City of Los Angeles v. Alameda Books, Inc. - Oral Argument
Transcript:
ORAL ARGUMENT OF MICHAEL L. KLEKNER ON BEHALF OF THE PETITIONER
Chief Justice Rehnquist: We'll hear argument now in Number 00-799, the City of Los Angeles v. Alameda Books, Inc.--
Mr. Klekner.
Mr. Klekner: Mr. Chief Justice, and may it please the Court:
Following its 1977 pioneering study, the City of Los Angeles enacted a, in 1978 a comprehensive zoning ordinance regulating the location of all types of adult business activities in the city.
The ordinance defined eight business activities and required that they each be separated from each other by 1,000 feet.
Notwithstanding the clear intent of the city's ordinance in 1978, it became apparent that the ordinance could and was being interpreted to permit more than one adult business in the same building.
This has been described by plaintiffs as a drafting error inadvertent loophole, but it was an ambiguity, and it became necessary to amend the ordinance in 1983 to remove that ambiguity, thereby--
Unidentified Justice: Do we know if, at the time the ordinance was enacted... 1977?
Mr. Klekner: --'78, sir.
Unidentified Justice: '78.
Do we know if, at that time, there were businesses like the one at issue here, i.e., a place where they have both sale and rental and viewing--
Mr. Klekner: I presume--
Unidentified Justice: --Do we know if those businesses existed in that form in 1978?
Mr. Klekner: --I believe they did.
I don't believe--
Unidentified Justice: All right.
Mr. Klekner: --that the study specifically analyzed specific combinations in one building.
Unidentified Justice: All right.
Mr. Klekner: That wasn't the purpose of the study.
Unidentified Justice: Well, your clients didn't have businesses like that.
Your clients just had one or the other, wasn't it?
What did they start off with?
I'm sorry.
I'm sorry.
I'm sorry.
Mr. Klekner: Our clients are innocent.
[Laughter]
Unidentified Justice: The businesses regulated here did not offer both.
Which did they offer when the ordinance was initially passed?
Mr. Klekner: I'm sorry, I did not hear the question entirely, sir.
Unidentified Justice: When the ordinance was initially passed, which of the two types of business did they offer?
Mr. Klekner: Well, these businesses started in the late eighties, early 1990's, either as a bookstore or as an adult arcade.
Unidentified Justice: That's what I'm asking, which... which?
Mr. Klekner: But it was well after the adoption of the ordinance.
Unidentified Justice: Which did they start as, a bookstore, or as an arcade?
Mr. Klekner: My recollection is that each... I think it was Highland Books started as a adult arcade, and the reverse was true for Alameda Books.
It started as a bookstore.
Unidentified Justice: Did your evidence in '78 or any evidence since then specifically address the question of whether the combination of more than one form of business at one location has any measurable effect on, you know, the deleterious effect that you measured?
Mr. Klekner: No.
The studies did not specifically look at combination of adult businesses in one place, or in one building.
They looked at the clustering effect in the city's various communities.
Unidentified Justice: Am I wrong in thinking that the study which you rely on, the 1977 study, did have as one category bookstore/arcade.
It had as discrete entities the massage parlors, the adult theaters, and the adult motels, but it was my understanding that the arcade plus bookstore, or video sales shops, that those were together in that 1977 study.
Mr. Klekner: The answer is yes and no.
That phrase appears several times in the study and in certain conclusions, but if you look at the... at certain of the questionnaires that were sent out to various businesses, community groups, the individual businesses were separately identified.
In other words, a bookstore, peep shows, movie theaters, theaters, massage parlors.
Unidentified Justice: Well then, is there nothing to what we're told, that the... this combination of video sales plus viewing is common and, indeed, an arcade can't survive as a stand-alone business, that the combination of, you can see it, and if you want it you can buy it, was common?
Mr. Klekner: Well, the issue of separateness, and whether a business, an arcade and a bookstore can, could, or should survive separately is off the table.
It was not part... there was a stipulation that the... that that would not be considered.
That's not before the Court.
As the record now stands, I guess the Court would have to presume, as did the trial court and the court of appeals, that survivability, economic viability of separate businesses or combined isn't an issue for this Court'--
Unidentified Justice: Well, each of these businesses was one or the other of those things and operated on that basis alone for how long?
Mr. Klekner: --Several years.
I can't--
Unidentified Justice: Do you know whether they operated at a profit or at a loss?
Mr. Klekner: --We never did any discovery on that, so the answer is, we have no way of knowing.
Unidentified Justice: But they did it for a couple of years, anyway?
Mr. Klekner: Correct.
Unidentified Justice: They were only an arcade and there was no selling going on when they were initially launched?
Mr. Klekner: It's my understanding that they might have sell... excuse me, sold some books, or what-have-you, but their primary business was having a series of video booths where you could watch adult movies.
Unidentified Justice: I get the opposite impression.
Maybe I was misled by the briefs.
I thought they had always operated as a combined business.
You say that's wrong?
Mr. Klekner: Not based upon the facts as I understand them, sir.
Unidentified Justice: Pardon?
Mr. Klekner: Not based upon the facts as I understand them, that... and I believe in 1991 it was Alameda Books that became both, and it was I think 1992 that Highland Books became both.
I might be off by a year or so, but there was a point in time where both... where each location became both adult business activities.
Unidentified Justice: I'd like to ask you... I'll assume with you for the moment you don't need any evidence.
I suppose you don't imagine... forget the evidence question.
All right, I take it that this ordinance... and I'm also assuming it, assuming this, you could have a particular place, 5,000 feet of books, or you could have 5,000 cubic feet of books, or you could have 5,000 cubic feet of arcade, but you couldn't have 5,000 cubic feet of both, all right.
Now, my question is, what's the theory behind that?
Mr. Klekner: The theory is the solution, not the facts.
If you go from jurisdiction to jurisdiction, the facts tend to support the same conclusion, that concentrations of adult businesses cause secondary effects.
How do you solve that problem?
And the city's decision was, because of the clustering effect, we termed it like a farmer's market type of effect for adult businesses, that dispersal was the solution.
Square footage, you could have 5,000 square feet of this, or maximum, is a different solution, based upon, New York did that in their solution.
