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File #5 - Correspondence/Legal Documents (1982)
1 ,1 • • 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 ) Washington corporation, et al. , ) 11 ' ) NO. C82.j 9M Plaintiffs, ) 12 vs. ) BRIEF 6 P YTIME THEATRES, ) INC. ,' I , 0 BAY PROPERTIES 13 THE CITY OF RENTON, et al . , ) INI[ •UPPORT OF MOTION FOR ) P'' ' + ARY INJUNCTION AND IN 14 Defendants . ) ()tie I - ON TO DEFENDANTS' 15 ) • i't) s . FOR SUMMARY JUDGMENT THE CITY OF RENTON, a municipal) 16 corporation, ) NO. C82-263 17 PlaintiX;\\ ) vs . 18 �, / ) PLAYTIME THEATRES INC. , a;/'` 19 Washington corporation, et al.. , ) 20 ) Defendant. . '\ ) 21 ) 22 THE FEDERAL " OURTS SHOULD HASTEN TO GRANT INJUNCTIVE 23 RELIEF, AS PRAYED FOR, WHERE FUNDAMENTAL CONSTITU- TIONAL RIf TS ARE INVOLVED AND THE DANGER OF A 24 "CHILLING' OF THOSE • RIGHTS IS THREATENED BY THE ACTS OF THE DrFENDANTS. 25 26 The t: st for issuance of preliminary injunction appears in 27 Wm. Inglis & Sons Baking Co. v. ITT Continental Baking Co. , 526 28 F. 2d 86, :8 (9th Cir. 1975) . 29 'One moving for a preliminary injunction assumes . the burden of demonstrating either a combination of probable success and the possibility of irreparable 30 injury or that serious questions are raised and the 31 balance of hardships tips sharply in his favor . ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction Page 1 A PROFESSIONAL.SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 r • • 1 The Inglis test has been described as a single continuum 2 rather than two entirely separate standards . 3 . . . The critical element in determining the test to be applied is the relative hardship to the parties . 4 If the balance of harm tips decidedly toward the plaintiff, then the plaintiff need not show as robust 5 a likelihood of success on the merits as when the balance tips less decidedly. Benda v. Grand Lodge of 6 Inter. Ass ' n, etc . , 584 F.2d 308 , 315 (9th Cir . 1978 ) . 7 See also, Los Angeles Memorial Coliseum Comm'n v. N. F.L. , 634 F. 2d 8 1197 (9th Cir . 1980) . 9 Plaintiffs respectfully submit that they will demonstrate 10 both a probability of success on the merits and the possibility of 11 ' irreparable injury. In the present case, however, this Court need 12 not determine that plaintiffs have shown a probability of success 13 on the merits in that plaintiffs have clearly raised "serious 14 questions" as to the constitutionality of the ordinances , and the 15 balance of hardships "tips sharply" in plaintiffs ' favor . If the 16 ordinances are temporariliy enjoined, the state legal remedies 17 against dissemination of obscenity can be enforced. Plaintiffs , 18 however, but for injunctive relief from this Court , must either 19 20 forego the sale or exhibition of sexually oriented protected 21 expression or must risk prosecution or abatement under an ordinance 22 which they .allege is unconstitutional on its face and which may 23 subject them to catastrophic penalties which, in substance and 24 effect , operate as prior restraints . 25 In 414 Theater Corp. v. Murphy, 499 F.2d 1155 (2nd Cir . 26 1974) , the court held that federal plaintiffs challenging the 27 constitutionality of a peep show licensing, ordinance carrying both 28 civil and criminal penalties were entitled to a preliminary injunc- • tion against threatened prosecution under the ordinance . The court 30 stated : 31 • ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 2 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 1 . . . Where other plaintiffs have faced the similar situation of being required to forego . constitutional- 2 ly protected activity in order to avoid arrest, the Supreme Court has found irreparable injury. See 3 Dombrowski v. Pfister, 380 U. S. 479 , 85 S.Ct . 11T-6, 14 L.Ed . 2d 22 (1965) [additional citations omitted] . 4 So also do we find the position of appellee , "between the Scylla of intentionally flouting [the ordinance] 5 and the Charybdis of foregoing what he believes to be constitutionally protected activity in order to avoid 6 becoming enmeshed in a criminal proceeding. " 7 [Steffel v . Thompson, 415 U. S. at 462, 94 S.Ct. at 1217 ] , to cause irreparable injury where the result is the stifling of first amendment expression. Id. , 8 at 1160 . (Emphasis in original) . 9 Additionally, in Citizens For A Better Environment v. City of Oak 10 Ridge , 567 F. 2d 685 (7th Cir. 1975) , the court said : 11 ' Initially, it must be noted that this Court has 12 previously held that even , the temporary deprivation of the First Amendment rights constitutes irreparable 13 harm in the context of a suit for an injunction. Schnell v. Chicago, 407 F. 2d 1084 , 1086 (7th Cir . 14 1969) . . . 15 Upon the evidence that will be presented to this Court upon 16 hearing, and the authorities that will be discussed, the necessary 17 showing of probability of success on the merits of this action and 18 irreparable harm to plaintiffs will be made, and the preliminary 19 injunction prayed for should be issued . 20 LOCATIONAL ADULT THEATRE ZONING ORDINANCES ARE CON- 21 TENT BASED RESTRICTIONS ON SPEECH THAT COME BEFORE THE COURT BEARING A PRESUMPTION THAT THEY ARE UNCON- 22 STITUTIONAL AND THE BURDEN IS UPON THE CITY TO PROVE THAT A COMPELLING GOVERNMENTAL INTEREST IS SERVED BY 23 THE LEAST INTRUSIVE MEANS. 24 In Young v. American Mini Theatres, 427 U.S. 50 (1976) the 25 Supreme Court upheld the constitutionality of a Detroit zoning 26 • ordinance that amended a long existing "Anti-Skid Row Ordinance" to 27 include adult theatres within its locational provisions . No 28 opinion of the court was joined in by a majority of the justices . 29 Justice Steward , writing for the four dissenting justices '30 found that " . . . [T]his case does not involve a simple zoning 31 ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction - APROFESSIONALSERVICECORPORATION Page 3 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 • 1 ordinance, or a content-neutral time, place, and manner restriction 2 or a regulation of obscene expression or other speech that is 3 entitled to less than the full protection of the First Amendment . " 4 Young, supra. at 84. He went on to say: 5 What this case does involve is the constitutional permissibility of selective interference with pro- 6tected speech whose content is thought to produce distasteful effects. 7 Id. , at 85; also see, n. 2, page 84. 8 — Justice Stevens , writing for the four justices who joined in 9 the plurality opinion, wrote in part III of the Opinion that 10 certain kinds of speech, such as sexually oritented speech, • may be 11' 12 entitled to a lesser magnitude of protection than other forms of 13 speech. Id. , at 67 . [It should be pointed out that a majority of 14 the court has never accepted this view. Id. , at 73 (Powell , J. , 15 concurring) ; Id. , at 84 (dissenting opinion of four Justices) ; 16 F. C. C. •v. Pacifica Foundation, 438 U. S. 726 at 761 (Opinion of 17 Powell, J. ) , Id. , at 762-763 (Brennan, J. , dissenting) ; see also 18 Hart v. Edmisten Book Stores , 612 F. 2d 821 , 826-28 (4th Cir . 1979 ) ; 19 Fantasy Book Shop, Inc. v. City of Boston, 652 F.2d 1115, 1126 (1st 20 Cir . 1981) ; and Avalon Cinema Corp. v. Thompson, F. 2d 21 ( 8th Cir . , decided December 11, 1981) ] . Based upon this faulty , 22 principle, Justice Stevens went on to find that what was ultimately 23 at stake was nothing more than a limitation on the place where 24 adult films may be exhibited even though that determination turned 25 upon the content of the films . 26 Justice Powell ' s concurring opinion upheld, the 27 constitutionality of the Detroit zoning ordinances , but he did not 28 agree with the holding or supporting discussion in part III of 29 Justice Steven' s opinion. Specifically, Justice Powell found that 30 the ordinance was not grounded in a hostility toward certain kinds 31 of speech; rather , it was an addition to a long in place "Anti-Skid ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 4 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 1 Row Ordinance". He further found that the ordinance had only a 2 slight and insignificant impact on those who wished to make adult 3 films available to the public and to those of the public who wished 4 to view them.. Justice Powell then went on to analyze the ordinance 5 based upon the four-part test of United States v. O'Brien, 391 U.S. 6 367 , 377 (1968 ) . It should be noted that Justice Powell ' s views 7 were based upon an ordinance far different in the restrictive 8 effect of its locational provisions than the provisions of the 9 ordinance in the case at bar. 10 Since the decision in Young, at least four cases have been 11 ' decided by the Supreme Court that reject the view expressed by 12 Justice Stevens that ordinances , such as the one involved here, are 13 merely reasonable time, place or manner restrictions on speech. 14 Consolidated Edison. v. Public Serv. Comm'n, 447 U.S. 530 (1980) ; 15 Carey v. Brown, 447 U.S. 455 (1980) ; Heffron v. International Soc ' y 16 for Krishna Consciousness U.S. 69 L.Ed.2d 298 (1981) ; and 17 Metromedia Inc. v. City of San Diego, U.S. , 69 L.Ed .2d 800 18 ( 1981) . 19 In Consolidated Edison, supra, at 536, Justice Powell , writing for six members of the court, said: 21 A restriction that regulates only the time, place or 22 manner of speech may be imposed so long as it is reasonable. But when regulation is based on the con- 23 tent of speech, governmental action must be scrutin- ized more carefully to ensure that communication has 124 not been prohibited ' "merely because public officials disapprove the speaker' s views . " Niemotko v. 25 Maryland, 340 U. S. 268, 282, 95 L.Ed. 267 , 71 S.Ct . 325 ( 1951) (Frankfurter, J. , concurring in result) . 26 As a consequence, we have emphasized that time, place, and manner regulations must be "applicable to 27 all speech irrespective of content . " Erznoznik v. City of Jacksonville, 422 U.S. 205 , 209 , 45 L.Ed. 2d 28 125, 95 S.Ct . 2268 (1975) ; see Carey v. Brown, ante, at 470 , 65 L.Ed. 2d 263, 100 S.Ct . 2286 (1980) . 29 Governmental action that regulates speech on the basis of its subject matter "slip[s] from the neu- 1 30 trality of time, place, and circumstances into a concern about content . " Police Department of Chicago 31 v. Mosley, 408 U. S. 92, 99, 33 L.Ed. 2d 212, 92 S.Ct . ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 5 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 . 2286 ( 1972) , quoting Kalven, The Concept of Public Forum : Cox v. Louisiana, 1965 S.Ct . Rev. 1, 29 . 2 Therefore , a constitutionally permissible time, place , or manner restriction may not be based upon 3 either the content or subject matter of speech. 4 In Carey v . Brown, supra. , Justice Brennan writing for six 5 members of the court found unconstitutional an Illinois satute 6 barring all picketing of residences or dwellings except the peace- 7 ful picketing of a place of employment involved in a labor dispute . 8 The court found that the permissibility of residential picketing 9 was dependent solely on the nature of the message conveyed . Id. , 10 at 461 . The court said : . III 11 ' When government regulation discriminates among speech-related activities in a public forum, the 12 Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state 13 interests , and the justifications [447 U.S. 642] offered for any distinctions it draws must be care- 14 fully scrutinized . Police Department of Chicago v. Mosley, 408 U. S. at 98-99 , 101, 33 L.Ed. 2d 212, 92 15 S. Ct . 2286 ; see United States v. O' Brien, 391 U.S. 367 , 376-377 , 20 L. Ed. 2d 672, 88 S.Ct. 1673 (1968) ; 16 Williams v. Rhodes, 393 U. S. 23, 30-31, 21 L.Ed .2d 24 , 89 S.Ct . 5 , 45 Ohio Ops . 2d 236 (1968) ; Dunn v. 17 Blumstein, 405 U.S. 330,• 342-343, 31 L.Ed . 2d 274, 92 S. Ct . 995 (1972) ; San Antonio School District v. 18 Rodriguez , 411 U.S. 1, 34 , n. 75, 36 L.Ed. 2d 16, 93 S.Ct . 1278 (1973) . - As we explained in Mosely : 19 "Chicago may not vindicate its interest in preventing disruption by the wholesale exclusion of picketing on 20 - all but one preferred subject . Given what Chicago tolerates from labor picketing, the excesses of some 21 non-labor picketing may not be controlled by a broad ordinance prohibiting both peaceful and violent 22 picketing. Such excesses ' can be controlled by nar- rowly drawn statutes , ' Saia v. New York, 334 U.S. , at 23 562, 92 L.Ed. 1574, 68 S. Ct . 1148, focusing on the abuses and dealing evenhandedly with picketing 1I 24 regardless of subject matter. " 408 U.S. at 101-102, 25 33 L.Ed. 2d 212, 92 S.Ct . 2286 . Yet here under the Illinois of preserving residential privacy, has 26 flatly prohibited all non-labor picketing even though- it permits labor picketing that is equally likely to ' 27 intrude on the tranquility of the home. 28 In Heffron v. International Soc ' y for Krishna Consciousness , 1 supra. ° at page 307 , Justice White, quoting from Consolidated 29 Edison, supra. at 536, said : 30 31 • ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &M Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORA ON Page 6 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 � I it • 1 A major criterion for a valid time, place, and manner restriction is that the restriction "may not be based 2 upon either the content or subject matter of the speech . " 3 Finally, in Metromedia Inc. v. City of San Diego, supra. , at 4 page 820 , Justice White, writing for the plurality, said : 5 Finally, we reject appellee' s suggestion that the 6 ordinance may be appropriately characterized as a reasonable "time, place and manner" restriction. The 7 ordinance does not generally ban billboard advertis- ing as an acceptable "manner" of communicating infor- 8 mation or ideas ; rather , it permits various kinds of signs . Signs that are banned are banned everywhere 9 and at all times . We have observed that time, place and manner restrictions are permissible if "they are 10 justified without reference to the content of the regulated speech . . . serve a significant governmental 11 ' interest and . . . leave open ample alternative chan- nels for communication of the information. " 12 In the case at bar , there can be no question but that the 13 classification of "adult theatre" under the terms of the ordinances 14 is based upon the content of the films shown. It is equally clear 15 that not all motion picture theatres are subject to the locational 16 requirements of this Renton zoning ordinance; it applies only to 17 i8 those theatres showing motion picture films distinguished or 19 characterized by an emphasis on matter depicting, describing or 20 relating to specified sexual activities or anatomical areas as 21 defined in the ordinance. 22 The basis for this classification is content; thus , under 23 the holdings in Consolidated Edison, supra. ; Carey v. Brown, 24 supra. ; Hellfron v. International Soc ' y for Krishna Consciousness , 25 supra. ; and Metromedia Inc . v. City of San Diego, supra. , these ordinances come to this court bearin presumptionthey 26 bearing . a that are 27 unconstitional . 28 In order to sustain a governmental content-based classifica- 29 tion restricting speech, the government must show that the 30 regulation is a precisely drawn means of serving a compelling 31 governmental interest. Consolidated Edison, supra. at 540 . . " . . . ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burris &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 7 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 1 -.ten ..=..r..,...,._.._.,.._.- .... ... — i I 1 [T]he legislation must be finely tailored to serve substantial 2 state interests and the justifications offered for any distinctions 3 it draws must be carefully scrutinized . . . " Carey v. Brown, 4 supra. , at 461 . And finally, there is 'a difference between the ' 5 standard of review where zoning ordinances merely affect property 6 interests and the standard of review where zoning ordinances affect 7 a protected liberty. As to the latter, Justice White wrote in 8 Schad v. Borough of Mount Ephraim, U.S. , 68 L.Ed .2d 671 9 ( 1981) at page 680 : 10 . . . when a zoning ordinance infringes upon a pro- tected liberty, it must be narrowly drawn and must further a sufficiently substantial governmental 12 interest . . . [T]he court must not only assess the substantiality of the governmental interests asserted 13 but also determine whether those interests could be served by means that would be less intrusive on 14 activity protected by the First Amendment . 15 A review of the relevant decisions indicates that four 16 controlling principles must be kept in mind when scrutinizing the II ordinances in the case at bar. They are : (1) regulations infring- 17 18 ing upon constitutional rights fail if less restrictive alterna- 19 tives are available ; (2) the First Amendment mandates that speech , 20 restrictions be narrowly drawn; (3) in the area of the First 21 Amendment, the government may regulate only with narrow specifi- 22 city; and . (4) regulations of communication must be narrowly 23 tailored to further the state ' s legitimate interests . See Chase v. 24 Davelaar, 645 F. 2d 735 , 738-739 (9th Cir. 1981) , n. 9-10. 25 Because the ordinances create a classification based upon 26 the content of protected expression, the city bears the . heavy 27 burden of justifying the classification under a strict scrutiny 28 standard of judicial review under the Equal Protection Clause . See 29 Williams v. Rhodes , 393 U.S. 23 (1968) ; Police Department of 30 Chicago v. Mosley, 408 U. S. 92 (1972) ; San Antonio School District 31 v. Rodriquez, 411 U. S. 1, 16, 34 , n. 75 (1973) ; Storer v. Brown, Ii ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction APROFESSIONALSERVICECORPORATION 8 Page 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828.3636 1 415 U. S. 724 (1974) ; Lubin ' v. Panish, 415 U. S. 709 (1974 ) ; 2 Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975 ) ; Communist 3 • Part of Indiana v. Whitcomb, 414 U.S. 441, 451 (1974) (concurring 4 opinion of Mr . Justice Powell) . 5 [T]he state may prevail only upon showing a subordi- nating interest which is compelling . . . and the bur- 6 den is on the government to show the existence of such an interest . " . . . [E]ven then, the state must - 7 employ "closely drawn means to aeoid unnecessary 8 abridgement . " . . . First Nat' l Bank of Boston v. Bellotti, 435 U. S. 765 , 786 (1978) . 9 The City of Renton has stated no rationale justifying the 10 difference of treatment between protected expression; nothing in 11 ' the preamble or the body of the ordinances serves to give notice as j 12 to the legitimate state interests served by requiring an exhibitor 13 of adult--but constitutionally protected--films to locate in a 14 geographically obscure and inaccessible area while an exhibitor of 15 all other kinds of motion picture films need not meet the same 16 conditions . Further, assuming arguendo that Renton asserts an 17 interest which is both legitimate and. substantial, the interest 18 asserted bythe Cityand the means adopted to accomplish the pend 19 sought to be accomplished by Renton must themselves be legitimate 1 20 and narrowly tailored, for even a legitimate governmental purpose 21 "cannot be pursued by means that broadly stifle fundamental 22 personal liberties when the end can be more narrowly achieved. " 23 Shelton v. Tucker, 364 U. S. 479, 488 (1960) . 24 The village may serve its legitimate interests , but i' 25 it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily inter- 26 fering with First Amendment freedoms . Hynes v. Mayor of Oradell, supra. , 425 U.S. , at 620, 48 L.Ed . 27 2d 243, 96 S. Ct . 1755 ; First National Bank of Boston v. Belotti, 435 U. S. 765, 786, 55 L.Ed.2d 707 , 98 28 S .Ct . 3126 (1978) . "Broad prophylactic rules in the area of free expression are suspect. Precision of 29 regulation must be the touchstone. " . . . • NAACP v. Button, 371 U.S. 415, 438, 9 L.Ed. 2d 405, 83 S.Ct . 30 328 ( 1963) . Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 63 L.Ed . 2d 73, 85 , 87-88 . 31 ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 9 10604 N.E.38th Place,Suite 10S • Kirkland,Washington 98033 (206)828-3636 t I 1 1 1 it 1 Moreover, in the area of free speech and press , judicial 2 deference to legislative judgments as to means and ends is consti- • I 3 tutionally impermissible and inappropriate; sought both the end sou hit to 4 be accomplished and the means adopted ,to achieve that end are sub- 5 ject to strict judicial scrutiny. 1 1 6 The prohibition . . . turns on whether it can survive 7 the exacting scrutiny necessitated by a state-imposed restriction of freedom of speech. First Nat' l Bank 8 of Boston v. Belotti , supra. , at 786. Finally, there must be a clear, direct and- definitive connection 9 between means and end. Schaumburg v. Citizens for a Better 10 11 ' Environment, supra. , at 88, " . . . substantial relationship . . . " : 12 Assuming, arguendo a' "compelling" interest . . . . we find "no substantially relevant correlation between • 13 the governmental interest asserted and the state' s effort to prohibit appellants from speaking. " 14 Shelton v. Tucker, 364 U.S. at 485. . . . First Nat ' l Bank of Boston v. Belotti, supra. , at 795; I 15 * * * 16 The restriction must directly advance the state 17 interest involved; the regulation may not be sus- tained if it provides 'only ineffective or remote 1 18 support for the government ' s purpose. Central Hudson Gas & Electric Co. v. Public Service Comm'n, 100 19 S. Ct . 2343, U.S. (1981) . I 20 and in the same case, at footnote 7, the Supreme Court went on to 21 state : 22 In Linmark Associates v. Township of Willingboro, supra. , [431 U.S. 85] . . , we observed that 1 23 there was � no definite connection between the town- ship' s goal of integrated housing and its ban on the 24 use of "For Sale" signs in front of houses . 431 U.S. at 95-96 . Central Hudson Gas & Electric Co. v. 1 . 25 Public Service Comm'n, supra. 26 In this context, the essential question 'is , assuming that the means 27 chosen by Renton to advance its goals are themselves legitimate, 1 28 how do the methods by the City advance the asserted State inter- • 29 ests? •In other words , whatever the end sought to be accomplished , 30 how do the locational provisions embodied in the ordinance advance 31 or achieve the end sought to be accomplished? I ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 10 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 ' THERE IS NO LEGISLATIVE HISTORY FROM WHICH THE PUR- 2 POSE OF THE CITY COUNCIL CAN BE DETERMINED, YET, FROM THE STATEMENTS OF COUNSEL AND THE PLEADINGS HEREIN, 3 IT IS CLEAR THAT ORDINANCE NOS. 3526 AND 3629 WERE INTENDED TO RESTRICT AND RID THE CITY OF RENTON OF 4 SPEECH THE CITY FATHERS FOUND . DISTASTEFUL. 5 No written or recorded legislative history exists from which 6 it is possible to discern exactly what was considered by the Renton 7 City Council in enacting Ordinance No. 3526 (Page 44 , line 8-Page 8 45 , line_ 13, Vol. I, Deposition of David Clemens) . The independent 9 recollection of David R. Clemens , who attended all hearings rela- 10 11 tive to the enactment of Ordinance No . 3526, and who personally and 12 through his staff studied the question and made a presentation to the council, is the sole history available to us today. 13 First, the City of Renton did nothing to study the effects 14 of adult businesses upon the community. Mr . Clemens acknowledged 15 before this Court that no expert evidence regarding the effects of 16 adult entertainment uses on the neighborhoods or business districts 17 of Renton was received or considered . On February 5 , 1982 plain- 18 tiffs that defendants requested 19 q produce for inspection and copying : 20 3 . All studies done by the Planning Department , Planning Staff, or used or considered by the Planning Department or Staff, in the preparation or formula- 21 tion of Ordinance No.. 3526, or any report relative thereto to the Planning Commission and/or the City 22 Council. 23 A number of documents were - produced; however, none were a study or 24 report relative to adult land uses . Rather, all the material 25 produced dealt with the legality of regulation, not the reasons and 26 underlying y g justifications for regulation. (See Pages 5-10, Vol . 27 III Deposition of David Clemens ) . 28 To further emphasize the fact that no empirical data was • 29 received , Mr . Clemens was queried relative to his statement that he 30 had reviewed a summary of findings and conclusions relative to the 31 ' I ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 11 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 I I II 1 • City of Seattle zoning ordinance. Mr. Clemens admitted at his 2 deposition that what he was referring to was the Supreme Court 3 decision itself and a discussion of legal cases prepared by the 4 Seattle City Attorney. (Page 11 , line 22-Page 12, ` line 11 , Vol . 5 II, Deposition of David Clemens) . Prior to the adoption of it 6 Ordinance No. 3526 , Mr . Clemens had never looked at the underlying 7 studies . ;I 8 Before this Court, and at his deposition, Mr. Clemens testi- 9 fied that the one of the governmental concerns relative to adult 10 theatres was an increased incidence of assaults and prostitution. 11 ' In order to flush out the magnitude of this problem, if any, plain- 12 tiffs requested :q production as follows : 13 5 . All reports , letters , studies or other forms of communication of the City of Renton Police Department 14 or any other law enforcement agency relative to the 15 crime associated with the location of adult busi- II nesses in general , and in the City of Renton, in 16 particular . II 17 6 . All crime reports generated by the City of Renton Police Department in the' past five years relative to 18 any and all crimes associated with adult businesses , together with any and all crime reports relating to 19 prostitution and assault within the City of Renton. 20 No. documents were produced in response to either of these requests 21 nor were the requests objected to. From this , we may safely assume 22 that these -types of crime are not a problem in Renton. When asked I I 23 on what he based his testimony to this Court that assault and 24 prostitution in Renton would increase with the introduction of an 25 adult theatre, Mr . Clemens testified as follows : 26 Q. On what do you base your opinion that there would . I be an increase in crime of those types? 27 A . To the best of my recollection, there was discus- 28 sion at at least one of the policy or planning 1 development committee meetings at which there was 29 testimony given that crime of that type would be or could be expected with the implementation of 30 adult entertainment land uses . 31 ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 12 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 - 'I ' II 1 Q. Did that testimony come from citizens or from a police department member? 2 A. I do not recall specifically. 3 Q. Did you attempt 'to verify in any way that adult 4 businesses , the location of •• adult businesses , would lead to an increase in the crimes of pros- 5 titution and assault by checking with the police department in any localities where adult busi- 6 nesses are located? 7 A. No, I did not. 8 Q. Did you check with the City of Tacoma in any way? 9 A . No, I did not . 10 Q. Or the City of Seattle? 11 ' A . No. ' 12 Q. Or the City of Bremerton? 13 A. No. 14 Q. City of Pasco? 15 A. No. 16 Q. City of Spokane? 17 A. No. 18 (Pages 14-15 , Vol. II, Deposition of David Clemens) . 19 Later, Mr. Clemens testifed that the source he relied on was the 20 comments in the Northend Cinema v. Seattle case. (Page 16, lines 21 22-25 , Vol . II, Deposition of David Clemens) . 22 • Mr. 'Clemens also testified before this Court that one of the 1 23 stated reasons for adopting Ordinance No. 3526 was that property 24 values would be affected by adult uses . Yet, Mr. Clemens admitted 25 that he• did not contact any businesses located next to or in the 26 vicinity of an adult business anywhere in the state of Washington 27 to verify this assertion. (Page 17, lines 6-10, Vol . II, Deposi- t 28 tion of David Clemens) . Nor did he gather or attempt to gather any 29 empirical evidence regarding this assertion. (Page 18, lines 2-9, 30 Vol. II, Deposition of David Clemens) . 31 ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 13 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 r 1 During his deposition, Mr . Clemens acknowledged that the 2 only distinction between a general motion picture theatre and an 3 adult motion picture theatre, as defined by Ordinance No . 3526 , was 4 the image on the screen. (Page 21 , lines 4-8, Vol. II, Deposition 5 of David Clemens) . When asked as a land use professional to 6 identify the differences in operational characteristics between a 7 regular motion picture theatre and an adult motion picture theatre, 8 the onlytwo distinctions Mr. Clemens perceived were traffic 9 ( drawing from a larger area) and manner of advertising. He further 10 acknowledged that both of these could be regulated by existing code 11 ' sections . (Pages 21-23 , Vol. II, Deposition of David Clemens) . 12 The deposition testimony of Mr. Clemens and the documents 13 produced make it abundantly clear that the Planning Department and 14 staff considered no empirical evidence whatsoever in their study 15 leading to the adoption of Ordinance No. 3526. They relied solely 16 upon court decisions , legal memorandum, and undocumented assertions 17 from unidentified sources . Worse still, it appears as if none of 18 this material , as shoddy as it was , was ever considered by the City 19 Council. The council relied on the testimony of the planning 20 staff, the attorneys and the public testimony. '(Page 26, lines 21 15-25 , Vol. II, Deposition of David Clemens) . The public . 22 testimony, from the available record, is as unsubstantial as the 23 planning commission studies . 24 . Mr. Clemens ' affidavit dated January 27, 1982, at page 3 , 25 indicates that the testimony noted adverse impacts upon neighbor- 26 hoods and businesses in the event of an adult entertainment use was 27 established in close proximity to schools , churches , public build- 28 ings , businesses or residences . When specifically asked about the 29 alleged adverse impacts on schools, Mr. Clemens testified as 30 follows : 31 ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burris &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 14 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828.3636 1 Q. What adverse impacts would there be on children? How would the mere image on the screen inside the 2 building affect children? 3 A . As I recall the concerns , the public testimony was that the material could have an effect on the 4 people going and coming from the theatre and that as a result the children being educated could be 5 affected . 6 Q. How? 7 A. I am not sure that I. can answer that. 8 Q. So there was a perceived adverse impact, but you can' t identify for me today exactly what that 9 impact would be. 10 A. I think that ' s correct. 11 ' ( Pages 42-43, Vol. II, Deposition of David Clemens) . 