Stanton’s longstanding crusade to rub out the only adult bookstore in town sputtered to a halt Wednesday after a state appellate court found an ordinance regulating the business to be unconstitutional.
The decision by the 4th District Court of Appeal in Santa Ana leaves EarMark Books, owned by Ginger Cox, safely ensconced in a shopping center on Beach Boulevard.
The store sells sexually explicit books, magazines, toys and videotapes, and houses a video arcade. It has been the site of hundreds of protests supported by Protestant and Catholic clergy and the target of at least three attempts by the Stanton City Council to force it out of town.
“We have to live with them now,” conceded City Atty. Thomas Allen. “That’s the bottom line.”
Stanton’s 1985 ordinance limited adult bookstores to areas zoned for commercial activities and banned any within 500 feet of schools, churches or residential areas, or within 1,000 feet of another adult establishment.
In the past, such restrictions have been found not to violate constitutionally guaranteed free speech rights. But in the Stanton case, the court agreed with a trial judge’s earlier decision that the ordinance wrongly banned such businesses from the city.
“Stanton can point to a total of only six sites where, regardless of availability, Cox could locate her business,” the appellate court opinion says. Each was already occupied by another business.
“We videotaped those (six) locations and showed the judge that the places were totally inappropriate,” said Roger Jon Diamond, a lawyer for Cox known for defending bookstores in free-speech cases. “One, for instance, was already occupied by a big warehouse, another by a service station.
“When you try to apply these (distance) restrictions to a small city, frequently what happens is that there is no place for you to go,” Diamond said.
The three-judge panel found it particularly troublesome that Stanton had attempted to use the ordinance to assure that no red-light district could develop.
“Ordinances with a requirement that adult businesses be separated by a specific distance from other such businesses have frequently failed to pass constitutional muster if the end result leaves little opportunity for the businesses to operate,” the opinion says.
Stanton’s 4-year-old drive against the bookstore at 11422 Beach Blvd. was noted in the opinion. Shortly before the city filed suit seeking to shut down EarMark, the council passed another ordinance on an emergency basis specifically attacking the 15 enclosed video booths in the store. Then, shortly before the trial, the council--again on an emergency basis--decided to slightly ease restrictions on where the shop could move.
Appellate judges characterized the council maneuvers as a “Keystone Cop legislative chase of Cox’s sex shop.”
Attorney Diamond hailed the decision as a victory for free speech.
“Cities such as Stanton may not, under the guise of adult zoning ordinances, totally ban adult bookstores and arcades,” Diamond said. “In the abstract, cities have a right to adopt such ordinances. But the practical effect may not be to totally prohibit or to unduly restrict where these businesses may be located.”
At the store Wednesday, a clerk said it was business as usual. Cox was out of town and could not be reached for comment.
Despite the ruling, the city may yet challenge some of the attractions in the store.
Allen said he believes that the portion of the city ordinance banning enclosed booths where sexually explicit videos are shown is valid.
“There are at least 15 booths with coin-operated machines,” Allen said. “The patron has the ability to select between several different sexually explicit, X-rated films. He can lock the door and have total privacy.”