They decided that the space limitation, square foot limitation was appropriate for New York.
That was not part of the solution for Los Angeles.
It was a complete dispersal of--
Unidentified Justice: All right.
Now, if, in fact, there is no space limitation, I would repeat my question, that it seems a fortiori if you can have a bookstore of gigantic size, or an arcade of gigantic size, but you can't have the two together, even of a little size, so I don't... I'm not talking about evidence.
I'm assuming, though, you have to have some theory, and the theory has to be a reasonable one, and it can't just be we want to censor everything, so what's the theory?
Mr. Klekner: --The theory is simply the solution adopted by the city of Los Angeles was to disperse.
If, in fact, we were faced with the megastore concept that, you know, the Wal Mart of adult bookstores, then that would be a different problem, that we could address in the future, at least as I understand this Court's precedent, but that's what we were faced with in 1977.
We were faced with the need to protect the city's neighborhoods from a lot of smaller businesses, if you will, and the solution was, we'll trade size, if you will, for dispersal.
New York, for example, said 500--
Unidentified Justice: But it still doesn't answer the question, exactly.
If the city wanted to address the concentration of adult businesses, certainly the 1977 study likewise addressed that, didn't it?
Mr. Klekner: --Correct.
Unidentified Justice: But now we're talking about an ordinance that doesn't focus on the concentration of adult businesses but, rather, the combination, because the city doesn't want the business to break into two parts, even though it tried to operate as one business, and I guess the 1977 study didn't address the combination, the effects of a combination of focuses in a single business, whereas your ordinance does.
Mr. Klekner: Well--
Unidentified Justice: As opposed to a concentration of businesses.
Mr. Klekner: --There are several responses to the question.
The first is that, as you... as I understand how you use the term, business, you're talking about a corporate organization or a single proprietorship.
That is not what the city's ordinance deals with.
Unidentified Justice: --operated as a single store, a single business.
Mr. Klekner: From the city's perspective, it is illogical, or not reasonable to say, for the city council to say, you know we have a problem here, on LaSeneca Boulevard, because we have two many adult businesses together, so we're going to require them to disperse.
There is no issue as to how we define these adult businesses.
That's not before the Court.
Unidentified Justice: Well, what if the ban were, you can sell adult VHS tapes but not Beta tapes in the same store?
Mr. Klekner: We haven't done that, and--
Unidentified Justice: Well, it's the same thing.
Can you break it down any way you want and say, it's fine because we're concerned about the--
Mr. Klekner: --Because we are concerned with the overall effect we have broken down the ordinance to its local components.
We have not tried to somehow slice and dice definitions so that you have several different types of retail adult establishments.
Unidentified Justice: --Do all of the categories that you have in the ordinance exist in the real world out there, video arcades only?
Mr. Klekner: Yes.
They did in 1977.
They did in 1991.
Unidentified Justice: Adult bookstores only--
Mr. Klekner: Correct.
Unidentified Justice: --without arcades in them--
Mr. Klekner: Correct.
Unidentified Justice: --and so forth, every one of the categories, adult movies only?
Mr. Klekner: Correct.
Each of these definitions, if you will--
Unidentified Justice: When you started out, though, there weren't all that many tapes.
There were books, adult bookstores.
Now, isn't the video much more prevalent today--
Mr. Klekner: --Actually, it's my under--
Unidentified Justice: --and you seem to say that the combination of this list, you think of a bookstore, nowadays one can browse, one can even go to a cafe and have coffee, and all that, or go to a record shop and listen to the tape and then buy it.
That combination of, I view it and then buy it or not, that seems to be a natural combination, unlike having half of my establishment a massage parlor and the other half a book shop.
Mr. Klekner: --The problem with your real-world description of a Barnes and Noble is, it doesn't exist in the adult entertainment world.
The evidence that was before the trial court was that the books, the magazines, the sex toys, the novelties, are all shrink-wrapped.
You cannot go into an adult bookstore, sit down and have your Starbucks, and browse through the material.
Unidentified Justice: And you don't prevent them... you don't prevent these stores from allowing customers to preview the films before they decide whether to buy them, the stores that sell adult films.
The ordinance doesn't prevent them from allowing customers, at no charge, to view the films before they buy them, does it?
Mr. Klekner: If I understand the correct... the question correctly, no.
Unidentified Justice: Under the ordinance, can a customer come in and say, before I buy this film, I would like to see it, and the store manager says sure, go ahead, look at it first, then you can decide whether to buy it?
Mr. Klekner: For free?
Unidentified Justice: For free.
Mr. Klekner: Yes.
Unidentified Justice: The ordinance permits that anyway, doesn't it?
Mr. Klekner: We are talking about--
Unidentified Justice: But they want to charge for it.
Mr. Klekner: --And the machines that allow you to view up to 60 clips, if you will, from various adult movies, or you go to another machine in another booth, you can... I want to see that entire movie right there, as opposed to the clips.
Unidentified Justice: What is your principal argument in opposition to the rationale in the court of appeals?
I have the feeling we're not letting you make the principal argument here that you wanted to make.
Mr. Klekner: The principal problem with the court of appeals decision is, of course, how it requires... what it requires, the use of secondary effects and how it is discounts, if you will, or disregards this Court's precedent, is effectively what the court of appeals has said.
Not only must we have empirical evidence of secondary effects in general, which the city does have, but you must also show that in this particular case this combination contributes to that secondary effects, which I submit is going to be, on an empirical basis, next to impossible to do.
The third--
Unidentified Justice: If it's next to impossible to do, why should you be allowed, under the First Amendment, to do it?
I mean, it sounds as though you're kind of making an argument from spectral evidence here.
You're saying, well, the evidence that we've got doesn't demonstrate the problem that we're addressing, but we ought to be able to address it anyway.
I mean, isn't that what it boils down to?
Mr. Klekner: --The problem we were addressing was, is there a correlation, to use the term you used, the word you used in Barnes--
Unidentified Justice: Yes.
Mr. Klekner: --between the adult businesses and secondary effects, do they cause a problem.
We have documented that.
