Fantasyland Video v. County of San Diego ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FANTASYLAND VIDEO, INC., 
Plaintiff-Appellant, No. 05-56026
v.  D.C. No.
COUNTY OF SAN DIEGO, CV-02-01909-LAB
Defendant-Appellee.

FANTASYLAND VIDEO, INC., 
Plaintiff-Appellant,
and
No. 07-55033
TOLLIS, INC.; 1560 N. MAGNOLIA
AVENUE, LLC,  D.C. No.
CV-02-01909-LAB
Plaintiffs,
OPINION
v.
COUNTY OF SAN DIEGO,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted July 11, 2007
Submission Withdrawn August 7, 2007
Resubmitted October 5, 2007
Pasadena, California
Filed October 15, 2007
Before: Barry G. Silverman, William A. Fletcher, and
Richard R. Clifton, Circuit Judges.
13987
13988 FANTASYLAND VIDEO v. COUNTY OF SAN DIEGO
Opinion by Judge Silverman
13990 FANTASYLAND VIDEO v. COUNTY OF SAN DIEGO
COUNSEL
Clyde DeWitt, Weston, Garrou, DeWitt, & Walters, Los
Angeles, California; Bradley J. Shafer, Shafer & Associates,
Lansing, Michigan, for the plaintiff-appellant.
Thomas D. Bunton and John J. Sansone, County Counsel, San
Diego, California, for the defendant-appellee.
Scott D. Bergthold, Chattanooga, Tennessee, for the amicus.
FANTASYLAND VIDEO v. COUNTY OF SAN DIEGO 13991
OPINION
SILVERMAN, Circuit Judge:
In June 2002, the San Diego County Board of Supervisors
adopted a comprehensive zoning ordinance to govern the
operation of adult entertainment businesses within its jurisdic-
tion, which covers the unincorporated portions of the county.
The ordinance restricts the hours in which such businesses
can operate, requires the removal of doors on peep show
booths, and limits adult entertainment establishment to areas
of the county zoned for industrial use. San Diego County’s
stated rationale for the ordinance was to combat negative sec-
ondary effects — crime, disorderly conduct, blight, noise,
traffic, property value depreciation, and unsanitary behavior
— that concentrate in and around adult businesses.
The two adult entertainment establishments presently oper-
ating in the unincorporated portions of San Diego County
filed suit. (The City of San Diego and the other incorporated
municipalities in the County are not governed by this ordi-
nance.) In this appeal, the operator of one of the establish-
ments, Fantasyland Video, Inc., appeals the district court’s
decision to uphold the ordinance’s hours restriction and open-
booth requirement. In its briefing to us, Fantasyland also con-
tended that the hours of operation restriction violated both the
First Amendment and the California Constitution. After oral
argument, we certified to the California Supreme Court the
question of what the proper standard of review is under the
California Constitution. Fantasyland Video, Inc. v. County of
San Diego, No. 05-56026, 2007 WL 2244146, at *1 (9th Cir.
2007). The California Supreme Court responded that hours-
of-operation ordinances for adult businesses are subject to
intermediate scrutiny. Fantasyland Video, Inc. v. County of
San Diego, No. 05-56026, S155408 (Cal. Sept. 25, 2007)
(order denying request to decide a question of California law).
In the meantime, Fantasyland advised us of its decision to
withdraw its claim that the hours of operation restriction vio-
13992 FANTASYLAND VIDEO v. COUNTY OF SAN DIEGO
lates the First Amendment, while retaining its claim under the
California Constitution. The federal issue has thus been taken
off the table regarding the hours restriction, but it remains a
basis for the challenge to the open-booth requirement.
