Law on Adult Businesses Flunks Court Test

A federal appeals court has ruled that a Whittier ordinance regulating adult businesses is unconstitutional, bringing an almost certain end to an expensive 11-year battle to get rid of the city’s only X-rated movie theater.

Ironically, the ruling by the U.S. 9th Circuit Court of Appeals came a few months after the theater owner, Walnut Properties Inc., announced that Whittier’s Pussycat Theater was switching from adult movies to feature films. The 1930s theater, which has been closed because of damage from the Oct. 1, 1987, earthquake, is scheduled to reopen in a few months.

Despite the change in movie format, Walnut Properties attorney Stanley Fleishman said he was pleased by the ruling.

“Very often, zoning is used as a pretext to engage in censorship,” said Fleishman, who represents Walnut’s statewide chain of 48 movie houses, including 33 adult theaters. “It’s good when a court can say in reality this is not a zoning problem but an attempt to keep out constitutionally protected speech.”

Fleishman said Walnut is not likely to revert to the Pussycat’s X-rated format.

Despite mounting court costs, Whittier City Councilman Myron Claxton said the city did the right thing in fighting for the ordinance.

“It’s the principle of the thing,” Claxton said. “We didn’t feel it was appropriate to have an adult theater in that area.”

In 1977, Walnut bought the Wardman Theater in the Uptown business district and began showing adult movies. Residents immediately began picketing the Pussycat, and city officials feared the controversy would drive business from the Uptown’s multimillion-dollar redevelopment projects.

One month later, the city passed an ordinance banning adult businesses within 1,000 feet of a church, school, park or other adult businesses, or within 500 feet of residential lots. The Pussycat, which was Whittier’s last adult business, is less than 1,000 feet from a church.

Walnut immediately sued the city, beginning lengthy legal battles at both the state and federal court levels.

The panel of three circuit judges said the ordinance effectively blocked the 13 massage parlors and adult bookstores then in Whittier from operating by leaving only three areas where the businesses could relocate.

“To hold, as the city urges, that there are adequate alternatives available for expression of this sort would make a mockery of First Amendment protections . . . ,” Circuit Judge Procter Hug Jr. wrote.

Other cities, such as Long Beach and Los Angeles, have enacted similar ordinances, but have fared better in the courts because they offered a substantial number of alternate locations for adult businesses. Long Beach had tried to shut down the X-rated Lakewood Theater until this year, when owner Walnut Properties converted to a feature-film format.

Officials Not Liable

Although the 9th Circuit Court of Appeals ruled against the Whittier ordinance, it ruled that City Atty. Robert Flandrick and Planning Director Elvin Porter could not be held personally liable in the case. Walnut had sued Flandrick and Porter, charging that the two had sanctioned the ordinance knowing it was unconstitutional.

Given the 9th Circuit Court’s lack of precedent in considering this type of ordinance, the court ruled that a reasonable person would not have known the ordinance amounted to a constitutional violation.

The court also ordered the city to pay Walnut Properties’ legal fees. Fleishman would not specify the amount. Whittier has spent $221,700 defending the ordinance.

Whittier officials thought they had lost their legal battle in 1984 when the same appeals court invalidated the city’s adult business ordinance. But less than two years later, the U.S. Supreme Court upheld the constitutionality of a similar adult business ordinance in the Seattle suburb of Renton. The Circuit Court then sent the Whittier case back to U.S. District Court for another hearing.

Despite the Renton ruling, a federal district judge decided that Whittier’s ordinance still was unconstitutional, and the 9th Circuit Court’s most recent decision upheld the lower court’s ruling. Both ruled that the Renton decision was not applicable because Renton offered a larger number of alternate sites where adult businesses could relocate.

Flandrick and Whittier City Manager Thomas G. Mauk were unavailable for comment, but city officials have said the appeal to the circuit court would probably be the last. Mauk had said in a previous interview that the Supreme Court would be unlikely to consider another adult business case only two years after the landmark Renton case.

Fleishman said he would be surprised if the city appealed. “This should settle it once and for all,” he said.