ALAMEDA BOOKS v CITY OF LOS ANGELES, 9856200
U.S. 9th Circuit Court of Appeals
ALAMEDA BOOKS v CITY OF LOS ANGELES
9856200
ALAMEDA BOOKS, INC., a California
corporation; HIGHLAND BOOKS, No. 98-56200
INC., a California corporation,
D.C. No.
Plaintiffs-Appellees,
CV-95-07771-DDP
v. (CTx)
CITY OF LOS ANGELES, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
February 8, 2000--Pasadena, California
Filed July 27, 2000
Before: Robert Boochever, Michael Daly Hawkins, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Hawkins
_________________________________________________________________
COUNSEL
Michael L. Klekner, The City of Los Angeles, Los Angeles,
California, for the defendant-appellant.
G. Randall Garrou, Weston, Garrou & DeWitt, Los Angeles,
California, for the plaintiffs-appellees.
Robert W. Hargreaves, Best Best & Krieger, Rancho Mirage,
California, for amicus curiae Sixty-Five (65) California Cit-
ies, in support of the appellant.
G. Randall Garrou, Weston, Garrou & DeWitt, Los Angeles,
California, for amicus curiae Center for Fair Public Policy in
support of the appellees.
Richard J. Hertzberg, Phoenix, Arizona, for amicus curiae L.J.
Concepts, Inc., in support of the appellees.
_________________________________________________________________
OPINION
HAWKINS, Circuit Judge:
We must determine whether the district court was correct
in concluding as a matter of law that ordinances of the City
of Los Angeles (the "City" or "Los Angeles") prohibiting the
operation of adult businesses that both sell adult products and
contain facilities for the viewing of adult movies or videos
were inadequately supported by evidence of adverse impact
so as to violate the First Amendment. We affirm.
I.
BACKGROUND
On July 28, 1977, the City enacted Ordinance No. 151,294,
adding section 12.70 to the Los Angeles Municipal Code
("L.A.M.C."), which prohibits the "establishment, substantial
enlargement or transfer of ownership or control" of an adult
business establishment "within 1,000 feet of another such
business or within 500 feet of any religious institution, school
or public park within the City of Los Angeles." L.A.M.C.
S 12.70(C) (1977). The regulation was enacted after a com-
prehensive study, conducted in 1977 and assessing the impact
of concentrations of adult businesses on surrounding areas,
found a positive correlation between concentrations of adult
businesses and increases in prostitution, robberies, assaults,
and thefts.1
In 1983, the City amended section 12.70(C), with the pas-
sage of Ordinance No. 157,538 to prohibit so-called "multiple
use" adult businesses. Section 12.70(C), as amended, addi-
tionally prohibits "the establishment or maintenance of more
than one adult entertainment establishment in the same build-
ing, structure, or portion thereof . . . ." L.A.M.C. S 12.70(C).
The 1983 amendments also modified the existing definition of
an "adult entertainment business" to specifically categorize
inter alia an "adult bookstore" and an "adult arcade" as "sepa-
rate adult entertainment businesses even if operated in con-
junction with another adult entertainment business at the same
establishment." L.A.M.C. S 12.70(B)(17).
Appellees, Alameda Books, Inc. ("Alameda") and High-
land Books, Inc. ("Highland"), are two adult businesses oper-
ating within the city limits of Los Angeles. Neither is located
within 1,000 feet of another adult business nor within 500 feet
of any religious institution, public park, or school. Each busi-
ness occupies less than 3,000 square feet. Both Alameda and
Highland rent and sell sexually oriented products, including
videotapes. Additionally, both businesses provide booths
where patrons can view videotapes for a fee. The booths are
of two types. In the Preview Booths customers can view vid-
eotapes that are for rent or sale within the store. The Multi-
channel Viewing Booths allow customers to choose from doz-
ens of pre-selected videotape selections.
