A Superior Court judge has ruled that the F Street bookstore is permanently banned from operating as an adult bookstore, concluding the company violated a city ordinance, according to a published report.
Judge Lisa Guy-Schall, who had earlier found the ordinance constitutional, issued a permanent injunction to stop F Street from operating as an adult-oriented business, the San Diego Union-Tribune reported.
She denied arguments from the company that its rights were violated because the city enforced the law too stringently and that it focused solely on the company even though other stores in the city sold adult materials.
"The operation of F Street in violation of the adult business regulations should be permanently abated as a public nuisance," Guy-Schall wrote.
F Street attorney Andy Zmurkiewicz was not immediately available for comment Monday.
F Street has the right to appeal, according to the report. But the decision, which stems from a three-day trial in May, becomes permanent within two weeks if no one challenges it, according to the report.
The Encinitas ordinance regulates adult businesses and prohibits them from operating within 750 feet of residences, parks, religious institutions, schools or child day-care facilities. An alley separates the Encinitas F Street from several homes, and a day-care operation is less than 500 feet away.
The judge determined that F Street knew it violated the city law, but still chose to open the store, the newspaper said.
"F Street could have selected a location in a zone where adult businesses are permitted in (Encinitas) . . . but it chose not to do so," Guy-Schall wrote.
Another issue in the case, according to the Union-Tribune, was the use of the word "substantial" in the city ordinance regarding the amount of adult merchandise offered for sale by a business.
Zmurkiewicz argued there is no legal way to define "substantial" and asked the judge to create guidelines on how to operate, according to the report. For example, the company could operate a bookstore where only 15 percent of the merchandise is adult material, he said.
The judge rejected that argument, saying there is ample case law that allows each city to define the word "substantial" in an ordinance. She also found fault with the percentage concept, noting that even if 15 percent of the merchandise were adult materials that it could make up 80 percent of sales.
"(Guy-Schall) rejects F Street's claim that (Encinitas') definition of an 'Adult Business' must rely exclusively on a percentage of floor space and inventory," the judge wrote.
