Presiding Justice Roger Boren of California’s Division Two Court of Appeal has reversed a Los Angeles Superior Court decision (Kozub v. City of Pomona, B174501) and ruled that the City of Pomona can now shut down Baby Dolls Theater, an exotic dance club, under the city’s zoning ordinance, according to a published report.
The ordinance in question bans adult businesses within 300 feet of a residential zone or 1,000 feet from sensitive uses such as churches, schools and parks, the Metropolitan News Enterprise reported. In order to be constitutional, there must be sites where an adult business can be located. A referee appointed by Los Angeles Superior Court Judge Andrea Richey researched available sites and determined that none were actually available, for a variety of reasons. On that basis Judge Richey commanded enforcement of the ordinance.
In reversing Richey’s decision, Justice Boren said that the referee had used inappropriate litmus tests for determining if there were sites that conformed to the ordinance, according to the report. The referee noted that many of the sites were unavailable because they were not for rent and many of the sites were economically unfeasible because they were too large, or too small or poorly shaped. Both these issues were irrelevant under the law, said Boren.
Boren quoted a Fifth U.S. Circuit Court of Appeals opinion saying that physical aspect of potential sites may exclude them from consideration only if they are “under the ocean, airstrips of international airports, sports stadiums or areas not readily accessible to the public…”
