Playtime Theaters, Inc., a Washington Corporation, et al.,plaintiffs- Appellants, v. the City of Renton, et al., Defendants-appellees.the City of Renton, a Municipal Corporation, et al.,plaintiffs-appellants, v. Playtime Theaters, Inc., a Washington Corporation, et al.,defendants- Appellees, 748 F.2d 527 (9th Cir. 1984)

These consolidated cases are declaratory judgment actions involving the constitutionality of the City of Renton's zoning ordinances regulating the location of adult motion picture theaters.

In case number 83-3805, Playtime Theaters, Inc. ("Playtime") appeals the district court's order denying a permanent injunction and finding that the ordinance furthers a substantial governmental interest, is unrelated to the suppression of speech, and is no more restrictive than necessary to further that interest. Case number 83-3980 is a declaratory action involving the same parties and issues, filed by the City of Renton in state court after federal proceedings had begun. This action was twice removed to federal court and twice remanded to state court. Renton appeals the district court's denial of its motion for fees and costs on the second removal. We reverse in number 83-3805 and affirm in number 83-3980.

* BACKGROUND

In April, 1981, the City of Renton enacted ordinance number 3526 which prohibited any "adult motion picture theater"¹  within one thousand feet of any residential zone or single or multiple family dwelling, any church or other religious institution, and any public park or area zoned for such use. The ordinance further prohibited any such theater from locating within one mile of any public or private school. At the time this ordinance was enacted, no adult theaters were located in Renton, although there were other theaters within the proscribed area.

In January, 1982, Playtime acquired two existing theaters in Renton with the purpose of exhibiting adult motion pictures in at least one, the Renton Theater, which is located within the area proscribed by ordinance number 3526.² 

Just prior to closing the sale of the theater, on January 20, 1982, Playtime filed an action in federal court, seeking a declaration that the ordinance was unconstitutional and a permanent injunction against its enforcement.

A month later, on February 19, 1982, Renton brought suit in state court seeking a declaratory judgment that the ordinance was constitutional on its face and as applied to Playtime's proposed use. The complaint alleged that an actual dispute existed because of the pending federal lawsuit and because Playtime asserted that the ordinance was unconstitutional. On February 22, 1982, Renton moved to dismiss Playtime's federal action on the grounds that the federal court should abstain in favor of the state action, citing Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), and Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S. Ct. 1200, 43 L. Ed. 2d 482 (1975).

On March 8, 1982, Playtime removed the state action to federal court and Renton moved to remand. On March 25, the magistrate filed his recommendation that abstention was improper in the first action and on April 9, he recommended that the removed state action be remanded for lack of jurisdiction because the complaint failed to state a claim upon which relief could be granted. The district court approved both recommendations, denying the motion to dismiss the federal action on May 5, 1982, and remanding the state action on January 13, 1983.

On May 3, 1982, Renton passed an emergency ordinance, amending ordinance number 3526. The new ordinance added an elaborate statement of reasons for the enactment of the ordinances,³  it further defined the word "used,"⁴  and it reduced the required distance from schools from one mile to 1000 feet. The ordinance also contained a clause stating that the federal litigation created an emergency making immediate adoption of the new ordinance necessary.⁵  The ordinance was reenacted on June 14, 1982, without the emergency clause.

On June 23, 1982, the magistrate heard Playtime's motion for preliminary injunction and Renton's motions to dismiss and for summary judgment. On November 5, 1982, he filed his recommendation to deny Renton's motion and to grant Playtime a preliminary injunction. He found that the ordinance "for all practical purposes excludes adult theaters from the City," that only 200 acres were not restricted by the ordinance, and that all of these areas were "entirely unsuited to movie theater use." He further found that Renton had not established a factual basis for the adoption of the ordinance and that the motives behind the ordinance reflected "simple distaste for adult theaters because of the content of the films shown." On January 11, 1983, the district court entered an order approving and adopting these findings and granting a preliminary injunction.⁶  For the first time, Playtime began showing adult movies at the Renton Theater.

