National City Smut Law Is Overturned; Closed Adult Bookstore Will Reopen
A National City ordinance that since late 1989 has shut down the town’s sole adult bookstore is an unconstitutional ban on the sale of sexually explicit materials, a state appellate court ruled Tuesday.
Though cities and towns have long been allowed to draft zoning rules directed at adult bookstores, those rules must account for the protection the Constitution affords for free speech, even if that speech consists of sexually explicit magazines or books, the 4th District Court of Appeal said.
The National City rule simply goes too far because it made it practically impossible for Chuck’s Bookstore to stay in business, a three-judge panel of the court ruled in a unanimous opinion.
Store owner Steven Wiener actually had to close the shop about 18 months ago, after he lost a trial on the ordinance in San Diego Superior Court. He said Tuesday he planned to open again “as soon as I can get the store ready,” probably in four or five days.
Wiener’s Beverly Hills lawyer, Norman R. Atkins, said the ruling was “wonderful.” He charged that National City officials enacted the ordinance as a “subterfuge, to get around the Constitution” and “never intended to actually have a reasonable ordinance.”
Deputy City Atty. Linda Harter could not be reached for comment.
The decision Tuesday resulted from National City’s second try at an ordinance that would close Chuck’s. In 1983, the 4th District court struck down an ordinance that disallowed adult businesses in the city’s central business district, saying it also was unconstitutional.
During city redevelopment, Chuck’s moved to its current location, 929 National City Blvd. The city, meanwhile, passed a new zoning rule that said adult-oriented businesses could not be situated within 1,500 feet of a school or park, or within 1,000 feet of anyone’s house.
Several quaint, century-old brick houses are about 75 feet away from the store. The rule had the practical effect of barring adult bookstores from any commercial zone.
After a three-day trial in late 1989 before Judge Vincent P. Di Figlia, the new rule was declared legal, and Chuck’s was closed.
An exception to the rule, meanwhile, said that an adult bookstore was suitable for enclosed shopping malls. That exception is the rule’s downfall, the 4th District court said, reversing Di Figlia.
Judge Charles W. Froehlich Jr. said the U.S. Supreme Court has given cities leeway to restrict the locations where adult-oriented businesses may set up shop. However, to be legal, an ordinance must allow an adult bookstore such as Chuck’s practical alternatives if zoning changes force it to move.
Since shopping mall owners have an “apparent aversion” toward adult entertainment and since it would cost Wiener at least $1 million to build his own mall, the alternative of locating in a shopping mall really isn’t reasonable, meaning the rule isn’t legal, Froehlich said.
Judges Richard D. Huffman and Gilbert Nares concurred in the opinion.