12 When asked the same question about churches , Mr. Clemens said : 13 Q. Let me ask you the same question with respect to churches . What adverse impact would the opera- 14 tional characteristics of an adult motion picture theatre have on churches? 15 A. I believe that one of the characterizations made 16 in the public testimony was that some parishion- ers might choose not to attend churches in the 17 vicinity of adult motion picture theatres . 18 Q . But would wash -- was there any testimony the 19 location of an adult theater would adversely affect the church other than some people may not want to go to church? 21 A. To the best of my recollection, that ' s the gist of the testimony that was heard. 22 (Page 43, Vol . II, Deposition of David Clemens) . 23 And with respect to p public and quasi-public buildings, Mr. Clemens :24 stated : 25 A. I believe in particular the comment related to 26 public parks and it followed the same general area of concern as was related to schools . 27 Q. And you can' t identify what those impacts would 28 be, just that people were concerned. 29 'A. That ' s correct. (Pages 43-44 , Vol . II, Deposition of David Clemens) . 31 ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns.&Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 15 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 • 1 When asked about the adverse impact adult uses were perceived to 2 have on businesses, Mr . Clemens replied : 3 Q. We talked about the adverse impact on businesses , 4 I think, property values is one adverse impact that businesses perceived ; is that right? 5 A. Yes . 6 Q. Are there any other adverse impacts that you can 7 describe to me today that were considered at the time the Ordinance was adopted that the opera- 8 tional characteristics of an adult motion picture theatre would have on businesses? 9 A . I can ' t recall any at this time. 10 ( Pages 44-45 ,. Vol. II, Deposition of David Clemens) . 11 ' And finally, when asked to identify the adverse effects on neigh- 12 borhoods, Mr. Clemens said: 13 Q. And what operational characteristics of an adult 14 motion picture theatre would adversely affect residential zones or uses? 15 A. I believe it was the same area of concern as with 16 schools and parks . 17 Q. In other words , somebody perceived there may be adverse impacts but 'couldn' t identify what those 18 specific effects or adverse impacts would be? 19 A . I can' t restate them for you, no. 20 ( Page 45 , Vol. II, Deposition of David Clemens) . 21 In conclusion, Mr. Clemens had to admit that there was no document, 22 recording or other evidence in the legislative history from which 23 the evils of which Ordinance No. 3526 was aimed could be discerned. 24 (Page 46 , line 24-Page 47; line 6 , Vol . II, Deposition of David 25 Clemens ) . 26 Plaintiffs submit that this legislative history (barren as 27 it is of any study, expert testimony, empirical evidence or 28 identifiable evil sought to be cured) cannot support a finding of a 29 compelling governmental interest sufficient to justify a content 30 based restriction on speech; nor will this history support the 31 over-restrictive means of these ordinances . The legislative body ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction APROFESSIONALSERVICECORPORATION Page 16 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828.3636 • 1 has not chosen the "least drastic means" of curing the evils at 2 which the ordinance is aimed , if any in fact exist . The perceived 3 problems which have been articulated included increased traffic, 4 objectionable signing and decreased property values . Traffic and 5 signing problems can be controlled by existing or strengthened 6 ordinances . Property values , assuming for argument ' s sake only 7 that they may decline, can be stabilized by dispersion of adult 8 businesses , requiring renovation and upgrading of deteriorated 9 facilities and other innovative, less intrusive means . 10 The failure of the City to demonstrate an adequate factual 11 ' basis for its conclusion that the removal of adult uses to obscure 12 locations will minify the evils at which it is aimed is constitu- 13 tionally fatal . 14 [T]he case would present a different situation had 15 Detroit brought within the ordinance types of theatres that had not been shown to contribute to the 16 deterioration of surrounding areas . Young v. American Mini Theatres, Inc. , supra. , at 71 (plural- 17 ity opinion) by implication, Id. , at 82 (Powell, J. , concurring) . 18 Young requires , under a standard that approximates pproximates strict scrutiny, 19 an underlying factual basis to support the conclusion of the legis- 20 lative body that the ordinance, narrowly drawn, furthers a substan- 21 tial governmental interest which a narrower restriction will not . 22 Even if this is so, the courts still inquire into whether the 23 resulting burden on First Amendment interests is too severe . Young 24 requires actual governmental interests, actually considered upon a 25 factual basis at the time the action is taken. CLR Corporation v. 26 Lowell Henline, et al . , 520 F.Supp. 760 (W.D. Mich. 1981) . The 27 greater the impact on free expression, the more substantial the 28 . factual connection between the regulation and its objective must 29 be. Broadrick v. Oklahoma, 413 U.S. 601, 614-16 (1973) . 30 31 ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 17 10604 N.E.38th Place,Suite 105 • • Kirkland,Washington 98033 (206)828.3636 -- — . • 1 In Schad v. Borough of Mount Ephraim, supra. , the court 2 said : 3 . . When a zoning ordinance infringes upon a pro- tected liberty, it must be narrowly drawn and must 4 further a sufficiently substantial governmental interest . . . . [T]he court must not only assess the 5 substantiality of the governmental interests asserted 6 but also determine whether those interests could be served by means that would be less intrusive on activity protected by the First, Amendment. Schad v. 7 Borough of Mount Ephraim, supra. , at 2182-2184. 8 Cases decided since Schad have uniformly required empirical 9 evidence in order to establish a valid governmental purpose. In 10 Keego Harbor Co. v. City of Keego Harbor, 657 F.2d 94 (6th Cir . 11 ' 1981) , the court said that the fact that the market for adult fare 12 might be unrestrained does not give a local community carte blanche 13 to regulate without concern for the First Amendment . The "proper" 14 inquiry is whether a city provides "sufficient justification" for 15 imposing a burden on the First Amendment. In Avalon Cinema Corp. 16 v. Thompson, F.2d (8th Cir. , decided December 12, 1981) , 17 the court found that some empirical basis for a finding that the 18 presence of a single theatre within 100 yards of a specific area of 19 a city will have a deleterious effect upon the surrounding neigh- 20 borhood must exist. There, as here, there were no specific find- 21 ings and the council ' s actions were not based on any studies by 22 social scientists or a demonstrated history of adult theatres 23 causing neighborhood deterioration. In CLR Corporation v . Lowell 24 Henline, 520 F.Supp. 760 (W.D. Mich. 1981) the court, in striking 25 down an ordinance very similar to the one at bar, held that "Young 26 requires actual state interests , actually considered upon a factual 27 basis before the legislative body at the time the action is taken 28 ." , Finally, in Fantasy Book Shop Inc. v. City of Boston, 652 29 F. 2d 1115, 1125 (1st Cir. , 1981) , citing Schad, supra. , the court 30 31 ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction APROFESSIONALSERVICECORPORATION Page 18 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 • (206)828.3636 1 held that mere assertions are not sufficient to support govern- 2 mental conclusions . 3 . . . [T]he government bears the burden of proving some 4 empirical basis for the projection on which it relies . 5 6 THE PRIMARY INTEREST OF THE CITY OF RENTON IN ENACT- ING ORDINANCE NO. 3526 APPEARS TO BE A HOSTILITY TOWARDS PROTECTED SPEECH. . 7 8 The receedin argument preceeding g ument presupposes that the motives of the 9 City of Renton were to regulate speech for compelling governmental 10 reasons rather than to sup press speech the city found distasteful . 11 The motives of the city are subject to judicial scrutiny and when 12 subjected to examination, suggests ,7 that the real intent was 13 motivated by hostility to a particular kind of speech. This intent : 14 is found in the city' s answer to Plaintiffs ' Amended And Supple- 15 mental Complaint and in the statements of the city' s counsel to the 16 Court . 17 Defendants ' Answer would have this Court determine that 18 unnamed, unshown motion picture films are obscene . 19 31 Defendants allege, as a defense, that this Court 20 should determine that the motion picture films which the Plaintiffs would have exhibited at the Renton 21 Theater and Roxy 'Theater during the period in ques- tion under the classification of "adult motion 22 picture films" are "obscene motion picture films" under Washington law and, as such, do not involve 23 constitutionally protected free speech. 24 This suggestion that Ordinance No. 3526 and Ordinance No. 3629 are 25 nothing more than obscenity or lewd conduct ordinances in disguise 26 is buttressed by counsel ' s repeated references during oral argument 27 on defendants ' Motion To Dismiss on March 12, 1982 that the City : 28 Council intended to prevent introduction of a criminal nuisance . 29 into Renton' s environs . Below are portions of the transcript of : 30 that argument : 31 at page 5 : ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 19 10604 N.E.38th Place,Suite 105 • • Kirkland,Washington 98033 (206)828-3636 1 Now, so actually the entire content is in that 2 ordinance, and it says that the city council is try- ing to get at a use which, according to my interpre- 3 tation or at least one interpretation, relates to what you would say was a public nuisance or a course 4 of conduct, and it does not relate to any specific film or the like . . . 5 • at page 6-7 : 6 . . . If the statute means what I think it means , that 7 is a nuisance-type operation, it then can be inter- preted in such a way that it means a pandering 8 operation . . . 9 10 . . . At least it ' s my view that in a state court , the state court would have to look at it and say, "Well , 11 ' I 'm required to interpret this in a constitutional manner and to give assistance to the court; so I will 12 give it this interpretation, " and they might say, "Well, it clearly means a course of conduct and it 13 relates to a pandering type activity. " So that then the burden of proof or what the city council was 14 aiming its use ordinance at was at that type of activities . 15 Now, is this a valid area for the city council to be 16 in? Certainly it is , because the city council is regarded as the trustee of the moral and business 17 environment of the city. The licensed business activities, lawful business activity, they have a 18 duty to see that business activities remain lawful; because if they become unlawful, they' re required to 19 - rescind or repeal or revoke the license. • 20 Similarly, they are the trustees of the moral environment of the city; and if there is a house of 21 prostitution or a den of iniquity in the city, they • are under a duty and obligation to abate it as a 22 public nuisance. 23 at page 16: 24 What the city council is attempting to do is to get 25 at this course of conduct which creates an instruc- tion to the children within a thousand feet that 26 there' s nothing wrong with it, when they go to school and they learn the contrary moral lesson or instruc- 27 tional lesson in the school. 28 at 'page 20: Now, this is the same type of a situation in 29 which they' re talking about a public nuisance type, 30 the presence of a public nuisance type arrangement through use of the property, and it wouldbe proceeded 31 along in the same direction through declaratory Judg- 'I ATTORNEYS AT LAW • Brief of Plaintiffs in Hubbard, Burns &Meyer I' Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 20 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 • 1 ment after they had commenced the use which was in violation of the statute. 2 Your Honor, it ' s not a prior restraint that they 3 should show a pornographic film knowing that if they show it, they thereafter are going to be prosecuted 4 criminally and penalized for that •act . So the mere fact that you do have some type of an action over 5 them is not a prior restraint . . . 6 at pages 21-22: 7 If they then commence their activity that they threaten, and if they show "Deep Throat" and "The 8 Devil and Miss Jones" , there ' s one of two things : criminal prosecution, or it may be that they would 9 wait to see if this is going to be the course of con- duct. Is this a lewd situation which contravenes 10 that type of use, or is it just a one-time thing? 11 ' The city can then say, "Is that use proper or is it improper?" If they continue it time after time so 12 that the city then regards it as a public nuisance , they could file for a declaratory judgment that it is 13 a public nuisance because -- . . . 14 The foregoing excerpts make it clear that the city' s intent is to 15 suppress through public nuisance legislation speech which it finds 16 criminal or so distasteful that it should be absolutely prohibited 17 within the City of Renton. However well intentioned, this intent 18 is constitutionally fatal to Ordinance Nos . 3526 and 3629 . 19 THE CITY OF RENTON . ORDINANCE NO. 3526 IS VOID AS A 20 - VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AS INTERPRETED BY THE PLURALITY 21 OPINION OF THE U.S. SUPREME COURT IN: Young v. American Mini Theatres, 427 U.S. 50, BECAUSE OF THE 22 FAILURE OF THE DEFENDANTS TO ASSERT ANY VALID GOVERNMENTAL INTEREST TO JUSTIFY THE REMOVAL OF 23 EXISTING FREE PRESS FACILITIES TO OBSCURE GEOGRAPHIC LOCATIONS WITHIN THE. CITY. 24 25 . The setting of a commercial theatre is "presumptively under 26 the protection of the First Amendment . " Roaden v. Kentucky, 413 27 , U. S. 496 , 504 (1973) . In Vance v. Universal Amusement Co. , 445 28 U.S. 308 , 100 S.Ct . 1156, the Court again recognized the special 29 status of a motion picture theatre, stating that : 30 The regulation of a communicative activity such as 31 the exhibition of motion pictures must adhere to more ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burins &Meyer Support of Prelim. Injunction Page 21 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 ' 1 narrowly drawn procedures than is necessary for the 2 abatement of an ordinary nuisance. Vance v. Univer- sal Amusement Co. , supra. , at 1160. 3 The freedom to operate a theatre is unquestionably protected by the . ' 4 First Amendment because preservation of freedom of expression 5 requires protection of the means of disseminating expression. 6 Lovell v. City of Griffin, 303 U.S. 444; see Bantam Books , Inc . v. 7 Sullivan, 372 U.S. 58, 64-65, n. 6; see also Times Film Corp. v. 8 City of Chicago, 365 U.S. 43, 56, n. 3 (Chief Justice Warren 9 dissenting) . 10 However, since the Supreme Court' s decision in Young v. 11 American Mini Theatres, supra. , municipalities have singled out 12 adult book stores' and theatres for special regulatory treatment . 13 In Young, the court upheld a Detroit zoning ordinance which 14 dispersed adult theatres by prohibiting 'their openingnear each 15 other and other specified uses . The ordinance did not affect 18 existing non-conforming uses . Justice Stevens ' plurality opinion 17 asserted that the ordinance was . not directed at restricting speech 18 merely because the city thought it offensive, but also found the 19 . burden on First Amendment rights slight . Webster ' s New Collegiate 20 - I Dictionary defines "slight" as "trivial" or "unimportant" . 21 Only in that context did the plurality find the ordinance 22 constitutional. Crucial to the Supreme Court ' s decision in Young 23 was its determination that Detroit' s adult zoning ordinance had a 24 minimal impact on First Amendment interests . Justice Stevens 25 suggested that pornography zoning is constitutional only so long as 26 the "market for this commodity is essentially unrestrained, " 427 27 U.S. at 62. In discussing the restrictive impact of Detroit' s 28 . ordinance, the plurality focused not on the interest of individual 29 proprietors , but on the interests of distributors and consumers of 30 adult materials . A majority seemed to agree that adult zoning 31 • I ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support. of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 22 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 would be unconstitutional if the total number of outlets and the 2 number of potential customers who conveniently patronize them did 3 not remain approximately the same. The court focused on the over- 4 all quality of communication. As Justice •Stevens observed in Marks 5 v. United States , 430 U. S. 188, 51 L.Ed. 2d 260, 97 S.Ct . 990 : 6 However distasteful these materials are to some of us , they are nevertheless a form of communication and 7 entertainment acceptable to a substantial segment of society; otherwise, they would have no value in the 8 marketplace. Marks v. United States, supra. , at page 269 . 9 The majority, in fact, . qualified its holding that the 10 Detroit ordinance did not violate the Equal Protection Clause by 11 ' stating that what was ultimately at issue was "nothing more than a 12 limitation on the place where adult films may be exhibited ,35 13 • • • " 430 U. S. at 71 . The court' s footnote 35 began : 14 The situation would be quite different if the ordi- 15 nance had the effect of suppressing or greatly restricting access to, lawful speech. Here, however , 16 the district court specifically found that "[t]he Ordinances do not affect the operation of existing 17 regulated establishments . This burden on First Amendment rights is slight. Marks v. United States , 18 supra. , at 71, n. 35 . 19 Since Young, a number of courts have dealt with the concept 20 of- a restrained marketplace for adult materials . In E & B 21 Enterprises v. City of University Park, 449 F. Supp. 695 (N.D. Tex. 22 1917) , an adult zoning ordinance which lacked a grandfather clause 23 was struck down since there were only two areas of the city in 24 which the prohibited type films could be shown, one owned by the 25 city and the other already occupied commercially. In Bayside 26 Enterprises , Inc. v. Carson, 450 F. Supp. 696 (M.D. Fla. 1978) , the 27 district court invalidated a zoning ordinance which had a grand- 28 father clause but which strengthened the 1, 000 foot restriction 29 from two other regulated uses (as in the Detroit ordinance) to a 30 31 ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 23 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 • 1 2,500 foot distance requirement from any church, school , or other 2 adult business . The court there concluded that : 3 The zoning plan as it now stands would effect , for all practical purposes , a total ban on the establish- 4 ment of new adult bookstores or movie houses .. . . Bayside Enterprises, Inc. v. Carson, supra. , at 702. 5 Since the ordinance would effectively bar future access to the 6 adult entertainment market , it could not be sustained . In Purple 7 Onion, Inc. v. Maynard Jackson, 511 F. Supp . 1207 (1981) , Judge 8 Marvin H. Schoob found an Atlanta ordinance which required reloca- 9 tion to certain zones and dispersal within those zones to be uncon- 10 stitutional . The court specifically found a four-year amortization 11 ' provision unconstitutional because confining adult businesses to 12 certain business districts of the city would significantly reduce 13 public access to sexually oriented material and entertainment in 14 Atlanta. In conclusion, the court said : 15 16 The effect of the ordinance challenged here on adult entertainment establishments in Atlanta is to squeeze them out of their present , desirable locations and to 17 force them into spaces where they won' t fit , or which 18 are otherwise unsuitable for such businesses . Public access to live, sexually oriented entertainment under 19 the ordinance will be reduced dramatically or elimi- nated altogether. While this court is not prepared 20 to formulate a standard which answers the question left open in American Mini Theatres, this court does 21 conclude that the ordinance restricts public access to presumptively-protected entertainment far too 22 much. The ordinance ' s amortization provisions , combined with its zoning area provisions , are void 23 for greatly restricting public access to speech pro- tected by the First Amendment . Purple Onion, Inc . 24 v. Maynard Jackson, supra. , at 1224 . 25 Recently, in Alexander v. City of Minneapolis, F. Supp. 26 (Minn. 1982) , the court citing Young, Schad and Avalon, struck 27 down a zoning ordinance that went beyond a mere . locational 28 ordinance but , rather, significantly curtailed the public ' s access 29 to adult books and films . Interestingly, and quite properly, the 30 court considered the viability of potential locations as part of 31 its inquiry into the restrictive effect of the ordinance . ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 24 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 , 1 As the affidavits of Bruce Anderson and Robert F. Bond in 2 support of plaintiffs ' Motion For A Preliminary Injunction indi- 3 cate, the effect of Renton' s zoning ordinance on public access to 4 sexually oriented material is not incidental but is both real and 5 substantial. The effect of the ordinance is to require any adult 6 theatre within the City of Renton to locate in an obscure manufac- 7 turing district if available property can be found. There are no 8 available sites that a reasonably prudent investor owning an adult- 9 type business would consider as a possible site to establish such a 10 business . The available locations are wholly unsuited for retail 11 ' or commercial use. The available locations , if any, are so unus- 12 able or inaccessible to the public, that for all practical purposes 13 they amount to no location. 14 The restrictive impact of Ordinance No. 3526 is obvious from 15 the maps attached hereto as Exhibits 1 and 2 . Exhibit 1 is the map 16 attached to David Clemens ' affidavit of January 27 , 1982, which 17 purported to identify available locations within the City of 18 Renton. However, Mr . Clemens later testified at his deposition 19 that his calculations were in error and that the shaded areas of 20 Exhibit 2 represent the only available locations under Ordinance 21 No. 3526 . As indicated by the affidavit of Bruce Anderson, no site 22 is available within the shaded areas of Exhibit 2 for purchase or 23 lease for a theatre location. 24 25 ORDINANCE NO. 3629 IS EQUALLY AS UNCONSTITUTIONAL AS ITS PREDECESSOR AND SUFFERS FROM ADDITIONAL CONSTITU- 26 TIONAL DEFECTS. . 27 As a desparate, boot-strapping act, admitting the partial 28 unconstitutionality of Ordinance No . 3526, the City of Renton 29 enacted Ordinance No. 3629 . This enactment included patently false 30 and unsupported factual findings as well as substantive changes to 31 ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 25 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 cure constitutional defects in Ordinance No. 3526. This ordinance 2 is burdened with the same deficiencies as Ordinance No . 3526 as 3 discussed above. In addition, Ordinance No. 3629 does not cure 4 the deficiencies of Ordinance No. 3526, but , rather, broadens the 5 spectrum of challenges which plaintiffs will discuss briefly here . 6 .) 7 A. ELIMINATION OF THE CRIMINAL PENALTIES FOR VIOLATION OF THE ORDINANCE DOES NOT CURE ITS CONSTITUTIONAL DEFECTS. 8 Section II of Ordinance No. 3629 substitutes a civil abate- 9 ment procedure for the prior criminal sanctions . Whatever the 10 sanctions may be , whether they be criminal or civil , the city may 11 ' not impose a sanction for dissemination of protected press 12 materials and may legislate only within the narrow limits approved 13 in Young v. American Mini Theatres , supra. 14 15 B. ORDINANCE NO. 3629 OPERATES AS A CLASSIC PRIOR RESTRAINT OF 16 FREE SPEECH. 17 Presumably, Section II allows the abatement ,of a nuisance 18 and closes the theatre premises from the showing of any motion 19 picture films . If a narrower construction to Section II is given, 20 and only certain types of films are prohibited , presumably subject 21 to the contempt powers of a court, the same unconstitutional prior 22 restraint is obtained . By defining the word "used" in Section I, 23 and including therein a requirement that pictures must be exhibited 24 in a manner which appeals to a prurient interest, the city has 25 injected a subjective element into the categorization of each 26 motion picture shown. The Supreme Court has twice recently held 27 that nuisance statutes authorizing g preliminary injunctions of 28 indefinite duration or the padlocking of p g premises against the 29 showing of future unnamed films lacks the procedural safeguards 30 demanded by the First Amendment . Vance v. Universal Amusement Co . , 31 ATTORNEYS AT LAW Brief of Plaintiffs in ' Hubbard, Burris &Meyer Support of Prelim. Injunction APROFESSIONALSERVICECORPORATION Page 26 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 • 1 445 U.S. 308 , 100 S. Ct. 1156 (1980) ; Spokane Arcades v. Brockett, • 2 631 F. 2d 135 (9th Cir . 1980) , aff' d 102 S.Ct. 557 (1981) . 3 - The import of the foregoing decisions to the present case is 4 clear. Whenever government seeks to suppress or punish the dissem- 5 'nation of motion pictures or other activities which enjoy the 6 protection of the constitutional guarantees of free speech and press , the procedures employed are subject to the strictest of 8 judicial scrutiny to insure that the circulation of protected 9 speech with sexual content is not unduly constricted. 10 When we deal with the complex of strands in the web 11 , of freedoms which make up free speech, the operation and effect of the method by which speech is sought to 12 • be restrained must be subjected to close analysis and critical judgment in the light of the particular cir- 13 cumstances to which it is applied. Speiser v. Randall, 357 U. S. 513, 520, 78 S.Ct . 1332, 1339 . 14 15 C. ORDINANCE NO. 3629 IGNORES PLAINTIFFS' VESTED ZONING RIGHTS. 18 Plaintiffs ' rights to operate an adult motion picture 17 theatre became vested in January 1982 when they applied for a 18 business license. Parkridge v. Seattle, 89 Wn.2d 454, 573 P.2d 359 19 ( 1978) . But for the unconstitutional restrictions of Ordinance No. , 20 3526, plaintiffs would be exhibiting protected speech materials 21 defined by the ordinance at their present theatre locations . 22 Ordinance No. 3629 acknowledges the constitutional defects of 23 Ordinance No. 3526 and is presumably an attempt to enact constitu- 24 tional legislation. In that attempt, the city could not legally 25 ignore the vested rights of the plaintiffs . See Norco Constr. v. 26 King County, 29 Wash. App. 179, 627 P. 2d 996 (1981) . Ordinance No. 27 3629 fails to recognize . the substantial investment of the plain- 28 tiffs and their vested interest as of the date of the enactment of 29 Ordinance No. 3629, May 3 , 1982, and, as such, is violative of the 30 31 ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 27 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 1 Fourteenth Amendment to the Constitution of the United States and 2 is an unconstitutional taking of plaintiffs ' property. 3 4 D. ORDINANCE NO. 3629 , THE AMENDING ORDINANCE, IS VOID AS A LEGISLATIVE ACT BECAUSE THE CITY COUNCIL EXCEEDED ITS AUTHORITY IN 5, MAKING IT AN EMERGENCY ORDINANCE IN VIOLATION OF ARTICLE II, SEC- TION 1(b) , AMENDMENT VII OF THE CONSTITUTION OF THE STATE OF , 6 WASHINGTON. 7 Article II, Section 1 (b) of the Constitution of the State of 8 Washington, provides : 9 The second power reserved by the people is the refer- 10 endum, and it may be ordered on any act, bill , law, except such laws as may be necessary for the 11 ' immediate preservation of the public peace, health or safety, support of the state government and its 12 existing institutions, . . . 13 In commenting on this reservation of power by the people, the 14 Supreme Court of the State of Washington in State ex rel . Kennedy 15 v. Reeves , 22 Wn .2d 677 , 157 P. 2d 721 (1945) said : 16 We think it too clear to require argument that the legislature cannot defeat the constitutional right, 17 reserved by the people in the introductory paragraph of Amendment VII, . . . by merely inserting in an act 18 the statement included in Chapter 202, P. 579 , Laws of 1945 , . . . to-wit : 19 "This act is. necessary for the immediate 20 preservation of the public peace, health, and safety and for the immediate support 21 of the state government and its existing public institutions and shall take effect 22 immediately. " 23 Such a label may obviously be utterly and completely false. It would be scandalous indeed if the consti- 24 tutional right of referendum could be thwarted by the mere use of false labels . As was said in argument, 25 "if this can be done, the right of referendum is a dead letter in the state: " 26 In State ex rel . Humiston v. Meyers , 61 Wn.2d 772, 380 P. 2d 27 735 (1963) , the State Supreme Court enunciated the current rule for 28 testing ' the weight to be given to "emergency clauses" . The rule 29 stated by the court is : . 30 Such legislative declaration of emergency and 31 necessity for the enactment is conclusive and must be ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 28 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 1 (206)828-3636 • 1 given effect, unless the declaration on its face is ' obviously false ; .and , in determining the truth or 2 falsity of the legislative declaration, we will enter upon no inquiry as to the facts , but must consider 3 the question from what appears upon the face of the act , aided by the court ' s judicial knowledge. 4 "The touchstone of the rule is . . . what appears upon the face of 5 the act , aided by the court ' s judicial knowledge . " 61 Wn.2d at 6 7 778 . In commenting upon this rule, the Court of Appeals in Swartout v. Spokane, 21 Wash. App . 665 , 586 P. 2d 135 ( 1978) held 8 that the legislation must contain a statement of the basic facts 9 that create the emergency. Otherwise, the right of referendum 10 guaranteed to the people would be at the whim of the legislative 11 ' body. This rule was followed in Spokane v. Harris, 25 Wash. App . 12 13 345 , 606 P. 2d 291 ( 1980) . 14 In analyzing Ordinance No. 3629 and its "emergency clause", in light of the decisions referred to above, it is clear that the 15 16 face of the act is patently devoid of any facts relating to an 17 emergency (with the exception of the emergency clause itself) . The 18 ordinance does nothing except to attempt to erase unconstitutional 19 portions of a' zoning ordinance and it adds nothing to the substan 20 tive laws of the City of Renton. On its face, the ordinance does 21 nothing that is necessary for the immediate preservation of the 22 public peace, health and safety or for the immediate support of 23 city government and its existing public institutions . Simply put , 24° no emergency existed to justify the emergency clause of this amend- 25 ing ordinance. In addition, there is nothing within the judicial 26 knowledge of this court which would render the legislation 27 "emergent" . 