Appellate Judges Rule Against Simi in Adult Business Case

Simi Valley violated the 1st Amendment rights of the backer of a sexually oriented business by unreasonably denying him zoning permits needed to open a strip club, according to a new ruling by the 9th Circuit Court of Appeals.

The 2-1 ruling, released Tuesday in Santa Ana, was on an appeal argued in April 1999 before judges Warren J. Ferguson, A. Wallace Tashima and Diarmuid F. O’Scannlain, who dissented.

This marks the third time in nearly 20 years the courts have ruled against the city’s zoning laws that regulate adult businesses.

The recent appellate ruling upheld a 1997 U.S. District Court decision that Simi Valley’s restrictive zoning ordinance violated the constitutional rights of developer Philip Young, because it denied him “reasonable opportunity to open and operate” an adult club within the city.

Bert Deixler, a private attorney representing Simi Valley, said it’s too soon to say whether the city will take its case to the U.S. Supreme Court. He said while the majority ruled against his client, one judge decided the city had the constitutional right “to proceed as the city did.”

Young’s attorney, Roger Jon Diamond, who specializes in representing adult business owners, heralded the appellate decision as one that will have “‘statewide and nationwide implication.”

“It’s a major ruling,” he said. “We’re very pleased.”

The ruling said Simi Valley’s ordinance unfairly granted a Bible study group the veto power to block Young from opening a club featuring naked dancers in a retail mall.

“It is . . . unconstitutional for a local government to impose a procedural requirement that delegates to certain favored private parties the unfettered power to veto, at any time prior to governmental approval and without any standards or reasons, another’s right to engage in constitutionally protected freedom of expression,” the court ruled.

There has never been such an adult business in Simi Valley, according to the ruling. And Young is the only business owner in the city’s history to apply for permits to open a strip club, Deixler said.

But one Simi Valley bar, called Snooky’s, part of a local chain of pubs, for years has featured dancers who wear bikinis.

The city at this point has spent more than $100,000 litigating the case, Deixler said.

Simi Valley amended its ordinance after the District Court’s ruling to assign a special zone within the city for adult businesses instead of relying strictly on distance requirements, and requiring prospective dancers to be partially clothed and maintain a proscribed distance from the audience.

Consequently, City Atty. David Hirsch said the appellate ruling, however disappointing to the City Council, is effectively moot because the law it struck down is superseded by the amended ordinance.

“We are studying the decision and looking at the available options at this point and intend to meet with the City Council in closed session,” Hirsch said.

While Simi Valley grants permits to churches and other “sensitive uses” within two days, permit applications from businesses involving adult entertainment required 94 days or more to process, Diamond argued.

Consequently, while Young waited for city planners to review his permit application, a Bible study group known as the Joshua Institute moved next door, rendering his permit ineligible.

The appellate ruling “means cities will not allow private parties to act as vigilantes and go around and pick off adult use applications as was done in Simi Valley,” Diamond said.

Young put a $20,000 down payment on property in Simi Valley and received zoning clearance from the city in 1993.

A month later, the city rescinded the permit and adopted a new ordinance that restricted adult businesses to only 0.5% of the land within the city by prohibiting them within 1,000 feet of any school, park or religious organization and within 500 feet of any residential area or youth-oriented business.

In 1978, Simi Valley adopted its first zoning ordinance regulating the location of adult businesses, but a federal court found it unconstitutional, the ruling stated.