People v. Superior Court (Lucero)

774 P.2d 769, 49 Cal. 3d 14, 259 Cal. Rptr. 740, 10 A.L.R. 5th 1037, 1989 Cal. LEXIS 1524

• Court: California Supreme Court
• Decided: June 29, 1989
• Docket: S002438
• Status: Published

Opinions

Opinion

LUCAS, C. J.

This case involves the enforcement of a Long Beach zoning ordinance that prohibits the location of “adult entertainment businesses” (including adult motion picture theaters) within 500 feet of residential areas, or 1,000 feet of public schools or churches (Long Beach Mun. Code, ch. 21.51, hereafter Chapter 21.51). The ordinance is described as a “non-cluster” or “Anti-skid Row” ordinance because it is designed to discourage development of a “skid row” area by limiting the harmful secondary effects of adult entertainment businesses on adjacent areas, and by insuring such businesses do not contribute to the blighting of surrounding neighborhoods. (See Ch. 21.51.010, “Purpose.”) It was patterned after a Detroit adult entertainment zoning ordinance upheld in Young v. American Mini Theaters, Inc. (1976) 427 U.S. 50 [49 L.Ed.2d 310, 96 S.Ct. 2440].

The question before us concerns the appropriate constitutional standard by which to define the “use” necessary to make a movie theater an “adult motion picture theater” within the meaning of the ordinance.¹ In Pringle v. City of Covina (1981) 115 Cal.App.3d 151 [171 Cal.Rptr. 251], the Court of Appeal held that an adult entertainment zoning ordinance cannot be enforced against an adult motion picture theater unless a “preponderance” (meaning “more often than not”) of the “adult” films shown by the establishment have as their dominant theme the depiction of the ordinance’s enumerated sexual activities.

In following Pringle, subsequent cases interpreting adult entertainment ordinances have required “use” to be defined as “over 50 percent.” (Strand Property Corp. v. Municipal Court (1983) 148 Cal.App.3d 882, 889 [200 Cal.Rptr. 47] [construing “use” defined under the ordinance as a “substantial or significant portion of the total presentation time to mean a “preponderance” that must be defined as “over 50 percent”]; Kuhns v. Board of Supervisors (1982) 128 Cal.App.3d 369, 376 [181 Cal.Rptr. 1] [construing

“use” defined as a “substantial or significant portion of stock in trade” in adult bookstore ordinance to mean “over half of a bookstore’s stock”].) Moreover, the present Court of Appeal believed the People were bound by Pringle's preponderance standard. (Post, at p. 20.) We disagree, As we explain, although municipalities are free to adopt such a test in defining “use” under an adult entertainment ordinance, we conclude Pringle's preponderance standard is not constitutionally compelled. In place of such a test, we adopt a constitutional standard similar to that recently approved by the United States Supreme Court and several state courts: cities may zone the location of theaters that show, on a regular basis, films characterized by an emphasis on the “specified sexual activities” or “specified anatomical areas” identified in the ordinance, where such films constitute a substantial portion of the films shown or account for a substantial part of the revenues derived from the exhibition of films (hereafter “the regular and substantial course of conduct” standard). (See, e.g., Renton v. Playtime Theaters, Inc. (1986) 475 U.S. 41, 55, fn. 4 [89 L.Ed.2d 29, 37, 106 S.Ct. 925]; Young, supra, 427 U.S. at p. 59 [49 L.Ed.2d at p. 316]; see also Town of Islip v. Caviglia (1988) 141 A.D.2d 148 [532 N.Y.S.2d 783, 784-785, fn. 2].)

I. Facts

Real parties in interest Jose Ronillo Abogado Lucero, Walnut Properties, Inc., and Jimmie Johnson (hereafter real parties) were charged in separate misdemeanor complaints with numerous counts of unlawfully establishing an adult entertainment business in violation of Chapter 21.51.

Real parties’ establishment, the Lakewood Theater, has two screens: one screen shows general release films and one screen shows adult films. Each count of the misdemeanor complaints specifically alleged real parties unlawfully established an adult theater in violation of Chapter 21.51 by exhibiting an X-rated movie on a particular day within the distances proscribed by the ordinance.