28 Judicial notice, of which courts may take cognizance, is 29 composed of facts capable of immediate and accurate demonstration 30 by resort to easily accessible sources of indisputable accuracy and 31 verifiable certainty. State ex rel . Humiston v. Meyers , supra. , at ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burins &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 29 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828.3636 . 1 page 779 . In Michaelson v. Williams , 54 Wn.2d 293, 340 P. 2d 770 2 ( 1979 ) , the Washington State Supreme Court said : 3 . . . judicial notice may not be taken of a custom or usage "local in nature" and without the proof of 4 its existence and application . . . 5 In State ex rel Humiston v. Meyers , supra. , the court was urged to 6 take judicial notice of certain facts relative to one city of the 7 state in order to support the "emergency" nature of the law. The 8 court declined to do so for two reasons : 9 First, the administrative policy of a single 10 city--which may change from day-to-day--is not a determinative fact that we should notice judicially 11 ' in the instant case; it is "local in nature" ; second , assuming that the facts claimed exist, the conclusion 12 does not follow from the major and minor premises of the syllogism. State ex rel . Humiston v. Meyers, 13 supra. , at page 779 . 14 Legislation passed in violation of a constitutional mandate 15 is an unlawful exercise of legislative authority and is therefore 16 void. See, Puget Sound Alumni of Capa Sigma Inc. v. Seattle , 70 17 Wn. 2d 222, 422 P. 2d 799 (1967) ; Swartout v. Spokane, supra. ; and 18 Spokane v. Harris , supra. The savings clause, Section V, does not 19 operate to save the other provisions of the ordinance . The entire 20 ordinance is void because it was enacted as an unlawful exercise of 21 legislative authority. Swartout v. Spokane, 21 Wash. App. 665 , 22 673, 586 P.2d 135 (1978) . 23 THE ORDINANCE IN QUESTION IS UNCONSTITUTIONAL AS 24 WRITTEN AND/OR APPLIED IN THE CONTEXT OF THE FIRST AMENDMENT TO THE CONSTITUTION OF THE UNITED. STATES IN 25 THAT THE TOTAL ABSENCE OF OBJECTIVE STANDARDS UNDER WHICH THE HEARING EXAMINER AND CITY COUNCIL MAY ACT 26 • IN DETERMINING WHETHER TO GRANT OR DENY A CONDITIONAL . USE PERMIT, VESTS CITY OFFICIALS WITH VIRTUALLY UN- 27 LIMITED DISCRETIONARY POWER, AND THEREBY EFFECTIVELY IMPOSES A PREVIOUS RESTRAINT UPON FIRST AMENDMENT 28 RIGHTS AS APPLIED TO THE PLAINTIFFS. • 29 Ordinance Nos . 3526 and 3629 create a new zoning use classi- 30 fication: i .e . , adult motion picture theatre . [Section I(2) ] The 31 ATTORNEYS AT LAW Brief of Plaintiffs in s Hubbard, Burns &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 30 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 . .. --'-----'-- ------ L. • 1 ordinances go on in a negative fashion to describe where such a use 2 may not locate . 3 Within the zoning classifications of the City of Renton, 4 there is no zone where an "adult motion picture theatre" may locate 5 as a matter of right . This includes the areas identified by the 6 City of Renton as "areas where Ordinance No. 3526 does not apply" 7 ( see Exhibit to Affidavit of David R. Clemens) . While defendants 8 insist that it is a well publicized fact that such use is permitted 9 as 'a matter of right in the B-1 and more intensive use zones , the 10 facts do not bear this out . Section 4-711 (attached as Exhibit ) 11 ' of the Renton Zoning Code sets forth the permissible uses in the 12 B-1 zone. A theatre use is not included. At his deposition, Mr. 13 Clemens could not identify any documents supporting the "well- 14 publicized administrative position" other than the pleadings in 15 this case. 16 Q. So I take it from your testimony that you do not contend that a theatre use or adult theatre use 17 falls within any of the delineated classifica- tions18 under Section 4-711 but rather by way of past practice and general character of the City 19 has administratively determined it is an appro- priate use for that classification? 20 A. That ' s correct. 21 Q. Now, is there any policy or statement or writing 22 which sets forth this determination by the City that, first, theatres are permitted within the 23 B-1 zone? 24 A. I am not aware of any such written determination. 25 Q. In your capacity as assistant planner or asso- ciate planner, senior planner, acting planning 26 director, now policy development director, if such a writing existed, would you be aware of it 27 generally speaking? 28 A. I would think so. 29 'Q . Is there any writing that exists by the City of Renton or any policy that is set forth in writing 30 that sets forth that an adult motion picture theatre is a permitted use within the B-1 zone? 31 ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 31 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 s i . 1 A. I am not aware of any such written statement. 2 (Pages 74-75,. Vol . I, Deposition of David Clemens ; 3 see also pages 29-31, Vol. II, Deposition of David Clemens ) . 4 Proceeding, as we must, under the fact that an adult, motion picture 5 theatre is not permitted as a matter of right in the B-1 zone , the 6 appropriate procedure is to obtain a conditional use permit to 7 operate in that zone or any more intensive use zone . (Page 77 , 8 lines 23-25, Vol. I, Deposition of David Clemens) . 9 Section 4-722(F) , (Exhibit "B" ) , provides power to the hear- 10 in ' g examiner to grant conditional use permits . The purpose of a 11 ' conditional use permit is to assure that compatability of uses is 12 maintained, considering other existing and potential uses within 13 the general area of the proposed use. The hearing examiner has the 14 discretion to deny an application if the characteristics of the 15 intended use would create an incompatible condition. The standards 16 to be used in granting or denying a conditional use permit are set 17 I forth in Section . 4-722(F) (3) and are attached hereto as Exhibit 18 "C" . These standards are far from being precise and capable of 19 objective measurement. There are no written objective criteria for 20 the hearing examiner to use in making his determination. (Pages 21 87-89 , Vol. I, Deposition of David Clemens) . The hearing 22 examiner' s decision would be virtually totally discretionary. 23 ( Page 32, lines 8-13, Vol . II, Deposition of David Clemens) . 24 Assuming that a conditional use permit is not required and 25 an administrative determination is appropriate with respect to 26 whether a particular use falls within the zoning laws of Renton, 27 similar subjective discretionary criteria exists . In the past , 28 when spmeone has wanted to put a property to a use not covered by p 29 the zoning code, the city has applied subjective criteria in making 30 31 ATTORNEYS AT LAW • Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 32 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828.3636 1 such determinations . (Page 85, line 22-Page 86, line 13 , Vol . I, 2 Deposition of David Clemens ) . 3 While an administrative determination is appealable to the 4 courts , the hearing examiner 's decision relative to a conditional 5 use permit is appealable only to the City Council, which is not 6 required to act within any reasonable time so as to avoid the 7 possibilities of a prior restraint on free speech. (Page 33, lines 8 14-20 , Vol. II, Deposition of David Clemens) . Nowhere in Section 9 4-711 of the zoning code is an adult motion picture theatre 10 mentioned, let alone a motion picture theatre of any sort. The 11 ' words of the statute are not vague or subject to construction, nore 12 do the defendants contend that they ar vague. This court does not 13 have the ability to construe a statute to include words and phrases 14 which are not there on its face nor does a State Court have that 15 power or ability. No judicial construction can be placed upon the 16 ordinances as they now exist to conclude that an adult motion 17 picture theatre may locate as a. matter of right in the B-1 business 18 district or any more intensive land use classification. The 19 legislative body had the power to do so, and still has that power, 20 but it has not yet acted. 21 As a consequence, the only way plaintiffs or any First 22 Amendment protected adult theatre operator could locate within the 23 City of Renton is by subjecting itself to standardless , discretion- 24 ary, administrative procedures of a potentially unlimited duration. 25 These procedures, criteria and guidelines are unconstitutional when 26 applied to First Amendment activities . Renton has attempted to 27 engraft a constitutionally suspect zoning ordinance upon an admin- 28 . istrati,ve scheme which then becomes wholly unconstitutional when , 29 considered in light of the First Amendment interests at stake. The . 30 only guidelines , standards or 'criteria to be used in evaluating an 31 ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 33 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 • 1 application for a conditional use are contained in Section 2 4-722(F) (2) , 4-722(G) (3 ) and 4-3014 of the Renton Municipal Code . 3 The result is that, first, the city hearing examiner, and later , , 4 the city council, are granted unlimited discretionary authority to 5 grant or deny a conditional use based upon their subjective 6 determination of the meaning to be ascribed to the operative 7 provisions . 8 Where zoning-conditional use ordinances are used to regulate 9 the operation of adult businesses, the same definite and objective 10 guidelines must be used for the issuance of permits as for the 11 issuance of licenses for conduct protected by the First Amendment . 12 Ebel v. City of Garden Grove, 120 Cal .App .3d 399, 176 Cal .Rptr . 312 13 ( 1981) ; City of Imperial Beach v. Palm Avenue Books , Inc . , 115 14 Cal. App . 3d 138, 171 Cal.Rptr. 197. The rules from the licensing 15 cases are well established. A long line of decisions have held 16 unconstitutional ordinances governing the issuance of licenses or 17 administrative procedures to conduct activities touching upon First 18 Amendment freedoms which were susceptible of sweeping and improper 19 application by granting to an official or group of officials 20 excessive discretion in determination whether to grant or deny the 21 license. 22 An ordinance empowering p g the city officials to exercise 23 discretion in light of the "character of the applicant" and the 24 "effects upon the general welfare" of the organization for which 25 members were solicited was held unconstitutional in Staub v. City 26 of Baxley, 355 U. S. 313 (1957 ) . Ordinances which permitted city 27 officials to deny a license if the applicant "was not of good 28 character or is canvassing for a project not free from fraud" or , 29 if in the officials ' opinion, the refusal of a p , permit would prevent 30 " riots , disturbances or disorderly assemblage" have been declared 31 ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burins &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 34 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 • 1 unconstitutional . Schneider v. State, 308 U.S. 147 (1939) ; Hague 2 v. CIO, 307 U. S. 496 ( 1938) . The same resulted where the 3 ordinances provided that a permit could be granted for the distri- 4 bution of religious publications if the 'city officials deemed it 5 "proper and advisable, " or where the cause for which the applicant 6 desired to solicit was "religious" , Largent v. Texas, 318 U.S. 418 7 ( 1942) ; Cantwell v. Connecticut, 310 U. S. 296 (1939) . Ordinances 8 were held unconstitutional where no standards whatsoever were set 9 forth to circumscribe the discretion of officials in granting or 10 denying licenses , Kunz v. New York, 340 U. S. 290 (1950) ; Saia v. 11 New York, 334 U. S. 558 (1947) . And see : Lovell v. Griffin, 303 12 U. S. 444 ( 1937 ) ; Niemotko v. Maryland , 340 U. S. 268 (1950) ; 13 Shuttlesworth v. Birmingham, 394 U. S. 147, 150-151 , n. 2 (1969) . 14 Also see : Seattle v. Bittner, 81 Wn. 2d 747 (1973 ) ; Fine 15 Arts Guild, Inc. v. Seattle, 74 Wn.2d 503 (1968) ; Wortham v. City 16 of Tucson, 624 P. 2d 334 (Ariz. App. 1980) ; Williams v. City and 17 County of Denver, 607 P. 2d 981 (Colo. 1979) ; Talk of the Town i 18 Bookstore v. City of Las Vegas, 553 P. 2d 959 (Nev. 1976) ; People of 19 New York v. Mitchell , 346 N.Y.S. 2d 495, 74 Misc . 2d 1053 (1973 ) . 20 Plaintiffs contend tht a cursory examination of the zoning 21 ordinances involved herein ". . . undeniably reveals that they do not 22 provide precise standards capable of objective measurement--the 23 sensitive tools to be employed whenever First Amendment rights are 24 involved. " Nowhere in the body of the • ordinane does it specify 25 with any degree of objectivity j y the grounds, criteria or the 26 standards to be applied in Pp granting or denying special permission. 27 As .written, the ordinance fails to t". . . provide explicit standards 28 for those who apply it . . . " and, as such, having given the city 29 hearing examiner and the city council "the effective power to grant 30 or deny permission . . . the ordinance suffers in its 31 practical ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. Injunction A PROFESSIONAL SERVICE CORPORATION Page 35 • • 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 • • 1 effect from the vice condemned in Lovell, Schneider, Cantwell and 2 Staub. " Hynes v. Mayor of Oradell , supra. , at 254. 3 The inclusion of patently vague criteria on the one hand and 4 total absence of standards on the other indicates the possibility 5 of precision or objective measurement, the minimum criteria which 6 the United States Supreme Court has determined to be essential to 7 the validity of any ordinance touching upon First Amendment rights . 8 Thus , just as the United States Supreme Court ruled that the 9 ordinances at issue in Staub, Largent, Cantwell, Shuttlesworth, and 10 Hynes , supra. , failed to meet the minimum standards , so too, it is 11 plaintiffs ' contention that the provisions at issue fail to meet 12 the same criteria and, therefore, are unconstitutional . 13 14 CONCLUSION 15 For the foregoing reasons , plaintiffs respectfully submit 16 that plaintiffs have demonstrated a probability of success on the 17 merits , that the balance of hardships tips in their favor and this 18 Court should enter a preliminary injunction against the enforcement 19 of City of Renton Ordinance Nos. 3526 and 3629 and deny defendants ' 20 Motion For Summary Judgment. 21 DATED this day of June, 1982. 22 Respectfully submitted, 23 HUBBARD, BURNS & MEYER 24 25 B Y Jack R. Burns 26 Attorney for Plaintiffs 27 28 29 30 31 I ATTORNEYS AT LAW Brief of Plaintiffs in Hubbard, Burns &Meyer Support of Prelim. In junction A PROFESSIONAL SERVICE CORPORATION Page 36 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 , - , '„ I • ; ' . . , , . • in 11 ,1 m11 . . in 1 ' i . Millifita . 1 MINIK . i , L titIlm - . : • - • - gli Uli 1 1 • • if .;1.14•4 .._ 4 ' N. --i---I . --- • i- I kit I \ 1 = • • .' :; ....•11. go= i' .' Affigati . ' AREAS WHERE ORD.# 3528 DOES NOT APPLY 1=1111111. . ---1 - I . \i'.. . •\ "Ji ..... . • I I I ,r-tik‘ LAKE\ ''\WI rs%N,• V/ASHINGTbN ...s mis ie, slio I \ 1- US114*0 . ' I" Illakir ,SenitO -- r ! bftl11111.41.116.7."'"'"i, . '' • ri„„ irgu'qvirIti&n III ' : i . odmitameat. -.1ei -_v!..4 le= .-.,1:. . • . = •• ,, „Tat A rmAioniiff, ul , %arm it, == .. I 2 111111eima -Aglow limi3-1.5.A. \ • Igvtiiifi="1 1.1 .71 - ' bilk ' L- rqiii. eshib„_____;12.70- \\_ino ii imb • _. I ,k . Imo. f 112, Norsup Appor" • 1" I iiihmk. 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I , i ‘i.. • , I I - IT .---,----.A.7rFasisiiiiiitiiiiio 0!6 i b.. ._ . _ :.-- - ' '• -.:- ..:_.:.4- IL [1.1.1±. \1 ,.. . ,, •._....,• i T1,,,,r_,T.1 ,1 I 4 ii ...: I i ' I 1 i / '-_re-i:E.‘__._...-.._:•2f.._ :1 illisil It ) . (t II I ' • . • C \ Exhibit 1 1 /_____." • • 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 ►. 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 ire'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 cr 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 • it 3 Exhib ..�.a 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 aim/ combination thereof. • (See following page for remainder of Chapter) 562;1265;1069;1269;271;976;277 • • I 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 also known as Chapter 19 of Title IV (Building eRegul tons 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. L-1 LIGHT INDUSTRY DISTRICT. III the L-1, III Industry 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 . •.ram--:. • • • 4-722 4-722 (E) T • f temporary permits for structures and uses that don rm with the regulations herein prescribed. A tem o mit shall be granted for a maximum period up t years and may include any conditions imposed eating Examiner. (Ord. 2630, 4-26-71; amd. 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,21 (e) Hospital, sanitarium or similar uses (f) Public or nonprofit library or museum !I (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 • • • 4-722 • 4-722 F,3) (f) Traffic flow; (g) Circulation; (h) 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) Prevent overcrowding of land; (m) Facilitating adequate provision for transportation and in general, �I to promote the public health, safety, and welfare; (n) Prevention of neighborhood deterioration and blight; (o) The objectives of zoning and planning in the community; j (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 .wires or required any permit or approval as set forth in Chapter 30 .f Title IV. The Board of Adjustment shall have authority to gra• 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 o Chapter 30, Title IV. The Board of Adjustment shall have no auth• • y to vary the terms or conditions of any permit, recommendation o •ecision 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 1. deemed to justify the granting of such variance. Notice of the • ''� • • . • • - • • ,, 571;277;181 • • • Kret etizu;J CITY OF RENTON CITY OF RENTON, WASHINGTON JUN 171982 ORDINANCE NO. 3637 POLICY CVO!OPMENT DEPT: AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON AMENDING ORDINANCE NO. 3526 RELATING TO LAND USE • AND ZONING AND AMENDING ORDINANCE NO. 3629 BY DELETING THE EMERGENCY CLAUSE AND RE-ENACTING THE REMAINDER THEREOF - ' WHEREAS , on April 13 , 1981 , the City Council of the City of Renton adopted Ordinance No. 3526 , which Ordinance was approved by the Mayor on April 13, 1981 , and became effective by its own terms on June 14, 1981 ; and . WHEREAS , on May 3, 1982 , the City Council of the City of Renton adopted Ordinance No. 3629 amending Ordinance No . 3526 , which Ordinance was approved by the Mayor on May 3 , 1982 , and became effective on its passage and by the terms of the Ordinance ; and 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 of Young v. American Mini Theaters , 427 US 50 , and of the Supreme Court of the , State of Washington in the case of Northend Cinemas v. Seattle , 90 Wn 2d, 709 , to limit the location of adult motion picture theaters . as that term is defined therein, to promote the City of Renton' s great interest in protecting and preserving the quality of its neighborhoods , commercial districts , and the quality of urban life through effective land use planning; and WHEREAS , the City Council , through its Planning and Development Committee , held a public meeting on March 5 , 1981 , to 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 . 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- 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 or shop elsewhere if adult entertainment land uses are allowed to locate in close proximity to residential uses , churches , parks and other public facilities , and schools . 12. Location of adult entertainment land uses in proximity to residential uses , churches , parks and other public facilities , and schools , may lead to increased levels of. criminal activities , including prostitution, rape , incest and assaults in the vicinity of such adult ' entertainment land uses . 13. Merchants in the commercial area of the City are concerned about adverse impacts upon the character and quality of the City in the event that adult entertainment land uses are located within close proximity to residential uses , churches , parks and other public facilities , and schools . Location of adult entertainment land uses in close proximity to residential uses , churches , parks and other public facilities , and schools , will reduce retail trade to commercial uses in the vicinity , thus reducing property values and tax revenues to the City. Such adverse affect on property values will cause the loss of some commercial establishments followed by a blighting effect upon the commercial ' districts within the City , leading to further deterioration of the commercial quality of the City. 14. Experience in numerous other cities , including Seattle , Tacoma and Detroit , Michigan, has shown that location of adult entertainment land uses degrade the quality of the area of the City in which they are located and cause a blighting effect upon the City. The skid row effect , which is evident in certain parts of Seattle and other cities , will have a significantly larger affect upon the City of Renton than other major cities due to the relative sizes of the cities . 15 . 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. -3- • �I PI 1 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 providins; to those who desire to patronize adult entertainment ._land uses such an opportunity in areas within the City which are appropriate for location of adult entertainment land uses . 18. The community will be an undesirable place to live if it is known on the basis of its image as the location of adult entertainment land uses . 19 . A stable atmosphere for the rearing of families cannot be achieved in close proximity to adult entertainment land uses . 20 . The initial location of adult entertainment land uses will lead to the location of additional and similar uses within the same vicinity , thus multiplying the adverse impact of the initial location of adult entertainment land uses upon the residential , churches , parks and other public facilities , and schools , and the impact upon the image and quality of the character of the community. and WHEREAS , since the adoption of Ordinance No . 3526 , it has come to the attention of the City Council of the City of Renton that it would be appropriate to set forth in writing the findings of fact which were the basis for the adoption by the City Council of Ordinance No . 3526 ; and WHEREAS , the City Council finds that , in order to choose the least restrictive alternative available to accomplish the purposes for which Ordinance No . 3526 was adopted, and in include a severability clause which was inadvertently omitted from Ordinance No . 3526 , and to make certain other technical amendments to Ordinance No . 3526 , that it is necessary for the City Council to adopt 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 , -4- and which, together with the findings heretofore set forth as the basis for the adoption of Ordinance No. 3256 , form the basis for the adoption of this Ordinance: 1. Many parents have chosen the City of Renton in which to raise their families because of the lack of pornographic entertainment outlets with its influence upon children external to the home. . 2 . Location of adult entertainment land uses on the main commercial thoroughfares of the City gives an impression of legitimacy to , and causes a loss of sensitivity to the adverse affect of pornography upon children, established family relations , respect for marital relationship and for the sanctity of marriage relations of others , and the concept of non-aggressive consensual sexual relations . 3. Citizens from other cities and King County will travel to Renton to view adult film fare away from areas in which they are known and recognized. 4. Property values in the areas adjacent to the adult entertainment land uses will decline , thus causing a blight upon the commercial area of the City of Renton. 5 . Location of adult entertainment land uses within neighborhoods and commercial areas of the City of Renton is disrupting to youth programs such as Boy Scouts , Cub Scouts . and Campfire Girls . Many such youth programs use the commercial areas of the City as a historical research resource. Location of adult entertainment land uses in close proximity to residential uses , churches , parks and other public facilities and schools is inappropriate. 6. Location of adult entertainment land uses in close proximity to residential uses , churches , parks and . other public facilities , and schools , will cause a degradation of the community standard of morality . Pornographic material has a degrading effect upon the relationship between spouses . NOW THEREFORE , THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON DO ORDAIN AS FOLLOWS : SECTION I : Existing Section 4-702 of Title IV (Building Regulations) of Ordinance No. 1628 entitled "Code of General Ordinances ' of the City of Renton" is hereby amended by adding the following subsections : -5- • • it "Used" The word "used" in the definition of "Adult motion picture theater" herein, describes a continuing course of conduct of exhibiting "specific sexual activities" and "specified anatomical area .in a manner which appeals to a prurient interest . SECTION II : Existing Section 4-735 of Title IV (Building Regulations) of Ordinance No. 1628 entitled "Code of General Ordinances i of the City of Renton" is hereby amended by adding the following 1 subsections : (C) Violation of the use provisions of this section is declared to be a public nuisance per se, which shall be abated by City Attorney by way of civil abatement procedures only , and not by criminal prosecution. (D) Nothing in this section is intended to authorize , legalize or permit the establishment , operation or maintenance of any business , building or use which violates any City of Renton ordinance or statute of the State of Washington regarding public nuisances , sexual conduct , lewdness , or obscene or haLmful matter or the exhibition or public display thereof. SECTION III : Existing subsection (A) (2) of Section 4-735 of Title .IV (Building Regulations) of Ordinance No . 1628 entitled , ! "Code of General Ordinances of the City of Renton" is hereby amended to read 'as follows : 2 . One thousand feet (1 ,000 ' ) of any public or private school . • SECTION IV: City of Renton Ordinance No . 3526 is hereby • • !. amended by adding the following section to read as follows : If any section, subsection, sentence , clause, phrase or any portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the 'remaining portions of this ordinance. The City Council of the City • 6- 1 - it 1 of Renton hereby declares that it would have adopted City of Renton Ordinance No. 3526 and each section, subsection, sentence , clause , phrase or portion thereof irrespective of the fact that any one or more sections , subsections , sentences , clauses , phrases or portions be declared invalid or unconstitutional . SECTION V: If any section, subsection, sentence, clause, phrase or any portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Renton hereby declares that it would have adopted this ordinance and each section, subsection, sentence , clause, phrase or portion thereof irrespective of the fact that any one or more sections , sub- sections , sentences , clauses , phrases or portions be declared invalid or unconstitutional . SECTION VI : This ordinance shall be effective upon its passage , and approval and thirty (30) days after its publication. PASSED BY THE CITY COUNCIL this 14th day of June, 1982 . Delores A. Mead, LCity ,Clerk APPROVED BY THE MAYOR this 14th day of June, 1982 : Barbara Y. Shinpoch , Mayor Approved as to form: (-44,0,.4„4f Lawrence J. Trarren, City Attorney Date of Publication: June 18, 1982 ii • __ • I , • 1 II ,, 2 f , 3 4 ' • I 5 6 7 li • 8 UNITED STATES DISTRICT COURT 1 . 9 FOR THE WESTERN DISTRICT OF WASHINGTON PLAYTIME THEATRES, INC. , a ) li 10 Washington corporation, et al . , ) 11 , ) NO. C82 459M ) 12 Plaintiffs , ) vs . ) AFFIDAVIT OF BRUCE ANDERSON 13 ) IN SUPPORT OF PLAINTIFFS' THE CITY OF RENTON, et al . , ) MOTION FOR A PRELIMINARY ) INJUNCTION I 14 Defendants . ) 15 ) 16 STATE OF WASHINGTON ) ) ss . 17 COUNTY OF KING ) • 18 Bruce Anderson being first duly sworn on oath, deposes and 19 says : 1. I am a resident of King County, Washngton. ' I graduated 21 from the University of Washington in 1973 , Rafter having been 22 awarded a .Bachelor of Arts Degree in Englishl'. Subsequently, I 23 attended Gonzaga Law School and g graduated in11977 with a Juris 24 Doctorate Degree. In 1979 I was admitted to practice law in the' 25 I State of Washington. I am currently licensed asian attorney in the 26 State of Washington, although I have never activiely practiced law. , 27 2 . I am licensed by the State of Washington as an Associate 28 Real Estate Broker and have been so licensed since 1977 . Prior to 23 that time and beginning in 1973, I was licensed by the State of 30 Washington as an Associate Realtor. For the past four and one-half 31 ATTORNEYS AT LAW Hubbard, Bums &Meyer Affidavit of Bruce Anderson A PROFESSIONAL SERVICE CORPORATION Page 1 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 1 years I have been employed by Grubb & Ellis , and have worked in 2 their commercial real estate departments within the Greater 3 Metropolitan Seattle Geographic Area. • 4 3 . Duringthe past four and one-half years in the employ of 5 Grubb & Ellis , I have worked in the commercial real estate division 6 specializing in working with developers of commercial properties . 7 In connection therewith, it has been my responsibility to research 8 properties to determine the availability of sites for developers 1 9 and/or the availabilityof buildings for g purchase , sale or use by a 110 developer. In addition to actively researching the availability 111 of properties and negotiating for the purchase of sites at the 12 request of clients , I have done extensive research relative to the 13 ownership of blocks and tracts of land within the City of Seattle 14 and elsewhere in King County. 15 4 . On February 3, 1982 I was retained by Kukio Bay 16 Properties, Inc. and Playtime Theatres , Inc . to research the avail- 17 ability of property within the corporate limits of the City of 18 Renton for use as an adult motion picture theatre . On that date , I 19 met with Jack R. Burns , and was furnished with a map prepared by 20 David W. Clemens which generally described the areas of the City of 21 Renton where an adult motion picture theatre could purportedly 22 locate. Based upon that documentation and information furnished 23 me, I prepared a map, a copy of which is attached hereto as Exhibit 24 "A" , identifying, generally, the areas that he had described to me . 