The video booths and the retail sales and rental of tapes of
both stores are located in the same commercial space within
a single building. There are no distinctions, physical or other-
wise, between the different operations within each of the
stores. Each has only one entrance door, and one employee
supervises the entire location. Additionally, the appellees are
the sole owners of each of their stores, and revenue from the
video booths and the sales and rentals is not distinguished in
any way, other than for internal accounting purposes. Not-
withstanding these facts, it is uncontested that both businesses
have operations that fall within the definitions of "adult book-
store" and "adult arcade" under section 12.70(B)(17) of the
L.A.M.C.
On March 15, 1995, a City building inspector found that
Alameda was operating both an adult bookstore and an adult
arcade in the same building and was therefore in violation of
section 12.70(C). Alameda and Highland then joined as plain-
tiffs and sued for declaratory and injunctive relief under 42
U.S.C. S 1983 to prevent enforcement of the ordinance. Both
the City and the appellees filed cross-motions for summary
judgment.
The district court initially denied both motions on the First
Amendment issues, concluding that there was a "genuine
issue of fact as to whether plaintiffs' bookstore and arcade
components were separate businesses, like those whose con-
centration was examined by the 1977 studies." Alameda and
Highland then filed a motion for reconsideration of the First
Amendment portion of the district court's order denying sum-
mary judgment. On June 2, 1998, the court vacated its prior
order and granted summary judgment for Alameda and High-
land and issued a permanent injunction enjoining the enforce-
ment of the ordinance against the appellees. The City then
appealed to this court. We have jurisdiction under 28 U.S.C.
S 1291.
II.
STANDARD OF REVIEW
A grant of summary judgment is reviewed de novo . See,
e.g., Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied,
120 S. Ct. 375 (1999). We must determine, viewing the evi-
dence in the light most favorable to the appellants, whether
there are any genuine issues of material fact and whether the
district court correctly applied the substantive law. See, e.g.,
Berry v. Valence Tech., Inc., 175 F.3d 699, 703 (9th Cir.),
cert. denied, 120 S. Ct. 528 (1999). We do not weigh the evi-
dence or determine the truth of the matter; rather, we only
decide whether there is a genuine issue of material fact for
trial. See Colacurcio v. City of Kent, 163 F.3d 545, 549 (9th
Cir. 1998).
The constitutionality of a regulation is a question of law
that is reviewed de novo. See Gonzalez v. Metropolitan
Transp. Auth., 174 F.3d 1016, 1018 (9th Cir. 1999), cert.
denied, 120 S. Ct. 1553 (2000).
III.
ANALYSIS
A. Renton Analysis
Our inquiry, though not the result, is somewhat compli-
cated by two varying formulations of the test governing our
analysis. In Tollis v. San Bernardino County, 827 F.2d 1329
(9th Cir. 1987), we were presented with the opportunity to
apply the then-recent decision of the Supreme Court in City
of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986),
which analyzed the constitutionality of city zoning regulations
that prohibited adult theaters from being located within 1,000
feet of any residential zone, single- or multiple-family dwell-
ing, church, park, or school. Tollis held that Renton had estab-
lished a "three-step inquiry" to determine the constitutionality
of such ordinances. Tollis, 827 F.2d at 1332. A reviewing
court must inquire: (1) whether the ordinance is a time, place,
manner regulation; (2) if so, whether it is content-neutral or
content-based; and (3) if content-neutral, whether it is "de-
signed to serve a substantial governmental interest and do[es]
not unreasonably limit alternative avenues of communica-
tion." Id. (internal quotations omitted); see also Renton, 475
U.S. at 47.
[1] More recently, we formulated this test in a slightly dif-
ferent and (we believe) more coherent manner. In Colacurcio
v. City of Kent, 163 F.3d 545 (9th Cir. 1999), we looked to
the Supreme Court's opinion in Ward v. Rock Against Rac-
ism, 491 U.S. 781 (1989), to determine the constitutionality of
the city's ordinance requiring nude dancers to perform at least
ten feet from patrons.2 Citing to Ward, we held that
"[m]unicipalities may impose reasonable restrictions on the
time, place or manner of protected speech, provided the
restrictions are: (1) content-neutral; (2) narrowly tailored to
serve a significant government interest; and (3) leave open
ample alternative channels for communication of the informa-
tion." Colacurcio, 163 F.3d at 551.
