SAN FRANCISCO — Cities can restrict the location of theaters that show certain types of sexually explicit films on a "regular basis," the state Supreme Court ruled today over the first-ever dissent of new Justice Joyce Kennard.
The case, from Long Beach, involved the issue of how often a theater must show sex films to qualify as an "adult" theater subject to zoning restrictions in many cities.
Four of the seven justices, led by Chief Justice Malcolm Lucas, voted to allow restrictions on theaters that have a "regular and substantial course of conduct" of showing films that portray specified sexual activities or parts of the body.
The standard, which the court did not fully define, was a halfway measure between classifying a theater as "adult" based on a single showing of a film, a standard sought by Long Beach prosecutors, and a widely followed 1981 state appeals court ruling that prohibited zoning restrictions in most cases unless more than half of a theater's films were sex films.
Kennard, who was appointed to the court in April by Gov. George Deukmejian, wrote her first opinion in the case as one of three dissenters, along with Justices Allen E. Broussard and Stanley Mosk.
She argued that the restrictions authorized by the majority were vague, making it difficult for theater owners to know how to comply, and that the court should have waited for the city to propose its own standards.
Barry Fisher, a lawyer for a Long Beach Pussycat theater owner who was prosecuted for zoning violations, called the ruling "a substantial victory" for its rejection of zoning based on a single showing of a film, but said the court's new standard appeared to be "subject to abuse in the hands of those that would censor."
The Long Beach ordinance requires adult theaters to be at least 500 feet from residential areas and 1,000 feet from schools, parks, playgrounds, churches or other adult theaters.