FANTASYLAND VIDEO v. COUNTY OF SAN DIEGO
The Ninth Circuit Court of Appeals today released an opinion in FANTASYLAND VIDEO v. COUNTY OF SAN DIEGO, No. 05-56026, a civil rights appeal. The panel consisted of Barry G. Silverman, William A. Fletcher, and Richard R. Clifton, Circuit Judges.
SILVERMAN, Circuit Judge:
In June 2002, the San Diego County Board of Supervisors adopted a comprehensive zoning ordinance to govern the operation of adult entertainment businesses within its jurisdiction, which covers the unincorporated portions of the county. The ordinance restricts the hours in which such businesses can operate, requires the removal of doors on peep show booths, and limits adult entertainment establishment to areas of the county zoned for industrial use. San Diego County’s stated rationale for the ordinance was to combat negative secondary effects — crime, disorderly conduct, blight, noise, traffic, property value depreciation, and unsanitary behavior — that concentrate in and around adult businesses. The two adult entertainment establishments presently operating in the unincorporated portions of San Diego County filed suit. (The City of San Diego and the other incorporated municipalities in the County are not governed by this ordinance.) In this appeal, the operator of one of the establishments, Fantasyland Video, Inc., appeals the district court’s decision to uphold the ordinance’s hours restriction and openbooth requirement. In its briefing to us, Fantasyland also contended that the hours of operation restriction violated both the First Amendment and the California Constitution. After oral argument, we certified to the California Supreme Court the question of what the proper standard of review is under the California Constitution. Fantasyland Video, Inc. v. County of San Diego, No. 05-56026, 2007 WL 2244146, at *1 (9th Cir. 2007). The California Supreme Court responded that hoursof-operation ordinances for adult businesses are subject to intermediate scrutiny. Fantasyland Video, Inc. v. County of San Diego, No. 05-56026, S155408 (Cal. Sept. 25, 2007) (order denying request to decide a question of California law). In the meantime, Fantasyland advised us of its decision to withdraw its claim that the hours of operation restriction vio. . .