The differences between the Tollis and Colacurcio test are
slight, yet obvious. Colacurcio eliminates Tollis's first step --
determining whether the ordinance is a time, place or manner
regulation -- and merely splits the two inquiries of Tollis's
third step -- narrow tailoring to serve a significant govern-
ment interest and ample alternative means of communication
-- into two separate steps.3 Clearly, there is no substantive
difference between Tollis and Colacurcio , and a given result
under one necessarily dictates an identical outcome under the
other. Moreover, the jurisprudence governing each test is fully
applicable to both.
Colacurcio, however, better formulates the test. First, the
third step of Tollis incorporates two distinct inquiries, which
are more properly separated for both conceptual and practical
reasons in Colacurcio. Additionally, Tollis needlessly estab-
lishes the time, place or manner inquiry as a distinct step.
Time, place or manner is an objective description of a regula-
tion (or one proffered by the enacting legislative body); it is
not a talismanic incantation affording the ordinance a lesser
degree of judicial scrutiny. To the contrary, the question the
courts must ask is whether the time, place or manner regula-
tion is content-neutral. The Supreme Court recognized as
much in Ward when it excluded a time, place or manner anal-
ysis, which it had included in Renton, from its discussion. For
the sake of clarity and consistency in future opinions, and
because we believe the Colacurcio formulation is more aptly
constructed, we will utilize it here.
As a preliminary matter, we note that section 12.70(C)
comes under the general category of a time, place, or manner
regulation. Renton held that zoning regulations governing
adult businesses are generally considered time, place or man-
ner regulations. See Renton, 475 U.S. at 46. Moreover, section
12.70(C) does not ban adult entertainment establishments
altogether. See Tollis, 827 F.2d at 1332 (holding that ordi-
nance before the court was "obviously" a time, place, or man-
ner regulation "as it [did] not ban adult theaters altogether").
Under Colacurcio's first step (i.e. Tollis's second step), a
regulation is content-neutral if the ordinance is "aimed to con-
trol secondary effects resulting from the protected expression
rather than at inhibiting the protected expression itself." Tol-
lis, 827 F.2d at 1332 (internal quotation omitted) (citing Ren-
ton, 475 U.S. at 48-49); see also Renton, 475 U.S. at 48
(regulation is content-neutral if it is "justified without refer-
ence to the content of the regulated speech"). 4 We need not
decide whether the contested regulation is content-neutral, for
even if it were, it fails to satisfy the second step in the
Colacurcio analysis (i.e. the third step of Tollis).5
B. Colacurcio's Second Step: Substantial Government
Interest
[2] The City has a "substantial government interest" in
reducing crime in its neighborhoods. See Young v. American
Mini Theatres, 427 U.S. 50, 71 (1976) ("[T]he city's interest
in attempting to preserve the quality of urban life in one that
must be accorded high respect."). At issue is whether the reg-
ulations are "designed to serve" this interest. We hold they are
not.
[3] The only evidence relied upon by Los Angeles to justify
the 1983 amendments to section 12.70(C) is the 1977 study
(the "Study"), which was used as the basis for the enactment
of the original regulations. This is insufficient.
The Study looked at the concentration of four types of adult
businesses: massage parlors, "bookstores/arcades, " theaters,
and adult motels. It assessed five areas where these businesses
were concentrated and compared crime rates in these areas
with rates in nearby "control" areas. Additionally, the Study
measured changes in assessed land values from 1970 to 1976
in the study and control areas. As noted, the Study concluded
that there was a positive correlation between concentrations of
these adult businesses and increases in prostitution, robberies,
assaults, and thefts.
The district court found that the Study addressed the sec-
ondary impact not of single adult business establishments, but
of concentrations of separate, individual adult businesses, and
that appellees' businesses are not separate in the sense that the
businesses surveyed in the Study were separate establish-
ments. As the Study was the only evidence to justify the 1983
amendments, the district court held that summary judgment
was appropriate because the City could not meet its burden to
show that it "relied on evidence supporting a reasonable belief
that combination businesses . . . produced harmful secondary
effects of the type asserted" in the 1977 Study. We agree.6
The Study treated a bookstore/arcade combination as a sin-
gle business or unit of adult entertainment whose secondary
effects arise from its proximity to several other units of adult
entertainment. It did not analyze an individual bookstore/
arcade combination as a concentration of adult businesses.
