As Amended on Denial of Rehearing and Rehearing En Banc August 23, 2000.
MICHAEL DALY HAWKINS, Circuit Judge:
The owners of three adult book and video stores and an adult mini-theater (collectively "Plaintiffs") sued the City of
In 1994, Long Beach amended its existing adult entertainment zoning ordinance
Plaintiff Seung Chun Lim owns two adult businesses in Long Beach, both of which are in violation of the ordinance because they are within 300 feet of residential districts. One of his businesses is also located within an area restricted under LBMC § 21.45.110(A)(1)(f). Plaintiff Fluffy, Inc. owns one adult bookstore in Long Beach which is within 300 feet of a residential district and within a restricted area. Plaintiff 5436 Santa Monica Boulevard owns one adult business (a combination mini theater and bookstore) which is within 300 feet of residential districts.
Plaintiffs filed this suit seeking a permanent injunction against enforcement of the ordinance, claiming that the ordinance violates their First Amendment rights as well as the Equal Protection Clause.
The district court found the ordinance constitutional. Where an ordinance does not ban adult businesses outright, but limits the areas of a city in which they may operate, it is considered a content-neutral time, place, and manner restriction. See City of Renton v. Playtime Theatres, 475 U.S. 41, 46, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). The ordinance is constitutional so long as it is designed to serve substantial governmental interests and allows for alternative avenues of communication. See id. The parties do not dispute that curbing the secondary effects of adult businesses is a substantial governmental interest. See City of Erie v. Pap's A.M., 529 U.S. ___, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (statute is content neutral where government's interest is to curb secondary effects of adult businesses). Therefore, the only question presented to the district court, and in this appeal, is whether Long Beach's ordinance unreasonably limits alternative avenues of communication.
During discovery, Long Beach identified 115 sites that it contended were available for use by adult businesses. It provided specific and detailed information about each site. Long Beach also noted that these 115 sites did not represent every site that was potentially available to adult businesses; rather, the 115 locations were an attempt by Long Beach to show the existence of a sufficient number of alternative sites. See Lim, 12 F.Supp.2d at 1062.
STANDARD OF REVIEW
The district court's findings of fact are reviewed for clear error, see Valley Eng'rs Inc. v. Electric Eng'g Co., 158 F.3d 1051, 1052 (9th Cir.1998), while its conclusions of law are reviewed de novo, see Cigna Property and Cas. Ins. Co. v. Polaris Pictures Corp., 159 F.3d 412, 418 (9th Cir.1998). Mixed questions of law and fact are also reviewed de novo. See United States v. City of Spokane, 918 F.2d 84, 86 (9th Cir.1990). A mixed question of law and fact exists when there is no dispute as to the facts, the rule of law is undisputed, and the question is whether the facts satisfy the legal rule. See Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 19, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982); United States v. Lang, 149 F.3d 1044, 1046 (9th Cir.1998).
ALTERNATIVE AVENUES OF COMMUNICATION
As a threshold matter, we note that it is clear that the burden of proving alternative avenues of communication rests on Long Beach.
A city allows for alternative avenues of communication if it offers adult businesses a "reasonable opportunity to open and operate . . . within the city." Renton, 475 U.S. at 54, 106 S.Ct. 925. We have applied a two-step approach to determining whether this condition is satisfied: (1) relocation sites provided to adult businesses must be considered part of an actual business real estate market for commercial enterprises generally; and (2) after excluding those sites that may not properly be considered part of the relevant real estate market, there are an adequate number of relocation sites. See Topanga Press v. City of Los Angeles, 989 F.2d 1524, 1529 (9th Cir.1993).
A. Actual Business Real Estate Market
In Topanga Press, we noted that "[w]e are left to the simple, yet slippery, test of reasonableness when attempting to discern whether land is or is not part of a market in which any business may compete." 989 F.2d at 1530. We then listed five considerations in making the reasonableness determination: (1) a relocation site is not part of the market if it is "unreasonable to believe that it would ever become available to any commercial enterprise;" (2) a relocation site in a manufacturing or industrial zone that is "reasonably accessible to the general public" may also be part of the market; (3) a site in a manufacturing zone that has proper infrastructure may be included in the market; (4) a site must be reasonable for some generic commercial enterprise, although not every particular enterprise, before it can be considered part of the market; and (5) a site that is commercially zoned is part of the relevant market. See id. at 1531. In addition, a site must obviously satisfy the conditions of the zoning ordinance in question. See id.
