Fantasyland Video v. County of San Diego

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FANTASYLAND VIDEO, INC.,  No. 05-56026 Plaintiff-Appellant, D.C. No. v. CV-02-01909-LAB COUNTY OF SAN DIEGO, Southern District Defendant-Appellee. of California, San Diego  ORDER CERTIFYING A QUESTION OF CALIFORNIA LAW TO THE SUPREME COURT  OF CALIFORNIA

Filed August 7, 2007

Before: Barry G. Silverman, William A. Fletcher, and Richard R. Clifton, Circuit Judges.

ORDER

We respectfully request that the California Supreme Court exercise its discretion and decide the certified question set forth in Part I of this order. This case is withdrawn from sub- mission and further proceedings in this court are stayed pend- ing final action by the California Supreme Court. The parties shall notify the Clerk of this Court within one week after the California Supreme Court accepts or rejects certification, and again within one week if that Court renders an opinion.

The panel retains jurisdiction over further proceedings.

9420 FANTASYLAND VIDEO v. COUNTY OF SAN DIEGO I. Question Certified

Pursuant to Rule 8.548 of the California Rules of Court, a panel of the United States Court of Appeals for the Ninth Cir- cuit, before which this appeal is pending, requests that the Supreme Court of California answer the following question:

Under the California Constitution’s liberty of speech clause, should we review the constitutionality of an ordinance that sets closing times for adult entertain- ment establishments under strict scrutiny, intermedi- ate scrutiny, or some other standard?

The decisions of the Supreme Court of California and the Cal- ifornia Courts of Appeal do not provide a conclusive answer.

We understand that the Supreme Court of California may reformulate our question, and we agree to accept and follow the court’s decision. To aid the Supreme Court in deciding whether to accept the certification, we provide the following statement of facts and explanation.

II. Statement of Facts

In June 2002, the San Diego County Board of Supervisors adopted a comprehensive set of regulations and licensing pro- cedures for adult entertainment establishments within its juris- diction. The ordinances took effect the following month.

Fantasyland Video, Inc. operates an adult arcade, book- store, novelty shop, and video store in the Spring Valley area of San Diego County. It initiated federal and state constitu- tional challenges against the new ordinances, seeking declara- tory and injunctive relief. On appeal, Fantasyland disputes, among other things, the County’s requirement that adult- orientated businesses shut down between 2:00 am and 6:00 am.

FANTASYLAND VIDEO v. COUNTY OF SAN DIEGO 9421 III. Explanation of Certification

We must resolve the appellants’ state constitutional claims first. See Kuba v. 1-A Agric. Ass’n, 387 F.3d 850, 856 (9th Cir. 2004). If the California Constitution provides an indepen- dent basis for relief, it will be unnecessary to address their claims under the First Amendment.

Identification of the proper standard of review under state law will likely determine the outcome of this appeal. We cer- tify the above question to the Supreme Court of California for an authoritative construction of the most directly relevant opinion on the issue, People v. Glaze, 27 Cal. 3d 841 (1980).

In Glaze, the court invalidated an ordinance requiring pic- ture arcades to close between 2:00 am and 9:00 am. Id. at 844. The ordinance’s asserted purpose was to “prevent masturba- tion during those hours when law enforcement problems are greatest.” Id. at 847. The court first suggested that it was applying intermediate scrutiny. See id. at 846-47 (“[T]he ordi- nance is constitutional only if the city can prove it was nar- rowly drawn and necessary to a legitimate governmental interest.”). However, at a later point in its analysis, the court appeared to employ a higher standard of scrutiny, and a least restrictive means test. See id. at 847 (“[W]hen fundamental liberties are at stake, the test in a free society is whether there are ‘less drastic means’ available to accomplish the govern- ment’s purpose.” (citation omitted)); id. at 848 (“[T]he gov- ernment has not shown that the closing-hours requirement is necessary or that it is the least restrictive means available to curb anticipated masturbation.”).

Our examination of later decisions by the California Supreme Court and the Courts of Appeal has not yielded an answer as to the appropriate standard of review under Glaze for reviewing the constitutionality of an ordinance that imposes a closing-time requirement on adult entertainment establishments.

9422 FANTASYLAND VIDEO v. COUNTY OF SAN DIEGO In Sundance Saloon, Inc. v. City of San Diego, 213 Cal. App. 3d 807 (1989), the court rejected state and federal con- stitutional challenges to a municipal ordinance requiring caba- rets to close between 2:00 am and 6:00 am in order to control excessive noise and disorderly conduct. Id. at 810, 821. Citing to Glaze, the court employed intermediate scrutiny. See id. at 820. (“The issue in Glaze, as in this case, was whether the city had proved its ordinance was narrowly drawn and necessary to its legitimate governmental interest.”). It refused to apply a “least restrictive means” test, invoking a line of federal authority without any mention of Glaze’s contrary language. Id. at 821-22 (citing Ward v. Rock Against Racism, 491 U.S. 781 (1989)).

Similarly, several California Supreme Court decisions have applied intermediate scrutiny to zoning ordinances that restrict where adult establishments may locate. See City of National City v. Wiener, 3 Cal. 4th 832, 841 (1992); People v. Superior Court, 49 Cal. 3d 14, 24-25 (1989).

Yet the California Supreme Court has never disavowed Glaze’s heightened standard with respect to restrictions on when adult-oriented businesses may operate. In fact, citing Glaze, the court has recognized that “the California liberty of speech clause is broader and more protective than the free speech clause of the First Amendment” in some of its applica- tions. Los Angeles Alliance for Survival v. City of Los Ange- les, 22 Cal. 4th 352, 366 (2000) (emphasis added). The court has also stated, however, that in some areas the protection afforded by the California Constitution “is coterminous with that provided by the federal Constitution.” Id. at 367 n.12. Los Angeles Alliance held that application of the federal “interme- diate scrutiny” standard was appropriate in the context of that case, but did not overrule Glaze or speak directly to the situa- tion presented in the current case.

Considerations of comity and federalism favor resolution of this apparent conflict in authorities by the State’s highest

FANTASYLAND VIDEO v. COUNTY OF SAN DIEGO 9423 court. We respectfully request that the Supreme Court of Cali- fornia accept and decide the certified question.

IV. Administrative Information Counsel for the parties are as follows:

For Plaintiff-Appellant Fantasyland Video, Inc:

Clyde DeWitt Weston, Garrou & DeWitt 12121 Wilshire Blvd., Suite 900 Los Angeles, California 90025 (310) 442-0072

For Defendant-Appellee County of San Diego:

Thomas D. Bunton 1600 Pacific Highway, Room 355 San Diego, California 92101 (619) 531-6456

For Amicus Curiae League of California Cities, et al.:

Scott D. Bergthold Law Office of Scott D. Bergthold, P.L.L.C. 8052 Standifer Gap Road, Suite C Chattanooga, Tennessee 37421 (423) 899-3025

If the Supreme Court of California accepts this request, Appellant should be deemed the petitioner.

The Clerk shall file this order and ten copies, along with all briefs in this appeal, with the Supreme Court of California; provide certificates of service to the parties; and provide addi- tional record materials if so requested by the Supreme Court

9424 FANTASYLAND VIDEO v. COUNTY OF SAN DIEGO of California. See Cal. R. Ct. 8.548(c)-(d).

IT IS SO ORDERED.

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The summary, which does not constitute a part of the opinion of the court, is copyrighted © 2007 Thomson/West.