We affirm the district court’s decision to uphold the ordi-
nance’s hours-of-operation restriction as surviving intermedi-
ate scrutiny under the California Constitution. Fantasyland
fails to cast direct doubt on the County’s rationale for the
hours restriction. With respect to the open-booth requirement,
we affirm the district court’s ruling that the County’s require-
ment of open booths at peep shows does not violate the First
Amendment. Similar to the ordinances in other cases uphold-
ing open-booth requirements, the County’s open-booth ordi-
nance is supported by evidence of the nexus between closed
booths and adverse secondary effects such as prostitution and
pandering, matters in which the County has a substantial
interest in regulating. Further, the ordinance is narrowly tai-
lored. The content, number, and availability of peep shows are
untouched; the ordinance deals only with the doors. We fur-
ther reject Fantasyland’s argument that the provision is
invalid under Justice Kennedy’s concurring opinion in City of
Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002).
That concurrence is not applicable to open-booth require-
ments.
I. Background
In June 2002, citing to concerns about the surrounding
neighborhood, the County Board of Supervisors adopted a
comprehensive set of regulations and licensing procedures
governing adult entertainment establishments within its juris-
diction. Among these regulations, the County prohibited any
“door, curtain, or obstruction of any kind [to] be installed
within the entrance to a peep show booth.” San Diego County,
Cal., Ordinance No. 9479, § 21.1816 (June 19, 2002). In addi-
tion, the County made it unlawful “for any owner, operator,
manager or employee of an adult entertainment establishment
FANTASYLAND VIDEO v. COUNTY OF SAN DIEGO 13993
to remain open for business between the hours of 2:00 a.m.
and 6:00 a.m. of any day excepting herefrom an adult hotel/
motel.” San Diego County Ordinance No. 9479, § 21.1809.
The ordinance took effect the following month.
Fantasyland operates an adult arcade, bookstore, novelty
shop, and video store. It initiated federal and state constitu-
tional challenges against the new ordinance, seeking declara-
tory and injunctive relief.
The district court granted summary judgment to the
County, upholding the ordinance’s requirement that adult
establishments close between the hours of 2:00 a.m. and 6:00
a.m. and its restriction on doors at the entranceway to private
peep show booths.1 See Fantasyland Video, Inc. v. County of
San Diego, 373 F. Supp. 2d 1094, 1106-1116 (S.D. Cal.
2005). Later, Fantasyland filed a Rule 60(b) motion for relief
from judgment, which the district court denied.
These timely appeals followed.
II. Jurisdiction
The district court had subject matter jurisdiction over Fan-
tasyland’s constitutional claims under 28 U.S.C. §§ 1331,
1343(a), and over its state claims under 28 U.S.C. § 1367(a).
We have jurisdiction under 28 U.S.C. § 1291.
III. Standard of Review
We review de novo the district court’s grant of summary
judgment and, viewing the evidence in a light most favorable
to the non-moving party, determine whether there are any
1
The other adult establishment in the unincorporated portion of the
County, Déjà Vu, appealed the district court’s judgment on other grounds
not relevant to this appeal. Tollis Inc. v. County of San Diego, No. 05-
56300 (9th Cir. Oct. 2, 2007).
13994 FANTASYLAND VIDEO v. COUNTY OF SAN DIEGO
genuine issues of material fact for trial. See Gammoh v. City
of La Habra, 395 F.3d 1114, 1122 (9th Cir. 2005). We review
the district court’s denial of Fantasyland’s Rule 60(b) motion
for an abuse of discretion. See United States v. Asarco, Inc.,
430 F.3d 972, 978 (9th Cir. 2005).
IV. Discussion
The constitutionality of the challenged provisions is gov-
erned by the framework announced in City of Renton v. Play-
time Theaters, Inc., 475 U.S. 41 (1986), and refined in the
plurality opinion of Alameda Books, 535 U.S. 425. As
recounted by Center for Fair Public Policy v. Maricopa
County, 336 F.3d 1153 (9th Cir. 2003), the Renton inquiry
proceeds in three steps: First, the ordinance cannot be a com-
plete ban on the protected expression. Id. at 1159. Second, the
ordinance must be content-neutral or, if content-based with
respect to sexual and pornographic speech, its predominate
concern must be the secondary effects of such speech in the
community. Id. at 1159, 1161. Third, the regulation must pass
intermediate scrutiny. It must serve a substantial government
interest, be narrowly tailored to serve that interest, and allow
for reasonable alternative avenues of communication. Id. at
1159.