Unidentified Justice: And you've documented it, but as I understand it, you've documented it with reference to adult businesses which were not at the time defined or identified as necessarily being businesses that offered only one service, as opposed to a business like these, that offers two, so that the evidence, as I understand it, did not address the issues that is before us now.
Mr. Klekner: But it did address that issue, because it is not reasonable to assume that if you have two businesses side by side in the same block, causing secondary effects, that it can require them to disperse, which is entirely--
Unidentified Justice: Yes, but we're... I think we're playing with words.
You're talking about two businesses side by side, and you were measuring the effects back in '78 of businesses side-by-side.
This is one business.
It's not side-by-side.
It's one business that sells two things within the same storefront.
Mr. Klekner: --But there's no evidence one way or the other--
Unidentified Justice: Isn't that your problem?
Mr. Klekner: --I don't believe it is... it should be a problem.
Unidentified Justice: You measured... you measured the effect of a video store... what do you call these, arcade store, and a bookstore side-by-side, and you found that that was deleterious, and the problem is that you did not measure what the different effect would be if you knocked down the wall between them.
Is there any reason to believe that that would make a difference?
Mr. Klekner: That's the whole point that the city's been trying to make all along.
There's no difference in effect.
You can't assume--
Unidentified Justice: Well, you don't know--
Mr. Klekner: --less or more.
Unidentified Justice: --How do you know that, any more than I know it?
I mean, I see your point when you say, look, if there are two different entrepreneurs on a block, each of them doing whatever they can to draw in clientele, the odds are they're probably going to draw in a greater concentration of people than one.
I mean, I will accept that, as at least intuitive.
Here, we're talking about one entrepreneur, and what seems at least intuitively arguable in the first place doesn't seem to be so obvious in the second instance.
Mr. Klekner: But you are describing this in terms of business organization.
Unidentified Justice: Yes.
Mr. Klekner: Which is not how the city's zoning ordinance works.
The zoning ordinance does not really care whether you're an L.L.P., a corporation on-shore or off-shore, or a sole proprietorship.
Under the reasoning that you're putting forward, I could open up at a location just because I have one company, as many adult businesses as I wish, or alternately, in order to get around the city's ordinance, the two side-by-side companies, businesses form a new corporation, they merge, now we have one corporate entity, ergo, we're home free.
That's not--
Unidentified Justice: And the... but the likelihood that your 1978 evidence is going to bear on these various possibilities depends on more specific facts.
If the two side-by-side entities that merge are, on the one hand, a massage parlor and a bookstore, it seems sensible to say they're going to be drawing the same concentrations of people that they would have as separate entities.
But when you're talking about combinations like books and video, it isn't obvious that you're going to be drawing different concentrations of people, and I think what we're stuck with here is that your evidence, through no fault of Los Angeles in '78, but your evidence just doesn't address the question as specifically as we have it before us now.
Mr. Klekner: --If you look at the nature of the businesses, you come to an arcade to stay there and look, and when you leave that arcade, you have a different frame of mind than if you went to the bookstore, got your shrink-wrapped magazine, put it in a brown paper bag, and went home, so that's one logical deduction you can make from all of the evidence that's before you.
Unidentified Justice: Isn't it an equally logical deduction that by looking at the cover of the shrink-wrapped magazine and watching part of a video clip, or a video clip of something that you ultimately buy, you're going to be left in about the same frame of mind in either case?
Mr. Klekner: No.
I think after watching 60 clips from adult business, from adult videos, as opposed to the cover of a shrink-wrapped magazine... the only reason--
Unidentified Justice: Aren't the... maybe the magazine covers are dull, but I--
[Laughter]
--assumed they were pretty racy, and if you look at 60 covers and 60 clip... I don't know, that's cutting it pretty fine.
Mr. Klekner: --Justice Souter, they're not live action.
Unidentified Justice: Mr. Klekner--
Mr. Klekner: That's the difference.
Unidentified Justice: --Mr. Klekner, your question presented seems to be quite narrow.
It says, is a city zoning ordinance which prohibits the operation of more than one adult entertainment business at a single location, including an adult bookstore and an adult arcade, invalid because the city did not study the negative effects of such combination?
Mr. Klekner: Correct.
Unidentified Justice: It seems to assume the city did not study the combination but, rather, relied on judicially approved statutory precedent from other jurisdictions.
I assume that's some reference to the Hart case from the Carolinas.
Mr. Klekner: Correct, North Carolina.
Unidentified Justice: Because the Ninth Circuit said that wasn't suitable reliance, is that right?
Mr. Klekner: Well, basically what the--
Unidentified Justice: The Ninth Circuit, I thought, thought that wouldn't do it because Hart addressed the health effects--
Mr. Klekner: --No, what the Ninth--
Unidentified Justice: --of the arcades, rather than the effects on crime.
Mr. Klekner: --What the Ninth Circuit effectively said was, there was some doubt whether Hart would survive scrutiny under this Court's Renton decision, but we are certainly confident that under Ninth Circuit precedent it's not a valid law.
The purpose of Hart--
Unidentified Justice: I don't know, it just struck me in reading the question that it was pretty much limited to whether they were right about whether you could rely on the Hart decision.
Mr. Klekner: --Hopefully not.
The city in 1983 specifically relied on its findings in 1977, the study that led up to the original ordinance, which as I said is not at issue.
That ordinance is reasonably... comparatively reasonable, according to plaintiffs.
The problem is... well, the issue with Hart is, Hart was decided in 1979.
It said that the city's '77 study, just as we--
Unidentified Justice: Before the adoption of this amendment?
Mr. Klekner: --That's correct, that in 1979, our study supported a North Carolina statute prohibiting more than one adult business in the location, that that was a sufficient evidentiary basis.
Confirming what the city council thought--
Unidentified Justice: The Ninth Circuit thought that Hart relied on the negative health effects of the arcade.
Mr. Klekner: --We are less... we, the city, is less concerned with the factual differences than with the legal reasoning and the fact that it fully supports, and should have been considered for that purpose by the Ninth Circuit, as validating the intent and purpose of the original ordinance and '83's amendment.
Unidentified Justice: Well, what we're getting down to is just how precise a particular study or a particular decision has to be.
