Whittier Undeterred by Legal Setback : Search for Adult-Business Law Continues

Only hours after the city lost its last legal fight over the constitutionality of an ordinance regulating X-rated businesses, City Manager Thomas G. Mauk was enthusiastically talking about a new way to keep adult entertainment out of Whittier.

“I think it was and continues to be an important issue in this community,” Mauk said of the battle that began 12 years ago, after the Pussycat Theater in Uptown Whittier began screening adult movies. “I think we’ll come right back with some recommendations for a new ordinance.”

Appeal Rebuffed

This week, the U.S. Supreme Court refused to consider Whittier’s appeal of a federal court ruling that the ordinance was unconstitutional because it would have effectively forced the city’s adult businesses out of town.

In 1977, when the City Council first passed the ordinance, there were about 15 adult businesses in Whittier. Now, there are none. The Pussycat, the last remaining X-rated business, closed after being damaged in the October, 1987, earthquake and its owners say it will switch to general audience movies when it reopens in about six months.

Yet Whittier officials are determined to continue the battle that has cost the city close to $500,000 in legal fees. Mayor Victor A. Lopez says it is important to keep Whittier, a 101-year-old city with Quaker roots, “free of those kinds of things” in the future.

“I’ve got eight grandkids here and I want this to be a nice place for them to live,” Lopez said. “I’m ready to fight for this principle. . . . People have died for a lot less principle than that.”

Jonathan Coda, president of theater owner Walnut Properties Inc., called the battle “a total waste of taxpayers’ money.” Whittier has spent about $300,000 on the case, and the Supreme Court’s decision means the city will also have to pay Walnut’s court costs of $150,000 to $200,000, Mauk said.

“They want to go more, more, more?” Coda asked when told of Whittier’s plans for a new adult business ordinance. “Why don’t they just forget about it and use the money to improve their city?”

At issue is a zoning ordinance that would have prohibited businesses from selling sexually explicit material within 1,000 feet of churches or schools and within 500 feet of residences. The City Council passed the ordinance in 1977 after Walnut Properties bought the old Wardman Theater in the heart of the Uptown business district and began showing movies that included “Take My Body” and “Things My Mother Taught Me.”

Such risque fare raised the eyebrows and the ire of local residents, some of whom began picketing the theater. The ordinance passed by the City Council would have forced the Pussycat to move since it is within one block of four churches, and would have affected another 15 or so adult businesses in town during the late 1970s. The other businesses either closed or moved in the four or five years after the City Council adopted the adult business ordinance, Mauk said.

Walnut Properties, which owns a statewide chain of adult theaters, immediately sued to block enforcement of the ordinance, beginning a legal battle that ended Monday when the Supreme Court refused to consider the case. The refusal meant a 1988 U.S. 9th Circuit Court of Appeals court ruling invalidating the ordinance will stand.

“We are thrilled to death,” Coda said. “It’s a victory not just for Walnut Properties, but for the people who choose to go into an adult theater.”

Walnut Properties officials believed they were through fighting Whittier in 1985, when a panel of 9th Circuit Court judges decided the ordinance was unconstitutional because the city did not provide justification for the 1,000-foot limit. But in 1986, the U.S. Supreme Court heard a similar case involving the Seattle suburb of Renton and decided that such limits were constitutional as long as there were alternate sites for adult businesses.

The appeals court, ordered to reconsider Whittier’s ordinance in light of the Renton decision, found a “glaring” absence of alternate sites in Whittier.

“Not only does it effectively deny (the theater owner) a reasonable opportunity to open and operate an adult theater within the city,” the 9th Circuit Court opinion said, “but it also would force the closure of all adult businesses existing at the time the ordinance was passed.”

New Ordinance Mulled

City Manager Mauk said Whittier may now try to regulate adult businesses through an ordinance that would require owners to obtain a special permit from the City Council. The new ordinance would include the 1,000-foot limit upheld in the Renton case, Mauk said, but would increase the number of alternate sites for adult businesses by allowing exceptions through a special permit.

Walnut Properties attorney Stanley Fleishman predicted that such an ordinance would be rejected by the courts. “What they’re trying to do is say there will not be any adult businesses in the city of Whittier,” Fleishman said. “The reason they keep on failing (in court) is because they’re trying to do what they’re not allowed to do constitutionally.”

Although Walnut’s court challenges have kept Whittier from enforcing its adult business ordinance, Fleishman noted that the controversy has accomplished what the city set out to do.

The legal fight is “not just a waste of money,” Fleishman said. “They have driven everybody out.”