Court says Encinitas adult-business law is constitutional

By: SCOTT MARSHALL - Staff Writer | Wednesday, January 31, 2007 10:50 PM PST ∞

SAN DIEGO ---- A state appeals court ruled Tuesday that an Encinitas ordinance regulating adult businesses in the city is constitutional, but a court order prohibiting an F Street store from selling any adult material is not.

Although a three-judge panel of the Fourth District Court of Appeal overturned that court order, it also concluded that the F Street store ---- part of a chain of stores that sell adult merchandise ---- fits the definition of an adult business contained in the city's law and is subject to the ordinance's restrictions.

The city's attorney, Deborah J. Fox, said the city is "thrilled" with the court's decision.

"We're pretty excited," Fox said. "We think the decision was a great victory for the city of Encinitas."

Andrzej Zmurkiewicz, the attorney for F Street, could not be reached for comment.

F Street obtained a retail business license from the city in 2001 for a "gift and novelty store" at 704 N. Coast Highway, but a city inspection of the store prompted a letter to the company advising it that an "adult business" cannot be operated there, the appeals court opinion stated.

F Street remodeled and opened the store in 2003. Another city inspection in response to complaints from the public about the store resulted in the city again instructing the store to cease operating as an adult business, according to the appeals court opinion.

Legal action soon followed. The city sued F Street, and the store alleged the city was violating its constitutional rights.

In October 2003, Superior Court Judge Lisa Guy-Schall granted the city's request for a preliminary injunction prohibiting F Street from operating as an adult business until the case could go to trial.

After a two-day trial in 2005 without a jury, Guy-Schall ruled the city's law was constitutional and that F Street was an adult business. Guy-Schall also issued a court order permanently prohibiting F Street from selling any adult merchandise, the appeals court opinion stated.

The city's ordinance defines an adult retail business as having "adult oriented material" as "a regular and substantial portion of its stock and trade."

The city law also prohibits adult retail businesses from operating within 750 feet of residential zones, parks, religious institutions, schools or day care facilities. F Street's Encinitas store sits 24 feet from the nearest home, and 575 feet from a preschool.

Zmurkiewicz argued to the appellate court that neither the city or the trial judge supplied the store with a definition of what constitutes "regular and substantial." He also said the city and the court ignored changes the business made to comply with the city, including dropping the amount of its adult inventory from 12 percent to only 5 percent of what the store offered for sale.

The appeals court justices wrote in an 18-page opinion that F Street did not dispute that 25 percent of its revenue in a three-month period came from adult videos and DVDs alone and that those sales "are sufficient to qualify it as an 'adult business.' " The decrease in the percentage of adult inventory at the story occurred only after the Superior Court's preliminary court order against the company was issued in October 2003, the appeals court opinion stated.

The appeals court also ruled that California courts have upheld the use of the word "substantial" as not being too vague, and that F Street failed to show that the city applied its law unequally among businesses that sell adult merchandise.

The permanent injunction barring F Street from selling "any" adult material, however, violated the First Amendment's free speech protections, the appeals court ruled.

A Superior Court judge can hold more hearings on the "proper scope" of the injunction by considering whether the adult items sold at F Street would be considered "obscene" or to define the words "regular and substantial" in the city's law, the appeals court ruled.

-- Contact staff writer Scott Marshall at (760) 631-6623 or smarshall@nctimes.com.

Links:

http://www.courtinfo.ca.gov/opinions/nonpub/D047107.PDF