Additionally, the Study was not directed at determining the
impact of individual adult entertainment business units.
Rather, its purpose was to ascertain the impact of a concentra-
tion of such business units in small geographic areas. There-
fore, by categorizing certain businesses as "bookstore/
arcades," the Study determined not what the impact of a
"bookstore/arcade" was on the surrounding area, but the
impact of a bookstore/arcade as an individual business entity
that was part of a concentration consisting of multiple adult
business establishments. As such, the Study did not identify
any harmful secondary effects resulting from bookstore/
arcade combinations as individual business units.
The City does not argue that the Study explicitly consid-
ered adult arcades and bookstores as separate business enti-
ties, an argument that would support its contention that a
combination bookstore/arcade as an individual business entity
is a "concentration" of adult businesses. Nor does it dispute
that the concentration of adult businesses was the primary
cause of the harmful secondary effects identified in the Study.
Indeed, the pertinent findings of the Study focus solely on the
concentration of separate adult business entities. Rather, the
City asserts that the Study provides enough of a basis to allow
it to constitutionally proscribe combination adult businesses
under section 12.70(C) of L.A.M.C. The City's arguments
fail.
In examining the City's regulation of adult businesses, we
are mindful of numerous admonitions from the Supreme
Court about the proper role of the judiciary in scrutinizing
legislative judgments. In American Mini Theatres , the
Supreme Court recognized that the courts are not to second-
guess legislative solutions. In upholding the validity of a zon-
ing regulation prohibiting adult entertainment establishments
within 1,000 feet of one another, the Court stated:"It is not
our function to appraise the wisdom of [the City Council's]
decision . . . . Moreover, the city must be allowed a reason-
able opportunity to experiment with solutions to admittedly
serious problems." 427 U.S. at 71; see also Renton, 475 U.S.
at 52 (quoting American Mini Theatres); United States v.
Albertini, 472 U.S. 675, 689 (1985) (validity of a content-
neutral time, place, or manner regulation does not "turn on a
judge's agreement with the responsible decisionmaker con-
cerning the most appropriate method for promoting signifi-
cant government interests"); Jones Intercable, Inc. v. City of
Chula Vista, 80 F.3d 320, 326 (9th Cir. 1996) (courts "accord
substantial deference to the predictive judgments " of legisla-
tive bodies when analyzing content-neutral regulations that
burden speech) (quoting Turner Broad. Sys., Inc. v. FCC
("Turner I"), 512 U.S. 622, 665 (1994)).
This deference to legislative decision making is not
unbounded. In Tollis, we established a predicate evidentiary
requirement that must be met before we will defer to the judg-
ments of legislative bodies enacting content-neutral time,
place, or manner regulations that incidentally burden speech.
Tollis considered an injunction against the enforcement of a
county zoning ordinance prohibiting adult-oriented businesses
from locating within 1,000 feet of various other establish-
ments (e.g., schools, churches, etc.). The county had inter-
preted the ordinance such that a single showing of an adult
movie would make a theater an "adult-oriented business" for
the purposes of the ordinance. See 827 F.2d at 1331.
In affirming the injunction, we held that under Renton, the
county "must show that in enacting the particular limitations
. . . it relied upon evidence permitting a reasonable inference
that, absent such limitations, the adult theaters would have
harmful secondary effects." Id. at 1333 (emphasis added). We
then found that the county had presented no evidence that a
single showing of an adult film would have any of the harm-
ful secondary effects on the community that the county had
identified as the basis for the regulation. Id.
[4] Like the county in Tollis, Los Angeles has presented no
evidence that a combination adult bookstore/arcade produces
any of the harmful secondary effects identified in the Study.