25 From that ma I was able to identifythe owners of the P, properties 26 by going to a local title company and securing detailed maps of the 27 particular areas involved and locating the owners by way of the 28 latest King County Assessor ' s information. Some of the assessor ' s r 29 information was outdated or did not reflect the current status of 30 the ownership of the properties involved . By further research of 31 ATTORNEYS AT LAW Hubbard, Burns &Meyer Affidavit of Bruce Anderson A PROFESSIONAL SERVICE CORPORATION Page 2 10604 N.E.38th Place,S\to 105 • Kirkland,Washington 98033 (206)828-3636 II • • • 1 subsequent sales , I was able to determine the present ownership of 2 all properties identified within the areas marked by yellow in the' 3 attached Exhibit "A" . 4 5 . Subsequent to identifying the' owners of these proper- 5 ties , I proceeded to contact each owner to determine the availa- 6 bility of their property for sale or lease for use as an adult 7 motion picture theatre . Generally, I found that none of the 8 property identified on Exhibit "A" is available for sale or lease . 9 In particular , my research disclosed the following : 10 a : ,The site marked on Exhibit "A" with the number 2 is 11 ' included totally within the area owned by Metro and used for a 12 sewage disposal site. This g P property is intensely developed for 13 that purpose and is much more than a garbage dump. Eased upon the 14 extensive development , expensive improvements , and the expressed 15 public desire of Metro to expand its Renton sewage treatment plant, 16 I concluded that this site was not available . 17 b . On the attached Exhibit "A" , the area including 18 Longacres and to the south, identified by the numbers 3 , 4 and 4A, 19 is also not available. This property is owned by the Washington 20 - Jockey Club, Broad Acres , Inc . , and the Washington Horse Breeders 21 Association. All of these properties are generally associated with 22 the operation of Longacres . I spoke with Jim Anderson, the comp- 23 troller of these entities , who takes his directions from Morrie 24 Alhadeff and, who exercises general managerial control over the 25 Longacres complex. He indicated to me that he was authorized to 26 speak on behalf of the owners . Longacres is currently pressed for 27 panking space. The property, including that to the south, is not 28 available for sale or lease and, in fact, the owners would give 29 serious consideration to purchasing additional adjoining property 30 if any became available to meet their current and projected needs . 31 ATTORNEYS AT LAW Hubbard, Burns &Meyer Affidavit of Bruce Anderson A PROFESSIONAL SERVICE CORPORATION Page 3 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 • 1 c . The area on Exhibit "A" identified by the number 6 2 is owned by the Jack A. Benaroya Company and has been developed as 3 a business park. I spoke with Joel Benoliel , general counsel and 4 secretary for Jack A. Benaroya Company, relative to the avail- 5 ability of this property for sale or lease for a motion picture 6 theatre . He indicated to me that he was authorized to speak on 7 behalf of the corporate entity. He advised me that there are seven 8 industrial oriented buildings on the site , all of which are leased 9 to the Boeing Company with no space available for sale or lease for 10 any reason whatsoever. In addition, he indicated that of the 11 ' Benaroya Business Parks located within the City of Renton, there is 12 no space available for lease nor for sale. / \/\1 3 13 n d . The area on Exhibit "A" identified by t e number 7 14 is part of the Koll Business Center . I spoke with Mark Niemrow, 15 attorney and vice-president in charge of finance for the corporate 16 entity. He indicated to me that he was authorized to speak on 17 behalf of the corporation. He' further indicated to me that the 18 property was not available for sale or lease inasmuch as any 19 theatre use would not comply with the covenants , conditions and 20 - restrictions imposed upon the complex. 21 e . On the map, the area identified by the number 9 22 - belongs to the Sternco Land Company. I spoke with Allen Sternof, a 23 family member and principal of Sternco Land Company. He indicated 24 to me that he was authorized to speak on behalf of the owners; and 25 advised me that the property is definitely not for sale . 26 f. The property identified on Exhibit "A" as number 10 27 is .owned by William E. Roberts . I spoke with Mr. Roberts relative 28 to a sale or lease of the property for an adult motion picture 29 theatre. The property in question is currently vacant land and for 30 sale . 31 ATTORNEYS AT LAW Hubbard, Burns &Meyer Affidavit of Bruce Anderson A PROFESSIONAL SERVICE CORPORATION Page 4 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 • 1 He indicated that the property would not be available for a theati 2 location, particularly an adult motion picture theatre , inasmuch 3 he felt that such a use would be incompatible with current uses a] 4 projected uses of the property. 5 g . Attached hereto as Exhibit "B" is a map showing 6 section of the property indicated on Exhibit "A" which is border( 7 on the West by Interurban Avenue and on the East by Burlingt( 8 Northern railroad tracks . Identified on this map is site 11 . Si' 9 11 contains appoximately .33 acres of total land . This area is n 10 large enough to locate a motion picture theatre of a reasonab: 11 size per the needs of the plaintiff, Kukio Bay Properties , Inc 12 which I understand to be 1 to 1-1/4 acres (see Volume I, Depositiq 13 of David R. Clemens , pages 68-69) and , thus , I did not considl 14 this site further , other than to note that the site is current: 15 fully developed with a warehouse facility. 16 h. The site identified by the number 12 on Exhibit "B 17 It is an owner occupied facility which is developed as a warehou 18 quasi-manufacturing facility and is not suitable for use as 19 motion picture theatre of any sort . 20 i . The site identified by the number 13 on Exhibit " 21 is owned by Norman K. Dewey. I spoke with Mr . Dewey, who indicate 22 to me that the property is not available for sale . The property 23 currently being used by the owner as a wholesale hobby and ti 24 outlet and the space is unavailable for sale or rent in tl 25 foreseeable future . 26 j . The site identified by number 14 on Exhibit . "Bit 27 owned by Harold Hill and Bruce Rowe. This property is present 28 / / / 29 / / / / / / 31 ATTORNEYS AT LAW Affidavit of Bruce Anderson Hubbard, Burns Meyer A PROFESSIONAL SERVICE CORPORATION Page 5 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 !II • • 1 built out as a warehouse site and is fully occupied; and the owners 2 indicated to me that the property as constructed is not available 3 for sale or lease for any purpose whatsoever. 4 k. The site identified by number 14A on the attached 5 Exhibit "B" is owned by the R.A. Heitz Construction Co . This site 6 is presently built out as warehouse space and is occupied by the 7 owners ; and no part or parcel is available for sale or lease for 1 8 any reason, much less as a theatre . 9 1 . The site identified by number 16 on Exhibit "A" is 10 part of a larger parcel which was recently purchased by Holvick, 11 ' deRegt & Koering. I was able to contact an authorized agent of i 12 theirs , Ed Sullivan, at his offices in Sunnyville , California, area 13 code (408) 773-0111 . Mr. Sullivan indicated to me that the prop- 14 erty was recently purchased and is being developed as a "high 15 tech--research and development" type of product . Smaller buildings 16 will be constructed to be sold to R & D owner/users . He indicated 17 to me that they were not interested in selling any of the property 18 or leasing it for a theatre use, inasmuch as such a use would be 19 incompatible with their development program. Any use on the 20 property under prevailing circumstances would have to be R & D 21 oriented. 22 M. The remainder of the property outlined in yellow on 23 Exhibit "A" is generally shown by the numbers 1 and 8 . This prop- 24 erty is owned by Burlington Northern, Inc . I spoke with Dick 25 Stafford in the real estate department of Burlington Northern, Inc . 26 He indicated to me that he was authorized to speak on behalf of the 27 company. He further indicated to me that corporate policy and 28 financing dictates that all rail served sites be exclusively 23 reserved for rail user tenants . All sites identified by the 30 numbers 1 and 8 , the bulk of the property in question, are rail 31 ATTORNEYS AT LAW Affidavit of Bruce Anderson Hubbard, Burns &Meyer Page A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 ICI • III 1 served and, thus , would not be available for sale or use to a movie 2 theatre or any kind of business catering to a retail market . 3 6 . On June 3 , 1982 counsel for Playtime Theatres and Kukio 4 Bay Properties , Inc . gave me a map prepared by David Clemens that 5 added additional area to the area already researched by me . 6 Attached hereto as Exhibit "C" is an approximate outline, on a 7 larger scale , of the depicted area. Based upon current tax 8 records , I determined the following: 9 a . The area cross-hatched on Exhibit "Ctt is owned by 10 Burlington Northern, Inc . and is not available for a theatre use 11 for the reasons set forth in paragraph 5 (m) hereof. 12 b . The area double cross-hatched in the lower right 13 hand corner of Exhibit "C" is part of the Koll Business Center and 14 is not available for the reasons set forth in paragraph 5 (d ) 15 hereof . U`����)16 Oft.d° c. The area Id ntified by the number 1 is owned by 17 Metro Industrial District No . 1 . I did not research this area 18 further other than to note that a drainage district runs through 19 the center of the property for its entire length which limits its 20 usabilit • and further, that the y; property has no road access . 21 d . The property identified by the number 2 is owned by 22 Mildred M. Summers and is vacant land. I could not locate Ms . 23 Summers in the phone book or through directory assistance or other 24 available directories . 25 e . The property identified by the number 3 on Exhibit 26 ttC't is owned by James F. Harper and James W. Tripp. I was able to 27 learn that the property has been sold but was presently in fore- 28 closure, and the rights of the respective parties would not be clear 29 until perhaps later this month. Mr. Harper indicated that they 30 would consider selling a portion of the premises for a theatre use , 31 ATTORNEYS AT LAW Hubbard, Burns &Meyer Affidavit of Bruce Anderson A PROFESSIONAL SERVICE CORPORATION Page 7 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 • 1 but they could not state a. price nor offer any assurance that t 2 would • be able to recover the property in the foreclosure proce 3 ings . Additionally, this property does not have access from 4 through street. 5 f . The area identified by the number 4 on Exhibit ' 6 is owned by Mobil Oil Company and is developed with .a tank fa 7 In my judgment , Mobil would not lease or sell this property beca 8 of the extreme difficulty and expense of . relocating it . For t 9 reason and because of time constraints , no further investigation 10 this property was made. 11 g . The area identified by the number 5 on Exhibit " 12 is owned by Martin & Howard Seelig. Howard Seelig indicated th 13 they were not willing to sell just a portion of this 12 acre si 14 in order to accommodate a theatre. 15 h. The area identified by the number 6 on Exhibit "I 16 is owned by the City of Renton. I was advised by counsel for tt 17 plaintiffs that during his deposition, Mr . Clemens indicated th 18 it was unlikely that the City of Renton would agree to a use 19 sale of its property for use as an adult motion picture theatr( 20 Accordingly, I did not consider this site further . 21 i . The area marked with the number 7 on Exhibit "C" : 22 owned by Metro and for the reasons stated in paragraph 6 (c) ar 23 5 (a) , is probably not available for use as a theatre site . 24 7 .. Attached hereto as Exhibit "D" is a map on which I ha` 25 approximated the remaining locations shown on the map attached 26 the affidavit of David Clemens dated May 26, 1982. 27 a . The area marked with the number 1 on Exhibit "D" 28 owned by Perry Brothers, Inc . and is built out as a rail-serv( 29 warehouse facility and would not be suitable for a retail theatr 30 use. � `\ 1-4\ ' 31 / A ATTORNEYS AT LAW +�\1 Hubbard, Burns &Meyer Affidavit of Bruce An d e so A PROFESSIONAL SERVICE CORPORATION Page 8 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 I it I. 1 b. The area marked with the number 2 on Exhibit "D" has 2 two ownerships . The corner piece consists of approximately 0. 84 3 acres which is owned according to the tax records by Ray Mack, 4 Inc . , whose address is listed as a Renton post office box. I was li 5 not able to locate the owner through any available directory. This 6 parcel is too small to accommodate the needs of the plaintiffs 7 which is approximately 1 . 25 acres . li 8 c . The remainder of the property identified on Exhibit 9 "D" is part of an extremely large shopping center property, whose 10 prime tenant is a Payless Drug Center. The entire parcel is II 11 ' developed as a shopping center with paved parking. I was not able 12 to locate the owner of the property who is identified in the tax 13 records as Mission, Inc . , with a Portland address . 14 In my experience as a real estate broker,, I have never seen 15 the owner of a developed shopping center property sell off or lease 16 any extra parking area to an adjoining property owner . Because of 17 changing zoning requirements for parking, any such sale or lease 18 could potentially cripple future expansion or redevelopment of the 19 site. . 20 8.. In my professional opinion as a real estate broker and 21 based upon my experience and training in the commercial real estate 22 field; and based upon my experience in attempting to negotiate for 23 developers and p purchasers for property sites that they seek to 24 acquire from existing owners , the sites identified on Exhibits "A" , 25 tr n n "D" B , n C and as potential locations for an adult motion picture 26 theatre , with the few exceptions noted, are not currently . ayail— 27 able, nor is there any reasonable likelihood that these sites will 28 become available for such a use in the foreseeable future . 29 VALA„e_t_ 31 Bruce Anderson ATTORNEYS AT LAW Hubbard, Burns &Meyer Affidavit of Bruce Anderson A PROFESSIONAL SERVICE CORPORATION Page 9 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 • SUBSCRIBED AND SWORN to before me this ),S*day of p I 2 1,982. 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I -..i t t..i..1•: :Tf..--"... --•1 ••----1 r-- ---\ \\\\ I- , I• 1 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 ) Washington corporation, et al. , ) 11 ' ) NO. C82-59M Plaintiffs, ) 12 vs. ) AFFIDAVIT OF ROBERT F. BOND 13 THE CITY OF RENTON, et al. , ) ) 14 Defendants. ) 15 ) THE CITY OF RENTON, a municipal) 16 corporation, ) 17 ) NO. C82-263 Plaintiff, 18 vs . ) PLAYTIME THEATRES INC. , a ) 19 Washington corporation, et al. , ) 20 ) Defendants. ) 21 ) 22 STATE OF WASHINGTON ) 23 ) ss . COUNTY OF KING ) 24 Robert F. Bond , 'being first duly sworn upon oath, deposes 25 and says : 26 1 . I am presently employed by Sterling Recreation 27 Organization, a Washington corporation, and have. been so employed 28 for the past 23 years . Sterling Recreation Organization has been 29 engaged in the exhibition of motion picture films in the state of 30 Washington since approximately the turn of the century. Sterling 31 ATTORNEYS AT LAW Hubbard, Burns &Meyer A PROFESSIONAL SERVICE CORPORATION Affidavit of Robert F. Bond Page 10604 N.E.38th Place,Suite 105 • g 3 Kirkland,Washington 98033 (206)828-3636 — a.. li • • it 1 Recreation . Organization presently does business in the states of 2 Washington, Oregon, California, Arizona and Colorado, and operates 3 general release motion picture theatres , thirteen radio stations , a 4 number of bowling facilities , cable television facilities , and 5 serving as landlord for many retail business establishments . 6 Within the state of Washington, Sterling Recreation Organization 7 has approximately 75 motion picture theatre screens devoted to the 8 exhibition of general release motion picture film fare . 9 2 . In connection with my employment at Sterling Recreation 10 Organization, I am the Director of theatre operations for the state 11 of Washington . One of my functions in that capacity is to assess 12 the viability of proposed theatre locations for purposes of acqui- 13 sition and/or expansion of existing facilities . 14 3 . In assessing the viability of a potential theatre 15 location, there are two primary concerns , i.e. , visibility and 16 accessibility. An ideal location involves one that is highly 17 visible from major arterials 'or freeways and, in addition, is 18 readily accessible from those arterials or freeways , once the 19 theatre location has been identified. In conjunction with these 20 primary factors are a number of equally important additional • 21 considerations . A theatre must be located in a people oriented 22 environment that has regular nighttime ,traffic and complimentary 23 businesses such as fast-food outlets and restaurants . A theatre 24 location must be a place that people are willing to go in the 25 nighttime and which g provides easy parking and is generally a focal 26 point of nighttime recreation activity. 27 4 . Attached hereto as Exhibit 1 is a map provided to me by 28 counsel for Playtime Theatres, Inc. and Kukio Bay Properties, Inc . , 29 which I was advised was attached to the Affidavit of David R. 30 Clemens and which depicts those areas within the City of Renton 31 ATTORNEYS AT LAW Hubbard, Bums &Meyer A PROFESSIONAL SERVICE CORPORATION Affidavit of Robert F. Bond 10604N.E.38thPlace,Suite105 • Page 4 Kirkland,Washington 98033 (206)828-3636 f . II 1 where an adult motion picture theatre may locate . I personally I I 2 went to the City of Renton on June 11, 1982 and drove by all of the 3 locations indicated ; and observed them for purposes of testing 4 these locations against the criteria which we use at Sterling 5 Recreation Organization for determining a viable theatre location. ; 6 5 . With the exception of the one location circled in red on I 7 Exhibit 1 , all the areas shaded in black are located in warehouse 8 areas , light manufacturing areas , rail served manufacturing ware- 9 house areas , or business industrial park areas , which are totally 10 unsuited for use by a retail/recreation oriented business such as a 11 ' motion picture theatre . None of these areas possessed any of the ,I 12 qualities which we look for when seeking to locate a motion picture it 1 • 13 theatre . In fact, most of these areas were so remotely located in 14 relation to normal arterial traffic through the City of Renton that 1 15 11 accessibility was difficult and confusing. In, addition, none of 16 these locations was near any area enjoying even minimal nighttime 17 activity. 18 6. In summary, all of the area shaded on Exhibit 1 , with 1 19 the exception of the area circled in red, was, based upon the 20 criteria that we use for theatre site selection, totally unsuited ' 21 for a theatre use . In those areas , I did not see any place where 22 people would want to go to recreate. - 23 7 . The location circled in red on Exhibit 1 is presently 24 built out with what appeared to be relatively new Burger King and 25 Shakey' s restaurants . The site itself appears to meet most of the 26 11 criteria which we use for assessing the viability of a theatre II 27 location; however, its size may be too small to accommodate the 28 . parking necessary for such an operation. The physical site of the 29 property appears only sufficient to accommodate the theatre build- 30 ing itself and not necessary and required parking. However, the j 31 • 1 ATTORNEYS AT LAW Hubbard, Burns &Meyer A PROFESSIONAL SERVICE CORPORATION Affidavit of Robert F. Bond 10604 N.E.38th Place,Suite 105 • ' Page 5 Kirkland,Washington 98033 (206)828-3636 • 1 site is bounded by the parking area of a shopping center whose 2 primary tenant is a Payless drug store. In order to provide suffi- 3 cient parking for the theatre, it would be necessary to obtain 4 the right to use the shopping center parking for additional or ' 5 required theatre parking. It has been our experience at Sterling 6 Recreation Organization that even if this particular site could be 7 acquired, it is unlikely that you could work out ; a parking 8 arrangement with the shopping center owner which would allow you to ' 9 go forward with a theatre development on that site. . 10 11 12 Robert F. Bond 13 SUBSCRIBED AND SWORN to before me this 4h day of June , 1982. 14 15 `. - N• a y Public in and for the 16 S at_1 q� Wa on residing �I a ��,{�shing 17 I. 18 19 20 21 22 23 24 25 26 27 28 29 30 31 ATTORNEYS AT LAW • Hubbard, Burris &Meyer A PROFESSIONAL SERVICE CORPORATION Affidavit of Robert F. Bond Page 6 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 Ii il - . I - • •• . . . . • I . ... • • sa, . c. 1 i - . i • . i' 11-pret • 14.4) fli 1, li 4. 44, ____-. 1! 1------- • '. ', , . i 1, ! . !II . . . , . \ !Imm _ o t nth \----1-' 1 . 10147r ;Timm Dea \ ,1 I '1 ,i''.40-44. LAKE .‘• !IMP° AiLtiliaA , I:Vty .?.1 4,v.%.0iik, WASHINGTON rttP k ' 1 ill literid . _VI - ,,I ! g *:.-Altate_Ab.- 1"'‘. LIIIMPAWI-oliro NM Li ,1' 111 . k . Valltrif-Farill. ' i\ r,..1.0N.Q,1117_1•4511-- %SIAM illi‘a .E=riii. REMO 0111116 i 'ff WO% 10:16E11 174 \ iime‘7q1101.7258 1-1 1 illjk \\ii t. 1 ..00•°44,144111 lit • ifilil ‘,. 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RE: Playtime Theatres vs City of Renton We wish to update you as to the status of the above mentioned litigation. As I am sure you are aware, Judge McGovern denied our Motion for Dismissal based uponour contention that the Federal Court lacked jurisdiction over the claim asserted by Mr. Forbes . We considered whether to appeal from this decision and have determined that an appeal of that issue should await the final outcome of .the litigation since we can attack the jurisdiction of the Court at any time. The Court has set Mr. Forbes ' Motion for a Preliminary Injunction for hearing on June 23, 1982 at 1 :30 P.M. At that hearing, Mr. Forbes will be requesting that the Court enter an injunction pending the final outcome of the lawsuit restraining the City from enforcing the provisions of our Ordinance. This is the critical hearing and may be appealed by Mr. Forbes if he is unsuccessful. We are filing this date our Motion for Summary Judgment . A copy of the Affidavit which Mr. Clemens has submitted and our Memorandum of Law in Support of the Motion for Summary Judgment are enclosed for your review. This Motion places before the Court our contention that even if the Court has jurisdiction to consider granting the relief requested by Mr. Forbes , that the relief requested is contrary to law and therefore should be denied. Basically, Mr. Forbes is requesting a permanent injunction and declaratory judgment stating that our Ordinance is unconstitutional, with a second claim for damages for deprivation of his constitutional rights under Section 1983. It is our contention that the Ordinance is constitutional as a matter cf law and that there has been no infringement of Mr. Forbes ' constitutional rights . If ,the Court believes that there are no disputed facts , then the case may be decided upon a Motion for i . Mayor and Members of City Council Page 2 May 27, 1982 Summary Judgment and the Court may enter its ruling deciding which law to apply. This Motion for Summary Judgment will be heard at a time to be later set by the Court. It is our hope that the hearing will be set prior to the preliminary injunction hearing since a decision in our favor would do away with the necessity of the preliminary injunction hearing. In any event, we are proceeding with preparation of the evidence which will be presented at the preliminary injunction hearing. Mr. Warren, Mr. Barber and Mr. Clancy are continuing the deposition of Mr. Forbes this date. We anticipate this process to be protracted due to the intent of Mr. Forbes ' lawyers to frustrate our attempt to elicit information about Mr. Forbes ' organization and damages which he claims to have suffered. It may be necessary for us to seek assistance of the Court to require Mr. Forbes' lawyers to abide by the rules of discovery as they are set forth in the Federal Rules of Civil Procedure. Please feel free to contact me if you have any further questions . Daniel Kellogg DK:nd Encl. cc: City Clerk Dave Clemens , 1 Honorable Philip K. , 2 Sweigert , Magistrate 3 4 5 6 7 8 . UNITED STATES DISTRICT COURT • 9 FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 10 PLAYTIME THEATRES, INC. , a ) • 11 Washington corporation, et al. , ) ) NO . C82-59M 12 Plaintiffs ) ) ' . 13: ., vs ) 14 THE CITY OF RENTON, et al, . ) ' 15 • Defendants. ) • 16. ) THE CITY OF RENTON, a municipal ) NO. C82-263R 17 corporation, ) ) MEMORANDUM IN SUPPORT OF MOTION 18 Plaintiffs, ) FOR SUMMARY JUDGMENT '19 vs ) 20 PLAYTIME THEATRES, INC. , a ) ' Washington corporation, et al. , ) ' 21 ) ,� Defendants. ) 22 _ ) 23 I. STATEMENT OF FACTS 24 City of Renton Ordinance No : 3526 was enacted by. the 25 City Council on April 13, 1981 and became effective thirty (30) 26 days after its publication on May 15, 1981 . This suit was ,I 27 commenced in early 1982 after the Plaintiffs purchased two ' 28 theaters within the City of Renton which are clearly within the MEMORANDUM IN SUPPORT OF MOTION WARREN & KELLOGG. P.S. FOR SUMMARY JUDGMENT ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. BOX 6213 P . 1 RENTON. WASHINGTON 98057 255-8678 1 the proscribed distance from which Ordinance- No . 3526 provides 2 for separation of adult motion picture theaters (as described 3 by the ordinance) from residential zones and uses , churches 4 and schools . 5 On May 3, 1982, the City Council of the City of Renton • I 6 adopted, and the Mayor approved Ordinance No . 3629 which 7 amended in several areas the provisions of Ordinance No . 3526 . I i 8 The principal amendments are as follows: 9 a. Findings of fact which the City Council found to be 10 true as of its adoption of Ordinance No . 3526 on April 13, 11 1982, reduced to writing. • 12 b. Findings of fact as to the facts which the City Council 13 found to be true as of the adoption of Ordinance No. 3629 on 14 May 3, 1982, were adopted. - 15 c . The word "used" is further defined to be a continuing I I 16 course of conduct of exhibiting "specific sexual activities" 17 and "specified anatomical areas" in a manner which appeals to 18 a prurient interest. • 19 d. The amending ordinance provided that uses which are 20 in violation of the provisions of Ordinance No . 3526 as amended 21 are declared to be a public nuisance and shall be abated by 22 civil action filed by the City Attorney and not by criminal 23 enforcement proceedings. • 24 e. Ordinance No . 3526 provides that adult motion picture 25 theaters were to be separated from schools by a distance of � I 26 one mile. Ordinance No. 3629 reduces that distance to 1000 27 ' feet. 28 MEMORANDUM IN SUPPORT OF MOTION - FOR SUMMARY JUDGMENT WARREN & KELLOGG. P.S. P 2 ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. BOX SSS RENTON. WASHINGTON 98057 255-8878 . r 1 f . Ordinance No . 352E contained no severability clause. 2 Ordinance No. 3629 adds such a severability clause to 3 Ordinance No . 3526 . 4 The City of Renton ordinance was based upon the U. S . 5 Supreme Court holding in Young v. American Mini Theater , Inc . , 6 et al , 427 U. S . 50, 96 S. Ct . 2440, 49 L. Ed. 2d 310 (1976) . 7 In adopting Ordinance No . 3526 in April 1981 , the City used 8 language virtually identical to that contained in the operative 9 parts of the Detroit zoning ordinance. Subsequently, the 10 ordinance was modified, as detailed above, as part of the City' s ll continuing zoning jurisdiction, to make the ordinance the least 12 intrusive possible enactment in line with Young v. American -13 Mini Theater, Inc . , supra and a series of other federal cases . 14 According to the Affidavit of David R. Clemens, in 15 support of Defendant' s motion for summary judgment, Ordinance 16 No . 3629 leaves a substantial portion of the business 17 zoned property within the City of Renton available for the use 18 proposed by the Plaintiff in this action. Under the authority 19 of Young, supra, the ordinance is facially valid and has been 20 approved by the United States Supreme Court. With the rather 21 large area in which Plaintiffs can operate, it is clear there 22 is no impermissible time, place or manner restriction on 23 Plaintiffs ' First Amendment rights . This case is ripe for entry 2a of summary judgment in favor of the City of Renton both as to 25 the First Amendment issue and the claim of damages under 42 U. S. C. 26 §1983 and 1988. 27 28 MEMORANDUM IN SUPPORT OF MOTION FOR SUMI1ARY JUDGMENT P . 3 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. OOX 626 RENTON. WASHINGTON 98037 255-8678 1 II . AUTHORITY 2 A. THE ORDINANCES ADOPTED BY THE CITY OF RENTON ARE VALID AND CONSTITUTIONAL REGULATIONS OF PLAINTIFFS ' 3 ASSERTED FIRST AMENDMENT RIGHTS . 4 On June 24, 1976 the U. S . Supreme Court upheld a district 5 zoning ordinance relating to the use of property for : (1) "Adult 6 Motion Picture Theater", (2) "Adult Book Store", and (3) "Adult 7 Mini Motion Picture Theater" in Young v. American Mini Theatre, 8 Inc. , et al, supra. There, the defendants attacked the zoning I _ g ordinance on grounds of vagueness.1/ In rejecting these 10 "vagueness" claims, against the Detroit ordinance, Justice Stevens 11 applied the rule of law expressed in Erznoznik v. City of :I2 . Jacksonville, 422 U. S. 205, at 216, 95 S . Ct. 2268, .45 L.Ed. 2d 25 13 (1975) , that "if the statute' s deterrent effect on legitimate is 14 'readily subject to a narrowing construction by the state courts ' " 15 then, the litigant would not be "permitted to assert the rights • 16 of third parties' in the abstract . 2 See also Village of Hoffman 17 Estates v. Flipside, Hoffman Estates, Inc. , _U.S.__, 102. S. Ct _, 18 71 L.Ed. 2d. 362, 369 (1982) . 19 1/ See You ng, supra, at page 58: "There are two parts to Respondents' 20 claim that the ordinances are too vague. They do not attack the specificity of the definition of "Specified Sexual Activities" or "Specified Anatomical 21 Areas." They argue, however, that they cannot determine how much of the described activity may be permissible before the exhibition is "characterized 1 22 by an emphasis" on such matter. In addition they argue that the ordinances are vague because they do not specify adequate procedures or standards for 23 obtaining a waiver of the 1,000-foot restriction." 