In Tollis Inc. v. County of San Diego, No. 05-56300 (Oct. 10, 2007), the US Court of Appeals for the Ninth Circuit affirmed the district court’s determination that the county’s “adult entertainment business” ordinance was, for the most part, legal. The ordinance survived First Amendment challenges under the City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986) test, and under California law requiring that a zoning ordinance be consistent with the general plan. Dean Patricia Salkin analyzes the opinion in detail here.
However, the district court held the requirement that an adult entertainment business owner first seek a permit was unconstitutional because the 130 or 140 days it granted to the licensing body to consider the request is unreasonably long. The court severed the unconstitutional time limits from the ordinance:
Based on the Legislative Record, and review of the affected ordinance, the Court finds the unconstitutional procedural provisions severable. Specifically, the remainder of the ordinance (the substantive zoning provisions) is sufficiently complete in itself, and the County likely would have adopted the amended zoning ordinance, even if it had foreseen some of its procedural provisions would be invalidated.
Fantasyland Video, Inc. v. County of San Diego, 474 F. Supp. 2d 1094, 1147 (S.D. Cal. 2005). Severance means if one part of a law is unconstitutional, that under certain conditions, the court can simply remove it without striking down the remainder. The Ninth Circuit held that the district court was too narrow in its severance. The court should not only have removed the time limitations, but should have struck down the whole permit requirement, since if the time limitations were struck down, the ordinance would contain no time limits at all, and consequently the whole licensing requirement would be “patently unconstitutional.” Thus, the ordinance as it now stands (until presumably amended, that is) contains substantive requirements, but no requirement that the adult business obtain a permit.
For the related Fantasyland Video appeal, see here.