Real parties filed demurrers to the complaints on the ground that exhibition of a single adult film, as alleged in the complaints, did not make the theater an adult entertainment business under the preponderance standard established by Pringle, supra, 115 Cal.App.3d 151. After the municipal court overruled the demurrers, real parties petitioned the superior court for a peremptory writ of mandate directing the lower court to sustain the demurrers. The superior court granted the writ with leave to amend. The People declined to amend and instead requested the Court of Appeal to issue a writ of mandate to compel the superior court to vacate its judgment.

The Court of Appeal denied the writ and rejected the People’s contention that a single showing of an adult film makes the theater an adult motion picture theater within the meaning of the zoning ordinance. The court first rejected the People’s argument that the “single use” standard adopted by the Court of Appeal in Walnut Properties v. Ussery (Cal. App.)² should control the outcome of the present litigation under the law of the case and collateral estoppel doctrines.³

Next, in rejecting the People’s contention that a “single use” standard should apply, the Court of Appeal cited with approval Tollis, Inc. v. San Bernardino County (9th Cir. 1987) 827 F.2d 1329, which held that a “single use” interpretation of an adult entertainment zoning ordinance was unconstitutional in the absence of evidence “that a single showing of an adult movie would have any harmful secondary effects on the community.” (Id. at p. 1333.) The Court of Appeal then denied the People’s petition for writ of mandate because the complaints “did not allege, in accordance with the requirements of Pringle, that the preponderance of films exhibited and observed by pátrons at the Lakewood Theater were ‘distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specific anatomical areas’ (Chapter 21.51.020(A) . . .) as those terms are defined in Chapter 21.51.020(B)(1-7) and (C)(1-2) of the Long Beach Municipal Code.” In reviewing the Court of Appeal opinion, we examine the People’s argument requesting we affirm as constitutionally permissible a “single use” standard.

II. Background

A. Constitutionality of adult entertainment zoning

In August 1977 Walnut Properties, Inc. (hereafter Walnut), obtained a business license to operate a motion picture theater on the representation that it intended to exhibit nonadult films. (Walnut Properties v. City Council of the City of Long Beach (1980) 100 Cal.App.3d 1018, 1024 [161 Cal.Rptr. 411].) In November of that year, following the high court’s decision in Young, supra, 427 U.S. 50, the city enacted Municipal Code Chapter 9120.41, which was amended in 1979 to become Chapter 21.51, the ordinance at issue in the present case. The 1979 ordinance is substantially similar to the 1977 version—its primary purpose being to regulate the location of adult motion picture theaters. After the ordinance was passed Walnut began showing adult films.

In December 1977, shortly after Walnut opened its theater, the Long Beach City Council instituted proceedings culminating in the revocation of Walnut’s operating license. Walnut sued the city, challenging the constitutionality of the ordinance. (Walnut Properties, supra, 100 Cal.App.3d at p. 1020.) After conceding that its theater was an “adult entertainment business” as defined by the ordinance, Walnut argued the ordinance violated the First Amendment’s freedom of speech clause as an unconstitutional regulation of constitutionally protected conduct. In addition, Walnut claimed that the ordinance was vague, overbroad and vested public officials with impermissible discretion to enforce its terms. (Id. at p. 1021; see, e.g., Burton v. Municipal Court (1968) 68 Cal.2d 684 [68 Cal.Rptr. 721, 441 P.2d 281].) The ordinance survived constitutional scrutiny, however, after the Court of Appeal found Young, supra, 427 U.S. 50, dispositive of the constitutional issues. (Walnut Properties, supra, 100 Cal.App.3d at p. 1023.)

The two Detroit ordinances at issue in Young were termed “Anti-skid Row” ordinances because they prohibited (except where a special waiver was obtained) locating adult theaters and adult bookstores within 1,000 feet of any two other “regulated uses” or within 500 feet of any residential zone. The ordinances’ definition of an “adult motion picture theater” was identical to that of the Long Beach ordinance we discuss here. (Young, supra, 427 U.S. at pp. 53-54, fn. 5 [49 L.Ed.2d at p. 316].)