1 24 2/ See Young, supra, at page 58-59: "We find it unnecessary to consider the validity of either of these arguments in the abstract. For 25 even if there may be some uncertainty about the effect of the ordinances on other litigants, they are unquestionably applicable to these Respondents. , 26 The record indicates that both theaters propose to offer adult fare on a regular basis. Neither Respondent has alleged any basis for claiming or 27 anticipating any waiver of the restriction as applied to its theater. It is clear, therefore, that any element of vagueness in these ordinances has not 28 affected these Respondents. To the extent that their challenge is predicated (Footnote continued on next page) WARREN & KELLOGG, P.S. MEMORANDUM IN SUPPORT OF MOTION FOR ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. BOX BXa SUMMARY JUDGMENT RENTON. WASHINGTON 98057 P_ 4 255.8678 • 1 Upon examining the language of the Detroit zoning 2 ordinance Justice Stevens, speaking for a plurality of the 3 Court, found that both conditions existed; first, that the 4 deterrent effect of the language was not "both real and 5 substantial" and secondly, that the language was "readily 6 subject to a narrowing construction by the state courts" , 7 at page 66: • • 8 "We are not persuaded that the Detroit zoning ordinances will have a significant deterrent effect 9 on the exhibition of films protected by the First 10 Amendment. As already noted, the only vagueness in the ordinances relates to the amount of sexually explicit activity that may be portrayed before the 11 material can be said to be ' characterized by an emphasis' on such matter. For most films the question 1.2 . . will be readily answerable; to the extent that an area - of doubt exists, we see no reason why the ordinances 13 are not 'readily subject to a narrowing construction by the state -courts. ' Since there is surely a less 14 vital interest in the uninhibited exhibition of material that is on the borderline between Pornography and artistic 15 expression than in the free dissemination of ideas of social and political significance, and since the limited 16 amount of uncertainty in the ordinances is easily 17 - 18 on inadequate notice resulting in a denial of procedural due process under i the Fourteenth Amendment, it must be rejected. Cf. Parker v. Levy, 417 US 19 733, 754-777, 41 L.Ed. 439, 94 S.Ct. 2547. 20 Because the ordinances affect communication protected by the First Amendment, respondents argue that they may raise the vagueness issue even 21 though there is no uncertainty about the impact of the ordinances on their I 22 own rights. On several occasions we have determined that a defendant whose own speech was unprotected had standing to challenge the constitutionality 23 of a statute which purported to prohibit protected speech, or even speech arguable protected. This exception from traditional rules of standing to 24 raise constitutional issues has reflected the Court's judgment that the very existence of some statutes may cause persons not before the Court to 25 refrain from engaging in constitutionally protected speech or expression. See Broadrick v. Oklahoma, 413 US 601, 611-614, 37 L.Ed. 2d. 830, 93 S.Ct. 2908. 1 26 The exception is justified by the overriding importance of maintaining a free and open market for the interchange of ideas. Nevertheless, if the 27 statute's deterrent effect on legitimate expression is not 'both real and substantial, ' and if the statute is 'readily subject to a narrowing 28 construction by the state courts, ' see Erznoznik v. City of Jacksonville, 422 US 205, 216, 45 L.Ed.2d 125, 95 S.Ct. 2268, the litigant is not permitted to assert the rights of third parties." WARREN & KELLOGG. P.S. MEMORANDUM IN SUPPORT OF MOTION FOR ATTORNEYS AT LAW too SO. SECOND ST.. P. O. BOX 626 SUMMARY JUDGMENT RENTON. WASHINGTON 98057 P . 5 255.8678 ' 1 susceptible of a narrowing construction, we think this is an inappropriate case in which to adjudicate the 2 hypothetical claims of persons not before the Court. " (Emphasis added) 3 In his ruling, Justice Stevens noted in Young, supra, 4 at page 71 , that this was an area of the law in which "the city' s 5 interest in attempting to preserve the quality of urban life is 6 one that must be accorded high respect. . Moreover , the City must 7 be allowed a reasonable opportunity to experiment with solutions 8 to admittedly serious problems. " 9 The City contends that, because Renton Ordinance No . 3526 10 llcontains the identical language used in the Young case, this Court is required to adhere to Judge Stevens ' plurality opinion 12 13 which holds that such language is not susceptible to attack in the federal courts because it is, as a matter of law, "readily 14 15subject to a narrowing construction by the state court. " The City has taken additional legislative action to 16 17 clarify some of the uncertainties which the Young court 18 acknowledged (and 'also readily accepted) . Subsequent to oral 19 arguments on Defendant' s Motion to Dismiss on March 12, 1982, 20the City Council affirmatively acted to amend the Renton ordinance 21 and to add by legislative means the "narrowing construction" 22 which Justice Stevens stated was sufficient to keep the matter 23 outside of the jurisdiction of the Federal Court. 24 The problem of irreparable harm which was created by the 25 threat of criminal prosecution in Steffel v. Thompson, 415 U. S . 452, 26 has been overcome by the requirement that the governmental action 27 under the city ordinance be restricted to civil process . Whereas 28 the Plaintiffs could formerly claim, as did Steffel, to be in fear MEMORANDUM IN SUPPORT OF MOTION WARREN & KELLOGG. P.S. FOR SUMMARY JUDGMENT ATTORNEYS AT LAW f00 SO. SECOND ST.. P. O. SOX 626 P 6 RENTON. WASHINGTON 98057 255-8678 l of a criminal action for violation of the law, which constituted 2 "irreparable injury" to establish the basis for federal 3jurisdiction for issuance of an injunction, that claim can no 4longer be urged in these proceedings . The only risk of harm 5that the Plaintiffs now face is the possible adverse judgment 6 of a State Court in a civil action from the change in use that 7the Plaintiffs have alleged in a verified complaint that they 8intend to carry out. 9 The specific definition given to the word "used" in 10 Section 1 of Ordinance 3629, passed and adopted on May 3, 1982, 11 namel y, 12 "The word 'used' in the definition of "Adult 13 Motion Picture Theater ' herein, described a continuing course of conduct of exhibiting 14 ' specific sexual activities ' and ' specified anatomical areas ' in a manner which appeals 15 to a prurient interest. " 16provides the narrowing legislative construction which Justice 17Stevens stated could be given by the State courts. See, also, 18the analysis of Justice Marshall as to the term "Designed for 19 use" in Village of Hoffman Estates v. Flipside, Hoffman Estates , Inc. , U. S. 71 L.Ed. 2d. 362, 102 S.Ct (Mar . 3, 1982) 0 21 The pronouncement of Section II(c) of Ordinance 3629 22 that "violations of the use provisions of this Section is declared 23 to be a public nuisance per se, which shall be abated by City 24 Attorney by way of civil abatement procedures only", is a 25 codification of existing law, which declares in a positive manner 26 that a violation of the use provisions of Ordinance No . 3526, as 27 amended, is a public nuisance which is subject to abatement by the 28 state and city acting pursuant to its sovereign powers . McQuillan, MEMORANDUM IN SUPPORT OF MOTION WARREN & KELLOGG. P.S. FOR SUMMARY JUDGMENT ATTORNEYS AT LAW too■O. SECOND ST.. P. O. BOX 62e P . 7 RENTON. WASHINGTON 98057 255-8678 i - 1Municipal Corporations, Vol. 8, Section 25. 11 "Zoning and 2Nuisances" at page 31 and Shields v. Spokane School District , 3No . 81 , 31 Wash. 2d. 247, 196 P. 2d . 352 (1948) , following Robinson • 4Brick Co . v. Luthi, 115 Colo 106, 169 P. 2d 171 , 166 A.L.R. 655, 5cited at footnote 5 of the McQuillan text . 6 The Plaintiffs can no longer claim that every litigant ?asserting a federal right is entitled to one unencumbered 8opportunity to litigate that right in Federal District Court . 9See Allen v. McCurry, 449 U. S. 90, 101 S.Ct. 441, 66 L. Ed. 2d. 308 10(1980) , at 103 : 11 ."The actual basis of the Court of Appeals ' holding 2 appears to be a generally framed principle that every 12 person asserting a federal right is entitled to one 13 unencumbered opportunity to litigate that right in a federal district court, regardless of the legal posture in which the federal claim arises. But the authority 14 for this principle is difficult to discern. It cannot 15 lie in the Constitution, which makes no such guarantee, but leaves the scope of the jurisdiction of the federal district courts to the wisdom of Congress . And no such 16 authority is to be found in Section 1983 iteself. " 17 and at 105: 18 "The only other conceivable basis for finding a universal right to litigate a federal claim, in a 19 federal district court is hardly a legal basis at 20 all, but rather a general distrust of the capacity of the state courts to render correct decisions on 21 constitutional issues. It is ironic that Stone v. Powell provided the occasion for the expression of such 22 an attitude in the present litigation, in view of this Court' s emphatic reaffirmation in that case of the 23 constitutional obligation of the state courts to uphold federal law, and its expression of confidence in their 24 ability to do so . 428 U. S. , at 493-494, n 35, 49 L. Ed. 2d 1067, 96 S.Ct. 3037; see Robb v. Connolly, 111 U. S . 25 624, 637, 28 L. Ed. 542, 4. S .Ct. 544 (Harlan, J. ) . " 26 As illustrated by the Affidavit of David R. Clemens 27 in support of City of Renton' s Motion for Summary Judgment, the 28 regulation asserted by the City of Renton under Ordinance No . 3526, MEMORANDUM IN SUPPORT OF MOTION WARREN & KELLOGG. P.S. FOR SUMMARY JUDGMENT ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. BOX Ile P. 8 RENTON. WASHINGTON 98037 235-8678 •i 1 as amended, allows ample opportunity for exercise of First - 2Amendment rights within the City of Renton as required by 3Young, supra, arid Schad v. Burrough of Ephraim., U. S . , 4101 S . Ct. , 63 L. Ed . 2d. 671 (1981) . The regulations being 5a reasonable time, place and manner restriction as approved 6 in Young, supra, there is no impermissible restriction ?upon Plaintiffs ' asserted First Amendment rights . The ordinance 8is constitutional on its face and as applied. Plaintiffs may 9claim no element of vagueness in the ordinance. Therefore, their lOcause of action for declaratory and injunctive relief should be 11 dismissed with prejudice. 12 B. PLAINTIFFS' CLAIM FOR DAMAGES UNDER SECTION 1983 13 AND 1988 MUST BE DISMISSED BECAUSE PLAINTIFF ' S CLAIM FAILS TO STATE A CLAIM UPON WHICH RELIEF 14 CAN BE GRANTED, AND PLAINTIFFS ' CONSTITUTIONAL RIGHTS HAVE NOT BEEN INFRINGED. 15 Plaintiffs have claimed damages under 42 U. S. C . §1983 16 and 1938, which claim is premised upon their assertion of a 17 violation of their constutitional rights by the enactment 18 (as opposed to the enforcement) of Ordinance No. 3526, as 19amended. Under the rationale expressed in Allen v. McCurry, • 20 449 U.S. 90, 101 S.Ct 441, 66 L. Ed. 2d. 328 (1980) , and Parratt 21 v. Taylor, U. S . 101 S. Ct. , 68 L.Ed. 2d. 420 (1981) , 22 a cause of action cannot be plead and federal jurisdiction laid 23 under 42 U.S .C. 51983 unless one of the following three 24 circumstances is shown to exist: 25 (1) The State substantive law is facially 26 unconstitutional; 27 (2) The State procedural law is inadequate to allow full litigation of a constitutional claim; or 28 MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P . 9 100 SO. SECOND BT.. P. O. BOX 626 RENTON. WASHINGTON 98057 255-8678 1 (3) The State procedural law, though adequate in 2 theory is inadequate in practice. 3In this case, none of the foregoing circumstances apply. As a 4matter of law, Ordinance 3526 is facially constitutional . See 6-- Young, supra, at 58-60. The procedural law of the State of 6Washington is adequate to allow full litigation of Plaintiffs ' 7constitutional claim, provided that the Plaintiff can state a 8case or controversy to invoke the jurisdiction of the Declaratory 9Judgment Act of the State court in the first instance. In any 1Qevent, no inadequacy in the State system of jurisprudence 11has been shown to exist to prove that the State procedural law, 12through adequate in theory, is inadequate in practice. Therefore, 13for purposes of pleading Section 1983 damages, Plaintiffs have laclearly failed to state a claim upon which relief can be granted . 15 In any event, because the Plaintiffs ' claim for damages 16 is premised upon a claim of violation of Plaintiffs ' constitutional 17rights, the arguments stated above foreclose their claim for damages . 18Following Young, supra, and Village of Hoffman Estates, supra, 19it is clear that the City of Renton has adopted an ordinance that 20 is facially constitutional, and previously approved by the 21 court, and that the State courts are now in a position to give the I i 22 narrowing construction anticipated in Young, supra, to the extent 23 that such a construction may be necessary following the narrowing 24 amendment contained in Ordinance No . 3629. That being the case, � I 25 and no showing of constitutional violation existing, Plaintiffs ' 26 claim for damages under 42 U.S.C. § 1983 and 1988 should be 27 dismissed with prejudice. � . i ! 28 MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT WARREN & KELLOGG. P.S. - ATTORNEYS AT LAW P . 10 tOO SO. SECOND ST.. P. O. BOX 626 RENTON. WASHINGTON 98057 255-8678 1 III 2 CONCLUSION 3 The City of Renton, through its two ordinances , has ' 4established an area within the City of substantial size within 5which Plaintiffs may place their adult entertainment business . 6 The City has used judicially approved zoning methods and ?definitions, and thus has not infringed upon Plaintiffs ' asserted 8First Amendment rights . That being the case, any further 9construction of the ordinance should be done by the State courts 10in accordance with the plurality decision in Young, supra. 110nce it is clear that this is a zoning case, and not a case 12involving violation of First Amendment rights, not only does 13 Plaintiffs ' causes of action for declaratory judgment and • 14injunctive relief fall, but so must their claims for damages 15under 42 U. S.C. 1983 and 1988. There is no constitutional 16violation. The court is requested to dismiss Plaintiffs ' 17Amended and Supplemental Complaint with prejudice. 18 19 Resp fully submitted, 20 { 21 Daniel Kellogg 22 23 24 25 26 27 28 MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT WARREN & KELLOGG. P.S. P . 11 . 11 ATTORNEYS AT LAW _ 100 SO. SECOND ST.. P. O. SOX E26 RENTON. WASHINGTON 98057 255-8678 I I 1 . 1 2 1 3 • 4 • I I 5 1 6 1 7 8 • UNITED STATES DISTRICT COURT • FOR THE WESTERN DISTRICT OF WASHINGTON . 9 • AT SEATTLE 1 10 PLAYTIME THEATRES, INC. , a ) Washington corporation, et al , ) 11 . ) Plaintiffs ) 12 ) NO. C82-59M vs ) 13 ) AFFIDAVIT OF DAVID R. CLEMENS THE CITY OF RENTON, , et al .) IN SUPPORT OF CITY OF RENTON' S I 14 ) MOTION FOR SUMMARY JUDGMENT Defendants ) 15 ) 16 ) ) ' 17 THE CITY OF RENTON, a municipal ) - corporation, � ) 1 . ) Plaintiffs ) 19 ) NO. C82-263R j 20 vs ) i • PLAYTIME THEATRES , INC. , . a ) 21 Washington corporation, et al ) 22 ) • 1 Defendants ) 23 __ ) ! 24 STATE OF WASHINGTON ) ' ss ' 1 25 COUNTY OF KING ) 26 DAVID R. CLEMENS, being first duly sworn on oath deposes • • 27 and says': 1 28 AFFIDAVIT OF DAVID R. CLEMENS 1 WARREN & KELLOGG. P.S. _Page 1 ATTORNEYS AT LAW I 100 SO. SECOND ST.. P. O. BOX 626 RENTON. WASHINGTON 98057 253-8678 1 1. I am the City of Renton' s Policy Development Director 2 and make this Affidavit from my own personal knowledge . 3 2. I have been involved with assisting the Renton City 4 Council in its Adult Land Use Entertainment Ordinances from the 5 start and assisted in providing information to the Council with 6 respect to Ordinances No . 3526 and 3629 . I previously appeared 7 as 'a witness in the Temporary Restraining Order Hearing in this 8 case , having been called by the Plaintiffs . 9 3. The City Council of the City of Renton did enact 10 Ordinance No. 3629 on the date of May 3, 1982. A certified copy 11 of that Ordinance is attached hereto for the Court 's information. 12 4. Attached hereto is a one page map of the City of Renton. '13 Shown on that map in solid colored areas are those places in the 14 City of Renton where an Adult Entertainment Land Use would be 15 permitted under Ordinance No . 3629 , the most recent Ordinance . 16 5. The land contained within the solid colored areas is 17 in all stages of development from raw land to developed, improved 18 and occupied office space, warehouse space and industrial space . 19 6. The total area within the solid colored areas is five 20 hundred twenty (520) acres . Included in the 520 acres is twenty- 21 seven (27) acres of City property, twenty-two . (22) acres as a green- 22 belt area and five (5) acres as a proposed fire station site. 23 7 . There has been a recent Local Improvement District 24 which extended Lind Avenue , which runs north and south through 25 the middle of these properties . That roadway was built as a four 26 lane major arterial . Construction is to begin soon on LID #314, 27 which will improve freeway access and construct several east-west 28 AFFIDAVIT OF DAVID R. CLEMENS WARREN & KELLOGG. P.S. Page 2 ATTORNEYS AT LAW 100 80. SECOND ST.. P. O. SOX 626 RENTON. WASHINGTON 98057 255-8678 1 roads that will connect in with previously developed Lind Avenue. 2 Additionally , the City is in the midst of widening and substantially 3 improving S .W. 43rd Street which runs along the southerly boundary 4 of the City and provides access to most of this parcel from the 5 Valley Freeway . 6 8. It should also be noted that the land in this area is ? serviced on the north by 1-405 , and on the east by SR167 , the 8 Valley Freeway . These roadways provide good access on the north, 9 east , south and through the middle of the solid colored properties . 10 11 I/ 12, Davi R. C emens 13 SUBSCRIBED AND SWORN to before me this 1'(' day of May , 1982 . la ' 15 ` ' , :( - - NoNo Public in and for the 16 State of Washington, residing I 17 at Renton 18 • 19 20 21 22 23 24 25 26 27 28 AFFIDAVIT OF DAVID R. CLEMENS WARREN & KELLOGG. P.S. Page '3 ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. SOX 62e RENTON. WASHINGTON 98037 255-8678 ita4I It c 11 t wee i 1 Ilk • • on I • \-- ftwesa. INII ----1- -. . - , 1 - ,___.. , ' 11._ \ 1 1 i• � LAKE �� ,.. , 1 ! ri���� WASHINGTON'.gtaitii.:. )..,■�' \ I ma...... - irglif 1 __.__. ,' Fi--, i � ivi....FigiedittL,..viet. ` ■ d =� 1nlc \Vail% 1uIffitAritillml 11 ' _ , i )r,Cia, F.:0AigEziol llilli : I I/ . A l'( • eV I �� I � �o� � � l - - • i am. ►. wir 1 : - Il 1 -�tlit , •5 ., _ , _--"Virei-lit5 , 7 N (a N \l\L\k_, • , sat/ AAO' 1 II Tr Ill Millp)M0 Pi---...,.,:.k.;,,:::..-..........4. ,vo. t .._ -1 _, frill_ ' , ; w ' Y.tr,... lji14trruillig\ 4$41, 1: ' 611 .. . • \- 111 . 1 '..4174 ,_____It.'411121 . llk VaitegAti ,r.4 • ,.Vfe4 r:-.A."yifA1i 4 w lIr.„PA..Pi1.1s0f1.iol.iiff,t,a....i,rk.k.k.r,x„„r.ail..4...... ..... .I ......... .... 411(1 i. . . , ; I As : wit• ,hiNinniataila -pi r. ralviiir-i.1II ... Ara;br'UPI " 1 It.. n 1 fill \®rill IW/ . AR�'AS WHERE ADULT :�TIOiQ PICTURE �'�, TERM ARE ALLOWED BY ona 3526 1 C `AND ORD. 3629. 0 I • 7i I I LAKE I 1OUHGS i II V ''' 'rirl Y`-'' , I ; 1 i '...v.. '::, 1 • I • • DL'ZAJC, 1 Magistrate Sweigart 2 Judge McGovern Date of Hearing : 3 • May 21, 1982 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, ) 12 ) NO. C82-59M Plaintiff, • ) 13. • ) vs ) 14 ) THE CITY OF RENTON, et al, ) 15 ) Defendants . ) 16 ) ) 17 THE CITY OF RENTON, a ) municipal corporation, ) NO . C82-263 18 ) Plaintiff, ) MEMORANDUM IN SUPPORT OF 19 • ) DEFENDANT' S RENEWED MOTION TO vs ) DISMISS PLAINTIFFS ' AMENDED AND 20 ) SUPPLEMENTAL COMPLAINT FOR PLAYTIME • THEATRES, INC. , a ) PRELIMINARY AND PERMANENT 21 Washington corporation, ) INJUNCTION PURSUANT TO FRCP 12(b) (6) et al, ) 22 ) Defendants . ) 23 ) 24 I . STATEMENT OF FACTS 25 City of Renton Ordinance No . 3526 was enacted by the 26 City Council on April 13, 1981 and became effective thirty (30) 27 days after its publication on May 15, 198i . This suit was commenced 28 in early 1982 after the Plaintiffs purchased two theaters within MEMORAUNDUM IN SUPPORT OF WARREN & KELLOGG. P.S. RENEWED MOTION TO DISMISS ATTORNEYS AT LAW I00 80. SECOND BT., P. O. BOX 626 • P. 1 RENTON. WASHINGTON 98057 285.8678 1 the City of Renton which are clearly within the proscribed 2 distance from which Ordinance No . 3526 provides for separation 3 of adult motion picture theaters (as described by the 4 ordinance) from residential zones and uses, churches, and 5 schools . 6 On May 3, 1982, the City Council of the City of Renton 7 adopted, and the Mayor approved Ordinance No .. 3629 which 8 amended in several areas the provisions of Ordinance No . 3526.. 9 The principal amendments are as follows : 10 a. Findings of fact which the City Council found to be 11 true as of its adoption of Ordinance No . 3526 on April 13, 12 1982, were reduced to writing. 13 b. Findings of fact as to the facts which the City Council 14 found to be true as of the adoption of Ordinance No . 3629 on 15 May 3, 1982, were adopted. 16 c . The word "used" is further defined to be a continuing 17 course of conduct of exhibiting "specific sexual activities" 18 and "specified anatomical areas" in a manner which appeals to 19 a prurient interest. 20 d. The amending ordinance provides that uses which are 21 in violation of the provisions of Ordinance No . 3526 as amended 22 are declared to be a public nuisance and shall be abated by 23 civil action filed by the City Attorney and not by criminal 24 enforcement proceedings . 25 e. Ordinance No . 3526 provides that adult motion picture 26 theaters were to be separated from schools by a distance of 27 one mile. Ordinance No . 3629 reduces that distance to 1000 28 feet. MEMORANDUM IN SUPPORT OF WARREN & KELLOGG. P.S. ON RENEWED MOTION TO DISMISS f00 80. SECONDE AT LAW ST., P. O. BOX 626 P. 2 . 7 RENTON, WASHINGTON 98057 L 255-8678 • 1 f. Ordinance No. 3526 contained no severability clause . 2 Ordinance No . 3629 adds such a severability clause to 3 Ordinance No . 3526. 4 Because of the importance of the amendments to Ordinance No . . 5 3526, the ordinance which is attacked by the Plaintiffs, the 6 Defendants deem it essential to renew their motion to dismiss 7 previously filed herein and submitted for decision by the court, 8 and in particular to renew their motion to dismiss Plaintiff' s 9 claim for injunctive relief which is founded on 28 U.S . C . , Section 10 2202 and 42 U.S . C. , Section 1983. 11 II. LEGAL ARGUMENTS 12 — It is the contention of the Defendants that the amendment 13 • of Ordinance No. 3526 by the ,adoption• of Ordinance No . 3629 cures ' 14 any possible claim of constitutional defect by the Plaintiffs, 15 thereby ousting this court of jurisdiction to grant injunctive 16 relief as requested by the Plaintiffs for the reason that there 17 is no injunctive relief which can be granted. The application for 18 injunction is addressed to the sound discretion of• the court . 19 U.S . v. Corrick, 298 U. S. 435, 56 S. Ct 829, 80 L. Ed. 1263 (1936) ; 20 Ross-Whitney Corp. vs . Smith .Klirie. & French Lab, 207 F. 2d 190 21 — - 22 (9th Cir. 1953) . The decision of the court will not be set aside upon appeal unless clearly erroneous as a matter of law or the 23 24 result of an abuse of discretion. U. S. v. Corrick, supra . The purpose of the preliminary injunction requested is to 25 preserve the status quo pending trial of the matter on the ' 26 merits, and " . . : should not be granted except in rare instances 27 28 in which the facts or law are clearly in favor of the moving l MEMORANDUM IN SUPPORT OF RENEWED MOTION TO DISMISS WARREN & KELLOGG. P.S. ATTORNEYS AT LAW WOO SO. SECOND ST.• P. O. SOX 626 P. 3 RENTON. WASHINGTON 98057 255-8678 • I 1 party. " Miami Beach Federal Savings & Loan Association v. 2 Callandar , 256 F. 2d. 410 (5th Cir. 1958) . The preliminary 3 injunction is not granted as a matter of right, even if the denial . 4 of the application will result in irreparable damage to the 5 Plaintiff. Yakus v. U. S. , 321 U. S. 414, 440, 64 S. Ct. 660, 6 88 L. Ed. 834 (1944) . 7 The injunctive relief may be granted, in the discretion 8 of the court, if it appears likely that the Plaintiff will g prevail at trial on the merits, that the Plaintiff will 10 suffer irreparable harm if the application is denied, and if 11 the damage to the Plaintiff in the event of the denial of the 12 application plainly outweighs the harm to the Defendant. Ross- 13 Whitney Corp v. Smith Kline & French Lab, supra. 14 As amended by Ordinance No. 3629, the provisions of City of 15 Renton Ordinance No . 3526 are , beyond any question, 16 constitutional. Therefore, the Plaintiff' s application for 17 injunctive relief will unequivocably be denied, both at, the 18 preliminary injunction phase and at trial upon their application 19 for injunctive relief both under 28 U. S.C. , Section 2202 and 20 42 U. S.C. , Section 1983, for the reason at least that it is . 21 not likely that the Plaintiff will prevail at trial on the 22 merits. Furthermore, Plaintiff can make no contention that 23 it is sustaining irreparable harm since the amending . ordinance 24 provides that the ordinance shall be enforced by civil action 25 alone, and not by criminal remedies. Being unable to show any 26 irreparable harm suffered by Plaintiff, there is then no need 27 for balancing of the rights of the parties under the third 28 provision of the test for issuance of injunctive relief. MEMORANDUM IN SUPPORT OF WARREN & KELLOGG. P.S. RENEWED MOTION TO DISMISS ATTORNEYS AT LAW %OO BO. SECOND ST.• P. O. BOX m2e P.4 RENTON, WASHINGTON 98057 255-8678 1 Therefore, there being .no injunctive relief which this 2 court may grant, the Defendants are entitled to a dismissal 3 of the cause of action stated by the Plaintiffs for such 4 injunctive relief pursuant to 12(b) (6) of. the Federal Rules 5 of Civil Procedure. 6 DATED: May 4, 1982 7 • Re ully submitted, 8 9 10 Daniel Kellogg 11 12 13 14 15 16 17 18 19 20 . 21 22 . 23 24 25 26 27 28 MEMORANDUM IN SUPPORT OF RENEWED MOTION TO DISMISS WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P. 5 100 SO. SECOND ST.. P. O. SOX 020 RENTON. WASHINGTON 98O57 255.8678 r w 0.4. it 3 3-02 4 CITY OF RENTON MAY 5 1982 POLICY DEVELOPMENT DEPT. CITY OF RENTON, WASHINGTON ORDINANCE NO . 3629 AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON • RELATING TO LAND USE AND ZONING WHEREAS , on April 13 , 1981 , the City Council of the City of Renton adopted Ordinance No . 3526 , which 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 the case of Northend Cinemas v. Seattle , 90 Wn 2d, 709 , to limit the location of adult motion picture theaters , as that term is defined therein, to promote the City of Renton' s great interest in protecting and preserving the quality of its neighborhoods , commercial districts , and the quality of urban life through effective land use planning; and WHEREAS , the City Council , through its Planning and Development Committee , held a public meeting on March 5 , 1981 , to 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 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 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 of criminal activities , including prostitution, rape , incest and assaults in the vicinity of such adult entertainment land uses . 13 . Merchants in the commercial area of the City are concerned about adverse impacts upon the character and quality of the City in the event that adult entertainment land uses are located within close proximity to residential uses , churches , parks and other public facilities , and schools . Location of -2- • 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- J I _ I I • • 111 I 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 severabilit • 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 ' I 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 Ij 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 to Renton to view adult film fare away from areas in which they are known and recognized. 4. Property values in the areas adjacent to the adult entertainment land uses will decline , thus causing a blight upon the commercial area of the City of Renton . 5 . Location of adult entertainment land uses within neighborhoods and commercial areas of the City of Renton is disrupting to youth programs such as Boy Scouts , Cub Scouts and Campfire Girls . Many such youth programs use the commercial areas of the City as a historical research resource . Location of adult entertainment land uses in close proximity to residentia ; uses , churches , parks and other public facilities and schools is inappropriate . ;I. 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 , WASHI; DO ORDAIN AS FOLLOWS : 'I SECTION I : Existing Section 4-702 of Title IV (Building Regulations) of Ordinance No . 1628 entitled "Code of General Ordinance: of the City of Renton" is hereby amended by adding the following sub- sections : "Used" The word "used" in the definition of "Adult mots. picture theater" herein , describes a continuing course of conduct of exhibiting "specific sexual activities" and "specified anatomical area: in a manner which appeals to a prurient interest . SECTION II : Existing Section 4-735 of Title IV (Building Regulations) of Ordinance No . 1628 entitled "Code of General Ordinance: it of the City of Renton" is hereby amended by adding the following subsecti; (C) Violation of the use provisions of this section is decln . �I to be a public nuisance per se , which shall be abated by City Attorney lj by way of civil abatement procedures only , and not by criminal prosecut (D) Nothing in this section is intended to authorize , legalize or permit the Establishment , operation of 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 I' exhibition or public display thereof. -5- I 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 , subsection , sentence , clause , phrase or portion thereof irrespective of the fact that any one or more sections , subsections , sentences , clauses , phrases or portions be declared invalid or unconstitutional . SECTION V: If any section, subsection , sentence, clause , phrase or any portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction , such decision shall not affect the validity of the remaining portions of this ordinance . The City Council of the City of Renton hereby declares that it would have adopted this ordinance and each section, subsection , sentence , clause , phrase or portion thereof irrespective of the fact that any one or more sections , sub- sections , sentences , clauses , phrases or portions be declared invalid or unconstitutional . 