As the above discussion indicates, the evidence the City has
"relied" upon -- the 1977 Study -- contains no findings that
an individual combination bookstore/arcade produces any of
the increased crime the Study found resulting from a concen-
tration of adult businesses. Therefore, it is unreasonable for
the City to infer that absent its regulations, a bookstore/arcade
combination would have harmful secondary effects. See also
Acorn Invs., Inc. v. City of Seattle, 887 F.2d 219, 222 (9th Cir.
1989) (holding unconstitutional under Renton a city licensing
fee for specific types of adult theaters because the City had
"failed to prove" that these theaters were responsible for fos-
tering the alleged secondary effects -- criminal activity --
that were given as justification for the licensing fee); Turner
Broad. Sys., Inc. v. FCC ("Turner II), 520 U.S. 180, 211
(1997) (holding that in reviewing content-neutral regulations
burdening speech under an intermediate scrutiny standard, the
question for the courts "is whether the legislative conclusion
was reasonable and supported by substantial evidence in the
record before [the legislative body]") (emphasis added).
The City argues that the original intent of section 12.70(C),
adopted pursuant to the Study, included a ban on more than
one adult business in a building. This argument is unpersua-
sive. Whether the prohibition against combination businesses
was intended to be included in the original ordinance is
largely immaterial to the question of whether the Study ade-
quately justifies the current regulations.
Nor could Los Angeles have reasonably concluded that the
expansion of an adult bookstore to include an adult arcade
would increase the frequency and regularity of activity for the
business and heighten the probability that such activity would
produce the harmful secondary effects identified in the Study.
Such reasoning would justify the prohibition of the simple
expansion of a lone adult bookstore in order to accommodate
a larger variety of adult products (which, ostensibly, would
attract more patrons), and not for the purpose of installing an
arcade. Such a prohibition, however, is clearly not supported
by the Study.
The Supreme Court, as well as this circuit, have held that
a legislative body may rely on studies, conducted by other cit-
ies and counties, linking a concentration of adult businesses
to increased crime to justify its own regulation of adult busi-
nesses. In Renton, the Court held that the city
was entitled to rely on the experiences of . . . other
cities . . . in enacting its adult theater zoning ordi-
nance. The First Amendment does not require a city,
before enacting such an ordinance, to conduct new
studies or produce evidence independent of that
already generated by other cities, so long as what-
ever evidence the city relies upon is reasonably
believed to be relevant to the problem that the city
addresses.
475 U.S. at 51-52; see also Colacurcio, 163 F.3d at 551 ("In
evaluating the secondary effects of adult entertainment, the
city is also permitted to rely on experiences of other jurisdic-
tions.").
[5] Los Angeles relies on this ability to use foreign studies
for the proposition that the 1983 amendments to section
12.70(C) are entitled to similar deference. If foreign studies
can be used to justify the regulation of adult business, then
surely, the City argues, its regulations, based upon its own
study, are entitled to deference. Again, this argument misses
the mark. That a legislative body may rely on foreign studies
to establish its interest in a regulation does not relieve that
entity from the obligation of demonstrating that the study
must be " `reasonably believed to be relevant to the problem
that the city addresses.' " Colacurcio, 163 F.3d at 551 (quot-
ing Renton, 475 U.S. at 51-52). As shown, the Study fails this
test.7
The City also points to decisions of our sister circuits in
support of its argument that the Study provides the necessary
evidentiary basis to satisfy Renton's third prong. The cases
cited, however, are either directly contrary to established
Ninth Circuit precedent, or merely restate the requirement that
a legislative body's reliance upon the evidence it cites must
be reasonable. See, e.g., Renton, 475 U.S. at 51-52.
In ILQ Investments, Inc. v. City of Rochester , 25 F.3d 1413
(8th Cir. 1994), the Eighth Circuit upheld the constitutionality
of an adult business zoning ordinance, as applied to adult
bookstores, that prohibited on-premises viewing of adult mov-
ies or videotapes. The court noted that Rochester relied on
foreign studies and held that under Renton,
Rochester need not prove that [plaintiffs' business]
would likely have the exact same adverse effects on
its surroundings as the adult businesses studied by
[other cities]. So long as Ordinance No. 2590 affects
only categories of businesses reasonably believed to
produce at least some of the unwanted secondary
effects, Rochester must be allowed a reasonable
opportunity to experiment with solutions to admit-
tedly serious problems.
