Tollis Inc. v. County of San Diego ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOLLIS INC.; 1560 N. MAGNOLIA  No. 05-56300
AVENUE, LLC,
Plaintiffs-Appellants, D.C. No.
v.  CV-02-02023-
LAB/RBB
COUNTY OF SAN DIEGO,
OPINION
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Submission Withdrawn August 8, 2007
Resubmitted October 2, 2007
Pasadena, California
Filed October 10, 2007
Before: Barry G. Silverman, William A. Fletcher, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Silverman
13699
13702 TOLLIS INC. v. COUNTY OF SAN DIEGO
COUNSEL
A. Dale Manicom, San Diego, California; Clyde DeWitt,
Weston, Garrou, DeWitt, & Walters, Los Angeles, California;
Bradley J. Shafer, Shafer & Associates, Lansing, Michigan,
for the plaintiffs-appellants.
Thomas D. Bunton and John J. Sansone, County Counsel, San
Diego, California, for the defendant-appellee.
G. Randall Garrou, Weston, Garrou & DeWitt, Los Angeles,
California, for the amicus.
TOLLIS INC. v. COUNTY OF SAN DIEGO 13703
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 mandates that the businesses disperse to industrial
areas of the county. The County’s purported rationale for the
ordinance was to combat negative secondary effects — crime,
disorderly conduct, blight, noise, traffic, property value depre-
ciation, 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. In this appeal, the operators of one of the establish-
ments, Déjà Vu, appeal the district court’s decision to uphold
the ordinance’s dispersal requirements. They also appeal the
district court’s dismissal of their state law claim under Cali-
fornia Government Code § 65860, which requires zoning laws
to conform to the municipality’s general plan, and the district
court’s decision to sever a provision of the ordinance setting
forth the amount of time in which the County had to approve
an operating permit for adult establishments.
We hold that the district court’s manner of severance was
in error and reverse on that ground. We affirm in all other
respects.1
1
All pending requests for judicial notice are unopposed, and are hereby
granted. Municipal ordinances are proper subjects for judicial notice. See
Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022,
1025 n.2 (9th Cir. 2006).
13704 TOLLIS INC. v. COUNTY OF SAN DIEGO
I. Background
In June 2002, citing to concerns about the surrounding
neighborhood, the San Diego County Board of Supervisors
adopted a comprehensive set of regulations and licensing pro-
cedures governing adult entertainment establishments within
its jurisdiction. The ordinances took effect the following
month.
1560 N. Magnolia Ave., LLC, using property leased from
Tollis, Inc., operates an adult bookstore in the Bostonia neigh-
borhood of the county under the name “Déjà Vu.” These busi-
nesses (hereinafter, “Déjà Vu”) initiated federal and state
constitutional challenges against the new ordinances, seeking
declaratory and injunctive relief.
The district court granted summary judgment to the
County, upholding the ordinance’s requirement that adult
establishments locate only in industrial zones.2 See Fantasy-
land Video, Inc. v. County of San Diego, 373 F. Supp. 2d
1094, 1130-43 (S.D. Cal. 2005). The court also dismissed
Déjà Vu’s state law claim under California Government Code
§ 65860, regarding conformance to the County’s general plan.
Id. at 1129-30. Finally, the district court held that the Coun-
ty’s permitting regime for adult establishments was unconsti-
tutional because it granted the licensing body an unreasonably
long period of time to consider a permit request. Id. at 1143-
46. The court opted to sever the offending time limits from
the ordinance. Id. at 1146-47.
This timely appeal followed.
2
The other adult establishment in the unincorporated portion of San
Diego County, Fantasyland Video, Inc., has appealed the district court’s
judgment on other grounds not relevant to the disposition of this appeal.
TOLLIS INC. v. COUNTY OF SAN DIEGO 13705
II. Jurisdiction
The district court had subject matter jurisdiction over Déjà
Vu’s constitutional claims under 28 U.S.C. §§ 1331, 1343(a),
and over its state claim 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
genuine issues of material fact for trial. See Gammoh v. City
of La Habra, 395 F.3d 1114, 1122 (9th Cir. 2005).
