Sex-Oriented Store Poses a Legal Problem for Escondido

The man seemed a little confused earlier this week when he entered a Grand Avenue book store with his young daughter--perhaps on a final Christmas shopping expedition--and was immediately asked to leave.

“Sorry, no children are allowed inside,” said the male sales clerk with curly brown hair, wearing a coat and tie and what appeared to be a diamond stud in one ear.

The new store seemed, at first blush, to be innocent enough. Little did the customer realize that its short history has been a stormy one:

The store’s owner has been arrested, the city has gone to court to have the store closed, the owner has counter-sued the city in federal court, and adults and teen-agers have walked the sidewalk in front, carrying picket signs with messages like “End Mind Pollution” and “We Want a Porn-Free Community.”

If nothing else, everyone agrees that the resulting media attention has given the store more free publicity than it could ever afford to buy.

Inside, customers might notice a magazine rack on the side wall, featuring the most recent editions of such magazines as Omni, Southwest Art, The Atlantic, San Diego and the various weekly news magazines.

There are Stephen King best-seller paperbacks, cute posters of teddy bears, coffee mugs with romantic sayings and sexually provocative greeting cards that one could find in many gift shops.

As a customer browses further, however, he comes across old hardback books (the kind of esoteric and fiction selections that are popular garage sale fare; any title, $1) and stacks of used magazines, the likes of TV Guide, Reader’s Digest, Boys’ Life, Popular Science, National Geographic and Time.

In the middle of the store are boxes of water pipes, displays of bikini underwear, shelves of sex toys, X-rated video movies, massage creams and sex-oriented paperbacks.

Toward the back are several racks of mainstream girlie magazines such as Playboy and Penthouse. But they seem downright tame and are almost lost amid the stacks upon stacks of sex-oriented magazines with graphic, uncompromising covers and titles too explicit to print.

And at the far rear of the store are 12 small TV-screen booths, where 25 cents gives the customer a few minutes with Basil Rathbone in “Dressed to Kill” and Vic Morrow in “Men in War”--or “Debbie Does Dallas--The Final Chapter” and Marilyn Chambers in “Private Fantasies 2.”

This place is the F Street Bookstore, which is driving City Hall to distraction after having opened up--illegally, the city says--in an area that the city hopes will, within a few years, become the crown jewel of North County’s retail and business community.

Despite City Hall’s charge that the store opened its doors illegally, the business has remained opened 24 hours a day since its controversial debut on Dec. 16. The city’s request for a temporary restraining order to close the store will be heard by Superior Court Judge Larry Kapiloff in Vista, perhaps as early as Friday. And store owner Fais Ondor and building owner Gojko Vasic are scheduled to appear in Vista Municipal Court on Jan. 16 to face a criminal misdemeanor charge that they have violated the city’s zoning ordinances regulating where such businesses can be located in Escondido.

On paper, the issue seems clear-cut.

In July, the city passed a zoning law allowing adult businesses to locate in commercial parts of the city as long as they were more than 500 feet away from churches, schools, parks and residential neighborhoods.

The city previously had a zoning law that banned adult businesses from locating within 1,000 feet of such public facilities. But as the city has grown and filled with homes, parks, schools and churches, there was virtually nowhere left in the city where an adult business could locate.

When the only adult bookstore at the time challenged the law, a federal judge ruled in July that the 1,000-foot buffer was so restrictive as to be unconstitutional and ordered the city to amend the zoning law. The city then cut the buffer zone in half, thereby providing scores of possible locations for adult merchandise outlets.

The new zoning ordinance opened up much of the downtown area, including Grand Avenue, to the adult businesses. But when the city got word that Fais Ondor planned to open an adult bookstore on Grand Avenue--in the downtown revitalization area--still another ordinance was adopted in November restricting adult businesses to commercial locations along Valley Parkway, Mission Avenue and Escondido Boulevard. Even so, there remained 46 locations in the city available to adult business operations.

An “adult business” has been defined by courts as one in which more than 50% of its stock in trade is for adult-only use.

Tom Homann, the attorney representing the F Street Corp., which owns or has an interest in the six F Street Bookstores in San Diego County (three in San Diego, one in El Cajon, one in Chula Vista and the newest one here) maintains the store can legally do business on Grand Avenue because less than 50% of its stock in trade is adult oriented.

“My clients would prefer to operate a store which specialized in adults-only merchandise, sexually oriented merchandise,” he said. But since such businesses have been banned from the busy downtown street, the hybrid store was opened to be in conformance with the city zoning, he said.

He maintains that the store does not dedicate more than 50% of itself to adult merchandise, whether measured by square footage, the number of items for sale or the value of those items.

He points to the wide selection of general-interest magazines and books, the various gift items and even the fact that out of 12 movie selections in the back of the store, only five are sexually explicit.

City officials say the store is a sham, a poorly disguised sex shop despite its offerings of general interest matter.

“It’s almost beyond belief they would contend that (general interest theme) seriously,” said John Serrano, the assistant city attorney who is prosecuting Ondor. “They put in all those old books and magazines as filler, to circumvent the intent and spirit of the law. I don’t know what a judge will do with that argument, but it’s the city’s position that the store is a sham. It’s nothing but an ancient magazine and dirty magazine store, and nobody’s going in there to buy old issues of Boys’ Life or Popular Science.”

Homann unabashedly acknowledges his client’s efforts to take advantage of the statewide loophole in the law defining “adult business” by selling general interest--albeit old and yellowed--magazines and books so that the adult material does not constitute a “preponderance” of the store’s business.

“I get a little hot when people accuse me of exploiting loopholes,” Homann said. “If I were advising E. F. Hutton or a major corporation of how to avoid running afoul of securities regulations, and I told them a way of doing that, nobody would accuse me of exploiting a loophole. Ed Meese would think I was dandy. And if I was a tax lawyer, people would think it was respectable if I helped them find legal ways to not pay so much in taxes.