With respect to this third step, the Supreme Court has
adopted a specialized burden-shifting framework. When
enacting a secondary effects ordinance, the municipality must
rely on evidence that “demonstrate[s] a connection between
the speech regulated . . . and the secondary effects that moti-
vated the adoption of the ordinance.” Alameda Books, 535
U.S. at 441 (plurality). Any material that is “reasonably
believed to be relevant” can be used. Id. at 438 (quoting Ren-
ton, 475 U.S. at 51-52).
To avoid summary judgment, the plaintiffs must then “cast
direct doubt on [the municipality’s] rationale, either by dem-
onstrating that the municipality’s evidence does not support
FANTASYLAND VIDEO v. COUNTY OF SAN DIEGO 13995
its rationale or by furnishing evidence that disputes the
municipality’s factual findings.” Id. at 438-39. Such evidence
must be “actual and convincing.” Id. at 439. If successful,
“the burden shifts back to the municipality to supplement the
record with evidence renewing support for a theory that justi-
fies its ordinance.” Id.
A. Hours-of-Operation Restriction
[1] Fantasyland argues that the hours-of-operation restric-
tion should be invalidated under the California Constitution
based on People v. Glaze, 614 P.2d 291 (Cal. 1980), which
struck down a similar hours-of-operation restriction under a
test that was stricter than what the First Amendment requires.
Indeed, as noted above, Fantasyland formally dropped its
claim against this provision under the First Amendment and
limited its challenge to the California Constitution. However,
the California Supreme Court indicated in its response to our
certified question that hours-of-operation restrictions are
reviewed under intermediate scrutiny as applied by the United
States Supreme Court. See Fantasyland Video, Inc. v. County
of San Diego, No. 05-56026, S155408 (Cal. Sept. 25, 2007)
(order denying request to decide a question of California law).
That is the same standard identified in Renton, and the
response to our certified question, including its citations to
Los Angeles Alliance for Survival v. City of Los Angeles, 22
Cal. 4th 352, 357, 364 (2000); City of National City v. Wie-
ner, 3 Cal. 4th 832, 841-43 (1992); and People v. Superior
Court (Lucero), 49 Cal. 3d 14, 26 (1989), suggests to us that
the standard under the California Constitution is the same in
this situation as that applied by the United States Supreme
Court in Renton. Under Renton, Fantasyland failed to supply
sufficient evidence to “cast direct doubt” on the County’s
asserted secondary-effects rationale. We conclude that the
challenge under the California Constitution fails for the same
reason.
13996 FANTASYLAND VIDEO v. COUNTY OF SAN DIEGO
[2] At the legislative stage, the County relied on studies and
reports, reported court decisions, and anecdotal testimony to
establish a correlation between adult establishments and nega-
tive secondary effects.2 Based on this evidence, the County
could reasonably infer that restricting the hours of operations
for adult businesses would have the purpose and effect of
reducing crime, disorderly conduct, traffic, and noise during
late-night hours. Fantasyland’s attempt to cast doubt on the
County’s conclusions fails as a matter of law because its
expert, Daniel Linz, Ph.D., a professor in the Department of
Communication’s Law and Society Program at the University
of California Santa Barbara, did not rebut the County’s evi-
dence with regard to noise and traffic. The evidence presented
by Dr. Linz addressed only late night crime and property val-
ues. The County considered these factors, but its purported
rationale for requiring adult businesses to close from 2:00am
to 6:00am also included combating increased noise and traf-
fic. Fantasyland’s failure to address these considerations is
fatal under the second step of the Renton intermediate scru-
tiny analysis. See Alameda Books, Inc., 535 U.S. at 438-39.