Id. at 1418 (internal quotation omitted). While this application
of Renton may be somewhat more flexible than the standard
we announced in Tollis, Los Angeles's regulations would still
fail under the Eighth Circuit's analysis. The Los Angeles
Study examined concentrations of multiple adult business
establishments; it did not study the impact of individual estab-
lishments in any form, whether as solitary units or as part of
the concentration of businesses. Under the Eighth Circuit's
analysis, then, Los Angeles could not have reasonably
believed, based on the Study, that an individual adult business
could produce some of the secondary effects resulting from a
concentration of businesses.
In Mitchell v. Commission on Adult Entertainment Estab-
lishments, 10 F.3d 123 (3rd Cir. 1993), the Third Circuit
upheld a Delaware statute setting closing hours for adult busi-
nesses and prohibiting closed viewing booths. The court cited
to Renton and held that the state "need only show that adult
entertainment establishments as a class cause the unwanted
secondary effects the statute regulates." Id . at 138. This state-
ment and the Third Circuit's citation to Renton pertain to
whether the regulation is narrowly tailored, not whether the
evidence produced can reasonably justify the regulation as
serving a substantial government interest. Narrow tailoring of
the Los Angeles ordinance is a question we need not address.
Moreover, if the Third Circuit's holding were applied to the
issue before us, we would have to reject its analysis. Merely
requiring that a legislative body show that adult establish-
ments as a class cause the secondary effects the regulation is
aimed at preventing could easily fall far short of our require-
ment in Tollis that a legislative body "must show that in
enacting the particular limitations . . . it relied upon evidence
permitting the reasonable inference that, absent such limita-
tions, the adult [businesses] would have harmful secondary
effects." 827 F.2d at 1333 (emphasis added).
Finally, the City cites Hart Book Stores, Inc. v. Edmisten,
612 F.2d 821 (4th Cir. 1979), a case in which the Fourth Cir-
cuit examined a state law almost identical to the Los Angeles
ordinance. Hart held constitutional a North Carolina statute
prohibiting two or more "adult establishments " from occupy-
ing a single building. Adult bookstores and adult arcades were
defined as separate establishments under the statute.
The Fourth Circuit found that the statute, "on its face," was
a "permissible regulation of the external costs of adult estab-
lishments that is unrelated to the overall suppression of any
protected materials offered by them for public consumption."
Id. at 829. In concluding that the statute served a substantial
government interest, the court noted that no formal legislative
history existed for the statute, but held that a legislative deter-
mination that the dispersal of the marketing activities of the
businesses might ameliorate adverse secondary effects "can-
not be thought unreasonable." Id. at 828.
Hart was decided before Renton; therefore, there may be
some doubt that it would survive scrutiny under the current
Supreme Court's precedent. We are sure, however, that the
case would not pass muster under our decisions in Tollis and
Acorn. In Hart, there was no evidence from foreign studies to
support the statute. What evidence the court did cite as being
produced by the state -- a report on health conditions inside
the video viewing booths that the bill's sponsor read to a leg-
islative committee, see id. at 828 n.9 -- would not meet Tol-
lis's reasonable inference requirement.
Prohibiting arcades and adult bookstores from being
located in the same building would not prevent the type of
unhealthy conditions in the booths that the Fourth Circuit
cited as the only evidence produced by North Carolina to jus-
tify its statute. There is nothing in the case to indicate that the
same type of behavior that occurs in viewing booths in combi-
nation bookstore/arcades would not occur in an establishment
that only furnishes an arcade. Therefore, any inference that,
absent the statute, the harmful affects would be ameliorated
would be unreasonable under both Tollis and Acorn.
The decision of the district court is AFFIRMED.
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FOOTNOTES
1 The Study also stated there was "some basis to conclude" that property
values in the study areas increased to a lesser degree than in the control
areas. It concluded, however, that the concentration of adult businesses
was not the primary cause of this phenomenon.
