Gammoh v. City of Anaheim

BADI ABRAHIM GAMMOH, Plaintiff and Appellant, v. CITY OF ANAHEIM, Defendant and Respondent. No. G020502 (Super. Ct. No. 736182) California Court ofAppeal Fourth Appellate District Division Three Filed July 29, 1999
ORDER DENYING REHEARING AND MODIFYING OPINION; NO CHANGE IN JUDGMENT
        The petition for rehearing is DENIED.
        The opinion filed in this case on June 29, 1999 is hereby modified as follows:

        In the last paragraph of page 31 of the slip opinion, the sentence which previously read, "There was a hearing during which no evidence was taken and no factual findings were made." should be modified to read: "While declarations were submitted, no evidence was taken at the hearing and no factual findings were made."
        At the top of page 52 of the slip opinion, the word "always" should be inserted between "is" and "constitutional" and the words "as applied" should be inserted after the word "constitutional."
        In the top paragraph of 53 of the slip opinion, the citation should now read: "(See City of Renton v. Playtime Theaters, Inc. (1986) 475 U.S. 41, 50; Smith v. County of Los Angeles (1994) 24 Cal.App.4th 990, 1005 ['To be constitutional these impacts must be "secondary" effects of the adult business, e.g., traffic, crime, etc., not objections to the content of the expressive activity taking place at the adult business.'].)"
        At page 94 of the slip opinion, the following new footnote 7 should be inserted at the end of the first sentence in the last paragraph immediately following the words "on the merits": "7. To quote from page 37 of the city's respondent's brief: 'In Denying Appellant's Request for Issuance of the Writ, this Court Necessarily Decided and Rejected Appellant's Alternative Sites Argument. [¶] Appellant's alternative sites argument was necessarily decided by this Court when it denied Appellant's request to issue the writ.' Actually, what we denied was a request by Gammoh to treat a previously filed appeal as a writ petition instead of dismissing the appeal. For purposes of our discussion here, we will assume that the denial of Gammoh's request was the functional equivalent of denying a petition for writ of mandate. (See U.S. Financial v. Sullivan (1974) 37 Cal.App.3d 5, 12 (treating defective appeal as writ held appropriate where facts showed 'propriety of a petition for writ of mandate in the first instance').)" All following footnotes should be accordingly renumbered.
        At page 125 of the slip opinion, old footnote 8 should be deleted and the following new footnote, which will be footnote 9, put in its place: "9. The city strenuously argues that to say a facially constitutional adult business zoning ordinance may be unconstitutional as applied is to introduce a fatal element of discretion into the analysis, in contravention of Dease, supra, 826 F.Supp. 336 and Smith, supra, 24 Cal.App.4th 990, 1000 (finding Dease 'persuasive' and holding that county ordinance was unconstitutional because its vagueness as to buffering gave officials too much discretion). The argument is an attempt to use Dease and Smith as swords to infringe free speech rather than, as they were written, as shields protecting free speech. It is a non sequitur to say that because an ordinance cannot give officials discretion to subject the exercise of free speech to the prior restraint of a license without narrow, objective and definite standards -- as Dease and Smith certainly hold -- that an ordinance which does subject free speech to prior restraint because it sets forth narrow, objective and definite standards can never be unconstitutional as applied to a given situation. Indeed, Smith adumbrated our analysis when it pointed out that one of the deficiencies in the county ordinance there at issue was too vague because it referred to any zone in which residences were 'permitted" no matter 'how it is or will be used.' (See Smith, supra, 24 Cal.App.4th at p. 1006.) It does not vest city officials with unconstitutional discretion to censor free speech merely to say that there may be times when a variance to an otherwise facially constitutional adult zoning ordinance must be granted.
        "Of course, our opinion on the 'as applied issue' should not be read more broadly than the narrow facts of this particular case: a single, vacant, irregularly shaped lot in an industrial area which only the most eccentric person would use to build a custom home. The case of a tract of land likely to be developed into a residential neighborhood is not before us. We also express no opinion on any civil rights liability which might, or might not, pertain to a city's decision to grant a variance. Suffice to say that city councils grant variances to zoning ordinances on a relatively regular basis."
        These modifications do not effect a change in the judgment.


WE CONCUR:
        CROSBY, J.
        RYLAARSDAM, J.



1        See Daily Appellate Report of July 1, 1999, page 6685, column 2, fourth full paragraph, lines 3-5.

2        See Daily Appellate Report of July 1, 1999, page 6686, column 1, third full paragraph, line 6.

3        See Daily Appellate Report of July 1, 1999, page 6686, column 1, third full paragraph, line 11.

4        See Daily Appellate Report of July 1, 1999, page 6687, column 2, second full paragraph, line 4.

4        See Daily Appellate Report of July 1, 1999, page 6688, column 2, second full paragraph, line 8.