E.W.A.P., Inc. v. City of Los Angeles (56 Cal. App. 4th 310, 1997)

Opinion

NOTT, J.

Appellant E.W.A.P., Inc. (also known as Erotic Words/Pictures, Inc.), appeals from the trial court’s denial of its petition for writ of mandate. The primary question presented by this case is whether the application of a municipal ordinance designed to abate nuisances was improperly enforced against an adult bookstore. We hold that it was not, and affirm the judgment.

Contentions

Appellant contends that (1) the trial court erred in deciding that Los Angeles Municipal Code (LAMC) chapter I, article 2, section 12.21A-15 is constitutional; (2) it was denied a fair trial in the administrative proceedings due to lack of sworn testimony, denial of cross-examination, and admission of legally incompetent evidence; (3) the trial court erred in not applying the independent judgment test to judicial review of the administrative decision; (4) the findings of the associate zoning administrator and the board of zoning appeals are not supported under the independent judgment or the substantial evidence test; and (5) the board of zoning appeals erred in further reducing appellant’s hours of operation.

Facts and Procedural Background

Appellant has owned and operated Le Sex Shoppe adult bookstore in the Canoga Park area of the City of Los Angeles since 1972. Appellant sells and exhibits adult books, magazines, periodicals, novelties, and videos, and maintains coin-operated adult video viewing booths. From 1972 until October 24, 1994, Le Sex Shoppe was open 24 hours a day. Other businesses in the area, including a clock repair shop, antique shop and an auto supply store, typically close between 5 p.m. and 7 p.m. One restaurant is open until 10 p.m.

In March 1987, appellant entered into an agreement subject to several operating conditions with respondent, the City of Los Angeles (City), in order to prevent abatement proceedings against the property. These conditions included increasing outdoor lighting, hiring a uniformed guard, and posting a sign reading: “The management of this store is cooperating with the Los Angeles Police Department in an effort to end lewd conduct. This activity has resulted in numerous arrests here. If you engage in public masturbation, exhibition, oral copulation or other sexual encounters inside or outside this store, you will be ejected or subject to arrest.”

In March 1989, appellant and respondent stipulated to a preliminary injunction requiring additional conditions for operating the business.

In November 1989, Councilperson Joy Picus sent a letter to the department of transportation requesting “No Cruising” and “No Parking/Stopping” signs in the alley behind the shop in response to citizen complaints regarding lewd conduct by male homosexuals.

In June 1990, in response to a formal complaint sent to the city planning department, associate zoning administrator Jon Perica requested voluntary conditions of operation to avoid revocation of appellant’s conditional use permit.

In May 1994, Captain Valentino P. Paniccia, commanding officer West Valley area, sent a letter to Robert Jonovich, chief zoning administrator, requesting revocation of appellant’s conditional use permit because the voluntary agreements were ineffective in curbing the lewd conduct, public urination, solicitation and harassment of residents.

In August 1994, the first administrative hearing was held before associate zoning administrator John Parker (the AZA).

The AZA reported that 14 persons were present at the public hearing, and that 6 of them (including representatives from the police department and Councilperson Laura Chick’s office) spoke in support of imposing additional conditions. A representative of Le Sex Shoppe spoke in favor of some additional conditions. Five letters were received in support of imposing additional conditions. Subsequent to the hearing, letters were received from both the police department and the Le Sex Shoppe attorney proposing conditions of operation.

The AZA considered evidence, including an arrest summary from 1992 to 1994, of lewd conduct arrests associated with the Le Sex Shoppe. In 1994 (year to date), there were 17 arrests; in 1993, there were 58; in 1992, there were 42. Seventy-two of the one hundred seventeen arrests were for lewd conduct (including masturbation inside the premises, solicitation for lewd acts of a homosexual nature), thirty-two were for continual cruising, two were for drinking in public, and two were arrests for outstanding warrants. The AZA considered evidence showing that during the last two and one-half years, one hundred seventeen arrests had been made which are directly attributable to the presence of Le Sex Shoppe; thirteen additional arrests have occurred in the last three months, three for masturbation within video booths; there had been numerous public complaints to the police department within the same time periods; police efforts to date had been unsuccessful, consuming substantial amounts of time with little success; and the imposition of prior conditions (including security guards and gating) has had little effect.

The AZA found that a library used by children is located within one block of Le Sex Shoppe. Moreover, within the area are a community center, used by older people and children, and apartments. Arrestees stated that they were in the area because Le Sex Shoppe drew them as a location known as a homosexual cruising and solicitation point. The problem is not better now than it was 10 years ago, and appellant has not been responsive to recent concerns, including 3 arrests made within the store for lewd conduct. Even a security guard employed by appellant was caught soliciting lewd acts. The AZA imposed 20 operating conditions including requiring closure from 2 a.m. to 6 a.m.

The AZA found that the property is a public nuisance, as established in LAMC section 12.21A-15, and that, among other things, its operation has: adversely impacted nearby commercial and residential uses; acted as a magnet for illegal activities, resulting in excessive police service; resulted in harassment of passersby, prostitution, public urination, loitering, cruising, littering, traffic violations, lewd conduct, and police detentions and arrests.

Appellant then appealed the decision to the board of zoning appeals (BZA). The BZA adopted most of the AZA’s recommendations, but further reduced the hours of operation to 9 a.m. to 10 p.m. Appellant appealed to the Los Angeles City Council (the Council). On February 28, 1995, the Council considered the matter and adopted the BZA’s findings and corrective conditions as recommended by the planning and land use management committee. The Council denied appellant’s appeal and sustained the determination of the BZA without modification. The Council’s action was approved by the mayor on March 2, 1995.

