WHITTIER — The city has won a round in the legal fight to shut down the X-rated Pussycat Theatre in Uptown Village.
The U.S. Supreme Court has ordered an appellate court to rehear Whittier's case against the Pussycat Theatre and to take into consideration the high court's ruling in a similar case last week. In that decision, the Supreme Court said that communities may use zoning laws to restrict the location of adult movie theaters.
Last July, the U.S. 9th Circuit Court of Appeals in San Francisco ruled that Whittier's ordinance prohibiting X-rated businesses within 500 feet of homes and 1,000 feet of churches and schools was unconstitutional. The order to rehear the case, announced Monday in Washington, D.C., sets aside the appellate court decision.
While the Supreme Court did not rule directly on the legality of Whittier's adult business ordinance, the city's attorneys view the order to rehear the case as a major break in the eight-year battle to close the Pussycat Theatre on Greenleaf Avenue.
"The city's chances of winning this case now look very good," predicted Benjamin Kaufman, one of the attorneys representing Whittier on the issue.
Ruling Bolsters Efforts
Kaufman said he believes the Supreme Court's approval of a zoning ordinance enacted in Renton, Wash., bolsters Whittier's attempt to boot the 900-seat Pussycat Theatre out of Uptown Village.
But an attorney for the Pussycat Theatre chain said he is confident the Court of Appeals will again find Whittier's zoning law illegal. Stanley Fleishman said the ordinance violates the First Amendment guarantee of freedom of expression. "This is only a temporary setback," said Fleishman, who has represented Walnut Properties Inc., owners of the Pussycat Theatres, since 1961. "We will win this . . . ."
Both sides agreed, however, the case is far from over.
It will be at least a month before the 9th Circuit Court considers Whittier's case. And Kaufman acknowledged that the appellate court could send the case back to U.S. District Court Judge Manuel Real, who two years ago ruled in favor of the theater's right to operate in Uptown Village.
Took Case to Supreme Court
In March, 1984, Real ruled that the city failed to provide sufficient justification for banning an X-rated theater within 500 feet of residences and 1,000 feet of churches or schools. Last July, the Court of Appeals upheld Real's ruling, prompting the city to take its case to the Supreme Court.
"Going back to Judge Real," Kaufman said, "would be like going back to square one . . . ."
Even so, Whittier officials said they now have the advantage in what has become the most expensive legal fight in the city's history--about $100,000 since the first suit was filed against Walnut Properties in the late 1970s.
The belief is tied to the Renton ruling, which essentially upholds the rights of communities to restrict X-rated movie theaters and bookstores to specific areas as a tool to combat the spread of crime, congestion and economic decline that some municipal officials have contended are associated with adult businesses.
Attempts by Renton officials to close Playtime Theater--the only adult theater in the former mining town of 34,000--parallels Whittier's experience. A group of investors from nearby Seattle bought a vacant theater in Renton's downtown soon after city officials adopted their adult business ordinance in April, 1981.
Near a Girls' High School
The theater is within a block of a central park and a girls' high school, which violates the zoning law that prohibits businesses selling sexually explicit material within 1,000 feet of parks, schools, churches or residences.
Renton officials argued that the theater's presence in the heart of downtown would result in urban decay.
Owners of the theater challenged the ordinance, but the Supreme Court ruled in the city's favor because, among other things, it does permit adult businesses within a largely undeveloped 520-acre industrial area.
In 1976, the Supreme Court established the precedent for using zoning powers to limit location of sex-oriented business. The justices upheld a Detroit ordinance requiring the dispersal of adult theaters.
But since then, several federal appeals courts have declared similar municipal ordinances--such as Whittier's--illegal.
As a result, a large number of cities, including Whittier, filed papers and briefs supporting Renton's case, hoping a favorable ruling would have aided their own attempts to close adult businesses.
"Our contention all along has been that the Pussycat Theatre is not compatible with the Uptown Village area," Kaufman said, referring to Whittier's multimillion-dollar make over of the city's old shopping district. The 1930s-era movie house, purchased by Walnut Properties in 1977, is in the middle of the Uptown Redevelopment District.
"The Supreme Court basically said that as long as there are alternative sites in a city for such businesses to operate you can restrict location," he said.