Section 25 . 11 "Zoning and Nuisances" at page 31 and Shields' v . 21 Spokane School District No . 81 , 31 Wn.2d . 247 , 196 P.2d . 352 1 22 following Robinson Dirt Company v . Luth, 115 Colo . 106, 169 ' I 23 P.2d . 171 , 166 A. L. R. 655 cited at Footnote 5 of the McQuillin 24 text. Because it is a zoning ordinance ,. the ordinance does 25 create a ."category of nuisance ." However , the ordinance -has-no 26 regulatory effect on "protected speech" , only on a course of 27 conduct of exhibition of "specified sexual activities" and i 28 "specified anatomical areas" in a manner which appeals, to a WARREN & KELLOGG, P.S. 'I ATTORNEYS AT LAW REPLY OF CITY OF RENTON ,00 SO, SECOND ST., P. O. BOX 626 PAGE 5 RENTON, WASHINGTON 98057 255-8678 1 prurient interest , ( which amounts to pandering) and when 2 exhibited in specified proximity to. " family type" uses . The 3 regulation imposes sanctions only after a civil trial on the 4 merits . See Petition for Writ of Mandamus and/or Writ of 5 Prohibition , supra , at page 45, line 12 through page 48 , line 6 5 . 7 VII. Playtime and Kukio misread the import of Erznozniok. 8 Both the plaintiff and defendants are relying upon 9 Erznoznik v+,City of Jacksonville , 4422 U . S. 205 . The 10 plaintiffs misread the import of Erznoznik . Erznoznik 11 requires abstention . See Petition for Writ of Mandamus and/or 1.2 Writ of Prohibition , at page 44 , line 6 , et seq. See also 13- People v . Starview Drive-In Theater , 427 N . E. 2d . 201 , " at 14 210-212. 15 VIII . Playtime and Kukio ' s claim of overbreadth Ls a 16 sham . 17 Kukio and Playtime ' s claim of standing to contest 18 overbreadth, See Response at . page 9 , line 2 , et seq . is 19 error . See Petition for Writ of Mandamus and/or Writ of 20 Prohibition , supra , at page 43 , line 8 , et, seq . 21 IX . Kukio and Playtime have miscited Spokane v . 22 Portch, 92 Wn .2d . at 342 . 23 ,i. Kukio and Playtime misread Spokane v . Portch , 92 Wn . 2d . 24 342 , 596 P . 2d . 1044 ( 1979) , as support for their new 25 ( see Response at proposition p page 10, . lines 13 and 14) that 26 the ordinance is unconstitutional because "conduct involving 27 sexually explicit speech has been comprehensively regulated by 28 the State to the extent that it has pre-empted the field" . II WARREN & KELLOGG. P.S. ATTORNEYS AT LAW REPLY OF CITY OF RENTON 100 SO. SECOND ST.. P. O. BOX 626 PAGE 6 RENTON, WASHINGTON 98057 255-8678 • 1 That case . denied the power of a city to enact a criminal 2 ordinance where the State had enacted a similar State statute , 3 but specifically holds at page 349 that : • 4 "the present ruling does not indicate a retreat from our position in Northend Cinema, Inc . v . Seattle , 90 Wn .2d 5 709 , 585 P.2d 1153 Z1978) , cert . denied sub . nom . Spple Theatre ,Inc . v .. Seattle , 441 U . S. 946 , 60 L. Ed . 2d 1048, 6 99S. Ct . 2166 ( 1979 ) , in which we upheld a zoning ordinance restricting the location of adult movie 7 theaters . RCW 9.68. 010 preempts the field of obscenity prohibition but has no effect on the municipalities' power 8 to exercise their authority in other areas such as zoning . Nothing in this opinion should be construed to deprive 9 municipalities of their authority to control obscene material by taking measures which do not fall within the 10 purview of state .law." ( emphasis added) ?� j 11 i Respectfully submitted , 12 13 . 14 • At 15 y Daniel Kellogg J 16 I 17.. 18 19 20 21 _ I 22 23 . 24 . 25 . 26 27 I 28 . WARREN & KELLOGG, P.S. ATTORNEYS AT LAW REPLY OF CITY OF RENTON 100 SO. SECOND ST., P. O. BOX 626 PAGE 7 RENTON. WASHINGTON 98057 255-8678 i 1 2 1 3 4 • CITY OF RENTON 5 N O I! 161982 • POLICY 6 DEVELOPMENT DEPT. 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 PLAYTIME THEATRES, INC . , a ) 10 Washington corporation , et al , ) ) NO. C82-59M 11 Plaintiffs , ) ) •OBJECTIONS TO 12 vs . ) MAGISTRATE 'S REPORT AND • ) RECOMMENDATION ON 1-3 THE CITY OF RENTON , et al , ) DEFENDANT ' S MOTION FOR ) SUMMARY JUDGMENT AND 14 Defendants , ) RENEWED MOTION TO THE CITY OF RENTON , a ) DISMISS, AND PLAINTIFFS' 15 municipal corporation , ) MOTION FOR PRELIMINARY ) INJUNCTION 16 Plaintiffs , ) ) No . C82-263 17 vs . ) ) 18 ' PLAYTIME THEATRES, INC. , a ) Washington corporation,, et al , ) 19 ) DefendantsL ) 20 COME NOW the Defendants and object to the Report and 21 Recommendation filed herein by Magistrate Philip K . Sweigert 22 dated November 5 , 1982 , as follows : 23 I . SUMMARY OF ARGUMENT 24 A. The Magistrate has erred as a matter of law by 25 failing to abstain from the exercise of Federal Court jurisdiction . The refusal to abstain 26 constitutes an abuse of discretion . 27 On June 21 , 1982 , the United States decided the case of 28 Middlesex County Ethics Committee vs . Garden State Bar CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S. ATTORNEYS AT LAW MAGISTRATE 'S FINDING ,00110. SECOND OT.. P. O. SOX 6,26 PAGE 1 RENTON. WASHINGTON 98057 255.8678 /MI ' 1 Association , 50 Law Week 4712 , U . S. , 102 S . Ct . 2515 , 2 73 L. Ed . 2nd 116 ( 1982) , which extended the Younger 3 abstention doctrine to noncriminal judicial proceedings 4 involving important state interests . There the Court 5 established a four-part test for abstention in noncriminal 6 proceedings : 7 1 ) Is a State action pending? 8 2) Are important State policy or interest questions involved? 9 3) Can constitutional issues be resolved in the 10 State Court? 11 4) Is there any showing of bad faith , harrassment or some other extraordinary circumstance which 12 would make abstention inappropriate? 1'3 The Court held that : 14 "So long as- the constitutional claims of respondents can be determined in the state proceedings and so 15 long as there is no showing of bad faith , harrassment or some other extraordinary circumstance 16 that would make abstention inappropriate , the Federal Court should abstain ." At 4175 . 17 Therefore , it was an abuse of discretion for the 18 . Magistrate to refuse to abstain from the jurisdiction of the 19 court in this matter . • 20 B. The Magistrate' s conclusion that the effect of the 21 City of Renton' s ordinance is to exclude uses exercising First Amendment rights from the City of 22 Renton is erroneous as a matter of law. 23 The United States Supreme Court in Young v . American Mini 24 Theaters , 427 U.S. 50 , 96 S. Ct. 2440 , 49 L. Ed . 2d 310 25 ( 1976) , has specifically approved the type of ordinance 26 adopted by the City. Only in the event of actual exclusion , 27 Schad v . borough of Mt . Ephraim , 452 U . S. 61 , 68 L. Ed . 2d 671 28 CITY OF RENTON 'S OBJECTIONS TO WARREN & K ATTORNEYS . P.S. A AT T LAW AW MAGISTRATE 'S FINDING Io0 SO. SECOND ST.. P. O. DO% 624 PAGE 2 RENTON. WASHINGTON 90057 25543676 /4 1 ( 1981 ) , or effective exclusion , Basiardances v . City of 1 2 Galveston , 682 F. 2d 1203 (5th Cir . 1982) , is the presumption 3 of validity following Young overcome. This ordinance is not 4 exclusionary for two reasons : 5 ( 1 ) Plaintiffs are at liberty to exhibit any 6 sexually explicit material which is protected by the First 7 Amendment rights at any location within the City of Renton , 8 including their present location , without restriction as to 9 place , time or manner . The ordinance , as amended , regulates 10 only a "continuing course of conduct" (of exhibiting sexual 11 conduct which appeals to a prurient interest) which amounts to 12 "pandering" in a family-oriented area . Ord . 3629 , Sec . II . 13 Incidental exhibition of pornographic material will not 14 violate this amended ordinance . Plaintiffs' conduct is 15 regulated only to the extent that it constitutes a "continuing 16 course of conduct" of "pandering" (which conduct is not 17 protected by the First Amendment, Pinkus v . U .S . , 436 U . S. 293 , 18 98 S. Ct. 1808 , 56 L. Ed . 2nd 293 (1978) ) in family-oriented 19 areas . 20 (2) Furthermore , the effect of the ordinance is not 21 exclusionary because , contrary to the findings of fact by the 22 Magistrate , substantial portions of the City of Renton are 23 available for exhibition of the sexually explicit films which 24 Plaintiffs desire to exhibit . Although the record discloses 25 that 520 acres or more are available within the City for an • 26 adult theater , the Magistrate erroneously presumes that such 27 property is unsuitable for this particular use . Further , the 28 relevancy of that erroneous presumption is grounded upon the CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S. ATTMAGISTRATE ' S FINDING SECOND ST..YS T LAW �00 30. SECOND !iT.. P. O. IIO% 426 PAGE 3 RCNTON. WASHINGTON 98057 255.8678 1 unwarranted assumption that the City is required to assure the 2 availability of developed property for an adult theater . No 3 other enterprise could advance such a preposterous notion . 4 Even the First Amendment does not require that the City repeal 5 the laws of the market place in order to assure that Plaintiff 6 can operate its business within the City of Renton . 7 II. STATEMENT OF FACTS 8 A. Enactment of Ordinance: 9 In 1980 the City' of Renton decided to study the 10 possibility of adopting an ordinance regulating the exhibition 11 of sexually explicit films through the use of the City Zoning 12 power . After extensive study and public hearings , the City 13 adopted such an Ordinance on April 13 , 1981 (Ord . 3526. A 14 copy of Ord . No. 3526 is attached as Attachment "A") . The 15 ordinance was patterned very closely after the ordinance 16 approved by the United States Supreme Court in Young . By 17 subsequent ordinances the City shortened the distance 18 restrictions . providing more land within the City wherein the 19 ordinance did not apply. But more importantly, the amending 20 ordinances prohibited in the restricted zone a "continuing 21 course of conduct" of exhibiting sexual conduct in a manner 22 appealing to a prurient interest , and provided for abatement 23 of the public nuisance by civil proceeding , and not by 24 criminal enforcement . These later ordinances also adopted 25 findings of fact made by the City Council which supported the 26 various ordinances . (See copies of Ord . Nos . 3629 and 3637 27 attached as Attachments "B" and " C" , respectively.) 28 CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S. ATTORNEYS AT LAW MAGISTRATE ' S FINDING IOO SO. .LCONO ST.. r. O. DO* 620 PAGE RENTON. WASHINGTON 98057 255.8678 1 B. Synopsis of' Litigation : 2 4/13/81 - City adopted Ordinance No. 3526 . 3 1 /26/82 - Plaintiff , Kukio Bay Properties purchased two theaters within the City of Renton both of' 4 which are clearly within the proscribed distance for separation of adult motion 5 picture theaters from residential zones , • churches , schools and public buildings . 6 Plaintiff acquired the two theaters with knowledge of the existence of the ordinance , 7 and without any attempt to obtain j administrative relief from the ordinance , or 8 to inquire as to how the City would enforce the ordinance . 9 • 1/20/82 - Plaintiff filed this lawsuit requesting the 10 entry of a Temporary Restraining Order and Preliminary Injunction . 11 1 /29/82 - Temporary Restraining Order hearing . 12 Magistrate Sweigert found that the ordinance was basically constitutional and that the 13 Temporary Restraining Order was not necessary to maintain the status quo . 14 2/09/82 - Plaintiffs filed Amended and Supplemental 15 . Complaint . • 16 . 2/19/82 - Prior to any action being taken on the merits in the federal court action , the City filed a 17 Complaint for Declaratory Judgment under RCW 7.24 in the King County Superior Court , naming 18 Plaintiffs herein as Defendants , and requesting an adjudication of' the 19 constitutionality of the ordinance as• applied to the specific land use proposed by the 20 Plaintiffs as set forth in their Amended and Supplemental Complaint . 21 2/22/82 - City of Renton filed its motion to dismiss the 22 • Plaintiff' s Amended and Supplemental Complaint 23 for lack of subject matter jurisdiction and additionally requested the Court to abstain from the exercise of' jurisdiction since this 24 • action primarily involves a zoning ordinance under Young v . American Mini Theaters , which 25 matter should be heard in the state court . 26 3/08/82 - Plaintiffs filed a Petition to Remove the state court action to Federal Court . 27 28 CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S. ATTORNEYS AT LAW MAGISTRATE ' S FINDING 100 50. SECOND ST.. P. O. 00X 020 PAGE 5 RENTON. WASHINGTOH 911057 255.8670 1 3/12/82 - City of Renton filed its Objection to Removal and Motion to Remand . Magistrate Sweigert 2 heard City' s Motion to Dismiss . • 3 3/18/82 - Plaintiffs file their Motion to ' Dismiss the state court complaint. 4 4/09/82 - Magistrate Sweigert • heard the respective 5 motions concerning the Motion to Remand to the state court and Motion to Dismiss. At the 6 conclusion of the hearing , the Magistrate indicated in an oral opinion that the state 7 . court action should be remanded . However , no report or recommendation has been issued by 8 Magistrate Sweigert. 9 5/04/82 - City renewed its Motion to Dismiss Plaintiff' s amended complaint . 10 11 •5/27/82 - City filed Motion for Summary Judgment 'of Dismissal with Prejudice , and renewed its Motion for Dismissal . 12 6/23/82 - Magistrate Sweigert heared City' s Motion for 1.3 Summary Judgment, City' s Renewed Motion to Dismiss Plaintiff' s Amended Complaint and 14 Plaintiffs' Motion for Preliminary Injunction . Despite the City' s request that the City' s 15 Motion for Summary Judgment be heard in 16 advance of the hearing on Plaintiff' s Motion for Preliminary Injunction , the Magistrate proceeded to hear both Motions at the same 17 time. 18 11/05/82 - Magistrate Sweigert fileed his report and recommendation . 19 20 III . ARGUMENT • 21 A . JURISDICTION: This court must abstain from the exercise of its jurisdiction in this matter and 22 remand • the state court action to the state court for resolution of the claims 'of the parties . 23 (1 ) Abstention Required : Since the previous ruling 24 herein on Defendant' s Motion to Dismiss the Federal Court 25 proceedings for lack of jurisdiction , the United States 26 Supreme Court filed an opinion in the case of Middlesex County • 27 Ethics Committee v. Garden State Bar Association , supra . A 28 copy of that opinion is attached as Attachment "D" . In that CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S. ATTORNEYS AT LAW MAGISTRATE ' S FINDING 10O SO. SECOND ST.. P. O. SOX 626 PAGE 6 RENTON. WASHINGTON 98057 255.8678 • 1., case the Supreme Court reversed the Court of Appeals by 2 holding that abstention under Younger v . Harris , 401 U. S. 37 , 3 27 L. Ed . 2d 669 , 91 S . Ct . 746 ( 1971 ) was required . 4 In Middlesex County , disciplinary proceedings were 5 instituted by the local committee of the New Jersey 6 disciplinary system against an attorney based upon an 7 allegation of unethical conduct. Upon filing of a formal 8 statement of charges , the respondent refused to answer , but 9 instead filed suit in the United States District Court 10 contending that the disciplinary rules violated his First 11 Amendment right of free speech. The District Court granted 12 the Bar Association' s Motion to Dismiss based on Younger v . 13 Harris , supra . The Court of Appeals reversed . 14 On appeal the United States Supreme Court held , in a 15 unanimous opinion , that abstention was required under Younger 16 v . Harris , supra , and its progeny . . 17 "Younger v . Harris , 401 U . S.- 37 ( 1971 ) , and its progeny espoused a strong federal policy against 18 federal court interference with pending state judicial proceedings absent extraordinary circum- 19 stances . The policies underlying Younger abstention have been frequently reiterated by this court . The 20 notion of ' comity' includes ' a 'proper respect for state functions , a recognition of the fact that the 21 entire country is made up of a Union of separate state governments , and a continuance of the belief 22 that the National Government will fare best if the States and their institutions are left free to 23 perform their separate functions in their separate • ways . ' Id . , at 44 . (citations omitted) . Minimal 24 respect for the State processes , of course , precludes any presumption that the state courts will 25 not safeguard federal constitutional rights ." at 124 . 26 In the argument before this court on the Defendants' 27 Motion to Dismiss , Plaintiffs relied upon the fact that 28 CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S. ATTORNEYS AT LAW MAGISTRATE ' S FINDING 100 O. SECOND ST.. P. O. SOX 620 PAGE 7 RENTON. WASHINGTON 913057 255-8678 1 Younger was a criminal case and Huffman v . Pursue , Ltd . , 420 • I 2 U. S. 592 , 43 L. Ed . 2d 482 , 95 S. Ct. 1200 (1975) , was a 3 quasi-criminal action . Plaintiff distinguished those cases 4 (which upheld abstention) from the instant case which more 5 closely partakes of a civil action . The Middlesex County case 6 now extends the abstention doctrine clearly to noncriminal 7 judicial proceedings involving important state interests . 8 "The policies underlying Younger are fully applicable to noncriminal judicial proceedings when 9 important State interests are involved ." Moore v . Sims, 442 U.S.. 415, 423 (1979) ; Huffman v . Pursue , 10 Ltd. , 420 U. S. 592, 604-605 (1975) . The importance • oi `-the State interest may be demonstrated by the 11 fact that the noncriminal proceedings bear a close relationship to proceedings criminal in nature , as 12 in Huffman , supra. 'Proceedings necessary for the vindication off`-mportant state policies . . . also 13 evidence the state' s substantial interest in the litigation . Trainor v . Hernandez , 431 U . S . 434 14 (1977) ; Juidice v . Vail , 430 U.S. 327 (1977) . Where vital state interests are involved , a federal court 15 should -abstain ' unless state law clearly bars the interposition of the constitutional claims. ' Moore , 16 supra , at 426 "(T)he . . . pertinent inquiry is whether the state proceedings afford an adeuqate 17 opportunity to raise the constitutional claims . . . ' Id . , at 430. See also Gibson v . Berryhill , 411 U . S. 1i 18 5 (1973) ." 19 Under Young it is abundantly clear that the zoning 20 function of a municipality is one -of the most essential 'and 21 necessary interests of State government. Therefore , it seems 22 clear that the Doctrine of Abstention must apply, to a zoning 23 action just as it now must be said to apply to attorney 24 disciplinary procedures . As the Middlesex County Court noted 25 at footnote 12: 26 "As recognized in. Juidice v . Vail , supra , however , whether - the proceeding is labeled civil , quasi- 27 criminal or criminal in nature , the salient fact is 28 whether federal court interference would unduly CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG, P.S. ATTORNEY° AT LAW MAGISTRATE'S FINDING $0000. SECOND °T.. P. O. °OX 620 PAGE 8 RENTON. WASHINGTON 98057 255-8678 _ I 1 interefere with the legitimate activities of the state . Id . , at 355-336 ." at 125 . 2 The Supreme Court has now refined the following test 3 for Federal Court abstention in noncriminal proceedings : 4 1 . Is a State action pending? 5 2. Are important State policy or interest 6 questions involved? 7 3 . Can constitutional issues be resolved in the state court? 8 4 . Is there a showing of bad faith , harassment or 9 some other extraordinary circumstance which would make abstention inappropriate? 10 See Middlesex , supra , at pages. 125-128. 11 Plaintiffs can make no claim that they will be unable to 12 raise their constitutional claim in the state court action 13 which was filed by the City prior to any action on the merits 14 herein . Likewise there can be no showing of bad faith , 15 harassment, or other extraordinary circumstances that would 16 make abstention inappropriate under Dombrowski v . Pfister , 380 17 U . S. 479 , 85 S. Ct . 1116, 14 L. Ed . 2d 22 ( 1965) . 18 "Younger Abstention" having been clearly made 19 applicable to noncriminal judicial proceedings involving 20 important state interests such as zoning , it is an abuse of 21 discretion for this Court to fail to abstain from the exercise 22 of jurisdiction in this matter . 23 (2) Remand of State Court Action . The State Court 24 - proceedings which were removed to Federal Court should be . 25 remanded to state court . Because of the failure of the 26 Magistrate to issue a Report and Recommendation in accord with 27 , ; , his oral decision to remand the state court action , the City j 28 CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S. ATTORNCY9 AT LAW MAGISTRATE 'S FINDING 100 SO. 6ecoNo ST.. P. O. 00X 626 PAGE 9 RENTON. WASHINGTON 98057 255.8678 1 has been completely precluded from obtaining the definitive 2' construction of the statute which Young , supra , and 3 Dombrowski , supra , anticipated , and which would obviate the 4 necessity of these proceedings . 5 B. Plaintiffs' claim that the City must assure the _ existence of a suitable location is incorrect. The 6 . City cannot consider the economic effect of its regulation, on the Plaintiffs . 7 Plaintiffs' attack on the viability of other locations 8 within the City , has, diverted the Magistrate from what should 9 be the real issue in this Federal case , which is : ( 1 ) the 10 facial constitutionality of the 'ordinance , and (2) whether the 11 ordinance can be given a constitutional application to the 12 .specific parcels of property owned by the Plaintiffs . 13 Plaintiffs may not advance the question of suitability of 14 other sites to disguise the fact that its specific locations 15 are 'proscribed by the face of the ordinance. As noted by 16 Justice Powell in his concurring opinion in Young : 17 "The constraints of the ordinance with repsect to 18 location may indeed create economic loss for some who are engaged in this business . But in this 19 respect they are affected no differently from any other commercial enterprise that suffers economic 20 detriment as a result of land use regulations-. the cases are legion that sustain zoning against claims 21 of serious economic damage . ( Citations omitted) " 22 ' "The inquiry for First Amendment purposes is not concerned with economic impact ; rather , it looks 23 only to the effect of this ordinance upon freedom of expression ." 24 _ . To be sure some prospective patrons may be 25 inconvenienced by this dispersal ." At 78-79 . 26 The City of Renton has no argument with the decision in 27 Schad v'. Borough of .Mt. Ephraim , 452 U. S. 61 (1981 ) , because 28 the regulation complained of in that case specifically CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S. ATTORNEYS AT LAW MAGISTRATE ' S FINDING 100 00. SECOND ST.. P. O. 00X 620 PAGE 10 RENTON. WASHINGTON 98057 255.887E 1 excluded "live entertainment land uses" from the entire city. 2 However , the regulation in Schad , along with those in other 3 cases including Kuzinich v . County of Santa Clara , F . 2d . 4 , No. 81-4460 9th Cir . Slip Op . (Oct. 12 , 1982) , and 5 Basiardanes v . City of Galveston , 682 F . 2d 1203 (5th Cir 6 1932) , is readily distinguishable from the ordinance here . 7 The ordinance at bar leaves vast areas of the City available 8 for location of adult entertainment land uses contrary to the 9 erroneous findings of the Magistrate . (See Part III '0, 10 infra .) 11 The City of Renton is not required to provide developed 12. "turn key" property for the Plaintiff to occupy in the 13 exhibition of its film fare . The court must not allow the 14 Plaintiff to advance its argument on behalf of the the 15 hypothetical 'claims of unknown third parties . Attention must 16 be focused upon the facial constitutionality of the ordinance 17 and its application to the specific locations in which the 18 ' Plaintiff claims an interest . " 19 C. Under the Ordinance Plaintiff may under the Ordinance , exhibit material protected by the First 20 Amendment . 21 Materials protected by the First Amendment may be freely 22 exhibited under the terms of the ordinance anywhere within the 23 City of Renton . The report and recommendation of the 24 Magistrate erred in his legal conclusion as to the effect of 25 the ordinance on the Plaintiff . ( Mag. Report pg. 6) . 26 The ordinance prohibits as a public nuisance per se ( 1 ) 27 the "continued course of conduct" of exhibition of "specified 28 sexual activities" (meaning human genitals in a state of CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG, P.S. ATTORNEYS AT LAW MAGISTRATE' S FINDING 100 EO. SECOND ST.. P. O. BOX 626 PAGE 11 RENTON. WASHINGTON 98057 255-8678 • 1 sexual stimulation or arousal , acts of human masturbation , 2 sexual intercourse or sodomy , or fondling or other erotic 3 touching of human genitals, pubic regions , buttock 'or female 4 breasts) and "specified anatomical areas" (meaning less than 5 completely and opaquely covered human genitals, pubic region , 6 buttock and female breasts below a point immediately above the 7 top of the aerola, and human male genitals in a discernible 8 turgid state , even if completely and opaquely covered) , (2) in 9 a manner which appeals to a prurient interest, (.3) when done 10 within 1 ,000 feet of .any residential use or zone , public or 11 private school , church or other religious facility or 12 institution , or public park. A "continuous course of conduct" 13 of exhibition of sexual conduct which appeals to a prurient 14 interest is "pandering" . Pinkus v . U .S. , supra . In summary , 15 the ordinance prohibits "pandering" in family-oriented areas . 16 Exhibition of "specified sexual activities" or "specified 17 anatomical areas" elsewhere within the City is not a public 18 nuisance per se . Even if the Plaintiff exhibits such 19 activities in a residential zone , it is not a violation of the 20 zoning ordinance until the conduct can be shown to be a 21 "continuing course of conduct . " Innocent or negligent 22 exhibitions do not establish a zoning violation . 23 Finally , the ordinance , as amended , provides for no 24 criminal .prosecution of a violation . In the event of 'a 25 violation , the City may only file a civil action in the King 26 County Superior Court to establish a right to a judicial 27 decree that the Plaintiff is in violation of the zoning 28 ordinance before any action may be taken to interefere with CITY OF RENTON 'S OBJECTIONS TO WARREN & KELI.OGG, P.S. ATTORNEYS AT LAW MAGISTRATE ' S FINDING SOO SO. ■ECONO ST.. r. O. SOX 828 PAGE 12 • RCNTON. WASHINGTON 98057 255.8678 1 the exhibition . Therefore , the lawful exercise of Plaintiff' s 2 . First Amendment rights at any location within the City of 3 Renton is not affected by this ordinance . 4 There . is no prior restraint. Conduct which is not 5 protected by the First Amendment is regulated within the 6 specified areas , but only if the exhibition amounts to a 7 "continuous course of conduct" appealing to a prurient 8 interest , and after a judicial hearing determining that fact . 9 D. Contrary to the report and recommendation of the Magistrate , Schad is not in point. Plaintiff' s 10 proposed land use is not "effectively excluded" from the City. 11 Even if the court finds that the ordinance does infringe 12 13 upon the expression of First Amendment protected material , 14 it is a valid "time, place , manner restriction" , because 15 'locations abound within the City of Renton outside of the 16 protected zones established by the ordinance where Plaintiff 17 may lawfully exhibit " specified . sexual activities" arid 18 " specified anatomical areas" in a "continous course of 19 ..conduct" , provided that such exhibition does not violate other 20 ordinances of the City of Renton or statutes of the State of 21 Washington regarding public nuisances , sexual conduct , 22 lewdness , or obscene or harmful matter or the exhibition or 23 public display thereof. See City of Renton Ordinance No . 24 3629 , Section II. 25 The Magistrate' s conclusion of law that Schad , supra,, is 26 in point in that the effect of the ordinance is to exclude adult theaters from the City of Renton ( see Mag . Report , pg . 27 28 WARREN & KELLOGG. P.S. CITY OF RENTON 'S OBJECTIONS TO ATTORNEYS AT LAW MAGISTRATE 'S FINDING IOOSO. SECOND ST., r. o. OOX.GZ6 PAGE 3 RENTON. WASHINGTON 98057 255.8678 1 5 , lines 2-23 ; pg . 6 , lines 21 - pg . 7 , line 19; pg . 8 , lines 2 20-24) is erroneous for the following reasons : 3 (1 ) The Court is familiar with the Renton area , and 4 may take judicial notice that the areas where Plaintffs may 5 locate an "adult motion picture theater" are not unattractive ,- 6 inaccessible and inconvenient. 7 (a) One of the principal criteria for locating 8 an adult theater is to find a location with heavy traffic . 9 (Transcript June 23 ,' 1982 hearing , pages 7 - 8 .) The areas 10 available are uniquely accessible , bounded on two sides by 11 major freeways (I-405 and SR 167) . On a third side , the area 12 is bounded by a road carrying a traffic volume of 20,000 13 vehicle trips per day which runs from Valley General Hospital 14 across the Valley toward Southcenter . (Transcript June 23 , 15, 1982 hearing , pages 36 - 37 . ) The area is bounded on the West 16 by West Valley Highway , another major arterial road . (See 17 Exhibit "A-2" .) The areas are bisected by a major boulevard , . 18 a four-lane road and are criss-crossed with other major roads . 19 A number of these streets are being widened or improved at the 20 present time . testimony (See of Dave Clemens of June 23 , 21 1982 , pages 36 - 41 ) (Also see Exhibit 2 at June 23 , 1982 I' 22 hearing , heavy blue lines indicate freeways and arterials . ) 23 (b) The court may take judicial notice of the 24 location of theaters in the Seattle area which are in the skid 25 row area . Certainly, that area is more unattractive than 26 would be a location in a developing office park and warehouse 27 area such as is being provided by the City of Renton . • 28 CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S. I, ATTOONCYS AT LAW MAGISTRATE ' S FINDING IOO w. LZCONO ST.. r. o. uox 0z6 PAGE 14 RCNTON. WAOHINGTON 98057 255.8678 • I , I 1 (c) The area available for location of an j 2 adult theater is more accessible to traffic than the present 3 location of the theaters leased by Playtime . (See testimony 4 of Dave Clemens , June 23 , 1982 , pages 40 - 41 .) Within the 5 permissible area , the freeways are readily visible and close 6 by . (See transcript June 23 , 1982 , page 13 . ) 7 (d) There are scattered retail , fast food and 8 office uses throughout the areas . (Transcript of testimony , 9 June 23 , 1982 , page 11 . ) 10 (e) The northeast portion of the City of 11 Renton is largely developed while the southwest portion , 12 wherein the permissive zone is included , is developing as 13 office park, warehouse and other business and commercial uses . 