“Well, it’s equally respectable for me to advise my clients on how to avoid violating the law in Escondido. I don’t write the laws. I just read them. If Escondido doesn’t want a store that specializes in that kind of (sexually oriented) stuff, then we’ll give them a store that is designed specifically so a preponderance of it is not sexually-oriented,” Homann said, adding that he spoke on behalf of the book store.

Homann’s attitude leaves city officials steaming mad.

Mayor Ernie Cowan said, “What frustrates me more than anything is that a store--and it doesn’t matter if it’s this one or a religious bookstore or a flower shop--has openly defied the legal direction of the city” after the city had said the store couldn’t locate on Grand Avenue.

“People think we’re reacting so strongly because it’s an adult bookstore. That’s true to a degree, but more importantly, here’s a business that is openly defying us. And the old books and magazines he’s got? They’re not to sell. They’re just there to circumvent the intent of the law.”

City officials contend that in addition to the overall zoning violation, the store is violating another law by putting doors on the individual booths where a customer can, for 25 cents, see about two minutes’ worth of any of 12 movie selections.

“Peep show booths are often used by prostitutes and criminals to hide from police, and present natural places for both homosexuals and heterosexuals to congregate and seek illicit sex, which is often committed within the enclosed booths,” says a city ordinance regulating peep shows.

Cowan and others in Escondido say they hope that, all the legal maneuvering notwithstanding, the F Street Bookstore will simply go out of business because there’s no market for it in town.

“I’d like to think that the people in this community--and not the lawmakers--will determine the success of failure of the business,” Cowan said. “We (city officials) will do as much as we can, but ultimately it’s the consumers who will dictate the success or failure of this business, and it’s my hope that our community won’t patronize it.”

Among those who are working for the bookstore’s commercial downfall is an organization called Citizens Opposing Pornography, which was organized several months ago.

The catalyst for the group’s formation was the establishment of another adult book store on South Escondido Boulevard, a store the city had maintained was also operating illegally because it was located within 1,000 feet of private homes and a preschool.

The group’s supporters are now picketing at random hours in front of the F Street Bookstore.

Fred Vaught, the group’s spokesman, said it is opposed to all businesses which sell sexually oriented material--including liquor stores, convenience stores and video movie outlets--and that the F Street operation is now taking the brunt of its anti-pornography demonstrations.

“The pornography industry does not care about Escondido as a whole, or its welfare,” Vaught said. “It extracts blood money from the community in the form of selling materials to people who have human weaknesses and who are no longer satisfied by normal sexual relationships between a man and woman and who, instead, seek out sexual sensationalism.”

He acknowledged that the group’s picketing in front of the store--which on occasion brings rubber-necking motorists almost to a standstill--is bringing additional publicity to the business.

“But we think the public sentiment we’re directing against the store outweighs the publicity we’re giving the store,” he said. “Because of the picketing, we’re getting organizations and individuals contacting us, asking how they can support us.”

Pickets outside the store say that about 80% of the shouts and honks from passing motorists are supportive, that only a few are derisive.

One of the pickets earlier this week was Brad Stoddard, who organized a Mormon youth group to join him in carrying anti-pornography signs.

Stoddard said the picketing is reminiscent of the time eight years ago when he and others picketed an adults-only bookstore in Vista. The store eventually went out of business.

“The way we’ll win this battle is by cutting off the store’s purse strings. These kinds of places thrive on people who don’t really want to be seen going inside. Maybe our presence outside will cut down that kind of business traffic.”

One of the customers inside the store said he did not understand the fuss over the place. “People still think this is a little town of 500. They need to realize they’re not a little town anymore. There are so many other things they can be worried about,” he said.

Next door, Dick Miller, owner of Carpet Mine Co., said he was frustrated both by the book store and City Hall. “My business has depreciated because I’m next to an F-rated book store,” he complained. “I took a businessman out to lunch the other day, and we walked down the (back) alley because I didn’t want to take him in front of the book store and through the picketers.”

Miller said he was angry at the city as well for allowing the business to move in. Somehow, he said, City Hall should have been able to stop t.

Not so, said City Manager Vern Hazen.

“We’re taking as aggressive a stand as the law allows. No stone is being left unturned and nothing is being left for chance,” he said. “But this is a First Amendment issue and has to be handled carefully.”

While city officials were aware of the possibility that the book store was going to open, “We couldn’t play Gestapo and stop him just because he was putting up shelves,” Hazen said.

The owner gave assurances to City Hall that he wouldn’t open an adult bookstore until the law was cleared up, Hazen and Serrano said. Then, literally overnight, the store was opened.

“When they did open it, we immediately took action by filing the lawsuit and getting an arrest warrant because of the zoning violation,” Hazen said. “I don’t know what else we can do. We can’t board the door closed. The Gestapo went out with World War II and we’re not going to reinstate it here in Escondido.”

Ondor was arrested Friday in San Diego on suspicion of violating the zoning law and immediately released from jail on his own recognizance. He faces a maximum fine of $500 and a six-month jail sentence if he is convicted.

Homann said it was “ludicrous” that the city would arrest his client on a zoning violation.

Serrano, on the other hand, argues that Ondor violated the law “with knowledge and intent” and should pay the consequences.

Vaught, meanwhile, said he hoped the business would simply die a commercial death. “Our city attorney will put up a valiant fight, but in the end it will be in vain. The pornography industry has been very successful in getting around zoning ordinances.

“In the end, our battle will be won on the street. That’s where it should be won, by the citizens. That’s who’s really responsible for the rise and fall of any society--its citizens.”