I mean, does it have to be word for word what the city is talking about, or can the city draw reasonable inferences, if it affects A, it also affects B?
Mr. Klekner: That's what hopefully the... well, that's what the city has been trying to do, but again, it goes back to, you know, if you look at your precedents, when a city has these problems, the logical... the logical thing for the city to do is say, ban them.
We can't.
It's a violation of the Constitution.
We accept that.
That's what Renton says.
If you can't ban them, you should be entitled to a reasonable opportunity to experiment.
Unidentified Justice: And where I'm a little confused is, at the beginning of this segment of the argument, when we began focusing on this question, I thought you said something to the effect that we can't show this empirically, and I was surprised.
I thought you would say, look, this isn't rocket science.
If you have just a shoe store, and the shoe store all of a sudden starts to sell clothes, you're going to get more people.
That's the end of it.
Mr. Klekner: But--
Unidentified Justice: I thought that's what you were going to tell, but you--
Mr. Klekner: --When you... well, maybe I misspoke, but when you want to get into the empirical evidence of, are you a bad actor, this particular business is a bad actor, it's a very detailed nuisance type of analysis, and when you have these combinations of adult businesses, or side-by-side adult businesses, and you try to do that same analysis, the immediate thing that is going to occur, the first thing that is going to occur, it's not me, it's my neighbor, it's not me, it's this other part of the business.
We can't be expected to provide for a legislative scheme that detailed particularization of each possible permutation and combination of the problem.
That's exactly what Young and Renton stand for.
Unidentified Justice: --Let me ask you--
--Why doesn't--
--Go ahead.
No, please.
Let me ask you just one general question.
We often have said, the cities can rely on general experience of other cities and other studies, and so forth and so on.
Are there a lot of ordinances out there that follow the pattern of this particular ordinance, that would prohibit a single business from operating both a video arcade and a bookstore in the same location?
Mr. Klekner: There are some, Justice Stevens.
There are others that would permit such combinations, depending upon how the city that's... a particular jurisdiction analyzed the solution.
Unidentified Justice: But there are a substantial number who are similar to the one that we're talking about today?
Mr. Klekner: I won't use an adverb to describe the amount.
There are some.
I don't know if it's substantial or not.
Unidentified Justice: That's an adjective.
Mr. Klekner: Excuse me, yes.
Unidentified Justice: May I go back to Justice O'Connor's question, because she asked how the Hart facts could help you.
As I understand it, the facts in that... number 1, the basis for municipal action in that case was public health, and it was public health based on the sexual activities that were going on inside the booths, and as I understand it, Los Angeles in effect has an ordinance that requires open booths, lights on, freely seen... the booths can be freely seen from the front of the store, and so on, so it seems to me that Los Angeles has taken steps to preclude the health problem that that earlier case addressed and, if that's so, how could that earlier case support the Los Angeles ordinance?
Mr. Klekner: Well, again, the Hart reading of facts in that decision, again go to the fact that these combinations cause problems, and that the city's ordinance... excuse me, the city's study supported the inference that it's okay to... the solution is to separate these businesses.
Unidentified Justice: Yes, but the Hart... as I under... maybe I'm wrong, but I thought the basis for the governmental action in Hart was public health based on the activity that was going on in these booths.
Mr. Klekner: In part, yes.
Unidentified Justice: Yes, so it seems to me that it's off point for you.
Mr. Klekner: If there are no further questions, I'd like to reserve the remainder of my time.
Thank you.
Unidentified Justice: Very well, Mr. Klekner.
Mr. Weston, we'll hear from you.
ORAL ARGUMENT OF JOHN H. WESTON ON BEHALF OF THE RESPONDENTS
Mr. Weston: Mr. Chief Justice, may it please the Court:
At the time we filed our briefs, we knew of no ordinances similar to Los Angeles prohibiting the simultaneous inclusion of an arcade and retail sales within one establishment, other than the one that was in Hart v. Edmisten.
At the time the city adopted it, it itself... let me rephrase that.
At the time the city adopted it, the only one that apparently existed in the United States was the one in North Carolina and, subsequent to the city's adoption, as far as we knew, there were no additional ones throughout the United States.
This is an enormously unique and unusual approach to a problem apparently not supported or shared by the experiences of other cities.
Unidentified Justice: Do you know of any other cities that had the experience of businesses such as the two involved here, which were originally involved in one sex pandering activity, and then, after the ordinance was passed, went into a second one instead of opening up a separate store?
Mr. Weston: Justice Scalia, you'll--
Unidentified Justice: I mean, you know--
Mr. Weston: --You'll--
Unidentified Justice: --they may be unique, but the situation that they confronted may be unique as well.
Mr. Weston: --You'll pardon me for not adopting the reference of the Court in phrasing the nature of the business, but in fact the opposite is quite true.
Respondent's businesses at all times, as is made clear in the joint appendix at pages 19 and 20, as discussed at great length at page 6 of respondent's brief, particularly in footnote 6, at all times operated their arcades in addition to retail distribution, retail dissemination on the premises, in the same establishment of sexually oriented materials.
Unidentified Justice: That's not how I read those pages.
Shall we turn to them, page 20 of the appendix?
Mr. Weston: Please.
Unidentified Justice: Highland Book was issued a picture arcade police permit.
Prior to June of 1991 the only adult type of business use of Highland Books was its picture arcade, which at all times exhibited exclusively adult video tapes.
Mr. Weston: Right.
Unidentified Justice: This is the affidavit of the owner of both of these businesses.
Mr. Weston: That's correct.
Unidentified Justice: Mr. Wiener, right?
Mr. Weston: Yes, that's correct, Justice Scalia, but the point, the use of the term, adult business, was in the way that Los Angeles defined a use, and that if the Court will continue a little bit further--
Unidentified Justice: But that's the only thing that's relevant here.
Mr. Weston: --No, with all respect, Your Honor.
Up until sometime in 1989... well, let me phrase it this way.
For a considerable period of time in California, law existed such that the term, substantial numbers of retail materials... that was the operative term which separated a... an adult bookstore from a nonbookstore.