14 (Transcript of June 23 , 1982 hearing , pages 43 - 44 . ) 15 ( f) Inconvenience of 'accessibility ' does not 16 materially effect the business of adult theaters. As pointed 17 out in the testimony, Point Roberts Theater , one of the two 18 profitable theaters operated by Plaintiff is in an isolated , 19 nearly inaccessible location ( see transcript of June 23 , 1982 20 hearing , pages 73 and 74 ) . The other most profitable theater , 21 the Embassy Theater , is located in downtown Seattle on Third 22• and Union and has absolutely no parking . (See Deposition of 23 Roger Forbes of May 27, 1982 , page 28 . ) The Point Roberts 24 Theater , as far distant as forty (40) minutes or more from 25 Vancouver , B.C. , is accessible enough to exert tremendous 26 drawing power for Canadian patrons who wish to view sexually 27 explicit films . (See transcript of June 23 , 1982 , page 16 .) 28 CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG, P.S. ATTORNEYS AT LAW MAGISTRATE ' S FINDING I0050. SCGOND ST.. r. O. DOX 620 PAGE 15 RCNTON. WASHINGTON 98057 255-8678 1 kg) The area available for a.. adult theater or 2 its environs already includes Longacres Race Track , which is 3 one of the major adult entertainment areas in the State of 4 . Washington . (See Exhibit A-1 . ) This location is primarily 5 served by the same roadways and is located in the same area 6 that the Magistrate has termed inaccessible , unattractive and 7 inconvenient . 8 (h) The Magistrate ' s finding that the 9 permissive zone is far distant from the downtown business area 10 (Mag . Report , pg . 5 , line . 17-19) is erroneous . The permissive 11 zone is separated from the downtown business area by nothing 12 more than the width of Interstate 405 . The downtown core of 13 the City of Renton is _ bounded on ' the east and south by 14 Interstate 405 , on the north by Lake Washington and on the 15 west by Rainier Avenue South . (See Defendant' s Exhibit A-1 .) 16 • (i) The Renton Cinema, owned by SRO Theaters 17 is located, in the northeast quadrant of the I-405 and Rainier 18 Avenue South interchange. . The ordinance would permit a 19 theater in the southwest quadrant of that same interchange . 20 (See Exhibit 'A-3 for references to permissive area .) 21 • (2) The City of Seattle, with an area of 56 ,320 22 acres permits adult films in only 250 acres as approved by the 23 Washington State Supreme Court in the case of Northend Cinemas 24 v . City of Seattle , 90 Wn . 2d 709 , 585 P. 2d . 1153 ( 1973) . On 25 the other hand , the City of Renton which is approximately 15% 26 the size of the City' of Seattle with only 9 , 635 acres , has 27 dedicated 520 acres to this use , and there is more property 28 CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S. ATTORNEYS AT LAW MAGISTRATE ' S FINDING tOO SO. SECOND ST.. P. O. DO% 026 PAGE 16 RENTON. WASHINGTON 08057 255.6678 1 yet available through the short platting process , (Transcript , 2 June 23 , 1982 hearing , pages 33 - 35) . 3 (3) Even if the ordinance was susceptible of a 4 construction that it inadvertently prohibits the exhibition of 5 this type of fare altogether within the City ( which it has not 6 done) the film fare is still accessible to the residents of 7 the City of Renton through its availability in Redmond , Des 8 Moines and downtown Seattle . (See Roger Forbes deposition , • 9 testimony, May 27 , 1982 , pages 25 - 26 . ) H 10 (4 ) The Magistrate' s finding that there is only 200 11 acres available in Renton as part of the permissive zone ( Mag . 12 Report , pg. 5 , lines 2-4) is not supported by the record . 13 After the City adopted the amendatory ordinances , the amount 14 ' of acreage increased to approximately 520 acres . ( See 15 Affidavit of Dave Clemens In Support of City of Renton' s 16 Motion for Summary Judgment dated May 26 , 1982 .) Further , in 17 addition to the 520 acres , the City presented evidence that 18 through the simple administrative procedure of short platting • I 19 property an additional amount of P P Y property , equal to 20 approximately one-half of the previously available property .1 21 would be made available to a prospective theater owner for 22 this use within the permissive zone . (See Exhibit A-2 with 23 overlay and property marked in red . See also transcript of 24 , testimony of hearing , June 23, 1982 , pages 33-35 .) 25 It appears from the record that the Magistrate ' s 26 conclusion of law that the ordinance " . . . for all practical 27 . purposes , excludes adult theaters from the City of Renton and 28 therefore greatly restricts access to lawful speech" ( Mag . CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.s. it ATTORNCY9 AT LAW MAGISTRATE ' S FINDING • Ioo DO. ■CCONO ST.. P. O. DOx 626 PAGE 17 RCNTON. WASHINGTON 98057 255.8678 . 1 Report , page 6 , line 21 - 23) so as to make Schad applicable , • 2 is erroneous as a matter of law. Part II of • the plurality 3 opinion in Young , which was joined by Justice Powell , states: 4 "Reasonable regulation of the time , place and manner • 1 of protected speech, where those regulations are 5 necessary to further significant governmental interests, are permitted by the First Amendment . ." 6 at 62-63. 1 7 Justice Powell' s concurring opinion commends the Detroit 8 type ordinance , the model upon which the Renton ordinance was ' 9 based . Through reliance upon the four-part test of . United 10 States v. O'Brien , 391 U.S. 367 (1968) , Justice Powell reached . 11 the idential conclusion as that of the plurality 1 12 opinion---that this particular strategy of urban planning has l3 no significant effect upon accessibility of erotic material . 1 14 That test is set forth as follows: 15 " . , . a governmental regulation is sufficiently justified , despite its incidental impact. upon First 16 Amendment interests , ' if it is within the • constitutional power of the government ; if it 17 furthers an important or . substantial governmental interest; if the governmental interest is unrelated 18 to the suppression of free expression; and if the incidental restriction . . on First Amendment 19 freedoms is no greater than is essential to the • furtherance of that interest'" . At 79-80. 20 In footnote 4 , Justice Powell continues : 21 "But a zoning ordinance that merely specifies where 22 a theater may locate , and does not reduce 23 significantly the number or accessibility of theaters presenting films, stifles no expression ." 24 The ordinance .in question here satisfies the O 'Brien • 25 test. First, enactment of the zoning ordinance is within the !i 1 26 police power of the City of Renton. Second , as noted by 27 Justice Powell , the interest furthered by the .adoption of the 28 zoning ordinances is important and substantial . WARREN & KELLOGG. P.S. CITY OF RENTON'S OBJECTIONS TO ATTORNEYS AT LAW MAGISTRATE'S FINDING Ioo'O. SECOND BT.. P. O. BOX ate PAGE 18 RENTON. WASHINGTON 98057 255.8678 • II I , 1 "Without stable neighborhoods , both residential and I ' commercial , large sections of a modern city quickly 2 can deteriorate into an urban jungle with tragic consequences to social , environmental and economic 3 values. While I agree with respondents that no 11 aspect of the police power enjoys immunity from , 4 searching constitutional scrutiny , it is also undeniable that zoning , when used to preserve the 5 character of specific areas of ..a city, is perhaps I ' ' the most essential function performed by local I 6 government , for it is one of the primary means by which we protect that sometimes difficult to define 7 concept of quality of life . '" Young , at 80 . (citation omitted .) —'�� 8 9 Third , the governmental interest asserted by the City is ll entirely unrelated to the supression of free expression . The 10 zoning ordinance was enacted nearly one year before Plaintiff 1 11 announced its intention to operate an adult motion picture 1 12 theater within the City, and after a period of study which 13 pre-dated the enactment of the ordinance by nearly another 14 year . 15 Finally , the incidental restriction upon Plaintiff' s 16 I claimed First Amendment rights is not greater than is ' 17 18 essential . The land area restricted is the family-oriented .' zone of the City and one thousand feet surrounding that zone . 19 The "use" which is proscribed within that area is the 20 "pandering" use , i .e . , a "continuing course of conduct" of 21 ;I 22 exhibiting sexual conduct in a manner which appeals to a ' • prurient interest . The restrictions imposed , which are, 23 modeled after the Detroit zoning ordinace in Young , are the 24 product of careful legislative study in order to protect the 25 26 quality of life enjoyed by residents . As the Supreme Court stated : 27 ' " . . The City' s interest in attempting, to preserve ' 28 the quality of urban life is one that must be I ( CITY OF RENTON.'S OBJECTIONS TO WARREN & KELLOGG. P.S. I ATTORNEYS AT LAW , MAGISTRATE 'S FINDING K.SO. 3EGONO ST.. P. O. DOX G20 PAGE - 19 RENTON. WASHINGTON 98057 j 255-8678 1 1 accorded high respect. Moreover , the city must be allowed a .reasonable opportunity to experiment with 2 solutions to admittedly serious problems ." Young , �I at 71 . 'I 3 There are numerous locations within the City of Renton 4 where the Plaintiff may legitimately exhibit his protected 5 1 film fare. - The City is not required to meet the restrictive 6 tests of Schad as specified by the Magistrate. The ordinances ;1 7 meet the tests set forth in Young and O' Brien and are 8 therefore constitutional on their face and as applied to the 9 Plaintiff' s proposed use. l 10 D. There need be no legislative history to support the 11 actions of the Renton City Council in the enactment , of the ordinance. 12 Because of the Magistrate' s erroneous conclusion that the 13 Renton City . Ordinance H . . . for all practical purposes , 14 exclude adult theaters from the City of Renton and therefore IIIi 15 greatly restrict access to lawful speech" , the Magistrate 16 reviewed the factual basis for the establishment of the 17 ordinance. The Magistrate atrate 18 g ppears to lay great emphasis upon the legislative history behind the enactment of the ordinance . 19 Such an emphasis is misplaced . Under Washington law, a City 20 21 Council must make findings of fact to support. rezoning 22 legislation (which partakes of a quasi-judicial function) . 23 Parkridge v. Seattle, 89 Wn .2d . 454 , 537 P.2d . 359 , 1978) . 24 However , no findings of fact are required for the adoption of 25 legislation such as the ordinance in question which creates 26 zones (which partakes of a legislative function) . 27 In any event , in Ordinance No. 3629 the City made 28 findings of fact which set forth the reasoning behind the CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S. ATTOANEY•AT LAW MAGISTRATE 'S FINDING IOO SO. •CCOND ST.. P. O. DOX G26 PAGE 20 RENTON, WASHINGTON 98057 255-8678 ' I 1 regulatory scheme and its adoption of the Ordinance . Contrary 2 to the Plaintiffs' contentions , that the City need not engage 3 in an independent and empirical analysis to support '1 p p' y its 4 ordinance . That approach was rejected in Genusa v . City of 5 Peoria , 619 F.2d . 1203 , 1211 ( 1980) . I I 6 "Even though here , unlike in Young the City has not demonstrated a past history of congregated adult 7 uses causing neighborhood deterioration , we agree with the District Court that a city need not await 8 deterioration in order to act. A legislative body is entitled to rely on experience and findings of 9 other legislative bodies as a basis for action . II There is no reason to believe that the effect of 10 congregated adult uses in Peoria is likely to be - different than the effect of such congregations in 11 Detroit ." 12 Particulary is this so when the circumstances surrounding the 13 , enactment of the ordinance are neutral in that they are 14 unrelated to any specific, proposed land uses . The cases cited 15 by the Magistrate are easily distinguished . In each case , the 16 City Council was reacting to the imminent presence of an II 17 adult-oriented land use. Here there is no reason to impune it 18 unlawful motives . The contrary is true . The ordinance was 19 adopted prior to Plaintiffs' proposal to use the theaters for 20 exhibition of adult film fare. 21 Under the Doctrine of. Separation of Powers , courts must 22 presume that legislation is adopted with proper motives. As 23 stated in Lillion v . Gibbs , 47 Wn .2d . 629 , 633 , 289 P . 2d . 203 24 (1955) : ; I 25 "In the absence of fraud , this court . will not inquire into the motives which actuated the local 26 legislative body to enact, or fail to enact, an , ordinance or resolution . (citations omitted) " �. , 27 . 28 & KELLOGG. P.S. CITY OF RENTON 'S OBJECTIONS TO WARRENATTORNEYS AT LAW MAGISTRATE 'S FINDING ioo so. /[GONG 5T.. r. O. OOX 6243 RENTON, WASHINGTON 98057 PAGE 21 255-8678 1 There is no evidence in this record that the City Council 2 intended to relegate exhibitions of the plaintiffs sexually 3 explicit material to an inaccessible , unattractive and I I 4 unsuitable area of the city. Even if that were true , such a �! 5 relegation is the perogative of the legislative body - - - 6 particularly bearing in mind that this material under 7 regulation is a "pandering" g business which, under Federal law, 8 is a felony . Ginzburg v . U .S . , 383 U. S. 463 , 86 S. Ct. 942 , 9 16 L. Ed 2d 31. ( 1966) . The state can likewise deal with 10 "pandering" activities in the same manner . Sedelbauer v . 11 Indiana, 428 N. E. 2nd 206 , at 207 (Ind . 11/30/81 ) . 12 The Magistrate' s statement at page 8 , lines 9 - 15 , that 13 the manner in which the ordinance was enacted " . . . suggests 14 an improper motive" is unsupported by the evidence , 15 constitutes a usurpation of the legislature' s powers under the 16 "Doctrine of Separation of Powers" , and amounts to an abuse of 17 discretion . 18 E. The test for issuance of a Preliminiary Injunction not met under the circumstances in this case . 19 ( 1 ) Status Quo : A preliminary injunction is an 20 21 extraordinay remedy , the nature and purpose of which is to "preserve the status 'quo pending a determination of the action 22 23 on the merits ." Los Angeles Commission v. NFL, 634 •F.2d . 24 1197 , 1200 (9th Cir . 1980) . The status quo now and at the 25 filing of this suit is that Plaintiffs are not exhibiting 26 sexually explicit films . � I 27 (2) Balancing Test: The plaintiff cannot safisfy the 28 balancing test for issuance of a Preliminary Injunction . is • CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S. MAGISTRATE 'S FINDING T• AT l f00•O. SECOND�CGOND ST.. P. 0 O.. BOX 416 PAGE 22 RICHTON. WASHINGTON 98057 255.8678 1 William .Inglis & Sons Baking Company v . ITT Continental Baking 2 Company, 526 F .2d 86 (9th Cir . 1975) . There the court 1 3 indicated that the moving party must demonstrate either ( 1 ) a P 4 combination of probable success on the merits and the 5 possibility of irreparable injury , or ( 2 ) that serious 6 questions are raised and the balance of hardship tips sharply q in its favor . 8 The Plaintiff cannot demonstrate a probablity of success 9 on ' the merits. Nor can the Plaintiff demonstrate irreparable 10 injury. ll As noted above in the argument under Part III C , 12 Plaintiff is at liberty to exhibit any sexually explicity • 13 material which is protected by the First Amendment at any 14 place or time within the City of Renton . Under the ordinance , 15 the exhibition of non-obscene material which appeals to a 1 16 prurient interest when done in a family-oriented zone and as a 17 continuing course of conduct is regulated to the extent that 18 the exhibitor will be named as a defendant in a civil action • i 19 to abate that type of conduct. Therefore , the existence of 20 the ordinances has cause not present irreparable harm to be 21 suffered by the Plaintiff. 22 In any event , the only harm which the Plaintiff may ever 23 sustain as a result of the existence of the ordinances is to 24 be subjected to a civil lawsuit instituted by the City of 25 Renton to abate a public nuisance per se . No criminal remedy 26 is available to the City of Renton . To be subjected to a 27 civil lawsuit to determine whether an ordinance violation has 1 28 occurred and a public nuisance should be abated , cannot 1' CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S. ATTOFNCYS AT LAW MAGISTRATE 'S FINDING 100 SO. SECOND ST.. P. O. UOX 626 PAGE 23 RENTON. WASHINGTON 98057 255.8678 1 constitute "irreparable harm" . Huffman v . Pursue Ltd . , supra , • I 2 at 601 - 602. 3 IV. CONCLUSION 4 Defendants' objections to the Report and Recommendation 5 filed by the Magistrate my be summarized as follows : 6 A. First and always , this court must abstain from the exercise of its jurisdiction . 7 B. The ordinance does not restrict the Plaintiffs 8 from exhibiting any material which is protected by the First Amendment. The only conduct which 9 is regulated is that which amounts to "pandering" in a family-oriented area ( which is 10 not protected by the First Amendment) . 11 C. Substantial portions of the City are available under the ordinance for location of an adult 1.2 theater . Such uses are not "effectively excluded" from the City. 13 In Stansberry v . Holmes , 613 F. 2d 1285 , 1288 (5th Cir . 14 • 1980) , the Court of Appeals elgquently described the Supreme 15 Court' s attitude toward local zoning : ;I 16 "Zoning provides one of the firmest and most basic I 17 of the rights of local control . . . In Berman v . . Parker , 348 U . S. 26 , 33 , 75 S. Ct . 98, 102 , 99 L. 18 Ed . 27 ( 1954 ) , the Court held that land use regulations may promote "values [ which] are 19 spiritual as well as physical , aesthetic as well as ; , monetary." In Village of Belle Terre v . Boraas , 416 20 U.S. 1 , 9, 94 S. Ct. 1536 , 1541 , 39 L. Ed . 2d 797 (1974 ) , the Court said that zoning could be used to • 21 create and promote living areas that protect "family values [and] youth values ." ;I 22 I . •This court should sustain the position •taken by the City of . 23 li Renton , and dismiss Plaintiffs' Amended and Supplemental 24 25 Complaint with prejudice and deny Plaintiffs' motion for injunctive relief. 26 27 Resp lly submitted , 28 of Cou set for D- fe gets h CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S. ATTORNEYS AT LAW MAGISTRATE ' S FINDING 100 SO. SECOND ST., P. O. SOX 62S PAGE 24 RENTON. WASHINGTON 98057 255.8678 CITY OF RENTON, WASHINGTON ORDINANCE NO. __ 352E AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON, RELATING TO LAND USE AND ZONING THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO ORDAIN AS FOLLOWS : SECTION I : Existing Section 4-702 of Title IV (Building Regulations) of Ordinance No. 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended by adding the following subsections : 1 . "Adult Motion Picture Theater" : An enclosed building used for presenting motion picture films , video cassettes , cable television , or any other such visual media, distinguished or characterized by an emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas" as hereafter defined, for observation by patrons therein. 2 . "Specified Sexual Activities" : (a) Human genitals in a state of sexual stimulation or arousal; • (b) Acts of human masturbation, sexual intercourse or sodomy ; (c) Fondling or, other erotic touching of human genitals , pubic region, buttock or female breast . 3 . "Specified Anatomical Areas" (a) Less than completely and opaquely covered human genitals , pubic region, buttock, and female breast below a point immediately above the top of the areola; and (b) Human male genitals in a discernible turgid state, even if completely and opaquely covered. l'7cecaR�e�FICATE .-1- I. the undersigned, on •�Ea� Cleric of the City of Ranson, Washington,, certify that this is a true and correct copy of 4.. . , z?. . Subscribed and Seated ' this /. day of WW:w , 1ee:a „-- City Gerk 1 i • SECTION II : There is hereby added a new Chapter to Title • I IV (Building Regulations) of Ordinance No . 1628 entitled "Code of General Ordinances of the City of Renton" relating to adult motion picture theaters as follows : A. Adult motion picture theaters are prohibited within the area circumscribed by a' circle which has a radius consisting of the following distances from the following specified uses or zones : 1 . Within or within one thousand (1000 ' ) feet of any residential zone (SR-1 , SR-2 , R-1 , S-1 , R-2 , R-3 , ;I R-4 or T), or any single family or multiple family residential use. 2 . One (1.) mile of any public or private school 3 . One thousand (1000 ' ) feet of any church or other religious facility or institution 4. One thousand (1000 ' ) feet of any public park or P-1 zone. B. The distances provided in this section shall be measured by following a straight line , without regard to intervening'• buildings , H ' 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 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 , 1981. t De ores A. ea , city Clerk APPROVED BY THE MAYOR this 13th day of April , 1981 . Approved as to form: Barbara Y. Shinpoch, Mayor awrence J . arren, City Attorney Date of Publication : May 15, 1981 • I 0/0-41 • • DNO. Ag3sz� • CITY OF RENTON.,. WASHINGTON 'ORDINANCE NO . 3629 AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON RELATING TO LAND USE AND ZONING WHEREAS , on April 13 , 1981 , • the City Council of the City of Renton adopted ' Ordinance N'o . 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 , it was the intention of the City council of the City of Renton in the adoption of that Ordinance to rely upon the opinion of the United States Supreme Court in the case of Young v. American Mini Theaters , 427 US 50 , and of the Supreme Court of the State of Washington in'th,e 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 H through effective land use planning; and WHEREAS , the City Council, through its Planning and Development Committee, held a public meeting on March 5 , 1981 , to . receive testimony from the public concerning the subject of .regulation • of adult entertainment land uses , at which the following testimony was received which the .City Council believes to be true , and which formed the basis for the adoption of Ordinance No . 3526 : H 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, • it . 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 ' the .rndrxsiesed,rD E(.oers. A-.•Wl c A.Q C*olt udt •4ry of Rant" Watitifig%ofi, certify Met this is a 4110 I' -sofmtict ton of.OL.4►.V.a.N.cE...NsE ° . ... . S s•Olbed awd.Soalod o This fLA.. $ Z.�. • affected by the presence of adult entertainment land uses in close proximity to residential land uses , churches , parks and other public facilities , and schools . 5 . Regulation of adult entertainment land uses should be developed to prevent deterioration and/or degradation of the vitality of the community before • the problem exists , rather than in response to an ! , existing problem. I ! 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 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 ;' 1 quality of education which the School District is providing for its students . 9 . The Renton School District finds that education of its students. will be negatively affected by location of adult entertainment land uses in close proximity to location of schools . 10 . Adult entertainment land' uses should be regulated by zoning to separate it from other dissimilar uses just as any other land use should be separated from uses with characteristics different from itself. 11. Residents of the City of Renton, and persons who are '• non-residents but use the City of Renton for shopping and other commercial needs , will move from the community or shop elsewhere if adult entertainment land uses are allowed to locate in close proximity to residential uses , churches , parks and other public facilities , and schools . 12 . Location of adult entertainment land uses in proximity to residential uses , churches , parks and other public facilities , and schools , may lead to increased levels ! 7 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 ' I 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 • I -2- • 1 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 areas 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. No evidence has been presented to show that location of adult entertainment land uses within the City will improve the commercial viability of the community. 16 . Location of adult entertainment land uses within walking distance of churches and other religious facilities will have an adverse effect upon the ministry of such churches and will discourage attendance at such churches by the proximity of adult entertainment land uses . 17 . A" reasonable regulation of the location of adult entertainment land uses will provide for the protection of the image of the community and its property values , and protect the residents of the community from the adverse effects of such adult entertainment land uses , while providing to those who desire to patronize adult entertainment land uses such an opportunity in areas within the City which are appropriate for location of adult entertainment land uses . • 19'. The community will be an undesirable place to live • if it is known on the basis of its image as the location of adult entertainment land uses . 20 . A stable atmosphere for the rearing of families cannot be achieved in close proximity to adult entertainment land uses . 21 . The initial location of adult entertainment land uses will lead to the location of additional and similar uses within the same vicinity, thus multiplying 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. • • -3- ;�; • • II • 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 to include a severability clause which was inadvertently omitted from Ordinance No . 3526 , and to make certain other technical amendments to Ordinance No . 3526 , that it is necessary for the City ' Council to adopt legislation amending Ordinance No. 3526 to accomplish the foregoing purposes ; and WHEREAS , the City Council, at its duly called special meeting on February 25 , 1982, held a public hearing upon the subject matter of land use regulations of' adult motion pictures within the City of Renton, at which public hearing the City Council received comments from the public on that subject matter at which the following testimony was received, which the City Council believes to be' true,. and which , together with the findings heretofore set forth as.. the basis for the adoption of Ordinance No. 3256, form the basis for ' the adoption of this Ordinance : 1 . 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 relationships and for the sanctity of marriage relations of others , and the concept of non-aggressive consenual sexual relations . • -4- • • • • • • 3. Citizens from other cities and King County will travel 1 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 ; ;I a blight upon the commercial area of the City of :1 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 . 1 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 . 1 Pornographic material has a degrading effect upon the relationship *between spouses . 1' NOW THEREFORE , THE CITY COUNCIL OF THE CITY OF RENTON , WASHINGTOid 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 sub- sections : "Used" The word "used' , in the definition of "Adult motion 1 picture theater" herein, describes a.continuing course of conduct of exhibiting ."specific sexual activities" and "specified anatomical•'areas 111 in a manner which appeals to a prurient interest . SECTION II : Existing Section 4-735 of Title IV (Building 6 Regulations) of Ordinance No. 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended by adding the following subsections: ) (C) Violation of the use provisions of this section is declared") to be a public nuisance per se , which shall be abated by City Attorney by way of civil abatement procedures only ;, and not by criminal prosecution.,! (D) Nothing in this section is intended to authorize , legalize or permit theestablishment , operation or maintenance of any ;I business , building or use which violates any City of Renton. ordinance 1 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. -5- • • 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 of Renton hereby declares that it would have adopted City of Renton Ordinance No. 3526 and each section, subsect,ion4, sentence, clause, ,I 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 . I 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 . ;I 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 be declared invalid or unconstitutional . SECTION VI : The City Council o,f the City of Renton finds and declares that an emergency exists because of the pendency of litigation against the City of Renton involving the subject matter of this. ordinance , and potential liability of the City of Renton •for damages as pleaded in that litigation, and that the immediate adoption • • rl -6- T• • i! • • • of this ordinance is necessary for the immediate preservation of public pealc, health, and safety or for the support of city government and its existing public institutions and the integrity of the zoning of the City of Renton. Therefore, this ordinance shall take effect immediately upon its passage and approval by the mayor. • . PASSED BY THE CITY COUNCIL this 3th day of May, 1982 . j e ores. ead,CEity C eerk • APPROVED BY THE MAYOR this 3th day ,'of, ' .May, 1982 . Barbara Y. Shinpoch , Mayor Approved as to form; • • • Lawrence J . Warren, City Attorney Date of Publication: May 7, 1982 • • • • ;',, e;, • • • • • • • Gi ', �..'