Opinion
COLOGNE, J.
Strand Property Corporation, Jimmie Johnson, Charles Boeckman and Freddie Bantu were charged by a complaint with violating
San Diego Municipal Code (Code) section 101.1810, which prohibits “the establishment ... or transfer of ownership or control of” an adult motion picture theater within 1,000 feet of a residential zone, a church, school, public park, social welfare institution, or another adult entertainment business.
An “adult motion picture theater” is defined by the Code as “[a]n establishment ... in which a substantial portion of the total presentation time is devoted to the showing of material which is distinguished or characterized by an emphasis upon the depiction or description of ‘specified sexual activities’ [defined in § 101.0801.2
] or ‘specified anatomical areas’ [defined in § 101.1801.1
] for observation by patrons.” (Code § 101.1801.4, as
amend. 1/2/79 by Ord. 12539 N.S.; see now § 101.1801.3, subd. B, as amend. 9/13/82 by Ord. 0-15810 N.S.)
By demurrer in municipal court, Strand challenged the ordinance for violating the First Amendment and for unconstitutionally establishing a monopoly for existing businesses. The municipal court overruled Strand’s demurrer. Strand then brought a motion to dismiss which was denied as being without statutory basis. Following these denials, Strand sought a writ of prohibition in superior court. The superior court denied the writ and Strand appeals.
Strand contends the ordinance is unconstitutional because its restrictions impose a substantial and significant burden on the exercise of a First Amendment right without furthering a sufficiently significant city interest.
In
Young
v.
American Mini Theatres
(1976) 427 U.S. 50 [49 L.Ed.2d 310, 96 S.Ct. 2440], the United States Supreme Court upheld a Detroit ordinance very similar to the one at bar. The Supreme Court held such a dispersal regulation was justified by an interest in preserving the character of its neighborhoods. Under
American Mini Theatres,
a dispersal of adult entertainment establishments is constitutional if not motivated by an improper distaste for the speech involved, does not act to severely restrict First Amendment rights and is supported by a sufficient factual basis. (See
Developments in the Law—Zoning
(1978) 91 Harv.L.Rev. 1427, 1557-1559.)
The stated purpose of the San Diego City Ordinance is provided in Code section 101.1800, which reads as follows:
“It is the purpose of this Division to establish reasonable and uniform regulations to prevent the continued concentration of adult entertainment establishments, as defined herein, within The City of San Diego.
“It is the intent of this Division that the regulations be utilized to prevent problems of blight and deterioration which accompany and are brought about by the concentration of adult entertainment establishments.”
The ordinance, by its language, thus does not appear to be motivated by a distaste for the speech- itself, but by a desire to preserve neighborhoods, a goal upheld by the United States Supreme Court in
American Mini Theatres, supra, 421
U.S. 50, at pages 71 to 72 [49 L.Ed.2d at page 327], While the city did not set forth any factual basis for the ordinance, the factual basis supporting zoning laws requiring dispersal or deconcentration has been developed by testimony in other cases. Lawmakers in one locale should not be denied the benefit of the wisdom and experience of lawmakers in another community (see
County of Sacramento
v.
Superior Court
(1982) 137 Cal.App.3d 448, 455 [187 Cal.Rptr. 154]). Accordingly, contrary to Strand’s contention, it was not necessary for the City of San Diego to independently establish a factual basis to support the ordinance as applied to local conditions.
Strand asserts the ordinance severely restricts First Amendment rights because its effect is to limit the availability of sites to establish new adult motion picture theaters to less than one percent of the land within the city and that a significant percentage of those sites are not suitable for adult motion picture theaters.
In
Young
v.
American Mini Theatres, supra,
427 U.S. 50, the plurality noted the Detroit dispersal ordinance was only a slight burden on the First Amendment because “[t]here are myriad locations in the City of Detroit which must be over 1000 feet from existing regulated establishments.”
(Id.
at pp. 71-72, fn. 35 [49 L.Ed.2d at p. 327], quoting from the district court opinion, 373 F.Supp. 363, 370 (E.D.Mich. 1974).) However, the plurality also pointed out “[t]he situation would be quite different if the ordinance had the effect of suppressing, or greatly restricting access to, lawful speech.”
(Id.
at p. 72, fn. 35 [49 L.Ed.2d at p. 327].)
Since
American Mini Theatres,
a number of courts have invalidated zoning regulations which have acted to severely restrict or eliminate access to adult entertainment. Strand cites these cases as showing the trial court erred in overruling the demurrer. Procedurally, however, all of these cases are distinguishable since none involved the review of a demurrer to a criminal complaint.
A demurrer lies only to correct defects appearing on the
face of the complaint (Pen. Code, § 1004; Witkin, Cal. Crim. Procedure, § 236, p. 220). Moreover, here there is no properly admitted evidence in the record on which to consider Strand’s factual assertions. Thus, our review is limited to determining whether the ordinance is unconstitutional on its face, not whether it is unconstitutional as applied.