IV. Discussion
A. Industrial Zone Restriction
The constitutionality of the challenged provision is gov-
erned by the framework announced in City of Renton v. Play-
time Theaters, Inc., 475 U.S. 41 (1986). As recounted by
Center for Fair Public Policy v. Maricopa County, 336 F.3d
1153 (9th Cir. 2003), this familiar inquiry proceeds in three
distinct steps: First, the ordinance cannot be a complete ban
on the protected expression. Id. at 1159. Second, the ordi-
nance 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.
Déjà Vu raises two arguments on appeal both relating to the
third step. It first contends that a concurrence by Justice Ken-
nedy in City of Los Angeles v. Alameda Books, Inc., 535 U.S.
13706 TOLLIS INC. v. COUNTY OF SAN DIEGO
425, 444-53 (2002), radically altered the traditional Renton
framework by imposing an additional burden on the County
to show “how speech would fare” under the new ordinance.3
Alternatively, Déjà Vu argues that the ordinance is unconsti-
tutional under the traditional Renton framework because all
the potential relocation sites are located within the County’s
industrial zones. We address each in turn.
1. Justice Kennedy’s Alameda Books Concurrence
To justify a content-based zoning ordinance that restricts
sexual and pornographic speech, Justice Kennedy wrote that
“a city must advance some basis to show that its regulation
has the purpose and effect of suppressing secondary effects,
while leaving the quantity and accessibility of speech substan-
tially intact.” 535 U.S. at 449. By adding the last clause, Jus-
tice Kennedy said he was expressing an interest in “how
speech will fare” after the ordinance is enacted. Id. at 450.
The city must have some basis to think that its ordinance will
suppress secondary effects, but not also the speech associated
with those effects. Id. at 449-50.
[1] In Alameda Books, the disputed ordinance prohibited
multiple adult businesses from operating under the same roof.
Under Justice Kennedy’s construct, the City of Los Angeles
must have had some basis to assume three propositions: “[1]
that this ordinance will cause two businesses to split rather
than one to close, [2] that the quantity of speech will be sub-
stantially undiminished, and [3] that total secondary effects
will be significantly reduced.” 535 U.S. at 451.
The first proposition mirrors the “alternative avenues of
communication” requirement under intermediate scrutiny,
3
Justice Kennedy did not join the plurality opinion in Alameda Books.
As “his concurrence is the narrowest opinion joining the judgment of the
Court,” it is the controlling opinion. Ctr. for Fair Pub. Policy, 336 F.3d
at 1161.
TOLLIS INC. v. COUNTY OF SAN DIEGO 13707
which requires that the displaced business be given “a reason-
able opportunity to open and operate.” See Renton, 475 U.S.
at 53-54. The third proposition restates the requisite “substan-
tial governmental interest” for regulating adult establishments
based on their secondary effects. See id. at 50.
[2] But what of the second proposition? Justice Kennedy’s
reference to whether the “quantity of speech will be [left] sub-
stantially undiminished” is shorthand for asking whether the
ordinance will impose a significant or material inconvenience
on the consumer of the speech. At the time of enactment, the
city must have some reasonable basis to believe that inter-
ested patrons would, for the most part, be undeterred by the
geographic dispersal of the adult establishments. See Alameda
Books, 535 U.S. at 450 (“[I]t does not suffice to say that
inconvenience will reduce demand and fewer patrons will
lead to fewer secondary effects.”).
[3] Justice Kennedy then noted that the evidentiary burden
to establish these propositions was minimal. See id. at 451-52.
He found that the City of Los Angeles had met its initial bur-
den. It had relied on one study and “common experience” to
find a correlation between adult establishments and crime,
and could reasonably infer that geographic dispersal of the
adult establishments would not necessarily decrease the quan-
tity or accessibility of the speech. Id. at 452-53. The burden
then shifted to the plaintiffs to disprove the City’s assump-
tions. Id. at 453.