In other words, if one... one could operate the bookstore and carry a certain amount of adult material and not be denominated adult.
Unidentified Justice: Was he considered really another business?
Mr. Weston: That's correct.
Unidentified Justice: It was ancillary to the other business?
Mr. Weston: That's correct.
Unidentified Justice: Right.
Mr. Weston: Up until a very recent time in Los Angeles history, one could carry up to 49 percent of materials in one store and not be deemed to be an adult bookstore.
Unidentified Justice: This was a Los Angeles County ordinance--
Mr. Weston: No--
Unidentified Justice: --you're referring to now?
Mr. Weston: --No, what I'm referring to is California court decisions which had interpreted the phrase, substantial number, amount of retail stock in trade.
Unidentified Justice: In the county ordinance?
We're not talking about a State law, we're talking about a county ordinance?
Mr. Weston: It wasn't a law, Your Honor.
In other words, the California courts of appeal had construed the term, substantial portion of the stock in trade, to mean anything less--
Unidentified Justice: Why did they... why were they... why did they construe that term?
Where did the term come from?
Mr. Weston: --The term came... was an identical terminology utilized in many, many, ordinances throughout the State of California.
There was a vagueness challenge brought to it, and the court construed the term to mean a preponderance, more than 50 percent of stock in trade in order to avoid the vagueness.
That--
Unidentified Justice: This was a phrase used in a number of different city and county ordinances--
Mr. Weston: --Absolutely, Your Honor.
Unidentified Justice: --in California?
Mr. Weston: Absolutely, and in fact it's interesting to note, because we've spoken about Hart this morning, that the North Carolina statute in Hart was one that pegged the definition of a retail bookstore as a preponderance.
In other words, unless the store carried 51 percent of its stock in trade as adult materials in Hart itself, it would not qualify as an adult bookstore, and--
Unidentified Justice: And that's what you think Mr. Wiener meant when he said in his affidavit, prior to June of 1991 the only adult type of business, the only adult type of business use at Highland Books was its picture arcade which at all times exhibited exclusively adult videotapes?
Mr. Weston: --Yes, Your Honor.
Unidentified Justice: And you think he had in mind that no more than 49 percent of other business was--
Mr. Weston: If I may read--
Unidentified Justice: --That's what the next sentence says.
Mr. Weston: --Yes.
Thank you, Justice Stevens.
The next sentence, Justice Scalia, prior to June of 1991, the majority of items available for retail sale at Highland Books were of a nonadult variety.
Unidentified Justice: That's why the only adult business he was doing there was the other one.
They were of a nonadult variety.
Mr. Weston: But that's--
Unidentified Justice: He's not saying we were selling adult books, but selling less than 50 percent of adult books.
He said the only other business we had was a nonadult business.
Mr. Weston: --Justice Scalia, forgive me, I can only tell you what the circumstances were.
The phraseology that was utilized tried to use the terminology, the confusing terminology that Los Angeles used in terms of its description of what a use is, and Mr. Wiener at the time sold and displayed vast quantities of sexually oriented retail materials in the same stores, but under the L.A. ordinance at the time, it did not constitute an adult use.
Unidentified Justice: Well, I appreciate your testimony to that effect, but what his affidavit clearly says is that the only adult business he did prior to 1991 was the exhibition of adult videotapes.
The majority of the items available for retail sale were of a nonadult variety.
Mr. Weston: Forgive me, Justice Scalia, I don't want to belabor the point--
Unidentified Justice: Okay.
Mr. Weston: --but that's not a fair reading of it.
Prior to June of 1991, the only adult type of business use, the type of business use at Highland Books was its picture arcade.
That is defined exclusively, that term refers exclusively to 1270 of the Los Angeles zoning ordinance which defined a use and labeled a use a business, and the only way that one became an adult business and therefore a separate use was if one's stock in trade was 51 percent or more adult.
Mr. Wiener's was not.
It was substantial, but it was not a preponderance, and therefore the notion that this existed as an arcade bereft of and separate from any retail use is simply neither accurate factually nor supported by the declaration that was offered.
Unidentified Justice: I don't understand what this 51-49 pertains to.
Does it pertain--
Mr. Weston: Stock in trade of the retail establishment.
Unidentified Justice: --Well, and it means that if 49... if less than 51 percent is adult material, you're not--
Mr. Weston: It's not... at the time, in Los Angeles, it was not characterized as an adult use--
Unidentified Justice: --As an adult business.
Mr. Weston: --Adult use or business, that's correct.
Unidentified Justice: Right, okay, but it doesn't mean that if you have 51 percent in one adult business and 49 percent in another adult business, the 49 percent is not an adult business?
Does it mean that as well?
Mr. Weston: That is correct.
The 49 percent of adult retail material did... acted to... let me... if I may phrase it the other way.
51 percent of stock in trade at a business in Los Angeles, if it was adult, made that store adult, even if it was 20,000 total items, and virtually, and nearly 10,000 of them had nothing to do with sexually oriented material.
Unidentified Justice: Mr. Weston, I understand that that division, that that was by inventory not by sales.
Mr. Weston: That's correct, Justice Ginsburg.
Unidentified Justice: Because one of the problems was, you had lots of books, dull books that nobody was going to buy, and that you had... that was what you had for 51 percent, and then you had the stuff that people bought, and that was the 49 percent.
Mr. Weston: The record does not reflect that, Justice Ginsburg.
That may have been the fact although, of course, the opposite may have also been true.
Unidentified Justice: But it's true that it would not have been considered an adult bookstore so long as they maintained that 51-49.
Mr. Weston: That's correct, and if I may, as in Hart, Mr. Wiener's initial businesses, as they were initially constituted, did not conflict with the multiple use provision, notwithstanding the fact that 100 percent of the videotapes viewed in them were adult, and 49 percent or up to 49 percent of the retail items available for sale were also adult.
Unidentified Justice: But can I--
Mr. Weston: That did not constitute two adult uses under California law at that time, and that is exactly what the law was in Hart, that it was perfectly permissible to have 100 percent adult arcade material, and 49 percent retail books, videos and so forth, and that would not have conflicted with the prohibition in Hart.