On February 8, 1983, the parties entered into a stipulation to submit the case for hearing on whether a permanent injunction should issue on the basis of the record already developed. On February 17, 1983, the district court vacated the preliminary injunction and denied the permanent injunction. The court found that 520 acres were available as potential sites for adult theater use and that this ordinance did not substantially restrict first amendment interests.⁷  The court further held that Renton was not required to show specific adverse impact on Renton from the operation of adult theaters but could rely on the experiences of other cities. Lastly, the court found that the purposes of the ordinance were unrelated to the suppression of speech and that the restrictions it imposed were no greater than necessary to further the governmental interest.

On May 19, 1983, after denial of the permanent injunction, and after the notice of appeal was filed in this court, Renton filed an amended complaint in state court seeking, in addition to the originally requested declaratory relief, abatement of the operation of Playtime's adult theaters. On June 8, 1983, Playtime removed the action to federal court on the ground that Renton sought to enforce statutes that had been declared unconstitutional by this court. The district court remanded because the case did not arise under federal law; the federal issue was only a defense. It denied Renton's motion for costs and fees because it found that the petition raised serious questions of law and that Playtime had not acted in bad faith. Renton appeals the denial of costs and fees.

II

JURISDICTION

Renton argues that abstention was appropriate in this case because it involves vital state interests, see Railroad Commission v. Pullman Co., 312 U.S. 496, 501, 61 S. Ct. 643, 645, 85 L. Ed. 971 (1941), and because the exercise of federal jurisdiction would interfere with the pending state action, see Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). We do not agree.

A. Pullman Abstention is Inappropriate in This Case.

We recently held that the Pullman abstention doctrine was inapplicable in a facial challenge to Washington's anti-obscenity statute. J-R Distributors, Inc. v. Eikenberry, 725 F.2d 482 (9th Cir. 1984). We recognized that Pullman abstention would almost never be appropriate in first amendment cases because such cases involve strong federal interests and because abstention could result in the suppression of free speech. Id. at 487-88. Similarly, we find that the district court in the case at hand appropriately declined to abstain because "abstention would not eliminate or materially alter the constitutional issues presented." Spokane Arcades, Inc. v. Brockett, 631 F.2d 135, 137 (9th Cir. 1980), aff'd mem., 454 U.S. 1022, 102 S. Ct. 557, 70 L. Ed. 2d 468 (1981).

B. Younger Abstention is Inappropriate in This Case.

We find Younger abstention inappropriate as well. Federal courts, concerned for federal-state comity, have employed Younger abstention to prevent federal interference with pending state criminal proceedings. Goldie's Bookstore, Inc. v. Superior Court, 739 F.2d 466, 469 (9th Cir. 1984); see also Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S. Ct. 1200, 43 L. Ed. 2d 482 (1975). In this case, Renton asked the district court to abstain in favor of a state court action that sought only a declaration of the ordinance's constitutionality.

The cases applying Younger abstention have arisen in criminal or quasi-criminal contexts. We have refused to extend Younger to civil cases generally. See Goldie's Bookstore, 739 F.2d at 469-70; Champion International Corp. v. Brown, 731 F.2d 1406 (9th Cir. 1984). We agree with the district court's refusal to do so in this case as well. As we discussed in Miofsky v. Superior Court, 703 F.2d 332 (9th Cir. 1983), in each of the cases in which Younger has been applied in a civil context, the civil suits "bore similarities to criminal proceedings or otherwise implicated state interests vital to the operation of state government." Id. at 337 (emphasis added). These dual requirements are not present in a civil case seeking only declaratory relief.

Playtime did not violate the ordinance prior to challenging it. Thus, it was not even potentially subject to the sort of enforcement action to which Younger applies. In Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S. Ct. 2561, 45 L. Ed. 2d 648 (1975), the plaintiff challenged a local ordinance prohibiting topless dancing in bars. Three bars in the town were affected and all complied with the ordinance prior to commencing suit in federal court. The day after the federal complaint was filed, one bar, M & L, resumed topless dancing and was prosecuted criminally. The other two bar owners remained in compliance. The court held that Younger abstention applied to M & L, but the retention of jurisdiction over the other two bar owners was proper because they were not subject to criminal prosecution prior to the issuance of the preliminary injunction. Playtime's position is like that of the two bars in Doran.