The plurality, led by Justice Stevens, upheld the ordinances on the basis they were not directed at restricting speech, but rather were reasonable time, place and manner regulations necessary to further the city’s significant interest in preserving the character of its neighborhoods. The Young court concluded that as long as such ordinances were enacted to regulate the location of adult theaters in order to protect neighborhoods from deterioration, increased crime and other harmful secondary effects, they did not offend either the First Amendment or the equal protection clause of the Fourteenth Amendment. (Young, supra, 427 U.S. 50, 68-73 [49 L.Ed.2d 310, 324-327]; see Developments in the Law—Zoning (1978) 91 Harv.L.Rev. 1427, 1557-1559.)⁴

Based on the high court’s reasoning in Young, supra, 427 U.S. 50, the Walnut Properties Court of Appeal rejected Walnut’s First Amendment argument. The court reasoned, “It is clearly within the power of the City to provide that no motion picture theatre can be operated in a residential area or near a public school. The thrust of Justice Stevens’ opinion in Young was that it was also within the City’s power to classify theatres according to the content of the films exhibited, so long as that classification has a reasonable basis. The ‘adult entertainment’ classification is a reasonable one. [¶] Walnut has presented no evidence that the City’s ordinance in any way restricts or eliminates the access to the ‘adult entertainment’ for those persons who desire to patronize it. In fact, Walnut operates another such theater in a different part of the City. From records which we may judicially notice, it appears that Long Beach has a number of ‘adult’ forms of entertainment operating within its boundaries.” (Walnut Properties, supra, 100 Cal.App.3d 1018, 1023.)

B. Pringle's “preponderance" standard

In Pringle, supra, 115 Cal.App.3d 151, the City of Covina had enacted a “non-cluster” zoning ordinance prohibiting location of adult entertainment theaters within 500 feet of residential and other enumerated areas. The ordinance employed a substantially similar definition of an adult theater as the Long Beach ordinance we review herein. (Ante, at fn. 1; see Covina Mun. Code, § 17.04.026.2.) The ordinance declared its purpose was “ ‘to insure that adverse effects [arising from the “serious objectionable operational characteristics” of adult theaters] will not contribute to the blighting or downgrading of the surrounding neighborhood and will not unreasonably interfere with or injure nearby properties.’ ” (Id. at p. 154, quoting from Covina Mun. Code, § 17.04.026.2.)

The plaintiffs, a neighborhood theater owner and a patron, instituted an action for declaratory and injunctive relief “alleging that the ordinance violated federal and state guarantees of freedom of speech, due process and equal protection. They claimed that the ordinance was unconstitutional on its face and, as construed to apply ‘to the operation of a neighborhood theatre which shows a variety of films including a few films which, although not obscene, explicitly depict sexual activity arguably within the scope of the ordinance.’ They further argued that the terms ‘distinguished or characterized by an emphasis’ and ‘used’ were too vague and chilled freedom of expression.” (Pringle, supra, 115 Cal.App.3d at p. 155.) The defendant city argued that the ordinance was valid under Young, supra, 427 U.S. 50, and asserted that the term “use” should be construed as meaning “ ‘[o]ne showing of a film described in the ordinance.’” (Pringle, supra, 115 Cal.App.3d at p. 156.)

The Pringle court recognized that it was faced “with an actual, not hypothetical, claim of uncertainty deterring the exercise of protected speech” (115 Cal.App.3d at p. 160), and that it was bound to construe the legislation “if reasonably possible to preserve its constitutionality.” The court first construed the ordinance’s applicability regarding the dominant or essential theme of the movie. (At p. 160.) It concluded that “adult films under the ordinance include only films whose dominant or predominant character and theme is the depiction of the enumerated sexual activities or anatomical areas.” (Ibid.)