.. • •'i: •''' 11.r • is,I -7- • • ' I • i I CITY OF RENTON, WASHINGTON ORDINANCE NO. 3637 • AN ORDINANCE OF THE CITY OF AMENDING ORDINANCE NO. RENTON, WASHINGTON 3 AND ZONING AND AMENDING ORDINANCE INO: TO629`4BYUSE 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 or- Renton adopted Ordinance No. • 3629 amending Ordinance No . 3526 , which Ordinance was approved by the Mayor on May 3 , 1982 , and became effective on its passage and by the terms of the Ordinance ; and WHEREAS the City Council wishes to remove the emergency clause from Ordinance No. 3629 and re-enact the remainder of Ordinance No. 3629 in its entirety ; and WHERREAS , it was' the intention of the City Council of the City of Renton in the adoption of Ordinance No, 3526 to rely upon the opinion of the United States. Supreme Court in the case o'f 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 Rento n '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 I, the signed, coreEs A , M,.p a der*of the City 'of 1ionaoe, Washington. certify that this Is a We and °area oopy of.0.R!?.:N F1:1?�,�, Subscribed and Sealed this ac4I day of �O.n�., • City Clerk • it receive testimony from the public concerning the subject of regulation of adult entertainment land uses , at which the following testimony was received which the City Council believes to be true , and which formed the basis for the adoption of Ordinance No . 3526 : 1. Areas within close walking distance of single and multiple family dwellings should be free of adult 'entertainment land uses . 2. Areas where children could be expected to walk, patronize or recreate should be free of adult entertainment land uses . 3 . Adult entertainment land• uses should be located in areas of the City which are not in close proximity to residential uses , churches , parks and other public facilities , and schools . 4. The image of the City of Renton as a pleasant and attractive place to reside will be adversely affected by the presence of adult entertainment land uses in close proximity to residential land uses , churches , parks and other public facilities , and schools . 5 . Regulation of adult entertainment land uses should be developed to prevent deterioration and/or degradation of the vitality of the community before the problem exists , rather than in response to an existing problem. 6. Commercial areas of the City patronized by young people and children should be free of adult enter- tainment land uses . 7. The Renton School District opposes a location of adult entertainment land uses within the 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 . II 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- • ci • i • 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 . • 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 I 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 oroximity to residential uses , churches , parks and ther public facilities , and schools . Location of adult entertainment land uses in close proximity i to. residential uses , churches , parks and other j1 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 I1 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 . No evidence has been presented to show that location of adult entertainment land uses within the City will improve the commercial viability of the community . 16 . Location of adult entertainment land uses within walking distance of churches and other religious facilities will have an adverse effect upon the ministry of such churches and will discourage attendance at such churches by the proximity of adult. entertainment land uses . . . u • it II -3- i • • • 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 providinc 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 i 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 1 of Ordinance No . 3526 ; and • • WHEREAS , the City Council finds that , in order to choose the least restrictive alternative available to accomplish the purposes • I . 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 legislation amending Ordinance No . 3526 to accomplish the foregoing purposes ; and WHEREAS , the City Council , at its duly called special H 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 lie true , . -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 j 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 j for marital relationship and for the sanctity of marriage relations of others , and the concept of . 1 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 ;I 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 Ordinance's of the City of Renton" is hereby amended by adding .the following subsections : • • -5- ii • Ili , • 1 "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 4-735of 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 : li (C) Violation of the use provisions .of this section is j l i declared to be a public nuisance per se, which shall be abated by City Attorney by way of civil abatement procedures only , and not by criminal prosecution. (D) Nothing in this section is intended to authorize , 1 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 jf 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 ' I jurisdiction, such decision shall not affect the validity of the 1 remaining portions of this ordinance . The City Council of the City -6- • I I'. 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 � 1 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 be declared invalid ;11 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 . Delores A. Mead, LCity Clerk 1 APPROVED BY THE MAYOR this 14th day of June, 1982 . • oc• w 1• 1uit,.poc.D-• • Barbara Y. Shinpoch , Mayor j if Approved as to form: • Lawrence J . L arren,Cz y Attorney Date of Publication : .lulu! hi, 1982 • ' �I • .11 . • .. - • • • .......-ova.acua►arJ LVUn1`rtr;YUti1';' 73 L Ed 2 —' e ..d MIDDLESEX ET E. - 1_ i 73LEd2d116 r. :,. Court of Appeals declined to alter its original decision, despite an affidavit from the clerk of the Supreme Court of New Jersey stating that the Supreme Court of New Jersey would directly consider the attorney's consti- . .r tutional challenges and that the court would consider whether such a . procedure should be made explicit in the court's rules (651 F2d 154). • Pending review in the United States Supreme Court, the Supreme Court of New Jersey heard oral arguments on the constitutional challenges pre- '• sented by the attorney and adopted a rule allowing for an aggrieved party MIDDLESEX COUNTY ETHICS COMMITTEE, etc., Petitioner in a disciplinary hearing to seek interlocutory review of a constitutional challenge to the proceedings. v On certiorari, the United States Supreme Court reversed and remanded. GARDEN STATE BAR ASSOCIATION et al. In an opinion by BURGER, Ch. J.,joined by WHITE, PowELL, REHNQUtsT, and O'CoNNOR, JJ., it was held that the federal courts should abstain from —US—,73 L Ed 2d 116, 102 S Ct. 4'.-•• > .) considering the challenge to the constitutionality of the disciplinary rules that were the subject of the pending state disciplinary proceeding within the ce,g [No. 81-460] jurisdiction of the Supreme Court of New Jersey, since (1) the state court \I considered its bar disciplinary proceedings as judicial in nature, (2) the state Argued March 31, 1982. Decided June 21, 1982. _ had an extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses, especially those involved in • ecision: Federal court abstention from considering challenge to constitu- • the administration of criminal justice, (3) the attorney had an opportunity tionality of attorney disciplinary rules that were subject of pending state • to raise and have timely decided by a competent state tribunal the federal disciplinary'proceeding within jurisdiction of New Jersey Supreme Court, issues involved, and (4) no bad faith, harassment, or other exceptional held required. circumstances dictated to the contrary. • . SUMMARY • BRENNAN, J., concurring in the judgment, expressed the view that (1) A local attorney ethics committee, appointed by the New Jersey Supreme federal courts should show particular restraint before intruding into an urt, served a formal statement of charges on an attorney, alleging , ongoing disciplinary proceeding by a state court against a member.of the Nations of certain disciplinary rules because of the attorney, attorney's state's bar, where there is an adequate opportunity to raise federal issues in itements criticizing a criminal trial and a trial judge. Instead of filing - that proceeding, and (2) the abstention doctrine applied by the court is in g general inapplicable to civil proceedings. swer to the charges in accordance with state bar disciplinary procedures, attorney and three organizations filed suit in the United States District r MARSHALL, J., jOined by BRENNAN, BLAf:xAfUN, and STEVENS, JJ., con- urt for the District of New Jersey, contending that the disciplinary rules : curved in the judgment, expressing the view that it was unclear whether, at dated the plaintiffs' •First Amendment rights and were facially vague and •Tc,.' there was an adequate ?rbro% The District Court granted the ethics committee's motion to the time the lower courts addressed the issue, mis.' ncluding that the principles of comity and federalism •dictated ▪ opportunity in the state disciplinary proceedings to raise a constitutional it tt.L federal court abstain and afford the state the opportunitychallenge to the disciplinary rules,but that at the time of the United States to • Supreme Court's decision there were ongoing judicial. proceedings in the erpret its rules in the face of a constitutional challenge. The District Supreme Court of New Jersey in which the attorney had been given the in reopened the case to allow the attorney and the other plaintiffs an r opportunity to raise his constitutional challenges. >ortunity to establish bad faith, harassment, or other extraordinary • :umstances which would constitute an exception to the Younger absten- 1 doctrine, but the District Court found no evidence to justify such an • eption, and dismissed the federal court complaint. The United States . in of Appeals for the Third Circuit reversed'on the ground that the state disciplinary proceedings did not provide a meaningful opportunity to udicate constitutional claims, the disciplinary proceedings being viewed the Court of Appeals as different from the state judicial proceedings to • .ch federal courts usually defer (643 F2d 119). On reconsideration, the y _ ) _ 117 0 --_—=1- ........_..,.v.._a-u .aL-VV_V:LAY-/vE,r VA10---_--• .3 L Ed 2d _ _ __- ____ - - - - - -- _ __ —_-___—_--- - ,_•. • MIDDLESEX ETHICS COMM. v GARDEN ST. BAR ASSN. state judicial proceedings and in the fed- was no bad faith or harassment on peti- ' 73 L Ed 2d 116 eral case calls Younger abstention into tioner's part and that the state discipli- complaint is made by the person attorneys. The lawyer who- is play. nary rules were not "flagrantly and pa- who chairs the Ethics Committee. If charged with unethical conduct may (d) In light of the unique relationship tently" unconstitutional. Nor have any I. a complaint is issued by the Ethics have counsel, discovery is available, between the New Jersey Supreme Court other extraordinary circumstances been Committee it must state the name of and all witnesses are sworn. The and the local Ethics Committee, and in presented to indicate that abstention the complainant, describe- the panel is required to prepare a writ- view of the nature of the proceedings, it would not be appropriate. - • -":" claimed improper conduct, cite the ten report with its findings of fact cannot be concluded that there was no 643 F2d 119 and 651 F2d 154, reversed relevant rules, and state, if known, and conclusions. The full Committee, "adequate opportunity" for Hinds to and remanded. raise his constitutional claims. An ." whether the same or a similar corn- following the decision of the panel, y Burger, C. J., delivered the opinion of plaint has been considered by any has three alternatives. The Commit- doubt as to this matter was laid to rest the Court, in which White,Powell, pre- byRehn- the New Jersey Supreme Court's sub- quist, and O'Connor, JJ., joined. Brea- other Ethics Committee. The actor-. tee may dismiss the complaint,sequent actions when, prior to the filing nail, J., filed an opinion concurring in ney whose conduct is challenged is pare a private letter of reprimand, of the petition for certiorari in this the 'ud Y served with the complaint and has or prepare a presentment to be for- Court, it sua sponte entertained the con- judgment. Marshall,J.,filed an opin- :;7 10 days to answer? warded to the Disciplinary Review stitutional issues raised by Hinds. And ion •concurring in the judgment,in which Board. Rule 1:20-2(0).' Brennan, Blackmun, and Stevens, JJ., �-. Unless good cause appears for re- there is no reason to disturb the District ferringthe' complaint to another • Coin*'= "nchallenged findings that there joined. • p The Disciplinary Review Board, a . committee member, each complaint state-wide board which is also ap- • APPEARANCES OF COUNSEL •• is referred to the member of the pointed by the Supreme Court, con. • • Mary Ann Burgess argued the cause for petitioner. Committee who conducted the initial . sists of nine members, at least five of Morton Stavis argued • investigation for review and further whom must be attorneys and at the cause for respondents. investigation, if necessary. The corn- least three of whom must be nonat- OPINION OF THE COURT • .: mittee member submits a written torneys. The Board makes a de novo' Chief Justice Burger delivered charges the State Supreme Court report stating whether a prima facie review. Rule 1:20-3(d)(3).' The Board the opinion of the Court. with the responsibility for licensing indication of unethical or unprofes- is required to make formal findings and disciplining attorneys admitted `� sional conduct has been demon- and recommendations to the New [la] We granted certiorari to de- to practice in the State. Art 6, 2, strated. The report is then evaluated Jersey Supreme Court. termine whether a federal court t . by the chairman of the Ethics Com- should abstain from considering a 3• Under the rules established by mittee to determine whether a All decisions of the Disciplinary challenge to the constitutionalityof the New Jersey Supreme Court, en- beyondp acted pursuant to its constitutional prima facie case exists. Absent a Review Board a private rep- disciplinary rules that are the sub- authority, a complaint moves prima facie showing, the complaint rimand are reviewed by the New sub- ject of a pending state disciplinary through a three-tier procedure. is summarily dismissed. If a prima _ Jersey Supreme Court. Briefing and proceeding within the jurisdiction of First, local District Ethics Commit- facie case is found,-a formal hearing oral argument are available in the the New Jersey Supreme Court, tees appointed by the State Supreme on the complaint is held before three Supreme Court for -cases involving US —, 70 L Ed 2d 377, 102 S Ct Court are authorized to receive corn- z;': ' or more members of the Ethics Corn- disbarment or suspension for more 500 (1981). The Court of Appeals mittee, a majority of whom must be than one year. Rule 1:20-4. plaints relating to claimed unethical hel it it need not abstain under Yois --r v Harris, 401 US 37, 27 L conduct by an attorney. New Jersey Court Rule 1:20-2(d). At least two of 2. For a more detailed explanation of the one member of the bar to serve as- Secretary. Ed 2d 669, 91 S Ct 746 (1971). We the minimum of eight members of disciplinary procedure of the District Ethics The Secretary maintains records m the pro- reverse. g • • Committees, see Rule 1:20-2. As noted below, ceedings. The Secretary also transmits copies the District Ethics Committee must the procedure, as amended in 1981, now pro- of all documents filed to the Division of Ethics I be nonattorneys. Complaints are as- '•' vides that a charged attorney may raise con- and Professional Services.Rule 1:20-2(c). signed to an attorney member of the • stitutional questions in the District Commit- A Committee to report and make a ' tees. Any constitutional challenges are to be 4.Subsequent to the initiation of the disci- set forth in the answer to the complaint. Rule plinary hearing involved in this case. Rule recommendation. Rule 1:20-2(h). The 1• .20•2(j)now provides: 1:20-3(e)was amended to provide: The Constitution of New Jersey decision whether to proceed with the '" "All constitutional questions shall be with- "Constitutional challenges to the proceedings held for consideration by the Supreme Court not raised before the District Committee shall 1. 1. Art 6, Q 3 provides: procedure in all such courts. The Supreme 2, 1;" as part of its review of the final decision of 'be preserved, without Board action, for Su- "The Supreme Court shall make rules govern- Court shall have jurisdiction over the admis- the Disciplinary Review Board. Interlocutory Su- preme Court consideration as art of its re- P ` relief may be sought only in accordance with new of the matter on the merits. Interlocu. i^g the administration of all courts in the sion to the practice of law and the discipline R 1:20-5(dxi)." State and,subject to the law,the practice and of persons admitted."• r��:1 w .i tory relief maybe sought only f g yin accordance 120 3.Each District Ethics Committee appoints with Rule 1:20-4(dx0." 121 . *; — U:S:SUPREME COURT REPORTS .. 73 L Ed 2d MIDDLESEX ETHICS COMM. v GARDEN ST. BAR ASSN. $1 � 73 L Ed 2d 116 B After the trial was completed the a portunity to interpret its rules in ceedings in this case as administra- Hinds, a Committee investigated the com- the face of a constitutional chal- tive, "nonadjudicative" proceedings er Respondent the New Lennox bar, served a mem- plaint'-and concluded that there was lenge." App 53a-54a. At respon- analogous to the preindictment stage erof xecutive directorewJersey ofy the National probable cause to believe that Hinds : dents' request the District Court re- of a criminal proceeding.' 'onference of Black Lawyers at the• had pviolatt DR 1-102(AX5) of the _. opened the case to allow respondents me of his challenged conduct. Disciplinary Rules of the Code of an opportunity to establish bad On petition for rehearing petition • - Professional Responsibility. That faith, harassment or other extraordi ers attached an affidavit from the [finds represented Joanne Chesi- section provides that "A lawyer 31 narycircumstance which would con- Clerk of the New Jersey Supreme lard in a civil proceeding challeng- shall not . . . [e]ngage in conduct p YoungerCourt which stated that the New ig her conditions of confinement in stitute an exception to ab• ill. In 1977 Chesimard went to trial that is prejudicial to the administra- stention. Dombrowski v Pfister, 380 Jersey Supreme Court would di- tion of justice." Respondent Hinds ,.- US 479, 14 L Ed 2d 22, 85 S Ct 1116 rectly consider Hinds' constitutional i state court for the murder of a also was charged with violating DR oliceman. Respondent Hinds was 7-107(D), whichprohibits extra udi- (1965). After two days of hearings challenges and that the court would of a counsel of record for Chesi- j _p the District Court found no evidence consider whether such a procedure cial statements by lawyers associ- t•{-• Vto justifyan exception to the Youn- should be made explicit in the Su- �ard in the murder case. However, • •� P : the ' set of the criminal trial ated with the prosecution or defense ' ger abstention doctrine and dis- preme Court rules. On reconsidera- :inds part in a press confer- of a criminal matter.' The Commit- missed the federal court complaint. tion a divided panel of the Third • zce, maxing statements critical of tee then served a formal statement Circuit declined to alter its original to trial and of the trial judge's of charges on Hinds. A divided panel of the United decision, stating that the relevant dicial temperament and racial in- • States Court of Appeals for the facts concerning abstention are .nsitivit . In Instead of filing an answer td the Third Circuit reversed on the ground those that existed at the time of the y particular, Hinds re- charges in accordance with the New that the state bar disciplinary pro- District Court's decision.° rred to the criminal trial as "a Jerseybar disciplinary procedures avesty," a "legalized lynching," p ry p : ceedings did.not provide a meaning- 1d "a kangaroo court." Hinds and the three respondent or- ful opportunity to adjudicate consti- Pending review in this Court, the ganizations filed suit in the United - ' tutional claims. The court reasoned. New Jersey Supreme Court has One member of the Middlesex States District Court for the District that the disciplinary proceedings in heard oral arguments on the consti- )unty Ethics Committee read news of New Jersey contending that the 1 this case are unlike the state judicial tutional challenges presented by re- counts of Hinds' comments and disciplinary rules violated respon- . proceedings to which the federal spondent Hinds and has adopted a •ought the matter to the attention dents' First Amendment rights. In : courts usually defer. The Court of rule allowing for an aggrieved party the Committee. In February of addition, respondents charged that ' Appeals majority viewed the pro- in a disciplinary hearing to seek 77 the Committee directed one of the disciplinary rules were facially i members to conduct an investiga- vague and overbroad.. The District 7.The majority concluded that the hearings sues,concluding that the disciplinary proceed- )n. A letter was written to Hinds, Court granted petitioner's motion to ' are designed to elicit facts, not legal argu- ings are not a series of separate segments zo released .the contents of the dismiss based on Younger v Harris, menu, as indicated by the presence of non- before independent bodies but are part of a_ lawyers.The court also found that the ability whole. Judge Weis also concluded that there tter " 'le press. The Ethics Corn- 401 US 37, 27 L Ed 2d 669, 91 S Ct - to raise constitutional claims before the Eth- was nothing to prevent the Ethics Committee ittel its own motion then sus- 746 (1971), concluding that "[t]he ics Committee does not constitute a meaning- from considering constitutional claims. nded the investigation until the principles of comity and federalism . ful opportunity to have constitutional ques• 8. Thepanel ma orit noted that no rule _ tions adjudicated. No formal opinion is filedj Y nclusion of the Chesimard crimi- dictate that the federal court abstain by the District Ethics Committee. The Third existed at the time of the District Court's LI trial. so that the state is afforded the op- Circuit distinguished Gipson v New Jersey decision to assure the Court of Appeals that - Supreme Ct, 558 F2d 701 (CA3 1977),on the the New Jersey Supreme Court would con- .. The Disciplinary Rules of the Code of "(D)During the selection of a jury or the trial ground that in Gipson the attorney being Sider the constitutional claims.The court also )sessional Responsibility and Code of Judi- of a criminal matter, a lawyer or law firm disciplined was already subject to the state concluded that the possibility of a formal 1 Conduct of the American Bar Association, associated with the prosecution or defense of • court action at the time the federal proceed- procedure of the New Jersey Court for consid- h amendment and supplementation, have a criminal matter shall not make or partici- - ing had been initiated. eration of constitutional claims does not moot ,n adopted by the New Jersey Supreme pate in making an extra judicial statement , - Judge Adams, concurring, emphasized that this case because the underlying dispute as to In as the applicable standard of conduct that he expects to be di�avminated by means state courts have the primary responsibility the validity of the rules still remains. Judge members of the bar and the judges of New of public communication and that relates to to discipline their bar and, in general, the Weis, again dissenting,concluded that no jus- sey.New Jersey Court Rule 1:14. federal judiciary is to exercise no supervisory ticiable controversy remained as to the issue the trial, parties, or issues in the trial or powers. Judge Weis, dissenting, argued that in the Court of Appeals and recommended I. DR 7-107 deals with "Trial Publicity" other matters that are reasonably likely to !r :•. respondents have full opportunity in the New that the case be remanded and dismissed as I states: interfere with a fair trial.. .." La 2 -,,• Jersey proceeding to raise constitutional is- moot. • • 123 4.:, - -- ���1i.1_ .r_vrc-i-z- --- T`" • MIDDLESEX ETHICS COMM. v GARDEN ST. BAR ASSN. - - ---- -- - - - 73 L Ed-2a - . interlocutory review of a constitu- tant state interests are involved, 73 L Ed 2d 116 i;terl challengeutory to the p a con lam•° Moore v Sims, 442 US 415, 423, 60 L fold: first, do state bar disciplinary bar. New Jersey Coast Art 6, §2, 3. • Ed 2d 994, 99 S Ct 2371 (1979); hearings within the constitutionally The Supreme Court of New Jersey II Huffmand2d9v , 99ue, Ltd., 420 US 592, prescribed jurisdiction of the State has recognized that the local District 604-605, 43 L Ed 2d 482, 95 S Ct Supreme Court constitute an ongo- Ethics Committees act as the arm of A 1200 (1975). The importance of the ti ing state judicial proceeding; second, the court in performing the function [2] younger v 401 US 37 interest may be demonstratedfh ; do the proceedings implicate impor- of receiving and investigating com- p]L Ed 669, Harris,91 S Ct 746 (1971), state the fact that noncriminal tan[ state interests; and third, is plaints and holding hearings. nd progenyd espouseSCta strong proceedings bear a thee relationshiperiminthere an adequate opportunityg 358 .nd itsoin 1:20-2;dIn (1976).re Logan, 70 NJNew Jersey e policys the state proceedings to raise coast[- A2d 787 madeThe a against federal court to proceedings criminal in nature, as iterference with pending state judi- in Huffman, supra°Proceedings nec- _ tutional challenges. Court has clear that filing a ial proceedings absent extraordi- essary for the vindication of [meta- complaint with the local ethics and ary circumstances. The policies un- tant state policies or for the func- B . grievancenwitcommittee "isineffect a erlying Younger abstention •have tinning of the state judicial system .;,;=; �.�'• . • . . filing with the Supreme Court. . . ," 'en frequently reiterated by this also evidence the slate's substantial 'f;• [1b, 4] The State of New Jersey, in Taft v Ketchum, 18 NJ 280, 284, 113 common with most States," recog- A2d 671, 674, certdenied, 350 US ourt. The notion of "comity" in- interest in the litigation. Trainor v 78 udes proper respect for state Hernandez, 431 US 434, 52 L Ed 2d nines the important state obligation 887, 100 L Ed 2, 76 S Ct 141 ncti� 3 recognition 97 S Ct 1911 (1977); Juidice v to regulate persons who are autho- (1955). "From the very beginning a at it �,1 re country ofis theee fact 486,,, US 319 51 L Ed 2d 376, 97 _ rized to practice law. New Jersey disciplinary proceeding is judicial in tio state govern- S Ct 43031 S977). Where vital state expresses this in a state constitu- nature, initiated by filing a corn- ae Union and a continuance separateuse of the be- SCtinterests2 are involved, a federal tional provision vesting in the New plaint with an ethics and f that the National Government court should abstain "unless state Jersey Supreme Court the authority committee."" Ibid. It is clear bey grievance 11 fare best if the States and their law clearly bars the interposition of to fix standards, regulate admission doubt that the New Jersey Supreme 1itare are the free to perform the constitutionalearlyrsclaims." Moore, to the bar, and enforce professional Court considers its bar disciplinary air separate functions in their sep- supra, at 426, 60 L Ed 2d 994, 99 S discipline among members of the proceedingsas �,u ate ways." Id., at 44, 27 L Ed 2d Ct 2371. " per "judicial in nature. a, 91 S Ct id.,74 respect is whether the stater proceednent - 11. See-Shoaf, State Disciplinary Enforce. in gsthe state processes,." Minimal of course,ct quiry afford an adequate opportunityment Systems Structural Survey (ABA Na. nized¢ (Proposed Draft supra however,seve t inJuidicery Vail, supra, ed crudes anylclaims. 1980). Center for Professional Responsibility whether the proceeding "is labeled civil, presumption that the to raise the constitutional claims. 1980). to courts will Snot safeguard fed- • • •" Id., at 430, 60 L Ed 2d 994, 99 - quasi-criminal, or criminal in nature;' the 1 constitutional rights. S Ct 2371. also Gibson v Berry- .... The New Jerseyh of responsibility salient fact is whether federal court interfer- is consistent with§allocation of the ABA Standards hill, 411 US See 36 L for Lawyer Discipline and Disability Proceed- once would unduly interfere with the legiti • - 3] The policies underlying Youn- Ed 2d 488, 93 ings.