With regard to noise and traffic, Fantasyland failed as a mat-
ter of law “to cast direct doubt on [the County’s] rationale . . .
by demonstrating that the [County’s] evidence does not sup-
port its rationale or by furnishing evidence that disputes [its]
factual findings.” Id. Thus, the County’s hours-of-operation
ordinance withstands intermediate scrutiny and Fantasyland’s
challenge under the California Constitution fails.
B. Open-Booth Requirement
Fantasyland argues that San Diego County Ordinance No.
9479 is invalid under several facets of Renton intermediate
scrutiny and under Justice Kennedy’s concurring opinion in
Alameda Books, 535 U.S. at 444-53.3 Fantasyland alleged that
2
Fantasyland conceded that this evidence satisfied the County’s initial
evidentiary burden. See Fantasyland, 373 F. Supp. 2d at 1107.
3
Justice Kennedy did not join the plurality opinion in Alameda Books.
As “his concurrence is the narrowest opinion joining in the judgment of
the Court,” it is the controlling opinion. Ctr. for Fair Pub. Policy, 336
F.3d at 1161.
FANTASYLAND VIDEO v. COUNTY OF SAN DIEGO 13997
the ordinance violated both the First Amendment and the Cal-
ifornia Constitution.
We have previously upheld open-booth requirements simi-
lar to the one adopted by the County. Spokane Arcade, Inc. v.
City of Spokane, 75 F.3d 663 (9th Cir. 1996); Ellwest Stereo
Theaters, Inc. v. Wenner, 681 F.2d 1243 (9th Cir. 1982). In
both Spokane Arcade and Ellwest we found that the open-
booth requirements were narrowly tailored to a substantial
interest. See Spokane Arcade, 75 F.3d at 666-67; Ellwest, 681
F.2d at 1246-47. Other circuits have also upheld such ordi-
nances, concluding that the alternatives would less effectively
serve the municipality’s substantial interest in deterring sex-
ual activity in peep-show booths. See Pleasureland Museum,
Inc. v. Beutter, 288 F.3d 988, 1003-04 (7th Cir. 2002); Mitch-
ell v. Comm’n on Adult Entm’t Establishments, 10 F.3d 123,
141-44 (3d Cir. 1993); Bamon Corp. v. City of Dayton, 923
F.2d 470, 473-74 (6th Cir. 1991); Doe v. City of Minneapolis,
898 F.2d 612, 617-19 (8th Cir. 1990); Wall Distributors, Inc.
v. City of Newport News, 782 F.2d 1165, 1169-70 (4th Cir.
1986).
1. Renton Analysis
a. Substantial interest unrelated to expression
Fantasyland first contends that the County has no substan-
tial governmental interest under Renton in preventing private
sexual conduct within an enclosed booth. We disagree.
[3] The conduct at issue is not private at all. It is occurring
at a retail establishment. The “curtailing [of] public sexual
criminal offenses” is a significant state interest. Ellwest, 681
F.2d at 1246. The County’s objective in reducing instances of
prostitution and solicitation at businesses that operate peep
show booths is valid. Furthermore, the County has a substan-
tial interest in preventing certain private sexual acts occurring
within peep show booths, notably the use of so-called “glory
13998 FANTASYLAND VIDEO v. COUNTY OF SAN DIEGO
holes”—the placement of a peep show patron’s genitals
through holes or gaps in the wall partition between the booths.
Such activities constitute lewd conduct under California Penal
Code § 647(a). See People v. Rylaarsdam, 181 Cal. Rptr. 723,
727-28 (App. Dep’t Super. Ct. 1982).