Playtime showed adult films in Renton for the first time after the district court entered its preliminary injunction. By the time Renton amended its complaint in the state action to include abatement of the nuisance, making it the sort of enforcement action to which Younger might arguably apply,⁸  final judgment denying the injunction had already been granted in the district court. At this point, abstention was inappropriate.⁹ III

THE STANDARDS FOR REGULATION OF SPEECH THROUGH THE USE OF

THE ZONING POWER

Local governments may zone for the public welfare. See Berman v. Parker, 348 U.S. 26, 32-33, 75 S. Ct. 98, 102-103, 99 L. Ed. 27 (1954). The power is considerable but it must be exercised within constitutional limits. See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68, 101 S. Ct. 2176, 2182, 68 L. Ed. 2d 671 (1981). We have an obligation to scrutinize strictly zoning decisions that infringe first amendment rights. Tovar v. Billmeyer, 721 F.2d 1260, 1264 (9th Cir. 1983), cert. denied, --- U.S. ----, 105 S. Ct. 223, 83 L. Ed. 2d 152 (1984).¹⁰ 

The district court found that 520 acres in Renton were available for adult theater sites. Although we do not quarrel with the conclusion that 520 acres is outside the restricted zone, we do not agree that the land is available.¹¹  A substantial part of the 520 acres is occupied by:

(1) a sewage disposal site and treatment plant;

(2) a horseracing track and environs;

(3) a business park containing buildings suitable only for industrial use;

(4) a warehouse and manufacturing facilities;

(5) a Mobil Oil tank farm; and,

(6) a fully-developed shopping center.

Limiting adult theater uses to these areas is a substantial restriction on speech. Thus, the Renton ordinance, although patterned after the Detroit zoning ordinance upheld in Young v. American Mini Theaters, Inc., 427 U.S. 50, 96 S. Ct. 2440, 49 L. Ed. 2d 310 (1976), is quite different in its effect. The Detroit ordinance prohibited the location of an adult theater within 1,000 feet of another adult theater or other use having similar deleterious effects on neighborhoods, or within 500 feet of a residential area. There was no showing in Young that the ordinance seriously limited the number of sites available for adult theaters. The Renton ordinance's prohibition against adult theaters within 1,000 feet of schools, parks, churches, and residential areas would result in a substantial restriction on this activity.

The Supreme Court developed a useful test to measure a challenged regulation affecting speech in United States v. O'Brien, 391 U.S. 367, 377, 88 S. Ct. 1673, 1679, 20 L. Ed. 2d 672 (1968), cited with approval in Schad, 452 U.S. at 69 n. 7, 101 S. Ct. at 2183 n. 7. Under this test, a regulation is constitutional only if (1) it is within the constitutional power of the government; (2) it furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free speech; and (4) the incidental restriction on first amendment freedom is no greater than essential to further that interest. O'Brien, 391 U.S. at 377, 88 S. Ct. at 1679. Here, Renton bears the burden of proving that the elements of this test are satisfied. See First National Bank v. Bellotti, 435 U.S. 765, 786, 98 S. Ct. 1407, 1421, 55 L. Ed. 2d 707 (1978).

IV

STANDARD OF REVIEW

The parties stipulated that the record developed at the preliminary injunction stage would serve as the record upon which the court could decide the permanent injunction. The parties in effect submitted the case for trial upon an agreed record, the district court resolving any disputed issues of fact presented by the record.¹²  We review these factual determinations under a clearly erroneous standard. We do not, however, apply a clearly erroneous standard of review to the district court's findings on the O'Brien factors because our recent decision in United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S. Ct. 101, 83 L. Ed. 2d 46 (1984), and the Supreme Court's recent decision in Bose Corp. v. Consumers Union of United States, Inc., --- U.S. ----, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984), require us to review them de novo.

In McConney we held that mixed questions of fact and law are subject to de novo review when they require us "to exercise judgment about the values that animate legal principles ...." 728 F.2d at 1202. In no area of law is the consideration of the values behind legal principles more important than when state action threatens to infringe on activity protected by the first amendment.

