October 21, 2007, by
In Tollis Inc. v. County of San Diego, the Ninth Circuit Court of Appeals upheld a zoning ordinance adopted by the County of San Diego ("County") restricting the location of adult entertainment business to selected industrial zones. The ordinance was adopted to minimize the negative secondary effects associated with adult entertainment businesses.
Appellants challenged the ordinance alleging that the County did not provide sufficient evidence to show how the sexual and pornographic speech associated with the regulations will not be impacted by them. The Court of Appeals rejected this argument and held that the County’s reliance on 68 suitable relocation sites for adult entertainment businesses in industrial zones—on which eight to 10 could operate simultaneously—was adequate for the County to assume that, given the demand for sexual and pornographic speech, the quantity and accessibility of the speech would not be substantially diminished.
Appellants also argued that because the industrial zones identified by the County were not expressly zoned for commercial use they had not been afforded a reasonable opportunity to relocate. Again, the Court of Appeals rejected this argument, holding that the issue is not whether an industrial zone permits commercial uses within its boundaries; rather, the issue is whether the relocation sites identified within the industrial zone are reasonably accessible to the public and have adequate infrastructure.