Strand also attacks the ordinance as being unconstitutionally restrictive in its definition of an adult motion picture theater, especially when considered in conjunction with the definition of a general motion picture theater.
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Opinion
COLOGNE, J.
Strand Property Corporation, Jimmie Johnson, Charles Boeckman and Freddie Bantu were charged by a complaint with violating
San Diego Municipal Code (Code) section 101.1810, which prohibits “the establishment ... or transfer of ownership or control of” an adult motion picture theater within 1,000 feet of a residential zone, a church, school, public park, social welfare institution, or another adult entertainment business.
An “adult motion picture theater” is defined by the Code as “[a]n establishment ... in which a substantial portion of the total presentation time is devoted to the showing of material which is distinguished or characterized by an emphasis upon the depiction or description of ‘specified sexual activities’ [defined in § 101.0801.2
] or ‘specified anatomical areas’ [defined in § 101.1801.1
] for observation by patrons.” (Code § 101.1801.4, as
amend. 1/2/79 by Ord. 12539 N.S.; see now § 101.1801.3, subd. B, as amend. 9/13/82 by Ord. 0-15810 N.S.)
By demurrer in municipal court, Strand challenged the ordinance for violating the First Amendment and for unconstitutionally establishing a monopoly for existing businesses. The municipal court overruled Strand’s demurrer. Strand then brought a motion to dismiss which was denied as being without statutory basis. Following these denials, Strand sought a writ of prohibition in superior court. The superior court denied the writ and Strand appeals.
Strand contends the ordinance is unconstitutional because its restrictions impose a substantial and significant burden on the exercise of a First Amendment right without furthering a sufficiently significant city interest.
In
Young
v.
American Mini Theatres
(1976) 427 U.S. 50 [49 L.Ed.2d 310, 96 S.Ct. 2440], the United States Supreme Court upheld a Detroit ordinance very similar to the one at bar. The Supreme Court held such a dispersal regulation was justified by an interest in preserving the character of its neighborhoods. Under
American Mini Theatres,
a dispersal of adult entertainment establishments is constitutional if not motivated by an improper distaste for the speech involved, does not act to severely restrict First Amendment rights and is supported by a sufficient factual basis. (See
Developments in the Law—Zoning
(1978) 91 Harv.L.Rev. 1427, 1557-1559.)
The stated purpose of the San Diego City Ordinance is provided in Code section 101.1800, which reads as follows:
“It is the purpose of this Division to establish reasonable and uniform regulations to prevent the continued concentration of adult entertainment establishments, as defined herein, within The City of San Diego.
“It is the intent of this Division that the regulations be utilized to prevent problems of blight and deterioration which accompany and are brought about by the concentration of adult entertainment establishments.”
The ordinance, by its language, thus does not appear to be motivated by a distaste for the speech- itself, but by a desire to preserve neighborhoods, a goal upheld by the United States Supreme Court in
American Mini Theatres, supra, 421
U.S. 50, at pages 71 to 72 [49 L.Ed.2d at page 327], While the city did not set forth any factual basis for the ordinance, the factual basis supporting zoning laws requiring dispersal or deconcentration has been developed by testimony in other cases. Lawmakers in one locale should not be denied the benefit of the wisdom and experience of lawmakers in another community (see
County of Sacramento
v.
Superior Court
(1982) 137 Cal.App.3d 448, 455 [187 Cal.Rptr. 154]). Accordingly, contrary to Strand’s contention, it was not necessary for the City of San Diego to independently establish a factual basis to support the ordinance as applied to local conditions.
Strand asserts the ordinance severely restricts First Amendment rights because its effect is to limit the availability of sites to establish new adult motion picture theaters to less than one percent of the land within the city and that a significant percentage of those sites are not suitable for adult motion picture theaters.
In
Young
v.
American Mini Theatres, supra,
427 U.S. 50, the plurality noted the Detroit dispersal ordinance was only a slight burden on the First Amendment because “[t]here are myriad locations in the City of Detroit which must be over 1000 feet from existing regulated establishments.”
(Id.
at pp. 71-72, fn. 35 [49 L.Ed.2d at p. 327], quoting from the district court opinion, 373 F.Supp. 363, 370 (E.D.Mich. 1974).) However, the plurality also pointed out “[t]he situation would be quite different if the ordinance had the effect of suppressing, or greatly restricting access to, lawful speech.”
(Id.
at p. 72, fn. 35 [49 L.Ed.2d at p. 327].)
Since
American Mini Theatres,
a number of courts have invalidated zoning regulations which have acted to severely restrict or eliminate access to adult entertainment. Strand cites these cases as showing the trial court erred in overruling the demurrer. Procedurally, however, all of these cases are distinguishable since none involved the review of a demurrer to a criminal complaint.
A demurrer lies only to correct defects appearing on the
face of the complaint (Pen. Code, § 1004; Witkin, Cal. Crim. Procedure, § 236, p. 220). Moreover, here there is no properly admitted evidence in the record on which to consider Strand’s factual assertions. Thus, our review is limited to determining whether the ordinance is unconstitutional on its face, not whether it is unconstitutional as applied.