In Bose Corp., the Supreme Court held that a trial court's finding as to "actual malice" in a libel case was subject to de novo review. The question as framed by the Court was "whether the evidence in the record ... is of the convincing clarity required to strip the utterance of First Amendment protection.... Judges ... must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold...." 104 S. Ct. at 1965. The Court recognized that it "has regularly conducted an independent review of the record both to be sure that the speech in question actually falls within the protected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited." Id. 104 S. Ct. at 1962. We have a similar duty in the case at hand.¹³ V

APPLICATION OF THE O'BRIEN FACTORS

A. Renton Has Not Shown a Substantial Governmental Interest.

The record presented by Renton to support its asserted interest in enacting the zoning ordinance is very thin. The ordinance itself contains only conclusory statements. No record of the public hearing was made or preserved. City officials who attended testified that the hearing was held, but said little else. To uphold the substantiality of the governmental interest, the district court had to justify Renton's reliance on the experiences of other towns and cities, particularly Detroit and Seattle, citing the Seventh Circuit's decision in Genusa v. City of Peoria, 619 F.2d 1203 (7th Cir. 1980).

In Genusa, the court relied on Young to uphold a provision of a zoning ordinance which required, just as the Detroit ordinance did, the dispersal of adult uses. Id. at 1211. Although the Renton ordinance purports to copy Detroit's and Seattle's, it does not solve the same problem in the same manner. The Detroit ordinance was intended to disperse adult theaters throughout the city so that no one district would deteriorate due to a concentration of such theaters. The Seattle ordinance, by contrast, was intended to concentrate the theaters in one place so that the whole city would not bear the effects of them. The Renton ordinance is allegedly aimed at protecting certain uses--schools, parks, churches and residential areas--from the perceived unfavorable effects of an adult theater.

This court and the Supreme Court require Renton to justify its ordinance in the context of Renton's problems--not Seattle's or Detroit's problems. In Young, the plurality found that the record disclosed a factual basis for the council's determinations, 427 U.S. at 71, 96 S. Ct. at 2452, and Justice Powell cited "reports and affidavits from sociologists and urban planning experts, as well as some laymen." Id. at 81 n. 4, 96 S. Ct. at 2457-58 n. 4 (Powell, J., concurring).¹⁴  Similarly, in the Seattle case, the zoning ordinance was the "culmination of a long period of study and discussion." Northend Cinema, Inc. v. City of Seattle, 90 Wash. 2d 709, 711, 585 P.2d 1153 (1978), cert. denied, 441 U.S. 945, 99 S. Ct. 2166, 60 L. Ed. 2d 1048 (1979). By contrast, in Schad, which invalidated an ordinance prohibiting live nude dancing in the town, the Supreme Court stressed that the Borough had not adequately justified its substantial restriction by evidence in the record. 452 U.S. at 72, 101 S. Ct. at 2184. The Court cited by way of contrast the full record made in Young. Id.

In Kuzinich v. County of Santa Clara, 689 F.2d 1345 (9th Cir. 1982), we reversed summary judgment validating a zoning ordinance regulating adult theaters and bookstores in part because of lack of evidence. We said, "While the ordinance here was said to be copied after the Detroit ordinance validated in Young, we find very little evidence bearing on the concentration of adult enterprises." Id. at 1348. We found that " [c]onclusions alone support the thesis that adult bookstores and movie theaters have any different impact upon traffic and littering than other kinds of businesses have." Id. Further, in Ebel v. City of Corona, 698 F.2d 390, 393 (9th Cir. 1983), we remanded for "factual findings on the validity of the city's assertions of harm." Accord Basiardanes v. City of Galveston, 682 F.2d 1203, 1215 (5th Cir. 1982) (contrasting record in Young against "empty" record before it); Fantasy Book Shop, Inc. v. City of Boston, 652 F.2d 1115, 1125 (1st Cir. 1981) (remanding for factual findings to support city's assertions, stating, "the government bears the burden of proving some empirical basis for the projections on which it relies."); Avalon Cinema Corp. v. Thompson, 667 F.2d 659, 661-62 (8th Cir. 1981) (en banc) (contrasting Young and requiring city to present evidence to justify its restriction); Keego Harbor Co. v. City of Keego Harbor, 657 F.2d 94, 98 (6th Cir. 1981) (reversing because city's post hoc justifications failed to support ordinance).