(Proposed Draft 1978), which states that mate activities of the state.Id.,at 335�36. are fully applicable to nonerimi- S 1689(1973). the "[u]ltimate and exclusive responsibility The instant case arose before the 1978 rule judicial proceedings when impor- -within a state for the structure and adminis change. In 1978 the New Jersey Supreme Po The question in this case is three- .: tration of the lawyer discipline and disability Court established a Disciplinary Review Rul 4(d)'states system and the disposition of individual cases Board charged with review of findings of Dis- L :utory Review. An has been properly raised below and preserved is within the inherent power of the highest trio Ethics Committees. Nothing in this rule aggrieved pending review of the merits of the discipli- court of the state." ' change, however, altered the nature of such v may We a motion for leave to appeal nary matter by the Supreme Court, the ag- The rationale for vesting responsibility with proceedings. The responsibility under Art 6, Supreme Court to seek interlocutory grieved party may, within 10 days of the the judiciary is that the practice of law"is so §2, 113 remains with the New Jersey Su- thew of a constitutional challenge to pro- filing of the report and recommendation oflY connected and bound upwith the ags pending before the District Ethics ''.' . preme Court nittee or the Disciplinary Review Board. the Disciplinary Review Board, seek the re- c... exercise of judicial power and the administra- • motion papers shall conform to R 2:31, view of the Court by proceeding in accordance tion of justice that the right to define and 13• The role of local ethics or bar Ft •ia. to appeal maybe with the applicable provisions of R 1:19 8." regulate it naturally and logically belongs to tion committees may. be analogized to the confoed only when the judicial department." Id., commentary at function of a special master. sary to prevent irreparable injury. If 10.Samuels v bfacketl,401 US 66,27 L Ed ;1.. §2.1. Assn of the Bar of City of New York,Anonymous5 F2d to appeal is granted, the record below 2d 688,91 S Ct 764(1971),concluded that the 2d7 2, 96 curt denied, 9475 US The essentially 46 L Ed in theby discretion of the Court,be supple same comity and federalism principles govern 1cl The New Jersey 'supreme Court has 2d judicial 96 S Ct 122 (1975). ew .d the filing of briefs and oral supple- the issuance federal court declaratory judo- : concluded that bar disciplinary proceedings nature of disciplinary menta the state is the �'` are neither criminal nor civil in nature, but Jersey has been recognized reviously by actions in the Final Review. In any case in which a subject of concerningthe ongoing state statutet that is the '', rather are sui tutional challenge to thegeneric. In re Logan, 70 NJ federal courts. In Gipson v New Jersey Su- the P'roceed,n� ing. E�v�:; { � 222. 358 A2d 787 (1976). See also, Standards preme Court. 558 F2d 701 (CA3 1977), the } for Lawyer Discipline and Disability Proceed- United States Court of Appeals for the Third f 125 -"'--"'_ -- iu 1,Lef.1 LQ - 1Y11L1JLCOr.n Glfl1W LA./1Y11Y1. V JIt11.1J.11 01. Dtilt 1100111. _ ----- ------- - - y 73LEd2d116 s such, the proceedings are of a which initiated the state proceedings lenge of the validity of some statute, challenges to the state disciplinary :erecter to warrant federal court against respondent Hinds. unless it plainly appears that this proceedings."ference. The remaining inquiries course would not afford adequate •e whether important state inter- - The importance of the state inter- protection.'" Younger v Harris, su- There is no reason for the federal is are implicated so as to warrant est in the pending state judicial pro- pra, at 45, 27 L Ed 2d 669, 91 S Ct courts to ignore this subsequent de- • deral court abstention and ceeding and in the federal case calls 746, quoting Fenner v Boykin, 271 velopment. In Hicks v Miranda, 422 hether the federal plaintiff has an .Younger abstention into play. So US 240, 243-244, 70 L Ed 927, 46 S US 332, 4& L Ed 2d 223, 95 S Ct [equate opportunity to present the long as the constitutional claims of Ct 492 (1926). 2281 (1975), we held that "where deral challenge. respondents can be determined in state criminal proceedings are begun the state proceedings and so long as ... In light of the unique relationship against the federal plaintiffs after • there is no showing of bad faith, �`• between the New Jersey Supreme the federal complaint is filed but C harassment or some other extraordi- =" before anyproceedings of substance Court and the local Ethics Commit- P g (lc] The State of New Jersey has nary circumstance that would make V tee, and in view of the nature of the on the merits have taken place in i extremelyim ortant interest in abstention inappropriate, the federal . • federal court, the principles of Youn- aintaining P , , ,. proceedings, it is difficult to conclude P P and assuring the profes- courts should abstain. • that there was no "adequate oppor- ger v Harris should apply in full anal conduct of the attorneys it ▪ turiity" for respondent Hinds to force." Id., at 349, 45 L Ed 2d 223, 95 • ense tates traditionally have D -• raise his constitutional claims. analogous S Ct 2281. An analo ous situation is erci; xtensive control over the Moore, supra, at 430, 60 L Ed 2d presented here; the principles of ofessional conduct of attorneys. [id] Respondent Hinds contends 994, 99 S Ct 2371. comity and federalism which call for e supra, n 11. The ultimate objec- that there was no opportunity in the - • abstention remain in full force. Thus •e of such control is "the protec- state disciplinary proceeding to raise Whatever doubt, if any, that may far in the federal court litigation the ,n of the public, the purification of his federal constitutional challenge have existed about respondent sole issue has been whether absten- • Hinds' ability to have constitutional tion is appropriate. No proceedings e bar and the prevention of a reoc- to the disciplinary rules. Yet Hinds rrence." In re Baron, 25 NJ 445, failed to respond to the complaint challenges hear in the bar discipli- have occurred on the merits and 9, 136 A2d 873, 875 (1957). The filed by the local Ethics Committee nary hearings was laid to rest by the therefore no federal proceedings on iiciary as well as the public is and failed even to attempt to raise subsequent actions of the New Jer- the merits will be terminated by sey Supreme Court. Prior to the fil- application of Younger principles. It pendent upon professionally ethi- any federal constitutional challenge [. conduct of attorneys and thus in the state proceeding. Under theg of the petition for certiorari in would trivialize the principles of s a significant interest in assuring New Jersey procedure, its Ethics this Court the New Jersey Supreme .comity and federalism if federal d maintaining high standards of Committees constantly are called Court sua sponte entertained the courts failed to take into account !duct of attorneys engaged in upon to interpret the state discipli- constitutional issues raised by re- that an adequate state forum for all actice. See In re Stein, 1 NJ 228, nary rules. Respondent Hinds points _ spondent Hinds. Respondent Hinds relevant issues has clearly been 7, 62 A2d 801, 805 (1949), quoting to nothing existing at the time the t:. therefore has had abundant opportu- demonstrated to be available prior to re Cahill, 66 NJL 527, 50 A 119 complaint was brought by the local nity to present his constitutional any proceedings on the merits in ip ( -'-'01). The state's interest in Committee to indicate that the mem- • a pi ional conduct of attorneys bers of the Ethics Committee, the ▪ 14.This case is distinguishable from StetTel Jersey Supreme Court for interlocutory adju- • v Thompson,415 US 452,462,39 L Ed 2d 505, dication of constitutional issues. Rule 1:20- •olved in the administration of majority of whom are lawyers, 94 S Ct 1209 (1974), in which there was no 4(dXi). See note 9 supra. Even if interlocutory minal justice is'of special impor- would have refused to consider a ongoing state proceeding to serve as a vehicle review is not granted, constitutional issues ice. Finally, the state's interest in claim that the rules which they were - for vindicating the constitutional rights of the . are preserved for consideration by the New federal plaintiff.This case is also distinguisha- Jersey Supreme Court.Rule 1:20-2(j). present litigation is demon- enforcing violated federal constitu- ble from Gerstein v Pugh,420 US 103, 108,n The New Jersey Supreme Court reviews all ated by the fact that the Middle- tional guarantees. Abstention is c 9,43 L Ed 2d 54,95 S Ct 854(1975),in which disciplinary actions except the issuance of : County Ethics Committee, an based upon the then that the _ the issue of the legality of a pretrial detention ry ▪ could not be raised in defense of a criminal private letters of reprimand. Rule 1:20-4.Rule ncy of the Supreme Court of New accused should first set up and rely 1:20-2(i), however, requires that all constitu- . prosecution.See also Juidice v Vail,supra,at tional issues be withheld for consideration by -sey, is the named defendant in upon his defense in the state courts, 337,51 L Ed 2d 376,97 S Ct 1211. the Supreme Court as part of its review of the present suit and was the body even though this involves a chal- 15.In addition,after the filing of the writ of decision of the Disciplinary Review Board. • certiorari the New Jersey Supreme Court This appears- to provide for Supreme Court uit agreed that "incursions by federal proceedings would be particularly disruptive .•" '' amended the State bar disciplinary rules to review of constitutional challenges even when s into ongoing (New Jersey) disciplinary of notions of comity."Id.,at 704. !1 ! ) expressly permit a motion directly to the New a private reprimand is made. i s:: • 127 1 ., —federal=court:Id., at 3b0, 45 L Ed 2d had an fed 95 S Ct 2281.0, "opportunity to raise and - - -i n L- i 116 - viewe have timely decided by a competent language in the Court's opinion dis- ics Committee are more accurately Respondents have not challenged state tribunal the federal issues in- interesting t in i regulatingo thee Sprofes- judicial in natured as utorial rather than the findings of the District Court volved," that there was no bad faith or ha- Gibson v Benyhill, 411 US, sional conduct of its attorneys. How- I agree with the Court that we te's rassment on the part of petitioners at 577, 36 L Ed 2d 488, 93 S Ct 1689, ever, I believe that the question may cons ider events subsequent to and that the state rules were not and because no bad faith, -harass_ • whether Younger abstention would the decisions of the courts below "flagrantly and patently" unconsti- ment or other exceptional circum- have been appropriate r the time because the federal litigation has tutional. Younger, supra, at 53, 27 L stances dictate to the contrary, fed_ that the District Court or the Court addressed only the question whether Ed 2d 669, 91 S Ct 746, quoting eral courts should abstain from in- of Appeals considered this issue is abstention is appropriate. Thus far, Watson v Buck, 313 US 387, 402, 85 not as simple as the Court's opinion there have been no proceedings on L Ed 1416, 61 S Ct 962 (1941). App terfering with the ongoing proceed- • might be read to imply. As the Court boa 2a. We see no reason to disturb ings. Accordingly, the judgment g the merits in federal court. Ante, at these findings, and no other extraor- the United States Court o gmAent of acknowledges, absent an ongoing ju- __ 73 L Ed P d 127-128. After ppeals • ' dicial proceeding in which there is the Court of Appeals rendered its Binary circumstances have been pre- for the Third Circuit is reversed, and f adequate opportunity for a party decision and denied petitioner's peti- Sentesented to that abstention the case remanded for further pro. to raise federal constitutional chal- tion for rehearing, the New Jersey not be indicateappro that�� ceedings consistent with this opin- lenges, Younger is inapplicable. Supreme Court certified the coin- III ion. Ante, at —, 73 L Ed 2d 124. See plai•nt against respondent Hinds to woul[��, .because respondent Hinds also Gihson v Berryhill, 411 US 564, itself. App to Pet for Cert 62. Now, Reversed and remanded. •. 577, 36i L Ed 2d 488, 93 S Ct 1689 there are ongoing judicial proceed- SEPARATE OPINION• S • (1973). Here, it is unclear whether, ings in the New Jersey Supreme • at the time the lower courts ad- Court in which Hinds has been given Justice Brennan, concurring in (1968), call for exceptional deferenc•e dressed this issue, there was an ade• the opportunity to raise his constitu- the judgment. by the federal courts. See Gipson v quate opportunity in the state disci- tional challenges. As a result, Yopun- For the reasons stated by Justicep plinary proceedings to raise a consti- ger abstention, at least with respect Marshall, I join the New Jersey SuCAeme Court,r 558ma F2d v tutional challenge to the disciplinary to Hinds, is appropriate at this time. judgment in this 701, 703-704 case. I agree that federal courts Stevens, 458 F2d 1205, 1209-1210 rules. Furthermore, it is unclear For this reason only, I join the ud should show particular restraint be- (CA2 1972). I continue to adhere to whether proceedings before the Eth- ment of the Court. fore •intruding •into an ongoing disci- my view, however, that Younger v ?linary proceeding by a state court Harris, 401 US 37, 27.L Ed 2d 669, against a member of the State's bar 91 S Ct 746 (1971), is in general vhere there is an adequate opportu- inapplicable to civil proceedings. See ii city to raise federal issues in that Huffman v Pursue, Ltd., 420 US 592 proceeding. The traditional and pri- 613, 43 L Ed 2d 482, 95 S Ct 1200 i•'.-> • flary responsibility of state courts (1975)(Brennan, J.,dissenting). y )r e fishing and enforcingstan- • ard: members of their bars and Justice Marshall, with whom Jus- y • le quasi-criminal nature of bar die- tice Brennan, Justice Blackmun v plinary proceedings, In re Ruffalo, and Justice Stevens join, concurring F` - )0 US 544, 551, 20 L Ed 2d 117, 88 in the judgment. Ct 1222, 43 Ohio Ops 2d 459 I agree with much of the general • 13. Indeed, the decision of the New Jersey • Appeals decided whether abstention would be preme Court to consider respondent Hinds' proper as to the respondent organizations who • tstitutional challenges indicates that the are not tro- e court desired to give Hinds a swift Judi- parties the state disciplinary 1 resolution of his constitutional claims. Appeals on We leave this issue to the Court of s• 7. It is not clear whether the Court of Appeals on remand. f;• 6 "�� 129 1 RENTON CITY COUNCIL Regular Meeting November 8, 1982 Municipal Building Monday, 8:00 p.m. Council Chambers MINUTES CALL TO ORDER Mayor Pro tempore Earl Clymer led the Pledge of Allegiance to the flag and called the meeting of the Renton City Council to order. ROLL CALL OF EARL CLYMER, Council President , ROBERT J . HUGHES, RANDALL ROCKHILL, COUNCIL MEMBERS RICHARD M. STREDICKE, JOHN W. REED, NANCY L. MATHEWS, THOMAS W. TRIMM. CITY STAFF IN LAWRENCE J . WARREN, City Attorney; DAN KELLOGG, Assistant City ATTENDANCE Attorney; MICHAEL PARNESS, Administrative Assistant; MAXINE E. MOTOR, Acting City Clerk; CAPTAIN DON PERSSON, Police Department; DAVID CLEMENS, Policy Development Director. PRESS Jan Hinman, Renton Record-Chronicle. MINUTE APPROVAL MOVED BY STREDICKE, SECONDED BY MATHEWS, COUNCIL APPROVE THE MINUTES OF NOVEMBER 1 , 1982 AS PRESENTED. CARRIED. Mayor Pro tempore Clymer advised correction requested by Versie Vaupel of her testimony regarding the Shoreline Master Plan in minutes of October 25 , 1982, which should indicate matter of landfill being previously considered by the original Shoreline Committee. AUDIENCE COMMENT Sanford Webb, 430 Mill Avenue S. , spoke against adoption of Legislation for legislation which is not in the public interest nor relates to Nuclear Freeze, the operation of the city, such as recent Council action regarding Sign Code; and adoption of nuclear freeze resolution and Sign Code amendments to Forbes Court allow residential real estate signs. Also addressed were Case expenditures incurred by the city from the Forbes court case, and need for additional public meeting to address recent Zoning Ordinance changes involving that matter. Forbes Court Kathy Keolker, 532 Cedar Avenue S. , representing Citizens for a Case Quality Community, addressed the recent Forbes lawsuit decision , noted increased community spirit to continue the fight against location of adult movie theatres in downtown Renton and commended city staff and attorneys for a thorough job in representing the oommunity. She submitted petitions containing 1 ,346 signatures in support of the city ' s Zoning Ordinance prohibiting location of adult theatres in downtown Renton and 71 resolutions of support from business establishments in the city. CONSENT AGENDA The following items are adopted by one motion which follows the items included. Halsen Street Bobby Halsen requested street vacation for a portion of South Vacation 17th Place located west of SR-515 and east of Talbot Road S. (VAC VAC 08-82 08-82) . Public Works Department has certified that signatures shown in the petition are valid and represent 1000 of property owners abutting said street. Refer to Board of Public Works for appraisal and retention of easements and to the Ways and Means Committee for resolution setting public hearing on December 13, 1982. Cheever Street Frank G. Cheever requested street vacation for a portion of County Vacation Road #34 (VAC 07-82) . Public Works Department has certified that VAC 07-82 signatures shown in the petition are valid and represent 1000 of property owners abutting said street. Refer to Board of Public Works for appraisal and retention of easements and to the Ways and Means Committee for resolution setting public hearing on December 13, 1962. Renton City Council November 8, 1982 Page 2 CONSENT AGENDA continued Revise 1983- Traffic Engineer requested revision of 1983-1986 Six Year 1986 Six Year Transportation Improvement Program to replace No. 8 controller Transportation modernization with N.E. Sunset Boulevard signal controller Improvement modernization and interconnection with funds allocated by Program Federal Aid Urban Systems (FAUS) Funds to replace obsolete traffic signal controllers and interconnect signals on Sunset to the city's new computer. Set public hearing date for November 22, 1982. Tall Trees on Letter from Ann Grinolds and petition containing 22 signatures Renton Hill objected to tall trees adjacent to 1-405 near the intersection of S. 3rd Street and Cedar Avenue S. on Renton Hill which obstruct views and cause maintenance problems from falling leaves. Refer to Community Services Committee. West Hill Pump Policy Development Department submitted West Hill Pump Station Station Proposed proposed annexation approved by the King County Boundary Review Annexation Board on October 7, 1982 following execution of Waiver of Review. Refer to Ways and Means Committee for ordinance. Liquor Excise Letter from South End Alano Lounge requested portion of liquor Tax excise tax for purposes of alcohol rehabilitation to support the facility in providing social life and location for AA meetings and other groups striving for alcohol and drug-free life. Refer to Budget Committee. 1982-1983 Personnel Department submitted 1982-1983 Labor Agreement between Labor Agreement the City of Renton and the Renton Police Officers' Guild Renton Police representing non-commissioned employees. Requested was Officers' Guild ratification by Council of the terms of the contract and Non-commissioned authorization for the Mayor to sign the agreement which will Employees direct retroactive payment of 1982 wage increases to the members of the bargaining unit and non-represented members of the department. Refer to Ways and Means Committee for review and authorization for Mayor and City Clerk to sign contract. Fire Code Fire Department submitted amendment to Uniform Fire Code, Article Amendment 25, Places of Assembly, to clarify the purpose of the section. Refer to Public Safety Committee for ordinance consideration. Parking and Fire Department submitted amendment to Parking and Loading Loading Amendment Ordinance to provide conformance to specifications of Fire Code to Conform to regarding fire lanes. Refer to Public Safety Committee for Fire Code ordinance amendment. 1982 Asphalt Engineering Department requested acceptance of 1982 asphalt Resurfacing resurfacing project (CAG 041-82) , approval of final pay estimates Project in the amount of $98,928. 13, and commencement of 30-day lien CAG 041-82 period. If, after expiration of 30 days, no liens or claims have been filed against the project, the retainage amount of $4,946.41 shall be paid to the contractor, M. A. Segale, Inc. Council concur. 1982 Sanitary Engineering Department requested acceptance of 1982 sanitary Sewer Repair sewer repair and pump station (CAG 015-82) , final pay estimate and Pump be approved, and commencement of 30-day lien period. If, after Station expiration of the 30 days, no liens or claims have been filed CAG 015-82 against the project and all taxes paid, the retainage amount of $6,965.04 shall be paid to the contractor, Ford Construction Co. Council concur. Claim for Claim for damages filed by Charles T. Spence in the amount of Damages $136.22 for tire and wheel damage caused by alleged raised CL 54-82 manhole cover and assembly in front of 919 S.W. Grady Way. Refer to City Attorney and Insurance Carrier. Renton City Council November 8, 1982 Page 4 ORDINANCES AND RESOLUTIONS continued Appropriation and An ordinance was read providing for appropriation and transfer Transfer of Funds of funds of unanticipated revenue to be reimbursed to the city 8th St./Park Ave. by The Boeing Company, per agreement (CAG 049-82, 9/3/82) ; for Traffic Signal contract construction of upgrading the traffic signal system and Ordinance #3675 channelization on N. 8th Street and Park Avenue N. , in an amount not to exceed $46,000.00. MOVED BY STREDICKE, SECONDED BY ROCKHILL, COUNCIL ADOPT THE ORDINANCE AS PRESENTED. ROLL CALL: ALL AYES. CARRIED. First Reading The Ways and Means Committee recommended the following ordinances for first reading: Ramac, Inc. An ordinance was read changing the zoning classification of certain Rezone properties within the City of Renton from Residence District (R-1 ) R-017-82 to Business District (B-1 ) for Ramac, Inc. , File No. R-017-82, property located at the northeast corner of the intersection of Maple Valley Highway (SR-169) and the northbound ramp of 1-405. MOVED BY STREDICKE, SECONDED BY REED, REFER THIS MATTER BACK TO COMMITTEE FOR ONE WEEK. CARRIED. Hardebeck An ordinance was read changing the zoning classification of Rezone certain properties within the City of Renton from Residence R-062-82 District (R-1 ) to Light Industry District (L-l ) for Jerry Hardebeck, File No. R-062-82, property located in the vicinity of 412 S.W. 16th Street. MOVED BY STREDICKE, SECONDED BY HUGHES, REFER THIS MATTER BACK TO COMMITTEE FOR ONE WEEK. CARRIED. Planning Ways and Means Committee Chairman Stredicke presented a report Commission recommending concurrence in the Mayor ' s appointment of Mr. Robert Appointment Patterson to the Planning Commission to complete the term of Versie Vaupel who has resigned. Term to be effective through January 31 , 1985. MOVED BY STREDICKE, SECONDED BY ROCKHILL, COUNCIL CONCUR IN THE RECOMMENDATION OF THE WAYS AND MEANS COMMITTEE. CARRIED. Voucher Approval Ways and Means Committee recommended approval of Vouchers 42525 through 42736 in the amount of $890,464.89 having received departmental certification that merchandise and/or services have been received or rendered. Vouchers 42520 through 42524 machine voided. MOVED BY STREDICKE, SECONDED BY HUGHES, COUNCIL CONCUR IN APPROVAL OF THE VOUCHERS. CARRIED. NEW BUSINESS Councilman Stredicke requested an explanation of types of Topics for subject matters which can be discussed in public meetings and Discussion in which require discussion in executive session. City Attorney Executive Warren described criteria used to determine whether a matter is Session/ public or confidential , noting that certain discussion regarding court Magistrate' s case, Playtime v. Renton, Case Nos. C82-59M & C82-263M, would be Recommendation, allowed at an open meeting. Warren reiterated recommendation of Forbes Court Judge Philip K. Sweigert, U.S. Magistrate, to prevent the city Case from enforcement of its Zoning Ordinance No. 3637 against the plaintiffs, Playtime, and denying the city' s motion for summary judgment and renewed motion to dismiss based primarily upon protection of First Amendment rights of free speech of the plaintiff. The recommendation also alleged that through its Zoning Ordinance the city had forced location of the plaintiff ' s business in an undesirable and unattractive area of the city. Warren noted that a right of hearing remains open to the city if the Council wishes to pursue that option. The recommendation of the magistrate may either be accepted or rejected by the judge, and the right of hearing still remains open to the city. Renton City Council November 8, 1982 Page 3 CONSENT AGENDA continued Consent Agenda MOVED BY STREDICKE, SECONDED BY MATHEWS, COUNCIL ADOPT THE Approved CONSENT AGENDA AS PRESENTED . CARRIED. Street Vacation Responding to Councilman Stredicke' s inquiry regarding additional Information material for street vacation consent agenda items , City Clerk advised that maps and legal descriptions for all Council members will be furnished with the resolution upon transmittal to the Ways and Means Committee on November 15, 1982. OLD BUSINESS Utilities Utilities Committee Chairman Mathews presented a report Committee recommendina_ authorization for the City Attorney to proceed with dissolution of Water District #78 within the Talbot Hill Island Dissolution annexation as requested by King County. MOVED BY MATHEWS, of Water District SECONDED BY STREDICKE, COUNCIL CONCUR WITH THE RECOMMENDATION #78 OF THE UTILITIES COMMITTEE. CARRIED. William Clarke Councilman Stredicke advised receipt of a communication from Complaint Water District #107 to the City Attorney indicating that the re Water district is not responsible nor liable for the William Clarke Runoff storm runoff matter brought to the attention of the Council two weeks ago. He requested a report from the Administration of the status of the matter. It was reported that the referenced letter had been forwarded to Mr. Clarke and a meeting proposed to discuss the issue. Councilman Stredicke indicated concern that existing underground water jeopardizes maintenance of the roadway and the city may wish to mitigate the problem before serious damage occurs. CHG/Sunpointe Citing a newspaper article regarding failure of CHG/Sunpointe Status Report Development to meet conditions of approval , Councilman Stredicke requested an updated status report on the project. Administrative Assistant Michael Parness reported steps have been taken to call the bond to assure conformance to additional requirements. Planning and Planning and Development Committee Chairman Rockhill presented a Development report recommending authorization by the City Council for the Committee Administration to proceed with the negotiation and execution of Holvick deRegt an agreement providing for the funding of the construction of the Koering traffic signal at the intersection of S.W. 7th Street and Edwards Construction Street. MOVED BY ROCKHILL, SECONDED BY HUGHES, COUNCIL CONCUR Funding IN THE RECOMMENDATION OF THE PLANNING AND DEVELOPMENT COMMITTEE. Agreement City Attorney Warren and Chairman Rockhill clarified specifics of S.W. 7th/ the project which will require state bidding procedures, contribution Edwards from more than one source for funding , and be under city jurisdiction for signalization. CARRIED. Joint Use Planning and Development Committee Chairman Rockhill presented Driveways a report recommending that the use of joint use driveways be approved for adjoining uses fronting on a street where combining access would reduce the total number of driveways onto the street. Except for such joint use driveways, it was recommended that parking as required by city code be provided upon property in the same ownership as the property on which the building or use requiring the specified parking is located . Referral to the Ways and Means Committee for drafting of appropriate legislation was also recommended. MOVED BY ROCKHILL, SECONDED BY HUGHES, COUNCIL CONCUR IN THE RECOMMENDATION OF THE PLANNING AND DEVELOPMENT COMMITTEE. CARRIED. ORDINANCES AND RESOLUTIONS Ways and Means The Ways and Means Committee recommended the following ordinances Committee for second and final reading: Renton City Council November 8, 1982 Page 5 ADMINISTRATIVE Mayor Pro tempore Clymer read a report from Fire Chief Richard REPORT Geissler regarding the fire drill held at the Municipal Building on Friday, November 5, 1982. Numerous objectives established for the drill were met, and cooperation by all affected departments and general public was very encouraging. Grady Way Bridge Councilman Stredicke requested a status report regarding the Grady Way Bridge project. Administrative Assistant Parness advised that funding has been approved, the bid process will be conducted by the state, but the project will be overseen by the city. Drop Box for Councilman Stredicke requested that the possibility of installing Utility Payments a drop box in front of City Hall for convenience of customers paying utility bills during hours City Hall is closed be referred to the Administration. Administration concurred in the request for review. Councilman Hughes noted for information that payments may be made in the Police Department, lower level of City Hall , 24 hours a day. AUDIENCE Ray Griffin, 14306 144th S. E. , reported current problems with COMMENT storm water runoff in the area of the proposed Northward rezone near Duvall Avenue N.E. , noted his opposition to the rezone, and Northward requested information regarding proper procedure to voice his Rezone Area concerns. Following explanation of the public hearing procedure Drainage of the Land Use Hearing Examiner, Mr. Griffin expressed additional Problems concern regarding the drainage basin , noted his familiarity with the Hearing Examiner system, and expressed disfavor with past Council action in appeal decisions. Cedar Hills Michael O 'Rourke, 419 S. Wells; Chris Bogh, 209 Thomas Avenue S.W. ; Alcohol and Gary Thomas, 2516 20th N.E. , expressed opposition to the Treatment request of the South End Alano Lounge of a portion of the liquor Center excise tax for alcoholism rehabilitation , claiming facility is not licensed, provides an atmosphere not conducive to recovery, and the excise tax would better serve the state licensed Cedar Hills Alcohol Treatment Center in Renton. An invitation to attend the budget hearing of the City Council on Tuesday, November 9, 1982 was extended to those interested in discussion of disbursement of the liquor tax. Council Intent Chuck Slothower, 517 S. 17th, requested an announcement be made on Forbes Court to the public following executive session by the City Council of Case intent in pursuing the preliminary recommendation of the magistrate to Judge McGovern in the Playtime v. Renton court case. Agreement was made that the City Attorney would make an announcement following executive session. Executive MOVED BY STREDICKE, SECONDED BY ROCKHILL, THAT THE COUNCIL GO INTO Session EXECUTIVE SESSION FOR PURPOSES OF DISCUSSION OF POSSIBLE LITIGATION TO COME BACK WITH REPORT FROM ATTORNEY. CARRIED. 