Anaheim, California may have Disneyland -- but it has attracted more than its share of . . . non-family entertainment as well. Distressed, in fact, at the kinds of businesses that want to establish themselves in the city, the Anaheim City Council has over the years tried to make it much harder for "adult cabaret" businesses to locate within its limits.
The first law it passed was struck down in 1993 by a federal court, which found that Anaheim's "adult cabaret" violated the First Amendment. The city's planning commission had lots of discretion under that ordinance to determine what kind of activities could be conducted at such a "cabaret" -- which made the ordinance a "prior restraint" on free speech. The federal court said it was a restraint of free speech because, "it essentially requires the permittee to obtain the government's permission or approval before engaging in an act of speech."
Well, before engaging in certain kinds of acts, anyway.
So, Anaheim came up with a new ordinance. This ordinance, said the city, was valid because there it gave no discretion to the city council or the planning commission to deny a permit based on speech; adult businesses were permitted so long as they were not located within 400 feet of a residential area.
This time, the ordinance was challenged in state court, by a man named Badi Gammoh. The city denied the permit even though Mr. Gammoh wanted to locate his business in what he described as a "God-forsaken industrial wasteland." It would have been located within 400 feet of a sliver-thin wedge-shaped vacant lot immediately adjacent to a freeway on which it was theoretically possible to build a house. Mr. Gammoh appealed, and in 1999, the court of appeal ruled on his challenge.
The court began by noting the odd choice of a term for Gammoh's proposed business. "Generally, euphemisms obstruct clear thinking about a subject, and the phrases 'adult cabaret' and 'adult entertainment' have a euphemistic feel to them." The court was especially bothered by "cabaret," which it said would likely be the kind of establishment one associates with "images of Weimar Republic decadence and Marlene Dietrich kitsch." He said Gammoh's business would more accurately be labeled a "strip joint" but that phrase "has an unnecessary judgmental and pejorative flavor," too.
Well -- can't win either way. The court also questioned, "What law of nature, for example, requires that Gammoh construct a tacky 'joint' instead of a tasteful 'theatre'?" The court first suggested, "'Burlesque house,'" except that this conjured images of "baggy pants comedians" who would be "interspersed between dancers." And so the court was left with "adult cabaret."
Phew -- glad that we got the important stuff out of the way first!
The court first rejected the notion that being within 400 feet of that sliver-thin parcel was a basis to deny the permit. So the city came up with two alternative arguments. First, it claimed that it had designated the industrial area where Gammoh wanted to locate as off limits to adult businesses. Wrote the court: "The irony is not lost on us: The area was considered too 'downscale' for an adult business!"
The second argument was more subtle -- the city forbade adult businesses within 100 feet of a freeway fearing that it would be bad for the city's "image." In response, the court observed that, "Cities have different general reputations and images, of course. Some have broad shoulders (Chicago); some liken themselves to large fruit (Buenos Aires, New York); some are known for their fountains and hills (Rome); some for their heavy industry (Detroit, aka 'Motown'); some, when you tire of [them], you virtually tire of life (Samuel Johnson on London). One wag once described Las Vegas after the opening of a series of hotels with child care facilities as 'sin city with baby strollers.'"
But when it came to regulating adult businesses, the court explained, "municipal image qua image cannot help but run into the First Amendment." While worrying about the city's "image" was a natural thing for city politicians, this was essentially the same thing that had gotten Anaheim in trouble six years earlier. The court ordered Anaheim to approve Gammoh's application.
Still, whatever problems its anti-adult business ordinances may have caused Anaheim in court, the council's efforts probably still played well with the voters. After all, it still had that big amusement park with the statute of Walt and the greatest love of his life -- Mickey Mouse. And it would continue to attract millions of visitors to Anaheim, too.
Sin city with baby strollers, indeed.
Frank Zotter, Jr. is a Ukiah attorney.
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