1 SECTION VI : The City Council of the City of Renton finds and declares that an emergency exists because of the pendency of litigation against the City of Renton involving the subject matter of • this ordinance , and potential liability of the City of Renton for damages as pleaded in that litigation, ana that the immediate adoption -6- I of this ordinance is necessary for the immediate preservation of ' public peak, 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 . e ores A. ;lea , ity Clerk APPROVED BY THE MAYOR this 3th day of May, 1982 . out laauar l i• St1/4.4"oc4., Barbara Y . Shinpoch, Mayor Approved as to form: (..i . .11 I. L1 Lawrence J . Warren, City Attorney II 1 Date of Publication : May 7, 1982 HI . -7- - Renton City Council 5/3/82 Page 5 Old Business - Continued Community Services The committee report noted review of the policy for street Committee vacations, submitted draft ordinance, recommending referral Street Vacation to the City Attorney and Ways and Means Committee for approval Policy and adoption. MOVED BY REED, SECOND MATHEWS, CONCUR IN THE COMMITTEE REPORT. CARRIED. ORDINANCES AND RESOLUTIONS Ways and Means Ways and Means Committee Chairman Stredicke recommended second Committee and final readings of the following ordinances: Ordinance #3627 An ordinance was read changing the zoning classification of Carner Rezone property located in the vicinity of 4508 NE 4th Street from General Classification G to Business District B-1 ; known as the Carner Rezone R-005-82. MOVED BY STREDICKE, SECOND BY ROCKHILL, ADOPT THE ORDINANCE AS PRESENTED. F,OLL CALL: ALL AYES. CARRIED. Ordinance #3628 An ordinance was read adopting the Standard Specifications for Public Works Municipal Public Works Construction 1981 Edition by Reference. Construction MOVED BY STREDICKE, SECOND ROCKHILL, ADOPT THE ORDINANCE AS PRESENTED. ROLL CALL: ALL AYES. CARRIED. Ordinance #3629 An ordinance was read relating to land use and zoning for Adult adult entertainment to promote the City' s interest in protect- Entertainment ing and preserving the quality of its neighborhoods , commercial districts and quality of urban life through effective land use planning. MOVED BY STREDICKE, SECOND ROCKHILL, ADOPT THE ORDINANCE AS PRESENTED. ROLL CALL: ALL AYES. CARRIED. The Ways and Means Committee recommended reading and adoption of the following resolutions: Resolution #2452 A resolution was read setting public hearing 6/7/82 to consider Proposed Vacation vacation of a portion of NW 4th St. as petition by Grohs, NW 4th St.-Grohs et al . MOVED BY STREDICKE, SECOND HUGHES, ADOPT THE RESOLUTION VAC 04-82 Revised AS READ. Committee Chairman Stredicke reported the resolution may not be needed due to past law which is being investigated by the City Attorney; however, the resolution can be cancelled by the Administration if not needed. CARRIED. Resolution #2453 A resolution was read declaring the City' s 1957 Wisconsin Surplus Equipment screening plant as surplus equipment and authorizing Purchasing Screening Plant Agent to dispose of the equipment. MOVED BY STREDICKE, SECOND ROCKHILL, ADOPT THE RESOLUTION AS PRESENTED. CARRIED. First Reading The committee recommended first reading of an ordinance revising Solid Waste the garbage/refuse collection rates. Following reading, it was MOVED BY STREDICKE, SECOND HUGHES, REFER BACK TO WAYS AND MEANS COMMITTEE. CARRIED. Port Quendall Councilman Stredicke inquired regarding appeal of Port Quendall Appeal Development Co. regarding Hearing Examiner' s decision (See the earlier Consent Agenda) and was advised by the City Attorney that Port Quendall representatives have indicated the appeal is of the Examiner' s decision as required by law, that modifications of the preliminary planned unit development are in the nature of Comprehensive Plan concessions to provide as they desire. Stredicke inquired also re Comprehensive Plan for central area and was advised by Plan- ning Commission Member Joan Walker that the public hearing has been closed, the matter will be considered by the Commission; they are receiving correspondence on the matter. Undergrounding MOVED BY STREDICKE, SECOND REED, REFER THE LETTER FROM TV CON- of TV Cable SULTANT, LON HURD, REGARDING PROPOSED CHANGES IN THE UNDERGROUND- ING ORDINANCE TO THE COMMUNITY SERVICES COMMITTEE. CARRIED. Councilman Rockhill noted receipt of revenue report and requested one page digest. OF R4,4, 0 OFFICE OF THE CITY ATTORNEY . RENTON,WASHINGTON k v fi C) 4-) 'Z POST OFFICE BOX 626 100 2nd AVENUE BUILDING • RENTON,WASHINGTON 98055 255-8678 p LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY A DAVID M. DEAN, ASSISTANT CITY ATTORNEY O '941. b SEP�E April 8, 1982 MARK E. BARBER, ASSISTANT CITY ATTORNEY • TO: Barbara Y. Shinpoch, Mayor • Members of City Council • FROM: Daniel Kellogg, Assistant City Attorney We enclose copies of the two Briefs that we have filed within the • last few days regarding the Playtime case. The ' Brief in Opposition to Playtimes' Motion to Dismiss is filed in response to Mr. Forbes ' attempt to dismiss our State court action in Federal court . The Objections to Magistrate's Report is filed with Judge McGovern to persuade him to reverse the Magistrate's decision to deny our motion to dismiss the Federal court complaint filed by Playtime Theatres . Playtimes ' motion to dismiss our State complaint , 'and our Motion to Remand our State Court case back to State court _ will be heard on Friday, April 9 , 1982 at 10 : 30 A.M., before Magistrate Sweigert. Once again, the Magistrate' s report and recommendation will be made to Judge McGovern for his decision. We have noted the matter of dismissal of the Playtime Theatres ' • Complaint before Judge McGovern for hearing on April 23 , 1982. However, Judge McGovern's decision on the Motion may be made at any time. There is still no date set for the hearing on their motion for Preliminary Injunction. However, we expect that hearing to be set upon the resolution of the preliminary procedural matters . • If you have any questions regarding this proceedings , please contact me. • • Daniel Kellogg DK:nd Encl. cc: City Clerk Dave Clemens • CITY OF RENTON • APRR 1982 POLICY DEVELOPMENT DFPT. 1 2 COPY I• .' by HUBBARD « Bj, as 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. , ) NO. C82-59M 11 ) Plaintiffs , ) - 12' . ) vs . ) 13 ) THE CITY OF RENTON, et al . , ) 14 ) Defendants . ) 15 ) • ) 16 THE CITY OF RENTON, a municipal ) NO. C82-263 corporation , - ) 17 ) BRIEF IN OPPOSITION TO Plaintiff, ) PLAYTIME THEATRES MOTION 18 ) TO DISMISS CITY OF RENTON vs . ) COMPLAINT FOR DECLARATORY 19 ) JUDGMENT AND IN REPLY TO PLAYTIME THEATRES, INC. , a ) PLAYTIME THEATRES MEMO- 20 Washington corporation , et al. , ) RANDUM IN OPPOSITION TO ) REMAND 21 Defendants . ) ) 22 - - A. The State Action Has Been Improperly Removed . The 23 United States District Court : lac.ks; jurisdiction to rule on the Defendant' s Motion :to•-Dismiss . 24 28 U.S.C. Section 1447 (c) provides in part that: 25 "(c) If at any time before final judgment it 26 appears that the case was removed improvidently and without jurisdiction , the District Court shall 27 remand the case , and may order the payment of just costs ." 28 BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S. ON TO DISMISS AND IN REPLY TO MEMORANDUM IN SWOONS) f00/O. ONS) AT LAW O ST.. P. O. SOX •!f OPPOSITION TO REMAND - PAGE 1 R[NTON. WASHINGTON 95057 ass-ee7e /4 / ' ' 1 The term "witho w jurisdiction" refers tc - want to federal 2 subject matter jurisdiction . Prack v . Weissenger , 276 F. 2d . 3 4.46 (CA 4th. 1960) ; Haelan Laboratories , Inc . v . Topps Chewing I 4 Gum Inc . , 131 F. Sup. . 262 (EDNY 1955) . 5 Since the United States District Court is a court of ' 6 limited jurisdiction , a presumption arises that a cause is .7 without its jurisdiction . The burden is upon the party who 8 seeks the jurisdiction of the court , that is ,' the defendant 9 who seeks removal of a State Court proceeding , to establish 10 by a preponderance of evidence that the case falls within the 11 District. Court' s jurisdiction. If it is at all doubtful that 12 the petitioner has sustained that burden , the cause should be 13 remanded . Butler v. Polk, 592 F.2d 1293 (CA 5th 1979) ; Jones 14 v. General Tire & Rubber Co. , 541 F.2d 660 (CA 7th 1976) ; 15 Alabama ex rel Flowers v. Robinson , 220 F. Supp. 293 (D. C. 16 Ala. 1963) . 17 The trend is to restrict and limit the removal 18 jurisdiction of the Federal Court. Wright, Miller & Cooper , 19 Federal Practice & Procedure, Jurisdiction , Section 3721 , 20 page 533 (1976) ; Shamrock Oil & Gas Corp. v. Sheets , 313 U. S. I ' 21 100, 85 L. Ed . 1214, 61 S. Ct. 868 (1941 ) ; Hibhart v. Santa 22 Monica Dairy Co. , 592 F.2d 1062, 1064 (CA 9th 1979) . The d 23 fact that a related case is pending in Federal Court is not, 24 in itself, sufficient grounds for removal . Fabricius v. I , 25 Freeman, 466 F.2d 689 (CA 7th 1972) . 26 , I The record herein establishes that Playtime Theatres 27 has not sustained their burden . See City of Renton' s 28 Memorandum of Law in support of its motion to remand the BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.s. ATTORNIT. AT LAW TO DISMISS AND. IN REPLY TO MEMORANDUM IN +oo•o. SECONO.T.. P. o. SOX.1. OPPOSITION TO REMAND - PAGE 2 MINTON. WASHINGTON 96057 i 255-8678 1 civil action to sae State Court , filed wi ,_ .H this Court on 2 March 11 , 1982. See also the nature of the controversy and 3 the facts pleaded by the City of Renton in the State 4 declaratory judgment action wherein the City of Renton seeks 5 an interpretative decision by the ;State Court of the meaning . 6 to be accorded to the terms of the newly enacted Ordinance as 7 applied to Playtime Theatre ' s threatened operations . In 8 those pleadings , the City has raised a State issue as to the 1 9 meaning to be given by the State Court to certain terms of 10 the ordinance and whether any of the provisions contained 11 therein , if found to be unconstitutional as applied to the 12 Defendant , can be severed from the remaining valid provisions • 13 of the ordinance. The United States Supreme Court has made 14 . . it clear that this Court has no jurisdiction as to those 15 State issues. See U.S. v. Thirty—Seven Photographs , 402 U. S. 16 363 at 369, where the Court specifically held at page 369: 17 " . ...We lack jurisdiction to construe state legislation ." (our emphasis) 18 j See also Care Corporation v. Kiddie Care Corporation , .344 F. II 19 Supp. 12 (D.C. Del. 1972) (where , in a State Declaratory 20 1 Judgment action , a plaintiff was threatened with a Federal 21 . claim • over which the Federal Court had exclusive 22 jurisdiction. It was there held that the Plaintiff could 23 resist removal of his action to a Federal Court) , and Norle 24 v . San Diego Federal Savings & Loan Association , 663 F. 2d 841 25 (9th Cir Sept. 23, 1981) (where a mortgage lender's removal it 26 of a state declaratory action was rejected) . 27 0 • 28 - i BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S. TO DISMISS AND IN REPLY TO MEMORANDUM IN ATT AT LAW 100 SO. SECOND CT.. P. O. SOX SSG • OPPOSITION TO REMAND — PAGE 3 RCNTON. WASHINGTON 90057 255.0878 • ' ///' 1 B. A dismissal would undermine the procedures outlined in Dombrowski v . Pfister for good , State-Federal I 2 Court relationships . Even where Federal inter- " vention is exercised the State Court should also be 11 3 allowed to give the ordinance a permissible narrow construction in a non-criminal proceeding. j 4 Assuming that the State zoning case is one in which this 5 ; I Federal Court should intervene and should not abstain under ' 6 : , the abstention principles enunciated in Younger v . Harris , 7 i ' 401 U. S. 37, 27 L. Ed 2d 669 , 91 S. Ct . 746. ( 1971 ) and Huffman 8 v . Pursue Limited , 420 U. S. 592 , 43 L. Ed 2d 482, 95 S. Ct . H 9 1200 ( 1975) , or the rationale expressed by Justice Stevens ' ; I 10 opinion in Young v. American Mini - Theatres , 427 U. S. 50, I 11 61 , 49 L. Ed 2d 310, 96 S. Ct. 2440 (1976) , which opted for a 12 . narrowing construction by State Courts , nevertheless the 13 I course of action established by the United States Supreme 14 ' Court in Dombrowski v. Pfister , 380 U. S. 479, 14 L. Ed 2d 22, 15 85 S. Ct. 1116 (1965) would seem to require this Court to 16 remand the declaratory judgment action to the State Court to 17 1 � I allow the State Court an opportunity to give the ordinance a ; ' 18 ' narrowing construction. 19 " In Dombrowski , the Plaintiff sought declaratory relief 20 and an injunction restraining the defendant from prosecuting 21 11 or threatening to prosecute the Plaintiff for alleged it 22 violation of the Louisiana Subversive Activities- Law. Having _ 23 found harrassment , in granting the Plaintiff' s injunctive 24 relief under their challenge that the statutes were "overly 25 broad and vague regulations of expression" the Supreme Court 26 outlined the following procedural discipline for good 27, State-Federal Court relationships at 490: 11 28 BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S. TO DISMISS AND IN REPLY TO MEMORANDUM IN ATT AT LAW OPPOSITION TO REMAND - PAGE 4 DENTON. WASHINGTON 98057 255-8676 • / e ' 1 "We hove already seen that r,_,i're , as here , ' prosecutions are actually threatened , this ' 2 challenge , if not clearly frivolous , will establish ' I the threat. of irreparable injury required by 1 3 traditional doctrines of equity . We believe that in this case the same reasons preclude denial of 4 . equitable relief pending an acceptable narrowing construction . In considering whether injunctive i 5 relief should be granted , a federal district court should consider a statute as of the time - its 6 jurisdiction is invoked , rather than some I hypothetical future . date . The area of proscribed 7 conduct will be adequately defined and the deterent effect of the statute contained within 8 constitutional limits only by authoritative I constructions sufficiently illuminating the 9 ,contours of an otherwise vague prohibition . As we observed in Baggett v. Bullitt , supra , 377 U. S. at 10 378 , 12 L. Ed -2d at 389 , this cannot be satisfactorily done throuugh a series of criminal 11 prosecutions , dealing as they inevitably must with . only a narrow portion of the prohibition at any one ' 1g time , and not contributing materially to • articulation of the statutory standard . We believe 13 that those affected by a statute are entitled to be free of the burdens of defending prosecutions , 14 however expeditious , aimed at hammering out the structure of the statute piecemeal , with no ; I 15 likelihood of obviating similar uncertainty for others. Here , no readily apparent construction 16 suggests itself as a vehicle for rehabilitating the statutes in a single prosecution , and appellants 17 are entitled to an injunction. The State must , if 1 it is to invoke the statutes after injunctive I , 18 relief has been sought , assume the burden of II obtaining a permissible 6narrow construction in a ! 1 ' 19 noncriminal proceeding before it may seek modification .p f the injunction to permit future 20 prosecutions. 21 Thirty-seven States , including Louisiana , have 22 adopted the Uniform Declaratory Judgments Act . The Louisiana version , - La 'Civ Proc Code Ann , 1960, Arts ' 23 1871-1883, abolishes the former requirement that there be no other adequate remedy. 24 7. Our cases indicate that once an acceptable limiting 25 construction is obtained , it may be applied to conduct occurring prior to the construction , see Poulos v. New 26 Hampshire, 345 U. S. 395, 97 L.Ed 1105, 73 S. Ct. T60, 30 ALI-2-d 987; Cox v. New Hampshire, 312 U. S. 569, 85 L. Ed 27 1049, 61 S. Ct. 762, 133 ALR 1396; Winters v. New. York , 28 333 U.S. 507, 92 L. Ed 840, 68 S. Ct. 665, provided such application affords fair warning to the defendants , see BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S.ATT AT LAW ' TO DISMISS AND IN REPLY TO MEMORANDUM IN • +e.)810. •CCOND ST.. P. O. SOX SU OPPOSITION TO REMAND - PAGE 5 • RLNTON. WASHINGTON 98057 255-81s78 1 Lanzetta v . 'new Jersey , 306 U. S. 451 , 8'L .2`. Ed 888 , 59 S. Ct. 618; cf. garrison v . NAACP 360 U. S. 167 , 179 , 3 L. Ed 2 2d 1152, 1159', 79 S. Ct . 1025." 3 Even though the defendants were enjoined from prosecuting the 4 defendants under the statute as it then read at the. time of 5 the lawsuit , the court made it clear. in Footnote 6 and 7 that 6 the State should also be allowed to "assume the burden of 7, obtaining a permissible narrowing construction in a 8 non-criminal proceedings" of the State statute . A dismissal 9 of the State action herein would undermine the procedural 10 steps outlined by the high court in its efforts to 11 accommodate both State and Federal interests and to promote 12. "comity" within the State and Federal judicial system. 13 C. The Spirit and Intent of Justice Stevens ' Ruling on the Vagueness Claim in Young v . American Mini 14 Theater , reinforces the City of Renton' s claim that the State declaratory judgment should be allowed to 15 go forward to permit "a narrowing construction by the State Court" on the definitional aspects of the 16 ordinance . 17 In Young v. American Mini Theater ,- supra , Justice 18 Stevens noted at page 58: 19 ' 'They argue , however , that they cannot determine . I how much of the described activity may be . 20 permissible before the exhibition is 'characterized by an emphasis' on such matter" 21 In reply, Justice Stevens refused to elevate that issue to 22 the status of a substantial federal question. Instead , he 23 pointed out that to the extent that any doubt would 24 thereafter arise , such matter was. to be resolved in the State 25 Court where the ordinance would be "readily subject to a 26 narrowing construction by the State Court" . 27 28 BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S.ATTORN[Y• AT LAW TO DISMISS AND IN REPLY TO MEMORANDUM IN .00.O. •CcOND ST.. P. O. .OX Cif OPPOSITION TO REMAND - PAGE 6 R . WASHINGTON 9EO57 235.8678 1 A dismissal - of the declaratory. judgn , action would 2 prevent the City of Renton from obtaining the construction of 3 the ordinance by the State Court to which it is entitled 4 under the rationale expressed by Justice Stevens in his 5 opinion in Young. 6 The relief sought by the City of Renton in its State 7 Court complaint is , in effect, a limiting construction and/or 8 severance of _ any constitutionally defective portions of the 1 9 ordinance relating to the use which Playtime Theatres, has 10 offered to commence within the City of Renton . The Supreme 11 Court in Dombrowski v. Pfister , supra, invited state court 12. limiting construction of statutes -- even though facially 13 unconstitutional -- by means of the declaratory judgment 14 remedy: Furthermore , construction of the Ordinance is beyond 15 the jurisdiction of this Court , U .S . v . Thirty-Seven 16 Photographs , supra , and determinations of severance should be 17 more appropriately left to the judgment of the state court . 18 Metromedia ,- Inc. v. San Diego, U. S. , 69 L. Ed . 2d 800 , 19 823 (July 2, 1981) . 20 - Construction of portions ' of the Ordinance may be 21 appropriate to , save the statute , as the Court is required to 22 do if there are any conceivable set of facts which support 23 the statutes' constitutionality. Tilton v. Richardson , 403 24 U.S. 672, 684 , ; In re Marriage of Johnson , 96 Wn . 2d 255 , 25 258, P.2d (October 15, 1981 ) . Clarification of the 26 terms "used" and "distinguished or characterized by" in the 27 definition of "adult motion picture theatre" may be necessary 28 to limit the application of the Ordinance to conduct BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S. ATTORN[T• AT LAW TO DISMISS AND IN REPLY TO MEMORANDUM IN use so. SECOND ST.. r. 0. e0X SSS OPPOSITION TO REMAND - R[NTON. WASHINGTON 98057 .PAGE 7 255.8878 „ , 1 occurring on a - repeated , continuous bas4.0 which may be 2 properly characterized as a "course of conduct” of exhibition 1 3 of films depicting " specified sexual activities" and ' 4 "specified anatomical areas ." The determination by the State 1 5 Court of the validity and applicability of the ordinance is ! 6 the most expeditious vehicle to a determination of the j 7 respective rights of the parties under the ordinance , 1 8 particularily in view of the particular expertise of the 11 9 State Court in ruling upon land use matters. � ; I 10 D. The instant case is a justiciable controversy , or a I question of great public interest -of which the 11 State Court will entertain jurisdiction. II • 12 The principle elements of a justiciable controversy 13 under the Washington. Declaratory Judgment Act (codified as I 1 14 Chapter 7. 24 RCW) are as follows : 15 . ' 1 . The parties must have existing and genuine , as distinguished from theoretical rights _ 16 or interests. 17 2. The controversy must be one upon which the judgment of the Court may effectively operate , li 18 as distinguished from a debate or argument evoking I a purely political , administrative , philosophical 19 or academic conclusion. ! : 20 3. The controversy must be such that a judicial determination will have the force and 21 effect of a final judgment in law or decree in equity upon the rights , status or other . legal 22 relationship of one or more of the real parties in interest. 23 4. The proceeding must be genuinely 24 • adversary in character and not a mere debate , but ' advanced with sufficient militancy to engender a 25 thorough research and analysis of the major issues . 26 State ex rel O'Connell vs. Dubuque , 68 W.2d 553, 558, 413 27 P. 2d 972 ( 1966) . The first element was refined in . 28 Diversified Industries vs. Ripley, 82 W.2d 811 , 815, 514 P. 2d BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S. TO DISMISS AND IN REPLY TO MEMORANDUM IN ATT AT LAW Iao�o.SECOND sT.. P. O. SOX s:� OPPOSITION TO REMAND - PAGE 8 RCNTON. WASHINGTON 9e057 255-e678 1 137 ( 1973) , by further explanation that tine justiciable ; 2 controversy must be " . . .an actual , present and existing 3 dispute , or the mature seeds of one , as distinguished from a 4 possible , dormant , hypothetical , speculative , or moot 5 disagreement. . . ." • 6 Under any reasonable construction of the facts , this � I 7 Court must agree that the City of Renton and Playtime 8 Theatres are engaged in an actual , present and existing 9 dispute , between parties having genuine , opposing , direct and _ 10 substantial interests . A. judicial declaration by the State 11 Court of the validity and applicability of the. ordinance will ' it 12 have the force and effect of a final judgment in law upon the ' 13 parties. Finally, in view of the considerable time and 14 effort expended by the parties, it must be clear to the Court. 1 ' 15 that these proceedings are genuinely adversary in character 16 and are advanced with sufficient militancy to engender a II 17 thorough research and analysis of the major issues . ' 18 In any event , the issues involved in this litigation are jl 19 of such great and overriding public moment that the 20 Washington Court' will take jurisdiction of this matter to 21 determine the validity- and applicability of the ordinance in 22 question even in the absence of a justiciable controversy. 23 See O'Connell , supra , and In re Elliott , 74 W.2d 600, 614, 24 446 P. 2d 347- (1968) , where the Court reviewed the genesis of 25 the "great public interest" exception in the case of Huntamer 26 vs. Coe, 41 W.2d 767, 246 P.2d 489 (1952) . 27 The rule in Washington regarding the "great public 28 interest" exception is well stated in In re Elliott, supra , BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S. TO DISMISS AND IN REPLY TO MEMORANDUM IN ATTORNEYSAT LAW f00 t0. SECOND ST., P. O. BOX OILS OPPOSITION TO REMAND - PAGE 9 RENTON, WASHINGTON 98057 255-8678 _ I 1 at 614 . There , the Court quoted Anderson on • Actions For : 1 2 Declaratory Judgments , as follows : 3 " A petition for a declaratory judgment is particularly appropriate to determine the 4 constitutionality of a statute when the parties desire , and the public need requires , a speedy 5 determination of the public interest involved therein ." 6 Therefore , the requirement of justiciability is not required 7 " . . . if the question submitted to the Court is of sufficient. 8 public interest and the need for an immediate answer is of 9 sufficient urgency . to induce the Court to exercise its i 10 discretion and render a declaratory judgment . " In re 11 • Elliott , supra , at 615. 12 • Speaking in relation to the question of mootness , the � 13 .I Washington Supreme Court has decided issues , even though . 1 14 moot , " . . .if they •present matters of substantial public 15 interest , particularly where final determination of the issue 16 is essential in guiding the conduct of public officials." 17 DeFunis vs. Odegaard ,• 84 W.2d 617-, 628, 529 P.2d 438 ( 1974) . 18 In this case , the public officials of the City of Renton Il 19 - require judicial guidance in determining the proper course of 20 conduct to be followed in response to the land use offered by 21 Playtime Theatres . . 22 • RCW 7. 24.020 requires that a person seeking declaratory • 23 relief must ..have a "right" or "legal relationship" affected 24 by a municipal ordinance in order. to obtain a construction of 25 th,e ordinance . . Municipal corporations are within the 26 definition of "person" for the purposes of the Declaratory 27 Judgment Act. RCW 7.24. 130. 28 BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S. TO DISMISS AND IN REPLY TO MEMORANDUM IN ATTORNEYS AT LAW .100 SO. SECOND ST.. F. O. SOX 111S OPPOSITION TO REMAND - PAGE 10 RENTON. WASHINGTON 9e057 255.8678 /4 • 1 The City has an obvious interest in Lne validity and 2 application of its ordinance , and the integrity g y of its land 3 use planning municipal function which, as this Court is well 'I 4 aware , is one of the prime functions of municipal government 5 under our coordinated system of federalism and home rule 6 under the Optional Municipal Code . Chapter 35A RCW . � I 7 However, in this case , the City of ' Renton now has even 8 greater interest in the validity and applicability of its 9 ordinance to the specific land use offered by- Playtime . 10 Theatres because of the potential .exposure to liability for 11 damages under 28 USC Section 1983, Monnel vs. Department of it 12. Social Services of New York, 436 U.S. 658, 56 L. Ed 2d 611 , 98 II 13 S. Ct . 2018 (1978) , and for costs and expenses under 28 USC 14 Section 1988, Owen vs. City of Independence , 445 U. S. 622, 63 15 L. Ed 2d 673 , 100 S . Ct . 1398 (1980) . This liability 16 establishes the property interest of. the City of Renton in a 17 determination of the propriety of the actions which the City 18 has taken to regulate the subject matter of adult , I 19 entertainment land uses within its jurisdiction. Ii 20 Playtime Theatres cites the case of City of Mishawaka 21 vs . Mohney , 297 N . E. 2d 858 (Indiana , 1973 ) , for the 22 proposition that it is . improper for the City to seek 23 declaratory relief as to validity of its ordinances . 'That 24 case is easily distinguishable from the present. ' In that 25 case the Court was uncertain whether the Defendant was 26 actually the owner of the book store andtheater over which 27 the City was attempting to 'assert jurisdiction to regulate 28 the sale , distribution and exhibition of pornographic BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S. ATTORN[YK AT LAW TO DISMISS AND IN REPLY TO MEMORANDUM IN +OO[O. [[CONO sT.. P. O. .OX e2• OPPOSITION TO REMAND — PAGE 11 RCNTON. WA[NINGTON OO 7 255-0678 Ar 1 materials . Therefore , the Court found that the City ' s fears 2 of a violation of their ordinance by the owner of the book 3 store were purely hypothetical , and the alleged controversy 4 was more theoretical than actual . In this case , Playtime 5 Theatres has actually offered to exhibit "adult motion picture 6 film fare within the City of Renton at a location which falls 7 within the prohibitions of Ordinance No . 3526. Therefore , 8 the dispute could be no more p proper for determination under 9 the Washington Declaratory Judgment Act. 10 E. The "Priority Rule" does not require dismissal of the State Court action because there is no identity 11 of relief requested in the State and Federal actions. 12. As correctly stated by Playtime Theatres , the invocation 13 , j of the "Priority Rule" requires identify of subject matter , 14 parties and relief. As set forth more particularly above , 15 the relief requested by Playtime Theatres in the Federal 16 Court action cannot be identical to the relief requested by 17 the City of Renton in the State Court action because of this 18 Court' s lack of jurisdiction to construe legislation and/or 19 sever portions thereof found to be unconstitional . 20 21 F. Conclusion. 22 The motion to dismiss the State Court action filed herein by Playtime Theatres should be denied , and the State 23 Court action should be remanded to the King County Superior 24 25 Court from whence it was removed , with the award of costs and 26 27 28 BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S. TO DISMISS AND IN REPLY TO MEMORANDUM INRN[Tf AT LOW 'cof00 f0. SEC f[COND fT.. P. O. SOX fif OPPOSITION TO REMAND - PAGE 12 RENTON, WASHINGTON 96057 255-8678 • • 1 attorneys fees to the City of Renton pursuant to 28 U . S. C. 2 1447 . 3 . • 4 Res fully submitted , • 6 DANIEL KELLOGG 7 8 ' I 9 • 10 I 11 1:2 13 14 15 16 • 17 18 19 • • I 20 21 22 23 24 25 26 1 27 28 BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S. TO DISMISS AND IN REPLY TO MEMORANDUM IN ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. SOX IBIS OPPOSITION TO REMAND — PAGE 13 RENTON. WASHINGTON 98057 255-8878 + 1 2 3 jj 4 5 • 7 • 8 • 1 9 UNITED STATES DISTRICT COURT 10 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 11 PLAYTIME THEATRES, INC. , et al . ) ) 12 Plaintiffs, ) 13 v. ) CASE NO. C82-59M ) 14 CITY OF RENTON, et •al. . ) ' I ) . 15 Defendants . ) ' ) 16 ) CITY OF RENTON, et al. , ) 17 ) CASE NO. C82-263M ' Plaintiffs , ) 18 ) v. ) OBJECTIONS TO MAGISTRATE' S 11 19 � ) REPORT AND RECOMENDATION ON PLAYTIME THEATRES, INC. , et al. ) DEFENDANTS' MOTION TO DISMISS 20 ) i 1, Defendants . . ' 21 ) 22 COMES NOW the City of Renton to object to the Magistrate' s 23'Report and Recommendations in Case No. C82-59M, dated March 23, , 1 24 1982, as follows: 25 1 . The Magistrate' s introductory statement of facts does H 1 ' 26 not recite all of the facts which are apposite and necessary to 27 a resolution of the City' s claim that this Court should dismiss 28 the lawsuit, either on the ground of failure to state a claim upon OBJECTIONS TO MAGISTRATE'S REPORT WARREN ee KELLOGG, P.s. ATTORNEYS AT LAW 100 f0. SECOND IT.. P. O. !ox 626 . RENTON, WASF1INOTON 98057 P. 1. 255-8878 ' 3- which relief can be based, or on the abstention principles 1 2 announced in Younger v. Harris , 401 U. S . 37 , Huffman v. Pursue Ltd . , I , II 3 420 U. S . 592, Steffel v. Thompson, 415 U. S . . 452, and Hicks v. H 4Miranda, 422 U. S . 332, and the opinion .of Associate Justice • 5 Stevens in Young v. American Mini Theater., Inc. , et al . , 427 U. S. 650, at 61 . : I 7 2. The Magistrate' s conclusion that the "Defendants ' 8 contention that the Court lacks jurisdiction is meritless , " • i i 9 (Report, page 2, lines 12-14) is erroneous . 1 10 2 (A) . The Magistrate' s conclusions that "The dispositive 11 issue in this action is whether the Renton Zoning Ordinance has the ' I 12 effect of suppressing or greatly restricting plaintiffs ' access 1 13 to 'the market for protected speech or is instead a permissible ! , 14 time, place, and mariner restriction" (Report at page 3, lines 12- • 15 16) and that the "Plaintiffs ' amended complaint .raises these 1 , I ' 16 issues : (1) whether on the record there is a compelling state 1 ' 17 interest to justify the .zoning ordinance' which affects protected • ' 1 1 18 First Amendment Speech; and, (2) whether the zoning ordinance H 19 places an unconstitutional restriction on access to the market for I 20 protected speech. " (Report at page . 