[4] Moreover, there is no requirement under Renton that the
asserted secondary effects be criminal. See, e.g., Ctr. for Fair
Pub. Policy, 336 F.3d at 1166 (reducing late night noise and
traffic). One may therefore accept Fantasyland’s proposition
that masturbation in a fully-enclosed booth is legal in Califor-
nia and still find a substantial governmental interest in curtail-
ing the activity. Rampant masturbation at a commercial
property open to the public may rationally trigger sanitation
concerns and impair the right of other patrons to view their
materials or read the accompanying articles in peace. See
Deluxe Theater & Bookstore, Inc. v. City of San Diego, 221
Cal. Rptr. 100, 102 (Ct. App. 1985) (finding that city had an
interest in regulating peep show booths due to the potential
for unlawful, offensive, and unsanitary behavior).
b. Nexus between the speech and secondary effects
Fantasyland next suggests that the County failed to show a
nexus between the peep show booths and its interest in cur-
tailing sexual activity.
[5] When enacting the open-booth requirement, the County
Board of Supervisors referenced anecdotal reports of sexual
activity occurring within peep show booths of other jurisdic-
tions. The County also incorporated the findings from Spo-
kane Arcade, 75 F.3d at 664-65, and Deluxe Theater &
Bookstore, 221 Cal. Rptr. at 102, where municipalities
enacted open-booth ordinances in response to drug use and
sexual conduct by booth patrons. Reliance on the experiences
of other jurisdictions is sufficient to satisfy the County’s mini-
mal burden at the legislative stage. See Renton, 475 U.S. at
50-52.
FANTASYLAND VIDEO v. COUNTY OF SAN DIEGO 13999
To avoid summary judgment, Fantasyland must produce
contrary evidence that casts direct doubt on the County’s con-
clusions. It offered the lone declaration of John M. Golden-
ring, a medical doctor and public health expert. In his
declaration, Dr. Goldenring stated that infection from sexually
transmitted diseases could only occur through sexual contact,
and not through seminal fluid left on the surfaces of the peep
show booths.
[6] The district court correctly found that Dr. Goldenring’s
declaration was insufficient as a matter of law. See Fantasy-
land, 373 F. Supp. 2d at 1114-15. The County did not adopt
the open-booth requirement to curtail the transmission of dis-
ease through bodily fluids left in the booths. Rather, it enacted
the requirement to reduce the instances of sexual activity,
solicitation, and pandering occurring within those spaces.
Nothing in Dr. Goldenring’s declaration challenges the Coun-
ty’s evidentiary conclusions regarding the prevalence of those
activities.4
c. Narrowly tailored
Finally, Fantasyland suggests that there are far less drastic
means of accomplishing the County’s stated objective. They
include reducing the size of the booth, requiring that there be
a space between the floor and the bottom of the door to allow
verification that only one person is in the booth, and monitor-
ing the spaces around the booths.
[7] The issue is not whether Fantasyland can posit less
restrictive alternatives. The narrow tailoring requirement “is
4
Fantasyland also references the declaration of its vice president, who
speculated that the open-booth requirement would facilitate contact
between customers “culminating in relatively anonymous sexual encoun-
ters after they leave the business” (emphasis added). This declaration does
nothing to cast doubt on the County’s rationale to curb sexual activity
occurring inside the business.
14000 FANTASYLAND VIDEO v. COUNTY OF SAN DIEGO
satisfied ‘so long as the . . . regulation promotes a substantial
government interest that would be achieved less effectively
absent the regulation’ ” and “the means chosen are not sub-
stantially broader than necessary to achieve the government’s
interest.” Ward v. Rock Against Racism, 491 U.S. 781, 799-
800 (1989) (citation omitted, omission in original).
[8] Fantasyland has not shown that the open-booth require-
ment is substantially broader than necessary to curtail the tar-
geted sexual activity. It did present a declaration that peep
show patronage generally declines by 60% after removal of
the doors. However, such decline in business, standing alone,
is not determinative.
[9] Fantasyland has not produced any evidence showing
that the decline was unconnected to the County’s asserted sec-
ondary effects — i.e., that the 60% were there just to watch
the movie. See Ellwest, 681 F.2d at 1247 (finding nothing in
the record to substantiate plaintiff’s “suggestion that, because
of the open booth requirement, potential viewers forgo their
right to watch films of their choice”).