Unidentified Justice: --Could you... can you explain... I'm just trying to get back to the main point here, at least as I understand it, which may--
Mr. Weston: Yes, Justice Breyer.
Unidentified Justice: --And don't assume I know a lot of the detail that you know.
I want to start this naively, so I take it what they're saying is, look, we have a zoning ordinance.
We have to have some way of defining what's a single business.
If it were a liquor ordinance and we said, selling liquor wholesale is one thing, selling it at a bar is another, so that's two uses, not one.
If it were a meat store which said, over-the-counter is one thing, at the restaurant is another... of course we could do it a million ways.
Mr. Weston: Certainly.
Unidentified Justice: But we have to do it some way, and so forget whether there's evidence or not.
Just let us do what's reasonable here, and this is one, and by the way, if it were a different kind of ordinance, if it were a cubic foot limitation, the fact that they counted it as two separate things rather than one, would cut in your favor, but here it happens to cut against you.
Mr. Weston: Well--
Unidentified Justice: But they say, either way, we're just trying to have a reasonable definition.
All right, now your response is what?
Mr. Weston: --Well, initially.
I think Your Honor... Justice Breyer, you have characterized fairly in some sense the city's position, because the city basically says, so logistically, if it's an adult business it generates secondary effects, and if there is secondary effects and there is adult business regulation not amounting to a ban, we can do anything we want, and courts are directed not to look meaningfully at it, and it simply gets dealt with as a valid ordinance.
But the problem with what Los Angeles has done is that, unlike what would be logical, or unlike what most zoning agencies do, which is to take a combined business such as Your Honor posits and zone it according to the most intense of the combined uses, Los Angeles, for example, makes reference to the fact that it deals with service stations and auto repair places differently, but the remedy that Los Angeles selects for that is not to say, an auto repair place must be here, and 1,000 feet away there must be a place where you... I've said it poorly, but that you cannot have an auto repair place here, combined with a place that pumps gas, even though there are separate uses.
What Los Angeles logically does, as every city does, is permit the combination and then zone the combination use according to the most intense of the combined uses.
Unidentified Justice: No, but that's a bad analogy, because auto places are not... try liquor.
Try thinking of it liquor, and probably they could.
They'd say, we only want one liquor license in 1,000 feet, and if you have a bar you don't have a shop, and it then becomes less obviously unreasonable on its face.
Mr. Weston: Let's take a--
Unidentified Justice: So let's assume it in their favor that way, and then argue against it.
Mr. Weston: --Sure.
Let's take a look at that one.
But what does Los Angeles do?
It doesn't ban the combined use, it simply again... I don't mean Los Angeles.
In your hypothetical, in the bar-restaurant, the zoning regulation would be appropriate for the more intense use, I assume--
Unidentified Justice: But this whole question is something that's secondary.
I thought the question before me is whether or not Los Angeles is reasonable in saying that the combined use draws more people without having a study.
I fully understand that you have an objection to the Government bifurcating your business.
Leave that off the table, so the only question is whether or not this whole business draws more people, and whether or not there's an empirical basis for it.
Isn't that what I'm supposed to decide here?
Mr. Weston: --I'm not quite sure about drawing more people.
I don't think that that was what the... that was not the focus of what Los Angeles was concerned--
Unidentified Justice: You mean, you had the arcade because it didn't draw any more people?
Mr. Weston: --No, it wasn't more people, it was the notion for a variety of reasons, and if we return to Young v. American Mini Theatres, there is at least... there's some indication in Young that it's not simply a question of people, but rather, what is the perception from the outside world?
Unidentified Justice: Well, but not simply a question of people, but surely the kind of secondary effects that have been spoken of in cases depend upon people's activities, and the people aren't 10 miles away, they're somehow associated with the business.
Mr. Weston: Certainly.
I... that's unquestionably reasonable, Mr. Chief Justice, but the articulation by Los Angeles in its statement of legislative purpose, which appears at... it's at page 74 of the appendix to the petition for certiorari, and I'm truncating it, but two or more adult entertainment businesses, operated as a single commercial enterprise.
This concentration of adult entertainment businesses tends to have an adverse impact on the neighborhood in which they are located.
The hypothesis, the asserted harm, was from a combination of adult businesses, and what was the evidence on which Los Angeles relied for this proposition?
The sole evidence was a study that measured not, as has been brought out earlier, whether there were harms unique, there were special harms that developed from a combination of two businesses within a single unitary establishment, but rather, whether there were secondary effects that resulted from the clustering of a dozen, or 15 or 20 unrelated adult businesses.
Unidentified Justice: At some point, Mr. Weston, don't you think the legislature is entitled to draw what might be common sense inferences from the studies that it made, and that it doesn't have to have empirical evidence for every single thing that it does in the ordinance?
Mr. Weston: Of course not, Your Honor, and for example, if the city, as it suggests, which we do not agree with, really thought... I don't mean to cast aspersions on the city.
If, in fact, the city's sense that this adult bookstore-arcade combination was so unique and so unusual, even though there's no evidence in the record of an arcade standing alone anywhere int he United States, except as part of an adult bookstore, but if it was so unique that they really hadn't dealt with it, one could understand that it would be appropriate, as the city has, to accord zoning treatment to this combined use, which is exactly what was done here.
The combined use is not free from the zoning requirements of the City of Los Angeles.
This combined use is 1,000 feet away from any other adult use.
It's 500 feet from any of the protected sensitive areas, and it is within the limited commercial zones which the city says it has to be.
Unidentified Justice: Mr. Weston, incidentally on the other point, I reviewed your footnote.
I tend to read footnotes quickly.
You were right on our other point.
Mr. Weston: Thank you, Justice Scalia.
Unidentified Justice: On--
Mr. Weston: I'm going to go home now.
[Laughter]
I thank the Court for its courtesy.
[Laughter]
This is a memorable day for me.
Unidentified Justice: --It seems to me that if you're objecting to the municipality's use of this other study, which didn't treat combined stores, you... it seems to me you have to tell us why it would be likely that combining the diverse businesses under one roof could make any difference.
I mean, you have situation 1.
You have a whole block full of adult businesses, a video store, a movie house, a bookstore, blah, blah, blah, okay, the whole block full.