[4] We reach the same conclusion here. The County’s legis-
lative record cites to a number of sources — studies and
reports from other jurisdictions, relevant judicial decisions,
and public testimony — to assert a connection between the
adult establishments and negative secondary effects. A munic-
ipality may rely on these types of sources. See Ctr. for Fair
Pub. Policy, 336 F.3d at 1168. The County could then reason-
ably infer that isolating of adult businesses to industrial zones
would have the purpose and effect of reducing crime, disor-
13708 TOLLIS INC. v. COUNTY OF SAN DIEGO
derly conduct, and property depreciation, as such zones are
located away from residential areas and have little other com-
mercial appeal at night. Déjà Vu’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 isolating adult businesses to industrial zones also
included combating increased noise and traffic. Déjà Vu’s
failure to address these considerations is fatal under the sec-
ond step of the Renton intermediate scrutiny analysis. See
Alameda Books, Inc., 535 U.S. at 438-39. With regard to
noise and traffic, Déjà Vu failed as a matter of law “to cast
direct doubt on [the County’s] rationale . . . by demonstrating
that the [County’s] evidence does not support its rationale or
by furnishing evidence that disputes [its] factual findings.” Id.
[5] We reject Déjà Vu’s contention that Alameda Books
imposed a heightened evidentiary burden on the County to
show “how speech would fare” under the ordinance. So long
as there are a sufficient number of suitable relocation sites,
the County could reasonably assume that, given the draw of
pornographic and sexually explicit speech, willing patrons
would not be measurably discouraged by the inconvenience of
having to travel to an industrial zone. See Alameda Books,
535 U.S. at 452 (Kennedy, J., concurring in judgment); see
also World Wide Video, 368 F.3d at 1195 (noting that Justice
Kennedy’s “how speech will fare” language “[c]onceptually
. . . dovetails with the requirement that an ordinance must
leave open adequate alternative avenues of communication”).
Under this scenario, the quantity and accessibility of the
speech would not be substantially diminished.
TOLLIS INC. v. COUNTY OF SAN DIEGO 13709
2. Alternative channels of communication under
Renton
To satisfy its burden under Renton, the County must pro-
pose a sufficient number of potential relocation sites to allow
Déjà Vu “a reasonable opportunity” to operate its business.
475 U.S. at 54. For a site to qualify, it “must be considered
part of an actual business real estate market for commercial
enterprises generally.” Lim v. City of Long Beach, 217 F.3d
1050, 1054 (9th Cir. 2000). If in an industrial or manufactur-
ing zone, the site must be “reasonably accessible to the gen-
eral public,” “have a proper infra-structure,” and be suitable
for “some generic commercial enterprise.” Topanga Press,
Inc. v. City of Los Angeles, 989 F.2d 1524, 1531 (9th Cir.
1993). Finally, the list must account for other relevant zoning
restrictions, such as separation requirements, that might affect
a site’s availability. Isbell v. City of San Diego, 258 F.3d
1108, 1113 (9th Cir. 2001).
If the County’s list is reasonable, the burden shifts to Déjà
Vu to demonstrate that the proposed sites are inadequate or
unlikely to ever become available. Lim, 217 F.3d at 1055.
Once “the relevant market has been properly defined,” the
factfinder must determine “whether the market contains a suf-
ficient number of potential relocation sites for [p]laintiffs’
adult businesses.” Id. at 1056.
