Cities Seek Right to Move Adult Shops : Pornography: State Supreme Court is asked to overturn an appellate ruling that said adult bookstores’ rights were violated because they might be forced out of business.

San Diego, National City and other California cities asked the state Supreme Court on Tuesday to give municipalities more power to force adult bookstores to relocate, even if it could put the stores out of business.

The court, hearing arguments in a test of free speech against efforts to curb crime and blight, was urged to overturn a 1991 appeal court decision striking down a National City zoning ordinance on the grounds the stores were not provided with economically practical alternative sites.

“It’s not up to the cities to become business partners with adult entertainment establishments and find them places that are going to make them money,” National City Assistant City Atty. Linda Kaye Harter told the justices. “That’s something that cities are not equipped to deal with.”

The cities of San Diego, Los Angeles and more than 50 others joined in a brief backing National City, warning that few cities could effectively enforce pornography regulation ordinances if required to guarantee commercially viable locations. Almost all cities in the state have enacted zoning laws restricting adult establishments.

But attorneys for a bookstore challenging the ordinance asked the justices to uphold the appeal court ruling. The improper and thinly disguised purpose of the ordinance was to drive out a constitutionally protected establishment, they said.

“If it walks like a duck and talks like a duck, it’s probably a duck,” said John H. Weston, a Beverly Hills attorney. “This ordinance quacks.”

The courts in past decisions have permitted cities to use zoning laws to disperse or concentrate adult bookstores within the community as a means of protecting the urban environment.

Under the National City ordinance, such establishments cannot be located within 1,000 feet of a residential area or 1,500 feet of a school, park or another adult business. An exception permits location in an enclosed retail mall, isolated from view from the street.

The city sought to enforce the ordinance in 1989 against Chuck’s Bookstore, owned by Steven Weiner. Lawyers for the store challenged the law, contending it would improperly force the store to close. Relocating on legally available but undeveloped land would be prohibitively expensive, and the three existing malls in town refused to rent space, the attorneys said.

A state Court of Appeal in San Diego ruled in March, 1991, that the ordinance improperly denied the bookstore a practical alternative and thus violated the First Amendment.

On Tuesday, National City lawyer Harter stressed that zoning laws are “the only effective tool cities have to make our cities livable.” While there must be reasonable legal alternatives for relocation, she said, cities need not “guarantee a profit” for adult businesses.

Harter drew support from Joseph M. Schilling, a deputy San Diego city attorney representing the coalition of cities, and David Llewellyn, counsel for the Western Center for Law and Religious Freedom, representing 19 religious and anti-pornography groups.

Norman R. Atkins of Beverly Hills, an attorney for the bookstore, argued that the ordinance amounted to “a virtual prohibition” of lawful expressive activity. The law’s predominant purpose, he said, was to deny the store a reasonable opportunity to locate in the city.

Lawyer Weston added that it was not sufficient for a municipality to provide only a “theoretical legal alternative” for relocation. “We are perfectly willing to compete on a fair and level economic playing field,” he said. “But this is hardly a level field. . . . This is a total zone-out.”