The City of Narrow Shoulders – The Ukiah Daily Journal

Anaheim, California may have Disneyland, but it has also attracted more than its share of… non-family entertainment. In fact, distressed by the types of businesses that want to set up shop in the city, the Anaheim City Council has tried over the years to make it much harder for “adult cabaret” businesses to locate within its limits.

The city's first law was struck down in 1993 by a federal court, which ruled that Anaheim's “adult cabaret” violated the First Amendment. The city's planning commission had discretion under the ordinance to determine what types of activities could be conducted in such a “cabaret,” making the ordinance a “prior restraint” on free speech. The federal court said it was a restraint on free speech because “it essentially requires the licensee to obtain government permission or approval before engaging in a speech act.”

Well, before engaging in certain types of acts, anyway.

So Anaheim passed a new ordinance. The city said the ordinance was valid because it gave the City Council or Planning Commission no discretion to deny a permit based on free speech; adult-only businesses were allowed as long as they were not located within 400 feet of a residential area.

This time, the ordinance was challenged in state court by a man named Badi Gammoh. The city denied the permit, even though Mr. Gammoh wanted to locate his business on what he described as a “God-forsaken brownfield.” It would have been located less than 400 feet from a very thin, wedge-shaped vacant lot immediately adjacent to a highway on which it was theoretically possible to build a house. Mr. Gammoh appealed, and in 1999, the appeals court ruled on his challenge.

The court began by noting the odd choice of term for Gammoh's business plan. “Usually, euphemisms get in the way of thinking clearly about a subject, and the terms 'adult cabaret' and 'adult entertainment' have a euphemistic ring to them.” The court was particularly troubled by the term “cabaret,” which it said would likely correspond to the type of establishment associated with “images of Weimar Republic decadence and Marlene Dietrich kitsch.” It said that Gammoh's business would more accurately be called a “strip club,” but that the term “also carries a pejorative and unnecessarily judgmental flavor.”

Well, you can't have it either way. The court also asked, “What law of nature, for example, requires Gammoh to build a tacky 'bar' instead of a tasteful 'theater'?” The court initially suggested “a burlesque house,” except that conjured up images of “comedians in baggy pants” who would be “interspersed between dancers.” So the court ended up with “adult cabaret.”

Phew, I'm glad we got the important stuff out of the way first!

The court first rejected the idea that being within 400 feet of that thin parcel could justify denying the permit. So the city offered two alternative arguments. First, it claimed that it had designated the industrial area where Gammoh wanted to locate as off-limits to adult-only businesses. The court wrote, “The irony is not lost on us: the area was considered too ‘downscale’ for an adult-only business!”

The second argument was more subtle: The city banned adult businesses within 100 feet of a highway, fearing that doing so would harm the city's image. In response, the court observed that “cities have different reputations and general images, of course. Some have broad shoulders (Chicago); some compare themselves to big fruit (Buenos Aires, New York); some are known for fountains and hills (Rome); some for heavy industry (Detroit, aka 'Motown'); some, when you get tired of it [them]one almost gets tired of life (Samuel Johnson on London). A joker once described Las Vegas after it opened a series of hotels with daycares as a “sin city with baby strollers.”

But when it comes to regulating adult businesses, the court explained, “the municipal image qua image is bound to run afoul of the First Amendment.” While caring about the city's “image” is a natural thing for city officials to do, it's essentially the same thing that had gotten Anaheim into trouble six years earlier. The court ordered Anaheim to approve Gammoh's request.

Still, whatever trouble its anti-adult ordinances may have caused Anaheim in the courts, the council's efforts were likely well received by voters. After all, there was still that big amusement park with the statue of Walt and the greatest love of his life, Mickey Mouse. And it would continue to draw millions of visitors to Anaheim, too.

Sin city with baby strollers, indeed.

Frank Zotter, Jr. is a Ukiah attorney.