9:20 p.m. Announcement Following executive session, City Attorney Warren announced of Intent on direction of City Council to continue efforts at highest level Forbes Court by the City of Renton to proceed with the court case against Case Playtime in objecting to the magistrate 's recommendation to the judge. He advised that if Judge McGovern' s decision is ultimately unfavorable to the city, a reassessment of the matter by the City Council shall occur at that time. ADJOURNMENT Council Members reconvened in regular session. Roll was called; 10:00 p.m. all Council Members were present. MOVED BY CLYMER, SECONDED BY STREDICKE, MEETING ADJOURN. CARRIED. Maxine E. Motor, Acting City Clerk ;XP111 35 CITY OF RENTON )ATE 11/08/82 WARRANT DISTRIBUTION FUND TOTAL WARRANTS MACHINE VOIDE: NO.42520 - 42524 CURRENT $106,097.94 PARKS $39, 876.36 ARTERIAL STREETS $94, 647. 14 STREETS $31, 843.51 LIBRARY $10,964 •36 STREET FORWARD THRUST S9, 802.75 0 COULON BCH PK CONSTR $8, 044.53 WATERWORKS UTILITY S156, 139.32 AIRPORT $17, 036. 19 EQUIPMENT RENTAL $14, 690.63 FIREMEN 'S PENSION $9628 UNEMPLOYMENT COMP, S5, 039.92 LID CONTROL $396, 272.96 TOTAL OF ALL WARRANTS $890, 464 •89 WE, THE UNDERSIGNED MEMBERS OF THE WAYS AND MEANS COMMITTEE OF THE RENTON CITY COUNCIL, HAVING RECEIVED DEPARTMENTAL CERTIFICATION THAT MERCHANDISE AND/OR SERVICES HAVE BEEN RECEIVED OR RENDERED, DO HEREBY APPROVE FOR PAYMENT VOUCHERS NO. 42525 THROUGH NO. 42736 IN THE AMOUNT OF $890, 464 . 89 THIS gTH DAY OF NOVEMBER 1982. fp I\4& - ) COMMITTEE CHAIRMAN . . . MEMBER . • - • - L.I.D. #314 :�� �1 7 REVENUE WARRANT NO.#R-29 $191 ,756.09 MEMBER 1• L. I .D. #323 REVENUE WARRANT NO. #R-11 $ 38 ,468. 36 L.I .D. #325 REVENUE WARRANT NO.#R- 3 $166,048.51 IITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON PHILIP K. SWEIGERT 304 U.S. COURTHOUSE UNITED STATES MAGISTRATE November 5 , -1982 SEATTLE. WASH. 98104 F'I jJ OF RENTON (206) 442.1396 NO V 5 1982 POLICY DEVELOPMENT DEPT. • Jack R. Burns . 10940 N.E. 33d Place, Suite 107 1 Bellevue, WA 98004 " I Mark E. Barber 100 S. Second Street P. 0. Box 626 Renton, WA 98057 Gentlemen: Re: Playtime v. Renton Case Nos. C82-59M & C82-263M • Attached are copies of my Report and Recommendation • and proposed form of Order in the above-captioned case. The originals are being filed with the Clerk. Any objec- tions to, or memoranda in support of the recommendation should be filed and served within ten days with copies to the Clerk for forwarding to the District Judge and to. my office. You should also file and serve a Notice of Motion placing ,those objections on 'the Judge' s calendar for the third Friday following filing of those objections. .If no timely objections are filed, the matter will be ready for a ruling by the Judge not later than two weeks from the date of this letter or November 19 , 1982 . Thank you for your cooperation. Yours very truly, Philip K. Sweige United States Ma i trate Attachments PKS/vlk cc: Colleen Garrigus File Nos. C82-59M & C82-263M ( . • I • I 1 ' � I 2 3 4 I . it 5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 PLAYTIME THEATRES, INC. , et al. , ) 10 Plaintiffs, ) 11 , v. ) CASE NO. C82-59M ) 12. CITY OF RENTON, et al. , ) • ) • { 13 Defendants . ) ) REPORT AND RECOMMENDATION �y 14 ) CITY OF RENTON, et al. , ) 15 . ) Plaintiffs , ) _ 16 ) v. • ) CASE NO. C82-263M 17 ) PLAYTIME THEATRES, INC. , et al. , ) 18 ) Defendants. ) 19 . ) II 20 INTRODUCTION AND SUMMARY CONCLUSION 21 On February 23 , 1982 , the Court, approving and adopting a 22 Report and Recommendation filed February 3 , 1982 (Dkt. #22) , entered an order denying plaintiffs ' motion for temporary re- 23 straining order (Dkt. #39) . Three motions are presently befor= 24 25 the Court: First, plaintiffs ' motion for preliminary injunc- • 26 tion, second, defendants ' renewed motion to dismiss, and, thir. , defendants ' motion for summary judgment. At a hearing conduct 27 ed on June 23, 1982, the undersigned heard oral testimony, 28 29 received documentary evidence, and heard the arguments of counsel with respect to all three motions. Based thereon and 30 upon the affidavits and the balance of the record before me, 31 and for the reasons set forth herein in some detail, I conclud_' • 32 REPORT AND RECOMMENDATION - 1 FPI-SST-10.7-78 12.5M-F235 I -- 1 i i 1 'I I . 11 I I • llthat plaintiffs have established both a clear likelihood of I 2 success on the merits and irreparable injury. I recommend that 1 3 the Court enjoin enforcement of Renton' s zoning ordinance deal-, I 4 ling with adult theatres . I also, of course, recommend denial 5 of defendants ' dismissal and summary judgment motions. 6 THE RECORD BEFORE THE COURT 7 (A) The Ordinances. I : .( ' I 8 In April of 1981, the City of Renton enacted Ordinance 1 I 9 No. 3526 providing that adult motion picture theatres as de 10 fined therein were prohibited: 111 11 (1) Within or within 1,000 feet of any residential 12 zone or single family or multiple family use; 13 (2) Within one mile of any public or private school; 14 (3) Within 1,000 feet of any church or other reli- • 15 gious facility or institution; and, 16 (4) Within 1,000 feet of any public park or P-I zone. 17 Early in 1982 , plaintiffs acquired two existing theatre 1 I 18 buildings in the City of Renton. It was their intention to i 19 show feature length sexually explicit adult films in one of 20 ithem. The theatre buildings , however, were located in an area 21 proscribed by Ordinance No. 3526 , prompting plaintiffs to com- 22 mence the present action seeking damages and an injunction prohibiting enforcement of the ordinance on due process, First 23 (Amendment, and equal protection grounds. Their principle con- 24 tentions are that the City of Renton failed to factually suppo t ' 25 26 a sufficient governmental interest justifying intrusion upon protected speech and that the ordinance was not a mere loca- 27 28 tional restriction but a virtual prohibition of adult theatres • in the City of Renton. I 29 While the case was pending, more specifically in May, 198 • , 30 defendant City of Renton enacted Ordinance No. 3629, which 31 amended Ordinance No. 3526 . The principle changes were : 32 ' REPORT AND RECOMMENDATION - 2 F'1'1--SST-10.1.7E I25M--1?:T5 r / • • it 1 � (1) The amending ordinance contained an elaborate 2 statement of the reasons for enacting both Ordinance No. 3 3526 and Ordinance No. 3629 ; 4 (2) A definition of the word "used" was added; 5 (3) Violation of the use provisions of the ordinance 6 was declared to be a nuisance per se to be abated civilly 7 4 and not by criminal enforcement; 8 (4) The required distance of an adult theatre from a 9 I school was reduced from one mile to 1,000 feet; and, 10 (5). A severability clause was added. 11 The amending ordinance, No. 3629 , also contained an emer- 12 gency clause and was to be effective as of the date of its 13 passage and approval by the mayor, May 3, 1982 . 14 On June 14 , 1982 , defendants passed yet a third ordinance, 15 No. 3637, which was identical to Ordinance No. 3629 in all 16 .respects except that the emergency clause was deleted and the 17 iordinance was to become effective thirty days following its 18 publication. 19 While plaintiffs argue that the only ordinance before the 20 Court is No. 3526 , they are clearly incorrect. Their request 'for injunctive relief obligates the Court to consider anyand 21 all changes in the applicable zoning scheme to the date of its 22 ruling. . 23 (B) Events Leading to Passage of the Ordinances. 24 25 The City of Renton presently has no theatres which exhibi sexuallyexplicit adult films.' It. 26 Pappears that in May of 1980 , at the suggestion of a City of Renton hearing examiner, the 27 mayor suggested to the City Council that they consider the 28 advisability of passing zoning legislation dealing with adult 29 entertainment uses , specifically "adult theatre [s] , bookstore [ ] , 30 film and/or novelty shop [s] " prior to the time any such busi- 31 nesses might seek to locate in the city. The mayor' s memorandum 32 • REPORT AND RECOMMENDATION - 3 F'PI-SST-10•:1.78 12531-123i ' I i I ,I • ' I 1 1 'suggested that some cities had experienced difficulties in 2 "re-doing" their zoning ordinances once such uses were esta- 3 blished in the community. i 4 On March 5 , 1981, the Planning and Development Committee of the Council held a meeting for the purpose of taking public 5 6 testimony on the subject. While there is no record of that 7 meeting, Mr. Clemens, then the City' s. acting Planning Director 8 mho was present at the meeting, testified that the Superinten- 1 9 • 'dent of Schools, and the President of the Renton Chamber of 10 'Commerce spoke to concerns about adverse affects which. adult entertainment uses would have upon the economic health of 11 12 Renton' s businesses and upon children' going to and from school. 13 He also testified that other citizens spoke generally about the 14 adverse affects of such uses. ' Mr. Clemens further testified 15 that he and his department reviewed the decisions of the Wash- 1 ington State Supreme Court in Northend Cinemas v. Seattle, 90 16 1 17 IWn. 2d, 709 , and of the United States Supreme Court in Young v. 18 'American Mini Theatres, 427 U.S. 50 (1976) , and presented the ,American from their review to the Planning and Development 19 1Committee. He indicated generally that review of those cases 20 indicated that adult entertainment uses tend to decrease pro- 21 perty values and increase crime. 22 On April 6 , 1981, the Planning and Development Committee 23 of the Council recommended that an appropriate zoning ordinance 24 be written to reflect the following conditions: 25 " (a) No adult motion picture theatre will be 26 . allowed in an area used or zoned residential or in ' any P-I public use area. 27 . " (b) A suitable buffer strip of 1,000 feet 28 from any residential or P-I area also be a banned area; 29 " (c) The area enclosed in a one mile radius 30 of any school (this is the minimum student walking distance) would also be a banned area. " 31 ' Ordinance No. 3526 was the result. • 32 REPORT AND RECOMMENDATION - 4 FP -SST-10•:1•78 125M-1235 • I . r • II 1 (C) The Effect of the Ordinance. ' 2 While the record would indicate that there are some 200 3 acres of property within the city limits of Renton where ' 4 an adult theatre might conceivably locate, the testimony and 5 affidavits show that, with but one exception, none of that pro_ 6 perty would be suitable for the location of a theatre. The 7 area is largely undeveloped and what development there is is I, 8 entirely unsuitable for retail purposes in general and for - i 9 itheatre purposes in particular. The developed areas include: 10 (1) A Metro sewage disposal site and treatment plant; 11 (2) Longacres Racetrack and environs; • 12 (3) A business park containing buildings suitable 13 only for industrial use; 14 (4) Warehouse and manufacturing facilities; 15 (5) A Mobile Oil tank farm; and, 16 (6) A fully developed shopping center. 17 � The entire area potentially available for the location of II 18 Ian adult theatre is far distant from the downtown business 19 ![ di.str. i.ct, not well lit during night time hours, and also 20 (' generally devoid of pedestrian and vehicular traffic during 21 such hours. 22 The two sites which are potentially suitable are fully developed and occupied by fast food restaurants. 23 DISCUSSION 24 As indicated in my prior Report and Recommendation, the 25 26 party requesting injunctive relief must clearly show either: 27 (1) probable success on the merits and possible irreparable 28 injury, or (2) sufficient serious questions as to the merits to make them a fair ground for litigation and a balance of 29 hardship tipping decidely, in favor of the party seeking relief, 30 Los Angeles Memorial Coliseum Commission v. N.F.L. , 634 F. 2d 31 • 1197 . (9th Cir. 1980) . I conclude that plaintiffs meet the , 32 foregoing test. F'PI-SST-10.3.78 125M-1235 REPORT AND RECOMMENDATION - 5 1 1 • • (1) Probability of. Success on the Merits. i, 2 A city' s authority to zone is a well recognized aspect of 3 the police power. But when a zoning ordinance infringes upon 4 speech protected by the First Amendment, it must be narrowly 5 drawn to further a substantial government interest. Schad v. 1' 6 'Borough of Mt. Ephraim, 452 U.S. 61 (1981) ; Kuzinich v. County 7 of Santa Clara, F. 2d , No. 81-4460 Ninth Circuit slip 8 op. ' October 12, 1982 . The City of Renton' s zoning ordinance 9 relating to adult theatres plainly implicates First Amendment 1 10 rights . It is not limited to motion picture theatres catering 11 • to those with an appetite for obscene films falling outside the 12 protections of the First Amendment, Miller v. California, 413 13 U.S. 15 (1973) . Rather, patterned upon the ordinance approved 14 in Young v. American Mini Theatres, 427 U.S. 50 (1976) , it re- 15 Igulates sexually explicit but nonobscene films as well. 16 , Defendant City of Renton contends, however, that no First 17 Amendment rights are involved because the ordinance only regu- 18 lates the time, place, and manner of the operation of adult • 19 theatres. It relies on American Mini Theatres, supra. However, 20 I believe the ordinance in American Mini Theatres is clearly 21 distinguishable. The ordinance in the instant case, for all 22 • practical purposes, excludes adult theatres from the City of Renton and therefore greatly restricts access to lawful speech. 23 24 The ordinance approved in American Mini Theatres had no such effect. 25 20 Defendants contend that the City has provided an area 27 within which adult theatres may locate. However, while in 28 theory such area is available, in fact, the area is entirely unsuited to movie theatre use. Restricting adult theatres to 29 the most unattractive, inaccessible, and inconvenient areas of 30 the city has the effect of suppressing or greatly restricting 31 access to lawful speech.. American Mini Theatres, supra, 427 32 REPORT AND RECOMMENDATION - 6 FPI-SST-103.78 125M-1235 I • I 1 IU.S. at 71 n. 35. See Basiardanes v. City of Galveston, 682 F. 2 2d 1203 (5th Cir. 1982) ; Avalon Cinema Corporation v. Thompson, ) 3 667 F. 2d 659 (8th Cir. 1981) ; Keego Harbor Co. v. City of 4 IKeego Harbor, 657 F. 2d 94 (6th Cir. 1981) ; Alexander v. City 5 of Minneapolis, 531 F. Supp. 1162 (N.D. Minn. 1982) ; Purple 6 Onion, Inc. v. Jackson, 511 F. Supp. 1207 (N.D. Ga. 1981) ; 7 IBayside Enterprises , Inc. v. Carson, 450 F. Supp. 696 (M.D. Fla. / 8 1978) ; E & B Enterprises v. City of University Park, 449 F. • 9 Supp. 695 (N.D. Tex, 1977) ; cf. Deerfield Medical Center v. 10 City of Deerfield Beach, 661 F. 2d 328 (5th Cir. 1981) . 11 Because the Renton ordinance drastically impairs the 12 availability in Renton of films protected for adult viewing by 13 the First Amendment, it must be reviewed under the stringent 14 standards of Schad, supra. Schad directs the court to examine 15 the strength and legitimacy of the governmental interest behind 16 the ordinance and the precision with which it is drawn. Unless 17 lithe governmental interest is significant and is advanced with- . I 18 'lout undue restraint on speech, the ordinance is invalid. Schad, 19 D452 U.S. at 70 . (. II 20 The City of Renton has asserted that it has a substantial 21 (governmental interest in zoning restrictions which will prevent deterioration of its neighborhoods and its downtown areas. But 22 it is not sufficient to assert such interest. The City must 23 establish a factual basis for its asserted reasons and that it 24 ' considered those facts in passing the ordinance. Those reasons 25 must be unrelated to the suppression of free , expression. 26 United States v. O'Brien, 391 U.S. 367 (1968) ; Kuzinich v. 27 County of Santa Clara, supra. 28 Many of the conclusory statements of the reasons for 29 enacting the Renton ordinances reflect simple distaste for 30 adult theatres because of the content of the films shown. 31 Those statements directed at legitimate fears such as preven- 32 REPORT AND. RECOMMENDATION - 7 FPI-SST-111.:1.7N 125N1-I2:15 •• 1 • 1 tion of crime and deterioration of business and residential . � I 9 !neighborhoods are based principally upon the Planning Depart- 1 !ments review of other court cases in which zoning legislation 4 !regulating the location of adult businesses has been approved. 5 The City had little or no empirical evidence before it when the II 6 initial ordinance was passed. More is required. Avalon Cinema 7 !Corporation v. Thompson, supra; Keego Harbor Co. v. City of • 8 'Keego Harbor, supra; Basiardanes v. City of Galveston, supra. 9 I conclude that the manner in which the ordinance was enacted, 10 its narrow focus on adult theatres to the exclusion of other 11 adult entertainment uses which would presumedly contribute to 12 the same concerns, and the fact that most of the findings set forth 13 in the amendatory ordinance reflect citizen distaste for adult ��. 14 theatres because of the film fare shown, suggests an improper 15 ' (motive. 16 Even assuming that the City has established a substantial 17 lgovernmental interest, however, the ordinance will not pass 18 ! constitutional muster. The ordinance must be narrowly drawn 11 'to serve that interest with only a minimum intrusion upon First 20 Amendment freedoms. Schad, supra. Here the intrusion upon 21 First Amendment expression is not minimal. Adult theatres are, 22 for all practical purposes, excluded from the City of Renton. The ordinance constitutes a prior restraint on speech and shoul. 23 be held to be unconstitutional. 24 25 (2) Irreparable Injury. 26 Irreparable injury is clear. Plaintiffs may not exhibit sexually explicit adult films without being subjected to civil 27 28 abatement proceedings. The loss of First Amendment freedoms for even minimal periods of time unquestionably constitutes 29 irreparable injury in the context of a suit for injunctive 30 relief. Elrod v. Burns, 427 U.S. 373 (1976) ; Deerfield Medical 31 Center v. City of Deerfield Beach, supra; Citizens for a Bette 32 Environment v. City of Park Ridge, 567 F. 2d 689 (7th Cir. 1975) . I'M-SST-111.3.i8 125M_12:1; REPORT AND RECOMMENDATION - 8 I _ I 1 I recommend that the Court enjoin enforcement of City of li Rentom Ordinance No. 3637 pending disposition on the merits. . 11 11 3 A proposed form of ' Order, accompanies this Report and Recommen- it 4 'dation. 5 DATED. this 5th day of November, 1982. 6 7 i Philip K. Sweigert • 8 United States Magistrate ;I 9 10 . 11 12 13 14 15 16 - -- 17 18 . ii!"( 19 20 21 22 23 24 25 26 27. • 28 29 30 31 32 REPORT AND RECOMMENDATION - 9 fig•-SST-10.3.78 125M-1235 i I 1 • 1 1 I 1 1 I 1 I' 3 4 li it II 5 ,I 6 I • ' UNITED STATES DISTRICT COURT 'I 7 WESTERN DISTRICT OF WASHINGTON ( 8 AT SEATTLE II PLAYTIME THEATRES, INC. ; et al. , ) 9 ) 10 Plaintiffs, ) v. ) CASE NO. C82-59M 11 ) CITY OF RENTON, et al. , ) 12 ) Defendants. ) ORDER DENYING DEFENDANTS ' I 13 ) MOTIONS TO DISMISS AND FOR SUMMARY. JUDGMENT AND , 14 CITY OF RENTON, et al. , ) GRANTING PRELIMINARY 15 ) INJUNCTION PENDENTE LITE j Plaintiffs, ) , I, 16 �I v. ) CASE NO. C82-263M I ! ) - • 17 ('PLAYTIME THEATRES, INC. , et al. , ) j 18 Defendants. ) 1 I ) ! II 19 I.�`_; it The Court, having considered plaintiffs ' motion for I' 20 !preliminary injunction, defendants' renewed motion to dismiss 21 and motion for summary judgment, the Report and Recommendation 22 lof United States Magistrate Philip K. Sweigert, and the balance 23 of the records and files herein, does hereby find and ORDER: 24 (1) Said Report and Recommendation is hereby approved 25 • and adopted; 26 (2) Defendants ' motion for summary judgment and renewed 27 motion to dismiss and hereby DENIED; 28 (3) . Defendant City of Renton, its officers, agents, 29 servants, employees, successors, attorneys, and all those in 30 active concert or participation with them, are enjoined from 31 enforcing City of. Renton Ordinance No. 3637 against plaintiffs, 32 ORDER - 1 ' , FPI-SST-10.3.78 ITAI-UM • • • 1 said preliminary injunction to remain in effect pending a 2 decision by this Court on the merits and until further order of 3 the Court; and, I 4 (4) The Clerk of Court is to direct copies of this Order 5 to all counsel of record and to Magistrate Sweigert. 6 DATED this day of , 1982 . 7 8 CHIEF UNITED STATES DISTRICT JUDGE �. 9 10 . 11 12 .(• 13 14 III 15 10 17 18 ��. 19 20 • ; I 21 22 23 . 2 I 24 25 ' • 26 27- 28 29 30 31 32 . ORDER - 2 , FPI-SST-100.3.78 125M-1235 i I r I • I ADULT USE ZONING QUESTIONNAIRE RESPONDENT'S NAME: /)4G ea-"( /O DEPARTMENT AND CITY: , j©' b7e(eZ ta/.-_ !ü7 ADDRESS: L J ALCl/ % `2l7%� /`�' ti.,zZt. THE CITY OF KENT PLANNING DEPARTMENT IS CONDUCTING A STUDY OF ADULT ENTERTAINMENT USES AND THEIR IMPACTS ON THE COMMUNITY. BASED ON THE RESULTS OF OUR STUDY, THE CITY WILL DEVELOP AND ADOPT LAND USE REGULATIONS AIMED AT REDUCING THE ADVERSE ! ' IMPACTS OF SUCH USES. YOUR ASSISTANCE AND COOPERATION IN THIS MATTER IS GREATLY APPRECIATED. BY BETTER UNDERSTANDING YOUR EXPERIENCE WITH ADULT USES, WE MAY BETTER UNDERSTAND AND PLAN FOR OUR OWN. LAND USE IMPACT QUESTIONS 1 . What types of adult uses are curre-n;ly loc t d and operating within your, community? /1( iGLG 7/j�! , G2 i L /1�e 71'J GJ ❑ Adult theater ❑ Gambling ❑ Adult bookstore D Adult motel )05 Massage parlor ❑ Other (specify) : ❑ Model studio 2. Do you commonly receive complaints from the public regarding any of the above-mentioned adult uses? I D Yes C7/6/41 7 l61t ��•5 /1 `16i/L?/41 Me r?,i ' X// (if l4i ,ee ied -e7A - 3. If you answered/'(Yes to f/2, what is the general nature of the complaint and which use or uses are involved? 1? //r g /?_ci. — //5(1/d/i/ e°4.. 4. Do you feel there is a relationship between the incidence of criminal activity and the operation of adult uses (excluding gambling) ? ❑ Yes 11 No d` /Gf� /D N/72/ /i ' ,t G1 L 1 4°J Pr., Don 't know 5. Do you feel there is a relationship between the incidence of criminal activity and licensed gambling activities? ❑ Yes ❑ No Don ' t know L°l( /A : A/,//7VC-i-(74-- /S c/liZ/le tJ yADULT USE ZONING QUESTIONNAIRE Page 2 6. In your opinion, which of the following adult uses has the greatest adverse effect on "noncustomers" (such as neighboring residences and businesses) ? ❑ Adult theaters [] Model studios ❑ Adult bookstores ❑ Strip joints ❑ Adult motels ❑ Gambling � G D ❑ Massage parlors Od Other (specify) :• 7. Have licensed gambling activities in yoiomm ity c sedG special or major problems with adjoining land uses? ❑ Yes D No Igi Don 't know 1 ZONING REGULATION QUESTIONS 8. How do the land use regulations in your com nity deal with the location of adult uses? d7// j�� G� 22,7_7e_ ,/ ge, Regulations concentrate uses to a certain zone or district. ❑ Regulations disperse uses throughout the community ❑ Regulations treat adult uses like any other commercial business II ❑ Don't know it 9. Do you think the land use (zoning) regulations in your community are adequate to control location of adult uses? tid Yes ❑ No 10. In your opinion and in view of your departmental concerns, what do you think is the preferable approach in regulating the location of adult uses? "` Con-TTadul us min a si2 le are or distr t of he/ / lerr ri dne" _cab �P. 0 Di - 'erseult sesGro out c ty, maintainin inimu distance requirements from schools, churches, and residences ❑ No special need to regulate adult uses any differently than other business ❑ Other (specify) : , I Please return the questionnaire to: Kent Planning Department Attn: Fred N. Satterstrom 220 South Fourth Avenue Y . ._ Kent, Washington 98032 1 . - - ( 1 AfA OF R4,,�. OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON rti 4• O v POST OFFICE BOX 626 100 2nd AVENUE BUILDING • RENTON. WASHINGTON 98055 255-8678 solL o 00 ' ^ LAWRENCE I.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY o CO' DAVID M. DEAN, ASSISTANT CITY ATTORNEY �TEo SEP� ��� `July 15 , 1982 MARK E. BARBER, ASSISTANT CITY ATTORNEY • CITY OF RENTON ON TO : Barbara Y. Shinpoch, Mayor JUL 161982 Members of City Council PoucY FROM: Daniel Kellogg, Assistant City AttorneyoEVE!_oPMENr DEPT. RE : Playtime Theatres vs City of Renton. We have discovered that Magistrate Sweigert is attending a Judicial Conference which is a seminar for Judges during the month. of July. His Law Clerk told me that they had intended to file their decision on our Motion for Summary Judgment and Playtime' s Motion for Preliminary, Injunction before he left . This subject matter will be one of the first matters on the Court ' s Agenda upon his return. Therefore, we anticipate the receipt of the decision very early in August. Daniel Kellogg DK:nd cc : Dave Clemens City Clerk 8/1,1.Fr\ I S'rat ATE SIAJ I E • • 1 ' JUN1 `r S,32 2 C ;-s n; T;,, r 6c: 11; 3 4 • 5 6 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 PLAYTIME THEATRES, INC. , a ) Washington corporation, et al . , ) 11 ' ) NO. C82-59M Plaintiffs, ) 12 vs . ) BRIEF OF PLAYTIME THEATRES, • ) INC. AND KUKIO BAY PROPERTIES 13 THE CITY OF RENTON, et al. , ) INC. IN SUPPORT OF MOTION FOR ) PRELIMINARY INJUNCTION AND IN 14 Defendants. ) OPPOSITION TO DEFENDANTS' ) MOTION FOR SUMMARY JUDGMENT 15 THE CITY OF RENTON, a municipal) corporation, ) 16 ) 17 Plaintiff, ) NO. C82-263 vs. ) 18 PLAYTIME THEATRES INC. a ) Washington corporation, et al. , ) 19 ) 20 Defendants. ' ) 21 THE FEDERAL COURTS SHOULD HASTEN TO GRANT INJUNCTIVE RELIEF, AS PRAYED FOR, WHERE FUNDAMENTAL CONSTITU— TIONAL RIGHTS ARE INVOLVED AND THE DANGER OF A 22 • "CHILLING" OF THOSE RIGHTS IS THREATENED BY THE ACTS 23 OF THE DEFENDANTS. 24 The test for issuance of preliminary injunction appears in 25 Wm. Inglis & Sons Baking Co. v. ITT Continental Baking Co. , 526 F. 2d 86, 88 (9th Cir. 1975) . 26 27 One moving for a preliminary injunction assumes the burden of demonstrating either a combination of 28 probable success and the possibility of irreparable injury or that serious questions are raised and the • 29 ' balance of hardships tips sharply in his favor . • 30 The Inglis test has been described as a single continuum 31 rather than two entirely separate standards . • ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 1 10604 N.E.38th Place,Suite 105 . Kirkland,Washington 98033 (206)823-3636 I • . . . The critical element in determining the test to 1 be applied is the relative hardship to the parties . If the balance of harm tips . decidedly toward the 2 plaintiff, then the plaintiff need not show as robust a likelihood of success on the merits as when the 3 balance tips less decidedly. Benda v. Grand Lodge of Inter. Assn, etc . , 584 F. 2d ,3Q8, 315 (9th Cir . 4 1978) . 5 See also, Los Angeles Memorial Coliseum Comm'n v. N.F.L. , 634 F. 2d 6 1197 (9th Cir . 1980) . 7 Plaintiffs respectfully submit that they will demonstrate 8 both a probability of success on the merits and the possibility of 9 irreparable injury. In thecase, however, this Court need p � y. present 10 not determine that plaintiffs have shown a probability of success 11 on the merits in that plaintiffs have clearly raised "serious 12 questions" as to the constitutionality of the ordinances , and the 13 balance of hardships "tips sharply" in plaintiffs' favor . 14 Upon the evidence that will be presented to this Court at 15 hearing and the authorities that will be discussed , the necessary 16 showing of probability of success on the merits of this action and 1, irreparable harm to plaintiffs- will be made, and the preliminary 18 injunction prayed for should be issued. 19 LOCATIONAL ADULT THEATRE ZONING ORDINANCES ARE CON- 20 • TENT BASED RESTRICTIONS. ON SPEECH THAT COME BEFORE THE COURT BEARING A PRESUMPTION THAT THEY ARE UNCON- 21 STITUTIONAL AND THE. BURDEN IS UPON THE CITY TO PROVE THAT A COMPELLING GOVERNMENTAL INTEREST IS SERVED BY 22 ; THE -LEAST INTRUSIVE MEANS. 23 In Young v. American Mini Theatres, 427 U.S. 50 (1976) the 24 Supreme Court upheld the • constitutionality of a Detroit zoning 25 ordinance that amended a long existing "Anti-Skid Row Ordinance" to 26 include adult theatres within its locational provisions.. No 27 opinion of the court was joined in by a majority of the justices . 28 Justice Steward , writing for the four dissenting justices 29 found that " . . . [T]his case does not involve a simple zoning 30 ordinance, or a content-neutral time, place, and manner restriction 31 . or a regulation of obscene expression or other speech that is ATTORNEYS AT LAW Hubbard, Burns &Meyer Brief of Plaintiffs in A PROFESSIONAL SERVICE CORPORATION Support of Prelim. Injunction 10604 N.E.38th Place,Suite 105 • ' • Page 2 Kirkland,Washington 98033 (206)828-3636 ' I entitled to less than the full protection of the First Amendment . " 1 Young, supra. at 84 . He went on to say: 2 What this case does involve is the constitutional 3 permissibility of selective interference with 4 pro- tected speech whose content is thought to produce distasteful effects . 5 Id . , at 85; also see, n. 2, page 84 . 