United States v. 2007-08-06 | 05-56026 | FANTASYLAND VIDEO VCOUNTY OF SAN DIEGO | precedential |…

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
Southern DistrictCOUNTY OF SAN DIEGO, of California,Defendant-Appellee. 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 This case is withdrawn from sub-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.
9419

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

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

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