Next, the court determined that the word “used” in the “ordinance’s definition of an adult theatre as a building ‘used for presenting’ sexually explicit material” rendered the ordinance vague—and hence constitutionally infirm—because it failed to indicate “what proportion of a theatre’s programming would constitute ‘use.’” (Pringle, supra, 115 Cal.App.3d at .) To preserve the constitutional validity of the ordinance (id. at pp. 158, 162), the Pringle court defined “use” under the ordinance to mean “to practice customarily,” but qualified the phrase to mean “more often than not.” Based on the foregoing, the court adopted a “preponderance” standard. (Id. at p. 162.)

C. Post-Young federal cases

Two federal decisions decided after Young, supra, 427 U.S. 50, and Pringle, supra, 115 Cal.App.3d 151, shed further light on the interpretation of language similar to that at issue here. Both involved constitutional challenges to adult entertainment zoning ordinances similar to the one examined by the court in Young.

In Renton v. Playtime Theaters, Inc., supra, 475 U.S. 41, two theater operators whose theaters exhibited adult films and were located within an area proscribed by adult entertainment zoning restrictions challenged the Renton ordinance under the First and Fourteenth Amendments. The high court determined that the ordinance was a valid “time, place and manner” measure because it did “not ban adult theaters altogether, but merely provide[d] that such theaters [could] not be located within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school.” (Id. at p. 46 [89 L.Ed.2d at p. 37].) Next, while recognizing that the Renton ordinance treated “theaters that specialize in adult films differently from other kinds of theaters” (id. at p. 47 [89 L.Ed.2d at p. 37]), the court observed that the regulation “was unrelated to the suppression of free expression” because it did not proscribe the content of the films, but rather was concerned predominately with the deleterious secondary effects of adult theaters on the neighboring community. (Ibid.)

In concluding that the ordinance was “designed to serve a substantial government interest and allow[ed] for reasonable alternative avenues of communication,” the Renton court stated that the city’s substantial interest in preserving “ ‘the quality of urban life’ ” justified the enactment. (Renton, supra, 475 U.S. at p. 50 [89 L.Ed.2d at p. 39].) Moreover, the court observed that it was appropriate for Renton to have relied on relevant studies conducted by other cities on the need for zoning controls of adult theaters in order to establish its “substantial government interest” in regulating adult theaters. (Id. at pp. 51-52 [89 L.Ed.2d at p. 40-41].)⁵

The court further noted that the Renton ordinance left approximately 520 acres open to use as potential adult theater locations. Accordingly, the court determined the ordinance would allow “for reasonable alternative avenues of communication.”⁶ (Renton, supra, 475 U.S. at p. 53 [89 L.Ed.2d at p. 41].) Thus, the court concluded, the ordinance represented a valid governmental response to the serious problems created by adult theaters and met the goals of the city in preserving the quality of life within the community while “satisfying the dictates of the First Amendment.” (Id. at pp. 54-55 [89 L.Ed.2d at p. 42].)

Thereafter, in 1987, an operator of an adult motion picture establishment challenged, in federal court, the constitutionality of a San Bernardino County ordinance similar in language and substance to the “Anti-skid Row” ordinances discussed above, with the exception that the ordinance was silent as to its predominate purpose. (Tollis, Inc. v. San Bernardino County, supra, 827 F.2d 1329, 1332.) The county argued that the ordinance should be construed so as to prohibit even a “single showing” of an adult motion picture. The theater owner responded that such construction would be unconstitutionally overbroad on its face under Young, supra, 427 U.S. 50, and Renton, supra, 475 U.S. 41. (Tollis, supra, 827 F.2d at p. 1331.)

The Ninth Circuit agreed with the theater owner and found that a “single use” standard could not pass “constitutional muster as a content-neutral time, place, and manner regulation” because it could not be justified as serving a substantial governmental interest in preserving the quality of urban life. (Tollis, supra, 827 F.2d at pp. 1332-1333.) As we explain below, we believe, like the Tollis court, that so construed the Long Beach ordinance would be unconstitutional.

