City of Encinitas Prevails in Decision Regarding "Adult Business" Definition

In City of Encinitas v. F Street, the Court of Appeal affirmed a judgment in favor of the City of Encinitas, declaring the F Street adult retail store in Encinitas to be a public nuisance because it was operating in violation of the City’s zoning code and in close proximity to residential neighborhoods and a daycare facility. Encinitas’ adult business definition employs the defining term of "regular and substantial." The adult retail operator insisted that Encinitas had to specify a set percentage of inventory or floor space area devoted to adult materials. The Court rejected F Street’s position and found that the City’s definition of an adult business was constitutionally sound. The Court relied on the California Supreme Court’s decision in People v. Superior Court (Lucero) (1989) 49 Cal.3d 14, 26, where the high court specifically rejected the premise that a local agency must utilize a mathematical standard to determine whether a business is an "adult business" subject to the agency’s adult ordinances.

The Court also rejected F Street’s argument that adult materials could not be considered to be a "substantial" portion of the business if they only constituted 12% of the store’s floor space and inventory. The Court recognized that floor space and inventory figures are both subject to significant manipulation and found it compelling that sales and rentals of adult videos and DVDs made up well over 25% of the store’s gross revenue in the first several months, even though they constituted a fraction of the adult inventory and were displayed on wall racks, thereby occupying a miniscule amount of floor area. The Court upheld the trial court’s conclusion that the F Street store in Encinitas was an "adult business" within the meaning of the City’s ordinances.

The Court summarily rejected F Street’s claim that the City violated its right to equal protection as being completely unsupported by the evidence. The Court then remanded the opinion to the trial court for the limited purpose of re-crafting the permanent injunction in keeping with the decision and the City’s adult ordinance.