December 2006

Ninth Circuit Court of Appeals Reverses Standard Used When Evaluating Retaliatory Search Claims

In Skoog v. Clackamas County, the Ninth Circuit Court of Appeals held that the absence of probable cause is not an element of a retaliatory search claim brought under the First Amendment of the U.S. Constitution. Thus, a retaliatory search claim can proceed regardless of whether or not probable cause supported the search.

Prior to this decision, Ninth Circuit precedent provided that a retaliatory search claim would fail if the defendants could establish probable cause for the search. That is, courts would disregard an officers' subjective intent if probable cause existed.

To view this opinion, click here.

California Supreme Court Upholds Conviction in Medical Marijuana Case

On November 27, 2006, the California Supreme Court issued an opinion upholding an Orange County man's conviction for possession for sale of marijuana and transportation of marijuana. The opinion resolves a conflict in the California Court of Appeal regarding whether the Medical Marijuana Program legislation applies retroactively to cases pending at the time of its enactment. The Supreme Court held that the legislation applies retroactively and, because the defendant presented sufficient evidence to entitle him to a compassionate use instruction as an affirmative defense to the transportation charge, the trial court erred in refusing the instruction. Nevertheless, the Supreme Court held that the instructional error was harmless and reinstated the trial court conviction.

To read the opinion, click here.

Court of Appeal Denies Rehearing of Its Decision that Resident Stated a Claim against City for Violation of the Brown Act's Requirement that City Council Meetings be Open and Public

On November 30, 2006, the Court of Appeal denied rehearing of its opinion entered in Wolfe v. City of Fremont. In Wolfe, the Court held that a City resident successfully stated a claim for violation of the sections of the Brown Act (California Government Code section 54950 et seq.) that prohibit the legislative body of a local agency from conducting nonpublic meetings.

Specifically, the Court held that the City Council of Fremont violated the Brown Act by privately discussing a new policy promulgated by the city's police department. The Court further held that the resident's allegations led directly to the inference that the council members had reached a consensus through nonpublic discussions that took place among them, thereby violating the Act.

To view the Court's denial of rehearing of Wolfe v. City of Fremont, click here.

To view the entire opinion of Wolfe v. Fremont, click here.

California Court of Appeal, 4th District to hear argument in City of Encinitas v. F Street (adult use case) won in trial court

On Wednesday, December 13, the California Court of Appeal, 4th District will hear argument in an adult use case the City of Encinitas won in the trial court in May 2005 -- City of Encinitas v. F Street. The case centers on the definition in the City’s adult ordinance of an adult business which is based on "regular and substantial conduct" and "regular and substantial stock in trade." The use of these standards for regulating adult businesses has been upheld by numerous courts, including the California Supreme Court (there is only one California case on point). In most cases, the courts have addressed whether the City’s application of the standard comported with its own specific guidance as to what constitutes "regular and substantial conduct." In this case, the City of Encinitas did not issue any specific guidance, nor did it define the standard based on percentages of revenue, floor space, or inventory, instead choosing to rely on the totality of the circumstances in each particular case.

F Street opened its adult retail store in the City of Encinitas in August 2003, offering a full spectrum of adult fare including hard core videos and DVDs, sexual devices, how to manuals and the like -- all in the wrong zone and too close to residences and a daycare facility. F Street argued that while the adult items were a regular part of their stock in trade, they were not a substantial portion of the stock in trade since they never exceeded 15% of the store’s inventory (the majority of the "inventory" was padded with bulk books, many of which were stacked on top of the shelves to the ceiling and never removed from the shrink wrap, and used National Geographics and Harlequin Romances, which were packed into a storage space behind the front window). Shortly after the store opened, the City filed an action in state court to enjoin F Street from operating an adult business in the wrong zone and in violation of the distance restrictions from sensitive uses. F Street filed a cross complaint, arguing that the "regular and substantial conduct" standard was unconstitutionally vague and the City’s use of that standard violated their civil rights.