2, lines 14-19) are erroneous . 21 2 (B) . The Magistrate' s conclusion that -"there is no 1 • 22 1conceivable limiting statutory construction by a state court that I 23 • would resolve this issue. " (Report at page 2, line 26 through 24 page 3, line 3, and page 3, lines 18-20) is erroneous . ' I 25 3. The Magistrate' s conclusions that the enforcement of 26 a City Zoning Ordinance forbidding "Adult Motion Picture Theaters" 27 in certain areas is not a "civil enforcement proceeding" within 28 the. meaning expressed in Huffman v. Pursue Ltd. , supra, (Report J WARREN & KELLOGG. P.S. OBJECTIONS TO MAGISTRATE' S REPORT • ATTORNEY,AT LAW I 100 SO. SECOND aT.. P. O. BOX S:a R . WASHINGTON 98057 P. 2 255-8678 I ' I I I 1 at page 4, lines 5-15) is erroneous : 2 3 (A) . The Magistrate' s conclusion that abstention is not 3 appropriate to allow the state court to construe the state 4 statute in the first instance, (Report, at page 3, lines 23-25 , 5 and lines 6-9) is erroneous . 6 4 . The Magistrate' s statement that "Defendants use the �I 7 assertion of that claim (conditional use) as a basis for arguing 1 8 that plaintiff' s must exhaust those remedies (administrative) " 9 (Report, at page 4, lines 23-24) misunderstands the thrust of 10 the Defendants ' argument. li 11 ' I 12 ARGUMENT . 13 I 14 Introduction 15 On June 24, 1976, the United States Supreme Court upheld 16 a Detroit Zoning Ordinance relating to the use of property for 17 "Adult Motion Picture Theater," "Adult Book Store," "Adult Adult � I 18 Mini Motion Picture Theater" in Young v. American Mini Theatre, 19 Inc . et al, 427 U. S. 50. In the Young case, Justice Stevens, 20 speaking for the Court, rejected a claim that the Detroit 21 Ordinance was too vague, held at page 61: 22 "to the extent that an area of doubt exists, we see no i 23 reason why the ordinances are not 'readily subject to 24 a narrowing construction by the state courts. '" - 25 11 On April 13, 1981,. the Renton City Council passed and 26 adopted City of Renton Ordinance No . 3526, containing the 27 identical language of a portion of the Detroit Zoning Ordinance 28 which had been before the U. S . Supreme Courtin the Young case WARREN & KELLOGG. P.S. OBJECTIONS TO MAGISTRATE' S REPORT ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. SOX 1126 RENTON. WASHINGTON 98057 P. 3 st,_o..,o 1 (that portion relating to "Adult Motion Pictut- 2heater . ") 2 See 427 U. S . 50 at 53, fn. 4. 3 On January 28, 1982, Plaintiff Kukio Bay Properties , Inc . 4 purchased the Roxy Theater and the Renton Theater in Renton. On 5 or about January 27, 1982, Kukio Bay Properties , Inc. leased 6 said theaters to Plaintiff Playtime Theaters , Inc. . The J ' 7 lease agreements provide that the premises are to be used "for 1 8 the purpose of conducting therein adult motion picture theaters . " 9 (Amended Complaint, page 4, lines 19-22) . Mike Parness , ' 10 Administrative Assistant to the Mayor of the City of Renton 11 advised the Plaintiffs on January 19, 1982 that if the property 12 of the Plaintiffs is used to exhibit adult motion picture films, 13 .enforcement proceedings will be commended. (Amended Complaint, 14 page 6, _lines 8-12) . Plaintiffs have admitted that one of said 15_ theaters would continuously operate exhibiting adult motion 16 picture film fare to an adult public audience but for the 17 threats of the Defendants to enforce the Zoning Ordinance 18 (Amended Complaint, page 4, lines 26-29) . 19 On January 20, 1982, Plaintiffs Playtime Theatres, Inc. and 20 Kukio Bay Properties filed an action entitled "Complaint for 21 Declaratory Judgment and Preliminary Injunction," alleging 22 jurisdiction under 28 U. S.C. §1131 (a) , 42 U-. S .C. §1983 and 28 23 U. S.C. §2202 and Rule 57 of. the Federal Rules of Civil Procedures, 24 challenging the constitutionality. of Renton Zoning Ordinance No . 25 3526. 26 On January 29, 1982, Plaintiffs moved for a temporary 27 restraining order as ancillary relief under their original 28 OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S. P. 4 - ATTORNEYS AT LAW 100 110. SECOND ST.. P. O. SOX 626 RENTON. WASHINGTON 98057 255.8878 1 Complaint. Following oral argument on that date, the Magistrate 2 announced orally, from the bench, that he would recommend the 3 denial of the temporary restraining order. 4 On February 3, 1982, U. S . Magistrate Sweigert filed his 5 Report and Recommendation and Proposed' Form of Order in which 6 he recommended that this Court deny the request for a temporary 7 restraining order. 8 On February 9, 1982, and before this Court had formally 9 ruled upon the motion for a temporary restraining order under 10 the original Complaint, Plaintiffs filed and served a new 11 Complaint entitled "Amended and Supplemental Complaint for 12 Declaratory Judgment and Preliminary and Permanent Injunction" 13 raising a new issue that under the Renton Zoning Ordinance a 14 conditional use must be applied for. Such issue ignored the ' 15 testimony of David R. Clemens, Director of Policy Planning of 16 the City of Renton at the hearing on the temporary restraining 17 order on January 29, 1982 that no conditional use permit was 18 required for operation of a movie theater in the business and 19 more intense zones of the City; i. e. , that under the Zoning 20 Ordinance, an Adult Motion Picture Theater was an allowable 21 use within the City of Renton to the extent not prohibited by � I 22 the restrictions of Ordinance 3526. 23 On February 19, 1982, the City filed a civil action in 24 King County Superior Court seeking a declaratory judgment that 25 the ordinance involved in the instant action is constitutional 26. as applied to the Plaintiffs ' proposed use of the two theaters. 27 On February 22, 1982 (within the time allowed the Defendants 28 to file a response in the lawsuit) the Defendants filed a OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. SOX 1211 R . WASHINGTON 98037 P. 5 253.8878 1 response in the lawsuit) the Defendants filed a responsive 2 pleading to the Plaintiff' s "Amended and Supplemental Complaint 3 for Declaratory Judgment and Preliminary and Permanent 4 Injunction" (i. e. , this Motion to Dismiss) 5 On February 23, 1982, this Court considered the request 6 for temporary restraining order de novo and rendered its judgment 7 that the Plaintiff' s motion for temporary restraining order under 8 the original Complaint which was superceded by the Amended 9 Complaint was denied. Judgment was entered on the same date. 10 The City moves to dismiss the present action because: (1) 11 the Amended and Supplemental Complaint fails to state a 12justiciable claim upon which relief can be based under either 1328 U. S.C. , section 2202 or 42 U. S. C. §1983; and this Court lacks. � I 14jurisdiction of the subject matter (i. e. , the interpretation to 15 be given to Ordinance No . 3526 and whether it can or needs to 16 be given a narrowing construction) and (2) this Court should 17 abstain from exercising jurisdiction under the principles 18 expressed in Younger v. Harris, supra, Huffman v. Pursue Ltd. , 19 supra, Steffel v. Thompson, supra, and the opinion of Associate 20 Justice Stevens in Young v. American Mini Theater., Inc. , et al , 1 21 supra. 22 II I HI 23 The U. S. District Court Lacks Jurisdiction Of 24 The Subject Matter Of The Declaratory Judgment Action 25 Renton Ordinance No. 3526 contains the identical language 26 of the zoning ordinance which was considered by the U. S . Supreme 27 Court in Young v. American Mini Theatres, Inc . , et al , 427 U. S. 28 OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P. 6 '00 20. SECOND ST.. P. O. SOX O2• RENTON, WASHINGTON 98057 255.8878 . 1 1 50. See Young at page 53, footnote 4 for the definitions of 2 "Adult Motion Picture Theater, " "Specified Sexual Activities , " 3 and "Specified Anatomical Areas . " 4 In Your, supra, the theaters contended at page 58 : 5 "that the ordinances are so vague that they violate the Due 6 Process Clause of the Fourteenth Amendment. " In addressing 7 the "vagueness" contention in that case, Justice Stevens noted, 8 at page 58 : • 9 "There are two parts to respondents' claim that the H ordinances are too vague. They do not attack the ' I 10 specificity of the definition of' 'Specified Sexual Activities or 'Specified Anatomical Areas. ' They II 11 argue, however, that they cannot determine how much of the described activity may be permissible before 12. the exhibition is 'characterized by an emphasis ' on I 13 such matter. In addition, they argue that the ordinances are vague because they do not specify adequate procedures or standards for obtaining a 14 waiver of the 1, 000-foot' restriction. 15 "We find 'it unnecessary to consider the validity 16 of either of these arguments in the abstract? For even if there may be some uncertainty about the effect of 17 the ordinances on other litigants, they are unquestionably applicable to these respondents . The record indicates that both theaters propose to offer adult fare on a 18 regular basis . Neither respondent has alleged any 19 basis for claiming or anticipating any waiver of the 1 restriction as applied to its theater. It is clear, 20 therefore, that any element of vagueness in these ordinances has not affected these respondents. " 21 Thereafter , in ruling on the theater' s claims as to vagueness • • 22 of the language which was used and whether that issue was one 23 which required federal intervention, Justice Stevens responded 24 both generally and specifically to that issue, at page 60 : 25 "We are not persuaded that the Detroit zoning ordinances H 26 will have a significant deterrent effect on the exhibition of films protected by the First Amendment. As already noted, 27 the only vagueness in the ordinances relates to the amount of sexually explicit activity that may be portrayed before 28 the material can be said to be 'characterized by an emphasis ' on such matter. For most films the question WARREN & KELLOGG. P.S. OBJECTIONS TO MAGISTRATE'S REPORT ATTORNEYS AT LAW P. 7 f00 SO. SECOND ST.. P. O. SOX 425 RENTON. WASHINGTON 98057 255-8678 • 1 will be readily answerable; to the extent that an area of doubt exists, we see no reason why the ordinances 2 are not 'readily subject to a narrowing construction by the state courts . Since there is surely a ess vital - 3 interest in the uninhibited exhibition of material that is on the borderline between pornography and artistic 4 expression than in the free dissemination of ideas of social and political significance, and since the 5 limited amount of uncertainty in the ordinances is easily susceptible of a narrowing construction, we think this ' 6 is an inappropriate case in which to adjudicate the hypothetical claims of persons not before the Court . " 7 (Our emphasis) . 8 The general language underscored above: 9 "For most films the question will be readily answerable; to the extent that an area of doubt 10 exists, we see no reason why the ordinances are not 'readily subject to a narrowing construction by 11 the state courts' ", 12 .although not necessary to the decision in that case, does consti- it 13 tute a binding decision that such language is not vague and does 14 not present a substantial federal question which will authorize 11 15 federal intervention. Justice Stevens ' opinion requires this 16 Court to hold, as a matter of law that such language as is used 17 in the Renton ordinance is susceptible of a narrowing construction, 18 and that the Court has no jurisdiction to proceed further in regard 19 to the application of such ordinance to specific properties where 20 the.City of Renton has clearly stated that it wishes to have the 21 matter resolved in the pending state court proceedings, where it 22 can obtain the "narrowing construction" which this Court cannot 23 give to the ordinance. See U.S . v. 37 Photographs, 402 U. S. 363, 24 where the U.S . Supreme Court noted at page 368 that the federal 25 courts lack jurisdiction to construe state legislation: 26 As enacted by Congress, §1305 does not contain explicit time limits of the sort required by Freedman, 27 - Teitel, and Blount. These cases do not, however, require that we pass upon the constitutionality of §1305(a) , for 28 it is possible to construe the section to bring it in OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. SOX 1126 P. 8 RENTON. WASHINGTON 98057 255-8678 • 1 harmony with constitutional requirements . It is true that we noted in Blount that "it is for Congress ,. not 2 this Court, to rewrite the statute. " 400 US . at 419 , 27 L Ed 2d at 505 and that we similarly refused to 3 rewrite Maryland' s statute and Chicago ' s ordinance in Freedman and Teitel . On the other hand, we must 4 remember that—"(w)hen the validity of an act of Congress is drawn in question, and . . . a serious doubt 5 of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether 6 a construction of the statute is fairly possible by which the question may be avoided. " Crowell v. Benson 7 285 US 22, 62, 76 L Ed 598 , 619, 52 S Ct 285 (1932) . Accord, e.g. Haynes v. United States, 390 US 85 , 92, 8 19 L Ed 2d 923, 929, 88 S Ct 722 (1968) (dictum) ; Schneider v. Smith, 390 US 17, 27 , 19 L Ed 2d 799 , 9 ' 806, 88 S Ct 682 (1968) ; United States v. Rumlev, II 10 345 US 41, 45, 97 L Ed 770, 775, 73 S Ct 543 (1953) ; Ashwander v. Tennesse Valley Authority, 297 US 288, 11 348 , 80 L Ed 688 , 711, 56 S Ct 466 (1936) (Brandeis , J. , concurring) . This cardinal principle did not govern Freedman, Teitel, and Blount only because. the statutes 12 there involved could not be construed so as to avoid all constitutional difficulties. 13. 14 The obstacle in Freedman and Teitel was that the I1 statutes were enacted pursuant to state rather than - 15 federal authority; while Freedman recognized that a statute failing to specify time limits could be saved 16 by judicial construction, it held that such construction had to be "authoritative, " 380 US, at 59, 13 L Ed 2d at 655, 17 and we lack jurisdiction authoritatively to construe state legislation. Cf. General Trading Co. v. State Tax 18 Comm'n 322 US 335, 337, 88 L Ed 1309, 1311, 64 S Ct 1028 (1944) . (Our emphasis) 19 Every court has jurisdiction to determine its own 20jurisdiction. See Prack. v. Weissinger, (C.A.4, 1960) 276 F. 2d 466 21 at 450: 22 " We are of the opinion that Miss Prack's second point of error is 23 well taken. The general rule as to the power of a court to determine its own jurisdiction is stated in 21 C.J.S. Court §113 (1940) , as follows: 24 "Every court has judicial power to hear and determine, or 25 inquire into, the question of its own jurisdiction, both as to parties and as to subject matter, and to decide all questions, 26 whether of law or fact, the decision of v;hich is necessary to determine the question of jurisdiction . . .^' " 27 The decision of Justice Stevens in Young, supra, 28 OBJECTIONS TO MAGISTRATE' S REPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P. 9 f00 SO. SECOND ST.. P. O. SOX S26 RENTON. WASHINGTON 98057 255.8670 • 1 requires this court to grant the defendant 's motion and dismiss 2 the Amended Complaint for lack of subject matter jurisdiction. 3 II (A) 4 The Magistrate's Conclusion That The Pleadings 5 Presented Issues For the Determination Of The 6 Federal Court Is Erroneous . 7 The Magistrate's conclusion that : 8_ 1 . "The dispositive issue in this action is whether the Renton zoning ordinance has the effect of suppressing 9 or greatly restricting plaintiffs ' access to the market for protected speech or is instead a permissible jl 10 time, place, and manner restriction" ; and 11 . 2. "Plaintiffs' amended complaint raised three issues : (1) whether on the record there is a compelling state interest 12 _ . to justify the zoning ordinance which affects protected First Amendment Speech; and (2) whether the zoning . 13 ordinance places an unconstitutional restriction on access to the market for protected speech." 14 are erroneous . Insofar as the federal issue of the facial 15 16 validity of Renton Zoning Ordinance 3526 is concerned, those issues have already been answered by Justice Stevens ' opinion 17 in Young,' supra. Insofar as the same issues are raised in 18 relation to any alleged application of Renton Ordinance 3526 19 to the Roxy and Renton Theaters themselves , those matters are, 20 in principle, for the determination of the City of Renton as to � I 21 22 how and when and in what context they may be raised. The City of Renton having already filed a lawsuit in the state court seeking 23 a resolution of the application of the ordinance to the Renton 24 25 and Roxy' s' proposed uses , the latter issue is , under Justice 26 Stevens ' opinion, for the state court 's determination. 27 The City's decision to have this issue resolved in the state 28 court is not arbitrary. The reasons for the City's choice of OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P. lO 200 SO. SECOND ST.. P. O. SOX Ill RENTON. WASHINGTON 98057 255-8878 i • 1 1 state forum are very practical ones, from the standpoint of 2 its financial liability: 3 (1) The City has relied upon Justice Stevens ' opinion which holds that the language of the Detroit ordinance 4 is not vague, and that a city may enact such ordinance with reasonable certainty that it would not thereby be - 5 liable unless it improperly applied the ordinance to specific facts and a specific use of property. 6 (2) The City does not wish to engage, involuntarily, 7 in abstract litigation with the Renton and Roxy Theaters , j --litigation which subsequent events may prove to be 8 unprofitable and ill advised. I 9 (3) The City is aware of its absolute liability under Monell v. New York City Dept. of Social Services, 436 10 U.S . 658, and Owens v. City of Independence, 455 U. S. 622, for the deprivation of civil rights under 42 U. S.0 11 section 1983, and of the differing standards in determining responsibility for attorney' s fees as a prevailing party 12 in 42 U.S .C. Section 1983 litigation. Such standards favor • the Civil Rights Plaintiff, Entertainment Concepts , Inc. v. 13 Maciejewski, 631 F. 2d 497 (7th Cir. , 1980),, cert. denied in Maciejewski v. Entertainment Concepts, Inc. , U. S . 14 67 L.Ed.2d 346 (Feb. 23, 1981) ; see also , Supreme Court of Virginia v. Consumers Union of the U. S. 446 U. S. 719 at ' ' 15 , 737 n. 17 (1980) and deter the City from affirmatively applying the ordinance in an unreasonable manner . 16 (4) The City wishes its financial responsiblities for 17 unsuccessful litigation to be measured by state concepts i , of liability for malicious prosecution for litigation j 18 which has been unlawfully initiated pursuant to its own affirmative action, rather than in terms of liability for 19 federal litigation pursuant to 42 U. S. C. section 1983 and 1988 for abstract civil rights violations, in which it is 20 an unwilling participant, and has no opportunity to have • the state statute "authoritatively construed" . U. S . v. ! I 21 37 Photographs, supra. 22 (5) The City is aware of the irreconcilable results which can be reached in federal and state courts regarding the 23 identical state statute. See, in this regard, in this 1 state, Spokane Arcades, Inc. v. Brockett, 631 F. 2d 135 24 (9th Cir. , 1980) , affirmed in Brockett, Spokane County Prosecuting Attorney v. Spokane Arcades, Inc. No. 80-1604, 25 U.S.___, 70 L.Ed. 2d 468; and in the State of North Carolina, see State of North Carolina ex rel . Andrews v. 26 Chateau X, Inc. , 296 N.C. 251, 250 S .E. 2d 603 (Jan. 4, 1979) I remanded for reconsideration in Chateau X, Inc. v. State of 27 North Carolina, No. 78-138, 445 U. S. 947 (Mar. 31, 1980) 28 in light of Vance, et al v. Universal Amusement Co . , Inc. , OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P. 11 100 60. SECOND ST.. P. O. SOX 626 RENTON. WASHINGTON 98057 255-8678 I - 1 445 U. S. 308, 100 S .Ct. 1156, 63 L.Ed. 2d 413 (Mar . 18 ,.. 1980) and readopted and reaffirmed in Chateau X, Inc. 2 v. State of North Carolina ex rel . Andrews, 302 N. C . , S. E. 2d (Mar . 4, 1981) ; and in the State 3FT-Idaho, see Idaho ex rel. Wayne Kidwell v. U. S . ' Marketing, Idaho , 631 P. 2d 622, probable 4 jurisdiction noted by the U.S . Supreme Court on January 11, 1982 in U. S . Marketing, Inc. , et al . v. 5 State of Idaho, No. 81-741, 50 L.W. 3547 , unilaterally dismissed by the Appellants, U. S . Marketing, Inc . et al , 6 on March 10, 1982 under U. S . Supreme Court Rule 53 and against the objections of the Attorney General of the 1 7 State of Idaho. See 50 L.W. 3751 . In the North Carolina Case, above noted, the North Carolina State Moral Public 8 Nuisance Statute was construed by the North Carolina State Supreme Court and upheld as constitutional without 9 considering the "closure" issue; in the Idaho case, the Idaho Moral Public Nuisance Statute (identical in - 10 content) was construed by the Idaho State Supreme Court and upheld as constitutional including the ''closure" j 11 issue; in the Washington case, the Washington Moral Public Nuisance Statute (identical ' in content) was held 12. by the U. S. District Court to be facially unconstitutional in a decision in which the federal court refused to 1a construe the statute or sever the parts which it had held to be unconstitutional . In a Petition for Rehearing filed 14 in the Supreme Court (80-1604) , the Spokane County Prosecuting Attorney brought to the attention of the U. S. I ' ' 15 Supreme Court the fact that the Plaintiffs in his 42 U. S .C. §1983 litig :n were claiming reasonable attorney' s 16 fees and cc of $75, 000.00 for a civil rights action 17 (in which the, Spokane County Prosecutor was an involuntary litigant) . On January 11, 1982, the U.S. Supreme Court denied that Petition for Rehearing. See C.C.H. , U. S . 18 • Supreme Court Bulletin at page B 666. H l 19 II (B) 1 20 The Magistrate' s Conclusion That Renton il 21 Ordinance No. 3526 Cannot Be Given A Limiting - 22 Construction Is Erroneous; ; I 23 The Magistrate' s conclusion that "there is no conceivable r 241imiting construction by a state court that would resolve this 25issue" is not supported by recent case law. Compare in this 26 regard, the language and construction given by California State i 27Courts to the identical ordinance in Walnut Properties, Inc. 28v. Long Beach City Council, 100 Cal . App. 3d 1018, at 1021, 161 OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. BOX 626 P.12 RENTON. WASHINGTON 98057 255-8678 • • 1 Cal . Rptr . 411 , at 413, hearing denied by the California 2 Supreme Court on March 13, 1980; Pringle v. City of Covina , 3 115 Cal . App. 3d 151 at 160; 171 Cal .Rptr. 251 , at 255, hearing 4 denied by California Supreme Court on March 25, 1981; Castner v. , 5 City of Oakland, Cal . App. 3d , 180 Cal Rptr, 682, at 684 6 (Feb. 2 , 1982) Kuhns v. Santa Cruz County Bd. of Supervisors , 7 Cal . App. 3d __, 181 Cal Rptr. 1 at 4. 8 The City of Renton does not rely upon the interpretations � I 9 given to such language by the above California State courts , but ' 10 contend, instead, that a constitutional construction can be 11 given such language by the Washington State courts that the land 12:use proscribed by such language in such Zoning Ordinance is a it 13 use which: (1) is a continuing course of conduct of repeated 14 violations, which (2) is not innocent, but "panders", being a use 15 which appeals to prurient interest; i. e. a manner of use which 16 incites lasciviousness or lust. See Substitute House Bill 626, 17 Section 1, (8), page 2, lines 29-30, enacted April 1, 1982. 18 19 20 I ///// ///// 21 22 23 _ I 24 ///// //// 25 26 27 28 OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S. P. 13 ATTORNEYS AT LAW 100 110. SECOND ST.. P. O. SOX 0211 RENTON. WASHINGTON 98057 255-8678 1 III 2 THE ENFORCEMENT OF A CITY ZONING ORDINANCE RELATING TO THE USE OF PROPERTY FOR AN "ADULT 3 MOTION PICTURE THEATER" IS A "CIVIL 4 ENFORCEMENT PROCEEDINGS" WITHIN THE MEANING OF HUFFMAN V. PURSUE, LTD. 5 In Huffman v. Pursue , Ltd. 420 U. S. 592, the United States 6 Supreme Court extended the Younger v. Harris abstension doctrine 7 in criminal prosecutions to civil cases to abate a public nuisance 8 where : (1) the state is a party to the proceedings and the civil 9 proceeding to abate a public nuisance is both in aid of and 10 , closely related to criminal statutes which prohibit the 1 11 dissemination of obscene.- material , and (2) a federal injunction 12 interfering with the state proceeding to abate a public nuisance 13 disrupts the state's effort to protect the very interests which . 14 underlie its criminal laws and to obtain compliance with precisely 15 the standards embodies in those laws . See Huffman v. Pursue, 16 Ltd. , supra, at page 604. 1 17 A violation of the use provisions of Renton Zoning ordinance 18 No. 3526, under the above construction and traditional and well- 19 recognized concepts of municipal law, is also a public nuisance 20 ' 1 which is subject to abatement. See McQuillan, Municipal 21 Corporations , volume 8, s25 . 11 "Zoning and Nuisances" at page 31 22 and Shields v. Spokane School District, No. 81 , 31 Wash. 2d 247 , 23 196 P. 2d 352, following Robinson Brick Co. v. Luthi, 115 Colo. 24 106, 169 P. 2d 171, 166 A.L. R. 655 , cited at footnote 5 of the 25 McQuillan text. 26 The declaratory judgment proceedings which have been filed in 27 the Washington state court, being in the nature. of a civil action 28 to declare that such proposed land use in the proscribed area is a OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW f00!0. ■CCOND UT., P. O. SOX E2• P.14 RENTON. WASHINGTON 98057 255-8678 I ' 1 public nuisance which is subject to abatement under the zoning 2 restriction and may be enjoined, is but another way of enforcing 3 the public policy which was the subject pf the lawsuit in Huffman 4 v. Pursue , Ltd . In that case , the situations were reversed: 5 Pursue , Ltd. framed its cause of action in terms of a declaratory 6 judgment action; whereas , the Prosecuting Attorney framed his 7 pleadings in terms of a "public nuisance" which required abatement 8 under the civil law. 9 The declaratory judgment judicial proceedings which have been 10 filed in the state court herein are no less important than the "11 "Civil Enforcement Proceedings" in Huffman v.- Pursue , Ltd. See 12 Justice Stevens , speaking in the Young case at page 71 : 13 ' "The record discloses a factual basis for the Common Council 's conclusion that this kind of restriction will have 14 . the desired effect. It is not our function to appraise the wisdom of its decision to require adult theaters to be 15 separated rather than concentrated in the same areas . In • either event, the city's interest in attempting to preserve 16 the quality of urban life is one that must be accorded high respect. Moreover, the city must be allowed a reasonable 17 opportunity to experiment with solutions to aamittedly 18 serious problems . (Our emphasis . ) 19 III (A) 20 The Magistrate's Conclusion That Abstention � I 21 • Is Not Appropriate Is in Error. Abstention 22 Is Not Only Appropriate, It Is Required. 23 The Magistrate's conclusion that abstention is not appropriate 24 to allow the state court to construe the state statute in the first 25 instance is erroneous . Abstention is not only appropriate, it is 26 required because it is jurisdictional. See the defendants ' contention 27 herein at Point II, page 8 . Under the defendants ' alternative 28 contention, on principle, the plaintiffs have failed to state a OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S. ATTORNCYa AT LAW 100 110. SECOND ST.. r. 0. SOX sal P. 15 - RENTON. WASHINGTON 98057 zss-se7e 1 claim upon which relief can be. based. See Martinez v. California 2 444 U. S . 227 , 62 L Ed. 2d 481 (Jan. 15 , 1980) ; Allen V. McCurry , 3 U. S . 66 'L.Ed. 2d 308 , at 313 (Dec. 9 , 1980) and Parratt v. 4 Taylor, U. S . , 68- L.Ed. 2d 420 , at 434 (May 18 , 1981) . See also , 5 Point II of Memorandum of Points and Authorities in Support of 6 Defendants ' Motion to Dismiss Complaint Pursuant to F. R. C .P . 12 (b) 7 (1) and 12(b) (6) , at pages 10-13. 8 Abstention is required by principles of comity which have nothing 9 to do with the fact that the Plaintiffs in this federal court have 10 been the first to file their cause of action in the courtroom. See 11 here Justice White speaking for the Court in Hicks v. Miranda, 422 12 U. S. 332 at 349 (June 24, 1975) 13- . . Neither Steffel v. Thompson, 415 US 452, 39 L Ed 2d 505 , 94 S . Ct . 1209 (1974) , nor any other case in this Court 14 has held that for Younger v. Harris to apply, the state criminal proceedings must be pending on the day the federal 15 case is filed. Indeed, the issue has been left open and we now hold that where state criminal proceedings are begun 16 against the federal plaintiffs after the federal complaint is filed but before any proceedings of substance on the merits 17 have taken place in the federal court, the principles of Younger v. Harris should apply in full force. . . Unless we 18 are to trivialize the principles of Younger v. Harris , the federal complaint should have been dismissed on the State' s 19 motion absent satisfactory proof of those extraordinary circumstances calling into play one of the limited exceptions 20 to the rule of Younger v. Harris and related cases . " 21 As Justice Stewart stated in his dissent in Hicks , supra, at 22 page 354: 23 "There is , to be sure, something unseemly about having the 24 applicability of the Younger doctrine turn solely on the outcome of a race to the courthouse. . ." 25 There is no way in which the City could get the "authoritative" 26 construction of the ordinance in the state court , to which 27 it is entitled and as was envisioned by Justice Stevens ' 28 opinion in Young, if this Court were to reject abstention by OBJECTIONS TO MAGISTRATE 'S REPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. SOX 626 P. 16 RENTON, WASHINGTON 98057 255-8878 1 attributing weight to the fact that the Plaintiffs were the first 2 to file their cause of action. The nature of the controversy is 3 such that the City of Renton will never be aware that such a 4 controversy exists , and hence will be unable to bring its state 5 action, until either: (1) the theaters change their use 6 (programming) from one which is traditional to that which can be 7 recognized as the programming of an "Adult Motion Picture 8 Theater" , or (2) the theater formally announces its future 9 intentions (as in this case) by the filing of its lawsuit. I 10 The record herein shows that the City of Renton acted in 11 a timely manner by filing its state action before it was 12 required to respond with a responsive pleading to the federal 13 lawsuit. Further, the Statement of Facts recited above 14 demonstrates that when the City of Renton did file its 15 Motion to Dismiss on February 22, 1982 , it was in answer to the 16 Amended Complaint filed on February 9th. On that date , the ' 17 Plaintiffs had already abandoned their original complaint (filed 18 on January 20, 1982) ,. under which they sought a temporary 19 restraining order, which order was denied on February 23 , 1982 , 20 the day after the City filed its Motion to Dismiss the 21 Amended Complaint. ' I 22 IV • 23 THE MAGISTRATE MISUNDERSTANDS THE THRUST OF THE DEFENDANTS' ARGUMENT REGARDING EXHAUSTION ll 24 OF ADMINISTRATIVE REMEDIES. I 25 The Magistrate's statement that "Defendants use the 26 assertion of that claim (conditional use) as a basis for arguing i ; 27 that Plaintiff must exhaust those remedies (administrative)" 28 misunderstands the thrust of the Defendants ' argument. The City OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P. 17 100 SO. SECOND IT.. P. O. SOX Ise RENTON. WASHINGTON 98037 253.8878 1 contends that the Plaintiffs ' attorney should not be allowed to 2 assert in a verified pleading a contention which is the 3 appropriate subject of an administrative ruling on a zoning 4 matter, without establishing the basis for the correctness of such 5 administrative ruling; particularly where there is sworn testimony 6 of the responsible City officer in the same federal court , prior 7 to the filing of such pleading, that the administrative ruling on 8 that issue is contrary to the fact which is sworn to in such 9 pleading. 