ARTICLES

Dirty Bookstores Flout Law

CITY SAYS THEY'RE ON THE HONOR SYSTEM

Recently I was asked by a News Notes reader to help investigate San Diego adult entertainment businesses that appeared to violate zoning laws. In December, I visited six of these businesses.

If you've lived in San Diego more than 20 years, you may remember a downtown far different from today's. In the 1960s and 1970s, Horton Plaza was home to drunks and derelicts, and Broadway teemed with sailors, tattoo parlors, and massage parlors.

Since then, San Diego has been transformed-- adult businesses are no longer clustered closely together. On January 2, 1979, the city added Division 18 of the municipal code, Regulations for Adult Entertainment Establishments. Division 18 describes thirteen types of adult entertainment establishments and the required distance between an adult business and churches, public parks, residential zones, social welfare institutions, and other adult businesses. For new businesses started after 1979, the requirement is 1000 feet between exteriors, regardless of type. The code does not address interior distances. All adult entertainment establishments must adhere to this section of the municipal code.

Adult bookstores and peepshows are considered "adult entertainment establishments" and so both are subject to the distance rule. However, each type has its own rules. Adult bookstores can devote no more than 15 percent of the total display area to the sale of adult items. The items do not have to be books or periodicals to qualify as adult; videos and sexual paraphernalia also fall within this definition. Therefore, F Street Video & Gifts stores are considered adult bookstores for law enforcement purposes even though they sell a lot more than books. So are video stores even if they sell nothing but videos.

Diane Silva-Martinez, head deputy city attorney for enforcement of this code, said that "If an adult entertainment establishment is classified as a peep show, it is also subject to additional regulations in section 33.3300 of the municipal code pertaining to peep show booth construction. Peep shows must also comply with building and fire regulations." For example, aisles in the immediate vicinity of the peep show must be kept clear.

Blowout Video, 3026 Midway Drive, San Diego

"Mask of Zorro, $13.99." Below the Déjà vu Showgirls sign outside of the two-story former bank building at Midway Drive and Rosecrans Street, Blowout Video's marquee advertises its mainstream movie special. With thousands of titles to choose from, Blowout's small signage and its location in an office building seem out of place for a retail video store. On the other side of a partition that runs through the main sales floor, however, are approximately 15,000 X-rated movies.

According to Blowout spokesperson Karen Zullo, "Our selection of adult videos is bigger than any other adult bookstore in San Diego. We don't carry any pre-viewed adult videos; all of them are brand new. We have really low prices, too, compared to the other stores in town. Most of the other stores charge $49.95 but the highest price on ours, with just a few exceptions, is only $26.95, and we even have some for as low as $5.95."

Based on my estimate, around 40 to 50 percent of Blowout's floor space is devoted to adult videos, which classifies it as an adult bookstore. As such, it is subject to the distance regulations in Division 18 requiring it be 1000 feet from another adult entertainment establishment.

Approximately 600 feet west (by my approximation), at 3112 Midway Drive, is an F Street Video & Gifts store which, according to a records search, has existed in that location since at least 1991. When asked how long Blowout Video has been in its present location at 3026 Midway, Zullo said, "We used to be at I-8 and Mission Gorge and have been in this location for a little over a year." Based on these statements, it appears that Blowout is an adult business operating in violation of the municipal code. Or is it?

According to Leslie Devaney, executive assistant city attorney for the City of San Diego, "Conditional use permits, variances, court ordered conditions or other mitigating reasons may exist that allow an adult business to operate in the place and/or manner that they do while appearing to be in technical violation of the Municipal Code Zoning regulations."

Video Town, 5399 El Cajon Boulevard, San Diego.

Like Blowout Video, Video Town presents an innocuous façade from a former bank building on the southwest corner of El Cajon Boulevard and 54th Street. And, like Blowout, Video Town also has a partition running through the middle of its main sales floor, beyond which only customers 18 or older may enter.

According to my personal observation, Video Town appears to devote about 25 percent of its display space to X-rated films. This is less than Blowout, and too close enough to 15 percent to presume without taking measurements. But shouldn't it be easy to take measurements?

Not necessarily, explained El Cajon city attorney Lynn McDougal. "The 15 percent rule is probably going to be difficult to sustain in court. It is difficult to measure for enforcement purposes, and courts are reluctant to draw such definitive lines on First Amendment activity." He added that such a figure is "elastic" and can vary, depending on how the display area is defined and arranged. Display space doesn't necessarily include just floor space. Shelves, racks and other display props must also be measured. The complexities of determining the measurements of several different kinds of display space are usually not worth the time.

Like Blowout Video, Video Town would also be in violation of city regulations-- but not because of distance from another adult business. The conflict would be with the decades-old Wesley United Methodist Church which sits across the street, on the northwest corner of the intersection, less than 1000 feet away.

Amusement Street Arcade, 827 Fourth Avenue, Downtown San Diego.

Nestled among shops and restaurants of the Gaslamp District, across the street from Horton Plaza at 827 Fourth Avenue, is a small business called the Amusement Street Arcade. It contains pinball machines, racing simulators and other video games-- games that attract children and teenagers, particularly teenage boys. What the name on the door doesn't imply is the presence of peep show booths.

According to Diane Silva-Martinez, "If an adult entertainment establishment is classified as a peep show (as opposed to other types of adult establishments such as adult bookstores, body painting studios or massage parlors), it is also subject to additional regulations in section 33.3300 of the municipal code pertaining to peep show booth construction. Peep shows must also comply with building and fire regulations."

In the rear right corner of the interior, adjacent to the gaming area and separated from it only by an approximately 4-foot-high wall, are at least four peep show booths. The view from the gaming area to the peep booth doors, as well as the entryway leading to the peep booths, are both free of obstruction. During one of three visits I made to the Arcade while researching this story, I observed a young girl walk into the building and head unimpeded toward the back of the room. Although she did not try to enter the peep show booth area, there was no adult present in the gaming area to stop her, had she tried.

Though no signs prohibiting minors are posted outside the building to warn parents or others, one is posted inside, on the wall adjacent to the viewing area entrance, where it's noticeable only when approaching the viewing area.

Two "No Restrooms" signs make clear to patrons the lack of bathroom facilities on the premises. This directly violates the municipal code, which states that "A minimum of one (1) toilet and wash basin shall be provided for the patrons in every peep show establishment."

In addition, Amusement Street is within 1000 feet of two additional adult businesses in the Gaslamp District, F Street Adult Video & Gifts at 751 Fourth Avenue and Pleasureland at 836 Fifth Avenue. However, said Leslie Devaney, "Some businesses may fall under a 'grandfather' cause if they were established before the San Diego municipal code section on adult businesses was last revised in 1979."

Following my visits, I spoke with several San Diego city attorneys. I asked how to find out whether an adult business is in fact licensed as an adult entertainment establishment or not.

Silva-Martinez explained, "The City of San Diego does not require a business license, but does require that businesses obtain a business tax certificate. When the business owner pays the tax, the city treasurer checks with Development Services Department to see if the proposed location of the business is in compliance with zoning regulations. The individual may be sent to DSD to obtain a zoning use certificate."

Because no business licenses are issued by the city of San Diego, the business tax certificate serves as a kind of substitute for a license. However, the issuance of the tax certificate is done under the presumption the compliance, similar to an honor system. Compliance is assumed until suspected or proven otherwise.

"The business tax certificate does not authorize the business owner to violate zoning laws," said Silva-Martinez. "If a business tax certificate is issued in error to a business which cannot lawfully operate in a given zone, the City may still take enforcement action for violating zoning laws."