a. Availability of relocation sites
The County proposed 76 potentially available parcels for
Déjà Vu’s relocation. Déjà Vu submitted the declaration of a
land use expert contesting the availability and suitability of
each site. After an exhaustive survey, the district court
excluded eight sites for summary judgment purposes. Fan-
tasyland, 373 F. Supp. 2d at 1132-40. In its briefs and at oral
argument, Déjà Vu did not contest any of the district court’s
13710 TOLLIS INC. v. COUNTY OF SAN DIEGO
individual determinations with respect to these remaining 68
parcels.4
[6] Déjà Vu’s argument on appeal draws on the County’s
restriction of adult establishments to industrial zoning dis-
tricts. All adult establishments must relocate to four industrial
districts: M50, M52, M54, and M58. Although presumably
available for adult establishments, none of these zones allows
for general commercial use. “Non-manufacturing uses are
restricted to those providing essential support services to man-
ufacturing plants and their personnel.” San Diego County
Zoning Ordinance § 2500; see also §§ 2520, 2540, 2580.
According to Déjà Vu, this total exclusion from commercial
zones suggests that it has not “been afforded a reasonable
opportunity to relocate.” See Topanga Press, 989 F.3d at 1521
n.5 (avoiding the question of whether “under Renton, a busi-
ness has been afforded a reasonable opportunity to relocate if
all relocation sites are within an industrial zone and no com-
mercial zones are offered.”).
[7] We disagree. Déjà Vu’s position confuses two distinct
questions. Whether or not an industrial zone permits generic
commercial business within its borders rests on a legislative
policy judgment. Asking whether an industrial zone is suit-
able for generic commercial activity examines the physical
characteristics and infrastructure of the land within the zone.
The Topanga Press analysis is concerned only with the latter.
See 989 F.3d at 1531; see also Diamond v. City of Taft, 215
F.3d 1052, 1056 (9th Cir. 2000). In Topanga Press, we held
that manufacturing or industrial zones may comprise part of
the relevant market if they “are reasonably accessible to the
general public” and “have a proper infra-structure.” 989 F.3d
at 1531. We did not hold that industrial sites are potentially
available for relocations only so long as they may be used for
commercial purposes generally. If an industrial site is reason-
4
We therefore express no opinion on the district court’s mode of analy-
sis, nor on any of its conclusions.
TOLLIS INC. v. COUNTY OF SAN DIEGO 13711
ably accessible and has sufficient infrastructure to be “avail-
able” under Topanga, it remains available even if its use for
other commercial purposes may be restricted by the zoning
law.
[8] In any case, the ordinance at issue here requires that
adult businesses be located within industrial zones. Any other
interpretation of the zoning scheme would zone adult busi-
nesses out of the county. As Déjà Vu does not challenge any
of the district court’s holdings with respect to the suitability
of any one of the 68 parcels for generic commercial use, its
argument fails.
b. Sufficiency of alternative sites
The district court determined that the remaining 68 sites, on
which eight to 10 adult entertainment businesses could oper-
ate simultaneously, were sufficient to allow Déjà Vu — the
only affected adult entertainment business in the county — an
opportunity to relocate. Fantasyland, 373 F. Supp. 2d at
1140-43. Déjà Vu does not challenge this holding, but argues
that the district court should have relied on other secondary
measurements to assess sufficiency.
[9] We agree that measuring whether the number of pro-
posed sites is sufficient to meet existing demand for sexual or
pornographic speech is one of several tools to assess whether
a municipality has afforded an adult business a reasonable
opportunity to conduct their trade. See Young v. City of Simi
Valley, 216 F.3d 807, 822 (9th Cir. 2000). Nevertheless, we
cannot identify any error in the district court’s other calcula-
tions to justify reversal.
Déjà Vu contends that the percentage of available acreage
theoretically available to adult businesses in unincorporated
San Diego County is drastically less than the amount
approved in Renton. See 475 U.S. at 53. Furthermore, it
asserts that the ratio of potential adult business sites to popu-
13712 TOLLIS INC. v. COUNTY OF SAN DIEGO
lation in San Diego County is much lower than in Renton and
eight Florida municipalities engaged in similar litigation. Yet,
Déjà Vu offers no argument or evidence showing that these
communities are comparable to unincorporated San Diego
County in size, population, or demographics. Absent such a
connection, its calculations are meaningless.