6 Justice Powell ' s concurring opinion upheld the constitution- 7 ality of the Detroit zoning ordinances , but he did not agree with 8 the holding or supporting discussion in part III of Justice 9 Steven' s opinion. Specifically, Justice Powell found that the 10 ordinance was not grounded in a hostility toward certain kinds of 11 ' speech; rather, it was an addition to a long in place "Anti-Skid 12 Row Ordinance". He further found that the ordinance had only a 13 slight and insignificant impact on those who wished to make adult 14 films available to the public and to those of the public who wished 15 to view them. Justice Powell then went on to analyze the ordinance A6 based upon the four-part test of United States v. O'Brien, 391 U.S. 17 . 367, 377 (1968 ) . It should be noted that Justice Powell 's views 18 were based upon an ordinance far different in the restrictive 19, effect of its locational provisions than the provisions of the 20 or a case at bar. 21 Since the decision in Young, at least four cases have been 22 decided by the Supreme Court that reject the view expressed by 23 Justice Stevens that ordinances, such as the one involved here, are 24 . merely reasonable time, place or manner restrictions on speech. 25 Consolidated Edison v. Public Serv. Comm'n, 447 U.S. 530 (1980) ; 26 Carey v. Brown, 447 U.S. 455 (1980) ; Heffron v. International Soc' y 27 for Krishna Consciousness , U. S. ,. 69 L.Ed .2d 298 (1981) ; and 28 Metromedia Inc. v. City of San Diego, U.S. , 69 L.Ed . 2d 80.0 29 ( 1981) . 30 In Consolidated Edison, supra, at 536, Justice Powell , 31 writing for six members of the court, said : Brief of Plaintiffs in ATTORNEYS AT LAW Support of Prelim. Injunction , Hubbard, Burns &Meyer Page 3 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 it • Ift°1 ( � II A restriction that regulates only the time , place or 1 manner of speech may be imposed so long as it is 2 reasonable. But when regulation is based on the con- tent of speech, governmental action must ccrutin- 3 ized more carefully to ensure that co unicat has not been prohthi ted "merely because publ c o ficials 4 disapprove the speaker ' s views'.. " Niemotko v. Maryland , 340 U. S. 268, 282, 95 L.Ed . 267 , 71 S.Ct . 5 325 (1951 ) (Frankfurter, J. , concurring in result) . As a consequence, we have emphasized that time, place , and manner regulations must be "applicable to 6 all speech irrespective of content . " Erznoznik v. 7 City of Jacksonville, 422 U. S. 205 , 209 , 45 L.Ed. 2d 125 , 95 S. Ct . 2268 (1975) ; see Carey v . Brown, ante, 8 at 470 , 65 L. Ed. 2d 263, 100 S.Ct . - 2286 (1980) . Governmental action that regulates speech on the 9 basis of its subject matter "slip[s] from the neu- trality of time, place, and circumstances into a 10 concern about content ." Police Department of Chicago v. Mosley, 408 U.S. 92, 99, 33 L.Ed .2d 212, 92 S. Ct . 11 ' 2286. (1972) , quoting Kalven, The Concept of Public Forum: Cox v. Louisiana, 1965 S.Ct . Rev. 1, 29. • 12 Therefore, a constitutionally permissible time, place, or manner restriction may not be based upon 13 either the content or subject matter of speech. 14 In Carey v. Brown, supra. , Justice Brennan writing for six 15 members of the court found unconstitutional an Illinois statute 16 barring all picketing of residences or dwellings except the peace- 17 ful picketing of a place of employment involved in a labor dispute . 18 The court found that the permissibility of residential picketing 19 was dependent solely on the nature of the message conveyed. Id . , 20 at 461 . 21 In Heffron v. International Soc ' y for Krishna Consciousness, 22 supra. at page 307, Justice White, quoting from Consolidated 23 Edison, supra. at 536, said: 24 A major criterion for a valid time, place, and manner restriction is that the restriction "may not be based 25 upon either the content or subject matter of the speech. " 26 Finally, in Metromedia Inc. v. City of San Diego, supra. , at 27 page 820, Justice White, writing for the plurality, said : 28 • . Finally, we reject appellee' s suggestion that the 29 ordinance may be appropriately characterized as a reasonable "time, place and manner" restriction. The 30 ordinance does not generally ban billboard advertis- ing as an acceptable "manner" of communicating infor- 31 mation or ideas; rather, it permits various kinds of signs . Signs that are banned are banned everywhere ATTORNEYS AT LAW Hubbard, Burns &Meyer Brief of Plaintiffs in APROFESSIONALSERVICECORPORATION Support of Prelim. Injunction 10604 N.E.38th Place,Suite 105 Page 4 Kirkland,Washington 98033 1706)87.6-3636 • I ,d,o#1b r" 461" 1 and at all times . We have observed that time, place and manner restrictions are permissible if "they are 2 justified without reference to the content of the regulated speech . . . serve a signif c.an••��----����overnmental 3 interest and . . . le open a le alternativchan- nets"_,.for_ ammtuzication of e n motion '� 4 In the case at bar, there can be no question but that the 5 classification of "adult theatre" under the terms of the ordinances 6 is based upon the content of the films shown. The basis for this 7 classification is content; thus, under the holdings in Consolidated 8 Edison, supra. ; Carey v. Brown, supra. ; Hellfron v. International 9 Soc ' y for Krishna Consciousness, supra. ; and Metromedia Inc . v. 10 City . of San Diego, supra. , these ordinances come to this court 11 ' bearing a presumption that they are unconstitutional. 12 In order to sustain a governmental content-based classifica- 13 tion restricting speech, the government must show that the regula- 14 tion is a precisely drawn means of serving a compelling govern- 15 mental interest . Consolidated Edison, supra. at 540. ". . . [T]he 16 legislation must be finely tailored to serve substantial state 17 interests and the justifications offered for any distinctions it 18 draws must be carefully scrutinized . . . " Carey v. Brown, supra. , 19 at 461 . Finally, there is a difference between the standard of 20 review where zoning ordinances merely affect property interests and 21 the standard of review where zoning ordinances affect a protected 22 liberty. As to the latter, Justice White wrote in Schad v. Borough 23 of Mount Ephraim, U..S. 68 L.Ed . 2d 671 (1981) at page 24 680: 25 . . . when a zoning ordinance infringes upon a pro- 26tected liberty, it must be narrowly drawn and must 27 further a sufficiently substantial governmental interest . . . [T]he court must not only assess the 28 substantiality of the governmental interests asserted but also determine whether those interests could be 29 'served by means that would be less intrusive on activity protected by the First Amendment. The City of Renton has stated no rationale justifying the 31 difference of treatment between protected expression. Further, ATTORNEYS AT LAW Hubbard, Burns &Meyer Brief of Plaintiffs in A PROFESSIONAL SERVICE CORPORATION Support of Prelim. Injunction 10604 N.E.38th Place,Suite 105 • Page 5 Kirkland,Washington 98033 (206)828-3636 • assuming arguendo that Renton asserts an interest which is both 1 legitimate and substantial , the interest asserted by the City and 2 the means adopted to accomplish the end sought to be accomplished 3 by Renton must themselves be legitimate 'and narrowly tailored, for • 4 even a legitimate governmental purpose "cannot be pursued by means 5 6 that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. " Shelton v. Tucker, 364 U. S. 479 , 488 7 8 ( 1960) . 9 . In the area of free speech and press , judicial deference to legislative judgments as to means and ends is constitutionally 10 11 ' impermissible and inappropriate; both the end sought to be 12 accomplished and the means adopted to achieve that end are subject to strict judicial scrutiny. First Nat' l Bank of Boston v. 13 14 Belotti, supra. , at 786 . There must be a clear, direct .and 15 definitive connection between means and end. Schaumburg v. 18 Citizens for a Better Environment, supra. , at 88, i. e. , ". . . substantial relationship . . . . " 17 • 18 THERE IS NO LEGISLATIVE HISTORY FROM WHICH 'THE PUR- 19 POSE OF THE CITY COUNCIL CAN BE DETERMINED, YET, FROM THE STATEMENTS OF COUNSEL AND THE PLEADINGS HEREIN, 20 • IT IS CLEAR THAT ORDINANCE NOS. 3526 AND 3629 WERE INTENDED TO RESTRICT AND RID THE CITY OF RENTON OF 21 SPEECH THE CITY FATHERS FOUND DISTASTEFUL. 1 22 No written or recorded legislative history exists from which ' 23 it is possible to discern exactly what was considered by the Renton 24 City Council in enacting Ordinance No. 3526 (Page 44, line 8-Page 25 45 , line 13, Vol. I, Deposition of David Clemens) . The independent 26 recollection of David R. Clemens, who attended all hearings rela- 27tive to the enactment of Ordinance No. 3526, and who personally and 28 through. his staff studied the question and made a presentation to 29 the council, is the sole history available to us today. 30 The City of Renton did nothing to study the effects of adult j 31 businesses upon the community. Mr. Clemens acknowledged before ATTORNEYS AT LAW • . • Hubbard, Burns &Meyer Brief of Plaintiffs in APROFESSIONALSERVICECORPORATION Support of Prelim. Injunction 10604 N.E.38th Place,Suite 105 • Page 6 Kirkland,Washington 98033 (206)828-3636 1 this Court that no expert evidence regarding the effects of adult 2 entertainment uses on the neighborhoods or business districts of 3 Renton was received or considered. On February 5 , 1982 plaintiffs ' 4 requested that defendants produce for inspection and copying : 5 3, All studies done by the Planning Department, Planning Staff, or used or considered by the Planning 6 Department or Staff, in the preparation or formula- tion of Ordinance No. 3526, or any report relative 7 thereto to the Planning Commission and/or the City Council. 8 A number of documents were produced; however, none were a study or 9 report relative to adult land uses . .Rather , all the material 10 produced dealt with the legality of regulation, not the reasons and 11 ' underlying justifications for regulation. (See Pages 5-10, Vol . 12 II, Deposition of David Clemens) . 13 To further emphasize the fact that no empirical data was 14 received, Mr .. Clemens was queried relative to his statement that he 15 had reviewed a summary of findings and conclusions relative to the 16 City of Seattle zoning ordinance. Mr. Clemens admitted at his 17 deposition that what he was referring to was the Supreme Court 18 decision itself and a discussion of legal cases prepared by the 19 Seattle City Attorney. (Page 11, line 22-Page 12, line 11 , Vol. 20 II, Deposition of David Clemens) . Prior to the adoption of 21 Ordinance No. 3526, Mr. Clemens had never looked at the underlying 22 studies . 23 Before this Court, and at his deposition, Mr . Clemens testi- 24 fled that the one of the governmental concerns relative to adult 25 theatres was an increased incidence of assaults and prostitution. 26 In order to flush out the magnitude of this problem, if any, plain- 27 tiffs requested production as follows : 28 . 5 . All reports , letters, studies or other forms of 29 communication of the City of Renton Police Department or any other law enforcement agency relative to the 30 crime associated with the location of adult busi- nesses in general, and in the City of Renton, in 31 particular. ATTORNEYS AT LAW Hubbard, Burns &Meyer Brief of Plaintiffs in A PROFESSIONAL SERVICE CORPORATION Support of Prelim. Injunction 10604N.E.38th Place,Suite 105 • Page 7 Kirkland,Washington 98033 (206)828-3636 • 6. All crime reports generated by the City of Renton Police. Department in the past five years relative to 2 any and all crimes associated with adult businesses , • together with any and all crime reports relating to 3 prostitution and assault within the City of Renton. 4 No documents were produced in response to either of these requests nor were the requests objected to. From this, we may safely assume 6 that these types of crime are not a problem in Renton. When asked 7 on what he based his testimony to this Court that assault and 8 prostitution in Renton would increase with the introduction of an 9 adult theatre, \Mr . Clemens testified as follows : 10 Q. On what do you base your opinion that there would • be an increase in crime of those types? 11 ' A. To the best of my recollection, there was discus- 12 sion at at least one of the policy or planning . development committee meetings at which there was 13 testimony given , that crime of that type would be or could be expected with the implementation of 14 adult entertainment land uses . 15 Q. Did that testimony come from citizens or from a police department member? 16 A. I do not recall specifically. 17 Q. Did you attempt to verify in any way that adult 18 businesses , the location of adult businesses , would lead to an increase in the crimes of pros- 19 titution and assault by checking with the police department in . any localities where adult busi- 20 ness.es are located? 21 A. No, I did not. 22 i (Pages 14-15, Vol . II, Deposition of David Clemens) . 23 Later, Mr. Clemens testifed that the source he relied on was the 24 comments in the Northend Cinema v. Seattle case. (Page 16, lines 25 22-25, Vol. II, Deposition of David Clemens) . 26 Mr. Clemens also testified before this Court that one. of the 27 stated reasons for adopting Ordinance No. 3526 was that property 28 values would be affected by adult uses . Yet, Mr. Clemens admitted 29 that he did not contact any businesses located next to or in the 30 vicinity of an adult business anywhere in the state of Washington 31• to verify this assertion. (Page 17, lines 6-10, Vol. II, Deposi- ATTORNEYS AT LAW Hubbard, Burns &Meer Brief of Plaintiffs in A PROFESSIONAL SERVICE CORPORATION Support of Prelim. Injunction 10604 N.E.38th Place,Suite 105 • Page 8 Kirkland,Washington 98033 ;206)828-3636 II 1 tion of David Clemens) . Nor did he gather or attempt to gather any , 2 empirical evidence regarding this assertion. (Page 18, lines 2-9, 3 Vol . II, Deposition of David Clemens) . 4 During his deposition, Mr. Clemens acknowledged that the 5 only distinction between a general motion picture theatre and an 6 adult motion picture theatre, as defined by Ordinance No. 3526 , was 7 the image on the screen. (Page 21 , lines 4-8 , Vol . II , Deposition 8 of David Clemens) . When asked as a land use professional to iden- ' 9 tify the differences in operational characteristics between a 10 regular motion picture theatre and an adult motion picture theatre , 11 ' the only two distinctions Mr. Clemens perceived were traffic (draw- 12 ing from a larger area) and manner of advertising. He further 13 acknowledged that both of these could be regulated by existing code 14 sections . (Pages 21-23, Vol . II, Deposition of David Clemens) . 15 Mr. Clemens ' affidavit dated January 27 , 1982, at page 3 , 16 indicates that the testimony noted adverse impacts upon neighbor- ly hoods and businesses in the event of an adult entertainment use 18 being established in close proximity to schools, churches , public 19 buildings , businesses or residences . When specifically asked about 20 the alleged adverse impacts on schools, Mr. Clemens testified as 21 follows : 22 Q. -What adverse impacts would there be on children? How would the mere image on the screen inside the 23 building affect children? 24 A. As I recall the concerns , the public testimony was that the material could have an effect on the 25 people going and coming from the theatre and that as a result the children being educated could be 26 affected. 27 Q. How? 28 A. I am not sure that I can answer that . 29 Q. So `there was a perceived adverse impact, but you can' t identify for me today exactly what that impact would be. 31 A. I think that ' s correct. ATTORNEYS AT LAW • Hubbard, Burns &Meyer Brief of Plaintiffs in A PROFESSIONAL SERVICE CORPORATION Support of Prelim. Injunction 10604 N.E.38th Place,Suite 105 • Page 9 Kirkland,Washington 98033 (206)828-3636 • ' • . I • 1 (Pages 42-43, Vol . II, Deposition of David Clemens) . 2 When asked the same question about churches , Mr . Clemens said : 3 Q. Let me ask you the same question with respect to churches . What adverse impact would the opera- 4 tional characteristics of an adult motion picture theatre have on churches? 5 A . I believe that one of the characterizations made 6 in the public testimony was that some parishion- ers might choose not to attend churches in the 7 vicinity of adult motion picture theatres . 8 Q. But would wash -- was there any testimony the location of an adult theater would adversely 9 affect the church other than some people may not want to go to church? 10 A . To the best of my recollection, that ' s the gist 11 ' of the testimony that was heard. 12 (Page 43, Vol . II , Deposition of David Clemens) . 13 And with respect to public and quasi-public buildings, . Mr . Clemens 14 stated : 15 A. I. believe in particular the comment related to public parks and it followed the same general 18 area of concern as was related to schools. 17 Q. And you can' t identify what those impacts would be, just that people were concerned. 18 A . That' s correct. 19 (Pages 43-44, Vol . • II, Deposition of David Clemens) . When asked about the adverse impact ' adult uses were perceived to '21 have on businesses, Mr. Clemens replied : 22 23 Q. We talked about the adverse impact on businesses , I think, property values is one adverse impact 24 that businesses. perceived; is that right? 25 A. Yes . • 26 Q. Are there any other adverse impacts that you can describe to me today that were considered at the 27 time the Ordinance was adopted that the opera- tional , characteristics of an adult motion picture 28 theatre would have on businesses? •29 ' A. I can' t recall any at this time. • (Pages 44-45, Vol. II, Deposition of David Clemens ) . And finally , when asked to identify the adverse effects on neigh- 31 borhoods , Mr. Clemens said : ATTORNEYS AT LAW Hubbard, Burns &Mey+er Brief of Plaintiffs in A PROFESSIONAL SERVICE CORPORATION Support of Prelim. Injunction 1aoaN.E.3ath Place,st,ite1os • Kirkland,Washington 98033 Page 10 ,:•;; ;,e.-� j ,s • 1 Q. And what operational characteristics of an adult motion picture theatre would adversely affect 2 residential zones or uses? 3 • A. I believe it was the same area of concern as with schools and parks. 4 Q. In other words , somebody perceived there may be 5 adverse impacts but couldn' t identify what those specific effects or adverse impacts would be? 6 A . I can' t restate them for you, no. 7 (Page 45, Vol. II, Deposition of David Clemens) . 8 In conclusion, Mr . Clemens had to admit that there was no document , 9 recording or other evidence in the legislative history from which 10 the evils of which Ordinance No. 3526 was aimed could be discerned . 11 ' ( Page 46 , line 24-Page 47 , line 6, Vol . II, ' Deposition of David 12 Clemens) . 13 Plaintiffs submit that this legislative history (barren as 14 it is of any study, expert testimony, empirical evidence or 15 identifiable evil sought to be cured) cannot support a finding of a 16 compelling governmental interest sufficient to justify a content 17 based restriction on speech; nor will this history support the 18 over-restrictive means of these ordinances . The legislative body 19 has not chosen the. "least drastic means" of curing the evils at . 20 which the ordinance is aimed, if any in fact exist . 21 The failure of the City to demonstrate an adequate factual 1 22 basis for its conclusion that the removal of adult uses to obscure 23 locations will minify the evils at which it is aimed is 24 constitutionally fatal. 25 [T]he case would present a different situation had 26 Detroit brought' within the ordinance types of theatres that had not been shown to contribute to the 27 deterioration of surrounding areas . Young v. • American Mini Theatres, Inc. , supra. , at 71 (plural-_ 28 ity opinion) by implication, Id. , at 82 (Powell, J. , . concurring) . 29 Young, supra. , requires actual governmental interests, actually 30 considered upon a factual basis at the time the action is taken. 31 ATTORNEYS AT LAW Hubbard, Burns &Meyer Brief of Plaintiffs in A PROFESSIONAL SERVICE CORPORATION Support of Prelim. Injunction 10604 N.E.38th Place,Suite 105 • Page 11 Kirkland,Washington 98033 ,att ec ic3i, (2061828.3636 • 1 CLR Corporation v. Lowell Henline, et al. , 520 F. Supp. 760 (W.D. 2 Mich. 1981) . 3 In Schad v. Borough of Mount Ephraim, supra. , the court 4 said : • 5 . . . When a zoning ordinance infringes upon a pro- tected liberty, it must be narrowly drawn and must 6 further a sufficiently substantial governmental interest. . . . [T]he court must not only assess the 7 substantiality of the governmental interests asserted but also determine whether those interests could be 8 served by means that would be less intrusive on activity protected by the First Amendment. Schad v. 9 Borough of Mount Ephraim, supra. , at 2182-2184. 10 Cases decided since Schad have uniformly required empirical 11 ' evidence in order to establish a valid governmental purpose . Keego 12 Harbor Co. v. City of Keego Harbor, 657 F. 2d 94 (6th Cir. 1981 ) ; 13 Avalon Cinema Corp. v. Thompson, F.2d (8th Cir. , decided 14 December 12, 1981) ; CLR Corporation v. Lowell Henline, 520 F. Supp. 15 760 (W.D. Mich. 1981) ; and Fantasy Book Shop Inc. v. City of 18 Boston, 652 F.2d 1115, 1125 (1st Cir. , 1981) . 17 THE PRIMARY INTEREST OF THE CITY OF RENTON IN ENACT- 18 ING ORDINANCE NO. 3526 APPEARS TO _ BE A HOSTILITY TOWARDS PROTECTED SPEECH. 19 The preceeding argument presupposes that the motives of the 20 City of Renton were to regulate speech for compelling governmental 21 reasons rather than to suppress speech the city found distasteful. 22 The motives of the city are subject to judicial scrutiny and when 23 24 subjected to examination, •suggests that the real intent was moti- 25 vated by hostility to a particular kind of speech. This intent is 26 found in the city' s answer to Plaintiffs ' Amended And Supplement9. 27 Complaint and in the statements of the city' s counsel to the Court. 28 Defendants' Answer would have this Court determine that unnamed, unshown motion picture films are obscene. This suggestion 29 that Ordinance No. 3526 and Ordinance No. 3629 are nothing more 30 31 than obscenity or lewd conduct ordinances in disguise is' buttressed by counsel' s repeated references during oral argument on defen- ATTORNEYS AT LAW Hubbard, Burns &Meyer Brief of Plaintiffs in A PROFESSIONAL SERVICE CORPORATION ppInjunction tion 10604 N.E.Seth Place,Suite 105 • Support r t of Prelim.e l im. Kirkland,Washington 98033 Page 12 (206)823•:,".6 • dants ' Motion To Dismiss on March 12, 1982 that the City Council 1 intended to prevent introduction of a criminal nuisance into 2 Renton ' s environs. See pages 5 , 6, 7 , 16, 20, 21 and 22 of the 3 transcript. 4 • 5 THE CITY OF RENTON ORDINANCE NO. 3526 IS VOID AS A VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE 6 FOURTEENTH AMENDMENT AS INTERPRETED BY THE PLURALITY OPINION OF THE U.S. SUPREME COURT IN: Young v. 7 American Mini Theatres, 427 U.S. 50, BECAUSE OF THE FAILURE OF THE DEFENDANTS TO ASSERT ANY VALID 8 GOVERNMENTAL INTEREST TO JUSTIFY THE REMOVAL OF 9 EXISTING FREE PRESS FACILITIES TO OBSCURE GEOGRAPHIC LOCATIONS WITHIN THE CITY. 10 Since Young, a number of courts have dealt with the concept 11 ' of a restrained marketplace for adult materials . In E & B 12 Enterprises v. City of University Park, 449 F. Supp. 695 (N.D. Tex. 13 1977) , an adult zoning ordinance which lacked a grandfather clause 14 was struck down since there were only two areas of the city in 15 which the prohibited type films could be shown, one owned by the 16 city and the other already occupied commercially. In Bayside 17 Enterprises, Inc. v. Carson,, 450 F.Supp. 696 (M.D. Fla. 1978 ) , the 18 district court invalidated a zoning ordinance which had a grand- , 19 father clause but which strengthened the 1,000 foot restriction 20 from two other regulated uses (as in the Detroit ordinance) to a 21 2, 500 foot distance requirement from any church, school, or other 22 adult business . The court there concluded that: 23 The zoning plan as it now stands would effect, for 24 all practical purposes, a total ban on the establish- ment of new adult bookstores or movie houses . . . . 25 Bayside Enterprises, Inc. v. Carson, supra. , at 702. 26 Since the ordinance would effectively bar future access to the 27 adult entertainment market, it could not be sustained. In Purple 28 Onion, Inc. v. Maynard Jackson, 511 F.Supp. 1207 (1981) , Judge 29 Marvin H. Schoob found an Atlanta ordinance which required reloca- tion to certain zones and dispersal within those zones to be uncon- 31 stitutional. The court specifically found a four-year amortization ATTORNEYS AT LAW Hubbard, Burns &Meyer Brief of Plaintiffs in A PROFESSIONAL SERVICE CORPORATION Support of Prelim. Injunction 10604 N.E.38th Place,Site 1135 • Page 13 Kirkland,Washington 98033 (206)828.3636 • provision unconstitutional because confining adult businesses to 2 certain business districts of the city would significantly reduce 3 public access to sexually oriented material and entertainment in 4 Atlanta. • 5 Recently, in Alexander v. City of Minneapolis, F.Supp. 6 (Minn. 1982) , the court, citing Young, Schad and Avalon, struck 7 down •a zoning ordinance that went beyond a mere locational 8 ordinance but, rather, significantly curtailed the public ' s access 9 to adult books and films . Interestingly, and quite properly, the 10. court considered the viability of potential locations as part of 11 • its inquiry into the restrictive effect of the ordinance. 12 As the affidavits of Bruce Anderson and Robert F. Bond in 13 support of plaintiffs ' Motion For A Preliminary Injunction indi- 14 cate, the effect of Renton' s zoning ordinance on public access to 15 sexually oriented material is not incidental but ' is both real and 16 substantial. The effect of the ordinance is to require any adult 17 theatre within the City of Renton to locate in an obscure manufac- 18 turing district if available property can be found. There are no 19 available sites that a reasonably prudent investor owning an adult- 20 type business would consider as a possible site to establish such a • 21 business . The available locations are wholly unsuited for retail 22 ' Or commercial use. The available locations, if any, are so unus- 23 able or inaccessible to the public, that for all practical purposes 24 they amount to no location. 25 The restrictive impact of Ordinance No. 3526 is obvious from ; 26 the maps attached hereto as Exhibits 1 and 2. Exhibit 1 is the map 27 attached to David Clemens ' affidavit of January 27, 1982, which ' 28 purported to identify available locations within the City of 29 Renton. However, Mr . Clemens later . testified at his deposition 30 that his calculations were in error and that the shaded areas of 31 Exhibit 2 represent the only available locations under Ordinance ATTORNEYS AT LAW • Hubbard, Burns &Meyer Brief of Plaintiffs in • A PROFESSIONAL SERVICE CORPORATION Support of Prelim. Injunction 10604 N.E.38th Place,Suite 105 • • • Page 1 b Kirkland,Washington 98033 • • (206)828 3636 1 No. 3526 . As indicated by the affidavit of Bruce Anderson, no site 2 is available within the shaded areas of Exhibit 2 for purchase or 3 lease for a theatre location. 4 ORDINANCE NO. 3629 IS EQUALLY AS UNCONSTITUTIONAL AS 5 ITS PREDECESSOR AND SUFFERS FROM ADDITIONAL CONSTITU- TIONAL DEFECTS. 8 As a desperate, boot-strapping act, admitting the partial 7 unconstitutionality of Ordinance No. 3526, the City of Renton 8 enacted Ordinance No. 3629. This enactment included patently false 9 and unsupported factual findings as well as substantive changes to 10 cure constitutional defects in Ordinance No. 3526. This ordinance 11 ' is burdened with the same deficiencies as Ordinance No. 3526 as 12 discussed above. In addition, Ordinance No. 3629 does not cure the 13 deficiencies of Ordinance No. 3526, but , rather, broadens the 14 spectrum of challenges as follows : 15 A. Elimination of the criminal penalties for violation of 16 the ordinance does not cure its constitutional defects . 17 B. Ordinance No. 3629 operates as a classic prior restraint 18 of free speech. The Supreme Court has twice recently held that 19 nuisance statutes authorizing preliminary injunctions of indefinite 20 - duration or the padlocking of premises against the showing of 21 future unnamed films lacks the procedural safeguards demanded by 22 the First Amendment. Vance v. Universal Amusement Co. , 445 U.S. 23 308, 100 S.Ct . 1156 (1980) ; Spokane Arcades v. Brockett, 631 F. 2d 24 135 (9th Cir. 1980) , aff'd 102 S. Ct . 557 (1981) . 25 C . Ordinance No. 3629 ignores plaintiffs' vested zoning 28 rights . 27 D. Ordinance No. 3629, the amending ordinance, is void as a 28 .29 legislative act because the city council exceeded its authority in making it an emergency ordinance in violation of Article II , 30 31 Section 1(b) , Amendment VII of the Constitution of the State of • ATTORNEYS AT LAW Hubbard, Burns &Meyer Brief of Plaintiffs in A PROFESSIONAL SERVICE CORPORATION . Support of Prelim. Injunction 10604N.E.38th Place,Suite 105 Kirkland,Washington 98033 Page e 15 (?c5)828-3636 1 Washington. Article II , Section 1 (b) of , the Constitution of the , 2 State of Washington, provides : 3 The second power reserved bythe people is the refer- endum, and it may be ordered on any act, bill, law, 4 . . . except such laws as may be . necessary for the immediate preservation of the public peace, health or 5 safety, support of the state government and its existing institutions, . . . 6 . In commenting on this reservation of power by the people, the 7 Supreme Court of the State of Washington in State ex rel. Kennedy 8 v. Reeves, 22 Wn.2d 677, 157 P.2d 721 (1945) said : 9 We think it too clear to require argument that the 10 legislature cannot defeat the constitutional right, reserved by the people in the introductory paragraph 11 ' of Amendment VII, . . . by merely inserting in an act the statement included in Chapter 202, P. 579 , Laws 12 of 1945 , . . . 