Important Guidelines Expected : High Court to Rule Soon on Adult Business Zoning

Along a busy downtown street in this suburban community, the marquee of the Renton Theatre invites passers-by to come watch “Three Adult Hits.” If the city had its way, however, the theater and its steamy fare would be in a largely vacant, 520-acre industrial site along with, among other things, railroad tracks, oil storage tanks and a sewage treatment plant.

The City Council, reacting to residents’ concerns about crime, economic decline and “moral degradation,” has approved an ordinance designed to keep such establishments a safe distance from schools, parks, churches and residential areas.

“We could see these X-rated theaters making our little town here into a strip of sexually oriented entertainment, bringing everything from peep shows to prostitution,” said Charles Slothower, an aircraft engineer who is co-chairman of Citizens for a Quality Community.

The ordinance, however, was struck down by a federal appeals court in San Francisco, and now the city has taken the case to the U.S. Supreme Court in a widely watched legal conflict between local zoning authority and the right to free expression.

Ten years ago, the high court allowed the city of Detroit to impose an “anti-Skid Row” ordinance to force dispersal of adult theaters, bookstores and other such businesses. Since then, several other municipalities’ attempts to regulate the location of such establishments have been thrown out by federal appeals courts, on grounds that they sought to inhibit free expression.

A ruling in the Renton case, expected soon, could produce important new guidelines for permissible regulation of adult establishments and answer legal questions that the court left open in its 1976 decision.

The impact of a new ruling could be felt widely as more and more American cities find themselves faced with the spread of adult businesses. The city of Whittier, Calif., for example, has asked the justices to review a federal appellate panel decision striking down its ordinance controlling adult establishments.

Seventy-five California cities, including Los Angeles, have filed a brief backing Whittier, asserting that recent court decisions are erecting “virtually insurmountable barriers” to local efforts to regulate sex-oriented businesses.

Crucial Test Case

The city of Renton is being supported by the National League of Cities and other governmental groups that see the case as a crucial test of the ability of smaller communities, in particular, to use zoning powers to protect their land values and social environments.

“In a smaller place, an adult establishment basically affects the whole town,” said Benna Ruth Solomon, chief counsel to the State and Local Legal Center in Washington. “There are apartments or homes mixed right in with businesses, so an adult theater downtown can permeate residential areas as well.”

The lawyer for the theater in the case, as well as civil libertarians and book publishers, charge that the Renton ordinance is just a thinly veiled attempt at censorship that stifles constitutional rights under the guise of zoning.

“If such ordinances can be imposed any time city officials find a threat of ‘moral degradation,’ they could well try to ban the tabloid magazines that are sold at grocery store counters,” Jack R. Burns said. “Most cities show no regard for the First Amendment when it is politically expedient.”

Renton authorities deny that they are suppressing free expression. They point out that, if the ordinance is upheld, the theater will still be free to offer a different sort of film at its present location or to continue to show sexually explicit movies at the industrial site. Officials point out that an adult theater in the northern Washington town of Point Roberts (population 250) attracts 1,500 customers a week.

“People who have a taste for this particular form of movie will seek it out,” City Atty. Lawrence J. Warren said. “There’s all sorts of land available, in the permissible area here, that’s undeveloped. They can build a theater there that would be just as accessible and just as profitable as one downtown.”

Suburb of Seattle

Renton, a city of 32,200 people, is near Seattle and not far from the Boeing aircraft manufacturing company. Commercial and residential properties are generally clustered within the community’s 15.3 square miles, along with 18 parks, 21 schools and 62 churches.

In 1980, Renton officials, concerned about the secondary effects of adult-type businesses on Seattle and other cities, began to consider what they should do when such establishments sought to locate in their community. In extensive hearings, witnesses expressed widespread concern that adult establishments might inevitably bring with them the increased crime, transients, traffic congestion and economic decay that other cities had suffered.

In 1981, the city approved an ordinance prohibiting adult motion picture theaters within 1,000 feet of residential areas, parks and churches, and within one mile of any school. Later, another ordinance reduced the permissible distance between an adult theater and a school to 1,000 feet and established a 520-acre zone for such theaters.

Meanwhile, Playtime Theatres Inc. bought two movie houses in Renton with the expressed intention of showing sexually explicit films in at least one of them--the Renton Theatre--within the prohibited zone. Playtime brought suit challenging the ordinance, beginning a three-year legal battle in federal and state courts.

Appellate Court Ruling

The federal appeals court ruled against the city in 1984, finding that it had improperly based its ordinance on the experiences of other cities and had failed to prove that the measure was not intended to suppress free expression. The 520-acre site did not offer the theater a usable location, the court found.

In its appeal to the Supreme Court, (City of Renton vs. Playtime, 84-1360), the city argued that the ordinance represents reasonable regulation with only minor restriction of free expression.

Playtime replied that the ordinance is improperly based on the content of the movies to be shown, a violation of the First Amendment, and that the city, by restricting such establishments to an “industrial wasteland,” would drastically impair public access to the theater. If such ordinances do not meet the high standard of serving a “compelling” or “substantial” governmental interest, Playtime said, they must be struck down.

The city and its allies stress the importance of the issue to communities. In a “friend of the court” brief, the State and Local Legal Center, representing half a dozen governmental groups, pointed out that of seven restrictive zoning ordinances reviewed by federal appellate courts in recent years, only one--from Peoria, Ill.--has been upheld.

(A Seattle ordinance limiting adult movie houses to a 250-acre area in a city of nearly 500,000 people was upheld by the Washington state Supreme Court.)

Arguments for Restriction

E. Barrett Prettyman Jr., a Washington, D.C., lawyer representing the city of Renton, told the justices during oral argument that small communities such as Renton are confronting an increasingly serious problem.

“These adult theaters are proliferating,” Prettyman said. “They are moving into areas . . . sort of out on the edges, or perhaps right in the middle of downtown. They’re going all over now.”

Playtime’s position is backed by the American Civil Liberties Union, which argued that the Renton ordinance--unlike other municipal efforts to disperse or concentrate adult theaters--in effect banishes such establishments to an area that is unsuitable for commercial use. The Renton ordinance’s effect on free expression is “much more severe” than that of the Detroit ordinance, which merely barred any adult theater from locating within 1,000 feet of another, the ACLU told the Supreme Court justices.

An apparently skeptical Chief Justice Warren E. Burger asked whether the perceived problem was “the type of people” attracted to such theaters. Burns, representing Playtime, said there was no evidence that the movie house would attract “any other type of people than those in this courtroom.”

The Renton Theatre has been allowed to operate at its downtown location until the high court rules in the case. By accounts from both sides, the theater has drawn small audiences and, while some neighborhood businesses and residences have changed hands, there has been no sign of significant economic impact on the community.

Fears Haven’t Materialized

“We haven’t seen these effects to date,” said Slothower, the spokesman for the citizens’ group. “But there can be other effects that aren’t so obvious. When young, impressionable children reach a certain age, they begin to be influenced by outside sources, those beyond the family. We want to make sure those sources hold the same values we do.”

Burns said that he believes the ordinance not only is illegal but a waste of time and effort as well. “Any perceived evils have not materialized,” he said. “The city spent a lot of taxpayers’ money on something that hasn’t amounted to a hill of beans.”