Ebel v. City of Corona

767 F.2d 635
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 1, 1985
DocketNos. 84-5688, 84-5785
StatusPublished
Cited by8 cases

This text of 767 F.2d 635 (Ebel v. City of Corona) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ebel v. City of Corona, 767 F.2d 635 (9th Cir. 1985).

Opinion

PER CURIAM.

The City of Corona appeals the entry of a permanent injunction against enforcement of its adult-use zoning ordinance with regard to Helen Ebel’s adult bookstore. Because the district court applied the correct law and its findings were not clearly erroneous, we affirm and remand for computation of attorney’s fees.

At the time that Ebel signed a five-year lease and opened an adult bookstore in Corona, California, such businesses were permitted under Corona zoning ordinances. On July 1, 1981, only days after Ebel opened for business, the City adopted an ordinance which banned all adult bookstores in the City for a four-month moratorium period. After closing her business in compliance with the ordinance, Ebel obtained a temporary restraining order against its enforcement.

Meanwhile, on September 16 and October 7, 1981, the City adopted permanent ordinances which regulated the location of adult bookstores and similar businesses. Those ordinances were adopted after the Planning Commission and City Council held public hearings and considered community reaction directed primarily at operation of Ebel’s bookstore.

As we explained in Ebel v. City of Corona, 698 F.2d 390, 391-92 (9th Cir.1983) (Ebel I), the ordinances prohibit defined adult uses in all parts of the city except two commercial zones. In those zones, such uses are permitted only if they meet several location criteria: not abutting a residential zone or use; not within 750 feet [637]*637of a school, church, park or other recreational facility; and not within 500 feet of another adult business. The ordinance allows an amortization period of 120 days, 90 days or 60 days, depending upon whether a business had been lawfully operating for six months, 3-6 months, or less than three months as of July 1, 1981.

On November 16, 1981, the district court entered a preliminary injunction against enforcement of the ordinances against Ebel. When that injunction was later dissolved, Ebel obtained an injunction pending appeal from this court. In an earlier appeal, this court held that the district court improperly dissolved the preliminary injunction. Ebel I, 698 F.2d at 392-93. As a result of these injunctions and a permanent injunction entered by the district court on February 9, 1984, Ebel has been able to continue operations. In entering that permanent injunction the court found the ordinances to be unconstitutional as applied to Ebel. The city appeals.

This court applies the factors enunciated in United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968), to test the constitutionality of adult-use zoning ordinances. Playtime Theaters, Inc. v. City of Renton, 748 F.2d 527 (9th Cir.1984), prob. juris, noted, — U.S. -, 105 S.Ct. 2015, 85 L.Ed.2d 297 (1985). Under O’Brien and Playtime, such ordinances are constitutional only if (1) they are within the constitutional power of the government; (2) they further an important or substantial government interest; (3) the government interest is unrelated to the suppression of free speech; and (4) the incidental restriction on First Amendment freedom is no greater than essential to further the government’s interest. Playtime, 748 F.2d at 534-35, citing O’Brien, 391 U.S. at 377, 88 S.Ct. at 1679.

The Corona ordinance passes constitutional muster under the first O’Brien test. The government has the power to establish reasonable land use and zoning restrictions in the interest of public safety and welfare. Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926).

O’Brien further requires that the express or implied motivation underlying the ordinance be unrelated to the suppression of protected speech and that there be a close connection between the asserted interest and the alleged harm. Playtime, 748 F.2d at 535; see also Young v. American Mini Theatres, Inc., 427 U.S. 50, 80-82, 96 S.Ct. 2440, 2457-2458, 49 L.Ed.2d 310 (1976) (Powell, J. concurring). In examining motivation, the Supreme Court in American Mini Theatres considered the city’s evidence of the problems of concentration of adult businesses and the city’s genuine desire to prevent neighborhood deterioration. American Mini Theatres, 427 U.S. at 56 & n. 11, 71 & n. 34, 96 S.Ct. at 2445 & n. 11, 2453 & n. 34. Some courts which have considered ordinances modeled on the American Mini Theatres ordinance have been less satisfied with the rationality of the municipality’s purpose or the closeness of the fit between the asserted purpose and the restriction on adult businesses. See Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 72-74, 101 S.Ct. 2176, 2184-2186, 68 L.Ed.2d 671 (1981) (justifications were unsupported by evidence at trial); Playtime, 748 F.2d at 537 (justifications were conclusory and speculative because city failed to apply justifications to the particular problems or needs of the city); Kuzinich v. Santa Clara County, 689 F.2d 1345, 1348 (9th Cir.1982) (ordinance not closely enough related to county’s purpose in preventing litter and controlling traffic); CLR Corp. v. Henline, 702 F.2d 637, 639 (6th Cir.1983) (city failed to conduct research or to show a close connection between the ordinance and prevention of urban blight).

Several courts have expressed skepticism about a municipality’s expressed justification for an ordinance where it was enacted at a time when the city was being introduced to its first adult business. See Tovar v. Billmeyer, 721 F.2d 1260, 1264-65 (9th Cir.1983) (new interpretation of zoning [638]*638ordinance made after application for adult business permit raised questions about motivation), cert. denied, — U.S. -, 105 S.Ct. 223, 83 L.Ed.2d 152 (1984); Basiardanes v. City of Galveston, 682 F.2d 1203, 1216 (5th Cir.1982) (timing of enactment following proposed opening of an adult theater suggested that city’s concern was not with urban deterioration as asserted); Avalon Cinema Corp. v. Thompson, 667 F.2d 659, 661 (8th Cir.1981) (motivation was the imminent opening of the city’s first adult business, not the city’s own unique problems or past history).

The district court examined Corona’s motivations in detail.

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Bluebook (online)
767 F.2d 635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ebel-v-city-of-corona-ca9-1985.