2 Colacurcio involved expressive conduct, which is not at issue here.
The Supreme Court, however, has noted that the test for regulations affect-
ing expressive conduct is nearly identical to the test for time, place, or
manner regulations affecting protected speech. See Clark v. Community
for Creative Non-Violence, 468 U.S. 288, 298 (1984) ("[V]alidating a reg-
ulation of expressive conduct . . . in the last analysis is little, if any, differ-
ent from the standard applied to time, place or manner restrictions.").
Consequently, in Colacurcio we looked to Ward, a case involving restric-
tions impacting on speech per se (and not expressive conduct), for guid-
ance. See also Colacurcio, 163 F.3d at 551, n. 4 (quoting Clark and noting
that the Ninth Circuit frequently cites both the test for expressive conduct
and that for time, place or manner regulations when analyzing regulations
of adult entertainment).
3 We note that in Colacurcio we held that the regulation must serve a
"significant" government interest, see 163 F.3d at 551, while in Tollis we
held that the government interest must be "substantial." 827 F.2d at 1332.
We accord no substantive difference to these terms as they are used in the
adult zoning context. Indeed, the language in Tollis was taken from our
decision in Walnut Properties, Inc. v. City of Whittier, 808 F.2d 1331,
1334-35 (9th Cir. 1986), which was cited with approval in Colacurcio. See
163 F.3d at 551 n.4. Additionally, Tollis did not explicitly include the nar-
row tailoring requirement as part of its third step. That Tollis requires theregulation must be "narrowly tailored" to serve a substantial government
interest is, however, clear from the opinion. See Tollis, 827 F.2d at 1333
(holding that "[t]he County has thus failed to show that the ordinance, as
interpreted by the County . . . is sufficiently`narrowly tailored' to affect
only that category of theatres shown to produce the unwanted secondary
effects") (quoting Renton, 475 U.S. at 51).
4 As discussed above, because the Tollis and Colacurcio tests areidenti-
cal, the standards applied to one may be applied to another.
5 The district court conducted its analysis using a slightly different
approach that, though perfectly reasonable, somewhat conflated the inqui-
ries under Tollis's second and third steps. We need not specifically
endorse this analysis, as section 12.70(C) fails to satisfy the second step
of Colacurcio (i.e. the third step ofTollis.) See Cline v. The Indus. Mainte-
nance Eng'g and Contract Co., 200 F.3d 1223, 1229 (9th Cir. 2000)
("Summary judgment may be affirmed on any ground supported in the
record, including reasons not relied upon by the district court.").
6 It is well-established that the burden of proof is on the City to justify
a regulation which burdens the freedom of expression. See, e.g., Clark v.
Community for Creative Nonviolence, 468 U.S. 288, 293 n.5 (1984) ("[I]t
is common to place the burden upon the Government to justify impinge-
ments on First Amendment interests"); Lim v. City of Long Beach, 2000
WL 821295, at *2 (9th Cir. Jun. 27, 2000) (noting that it is "clear" that
the burden of proving alternative avenues of communication rests on the
government); Tollis, 827 F.2d at 1333 ("The County must show that in the
enacting particular limitations . . . it relied upon evidence permitting the
reasonable inference that, absent such limitations, the adult theaters would
have harmful secondary effects." (emphasis added)).
7 In this regard, the Supreme Court's recent opinion in City of Erie v.
Pap's A.M., 120 S.Ct. 1382 (2000), is of little aid to Los Angeles. In
upholding the City of Erie's ban on nude dancing, the Court stated that
"Erie could reasonably rely on the evidentiary foundation set forth in Ren-
ton and American Mini Theatres" with respect to the secondary effects of
adult entertainment establishments because the nude dancing that claimed
protection was "of the same character as the adult entertainment at issue"
in the two cases. Id. at 1395. For the purposes of the secondary effects
identified in the Los Angeles Study, a solitary bookstore/arcade combina-
tion is hardly of the "same character" as a grouping of multiple adult busi-
ness establishments in a given geographical area.