As in Kuzinich, we find Renton's justifications conclusory and speculative. Renton has not studied the effects of adult theaters and applied any such findings to the particular problems or needs of Renton. The studies done by Detroit on the problems of concentrating adult uses are simply not relevant to the concerns of the Renton ordinance--the proximity of adult theaters to certain other uses. We do not say that Renton cannot use the experiences of other cities as part of the relevant evidence upon which to base its actions, but in this case those experiences simply are not sufficient to sustain Renton's burden of showing a significant governmental interest.

B. Renton Has Not Proved That The Regulation is Unrelated to the Suppression of Speech.

Renton must prove that its zoning decision was "motivated by a desire to further a compelling governmental interest unrelated to the suppression of free expression." Tovar v. Billmeyer, 721 F.2d 1260, 1266 (9th Cir. 1983); see also Lydo Enterprises v. City of Las Vegas, 745 F.2d 1211, 1214-1215 (9th Cir. 1984).¹⁵  Both the magistrate and the district court recognized that many of the stated reasons for the ordinance were no more than expressions of dislike for the subject matter.¹⁶  The record before us raises at least an inference that a motivating factor behind the ordinance was suppression of the content of the speech as opposed merely to regulating the effects of the mode of that speech. See Tovar, 721 F.2d at 1266. The record does not reveal that Renton has rebutted the inference. As discussed above, the City had little empirical evidence before it to demonstrate the alleged deleterious effects of adult theaters.

The district court upheld the ordinance on the ground that Renton's predominate concerns were legitimate. But that is not the test in this Circuit. Where mixed motives are apparent, as they are here, Tovar requires that the court determine whether "a motivating factor in the zoning decision was to restrict plaintiffs' exercise of first amendment rights." Id. at 1266 (emphasis added).¹⁷ 

Neither the facts before the Renton City Council nor those presented to the district court appear to justify the ordinance's restriction on protected expression. Renton has not shown that it was not motivated by a desire to suppress speech based on its content.¹⁸  Given the inferences raised in the record before us, we remand for reconsideration, particularly in light of Tovar.

Renton argues, additionally, that even if it has effectively banned adult theaters, the ordinance is constitutional because similar adult theaters exist in nearby Seattle. The Supreme Court rejected such an argument in Schad and we reject it here as well. " ' [O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.' " Schad, 452 U.S. at 76-77, 101 S. Ct. at 2187 (quoting Schneider v. New Jersey, 308 U.S. 147, 163, 60 S. Ct. 146, 151, 84 L. Ed. 155 (1939)).¹⁹ 

VI

COSTS AND FEES ON SECOND REMOVAL

In number 83-3980 Renton claims it is entitled to fees under 28 U.S.C. § 1447(c), because Playtime's second removal was in bad faith.²⁰  We review the court's finding of an absence of bad faith under the clearly erroneous standard. See Dogherra v. Safeway Stores, Inc., 679 F.2d 1293, 1298 (9th Cir.), cert. denied, 459 U.S. 990, 103 S. Ct. 346, 74 L. Ed. 2d 386 (1982).

Renton stresses that this was the second removal petition, but fails to mention that the first was remanded because the district court concluded that the City's complaint failed to state a justiciable controversy. The district court never reached the second step of deciding if the case could be removed if it had stated a cause of action. The second removal was on the basis of Renton's amended complaint, which did state a cause of action. This complaint, however, sought enforcement of state laws that had been declared unconstitutional by other courts. Under the circumstances, the district court did not err in finding no bad faith.

VII

CONCLUSION

The City failed to sustain its burden of justifying its ordinance under the test of United States v. O'Brien, 391 U.S. 367, 377, 88 S. Ct. 1673, 1679, 20 L. Ed. 2d 672 (1968), as applied in similar cases by the Supreme Court and this court. Accordingly, we reverse and remand case number 83-3805 for proceedings consistent with this opinion.

The district court did not clearly err in denying the City's motion for costs and fees in connection with the second removal. Accordingly, we affirm in case number 83-3980.

AFFIRMED in part, REVERSED in part, and REMANDED.