Corona Loses Appeal in Adult Bookstore Case

A Corona ordinance restricting the locations of adult bookstores was applied unconstitutionally to the city’s first and only such store, the federal appeals court in San Francisco ruled Thursday.

The U.S. 9th Circuit Court of Appeals affirmed a lower court’s decision that the ordinance, passed just two months after Helen Ebel opened the Adult Book Store in 1981, may be applied to her West 6th Street business.

In a 10-page decision, the three-judge appellate panel said Corona “did not satisfy its burden of demonstrating sufficient harm to the city to justify applying the new ordinance to Ebel’s existing business.”

The appeals court also upheld the district court’s finding that a 60-day grace period the ordinance allowed Ebel for moving her business was unsatisfactory “in light of the length of Ebel’s lease and the financial investment she had made” in the bookstore.

“I’m very happy,” Ebel said Thursday, “because I don’t think people should be told what they can read and what they can’t read, if they are of age.” Ebel said she hopes the appellate decision will persuade the city to end its extended fight against her bookstore, she said.

‘Pleased, Not Surprised’

“I’m very pleased, but I’m not surprised” with the appeals court ruling, added Roger Diamond, Ebel’s attorney. “We had the law on our side.”

The primary issue in the case was “whether Corona can, by ordinance, regulate the locations of adult bookstores within the city limits” and thus force Ebel to close and relocate her store, said Meredith Jury, the city’s attorney in the bookstore zoning case.

A few days after Ebel opened her store in July, 1981, the Corona City Council passed an emergency moratorium on adult bookstores in the city, saying it needed time to establish permanent restrictions on their locations, Jury said.

Ebel complied with the ordinance by closing her business until U.S. District Court Judge Laughlin E. Waters granted a temporary restraining order against its enforcement in August, 1981. A month later, the City Council passed a permanent zoning ordinance severely restricting the locations of adult bookstores.

Under that ordinance, an adult bookstore may operate only in certain commercial zones, generally along the city’s 6th Street and Main Street shopping districts, and must be 750 feet from any church, school or other place where children gather, such as a park.

Adult bookstores may not abut residential areas or be located within 500 feet of each other, the ordinance also states.

Move Found Impossible

The ordinance allowed Ebel 60 days to move to a legal location, but U.S. District Judge William P. Gray ruled in January, 1984, that it also left her unable to find one within Corona.

“It is not the city’s responsibility to relocate her,” Jury contended. He added that by the time of Gray’s ruling, Ebel could have found another location.

Although Gray issued no written opinion, Jury said, his ruling--affirmed Thursday by the appeals court--implied that the Adult Book Store is entitled to stay in its present location because Ebel was there before the ordinance was enacted.

City Manager James Wheaton said he does not know if the city will appeal the case. “The City Council will probably talk (to city attorneys) at the next meeting,” he said. “I assume one of the questions will be ‘What next?’ and they’ll just have to talk about it.”

In addition to granting a permanent injunction against enforcement of the ordinance with respect to the Adult Book Store, the appeals court instructed the lower court to require Corona to pay Ebel’s attorney fees.

Those fees--including interest, the cost of the lawsuit and the appeals--may amount to $80,000, Diamond said. And that figure does not include the legal costs Corona has incurred in trying to move the bookstore, he noted.

Sees Waste of Money

Ebel’s attorney accused “Corona’s politicians” of wasting tax money to portray themselves “as defenders of the public morality.”

Besides the ordinance and ensuing federal court fight, Corona is also battling the Adult Book Store in state courts, where the city is asking to have the bookstore declared a public nuisance and force its closure.

The city maintains that “all of (the store’s) stock and trade is a public nuisance because all of its stock and trade is obscene, under California law,” said James Clancy, the Sun Valley attorney representing the city in that lawsuit.

In the state suit, the two sides most recently presented arguments on pretrial issues to the California Supreme Court in June.

Diamond has asked the court to throw out Clancy’s subpoena of more than 200 items from the store, claiming it “violates (Ebel’s) Fifth Amendment right against self-incrimination.” The attorney representing the bookstore also asked the state’s highest court to remove Clancy from the case because “he’s not the city attorney. . . . Only the city attorney can maintain that action,” Diamond said.

Meanwhile, Ebel’s five-year lease on the 6th Street storefront is to expire in March, 1986. “Her lease will be up before this case is resolved,” Diamond said.

If Corona were to drop the public-nuisance case and pay Ebel’s legal fees and damages, “she may very well decide not to renew her lease,” her attorney suggested.

But as long as the Corona City Council is determined to drive her store out of town, Diamond said, Ebel will continue her fight to keep it open.