Roger Jon Diamond, one of Southern California's best-known defenders of adult cabarets, scored another victory in late September, this time for a client who owned a bookstore/arcade in San Diego.
Back in 1997, Diamond's client, George Isbell, purchased the building where his business now stands – a building located within 1,000 feet of residential property and therefore technically in violation of the city's zoning code.
"I did not handle the case initially," Diamond noted. "At the time of purchase, Mr. Isbell apparently felt that the City would grant him a variance, which it refused to do. After being refused a variance, Mr. Isbell sued."
It was not an easy case to argue. At the trial, the city's attorney contended that there were 1,114 alternative sites for adult businesses in San Diego, and therefore, there was no need for Mr. Isbell to utilize the spot he chose. Worse, Diamond's expert agreed that, yes, there were a number of alternative sites, though not as many as the City asserted.
So it was time for a little bit of legal magic – and the City helped in that by revamping its zoning ordinance in 2000.
No one disputed that the zoning ordinance that was in effect from 1997, when Isbell's suit was filed, to 2000, was the ordinance at issue in the lawsuit. However, by the time the case came to trial, the new ordinance was in effect, and the City's expert was retained to study which properties would be available for adult uses under the new ordinance – and in fact, Diamond's expert studied the same. However, that turned out to be the City's mistake.
"At the beginning of the trial, I got the City Attorney to commit to defending the first ordinance, the one that already had been replaced," Diamond explained. "Throughout the trial, therefore, the testimony being offered with respect to available alternative properties was based upon an ordinance – the superceding ordinance – that was not relevant to the case."
"At the end of the case I strenuously argued that the City had failed in its burden of proof because it did not establish the availability of properties under the earlier ordinance, which had since been repealed," Diamond continued. "We were able to persuade the trial court that the City had the burden of proof on the issue of alternative locations. We further persuaded the court to find that the City failed in its burden of proof because it had produced evidence based upon the wrong ordinance."
Diamond also convinced the court that one element of proof which the City needed to establish was what the demand was (and is) for adult businesses in the City of San Diego, because until that demand was known, it would be impossible to determine just how many available sites for adult would be sufficient to meet that demand.
Both of those arguments eventually won the day for Diamond and his client.
"Essentially, the District Court concluded that Isbell should be grandfathered in under the first ordinance, and therefore, it didn't matter whether the second ordinance is or is not constitutional," Diamond summarized. "The District Court ruled that the City failed to meet its burden of proof to establish the validity of the old ordinance."
Thanks to Diamond's fellow First Amendment attorney Randy Garrou, this decision will be published and will be available for citation by other attorneys who may face similar situations. The decision will appear in the Federal Supplement as Isbell v. City of San Diego, F.Supp. 2nd (D.C. Cal. 2006).