10 The Magistrate' s statement (Report 'at page 4, line 11 25 et seq. ) that "exhaustion of administrative remedies is not 12 required to invoke federal jurisdiction under 42 U. S. C. s 1983 13': 'unless the administrative remedy is fully adequateto obviate the 14 federal claims '" is a correct statement of the law, but a 15 misapplication of such law to the facts of record the 16 Plaintiff's spurious claim regarding "conditional use" under such 17 rule of law would have been obviated by the administrative remedy 18 when he became aware of the testimony of David R. Clemens , the 19 Director of Policy Planning of the City of Renton, at the hearing 20 upon Plaintiff's motion for a temporary restraining order on 21 January 29 , 1982, almost two weeks prior to the filing of 22 Plaintiffs ' Amended Complaint , that no conditional use permit 23 was required. Under ruling case law in the- 9th Circuit , Plaintiff 24 was required to exhaust his administrative remedy (either by 25 inquiry, or by notice of the City's position) because such remedy 26 would obviate his federal claim. - 27 28 OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S. ATTORNEYS'AT LAW 100 SO. SECOND ET.. P. O. DOE e20 P. 18 RENTON. WASHINOTON 98057 255-8878 1 CONCLUSION 2 For all of the reasons noted above, Defendants submit 3 that this Court should grant the City of Renton' s Motion to 4 Dismiss . 5 DATED: April 7, 1982. 6 Respectfully submitted , 7 8 C/ 9 1 10 11 12 13 14 • 15 16 -17 18 19 - 20 21 22 • 23 24 25 26 27 28 OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S. ATTORNCYE AT LAW P. 19 100 SO. sCCONO iT.. P. O. BOX Eli RENTON. WASHINGTON 98057 255-8678 Renton City Council 3/22/82 Page 3 Old Business - Continued Community Services Community Services Committee Chairman Reed presented committee Committee report noting review of request by Bill Stevenson/Rainbow Schwinn Bicycle Race to hold a United States Cycling Federation sanctioned amateur 5/9/82 bicycle race. The race will be held on 5/9/82 from 7:00 a.m. to noon around the block formed by SW 7th St. , Powell , SW 10th St. and Lind Ave. The report recommended approval with requested conditions. MOVED BY REED, SECOND MATHEWS, CONCUR IN COMMUNITY SERVICES COMMITTEE REPORT. CARRIED. Voucher Ways and Means Committee Chairman Stredicke submitted committee Approval report recommending Council approval for payment of Vouchers No. 38700 through No. 38951 in the amount of $811 ,312.76 plus LID No. 314 Revenue Warrants R-13 in amount of $133.00 and LID Revenue Warrant R-13 $86. 14, having received departmental certification that merchandise and/or services have been received or rendered. Machine Voids: No. 38695-38699. MOVED BY STREDICKE, SECOND BY HUGHES, CONCUR IN WAYS AND MEANS COMMITTEE REPORT. CARRIED. Planning and Planning and Development Committee Chairman Rockhill presented Development committee report noting review of latecomer agreements for traffic Committee signalization improvements in the Building Code and recommended Traffic Signals the subject matter be referred to the Ways and Means Committee Latecomer for drafting of proper legislation. MOVED BY ROCKHILL, SECOND BY Agreement REED, ACCEPT THE COMMITTEE REPORT AS PRESENTED. CARRIED. Adult The Planning and Development Committee report noted review again Entertainment of the regulation of adult entertainment land uses and recommended Land Use the matter be considered by the full Council . MOVED BY ROCKHILL, SECOND STREDICKE, CONCUR IN REPORT. CARRIED. Ryan Short Plat Planning and Development Committee Chairman Rockhill referred to Request for Asst. City Attorney Kellogg' s letter regarding request of Mary Vacation Pat Ryan for vacation of Short Plat and release of letter of credit bond (SP 159-78) , noting matter under jurisdiction of RCW 58. 12 requiring the request to be filed with the Clerk of King County Council . MOVED BY ROCKHILL, SECOND HUGHES, COUNCIL WITH- DRAW REQUEST OF MARY PAT RYAN FROM THE PLANNING AND DEVELOPMENT COMMITTEE AND REFER TU THE ADMINISTRATION. CARRIED. Commendation Public Works Director Houghton and Acting Finance Director Bennett were commended for work performed on refuse collection contract. Horizon Club Mayor Shinpoch noted Joan Walker has resigned from the Horizon Club (Fourth of July Celebration - Liberty Park) and asked for interested volunteers. EXECUTIVE REPORT Mayor Shinpoch announced that today the House Ways and Means Committee directed the State I .A.C. to spend money only on construction and not on acquisition of park property; therefore, the awards announced last week by Councilwoman Mathews for the Cedar River trail property acquisition, will not be funded by the State Inter Agency Committee for Outdoor Recreation. Marine Patrol Mayor Shinpoch noted she will be meeting Wednesday with King County Lake Washington Executive regarding marine patrol ; the City has committed no funds to this project at this time. Executive Session Having earlier announced need for Executive Session to discuss litigation against the City, it was MOVED BY CLYMER, SECOND HUGHES, COUNCIL MEET IN EXECUTIVE SESSION. MOTION CARRIED. 9:00 P.M. ADJOURNMENT The Council returned to regular session. Roll was called. All Council Members were present. IT WAS MOVED BY CLYMER, SECOND BY HUGHES, MEETING ADJOURN. CARRIED. 9:45 P.M. ke Delores A. Mead, C.M. City Clerk .r aa sU�./.C• C',T.Y(.CY. 4-I .a 'M/C✓_ A� SNFt,NO or........ C M.O.SF .VC 4 a1TE ie f._, S/'' Vw-,! .Ci444p c-4 Jo.No. ....... �.o OPL1iM4,1111 .CA2-45F4.tAtt K4slar. USER CLASSIFI CAT 10►I uumilifir of users, CW.L$i4T _RAI.wS .BcO'AJ U4*F6ee,s C=Eue•F L_DISposA,�- RAIuice Dlspos&L. SeA_TAt 'CY'spos.t4.- CANS,9KIc-UPS oe UNIT 'ESI NAM SP UU1T 1E51046107 UNIT ;ESTIMATS'P UNIT Mai..n Am* OMIT IEsi'Ma1 y oa.L*A. P><1ca :7444T.IJ/Go.� Pt.IC6 .MbNtwI4Ccr* VICE. IMONTYLy(o* Rama 1nowt (CsA P¢Icc. ;Mo/.I1wy coot c o' RESI DEIST IA. - > WITH1h1 ZS' 1 CA.IJ - -- -- 2?o? 5.50 //,417_/0 4.50 4349 _W __ 4.00 S820.o' 4.S2 /4 i97.74 £,7e raifs .90 2 CALiS �7L1 _-4.5/ 3Lp'IO./3- _ ! Jf .f„s/i _ts -s_o0 29,825.00 s.�s is,o/40•is-i.AS _307,7 .7.7 Qc _ u N a " //7 0.07 590.9? /0_25 /,/If .tf-, 62/0 79S.40• 6.2f 73/.1f e.y3_1ai7✓r O• •--- 4 " /2 /0.43 /23./4. /2.1S /•/7 .00 0- d.4 /e3.20• 7.2f 07.00 //.3f /30.io g _ ? /?_3t ?y.79 /.R.1f te_Sp /O.•fo ?J_804 a,?f me. /I./f, ?5.30 EXZRA Vu17 --._ ! Sro 60 /.00 I /tom . 25'TO C 0' I Ca.0 w - -6.19 47e of ,SSo 440 00 3.2d 351.oe -- sass t 432.2.0 -5.1.3 437.00 2 cAus _ it/ 0.r/_ 246/.01 to.3o 3370.00 f_7s I t3t7_7$ L,9r ---_ 1 - 1230.95 7.60 24 3 f .io 3 - r_.___ 4 --- 10.68_ 96./2-_li•_Oo /17.00 1_if 83.15._ _7.ss I "/.S3 O.is 1t.rf 3 - -- 4.07 39_2/ /3_5O- ✓L_So_ /I.25 5.3.75 6. .- -'-- • g I --' --/544 /5.4/. /8_ ._- '8.00 /1.23 _ - /3.75 I 9.513_i 1 s5 /s.33- /s.s3 EXTRA Ou17 - + Zoo /.ee /.010 2./! 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BUST. -.. --_-..-.--- -s48,918.46 ��0+ - 37,yo/.33j //4 .! 1716Ori.M COMMERCIAL _ 4 CANS 2246 7.32 3/49.74 /.94 444/.54 /.20 17/9_2e . -S'►1 2/S0.04 .95 2/42 .70 MINIMUM /2/ -__, 9_05 //9/iO3 /0.o0`/2/s.00 6.40 7Z4.00 6.?d 796./e 0•70 401.7o couTellJEes 1 YD. • 'o'O --- 7118 _ 7938.e12 ..__d_oe B//i0.d0 - 7.30 7573.eel-- 4.es i 4e4e.20 s.se .010.9S.Bo II/2 - - .--- •:3/3 -/O_O7 /3,747-// /c./(, /4i40 .60 _9.73 /2eo/.73 i.SI 0934.44 S.90 //,o1s.7o 2 •. .4•/i4 - _ 1_ _ /3.67 54,92/.Dd-----/2.29-,_o,9i7_SL _ /3.00 64/32.00i_ 8.4s I 3_50 /0.59 44016.74. 4 /732 7Z.50 /.3.rf /7.46 _ C. -- - -- ---- _2/.94 52.00 re.lS Utz,. r 20 /7f _ 43.04 /sov` .62 100.oO /77oo.00 bo.eo /o,410.00 43.73 7713_75 bl.eo ///Si .00 30 _-_ 3e -- 7233 _2790.54 /eo.00 JOoo.o0 - 60.00 _2260.a9 44..10 /78,e .70 63.00 7094.00 - n s7 4y?o .77 /er.co 6/eo_co, .. 11r.ao4-270,00 40 i/_.--- , .00 3o30.o» 4f,o0 314k3,00 CAM PAGTOe S -- --80o Ws 3.", 27'2 .4N !_io ,tes0.00 _ .340_ 772e.oe t.I8 /904.o 0 • 3.00 2400 .00 I SlWAGS. G¢IT - - _. -J--2/_77 .14 I ?YdM -- 17./0 II 37 coNst. ec�cee 20VC -_---__ -- --•-_ /co.eo yYcw 4s.9.1 - (.0.00 3oaP I • /ap.eA I--- --' 05.00 40.so 65.00 409p. - - - -%te_oo /03.co S?. O '.r-- D OT 414, Sue..TAA_ C0P.r.1.COST -_-- - 47.3/ 1leo 397.40 /97 03.93 T7644/ 43 --- IIJDUgT elm_ 40 Jr, Loose Lc AP .1 ust u /5! 7t.33 I1,06404 /00_0o /5,3oo.eo 49.00 /o404 .00 44.90 02/73.70 45.00 96 of.eo LOO SE I u OT um.Twat 40 /0.93 b.90 0.40_ EiO -'-. tom !•9J COMPAGT _-- 72.33 /40.00 49.0o 50.00 6 5.00 sun--To74L IL.,PO1-ZIeLCu T ---,//,046.49 0 r/5 3o0 .o)^ j o 404 .op 7/7 9o.51. U To r&, Est. I-.t o..,T.►k_-y Cos}. - -- `/43/. it.Z4 184 - -- 445 6 _- ; J.5 r9 • eZeer,&;:et) OF R4,4, OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON U �% Z, © POST OFFICE BOX 626 WO 2nd AVENUE BUILDING • RENTON.WASHINGTON 98055 255-8678 it T. n ^' LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY•I 0�0 `O DAVID M. DEAN, ASSISTANT CITY ATTORNEY o94). SEPS�vf0 March 22, 1982 MARK E.BARBER, ASSISTANT CITY ATTORNEY I • II CITY OF RENTON TO: Barbara Y. Shinpoch, Mayor II Members of City Council MAR 2' 1982 PCY FROM: Daniel Kellogg, Assistant City, Attorney DEVELOPMENT DEPT. RE : Amendments to Ordinance No. 3526 - Adult Entertainment Land Use Regulations As you know, the subject matter of adult entertainment land use '. regulations was referred to the Planning and Development Committee at the last Council meeting. The Committee discussed this matter on March 18, 1982 and has referred the matter back to the Council for full discussion. We will request an Executive Session at tonight's meeting to consider the present status of the Playtime Theatres litigation and to discuss the impact upon such litigation of any amendments to Ordinance No . 3526. Our Department , in consultating with Mr. Clancy, recommends that the following amendments be adopted to the existing Ordinance No . 3526 : 1. That the one mile radius be deleted regarding schools and be replaced with a radius of 1,000 feet. 2. That a severence clause be added which will provide that in the event that any portion of Ordinance No . 3526 or its amending Ordinance be found to be un- constitutional or otherwise invalid, that such invalidity shall be stricken and shall not affect the entire Ordinance. 3. That the identification of residential zones within the Ordinance be clarified to insure that property with a zoning of "G" shall not .beIncluded within the proscribed area. - 4. That a provision be added to insure that illegal, obscene exhibitions are not legalized by implication by the provisions of Ordinance No . 3526. ✓ I Mayor and Council Members Page 2 March 22, 1982 We intend to discuss all of the foregoing recommendations with you in detail and answer any of your questions regarding these matters . As a general rule, the only reason that we have the right to limit First Amendment expression is that we assert "substantial governmental interest" to preserve the character of our community through the means of land use regulations . . The Supreme Court has stated in the recent case of Shad vs Borough of Mount Ephriam, as follows : . .when a zoning ordinance infringes upon a protected liberty, it must be narrowly drawn and must further a sufficiently substantial governmental interest. . .The court must not only assess the substantiality of the governmental interest asserted but also determine whether those interests could be served by means that would be less intrusive on activities protected by the First Amendment. " Four controlling principles must be borne in mind when scrutinizing our Ordinance to determine whether it passes constitutional muster: 1. Regulations infringing upon constitutional rights fail if less restrictive alternatives are available. 2. The First Amendment mandates that such restrictions be narrowly drawn. 3. The Government may regulate in the area of First Amendment expression only with narrow specificity. 4. Regulations of First Amendment construction must be narrowly tailored to further the States legitimate interest. - Because it appears that our ordinance created a classification of land use based upon the content of protected expression, the City must bear the burden of justifying that classification under a standard of strict scrutiny in order to satisfy the requirements of the equal protection clause. This is a marked distinction from the general pattern of judicial interpretation in which ordinances are presumed to be constitutional and are held constitutional if there is , any set of circumstances which will support such a conclusion. ' I Mayor and Council Members Page 3 March 22, 1982 With the foregoing principles in mind, we strongly urge the Council to delete the one mile radius . We realize that this gives the impression at first blush that the City is retreating from Mr. I ; Forbes ' assault. However, our office has never recommended this particular approach. (See our letter of March 19 , 1981 attached. ) In our dicussions with other attorneys familiar with the subject matters of regulations of adult entertainment land uses , we have ' I found no one who felt comfortable with the one mile distance. We understand that the one mile distance was inserted for a rational reason, that being the protection of children walking to and from school under the Renton School District's bussing policy. However, most ordinances will expressly exclude adult entertainment land uses with distances of between 500-1000 feet. No ordinance has adopted, a one mile radius . . We also understand that amendment of the Ordinance may give Mr. Forbes reason to argue to the Federal Court that he is the "prevailing party" and is thus entitled to an award of attorney's fees under Section 1988. It is impossible for us to assess the degree of risk thus incurred by the amendment. It is our judgment that the risk is greater by leaving the one mile radius in the Ordinance. Our recommendations regarding the severence clause and the modification of the zoning designation are technical in nature, and if given effect by the Federal Court in this litigation should give no difficulty to the City Council . Our recommendation regarding illegal exhibitions is designed to exclude the possibility that Mr. Forbes may argue that the Ordinance legalizes displays of "specified sexual activities" in areas outside of the exclusions of our zoning code if exhibitions or those activities are illegal (meaning obscene) . As you know, our office attempts to maintain the distinction between questions of legality and questions of policy. The City Council is the final judge of questions of policy. No one wants to be responsible for a defeat at the hand of Mr. Forbes . Our office is doing its utmost to secure a favorable treatment of our ordinance against an overwhelming attack from Mr. Forbes ' lawyers and against a tide of District court opinions from around the country which are striking down ordinances similar to ours upon ' a finding that the ordinances have a substantial impact upon the market place for pornographic material and therefore are dis- tinguishable from the case of Young vs American Mini Theaters upon which we rely. The consequences of a loss are significant • • Mayor and Council Members { ' Page 4 I 'I March 22, 1982 because under Section 1983 and Section 1988, the City may be liable for Mr. Forbes ' damages and attorneys ' fees incurred as I ! a result of our ordinance and the litigation of its validity. I 'I We have exerted every effort and have left no stone unturned to use every procedural maneuver to protect our position and to I1, obstruct their ability to present their case. Of course, this naturally tends to make the litigation more difficult for them and more costly to us in the event that they ultimately prevail. With this in mind, we urge you to follow our recommendation regarding amendment of the Ordinance. One of the major issues in our litigation is over the extent to which communications by our office and the City Council are privileged. It is our desire to maintain the confidentiality of those communica- tions largely because of the embarrassment which might be occasioned by the disclosure of the fact that the City Council adopted Ordinance No. 3526 despite our recommendation against the one mile radius . Therefore, please continue to be careful to keep all discussions of this matter confidential and do not disclose the contents of our communications to you to anyone. Daniel £ ogg DK:nd Encl. cc: City Clerk David Clemens James Clancy eG7S- 07 • March 19 , 1961 CO_:r IDENTIAL TO: Planning and Development Committee . FRO1:: Lawrence J. Warren, City Attorney RE: Exclusionary Distance on Adult Entertainment Zone Gentlemen: It is my understanding that the Committee has recommended a one mile distance from any schools. I have some problem with that distance, particularly when you consider the locations oftthe various schools in Renton. It is certainly reasonable to exclude an adult entertainment . use from the immediate vicinity of a school, church, single fa :ily resiccr.cc zone, pulDlic area, public use zone , etc. • Lowever, that distance must be reasonable and should not be strictly exclusionary, feeling is that a Judge would find a mile to be exclusionary. If such a finding was made the Judge would invalidate. the ordinance.as being a prior restraint of public speech. the concert is '1esally su^port bie, I only question the distance sulcsted by the Committee. Of course, this Oninion is advisory only and the Council itself is the ultimate decision mal:er. liowever , I thought you woula like my thoughts before the final craft of the ordinance was presented. Lawrence J. Warren .J :r:d Renton City Council 3/22/82 Page 3 Old Business - Continued Community Services Community Services Committee Chairman Reed presented committee Committee report noting review of request by Bill Stevenson/Rainbow Schwinn Bicycle Race to hold a United States Cycling Federation sanctioned amateur 5/9/82 bicycle race. The race will be held on 5/9/82 from 7:00 a.m. to noon around the block formed by SW 7th St. , Powell , SW 10th St. and Lind Ave. The report recommended approval with requested conditions. MOVED BY REED, SECOND MATHEWS, CONCUR IN COMMUNITY SERVICES COMMITTEE REPORT. CARRIED. Voucher Ways and Means Committee Chairman Stredicke submitted committee Approval report recommending Council approval for payment of Vouchers No. 38700 through No. 38951 in the amount of $811 ,312.76 plus LID No. 314 Revenue Warrants R-13 in amount of $133.00 and LID Revenue Warrant R-13 $86. 14, having received departmental certification that merchandise and/or services have been received or rendered. Machine Voids: No. 38695-38699. MOVED BY STREDICKE, SECOND BY HUGHES, CONCUR IN WAYS AND MEANS COMMITTEE REPORT. CARRIED. Planning and Planning and Development Committee Chairman Rockhill presented Development committee report noting review of latecomer agreements for traffic Committee signalization improvements in the Building Code and recommended Traffic Signals the subject matter be referred to the Ways and Means Committee Latecomer for drafting of proper legislation. MOVED BY ROCKHILL, SECOND BY Agreement REED, ACCEPT THE COMMITTEE REPORT AS PRESENTED. CARRIED. Adult The Planning and Development Committee report noted review again Entertainment of the regulation of adult entertainment land uses and recommended Land Use the matter be considered by the full Council . MOVED BY ROCKHILL, SECOND STREDICKE, CONCUR IN REPORT. CARRIED. Ryan Short Plat Planning and Development Committee Chairman Rockhill referred to Request for Asst. City Attorney Kellogg' s letter regarding request of Mary Vacation Pat Ryan for vacation of Short Plat and release of letter of credit bond (SP 159-78) , noting matter under jurisdiction of RCW 58. 12 requiring the request to be filed with the Clerk of King County Council . MOVED BY ROCKHILL, SECOND HUGHES, COUNCIL WITH- DRAW REQUEST OF MARY PAT RYAN FROM THE PLANNING AND DEVELOPMENT COMMITTEE AND REFER TO THE ADMINISTRATION. CARRIED. Commendation Public Works Director Houghton and Acting Finance Director Bennett were commended for work performed on refuse collection contract. Horizon Club Mayor Shinpoch noted Joan Walker has resigned from the Horizon Club (Fourth of July Celebration - Liberty Park) and asked for interested volunteers. EXECUTIVE REPORT Mayor Shinpoch announced that today the House Ways and Means Committee directed the State I .A.C. to spend money only on construction and not on acquisition of park property; therefore, the awards announced last week by Councilwoman Mathews for the Cedar River trail property acquisition, will not be funded by the State Inter Agency Committee for Outdoor Recreation. Marine Patrol Mayor Shinpoch noted she will be meeting Wednesday with King County Lake Washington Executive regarding marine patrol ; the City has committed no funds to this project at this time. Executive Session Having earlier announced need for Executive Session to discuss litigation against the City, it was MOVED BY CLYMER, SECOND HUGHES, COUNCIL MEET IN EXECUTIVE SESSION. MOTION CARRIED. 9:00 P.M. ADJOURNMENT The Council returned to regular session. Roll was called. All Council Members were present. IT WAS MOVED BY CLYMER, SECOND BY HUGHES, MEETING ADJOURN. CARRIED. 9:45 P.M. a. , Delores A. Mead, C.M. 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DEAN, ASSISTANT CITY ATTORNEY 09gT�D SEP�E March 22, 1982 MARK E. BARBER, ASSISTANT CITY ATTORNEY CITY OF RENTON TO: Barbara Y. Shinpoch, Mayor Members of City Council MAR Z.11982 POLICY FROM: Daniel Kellogg, Assistant City Attorney DEVELOPMENT DEPT. RE : Amendments to Ordinance No . 3526 - Adult Entertainment Land Use Regulations As you know, the subject matter of adult entertainment land use regulations was referred to the Planning and, Development Committee at the last Council meeting. The Committee discussed this matter on March 18, 1982 and has referred the matter back to the Council i. for full discussion. We will request an Executive Session at tonight 's meeting to consider the present status of the Playtime Theatres litigation and to discuss the impact upon such litigation of any amendments to Ordinance No. 3526 . Our Department , in consultating with Mr. Clancy, recommends that the following amendments be adopted to the existing Ordinance No . 3526 : 1. That the one mile radius be deleted regarding schools and be replaced with a radius of 1,000 feet. 2. That a severence clause be added which will provide that in the event that any portion of Ordinance No. 3526 or its amending Ordinance be found to be un- constitutional or otherwise invalid, that such invalidity shall be stricken and shall not affect the entire Ordinance. 3. That the identification of residential zones within the Ordinance be clarified to insure that property with a zoning of "G" shall not .be -included within the proscribed area. 4. That a provision be added to insure that illegal , obscene exhibitions are not legalized by implication by the provisions of Ordinance No . 3526 . 1 • Ij . i " I Mayor and Council Members Page 2 March 22, 1982 We intend to discuss all of the foregoing recommendations with you in detail and answer any of your questions regarding these matters . As a general rule, the only reason that we have the right to limit First Amendment expression is that we assert "substantial governmental interest" to preserve the character of our community through the means of land use regulations . . The Supreme Court has stated in the recent case of Shad vs Borough of Mount Ephriam, as follows : . . .when a zoning ordinance infringes upon a protected liberty, it must be narrowly drawn and must further a sufficiently substantial governmental interest . . .The court must not only assess the substantiality of the governmental interest asserted but also determine whether those interests could be served by means that would be less intrusive on activities protected by the First Amendment. " Four controlling principles must be borne in mind when scrutinizing our Ordinance to determine whether it passes constitutional muster: 1. Regulations infringing upon constitutional rights fail if less restrictive alternatives are available. 2. The First Amendment mandates that such restrictions it be narrowly drawn. 3. The Government may regulate in the area of First Amendment expression only with narrow specificity. 4. Regulations of First Amendment construction must be narrowly tailored to further the States legitimate interest. Because it appears that our ordinance created a classification of land use based upon the content of protected expression, the City must bear the burden of justifying that classification under a standard of strict scrutiny in order to satisfy the requirements of the equal protection clause. This is a marked distinction from the general pattern of judicial interpretation in which ordinances are presumed to be constitutional and are held constitutional if there is , any set of circumstances which will support such a conclusion. 0 - - i Mayor and Council Members Page 3 March 22, 1982 With the foregoing principles in mind, we strongly urge the Council to delete the one mile radius . We realize that this gives the impression at first blush that the City is retreating from Mr. Forbes ' assault . However, our office has never recommended this particular approach. (See our letter of March 19 , 1981 attached. ) In our dicussions with other attorneys familiar with the subject matters of regulations of adult entertainment land uses , we have found no one who felt comfortable with the one mile distance. We understand that the one mile distance was inserted for a rational reason, that being the protection of children walking to and from school under the Renton School District's bussing policy. However, most ordinances will expressly exclude adult entertainment land uses with distances of between 500-1000 feet. No ordinance has adopted_ a one mile radius . . We also understand that amendment of the Ordinance may give Mr. Forbes reason to argue to the Federal Court that he is the "prevailing party" and is thus entitled to an award of attorney's fees under Section 1988. It is impossible for us to assess the degree of risk thus incurred by the amendment. It is our judgment that the risk is greater by leaving the one mile radius in the Ordinance. Our recommendations regarding the severence clause and the modification, of the zoning designation are technical in nature , and if given effect by the Federal Court in this litigation should give no difficulty to the City Council . Our recommendation regarding illegal exhibitions is designed to exclude the possibility that Mr. Forbes may argue that the Ordinance legalizes displays of "specified sexual activities" in areas outside of the exclusions of our zoning code if exhibitions or those activities are illegal (meaning obscene) . As you know, our office attempts to maintain the distinction between questions of legality and questions of policy. The City Council is the final judge of questions of policy. No one wants to be responsible for a defeat at the hand of Mr. Forbes . Our office is doing its utmost to secure a favorable treatment of our ordinance against an overwhelming attack from Mr. Forbes ' lawyers and against a tide of District court opinions from around the country which are striking down ordinances similar to ours upon a finding that the ordinances have a substantial impact upon the market place for pornographic material and therefore are dis- • • tinguishable from the case of Young vs American Mini Theaters upon which we rely. The consequences of a loss are significant Mayor and Council Members Page 4 March 22, 1982 because under Section 1983. and Section 1988, the City may be liable for Mr. Forbes ' damages and attorneys ' fees incurred as a result of our ordinance and the litigation of its validity. We have exerted every effort and have left no stone unturned to use every procedural maneuver to protect our position and to obstruct their ability to present their case. Of course, this naturally tends to make the litigation more difficult for them and more costly to us in the event that they ultimately prevail. With this in mind, we urge you to follow our recommendation regarding amendment of the Ordinance. One of the major issues in our litigation is over the extent to which communications by our office and the City Council are privileged. It is our desire to maintain the confidentiality of those communica- tions largely because of the embarrassment which might be occasioned by the disclosure of the fact that the City Council adopted Ordinance No. 3526 despite our recommendation against the one mile radius . Therefore, please continue to be careful to keep all discussions of this matter confidential and do not disclose the contents of our communications to you to anyone. Daniel L ogg DK:nd Encl. cc: City Clerk David Clemens James Clancy r was - o ', • March 19 , 1961 CO ;F IDENTIAL TO: Planning and Development Committee FRO::: Lawrence J. Warren, City Attorney RE: Exclusionary Distance on Adult Entertainment Zone Gentlemen: It is my understanding that the Committee has recommended a one mile distance from any schools. I have some problem with that distance, particularly when you consider the locations oftthe various schools in Renton. It is certainly reasonable to exclude an adult entertainment . use from the ii:ediate vicinity oF a school, church, single family residence_ zone , public area, public use zone , etc. Lowever, that distance must be reasonable and should not be strictly exclusionary. feeling is that a Judge would find a mile to be exclusionary. If such a finding was made the Judge would invalidate the ordinance.as being a prior restraint of public speech. II-le concert is 'lc ally supportable, I only question the distance suggested by the Committee. Of course, this oppinion_ is advisory only and the Council itself is the ultimate decision maker. however , I thought you woula like my thoughts before the final craft of the ordinance was presented. Lawrence J. Warren .J?•::r.d I ' I I