Deja Vu Love Boutique Sues City of Industry
Zoning board cites percentage store for Internet terminals
CITY OF INDUSTRY, Calif. –
Posted Aug 21st, 2008 06:05 PM by Mark Kernes
Apparently, it's called City of Industry for a reason.
"I think they have something like 60 residences in the entire city," said attorney A. Dale Manicom, who represents Industry Boutique, the local branch of the Déjà Vu Love Boutique chain, "so I think they're kind of gearing themselves toward industry."
"So they have a zoning system that has commercial zones and it has commercial uses permitted in those zones," Manicom continued, "but usually a city has it set up so that they have permitted uses, conditionally permitted uses and prohibited uses. The City of Industry has permitted uses and conditionally permitted uses, and they specifically list under those two categories the uses that are permissible in the city, one just over-the-counter and the other going through a conditional use permit process. And if you look down their list, it doesn't say that 'Internet café' is a permitted use; it doesn't say 'Internet access service,' which is what I'm calling it, is permitted either."
Industry Boutique is a percentage store. They sell some adult items, but not enough to trigger the city's adult use ordinance. However, last May, Industry Boutique installed a number of computer terminals where, for a small fee, customers could access the Internet and read whatever they wanted online. If they also served coffee, the installation might be called an Internet café, but Manicom prefers the other appellation, since the store doesn't serve coffee, and Manicom doesn't need any unnecessary trouble from city health inspectors.
But trouble, they have had. Seems the city's municipal code enforcement officer somehow learned about the Internet terminals, and issued four citations to the store in June and July, charging that Internet access was not a permitted use under the city's zoning ordinance in Zone C (for "commercial") where Industry Boutique is located. And that's a problem.
"Ordinarily, other cities have a 'or similar type use' clause in their code," Manicom explained, "and they have someone appointed who's the development manager or city manager or some person who makes a decision that, 'Well, yeah, we can shoehorn it into this category because it's similar in this regard or that regard.' They [City of Industry] don't have that relief valve available in their ordinance. It's either in there or it's not there. If it's not there, then you can make a proposal that the city amend their ordinance to include that use that you want to do, but it's strictly discretionary."
So far, the city hasn't been willing to amend its ordinance.
"If they choose to give it to you, after staff reviews it, if they think it's worthy, they [staff] will make a recommendation to the city council, but of course, you've got to get through that first hurdle of that staff review," Manicom said. "Then you've got a second review by the people that sit on the city council, and they can say 'yea' or 'nay.' That seems a little iffy to me for a First Amendment conditional use."
"I tried to talk to them before, suggesting that they look at Schad v. Borough of Mt. Ephraim
; then maybe that would give them a clue that you can't totally ban protected expression," he continued. "That was entertainment, which is expressive conduct sometimes, and this is just pure access to the Internet. I made the point that I don't see the difference between our situation and their saying, 'We don't have any newspapers in our city; you can't sell any newspapers here.' I'm thinking that probably wouldn't fly even with our current Supreme Court."
case involved an adult bookstore in southern New Jersey that began offering coin-operated booths that featured live nude dancers. The Supreme Court held that since Schad was already allowed to exhibit films of such activity in its arcade booths, the Borough could not ban the newly-offered entertainment simply because it depicted live what was previously available on film. However, Manicom noted that the City of Industry has voiced no objection as to what material might be accessed over the Internet by paying patrons; it simply objects to the Internet access altogether.
"We will have to see what they will do," Manicom stated. "We filed our suit on the 15th, and I sent the city a Notice of Acknowledgment, asking them to accept service [of the suit papers] that way. My next move would be to file for a preliminary injunction, but frankly, I don't think we're going to get a TRO [temporary restraining order]; what's going to happen is that the judge will put it on for an early preliminary injunction hearing. I would hope that we'd be able to resolve it short of that, but if not, that would be my next move."