Situation 2, you have the same block.
They're just not different stores.
It's just one big... you know, it's just Adult, Inc., and on one side there's the, you know, the arcade, and then the next part of the store there's the movie house, and so forth.
Why in the world would there be any difference in the two situations as far as its impact upon the community is concerned?
Mr. Weston: There are a number of responses to that, and they require a bit of articulation.
They're a little bit different, and as I was starting to say before in terms of Young v. American Mini Theatres, the sole evidence, essentially, in Young v. American Mini Theatres was an affidavit submitted by a man by the name of Mel Ravitz.
In that case, one of the things that Ravitz stressed... and this was, of course, the first concentration zoning, the first case that upheld discriminatory zoning in a sense of motion picture theaters according to the nature of the content of the materials exhibited there, and the basis was, of course, that the reason for the legislation was not because of the materials but, rather, because of some unique secondary effects associated with them, and this was a very unusual ordinance.
It was an anti-Skid Row ordinance originally to which Detroit, long after the original ordinance had been adopted, added adult businesses, and Ravitz' point was this, that there's a self-fulfilling prophecy that develops in a neighborhood when residents or prospective new residents or business people or whatever come into a neighborhood and they see lots and lots and lots of different storefronts, let's say soup kitchen, a rescue mission, pawn shops, adult bookstore, Sam's Adult Arcade, or even your excellent idea, the adult emporium--
[Laughter]
--and as a result, this then becomes a self-fulfilling prophecy of the imminent decline of a neighborhood.
So from the Young perspective, from the sense of declining property values, it becomes very different from having the eight or nine adult businesses to which Your Honor referred to close proximity in one block, or two blocks, which all of a sudden says tenderloin, or red light district, or whatever, as opposed to one single storefront that says, Highland Books, and which does not cause the visual--
Unidentified Justice: But it doesn't have to say that.
I mean, they're entitled to, you know, to divide the storefront into each of its components and have a sign on one that says, you know, adult videos, and then in the next bay have a sign that says, movies, and then the next bay, adult books, and so forth.
Mr. Weston: --But that's no different--
Unidentified Justice: I don't see any difference between--
Mr. Weston: --But that's no different, Justice Scalia, from a single 7-11 store that says, bananas for sale, 99 cents today, rutabagas a dollar and a half, and Coca-Colas on sale here.
It's--
Unidentified Justice: --Mr. Weston, in that respect, would you be making the same argument that you are now making for tapes plus arcade, sales of tapes plus arcade, if the combined uses were a massage parlor and an adult hotel?
Mr. Weston: --That's a very fair and good question, and I've been thinking about that one for a long, long time, and I think the easy answer to it is simply that with respect to the massage parlor there would be no First Amendment interest to protect, and therefore it wouldn't raise the question.
Now, that's a cute lawyer's answer.
It doesn't really help, I know, what you're, obviously what, Justice Ginsburg--
Unidentified Justice: Well, I guess you'd say the same thing about the adult motel.
Mr. Weston: --Absolutely, and--
Unidentified Justice: Although some people might consider that expression.
Mr. Weston: --Absolutely, and in fact I did say that in FW/PBS v. City of Dallas, when one of the three components was an adult motel, but interestingly... and I'll try to address the combination question, but interestingly, and this is one of the things that makes the L.A. study suspect to begin with, is that of the 88 adult uses that were focused on by the police department and the planning department in Hollywood, 41 of them... I beg your pardon.
Of the 9... of the 88 uses, 41 of them were either massage parlors or adult motels.
Unidentified Justice: Well, I don't think that question is fairly subsumed in the question presented.
I mean, I don't think there was any challenge below to the validity of the '77 study so far as it went.
Mr. Weston: No, you're exactly right, Mr. Chief Justice, there wasn't a challenge specifically to it, but as we--
Unidentified Justice: There wasn't a challenge specifically to it.
Are you suggesting there was some unspecific challenge to it?
Mr. Weston: --The specific challenge that was made was whether the study supported the city's stated purpose that combining a bookstore and an arcade in one establishment, in one physical structure, caused the kinds of problems, the only problems which the study evaluated and found and, in fact, in the city's own papers it makes clear, and we set this forth in page 2 of the respondent's appendix, we note to it, rather, in joint appendix 109, that on the contrary, the--
Unidentified Justice: Respondent's--
Mr. Weston: --I beg your pardon.
I've been confusing.
Unidentified Justice: --The red brief, in page 2?
Mr. Weston: Forgive me, Mr. Chief Justice.
I've misspoken.
At joint appendix, the beige document, page 109, there is language from the study that points out several respondents commented that the adverse effects, secondary effects, are related to the degree of concentration, and that one freestanding business may have no effect, and that's really what we're talking about.
Justice Ginsburg, with respect to your question, could there be some issues with respect to combined uses, our great fear in terms of the parsing argument that we have made is that if the city's novel and rather adventurous piece of legislation is upheld, that the next step, as inevitably as night follows the day, will be to parse these business into smaller and smaller kinds of subcomponents that--
Unidentified Justice: But you gave an answer that I didn't think was just a glib lawyer's answer.
You said books, tapes, those come under the First Amendment.
Mr. Weston: --Yes, Your Honor.
Unidentified Justice: Massages don't.
Mr. Weston: Right, and I--
Unidentified Justice: Yes, but what about combining a motion theater and a bookstore?
Mr. Weston: --I would... one would think that the same kind of analogy as we have offered here would be present, that with a motion picture theater and a bookstore there would appear to be no logical suggestion that the two of them would generate any greater secondary effects than the motion picture theater alone.
When we got into area--
Unidentified Justice: Well, look at it a little differently.
I understand your argument about arcades and bookstores being functionally connected, but with bookstores and motion pictures, I think the outburst argument has quite a lot of appeal.
If you had them separately owned and it would violate the ordinance, why should it not violate the ordinance if you combine them?
Mr. Weston: --Well, I'm not sure that the separate ownership is what constitutes the vice aimed at at the ordinance.