III. A constitutional zoning standard

Although Tollis, supra, 827 F.2d 1329, is not dispositive, we believe it applied the correct constitutional principle first articulated in Young, supra, 427 U.S. 50, and developed by Renton, supra, 475 U.S. 41. As Tollis recognized, Renton requires the court to determine whether the ordinance, as implemented, is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication. (Tollis, supra, 827 F.2d at pp. 1332-1333.) Like the Ninth Circuit, we find a “single use” standard is insufficiently tailored to serve Long Beach’s stated purpose of preventing the clustering or concentration of adult motion picture theaters in any one area. Nothing in the Long Beach ordinance’s statement of purpose discloses the presence of significant deleterious effects on the community arising out of a single showing of an adult film. We also agree with the Tollis court that a single showing of an adult movie does not necessarily create the “logical relationship between the evil feared and the method selected to combat it.” (Id. at pp. 1332-1333.)⁷

Nor do we believe, however, that Pringle's preponderance standard is constitutionally compelled. As stated above, Pringle would allow the zoning of adult theaters only if a preponderance (construed to mean “more often than not” or “most often”) of the films shown have as their dominant theme the depiction of the ordinance’s enumerated sexual activities. (Pringle, supra, 115 Cal.App.3d at p. 162.) We find nothing in the high court’s cases suggesting such a standard is required. Indeed, a preponderance standard violates the spirit of the high court’s cases. Those decisions expressly recognize a state’s legitimate interest in regulating adult entertainment establishments, and accord local governments substantial discretion in defining the scope and nature of such regulation. (Young, supra, 427 U.S. at p. 61 [49 L.Ed.2d at pp. 320-321]; Renton, supra, 475 U.S. at pp. 51-52 [89 L.Ed.2d at p. 40].)

Accordingly, we conclude that Pringle, in striving to construe the term “used” within the confines of constitutional principles, established a standard that is too high.⁸

The question then becomes whether we can articulate a constitutional standard that will both, implement the purpose of the ordinance and abide by the requirements of Young, supra, 427 U.S. 50, and Renton, supra, 475 U.S. 41 (i.e., that an ordinance be content-neutral and narrowly tailored to minimize only the adverse secondary effects related to adult entertainment establishments). The Long Beach ordinance was passed specifically because “[T]he city council [found] that adult entertainment businesses, because of their very nature, are recognized as having objectionable operational characteristics, particularly when several of them are concentrated under certain circumstances, thereby having a deleterious effect upon the adjacent areas. Special locational regulation of these businesses is necessary to insure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhoods. The primary purpose of the regulation is to prevent the concentration or clustering of these businesses in any one area.” (Long Beach Mun. Ord. C-5487 § 1 (1979).)

Because adult entertainment ordinances are aimed at regulating the clustered establishment of adult entertainment businesses and not at prohibiting theater owners from occasionally exhibiting an “adult” film, we conclude a “regular and substantial course of conduct” standard most appropriately defines the constitutional level of “use” for purposes of such ordinances. In so doing, we allow cities a greater flexibility in the zoning of adult entertainment theaters, thereby construing the ordinance in a constitutional manner while allowing a reasonable and practical construction in conformity with the purpose of the enactment. (Welton v. City of Los Angeles (1976) 18 Cal.3d 497, 506 [134 Cal.Rptr. 668, 556 P.2d 1119]; Shea v. Board of Medical Examiners (1978) 81 Cal.App.3d 564, 574 [146 Cal.Rptr. 653].)

By interpreting the term “used” in this case to mean a “regular and substantial course of conduct,” we give the ordinance a construction that is rationally tailored to support its asserted purpose of preventing neighborhood blight without allowing Long Beach to use “the power to zone as a pretext for suppressing expression.” (Young, supra, 427 U.S. at p. 84 [49 L.Ed.2d at p. 334].) Under this standard, zoning restrictions such as contained in the ordinance at issue here would apply to all adult entertainment theaters offering adult fare as a substantial part of their regular business, but would not apply to theaters showing only occasional or incidental adult movies.⁹To the extent Pringle, supra, 115 Cal.App.3d 151, conflicts with the foregoing standard, the case is disapproved.¹⁰

IV. Disposition

The People, having alleged multiple violations of Chapter 21.51, section 21.51.030 of the Long Beach Municipal Code, each based on the unconstitutional “single use” standard, are not entitled to proceed with the action as pleaded. Accordingly, the judgment of the Court of Appeal is affirmed.¹¹

Panelli, J., Eagleson, J., and Kaufman, J., concurred.