Plaintiffs argue that the district court erred in considering sites with restrictive leases banning adult entertainment establishments. Under Topanga Press, however, sites must only reasonably become available to some generic commercial enterprise, not specifically to adult businesses. See 989 F.2d at 1531-32 ("The issue is whether any site is part of an actual market for commercial enterprises generally."); cf. Woodall v. City of El Paso (Woodall III), 49 F.3d 1120, 1125-26 (5th Cir.1995) (also noting that large single-use buildings, like warehouses and factories, may arguably be outside commercial real estate market). Here, these sites may be available to commercial enterprises other than adult entertainment businesses. Therefore, the district court did not err in considering this property part of the actual business real estate market.
Plaintiffs also argue that the district court improperly considered certain currently occupied property as part of the actual business real estate market. Topanga Press stated that the requirement that property potentially become available (the first factor, above) "connotes genuine possibility." 989 F.2d at 1531. Thus, for example, property subject to a long-term lease might not meet the Topanga Press test. Id. Plaintiffs contend that under Topanga Press, Long Beach should have been required to prove that the currently occupied property would reasonably become available to any commercial enterprise. Long Beach came forward with a list of 115 sites it contended were potentially available. According to the district court opinion, 12 F.Supp.2d at 1056-62, Long Beach provided pertinent, specific and detailed information about each site. Based on this information, the district court found that Long Beach made a good faith and reasonable attempt to prove that it was providing the Plaintiffs with a reasonable opportunity to open and operate.
A city cannot merely point to a random assortment of properties and simply assert that they are reasonably available to adult businesses. The city's duty to demonstrate the availability of properties is defined, at a bare minimum, by reasonableness and good faith. If a plaintiff can show that a city's attempt is not in fact in good faith or reasonable, by, for example, showing that a representative sample of properties are on their face unavailable, then the city will be required to put forth more detailed evidence. But where a city has provided a good faith and reasonable list of potentially available properties, it is for the Plaintiffs to show that, in fact, certain sites would not reasonably become available. See also Hickerson v. New York City, 146 F.3d 99, 107 (2d Cir.1998) ("[W]e are aware of no federal case . . . that requires municipalities to identify the exact locations to which adult businesses may relocate, as opposed to identifying the general areas that remain
The district court denied Plaintiffs' request to submit additional evidence to satisfy their burden. See Lim, 12 F.Supp.2d at 1065 n. 6. The district court held that such evidence was irrelevant under Renton and Topanga Press. This holding was error in light of our conclusion today that, under Topanga Press, property must have a genuine possibility of coming available for commercial use to be considered part of the relevant commercial real estate market. We therefore remand to permit Plaintiffs to develop and present evidence that Long Beach's proffered properties would not reasonably become available because, for example, they were encumbered by long-term leases.
B. Sufficiency of Alternative Sites
Once the relevant market has been properly defined in light of any additional evidence presented by Plaintiffs on remand, the district court will have to reexamine whether the market contains a sufficient number of potential relocation sites for Plaintiffs' adult businesses. Because it is unclear how many sites will be part of the relevant market, we cannot determine whether the district court correctly concluded that a sufficient number of sites exist to allow Plaintiffs a reasonable opportunity to open and operate.
Plaintiffs also claim that Long Beach violated their equal protection rights by (1) forcing existing adult businesses to relocate under the ordinance while allowing non-adult businesses to remain in place even when in violation of other city zoning ordinances; and (2) forcing adult businesses to comply with new parking regulations while non-adult businesses are exempt. Plaintiffs argue that Long Beach's actions single out adult businesses for unfavorable treatment in violation of the Equal Protection Clause of the Fourteenth Amendment.
It is unclear whether the Plaintiffs have even established that Long Beach only forced non-conforming adult businesses to relocate, and only forced adult businesses to comply with new parking regulations. Even assuming Plaintiffs adequately proved that Long Beach discriminated against adult businesses, however, Plaintiffs' arguments fail.
Where no suspect classification is under scrutiny, the Equal Protection Clause requires that a government's action be rationally related to a permissible government objective. See, e.g., Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). This test has traditionally proved deferential toward the governmental entity. See, e.g., Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949).
Here, there is evidence that Long Beach had a rational reason for enforcing its adult business ordinance and not enforcing other zoning ordinances. Long Beach enforces its adult business ordinance because of its interest in curbing the secondary
AFFIRMED IN PART, REVERSED IN PART, and REMANDED. Costs on appeal to Plaintiffs.