13 Such a . label may obviously be utterly and completely false. It would be scandalous indeed if the consti- 14 tutional right of referendum could be thwarted by the mere use of false labels. As was said in argument, 15 "if this can be done, the right of referendum is a dead letter in the state. " 16 In analyzing Ordinance No. 3629 and its "emergency clause", 17 in light of the decisions referred to above, it is clear that the 18 face of the act is patently devoid of any facts relating to an 19 emergency (with the exception of the emergency clause itself) . The 20 ordinance does nothing except to attempt to erase unconstitutional 21 portions of a zoning ordinance and it adds nothing to the substan- 22 tive laws of the City of Renton. On its face, the ordinance does 23 nothing that is necessary, for the immediate preservation of the 24 public peace, health and safety or for the immediate support of 25 26 city government and its existing public institutions . Simply put, no emergency existed to justify the emergency clause of this amend- 27 irfg ordinance. In addition, there is nothing within the judicial 28 • knowledge of this court which would render the legislation 29 "emergent" . • 30 31 Legislation passed in violation of .a constitutional mandate • is an unlawful exercise of legislative authority and is therefore ATTORNEYS AT LAW Hubbard, Burns &Meyer A PROFESSIONAL SERVICE CORPORATION Brief of Plaintiffs In Support of Prelim. Injunction 10604N.E.38th Place,Suite lo5 • Page 16 Kirkland,Washington 98033 (206)8 t6.3636 4. 1 void. See , Puget Sound Alumni of Capa Sigma Inc. v. Seattle , 70 i ' 2 Wn. 2d 222, 422 P. 2d 799 ( 1967) ; Swartout v. Spokane, supra. ; and 3 Spokane v. Harris , supra. The savings clause, Section V, does not 4 operate to save the other provisions of the ordinance . The entire 5 ordinance is void because it was enacted as an unlawful exercise of 6 legislative authority. Swartout v. Spokane, 21 Wash. App. 665 , I 7 673 , 586 P.2d 135 (1978) . 8 THE ORDINANCE IN QUESTION IS UNCONSTITUTIONAL AS 9 WRITTEN AND/OR APPLIED IN THE CONTEXT OF THE FIRST AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES IN 10 THAT THE TOTAL ABSENCE OF OBJECTIVE STANDARDS UNDER WHICH THE HEARING EXAMINER AND CITY COUNCIL MAY ACT 11 ' IN DETERMINING WHETHER TO GRANT OR DENY A CONDITIONAL USE PERMIT, VESTS CITY OFFICIALS WITH VIRTUALLY UN- 12 LIMITED DISCRETIONARY POWER, AND THEREBY EFFECTIVELY IMPOSES A PREVIOUS RESTRAINT UPON FIRST AMENDMENT 13 RIGHTS AS APPLIED TO THE PLAINTIFFS. 14 Ordinance Nos. 3526 and 3629 create a new zoning use classi- 15 fication: i.e . , adult motion picture theatre. [Section I(2) ] The 16 ordinances go on in a negative fashion to describe where such a use 17 may not locate. 18 Within the zoning classifications of the City of Renton, 18 there is no zone where an "adult motion picture theatre" may locate 20 as a matter of right. This includes the areas identified by the 21 City of Renton as "areas where Ordinance No. 3526 does not apply" 22 ( see Exhibit to Affidavit of David R. Clemens) . While defendants 23 insist that it is a well-publicized fact that such use is permitted 24 as a matter of right in the B-1 and more intensive use, zones, the 25 facts do not bear this out . Section 4-711 (attached as Exhibit 3) 26 of the Renton Zoning Code sets forth the permissible uses in the 27 B-1 zone. A theatre use is not included. 28 At his deposition, Mr. Clemens could not identify any docu- 29 ments supporting the "well-publicized administrative position" 30 other than the pleadings in this case. (Pages 74-75 , Vol. I, 31 Deposition of David Clemens ; see also pages 29-31, Vol . II, Deposi- ATTORNEYS AT LAW Hubbard, Burns &Meyer Brief of Plaintiffs in A PROFESSIONAL SERVICE CORPORATION Support of Prelim. Injunction 10604 N.E.313th Place,Suite 105 • Page 17 Kirkland,Washington 98033 (206)0213-n3F • I • • • • tion of David Clemens) . Proceeding, as we must, under the fact 2' that an adult motion ' picture ,theatre is not permitted as a matter • 3 of right in the B-1 zone, the appropriate procedure is to obtain a 4 conditional use permit to operate in that zone or any more inten- 5 sive use zone. (Page 77 , lines 23-25, Vol . I, Deposition of David 6 Clemens) . 7 Section 4-722(F) , (Exhibit "4") , provides power to the hear- 8 ing examiner to grant. conditional use permits . The purpose of a 9 conditional use permit is to assure that compatabili.ty of uses is 10 maintained, considering . other existing and potential uses within 11 ' the general area of the proposed use. The hearing examiner has the it 12 discretion to deny an application. if the characteristics of the 13 intended use would create an incompatible condition. The standards 14 to be used in granting or denying a conditional use permit are set 15 forth in Section 4-722( F) (3) and are attached hereto as Exhibit 16 "4" . These standards are far from being precise and capable of 17 objective measurement. There are no written objective criteria for 18 the hearing examiner to use in 'making his determination. (Pages 19 87-89 , Vol. I, Deposition of David Clemens) . The hearing 20 examiner' s _ decision would be virtually totally discretionary. 21 (Page 32, lines 8-13, Vol. II, Deposition of David Clemens) . • 22 . While an administrative determination is appealable to the 23 courts , the hearing , examiner' s decision relative to a conditional 24 use permit is appealable only to the City Council, which is not 25 required to act within any reasonable time so as to avoid the . 26 possibilities of a prior restraint on free speech. (Page 33, lines , 27 1420, Vol. II, Deposition of David Clemens) . As a consequence , 28 the only way plaintiffs or any First Amendment protected adult 29 theatre operator could locate within' the City of Renton is by sub- 30 jecting itself to standardless , discretionary, administrative 31 procedures of a potentially unlimited duration. These procedures , ATTORNEYS AT LAW • Hubbard, Burns &Meyer . Brief of Plaintiffs in A PROFESSIONAL SERVICE CORPORATION Support of Prelim. Injunction 10604 N.E.311th Place,Suite 105 • Page 18 Kirkland,Washington 98033 (206)828-3636 • . 1 criteria and guidelines are unconstitutional when applied to First 2 Amendment activities. 3 Where zoning-conditional use ordinances are used to regulate 4 the operation of adult businesses , the same definite and objective 5 guidelines must be used for the issuance of permits as for the 6 issuance of licenses for conduct protected by the First Amendment . 7 Ebel v. City of Garden Grove, 120 Cal.App.3d 399, 176 Cal .Rptr . 312 8 ( 1981) ; City of Imperial Beach v. Palm Avenue Books, Inc . , 115 9 Cal.App.3d 138, 171 Ca1 .Rptr . 197. The rules from the licensing 10 cases are well established. A long line of decisions have held 11 ' unconstitutional ordinances governing the issuance of licenses or 12 administrative procedures to conduct activities touching upon First 13 Amendment freedoms which were susceptible of sweeping and improper 14 application by granting to an official or group of officials exces- 15 sive discretion in determination whether to grant or deny the 16 license. See : Staub v. City of Baxley, 355 U. S. 313 (1957) ; 17 Schneider v. State, 308 U.S. 147 (1939) ; and Hague v. CIO, 307 U.S. 18 496 (1938) . The same resulted where the ordinances provided that a 19 permit could be granted for the distribution of religious publica- 20 tions if the city officials deemed it "proper and advisable, " or 21 where the cause for which the applicant desired to solicit was 22 "r,eligious", Largent v. Texas, 318 U. S. 418 (1942) ; Cantwell v. 23 Connecticut, 310 U. S. 296 (1939) . Ordinances were held unconstitu- 24 tional where no standards whatsoever were set forth to circumscribe 25 the discretion of officials in granting or denying licenses , Kunz 28 v. New York 340 U.S. 290 (1950) ; Saia v. New York, 334 U.S. 558 27 (1947) , And see : Lovell v. Griffin, 303 U.S. 444 (1937) ; 28 Niemotko v. Maryland, 340 U.S. 268 (1950) ; Shuttlesworth v. 29 Birmingham, 394 U. S. 147, 150-151, n. 2 (1969) . 30 Also see: Seattle V. Bittner, 81 Wn.2d 747 (1973) ; Fine 31 Arts Guild, Inc . v. Seattle, 74 Wn.2d 503 (1968) ; Wortham v. City ATTORNEYS AT LAW Hubbard, Burns &Meyer Brief of Plaintiffs in A PROFESSIONAL SERVICE CORPORATION Support of Prelim. Injunction 10604 N.E.38th Place,Suite 105 • Page 19 Kirkland,Washington 98033 (206)°24-36?5 • • 1� 1 • 1 of Tucson, 624 P.2d 334 (Ariz. App. 1980) ; Williams v. City and 2 County of Denver, 607 P.2d 981 (Colo. 1979) ; Talk of the Town 3 Bookstore v. City of Las Vegas , 553 P.2d 959 (Nev. 1976) ; People of 4 New York v. Mitchell , 346 N.Y. S.2d 495 , 74 Misc.2d 1053 (1973) . 5 The inclusion of patently vague criteria on the one hand and 6 total absence of standards on the other indicates the impossibility 7 of precision or objective measurement, the minimum criteria which 8 the United States Supreme Court has determindd to be essential to g the validity of any ordinance touching upon First Amendment rights . 10 Thus , the provisions at issue fail to meet the same criteria and, 11 ' therefore, are unconstitutional . 12 13 CONCLUSION 14 For the foregoing reasons, plaintiffs respectfully submit 15 that plaintiffs have demonstrated a probability of success on the 16 merits , that the balance of hardships tips in their favor and this 17 Court should enter a preliminary injunction against the enforcement 18 of City of Renton Ordinance Nos . 3526 and 3629 and deny defendants ' 19 Motion For Summary Judgment. 20 DATED this 1 lay of June, 1982. 21 Respectfully submitted, HUBBARD, BURNS & MEYER 22 • 23 BY ac R. Burns 24 Atto ney for Plaintiffs 125 26 27 28 29 30 31 ATTORNEYS AT LAW • Hubbard, Burns &Meyer Brief of Plaintiffs in A PROFESSIONAL SERVICE CORPORATION Support of Prelim. Injunction 10604N.E.ashn Place,Suite 105 • Kirkland,Washington 98033 P age 20 ,.::i (206'029-3636 . . . i . • •. ink. 1 INIk . It A II , , .... , L... I .• ,..w , ; 111 %• AiLk . _____ _r___ _. • , . .... em ea 1 _____ ____ ____ 0 ILL I ilii I • :11 Ilk _ i II: -. .I • --\., AREAS WHERE ORD.# 3528 DOES NOT APPLY -1 • I , \ 1 Illirmf a - ''406„10-31.'N LAI ..\ . 111, gr:. Zig . qr -.11P411Sql‘ WASHING*N . 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(r:::---'•:.;;,••‘ 111 .1411111.) 1 ni1t11_,-- "' ' Hp / ... 1 i '' ' ,.. \\. N . ‘, Jrtiiflifil IV '6011111101, i-lEAJIII ,-“- - iiiiii 111111111.„ - ., .. .1 , 1 -..L '.-- ,F. \ Zk' . • • ,I..,,- Tr1.11111..,,:Am1111, .IIII '. ....nTrrl rj1.(111.„„"IIIIIII _,-If ___ ..-- 1 r---..:._ . %. . •A 4-710 4-711 requirements: A. Front Yard. There shall be a minimum front yard of twen eet (20'). Any yard abutting a public right of way shall be a minimum enty feet (20'). B. Side Yard. The side yards shall be a mini, n n of five feet(5'). C. Rear Yard. The rear yard shall . - : minimum of ten feet (10') except that if the property is contiguous • a zone with a more restrictive rear yard requirement, the minim ear yard requirement shall be the same as the more restrictive zone. D. Heig . he height limit shall be no more than four (4) stories with a forty • - 1-18-71) 4-711: B-1 BUSINESS DISTRICT: • A. In the B-1 Business District, no building, structure or premises shall be used or hereafter erected or structurally, altered unless otherwise provided for in'this • Chapter, except for one or more of the following or similar uses: (1) Any use permitted in Residence District R-2, Residence District R-3 and Apartment Houses and Multiple Dwellings District R-4 (but excluding'any residential family dwelling uses specified in Residence District R-1) but any such use herein permitted in a R-2, R-3 and R-4 District shall be subject to all limitations and restrictions, including height and setback requirements as are applicable in the R-4 District. • • (2) Banks. (3) Barber shops, beauty parlors, personal service shops. (4) Furniture stores, drug stores. (5) Laundries, clothiers, cleaning and pressing establishments. (6) Locksmiths, shoe and other repair shops. (Ord. 2023, 4-15-63) (7) Lumber yards and fuel yards, allowed by special permit following approval by the Hearing Examiner after public hearing thereon and acceptance of the design and an examination of the location with a finding that such proposed use is in compliance with all provisions, regulations and standards and will not be unduly detrimental to adjacent surroudning properties and enjoyment thereof; provided that when unhoused they shall be surrounded by an eight foot (8') solid wall c:r sight-obscuring fence herein known as a structure, and the yard regulations of this district shall be observed and, provided further, that • 562;1265;1069;1269;271;774;976;277 • • I • • • • . I Exhibit 3 4-711 4-711 ,/ A,7) no such lumber yard or fuel yards shall be maintained closer than one hundred feet (100') to the side lines of residential districts. (Ord. 3101, 1-17-77, eff. 1-1-77) (8) Police and fire stations. (9) Parking lots. (10) Printing establishments. (11) Public garages, repair shops and battery service stations and tire repair shops. (12) Restaurants, cafeterias and caterers. (13) Retail trade shops, arts and crafts shops or stores or combinations thereof. (14) Sales room or store rooms for motor vehicles and other articles of merchandise. (15) Service stations. (16) Stores, shops, retail and wholesale markets, of all'-types or a'rry combination thereof. (See following page for remainder of Chapter) ; • • 562;1265;1069;1269;271;976;277 -T. - • j' 4-711 • 4-712 A) 17. Studios, offices, business or professional. 18. Telephone exchanges, telegraph offices and employment'agencies. 19. Undertaking establishments. (Ord. 2023, 4-15-63) 20. as amended: Mobile home parks as provided in the Mobile Home Park Ordinance, known as Chapter 20, Title IV, may be allowed by special permit if approved by the Hearing Examiner after public hearing thereon, the acceptance of the design, and an examination of the location with a finding by the Hearing Examiner that such proposed use will not be unduly detrimental to adjacent and surrounding properties and the enjoyment thereof. (Ord. 3101, 1-17-77, eff. 1-1-77) 21. Self service storage facilities contained entirely within one building may be allowed by special permit, upon recommendation by the Hearing Examiner and approval by the City Council, after public hearing thereon and acceptance of the design and approval of the site plan, including but not limited to the landscaping and screening from adjacent properties, with a finding that such proposed use is in compliance with all provisions, regulations and standards and is compatible with the uses in the general area, and will not be unduly detrimental to adjacent surrounding properties and the enjoyment thereof. (Ord. 3333, 7-9-79) • B. Signs are permitted only as specifically provided in the "Renton Sign Code" also known as Chapter 19 of Title IV (Building Regulations) of Ordinance No. 1628. (Ord. 2023, 4-15-63) C. Height Limit: Whenever any B-1 District is contiguous to any single family residence or suburban residence district, the buildings in such B-1 District shall be limited to the height of thirty five feet (35'), plus additional twenty five feet (25') by special permit after public hearing and examination of the location, upon due proof to the satisfaction of the City Hearing Examiner that such additional height will not be unduly detrimental to the adjacent and surrounding property. No building shall exceed a height of ninety five feet (95'). (Ord. 2023, 4-15-63; amd. Ord. 3101, 1-17-77, eff. 1-1-77) D. Front Yard and Side Yards: No yards are required except for lots whose side line is adjacent to a residential district where said yard regulations shall then be the same as in the residential district; front yard shall conform to adjacent residences, side yard to be not less than five feet (5'), side yards on adjacent streets to conform to front yards of residences to the rear but to be not less than ten feet (10') and rear yard shall not be less than ten feet (10'). 4-712: .-1 th3-HTfND1JST Y DI•STRtCT. in the L-1, Light IriJu,try Dis ' t no building or premises shall be used and no building shall reafter erected or structurally altered unless otherwise provided in this C er, except for ' one or more of the following or similar uses. (Ord. 2023, 4-15- A. Use Permitted: • • 1. Any use permitted in istricts except item 21, Mobile Home Parks. (Ord. 2522, 11-24-69 2. An manufacturing using power not in excess of five (5) H.P. in one • • 3. Auto assembly plants. 1069;1269;976;277;979 . •• . • ' 1 • . 4-722 4-722 (E) T gray -of temporary permits for structures and uses that do_ rm with the regulations herein prescribed. .A tem mil shall be granted for a maximum period up_j o—f years and may include any conditions imposed_b.y--the'•f earind Examiner. (Ord. 2630, 4-26-7 i; nmd. Ord. 3101, (F) Conditional Use Permits. Upon proper application, the Hearing Examiner may grant conditional permits for such uses as require them under this Title. • 1. Purpose of a Conditional Use Permit: The purpose of a conditional use permit shall be to assure, by means of imposing special conditions and requirements on development, that the compatibility of uses, a purpose of • this Title, shall be maintained, considering other existing and potential uses within the general area of the proposed use. The Examiner may deny any application if the characteristics of the .intended use would create an incompatible or hazardous condition. Except as provided in Section 4-722 (F) (3) (m), the Hearing Examiner shall not use a conditional use permit to reduce the zoning requirements of the zone in which the use is to locate. Such reduction of requirements shall be accomplished only through 'the medium of a variance. The Examiner shall have the right to limit the term and duration of any such conditional use permit and may impose such conditions as are reasonably necessary and required. The conditions imposed shall be those which will reasonably assure that nuisance or hazard to life or property will not develop. 2. Additional Uses Permitted: The Examiner may, after a public hearing, permit the following uses in districts from which they are prohibited by this Chapter where such uses are deemed essential or desirable ,to the public convenience or welfare and are in harmony with the various elements or. objectives of the comprehensive plan: (a) Cemetery, columbarium, crematory or mausoleum (b) Development of natural resources (excluding the drilling for or producing of oil, gas or other hydrocarbon substances) together with the necessary buildings, apparatus, or appurtenances incident thereto. " (c) Educational institution, public or private (d) Government offices and facilities (Federal, State and local) • 571;277;181 • • • • • • `.. ` Exhibit , `� �' 4-722 4-722 F,2) (e) Hospital, sanitarium or simil+. s.ises (f) Public or nonprofit library or museum (g) Nursery or greenhouse (h) Park, playground, or recreational or community center (i) Philanthropic institution • (j) Private club, fraternal or nonprofit organization • (k) Public utility use or structure (I) Radio or television transmitter (m) Permit a less restricted. use in a more restricted district as follows, provided such use, due to its limited nature, modern devices, or building design will be no less objectionable than the uses permitted in such district: • (1) Any B-District use in the P-1 District (2) Any L-1 District use in the B-1 District • (3) Any H-1 District use in the L-1 District 3. Considerations, Finding and Determination: In reviewing conditional use permit applications, the Hearing Examiner shall be empowered to approve, conditionally approve or disapprove said conditional use permit applications based on normal planning considerations, including but not limited to the following factors: (a) Suitabilityof site; (b) Conformance to the comprehensive plan; (c) Harmony with the various elements or objectives of the comprehensive plan; (d) The most appropriate use of the land through the City; (e) Stabilization and conservation of the value of property; • 571;277;181 • • • • . I 4-722 4-722 F,3) (f) Traffic flow; • (g) Circulation; (hi Safety for vehicular and pedestrian traffic; (i) Imposition of noises, odors and health and safety hazards upon nearby residential area; • (j) Provision of adequate light, air and reasonable access; . (k) Securing safety from fire and other dangers; I (1) Prevent overcrowding of land; (m) Facilitating adequate provision for transportation and in general, to promote the public health, safety, and welfare; , . (n) Prevention of neighborhood deterioration and blight; • (o) The objectives of zoning end planning in the community; (p) The effect upon the City's general welfare of this proposed use in relation to surrounding uses and the community. 1. The Hearing Examiner shall• have the authority to grant varianc-: rom the provisions of this Title where the proposed developmen - •.uires or required any permit or approval as set forth in Chapter 3$ • Title IV. The Board of Adjustment shall have authority to gr. • variances from the provisions of this Title upon application to th :uilding Department where no approval or permit is required for the . .posed development which must be granted by the Examiner pursuan • Chapter 30, Title IV. The Board of Adjustment shall have no auth• . y to vary the terms or conditions of any permit, recommendation o . ision issued by the Hearing Examiner. 2. A property -ner, or his duly authorized agent may file an application for a varia which application shall set forth fully the grounds therefor and the deemed to justify the granting of such variance. Notice of the ,ap iit.dt Un shall LC y;vrini , • • ' I 571;277;181 OF R4,� ti 1 OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON U to _ �: 'Z �ti/.y. POST OFFICE BOX 626 100 2nd AVENUE BUILDING • RENTON.WASHINGTON 98055 255-8678 ao '` ^' LAWRENCE I.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY �9,0 `o' DAVID M. DEAN, ASSISTANT CITY ATTORNEY 09gT�0 SEPT -���P June 21 , 1982 MARK E. BARBER, ASSISTANT CITY ATTORNEY • TO : Barbara Y. Shinpoch, Mayor Members of City Council FROM: Daniel Kellogg, Assistant City Attorney Enclosed please find a copy of our Reply Brief which is being filed in response to Mr. Forbes ' Brief for purposes of the Motion hearing on Wednesday, February 23, 1982. For your information, both parties have filed dispositive motions . .Mr. Forbes' Motion is for issuance of a preliminary injunction to restrain the City from enforcement of its ordinances. The City has filed a motion for Summary Judgment asking that the Court order that Mr. Forbes is not entitled to the relief which he hadrequested as a.matter of law. In other words , we are asking the Court to find that our ordinances are constitutional. . If Mr. Forbes is successful, we may expect that he will commence showing his pornographic movies immediately. If our motion. is granted, Mr. Forbes' case will be dismissed. Please contact our office if .you have any further questions.. Daniel Kellogg DK:nd Encl . I cc : City Clerk Dave Clemen• MagistraL, Sweigert 1 June 23 , 1982 1 : 30 p .m. 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON . 9 AT SEATTLE 10 PLAYTIME THEATRES, INC. , a ) 11 Washington corporation , et al . , ) ) NO. C82-59M 12 Plaintiffs , ) ) DEFENDANTS ' REPLY BRIEF IN 13 vs . ) OPPOSITION TO MOTION FOR ) PRELIMINARY INJUNCTION AND 14 THE CITY OF RENTON, et al . , ) IN SUPPORT OF DEFENDANTS ' ) MOTION FOR SUMMARY JUDGMENT 15 Defendants . ) ) 16 ) THE CITY OF RENTON, a ) 17 municipal corporation , ) ) NO. C82-263 i. 18. Plaintiff, ) ) 19 vs . ). ) 20 PLAYTIME THEATRES, INC. , a ) Washington corporation , et al . , ) 21 ) Defendants . ) 22 ) 23 I . INTRODUCTION. 24 For purposes of this motion only, Defendants shall assume 25 that Plaintiffs are offering to exhibit films which are protected 26 i by the First Amendment . In that guise of First Amendment ,I 27 protection , Plaintiff appears to be attempting to require the 28 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. TO MOTION FQR PRELIMINARY INJUNCTION AND ATTORNEYS AT LAW too ao. SECOND ar., P. O. BOX axa IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 SUMMARY JUDGMENT PAGE 1 266-8678 1 City of Renton to assure that Plaintiff will be able to locate 2 its theaters at locations which , in Plaintiffs ' opinion , are 3 suitable , without regard to zoning considerations which the City 4 must make on behalf of all of its residents and businesses . No 5 other enterprise could advance such a preposterous notion . Even 6 the First Amendment does not require that the City repeal the 7 laws of the marketplace ( such as "supply and demand" and the rule 8 that private parties may not be required to sell or lease to , or 9 be associated, with Plaintiffs ' trade) in order to assure that 10 Plaintiff can operate its business within the City of Renton . 11 The City' s duty is only to enact laws which assert valid 12 governmental interests , and which impose no substantial burden on 13 protected expression . Plaintiff is entitled to' no guarantee to be 14 free from economic loss . 15 II . PRELIMINARY INJUNCTION 16 A. The purpose of a preliminary injunction is to preserve the status 17 quo. 18 A preliminary injunction is an extraordinary remedy, the 19 nature and purpose of which is to "preserve the status quo 20 pending a . determination of the action on the merits ." King vs . 21 Saddleback Jr . College District , 425 F. 2d 426, 427 (9th Cir . 22 1970) , citing Washington Basketball Club , Inc . vs . Barry , 419 F . 23 2d 472 (9th Cir . 1969 ) ; Los Angeles Commission vs . NFL, 634 F. 2d 24 1197 , 1200 (9th -Cir . 1980) . In this case the issuance of a 25 preliminary injunction will not preserve the status quo . Just as 26 at the hearing upon the Plaintiff' s request for a Temporary 27 Restraining Order , the status quo is that the Plaintiff is not 28 showing pornographic movies . The Plaintiff' s use of the theaters DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. TO MOTION FOR PRELIMINARY INJUNCTION AND ATTORNEYS AT LAW f00 SO. SECOND 9T., P. O. BOX 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 255-8678 SUMMARY JUDGMENT PAGE 2 1 in question for the exhibition of movies which are not violative 2 of the ordinances of the City of Renton has continued throughout 3 these •proceedings . 4 B. The Plaintiff cannot satisfy the test for issuance of a Preliminary 5 Injunction . 6 The 9th Circuit employs two different tests to determine 7 whether a preliminary injunction should issue . The first , and 8 most common test , includes four factors : ( 1 ) There must be a 9 substantial likelihood that the plaintiff will ultimately prevail 10 on the merits of his claim; (2) The injunction must be necessary 11 to prevent irreparable injury ; (3) The threatened injury to the 12 . plaintiff must outweigh the harm the injunction might do to the 13 defendants ; and ( 4 ) The entry of the injunction must be I , 14 consistent with the public interest . Friends of the Earth , Inc. 15 vs. Coleman , 518 F. 2d 323, 330 (9th Cir . 1975) ; King vs . 16 Saddleback Jr . College District , supra; Henry vs . First National 17 Bank of Clarksdale , 595 F. 2d 291 , 302 (5th . Cir . 1979) , reh. den . , l 18 601 F. 2d 586, cert. den. 444 U. S. 1974, 100 Sup. Ct . 1020. See 19 also Columbia Basin Protection Association vs . Kleppe , 417 F. 20 Supp . 46 (E. D. Wash. 1976) ; Sierra Club vs . Hathaway , 579 F. 2d 21 1162 (9th Cir . 1978) . 22 The second test is the two-prong test set forth in Wm. 23 Inglis & Sons Baking Company vs . ITT Continental Baking Company , 1 24 526 F. 2d 86 (9th Cir . 1975 ) . There the Court indicated that the ' 25 'moving party must - demonstrate either ( 1 ) a combination of 26 probable success on the merit and the possibility of irreparable 27 injury , or (2) that serious questions are raised and the balance 28 of hardship tips sharply in its favor . DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & K ATTORNEYSS A AT . P.S. T LAW AW i TO MOTION FOR PRELIMINARY INJUNCTION AND 1OO SO. SECOND ST.. P. O. BOX 62E IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98037 235-8878 O lIM ADV T11Tr CUT onrC -) • 1 In applying these tests , the Court must keep in mind that 2 pK-Ita11/40 Vutka. 24 f it( 6.4L.k-Ui act 3 must be based upon established equitable grounds . "The grant of 4 a preliminary injunction is the exercise of a very far-reaching 5 power never to be indulged in except in a case clearly warranting 6 it" . Sierra Club vs . Hickle , 432 F. 2d 24 (9th Cir . 1970 ) ; Dymo 7 Industries , Inc . vs . Tapeprinter , Inc . , 326 F . 2d 141 (9th Cir . 8 1964) . A preliminary injunction should not issue if there is an 9 adequate remedy at law. Los Angeles Memorial Coliseum Commission 10 vs . NFL, 634 F. 2d 1197, 1202 (9th Cir . 1980) ; Germon vs . Times 11 Mirror Co .,, 520 F . 2d 786 (9th Cir . 1975) . 12 C. Plaintiff must bear the burden of proof of "convincing presentation" to 13 establish necessity of injunctive relief. 14 1 The plaintiff must bear the burden of proof to establish 15 its right to injunctive relief by something more than a 16 preponderance of the evidence . In the case of Sierra Club vs. 17 Hickle , supra , the Court required a "convincing presentation ." 18 In the case of Friends of the Earth , Inc . vs . Coleman , supra , the 19 court required the plaintiff to show a "strong likelihood" or 20 "reasonable certainty" that he will prevail on the merits . 21 D. The cases relied upon by the 22 Plaintiff are distinguishable . 23 Plaintiffs rely upon the cases of 414 Theater Corporation 24 vs . Murphy , 499 F. 2d 1155 (2nd Cir . 1974) , and Citizens for a 25 Better Environment vs . City of Park Ridge , 567 F. 2d 689 ( 1975) . 26 In 414 Theater Corporation the adult- use had existed for 27 five years prior to the institution of the criminal prosecutions 28 against which injunctive relief was requested . Furthermore , the WARREN & KELLOGG. P.S. DEFENDANT 'S REPLY BRIEF IN OPPOSITION ATTORNEYS AT LAW TO MOTION FOR PRELIMINARY INJUNCTION AND Ioo 60. SECOND BT.. P. O. BOX 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON, WASHINGTON 98057 255-8678 SUMMARY JUDGMENT PAGE . 4 1 regulation complained of was a city-wide licensing requirement . 