San Diego San Diego Municipal Code section 141.061 states, "Adult entertainment businesses shall not be established, enlarged, or undergo a transfer of ownership or control if the structure housing the business would be located within 1000 feet of the following: (A) Another structure housing an adult business; (B) the property line of a residentially zoned property; or (C) the property line of a church, a school, a public park, or a social service institution."
Yet, at 141 University Avenue in Hillcrest, Rainbow Road adult bookstore offers an array of pornographic videos, reading materials, and greeting cards along with sex paraphernalia and S&M attire, while only a block down University -- 338 feet away as recently measured with a distance roller -- stands Florence Elementary School.
A mile or so to the east, at 1202 University, F Street Video outlet operates next door to Sensual Delights sexual clothing and paraphernalia store. The Marinello School of Beauty -- which enrolls both minors and adults -- sits between the two. The video store is 709 feet from University Christian Church, 820 feet from Calvary Temple Assembly of God Church, 564 feet from the Access Center (a service agency for the disabled), and 500 feet from a police storefront.
At 3847 Park Avenue, the Crypt, a fetish shop that sells such items as sex toys and leather harnesses, stands 195 feet from Grace Baptist Church, 512 feet from Grace Lutheran Church, and 739 feet from another F Street bookstore at 2004 University Avenue, and it borders residential property.
Another Crypt store, at 4094 30th Street, is 667 feet from Ambassador Christian Center and 797 feet from Covenant Presbyterian Church. Midnight Adult Video Store at 1407 University is 163 feet from the Access Center, as well as 562 feet from the University Church, 673 feet from Calvary Temple, and 700 feet from Marinello School of Beauty.
Recently, a group of activists, led by local attorney Richard Ackerman, intent on enforcement has brought these obvious code violations to the attention of the city's code-enforcement department. Based on the response they received, they are considering legal action against the city and several businesses.
"We intend on filing private litigations," said Ackerman, a member of the legal action group called the United States Justice Foundation. "These guys aren't going to get away with this."
In late July, Ackerman said he planned to file unfair business practice lawsuits, "possibly sometime in the fall," which will seek "injunctions to cease operating in violation of the law. If they want to change businesses or they want to relocate and find a place where they can legitimately operate within the law, they are certainly welcome to do that. But what we are not going to permit them to do is to continue operating outside of the law."
Ackerman continued, "The worst-case scenario is we will file a judicial action against the city to force them to actually enforce their own laws. Public citizens shouldn't have to pick up the torch on these kinds of issues; that is what code enforcement is for; that is what tax dollars pay these folks to do."
Ackerman was shocked at the reception Christian activist and former homosexual James Hartline got from the code-enforcement department when he reported these apparent violations earlier this spring. "They essentially laughed him out of their office," Ackerman says. "The one person who would talk to him indicated that they somehow felt that these businesses were all grandfathered in. But we went and looked at the date that these people initially applied for business licenses, and it turns out that they were all given after these municipal codes had been enacted, or that they had changed ownership since then."
The code sections in question, Ackerman says, date to the late 1970s.
Legal cases against these businesses would seem to be as simple as measuring the distances, but there is more to it. The San Diego Municipal Code section quoted above defines "adult stores," which it regulates as "Any business that devotes more than 15 percent of the total display, shelf, rack, table, or floor uses for the display of [adult or sexual] merchandise" for sale or rent. It goes on to define such merchandise. "The amount of inventory," Ackerman explains, "is what they will tinker with to claim that it's not an adult business."
In a letter dated June 16, Sharren Carr, program manager for the code-enforcement department, told Hartline that her department would "evaluate" the above businesses. "Complaints of this nature are a high priority for our department," she said. "We anticipate that we will be able to complete our initial site investigations within the next 45 days."
On August 7, Ackerman, Hartline, and a group of church representatives, activists, and reporters met with Carr at her department's eighth-floor offices overlooking the Concourse. Her typewritten report found that all of the businesses mentioned earlier, except Midnight Adult Video and the 30th Street Crypt, were exempt from the code section because "Merchandise that is regulated by the San Diego Municipal Code is contained within an area that measures less than 15 percent of the floor area." The 30th Street Crypt and Midnight Adult Video were exempted, the report stated, because they were "adult business[es] with location[s] established prior to 1979," when the pertinent section of the code was adopted.
Hartline responded that the "total display," as enumerated in the municipal code, ought to have been considered, not just floor space. He also pointed out that the clothing in these shops was for sexual purposes and, according to code, should be counted as adult merchandise. Ackerman told Carr the report was "unacceptable" and warned her it was likely that an unfair business practices suit would be filed against the city to get them to enforce the code. "Ultimately," he said, "12 reasonable people will decide whether these businesses are operating illegally."