1 The ordinance defines an adult motion picture theater as “an enclosed building with a capacity of fifty or more persons used for presenting material distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons therein.” (Ch. 21.51, § 21.51.020 (A)(2).) Chapter 21.51 is set forth in the appendix.

2 We ordered the opinion not published in the Official Reports by order dated June 24, 1986 (B005781).

3 The Ussery case involved the same parties, theater and ordinance as in the present case. The court in Ussery observed that the only way to prevent the undesirable effects of adult theaters on the surrounding neighborhoods, and to implement the zoning ordinance according to the intent of its drafters, was to prohibit any use of the theater for showing adult motion pictures.

In rejecting the People’s law-of-the-case and collateral estoppel arguments, the Court of Appeal first observed that Lucero was a criminal case, instituted well after Ussery, a civil case, became final and therefore the doctrine of law of the case should not apply. We agree. We also agree with the Court of Appeal’s decision not to apply the collateral estoppel doctrine to defendants. First, it is highly questionable whether a prior determination against a party in a civil action may be applied as a collateral estoppel against that same party in a criminal action. (See Ashe v. Swenson (1970) 397 U.S. 436 [25 L.Ed.2d 469, 90 S.Ct. 1189].) In addition, if Ussery were given collateral estoppel effect in this case, the single-instance standard would apply to Lakewood Theater and the preponderance standard enunciated in Pringle (115 Cal.App.3d 151) which is the only published decision on this issue would apply to all other theaters. Such an unjust result would disserve the public interest. (See Consumers Lobby Against Monopolies v. Public Utils. Com. (1979) 25 Cal.3d 891, 902 [160 Cal.Rptr. 124, 603 P.2d 41].)“

4 The Young court noted that under the ordinances “adult films may only be exhibited commercially in licensed theaters.” (Young, supra, 427 U.S. at p. 62 [49 L.Ed.2d at p. 321].) The court observed, however, that the “city’s general zoning laws require all motion picture theaters to satisfy certain locational as well as other requirements; we have no doubt that the municipality may control the location of theaters as well as the location of other commercial establishments, either by confining them to certain specified commercial zones or by requiring that they be dispersed throughout the city. The mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not a sufficient reason for invalidating these ordinances.” (Ibid.)

The Young court also rejected the theater owner’s vagueness attack on the ordinances on the basis that “Neither respondent . . . alleged any basis for claiming or anticipating any waiver of the restriction as applied to its theater.” (Young, supra, 427 U.S. at p. 59 [49 L.Ed.2d at p. 319].) The court observed that “the only vagueness in the ordinances relates to the amount of sexually explicit activity that may be portrayed before the material can be said to be ‘characterized by an emphasis’ on such matter. For most films the question will be readily answerable; to the extent that an area of doubt exists, we see no reason why the ordinances are not ‘readily subject to a narrowing construction by the state courts’.... [W]e think this is an inappropriate case in which to adjudicate the hypothetical claims of persons not before the Court.” (Id. at p. 61 [49 L.Ed.2d at p. 320].)

Finally, the court held that the Detroit ordinance created no “significant deterrent effect” that would justify invocation of the First Amendment “overbreadth” doctrine. (Young, supra, 427 U.S. at pp. 59-60 [49 L.Ed.2d at pp. 319-320].)

5 The Renton court specifically stated that “Renton was entitled to rely on the experiences of Seattle and other cities, and in particular on the ‘detailed findings’ summarized in the Washington Supreme Court’s Northend Cinema opinion, in enacting its adult theater zoning ordinance. The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.” {Id. at pp. 51-52 [89 L.Ed.2d at p. 40].)