Strand also attacks the ordinance as being unconstitutionally restrictive in its definition of an adult motion picture theater, especially when considered in conjunction with the definition of a general motion picture theater.
An adult motion picture theater is defined as “an establishment ... in which a
substantial portion of the total presentation time
is devoted to the showing of material which is distinguished or characterized by an emphasis upon the depiction or description of ‘specified sexual activities’ or ‘specified anatomical areas’ for observation by patrons.” (Code § 101.1801.4; italics added.) A “general motion picture theater” is defined, in pertinent part, as “[a] building or part of a building intended to be used for the specific purposes of presenting entertainment as defined herein, . . . provided, however, that
any such presentations
are not distinguished or characterized by an emphasis on the depiction or description of ‘specified sexual activities’ or ‘specified anatomical areas’ in that any such depiction or description is only incidental to the plot or story line.” (Code § 101.1801.15; italics added.) Strand argues these two definitions provide the exhibition of one “adult”
film could make the theater an “adult motion picture theater” subject to the ordinance. This, of course, would be unconstitutional since a zoning regulation based upon a single isolated presentation of an adult film would fail to further the city’s asserted interest in preserving the character of its neighborhoods
(Pringle
v.
City of Covina
(1981) 115 Cal.App.3d 151, 161-162 [171 Cal.Rptr. 251]).
In the municipal court, Strand asserted the ordinance was void for vagueness and in response, the municipal court exercised its power to subject the ordinance to a narrowing construction (see
American Mini Theatres, supra,
427 U.S. 50, 61 [49 L.Ed.2d 310, 320-321]). Making this construction, the municipal court ruled the phrase “substantial portion of the total presentation time” referred to both an individual film and all the films presented, and concluded that both must be over 50 percent. The municipal court went on to rule that percentage of adult to nonadult films should be measured over a month-long period.
We believe the only interpretation necessary is to construe the phrase “substantial portion of the total presentation time” in Code section 101.1801.4 to mean a preponderance of the total number of the films exhibited are adult films. In
Kuhns
v.
Board of Supervisors
(1982) 128 Cal.App.3d 369, at page 376 [181 Cal.Rptr. 1], we held “substantial and significant portion” lacks clarity, but if over half of the adult bookstores’ stock is adult, then the adult portion is both substantial and significant; and if the board of supervisors intended a different standard, it should have said so. While the language of this ordinance does not require a finding of significant as well as substantial, we can apply the same rule of interpretation at this stage of the proceedings where we are not presented a factual setting (see
Pringle
v.
City of Covina, supra,
115 Cal.App.3d 151, 160-161). Additionally, as determined by
Pringle
which examined an ordinance using essentially the same language as we consider here,
“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” (115 Cal.App.3d 151, 160). Thus, to fall within the definition of an adult motion picture theater under the ordinance then applica
ble, a preponderance of the films shown must have as their dominant or predominant character and theme the depiction of the “specified sexual activities” or “specified anatomical areas.”
Code section 101.1801.15, defining a general motion picture theater which Strand argues would make a theater subject to regulation for the showing of a single adult film, is also subject to a constitutional interpretation. It is apparent that in section 101.1801.15 the city intended to exclude from the definition of a general motion picture theater those theaters exhibiting films, etc., which would otherwise categorize the theater as an adult motion picture theater. This is shown by section 101.1801.15’s use of language to describe adult films which is parallel to language used in section 101.1801.4. Strand contends the use of the phrase “any such presentations,” used in the general motion picture theater definition, means any one presentation of an adult film would make the theater an adult motion picture theater. Such an interpretation, however, ignores the city’s use of the plural (presentations) and the obvious intent of the ordinance to apply only to adult motion picture theaters. “Any such presentations” may reasonably be construed to refer to section 101.1801.4’s “substantial portion of the total presentation time” and thus act to exclude from the definition of a general motion picture theater those theaters which qualify as adult theaters. Under this construction, the ordinance is not unduly restrictive.
Strand’s argument that less drastic means are available to accomplish the ordinance’s objectives is similarly meritless. This case fits within the characterization of
Young
v.
American Mini Theatres, supra,
427 U.S. 50, by the United States Supreme Court in
Schad
v.
Mount Ephraim, supra,
452 U.S. 61, at page 76 [68 L.Ed.2d 671 at page 685], as one which does “not purport to approve the total exclusion from the city of theatres showing adult, but not obscene, materials. ... the number of regulated establishments [is] not limited and . . . ‘the situation would be quite different if the ordinance had the effect of suppressing, or greatly restricting access to, lawful speech.’ 427 U.S., at 71, n. 35.” The ordinance is sufficiently narrowly drawn, and fits within the holding of
American Mini Theatres, supra,
427 U.S. 50.
The purported appeal is dismissed and the writ is denied.
Brown (Gerald), P. J., and Butler, J., concurred.
Appellants’ petition for a hearing by the Supreme Court was denied January 25, 1984.