On March 6, 1995, appellant filed its complaint for injunctive and declaratory relief, and petition for administrative mandamus. On March 9, 1995, appellant filed its notice of motion for preliminary injunction and stay of administrative decision. On May 8,1995, the trial court issued a preliminary injunction enjoining any enforcement of LAMC section 12.21 A-15 against appellant for the operation of the bookstore. On February 22,1996, appellant filed its notice of motion for peremptory writ of mandate. The trial court denied the peremptory writ, finding as a matter of law that LAMC section 12.21A-15 is not unconstitutional. The court dissolved the preliminary injunction.

Appellant has complied with all conditions with the exception of the restriction of hours to 9 a.m. to 10 p.m.

This appeal followed.

Discussion

1. Whether the trial court erred in finding that LAMC section 12.21 A-15 is constitutional.

a. The ordinance’s impact on First Amendment rights is indirect.

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press . . and is applicable to the states by the due process clause of the Fourteenth Amendment. (Young v. American Mini Theatres (1976) 427 U.S. 50, 52, fn. 1 [96 S.Ct. 2440, 2443, 49 L.Ed.2d 310].)

As respondent points out, the impact of the LAMC ordinance on First Amendment rights is indirect. In Arcara v. Cloud Books, Inc. (1986) 478 U.S. 697, 707 [106 S.Ct. 3172, 3177-3178, 92 L.Ed.2d 568], a New York public health law allowed the city to enjoin and abate places of prostitution, lewdness, and assignation as public health nuisances for a period of one year. In that case, an undercover police officer observed instances of masturbation, fondling, and fellatio by patrons on the premises of an adult bookstore, all within the observation of the proprietor. On four occasions the officer was solicited by men who offered to perform sexual acts in exchange for money. The United States Supreme Court found that . . the First Amendment is not implicated by the enforcement of a public health regulation of general application against the physical premises in which [books are sold].” (Id., at p. 706 [106 S.Ct. at p. 3177].) The court found that the sexual activity manifested absolutely no element of protected expression. That is, “First Amendment values may not be invoked by merely linking the words ‘sex’ and ‘books.’ ” (Id., at p. 705 [106 S.Ct. at p. 3176].) The court disregarded the bookstore’s argument that the closure of the store would impermissibly burden its First Amendment protected bookselling activities, because the bookstore could sell its materials at another location. (Ibid.)

Similarly here, the ordinance impacts directly on nuisance activities and only indirectly upon appellant’s First Amendment rights. That is, the ordinance at issue targets nuisance activities including “disturbances of the peace, illegal drug activity, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, loitering, excessive littering, illegal parking, loud noises (particularly in late night or early morning hours), traffic violations, curfew violations, lewd conduct or police detentions and arrests . . . .” (LAMC, § 12.21A-15(a)(4).) Thus, under Arcara, the conditions imposed by the AZA and BZA do not implicate First Amendment rights through the enforcement of the City’s police powers in regulating land use. (See Adult Video Ass’n v. Barr (9th Cir. 1992) 960 F.2d 781, 790 [Rico (Racketeer Influenced and Corrupt Organizations Act) provisions permitting pretrial preservation of assets for forfeiture was not unconstitutional because unlawful commercial conduct rather than speech was at issue].)

b. Appellant does not have standing to assert the rights of third parties in the abstract, against an ordinance which is not vague as to itself.

Even if we proceed to analyze whether the ordinance is vague, we conclude that appellant lacks standing to assert the rights of third parties.

Zoning laws can be used to regulate businesses which implicate the First Amendment. In Young v. American Mini Theatres, supra, 427 U.S. 50, the United States Supreme Court analyzed zoning regulations enacted by the City of Detroit which made it unlawful for adult book stores and adult theaters to be established within 500 feet of any residential area or 1,000 feet of any 2 other “regulated uses.” Those “regulated uses” included cabarets, hotels, taxi dance halls and pool halls. (Id., at p. 52, fn. 2 [96 S.Ct. at p. 2444].)

The plaintiffs attacked the ordinance, arguing that the distinction applied to adult fare as “ ‘characterized by [their] emphasis on matter depicting, describing or relating to “Specified Sexual Activities” or “Specified Anatomical Areas,” ’ ” (427 U.S. at p. 53 [96 S.Ct. at p. 2444]) was vague because it was unclear how much of the described activity may be permissible before fitting within that category. The court found that the plaintiffs lacked standing to raise that argument in the abstract because the ordinance clearly applied to the plaintiffs, which were establishments that proposed to offer adult fare on a regular basis. (Id., at p. 59 [96 S.Ct. at pp. 2446-2447].) That is, a litigant cannot assert the rights of third parties “if the statute’s deterrent effect on legitimate expression is not ‘both real and substantial,’ and if the statute is ‘readily subject to a narrowing construction by the state courts.’ ” (Id., at p. 60 [96 S.Ct. at p. 2447].) The court was not persuaded that the ordinance would deter First Amendment protected speech, and it believed there was “no reason why the ordinances are not ‘readily subject to a narrowing construction by the state courts.’ ” (Id., at p. 61 [96 S.Ct. at p. 2448].)

Under LAMC section 12.21A-15(a), the zoning administrator may modify or discontinue a commercial or industrial use if he or she finds that the use: “(1) Adversely impacts nearby agricultural, residential, or commercial uses; and [