Adult Businesses Determined to Run in Anaheim

Anaheim has become the front line in the legal war between California communities and adult businesses. And while recent court decisions have dealt blows to the city’s get-tough effort, neither side is backing down.

The city, home to Disneyland and known as a family vacation paradise, has five nude cabarets and topless bars--more than any other community in Orange County. All have opened within the last eight years.

Orange County, experts say, has been particularly inhospitable grounds for adult entertainers, with many communities enacting tough regulations even though they don’t have any businesses operating.

But few cities in the state have been as aggressive as Anaheim in crafting laws that restrict the location and operation of adult businesses. In the process, the city has became a laboratory to test the legal limits, and the results are being watched closely by other cities.

In September, the state Supreme Court let stand a ruling that allowed an adult theater to operate despite city ordinances that prohibit such businesses within 100 feet of freeways or within 400 feet of residential zones.

A day later, the 4th District Court of Appeal threw out convictions against seven Anaheim lap dancers who were charged with violating the city’s no-touch rule, a misdemeanor.

In the case of the convicted lap dancers, the justices said Anaheim went too far by criminalizing touching between dancers and patrons. Many cities have distance restrictions between performers and customers.

Newport Beach, for example, successfully closed a nude theater in 1997 when it broke the no-touching regulation.

Cities can regulate the behavior by revoking licenses but not jail people who violate the ordinance, the justices ruled.

Anaheim is the first known city in the state to criminally prosecute a violation of municipal regulations on adult-oriented businesses. Despite the legal setback, City Atty. Jack White said, the city will appeal to the Supreme Court.

“I don’t want the businesses to think that it is a free-for-all,’ he said. “The courts are always moving the parameters, but it won’t diminish our resolve to protect the citizens. . . . It is not over yet.”

Courts have historically upheld cities’ rights to regulate the time, place and manner of adult business operations.

Cities may put reasonable restrictions on where such businesses can be located and prohibit certain types of behavior.

On the other hand, operators of such businesses have consistently fought many of the regulations, arguing they infringe on their First Amendment rights because erotic entertainment is protected speech. Where the lines can be drawn has not always been clear.

“This area of the law is evolving, and frankly it is a very unsettled area,” said Lois Jeffrey, city attorney for Tustin, which has no adult businesses but has regulatory ordinances nonetheless.

Jeffrey and other city attorneys say ordinances have to be constantly updated in light of court rulings. But the recent decisions have confounded some.

Bob Hargreaves, with the League of California Cities, said the rulings are so specific to the facts in the Anaheim cases that it is unclear how they will affect challenges to regulations in other cities.

But because they offer potential legal ammunition for attorneys representing the businesses, he said, the rulings could prove problematic for cities.

“There are always gray areas,” he said. “Cities have become more sophisticated in their regulation and have tested the limits, and sometimes we win and sometimes we lose.”

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Anaheim has experienced a dramatic upsurge of adult businesses in recent years. The five cabarets in the city account for nearly half of a dozen or so such venues in all of Orange County.

The preponderance of resorts and convention areas attracts tourists, who make up a great portion of the clientele at adult establishments, the experts said.

The city’s resort district is now undergoing a multimillion-dollar face lift, and Disneyland is expanding its landmark theme park.

“Anaheim is going through an expansion period right now. There are more tourists, more adults visiting the city,” said H. Eric Schockman, a professor of public policy at USC. “It is a boom cycle for adult businesses.”

The adult entertainment industry hailed the Anaheim court rulings as historical victories, and the attorney who represented the theater operator has already vowed to use the zoning case to advocate for other clients who were “unfairly” denied permits.

“The cities don’t want to regulate, they just want to put them out of business,” said Jeffrey J. Douglas, executive director of the Free Speech Coalition, an adult industry trade group.

“They get to proclaim they are pro-family, even if they lose.”

Roger Diamond, the lawyer who represented the dancers and also the theater owner in the zoning case, maintains that Anaheim’s aggressive stance is more about politics than public morality.

“It gets people all worked up and the politicians know that,” Diamond said.

In the Anaheim zoning case, the city denied Badi Abrahim “Bill” Gammoh a permit to open a nude theater near the Riverside Freeway and La Palma Avenue.

The leased property was within 400 feet of a vacant lot zoned residential and therefore against existing city code.

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After Gammoh applied for the permit, the city passed additional ordinances, including one that prohibited adult businesses within 100 feet of a freeway. Anaheim argued such establishments so close to major thoroughfares tainted the city’s image. Gammoh sued.

“They think this business is a nuclear reactor and it is going to kill everybody in the town,” Gammoh said, adding he still plans to open his establishment in the near future.

The appellate court sided with Gammoh.

“Gammoh is not proposing to construct a huge billboard . . . ‘Come to Gammoh’s Flesh Emporium,’ ” the justices wrote. “The application was about whether he could operate his business behind closed doors.”

The court also ruled that Anaheim should have used discretion in deciding whether Gammoh’s Funtease theater would be too close to a residential zone.

It was unreasonable to believe that a residence would be built in the isolated vacant lot near an industrial area, the justices said.

The court of appeals rulings have upset residents and officials in Anaheim, who said their goal is to keep the city safe for families to live and visit.

“These judges have to live somewhere,” said Bop Zemel, a former council member who helped pass many of the ordinances restricting adult businesses.

“I am sure that they don’t want their kids to be walking near these businesses. . . . Anaheim should be known for something else than having more adult-oriented businesses than other cities in the county.”