Finally, the court observed that the method chosen by a city to further its substantial interests—e.g., cluster as opposed to noncluster zoning—would not affect its holding. The court noted that “cities may regulate adult theaters by dispersing them, as in Detroit, or by effectively concentrating them, as in Renton, ‘It is not our function to appraise the wisdom of [the city’s] decision to require adult theaters to be separated rather than concentrated in the same areas .... [T]he city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.’ ” (Id. at p. 52 [89 L.Ed.2d at p. 41], quoting Young, supra, 427 U.S. at p. 71 [49 L.Ed.2d at pp. 326-327], original brackets.)

6 In response to the theater owners’ (repondents) argument that there were no “commercially viable” adult theater sites within the 520 acres left available by the Renton ordinance, the court observed that “we have never suggested that the First Amendment compels the Government to ensure that adult theaters, or any other kinds of speech-related businesses for that matter, will be able to obtain sites at bargain prices. ... In our view, the First Amendment requires only that Renton refrain from effectively denying respondents a reasonable opportunity to open and operate an adult theater within the city, and the ordinance before us easily meets this requirement.” (Renton, supra, 475 U.S. at p. 54 [89 L.Ed.2d at p. 42].)

7 Real parties argue that if we were to impose a “single use” standard in this case, the procedures for obtaining a waiver would operate as an invalid prior restraint on theater owners. Because we reject the “single use” standard as unconstitutional on other grounds, we need not consider the merits of this claim.

8 The exact basis of the Pringle decision is not entirely clear. To the extent Pringle may be interpreted as a constitutional “floor” in the traditional sense (i.e., that the municipalities are constitutionally precluded from regulating theaters showing less than a preponderance of adult films), we believe it to be inconsistent with the basic principles of Young and Renton and unduly restrictive of the municipalities’ legitimate interest in regulating adult entertainment establishments. (See post, fn. 10.) It defies common sense to hold that a theater exhibiting “adult” films during less than 51 percent of its total operating time must be treated as something other than an adult establishment as that term can be reasonably understood in this context. Nonetheless, so long as the theater does not “preponderantly” or more often than not exhibit adult movies, Pringle's test allows adult entertainment theaters to be established in contravention of the purpose of the ordinance.

Moreover, to the extent Pringle may be interpreted as an exercise of simple statutory construction, we find it equally flawed. The Pringle court correctly noted that vague or ambiguous terms in a legislation are to be construed, where possible, so as to preserve their constitutionality. (Pringle, supra, 115 Cal.App.3d at p. 160.) In so doing, however, the court must give the ordinance a construction which conforms both to the dictates of the Constitution and to the purposes of the enactment. Indeed, we believe the “regular and substantial course of conduct” is a reasonable interpretation of “use” under the Long Beach ordinance because it more closely conforms to the purpose of the ordinance than did Pringle’s preponderance (over 50 percent) test. Accordingly, we must reject Pringle on statutory construction grounds as well.

9 We recognize that although our definition is not exact, it is “reasonably specific and precise, bearing in mind that unavoidable imprecision is not fatal and celestial precision is not necessary." (Hart Book Stores, Inc. v. Edmisten (4th Cir. 1979) 612 F.2d 821, 833, cert. den. (1980) 447 U.S. 929 [65 L.Ed.2d 1124, 100 S.Ct. 3028].) We emphasize Long Beach is free to further define the standard—for example, by making reference to a percentage of films shown, or the percentage of revenue received by the adult entertainment business. It may also amend its ordinance to impose less restrictive standards.

10 As stated above Pringle's “preponderance” standard has been interpreted in Court of Appeal cases as requiring the showing of over 50 percent adult movies before a theater can be labeled an adult theater: Kuhns v. Board of Supervisors, supra, 128 Cal.App.3d 369, 376; Strand Property Corp. v. Municipal Court, supra, 148 Cal.App.3d 882, 889-890. These cases predate Renton, supra, 475 U.S. 41, and merely rely on Pringle. To the extent they interpret Pringle as imposing a constitutional floor, we find they are no more persuasive than Pringle, supra, and are likewise disapproved.

11 Of course, our disposition does not preclude the People from prosecuting future violations of Chapter 21.51 under the “regular and substantial course of conduct” standard discussed above.