At trial, the court first ruled that the City’s "regular and substantial course of conduct" standard is constitutional and the term "substantial" used in the City’s definitions is sufficiently definite and readily understood. Next, the City established that under the City’s definition, the totality of the circumstances determine whether a business meets the City’s definition of an "adult business." In this case, F Street is a well known chain of adult stores that advertises itself as THE adult superstore in San Diego County. The F Street name, logos and advertising appeared prominently throughout the store, in the front windows and around the parking lot. When the store opened, the extensive adult merchandise was displayed throughout the main floor area and hundreds of DVDs and videos lined the front and a side wall of the store. More than 80% of the store’s revenues came from the adult items, which were simply restocked when they were sold.

Less than two months after the store opened, Encinitas obtained a preliminary injunction which ordered F Street to cease operating as an adult store at its location. F Street simply reduced the percentage of adult merchandise and moved it to a large back room in the store which had no door and was immediately adjacent to the rear entrance of the store. At the conclusion of the trial, the court determined that F Street was operating as an "adult business" both when it opened and after the preliminary injunction issued and the store was reconfigured. The court issued a permanent injunction ordering F Street to cease selling any adult merchandise at the Encinitas location.

In its appeal, F Street argues that the trial court should have relied on the percentages of inventory and floor space devoted to adult merchandise in determining whether it was operating as an "adult business." F Street also argues that it was not lawful for the trial court to enjoin F Street from selling any adult merchandise at the Encinitas store.

Please review this blog to keep posted as to the appellate court’s ruling.

Court of Appeal Holds that Regulation Limiting Campaign Contributions Drafted by the California Fair Political Practices Commission Conflicts with the Political Reform Act

In Citizens to Save California v. California Fair Political Practices Commission, the Court of Appeal upheld the trial court's ruling in favor of plaintiffs, campaign committee and candidate, which challenged a regulation promulgated by the California Fair Political Fair Political Practices Commission (FPPC) to limit campaign contributions.

Specifically, the Court agreed with the trial court which concluded that plaintiffs would likely prevail on their claims that the regulation was unconstitutional and exceeded FPPC's statutory authority. Also, because the trial court believed that plaintiffs would otherwise suffer irreparable harm because of the regulations negative effect on plaintiffs' First Amendment rights, the court granted a preliminary injunction pending trial.

To review the entire opinion, click here.

City of Newport Beach States Fears of Use of Eminent Domain Are Premature

Apparently, the City of Newport Beach is searching for a site for its new City Hall. The owners of the Newport Center's tennis club fear they may be the site the City is looking for and if they don't sell, the City will use condemnation to acquire their land. The City voted to appraise the land in October and there are claims the City is in negotiations to purchase the property. However, the City counters that talk of using eminent domain is premature - the appraisal has not even been finalized or reviewed by City officials. According to a City Council member, if the land is too costly, the City would not be able to pursue plans for such a project.

California Supreme Court Reviewing Civil Rights Strict Liability Case

California cities and adult use operators alike are monitoring Manta Management Corporation v. City of San Bernardino (Case No. S144492) currently being reviewed by the California Supreme Court. According to the City of San Bernardino, the case will decide whether "cities will have unlimited strict liability any time a preliminary injunction is not sustained at trial based on federal constitutional grounds." The Court of Appeal upheld a verdict against the city awarding $1.4 million in lost-profit damages for closing a strip club with a preliminary injunction in violation the owner’s First Amendment rights. The City argued that seeking redress through the courts is not a violation of the First Amendment, so no civil rights damages should have been awarded. The Court of Appeal was unpersuaded, but the high court could reach a different conclusion. The case may have far-reaching consequences for California public agencies like Cities and Counties depending upon how the Supreme Court rules.

Briefing has been completed and oral argument will likely be schedule within a year. You can view current information on the case docket, and sign up for email notifications about the case, by clicking here