It's rather that by the city's unusual definitional situation of calling different media presentations or different uses different businesses, in the same sense like at a 7-11 the dairy section is a business and the--
Unidentified Justice: It seems to me if you have a 7-11 and an A&P next door, it's the same problem as if they're owned by the same owner.
I don't follow the argument when you get to motion pictures and bookstores.
It seems to me that those two businesses operated by separate owners would have precisely the same secondary effect as a single business operating both a motion picture and a bookstore.
Why am I wrong on that?
Mr. Weston: --I'm not aware of any data that would suggest that the combination would... the combination in, Justice Stevens, in your hypothetical that a theater and a bookstore together, I'm not aware of any data that would lead one to reasonably conclude that the combination of a retail use in a motion picture theater would generate more secondary effects than what I assume would be the more intense use, the motion picture theater operating alone.
Unidentified Justice: Well, you conceded a moment ago--
--That may be true... go ahead.
Go ahead.
You--
--That may be true if you interpreted secondary effects as just this look that the neighborhood has by having the businesses strung along the block, but secondary effects is also the number of people come who loiter, who drive around, who concentrate outside.
Then that is a secondary effect that it seems to me would be increased by the two uses.
Mr. Weston: I think that's fair, Justice Kennedy.
Certainly, if secondary effects is nothing more than patronage, then I'm not sure that I could argue, but that's not what the identified and hypothesized secondary effect is on the part... from the city, and in analyzing these ordinances, as I understand the Court's doctrine, one looks at the specific legislation and the asserted stated purpose, asserted statement of purpose, which in this case is whether the concentration of... I should say, the combination of adult businesses within a single unitary establishment causes the same kinds of secondary effects found by a clustering of 12 or 15 or 20 unrelated adult businesses in a very small area in terms of the neighborhood.
That was the city's hypothesized, hypothesis.
Unidentified Justice: Yes, but isn't one way to pose that question to pose it the way Justice Kennedy did?
The question is, does the particular combination increase the degree of clientele, because we know that the greater the clientele, the greater the crime rate is going to be, so there seems to me to be a factual basis for saying that the clientele is a kind of a surrogate measure for those very effects that the city can legitimately try to counteract.
Mr. Weston: With all respect, Justice Souter, I must question the hypothesis that it is the clientele that will cause the problems.
I would--
Unidentified Justice: The amount of clientele is associated with the problems.
It may be that that clientele is preyed upon by other people who come in, but the fact is, I think, that the study shows an association between the number of people concentration to come to these businesses and the secondary effects of crime, et cetera, that the city can do something to prevent.
Mr. Weston: --I--
Unidentified Justice: That's the hypothesis that I'm--
Mr. Weston: --I really don't think so in this instance, because if that were, in fact, the hypothesis of the city, surely, with all of the thought that they have given to this, there would have been an absolute size limitation or a square footage limitation that was part of the legislation to deal just with that problem, but they haven't.
As one of the questions before inquired, suppose it was a 50,000 square adult bookstore or an arcade or a cabaret.
Unidentified Justice: --Maybe they could do that.
You know, we have a one-step-at-a-time principle, that the State doesn't have to do everything it possibly could in order to validate what it has done.
Maybe it should prohibit any more than 250 arcades showing sex videos at one place.
It just hasn't done that yet.
It will get there when that becomes a problem, I assume.
Mr. Weston: And I suppose we'll be back here then having to address that.
Unidentified Justice: You seem to be arguing that we should decide this case on the assumption that the city's evidence, as it now exists, would not be a sustainable basis for an ordinance saying, you can't have two... you can't have 25 different adult uses in one arcade.
Do you want us to decide... are you saying that you're going to go for broke, that we've either got to sustain that proposition, or you lose?
Because I'm suggesting... I mean, my question was mean to suggest that there's a factual difference in degree.
It may be very intuitively obvious that if you put 20 of these uses in one business, you're going to bring in a lot of people, going to have a lot of problems.
It may not be intuitively obvious, and you may need some specific evidence simply by combining videos and books, it may not be intuitively obvious that that is going to create the problem, so I'm suggesting a difference of degree.
Do you reject that?
Mr. Weston: Not at all, Justice Souter.
Of course there may be--
Unidentified Justice: Thank you, Mr. Weston.
Mr. Klekner, you have 2 minutes remaining.
REBUTTAL ARGUMENT OF MICHAEL L. KLEKNER ON BEHALF OF THE PETITIONER
Mr. Klekner: Thank you.
In our reply brief we cite heavily... in our reply brief we cite from the appellee's brief in Young v. American Mini Theatres.
Footnote 7 to our brief quotes the purpose for clustering, which is to attract people.
Basically, you're attracting unattended males on a frolic on their own.
Mr. Wiener, in his, one of his declarations at joint appendix 230, why does he combine businesses?
To attract patrons.
Typically, unattended males on a frolic on their own.
There is no qualitative or quantitative difference in the effect.
Unidentified Justice: Well, if you combine buying, they get out of the store.
If you have only the arcade, they'll linger longer.
Mr. Klekner: Well, that's... they're... you cannot expect an ordinance to solve everything in--
Unidentified Justice: I'm just questioning whether there's going to be more of a problem if you have the stand-alone arcade, where to see the film to the bitter end you have to stay there, but you really like it, so you buy it, and you get out quicker.
Mr. Klekner: --Well, but that's an argument to getting rid of the arcades.
The purpose of these ordinances is to spread out--
Unidentified Justice: But you can't--
Mr. Klekner: --spread out the patronage, to make sure that you don't have this clustering, this magnet effect.
You know, if you want your sex toys and your videos and your books you go to Third and Alameda because that's where everybody goes.
You want to avoid that.
That's the whole purpose of this, so it makes no difference, inferentially, one way or the other if they're side by side or in the same building, and inferences in this Court's precedent doesn't require that we have conclusive evidence, empirical evidence.
Paris Adult Theaters, Nixon v. Shrink, case after case says you can rely on inferences, and if the issue is fairly debatable... this is a debatable issue, you draw... you give deference to the legislative judgment because you can draw different inferences from the same evidence.
That is what's been done here.
We are... thank you.
Chief Justice Rehnquist: Thank you, Mr. Klekner.
The case is submitted.