[10] Furthermore, the ordinance does not restrict protected
speech occurring in the booths. The ordinance does not in any
way limit the content of the videos, the number of booths
available for viewing the videos, or the availability of the vid-
eos. The videos are as available as ever.
2. Justice Kennedy’s Alameda Books Concurrence
[11] To justify a content-based zoning ordinance that
restricts sexual and pornographic speech, Justice Kennedy
wrote in Alameda Books that “a city must advance some basis
to show that its regulation has the purpose and effect of sup-
pressing secondary effects, while leaving the quantity and
accessibility of speech substantially intact.” 535 U.S. at 449.
The city must have some basis to think that its ordinance will
FANTASYLAND VIDEO v. COUNTY OF SAN DIEGO 14001
suppress secondary effects, but not also the speech associated
with those effects. Id. at 449-50.
[12] We have said that Justice Kennedy’s concurrence did
nothing “to precipitate a sea change in this particular corner
of First Amendment law.” Ctr. for Fair Pub. Policy, 336 F.3d
at 1162. Furthermore, we determined that his proportionality
language was designed for “a classic erogenous zoning ordi-
nance whereby the city was restricting certain land uses,” and
that it was never intended to apply to an hours-of-operation
ordinance. Id. at 1163 (noting that the proportionality analy-
sis, if applied to a time restriction, would invalidate all such
laws).
[13] We now hold that Justice Kennedy’s concurrence is
also inapplicable to an open-booth requirement. Under the
County’s rationale, the patron watching a private peep show
often seeks to masturbate, solicit sexual acts, or engage in
sexual acts while in the booth. Any regulation that deters
these activities will necessarily make the forum for the speech
less attractive, but only because the speech and sexual acts
originate with the same person and occur at the same time.
The overall quantity of the protected expression must be
reduced, but only because the patron is chilled from also con-
temporaneously engaging in the unprotected behavior. Justice
Kennedy’s proportionality language was not designed for sit-
uations where the protected speech and the unprotected con-
duct merge in the same forum.
Fantasyland is of course entitled to cast doubt on the Coun-
ty’s reasoning. It could attempt to prove an absence of the
asserted unlawful or illicit sexual activity in the booths,
thereby defeating the County’s inference of correlation
between the speech at issue and the secondary effects. Alter-
natively, Fantasyland could produce evidence that the open-
booth requirement does little to deter the sexual activity
while, at the same time, substantially chills the protected
speech. It has done neither here.
14002 FANTASYLAND VIDEO v. COUNTY OF SAN DIEGO
[14] The County’s open-booth requirement is valid under
prevailing Ninth Circuit authority and nothing in Alameda
Books undermines that conclusion. As a result, the district
court correctly granted summary judgment to the County on
this claim.
C. Rule 60(b) Appeal
On June 16, 2006, Fantasyland filed a motion for relief
from the district court’s judgment pursuant to Federal Rule of
Civil Procedure 60(b). The motion referenced a declaration by
Fantasyland’s vice president stating that peep show business
had declined by 91% since Fantasyland began complying with
the County’s open-booth restriction.
[15] There was no abuse of discretion in the district court’s
decision to deny the motion. The declaration is not “newly
discovered evidence” under Rule 60(b)(2) because it dis-
cusses evidence that was not in existence at the time of the
judgment. See Corex Corp. v. United States, 638 F.2d 119,
121 (9th Cir. 1981). Further, the district court’s judgment did
not have any prospective application, thereby precluding
relief under Rule 60(b)(5). See Maraziti v. Thorpe, 52 F.3d
252, 254 (9th Cir. 1995).
[16] Finally, Rule 60(b)(6)’s catch-all provision is unavail-
able. This rule “has been used sparingly as an equitable rem-
edy to prevent manifest injustice” and “is to be utilized only
where extraordinary circumstances prevented a party from
taking timely action to prevent or correct an erroneous judg-
ment.” United States v. Alpine Land & Reservoir Co., 984
F.2d 1047, 1049 (9th Cir. 1993). That standard has not been
satisfied.
AFFIRMED.