2 rii: a y , one regulation vested sole discretion in an 3 administrator for issuance of the license . In this case , the 4 ordinance pre-dated the proposed use . The ordinance is not a 5 total ban upon protected expression within. the City of Renton , 6 but is merelytime , a place and manner restriction . The 7 regulatory scheme vests no administrative discretion which is 8 subject to arbitrary and standardless review . 9 In the case of Citizens for a Better Environment , the 10 regulation complained of was also a city-wide ban against 11 solicitation for funds. There the plaintiffs had no opportunity 12 . to express their First Amendment rights while awaiting a 13 determination of the constitutionality of the blanket 14 restriction. In the instant case , there is no deprivation of 15 constitutionally protected rights except in those locations which 16 are proscribed by the ordinances . Other areas of the City remain 17 available for free expression of adult oriented erotic material . 18 E. Issuance of a preliminary injunction is incompatible with the public I 19 interest. 20 In this case , the element of consistency with the public 21 interest required by the 9th Circuit should be of particular 22 concern to the Court , particularly in view of the status quo of 23 this fact situation . 24 III. YOUNG VS . AMERICAN MINI THEATERS . 25 A. The mandate of Young remains 26 unabated . Plaintiff must in some fashion overcome the mandate of 27 28 Young vs . American Mini Theaters , 427 U. S. 50, 96 S. Ct . 2440, 49 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & K ATTORNEYSS A AT . P.S. T LAW AW TO MOTION FOR PRELIMINARY INJUNCTION AND 10060. SECOND ST.. P. O. BOX 626 RENTON. WA5HINGTON 98057 IN SUPPORT OF DEFENDANT 'S MOTION FOR 255-8878 1 L. Ed . 2d 310 ( 1976) . See also Nortland Cinema , Inc . vs . 2 Seattic , 7, 2 73; , T. 2d i i53 •i i '( ) , cert . ,:t,: . qm i 3 U . S. 946. Plaintiff dedicated to an attempt to discredit that 4 holding by citation from the dissent and emphasis upon the 5 plurality nature of the opinion . 6 Justice Powell concurred in Parts I and II of the opinion 7 written by Justice Stevens . Young , supra , at 73. Part I holds 8 that the language of the Detroit ordinance (which is virtually 9 indentical to the language of the Renton ordinances) is not 10 unconsitutionally vague as to the theater operators who ( like the 11 Plaintiff here) propose to offer adult film fare on a regular 12 basis . Young, at 59. Furthermore , complaints of vagueness may 13 ..not be raised on behalf of others if the regulations deterrent 14 effect on legitimate expression is not "both real and 15 substantial" and the regulation is "readily subject to a 16 narrowing construction by the state courts ." Young , at 60 , 17 quoting from Drznoznik vs. City of Jacksonville , 422 U. S. 205, 18 216, 95 S. Ct . 2268, 45 L. Ed . 2d 125. 19 Part II of the plurality opinion contains the essence of 20 the court ' s decision relating to the power of the municipality to 21 control the location of theaters exhibiting sexually explicit 22 material . There the court noted that the -ordinance imposed no 23 limit upon the total number of adult theaters which may operate ' 24 in the City, and that " . . . the market for this commodity is 25 essentially unrestrained ." Young , at 62. The Court concluded : 26 " . . . we have no doubt that the municipality may control the location of theaters as well as the ' 27 location of other commercial establishments , either by' confining them to certain specified commercial 28 zones , or by requiring that they be dispersed 1 DEFENDANT S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. 1 ATT TO MOTION FOR PRELIMINARY INJUNCTION AND 100>!O ONDE AT L . SECOND ST.. P. O.O BOX 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 255-8678 SUMMARY JUDGMENT PAGE 6 1 throughout the City . The mere fact that the commercial exploitation of material protected by the licensing requirements , is not a sufficient reason 3 for invalidating these ordinances ." n 4 . • . . 5 " Reasonable regulation of the time , place and manner of protected speech , where those regulations 6 are necessary to further significant governmental interests , are permitted by the First Amendment . . . . " 7 At 62-63. 8 The holding of the Young court is thus a majority decision , g notwithstanding Plaintiff' s valiant attempts to dilute its 10 impact . 11 Justice Powell ' s concurring opinion commends the Detroit 12 type ordinance as " . . . an example of innovative land use 13 regulation , implicating First Amendment concerns only 14 incidentally and to a limited extent ." At 73. Through reliance 15 upon the four-part test of United States vs . O 'Brien , 391 U. S. 16 367, 88 Sup. Ct. 1673, 20 L. .Ed . 2d 672 (1968) , Justice Powell 17 reached the identical conclusion as that of the plurality 18 opinion---that this particular strategy of urban planning has no 19 significant effect upon accessibility. of erotic material . 20 Therefore the ordinance did not constitute a stifling of 21 expression . Stevens , J . , at 34 , n . 35 ; Powell , J . , at 80 , n . 4 . 22 B. The Renton Ordinances meet the standards set forth in United States 23 vs . O'Brien . . 24 The ordinances in question here also satisfy Justice 25 Powell 's analytical approach, which would apply the four-part 26 test of O'Brien , supra . First , enactment of the ordinance is 27 within the police power of the City of Renton . Second , as noted 28 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. TO MOTION FOR PRELIMINARY INJUNCTION AND ATTORNEYS AT LAW 100 80. SECOND ST.. P. O. BOX 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 SUMMARY JUDGMENT PAGE 7 255-8678 - i by Justice Powell , the interests furthered by the adoption of the 2 ordinarnnac am `^+^^rt c1.1-,c+- n.-.4- 4 -_1 3 "Without stable neighborhoods , both residential and commercial , large sections of a modern City quickly 4 can deteriorate into an urban jungle with tragic consequences to social , environmental and economic 5 values . While I agree with respondents that no aspect of the police power enjoys immunity from 6 searching constitutional scrutiny , it also is undeniable that zoning , when used to preserve the 7 character of specific areas of a City, is perhaps ' the most essential function performed by local 8 government , for it is one of the primary means by which we protect that somtimes difficult to define 9 concept of quality of life '" . Young , at 80 . (citation omitted) . 10 Third , the governmental interest asserted is entirely 11 unrelated to the suppression of free expression . Ordinance No . 12 3526 was enacted nearly one year before Plaintiff announced its 13 intention to operate an adult motion picture theater within the 14 City, and after a period of study which pre-dated the enactment 15 of the ordinance by nearly another year . Had the City Council 16 intended to restrict the message purveyed by adult theaters , the 17. legislation adopted would have completely prohibited their 18 location , or substantially restricted their number . 19 Finally, the incidental restriction upon Plaintiffs claimed 20 First Amendment rights is not greater than is essential . The 21 restrictions imposed are the product of careful legislative study 22 in order to protect the quality of life enjoyed by residents . As 23 . the Supreme Court stated : 24 . . the city' s interest in attempting to preserve 25 the quality of urban life is one that must be accorded high respect . Moreover , the city must be 26 allowed a reasonable opportunity to experiment with solutions to admittedly serious problems." Young , at 27 71 . 28 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. TO MOTION FOR PRELIMINARY INJUNCTION AND ATTORNEYS AT LAW I00 SO. SECOND ST.. P. O. BOX 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 SUMMARY JUDGMENT . PAGE 8 255-8678 1 IV. ORDINANCE NOS . 3526 AND 3629 . 2 A. There need be no legislative history to support the actions of the Renton 3 City Council . • 4 Plaintiff argues that there is no written or recorded 5 legislative history to support the enactment of the ordinances . 6 A City Council must make findings of fact to support rezoning 7 legislation (which is a quasi judicial function) . Parkridge vs . 8 Seattle , 89 Wn 2d , 4511 , 537 P . 2d , 359 ( 1978) . However , no 9 findings are required for the adoption of legislation such as the 10 ordinances in question which create zones (which is a legislative 11 function) . 12 However , the City has set forth its findings of fact in 13 Ordinance No . 3629. Plaintiffs suggest that the City must engage 14 in an independent empirical analysis to support its ordinance . 15 That approach was rejected in Genusa vs . City of Peoria , 619 F. 16 2d 1203 , 1211 ( 1980) . 17 "Even though here, unlike in Young , the city has not demonstrated a past history of congregated adult uses 18 causing neighborhood deterioration , we agree with the district court that a city need not await 19 deterioration in order to act . A legislative body is entitled to rely on experience and findings of other 20 legislative bodies as a basis for action . There is no reason to believe that the effect of congregated 21 adult uses in Peoria is likely to be different than the effect of such congregations in Detroit . 22 Plaintiff would apparently ask the court to look beyond 23 findings of fact enunciated by the City Council to question the 24 motives and intent of the Council members . As stated in Lillion 25 vs. Gibbs , 47 Wn 2d 629, 633, 289 P. 2d 203 ( 1955 ) : 26 "In the absence of fraud , this court will not inquire 27 into the motives which actuated the local legislative body to enact , or fail to enact , an ordinance or 28 resolution . (citations omitted . ) DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG, P.S. ATTORNEYS AT LAW TO MOTION FOR PRELIMINARY INJUNCTION AND 100 n0. SECOND ST.. P. O. SOX 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WABHINGTON 98057 255-8678 QIIMMAAV Tf1T1rM7MT PAf_1; n 1 Therefore , there being not even a hint of fraud , the adequacy of 2 the ±e isiat1ve History is not a -proper issue for this Court . to 3 review the legislative history would be an impermissive violation 4 of the doctrine of separation of powers . 5 B. Plaintiff' s attack on the "viability" • of other locations diverts attention 6 from the real issue . 7 The Court must not be diverted from the real issue in this 8 case : ( 1 ) the facial constitutionality of the ordinances , and g (2) the constitutionality of their application to the specific 10 parcels of property owned by the Plaintiffs . Plaintiffs 11 apparently intend to place at issue the viability of parcels of 12 . land located elsewhere within the City for location of adult 13 entertainment land uses , citing Shad vs. Borough of Mt. Ephraim, 14 U. S. , 101 Sup. Ct. , 68 L. Ed . 2d 671 ( 1981 ) , Avalon 15 Cinema Corporation vs. Thompson , F. 2d (8th Cir . Dec . 12, 16 1981 ) , and Alexander vs. City of Minneapolis , F. Supp . , 17 (D. C. Minn . , Feb. 19, 1982) . 18 Plaintiff may not advance the question of viability of 19 other sites to disguise the fact that its specific locations are 20 proscribed by the face of the ordinances . As noted by Justice 21 Powell in his concurring opinion , 22 "The constraints of the ordinance with respect to location may inded creat economic loss for some who 23 are engaged in this business . But in this respect they are affected no differently from any other 24 commercial enterprise that suffers economic detriment as a result of land use regulation . The cases are 25 legion that sustained zoning against claims of serious economic damage. (citations omitted) " 26 "The inquiry for First Amendment purposes is not - 27 concerned with economic impact ; rather , it looks only to the effect of this ordinance upon freedom of 28 expression ." DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. ATTORNEYS AT LAW TO MOTION FOR PRELIMINARY INJUNCTION AND ,OD SO. SECOND ST.. P. O. BOX 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 255-8678 RIIMMARY _TiinnmPmT pang in 1 " . . . to be sure some prospective patrons may be inconvenienced by this dispersal . " 2 The City of Renton has no argument with the decision of 3 Shad which is a Supreme Court case . The regulation complained of 4 in that case completely restricted "live entertainment land uses" 5 from the entire city. This regulation is readily distinguishable 6 from the ordinances here , which leave vast areas of the City 7 available for location of adult entertainment land uses . The Mt. 8 Ephraim ordinance failed the test established by Young that the 9 challenged restriction must impose no more than a minimal burden 10 on protected speech. 11 The Avalon case which Plaintiffs rely upon is likewise 12 .. distinguishable . There the City Council enacted an emergency 13 ordinance in order to prevent the opening of an adult theater 14 which was virtually ready to open . The record there displayed 15 the City' s intent to keep the theater from opening . Opinion , at 16 8, n . 9. The Court of Appeals could not "ignore the fact that 17 passage [of the ordinance] was an ' emergency', measure to prevent 18 the exhibition and sale of sexually-oriented films" . Opinion , at 19 8. This violated the third part of the O'Brien test that the 20 governmental interest asserted must be unrelated to the 21 suppression of free expression . 22 In addition , the ordinance in Avalon was not narrowly drawn 23 to exclude from its provisions legitimate films in which the 24 prohibited sexual acts or parts of the body were depicted for a 25 brief period of time , no matter the artistic merit or 26 intellectual content of the film as as whole . Opinion , at 9 . The 27 provisions of the ordinances here , and in particular the 28 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. ATTORNEYS AT LAW TO MOTION FOR PRELIMINARY INJUNCTION AND too so. !SECOND ST., P. O. BOX 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 Zss.6678 SUMMARY JUDGMENT PAGE 11 1 provisions of Ordinance No . 3629, narrowly draw the definition of 2 the offending material to exclude from its prohibition material 3 which displays " specified sexual activities" and " specified 4 anatomical areas" as defined therein , which are merely incidental 5 to the work as a whole . 6 Finally, plaintiff relies upon the recently decided case of 7 Alexander vs. City of Minneapolis to justify its attack on the 8 "viability" of areas within the City where it may locate an adult 9 theater . First , the decision has no precedential value before 10 . this Court . Second , the case is readily distinguishable from the 11 facts of the case at bar . There the City attempted to close 12 existing non-conforming uses over a four-year amortization 13 period . The ordinances complained of here affect no existing 14 adult entertainment land uses within the City. Furthermore , the 15 court in Alexander specifically found that the effect of the 16 regulation was significant and would substantially reduce the 17 number of adult book stores and theaters within the City. Thirty 18 pre-existing uses were to be forced to compete for a handful of 19 lawful locations . Certainly, the portion of the City of Renton 20 for which zoning remains available for development of an adult 21 motion picture theater is sufficient to afford Plaintiff an 22 opportunity to ply its trade . 23 Third , under the Minneapolis ordinance no new adult uses 24 would be allowed to open . This is in stark contrast to the 25 situation at bar where there is no restriction to the 26 establishment of new adult entertainment land uses within the 27 area circumscribed by the ordinances in question . 28 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. ATTORNEYS AT LAW TO MOTION FOR PRELIMINARY INJUNCTION AND too So. SECOND ST.. P. O. BOX 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 SUMMARY JUDGMENT PAGE 12 255-8678 1 C. The enactment of Ordinance No . 3629 was necessary to flesh out Ordinance ' 2 No . 3526 . 3 The enactment of the ordinance does not constitute an 4 admission of partial unconstitutionality of Ordinance No . 3526. 5 The City has failed in its effort to convince this Court to 6 abstain from further interference with the sovereign jurisdiction 7 of the State of Washington over its local zoning matters , so that 8 the City can obtain a construction of Ordinance No . 3526 from the 9 State Courts who are authorized and under a duty to 10 constitutionally construe the legislation . Therefore , the City 11 Council has furnished the "fleshing out" of certain portions of 12 Ordinance No . 3526 which it was denied by its inability to 13 proceed further in State Court . 14 Plaintiff complains of the definition of the word "use" on 15 the ground that the definition injects a subjective element into 16 the categorization of the motion pictures as prohibited or legal 1 17 uses . This is simply not true . The "fleshing out" of the 18 definition substantially reduces recourse to subjectivity in 19 determining what manner of "use" will bring the motion picture 20 purveyor within the constraints of the ordinance . 21 Plaintiff further complains that the abatement procedures 22 set forth in the ordinance are a prior restraint of free speech . 23 However , the abatement procedures here enacted are devoid of any 24 authorization for issuance of preliminary injunctions of 25 indefinite duration or the padlocking of premises against the 26 _showing of future films. 27 28 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. ATTORNEYS AT LAW TO MOTION FOR PRELIMINARY INJUNCTION AND IOoso. SECOND BT.. P. O. Cox 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 255-6678 cr1MMAPV TMPNT PM'.I l I1nr. 1 D. Plaintiff has obtained no vested rights to operate an adult motion Y location . 3 Plaintiff asserts that it has a vested right to exhibit its 4 adult films at the Renton and Roxy Theaters . Plaintiffs should 5 more properly claim to be a permitted use or a prior non- 6 conforming use , neither of which are applicable here because the 7 ordinance predated Plaintiff' s proposed use . 8 The case of State ex rel Ogden vs . Bellevue , 45 Wn 2d 492, 9 275 P. 2d 899 ( 1954) stated that rule on vested rights in 10 Washington : 11 "The right vests when the party. . .applies for his 12 building permit , if that permit is thereafter issued . The rule , of course , assumes that the permit applied 13 for and granted be consistent with the zoning ordinances and building codes in force at the time of 14 application for the permit ." (Emphasis added) . 15 Interestingly enough, Plaintiff claims that the business 16 zone in which the Renton and Roxy Theaters are located is not .a 17 permitted use in one portion of its brief, and yet asserts the 18 vested rights doctrine which requires a permitted use in another 19 section of its brief. If the argument that a theater is not a 20 permitted use in a business zone is appropriate , then there can 21 be no vested rights . 22 Plaintiffs claim a substantial investment in the property 23 and a vested interest as of the date of enactment of a later 24 ordinance , Ordinance No . 3629 , which was enacted on May 3, 1982. 25 It should be recalled that Plaintiff made that investment in 26 direct contravention of an existing Ordinance of the City of 27 Renton , with knowledge that that ordinance existed . Plaintiff 28 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. TO MOTION FOR PRELIMINARY INJUNCTION AND 100 ZtOStCONDEEOND ST AT LOW . .. P. O. BOX 628 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 SUMMARY JUDGMENT PAGE 14 255-8678 II 1 did not have the right to show its adult films under Ordinance 2 No . 3526, and that right was not changed under Ordinance No . 3 3629 . No vested rights could be obtained . Plaintiffs ' use is not ; 4 - a permitted use or a prior nonconforming use . 5 E. Ordinance No . 3629 is valid---having been properly enacted . 6 Plaintiffs have challenged Ordinance No . 3629 alleging that 7 its emergency clause invades the right of the people to exercise 8 their rights of initiative and referendum. 9 The Court should specifically note that Plaintiffs are 10 attacking an ordinance , the effect of which would be to 11 substantially increase the permissible locations within the City ' 12 for Plaintiffs ' theaters. Since the affect of such an ordinance ' 13 would be to eliminate Plaintiffs' complaint that it has been 14 excluded from the City, Plaintiff does not wish the Court to 15 consider the ordinance on its merits . Rather, Plaintiffs are 16 making a technical , procedural argument to the Court. 17 The Court should decline to involve itself in what is a 18 State question and should hold for the purpose of this 19 Preliminary Injunction hearing that the enactment is within the 20 police power of the City. The Federal Court must presume the 21 Ordinance is legal and constitutional until such time as a State 22 Court has decided otherwise . Since Plaintiff' s complaint is 23 based strictly on the Washington Constitution and State Court 24 . cases , no Federal question is presented . 25 Even if the Court entertains Plaintiffs' complaint , the 26 Court should find that the ordinance is properly enacted . As a 27 general proposition , emergency clauses in zoning enactments are 28 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. TO MOTION FOR PRELIMINARY INJUNCTION AND ATTORNEYS AT LAW too 60. !<[COND BT.. P. O. BOX 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 SUMMARY .TllfGMFNT PAGF 1G 255-8678 1 given effect . See McQuillan , Municipal Corporations ( 1976 ) , 2 Section 25.52. 3 "A zoning ordinance takes effect from the date prescribed by law. Such a date may be the result of 4 public emergency. . . . " ( footnote omitted) 5 It should be noted that Plaintiff has cited no zoning cases in 6 its arguments on emergency clauses . 7 Plaintiffs complain that the City Ordinance containing an 8 emergency clause violates Amendment VII , Article 2, 1 (b) of the 9 Washington State Constitution which reads : 10 "The second power reserved by the people is the referendum and it may be ordered on any act , bill , 11 law, or any part thereof passed by the legislature , except such laws as may be necessary for the 12 , immediate preservation of public peace , health or safety, in support of the State government and its 13 existing public institutions . . ." 14 Ordinance No. 3629 contained an emergency clause stating that the 15 enactment was for the immediate preservation of the public peace , 16 health or safety, and included statements that the enactment was 17 necessary to limit the City' s financial liability. All of those 18 statements meet the requirements of the Washington State 19 Constitution . 20 In Swartou.t vs . Spokane , 21 Wn App . 665, 670, 586 P. 2d 135 21 (1978) , the Court stated the test for review of legislation with 22 an emergency clause : 23 _ "We have always held to the rule that the legislative declaration of the facts constituting the emergency ' 24 is conclusive , unless , giving effect to every presumption in its favor , the court can say that such 25 legislative declaration , on its face , is obviously false and a palpable attempt at dissimulation . . . . 26 "It is also well settled , both here and elsewhere , 27 that , in determining the truth or falsity of a legislative declaration of a fact , the court will 28 enter upon no inquiry as to the facts , but must DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. ATTORNEYS AT LAW TO MOTION FOR PRELIMINARY INJUNCTION AND m80. SECOND ST., P. O. BOX 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 zss-eels SUMMARY JUDGMENT PAGE 16 • 1 consider the question from what appears from the face of the act , aided by its judicial knowledge . " 2 This court , in reviewing the emergency clause in the Renton 3 Ordinance and giving affect to every presumption in the City' s 4 favor , cannot find that the facts are obviously false and a 5 palpable attempt at dissimulation . All doubts must be resolved 6 in favor of the validity of the enactment . State ex rel Hamilton 7 vs . Martin , 173 Wash. 249, 254 , 23 P. 2d 1 ( 1933 ) ; State ex rel 8 Hoppe vs . Meyers , 58 Wn 2nd , 320, 326, 363 P. 2d , 121 ( 1961 ) . 9 One of the recognized areas where emergency legislation may 10 be passed without referendum is when it involves police power . A 11 rather detailed explanation of police power and the referendum is 12. contained in State ex rel Case vs. Howell , 85 Wash 281 , 284 , 147 13 Pac . 1162 (1915) . 14 There should be no doubt that the zoning power is an 15 exercise of the police power of the municipality. As stated in 16 McQuillan , Municipal Corporations, 3rd Ed . Rev . ( 1976) states the 17 general rule in 2510: 18 "Relationship to Zoning to Other Police Reguluations . 19 Zoning laws in their usual form are an exercise of the police power in a particular field , to secure the 20 public health , safety or welfare but they are 'only one of several types of regulation of property by 21 local government , all of which are expressions of the police power . . . .." 22 The State of Washington has long recognized that zoning is 23 24 an exercise of the police power . The case of Farrell vs. Seattle , 75 Wn wnd 540, 543, 452 P. 2d 965 (1969) quotes from the 25 seminal case on zoning in Washington as follows : 26 "Zoning is a discretionary exercise of police power 27 by a legislative authority . Lillions vs . Gibbs , 47 Wn 2d 629, 289 P. 2d 203 (1955) ." 28 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG, P.S. ATTORNEYS AT LAW TO MOTION FOR PRELIMINARY INJUNCTION AND 100 SO. SECOND ST.. P. O. BOX 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 .. . .... •r•..i.unvm ran l+r �.- 255-8678 1 In any event , Ordinance No . 3629 (which was enacted on May 2 3, 1982 with an emergency clause) has been re-enacted without the 3 emergency clause by the City Council on June 14 , 1982 as 4 Ordinance No . 3637 . by its terms it will become effective 30 5 days following its publication on June 18 , 1982 6 V. CONDITIONAL USE PERMIT. 7 Once again , Plaintiff addresses a significant portion of 8 his brief and the Court' s time to an argument that the ordinance 9 is unconstitutional on its face or as applied because of the 10 claimed absence of objective standards to determine whether to 11 grant or deny a conditional use permit for operation of an adult 12.. motion picture theater . This is a "strawman" created by 13 Plaintiff' s erroneous construction of the Renton City Code . As 14 has been stated previously (See Defendant's Reply Memorandum in 15 Support of Defendant' s Motion to Dismiss , Page 10-11 ) and as 16 stated by David Clemens in his testimony before the Magistrate on 17 January 29, 1982, and at his deposition on March 3, 1982, 18 theaters (and adult theaters except as limited by Ordinance Nos . 19 3526 and 3629) are a legal use in the commercial districts of the 20 City of Renton . There is no requirement that the Plaintiffs seek 21 approval of a conditional use permit , variance or any other land 22 use permit prior to the commencement ,of operaton . 23 In his deposition , Mr . Clemens stated at Vol I, Pg 73: 24 -Q. Could you direct me where in that section you find that an adult motion picture theater is a 25 permitted use within the B-1 business district? 26 A. It is not specifically set forth ; however , the , i City has interpreted , since long prior to my 27 coming to the City , that commencing with the B-1 district , a theater use and many other uses 28 that are not specifically set forth in the B-1 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG, P.S. ATTORNEYS AT LAW TO MOTION FOR PRELIMINARY INJUNCTION AND IOO 80. SECOND ST.. P. O. BOX 6E6 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 z55.ae7e SUMMARY JUDGMENT PAGE 18 1 district are allowed as being uses similar to the uses specified in the B-1 district . 2 Mr . Clemens further stated that the same analysis applies to the 3 M-P, L-1 and H-1 zones . Vol I , pg 76. 4 Any appeal from the administrative determination of whether 5 such a use is an allowed use must be made to the Hearing Examiner 6 within 14 days following the administrative determination . The 7 Hearing Examiner ' s decision is subject to review by the King 8 County Superior Court within 20 days after the date of the 9 decision . Renton City Code Section 4-3011 (B) (5) . Appeals from 10 administrative determination are not appealed to the City 11 Council . Therefore , the Plaintiff is not subject to a 12 standardless , discretionary administrative procedure of 13 potentially unlimited duration . 14 VI . SUMMARY. 15 Having shown the constitutionality of the ordinances 16 following Young and avoiding the pitfalls of Shad , the validly 17 enacted Ordinance Nos . 3526 and 3629 must be upheld by this Court 18 and the City's Motion for Summary Judgment granted . Plaintiffs' 19 attempt to force the City to do its market research for viability 20 of other locations before enacting reasonable zoning legislation 21 must be rejected . Plaintiffs may not concern this Court with 22 questions of the application of these ordinances to properties 23 other than the two specific locations owned by Plaintiffs . 24 In any event , in order to maintain the status quo , and to 25 achieve public interest , Plaintiffs ' Motion for Preliminary 1 26 Injuction must be denied . There is no likelihood that Plaintiff 27 1 will prevail on the merits . The irreparable injury claimed to 28 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. TO MOTION FOR PRELIMINARY INJUNCTION AND ATTORNEYS AT LAW too ao..SECOND sT.. P. O. BOX ssa IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 SUMMARY JUDGMENT PAGE 19 255-8678 1 have been suffered by Plaintiffs has been occasioned by their own 2 hands . 3 Respectfully submitted , 4 5 6 /j LAWRENCE JARREN 7 • li A 8 DANIEL KELLOGG 9 ! I 10 11 12: 13 14 15 16 II 17 18 19 20 21 • 22 23 I 24 25 26 jl 27 28 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. TO MOTION FOR PRELIMINARY INJUNCTION AND ATTORNEYS AT LAW Ioo ao. SECOND sT.. P. O. BOX aza IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 255-867s SUMMARY JUDGMENT PAGE 20