[10] It also must be borne in mind that the City of San
Diego and the other incorporated municipalities in the county
are not governed by this ordinance. The unincorporated por-
tions of the county take up the substantial majority of the land
area but only a small fraction of the population of the county
as a whole. It may fairly be presumed that most of the com-
mercial property in the county, including property suitable for
adult businesses, is located within municipal boundaries and
thus outside the territory governed by the ordinance in ques-
tion. At least where we are dealing with “unincorporated”
areas, it is appropriate to recognize the likely availability of
other locations within the same economic market in neighbor-
ing municipalities.
B. Violation of County’s General Plan
Déjà Vu also claims the zoning ordinance violates Califor-
nia Government Code § 65860, which requires that “zoning
ordinances . . . be consistent with the general plan of the
county.” The district court granted the County’s motion for
summary judgment because Déjà Vu failed to raise the claim
in its complaint. Fantasyland, 373 F. Supp. 2d at 1129.
[11] A complaint must contain “a short and plain statement
of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a). The plaintiff need not detail all the sup-
porting facts. The statement need only “give the defendant
fair notice of what the plaintiff’s claim is and the grounds
upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47
(1957).
TOLLIS INC. v. COUNTY OF SAN DIEGO 13713
On appeal, Déjà Vu refers to its allegation that “the legisla-
tive record [fails to] establish that this statute significantly
advances any ‘important’ governmental interest.” The state
law claim is purportedly encompassed within this statement.
[12] Déjà Vu’s argument is not persuasive. The above alle-
gation was made in support of the following proposition:
Defendant’s Zoning Amendment violates Plaintiffs’
and the public’s right to freedom of speech, press
and expression protected under the First and Four-
teenth Amendments to the United States Constitu-
tion and Article I, § 2 of the California Constitution
....
There is no accompanying reference to the relevant state stat-
ute and no assertion of a conflict between the ordinance and
the County’s General Plan. As a result, the County did not
have fair notice that Déjà Vu was asserting a claim under Cal-
ifornia Government Code § 65860. The district court’s grant
of summary judgment on this issue was therefore correct.
C. District Court Severance of Unconstitutional Time
Restraints
Under San Diego County Ordinance § 6930(b), any person
seeking to operate, enlarge, or transfer control of an adult
establishment must first obtain a permit from the County. The
district court found that the County’s permitting regime was
unconstitutional because it granted the licensing body an
unreasonably long period of time — 130 or 140 days depend-
ing on the calculation method — to consider a permit request.
Fantasyland, 373 F. Supp. 2d at 1143-46. The court then sev-
ered the offending time limits from the ordinance. Id. at 1146-
47. Déjà Vu now challenges the district court’s manner of
severance.
[13] We hold that the district court’s manner of severance
was erroneous. Once the offending provision is removed, the
13714 TOLLIS INC. v. COUNTY OF SAN DIEGO
text of the ordinance contains no time limits at all. A licensing
requirement for protected expression is patently unconstitu-
tional if it imposes no time limits on the licensing body. See
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 228 (1990)
(“[T]he licensor must make the decision whether to issue the
license within a specified and reasonable time period during
which the status quo is maintained . . . .”) (emphasis added).
A severance is inappropriate if the remainder of the statute
would still be unconstitutional. See Planned Parenthood of
Idaho, Inc. v. Wasden, 376 F.3d 908, 935 (9th Cir. 2004).
[14] This conclusion does not require, as Déjà Vu contends,
invalidation of the entire ordinance. The district court should
have instead severed all provisions of § 6930(b) setting forth
the permit requirement because they were not moored to a
reasonable time limit, thereby leaving the ordinance’s other
provisions intact. Owners of adult establishments would have
to comply with the substantive provisions of the ordinance,
but would not need to secure a permit prior to operation
unless and until the time limit defect is corrected. We there-
fore remand to the district court to correct its severance order
consistent with this opinion. Each party should bear its own
costs.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.