Legal Question in Business Law in California

Hello, I am in San Jose Ca. This is about an Adult Book Store Establishment in San Jose Ca. According to the laws in city code in san jose, Once a store has been annxed in from the county to the city they have 2 years as a legal no conform entity to cease operation as an adult book store.

Stores of this nature are against city code in San Jose. The store was part of the county for 30 years. There are others that will be incorporated but they are doing the incorporation in phases. This year the next store has two years and so on.

For over the past two years has been given letters etc informing them of the pending closure because of city code regulations. The store has not filed any legal challenges or time extensions. Now the store has been issued a compliance order to cease operation in two months.

Now that you have background, my question is can this store file an injunction to stop closure of the store at this point or is it too late for that? Part two Can a Compliance Order by the city in this case be stopped.

According to city zone laws the store can file for an extension of time with the city but then has to be granted with city coucil. If city council approves they have a meeting before the council and then have a city meeting to hear both sides of the issue.

Anyway, that is my question can this be fought or is it too late


Asked on 7/10/11, 2:02 pm

1 Answer from Attorneys
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

If the operation of the store were illegal, it would not be too late.

However, I question your interpretation of what the San Jose Municipal Code actually allows and prohibits. For example, consider section 20.80.020:

"20.80.020 Anti-Skid Row Requlations

The purpose of this Part is to provide reasonable regulations to prevent the

adverse effect of the concentration or clustering of certain uses of real

property, specifically adult book/video stores, adult motion picture theaters,

adult entertainment establishment, and massage parlors, and to prevent the

location of such uses in the Downtown Core Area, which is the subject of an

extensive revitalization process in order to counter the past trends of

deterioration and economic decline."

Based on this law, I'd say adult bookstores are legal in San Jose except in the Downtown Core Area and that they have to be spaced rather than concentrated. There are additional requirements such as distance from schools, etc., but by no means are adult bookstores prohibited in San Jose.

Furthermore, the San Jose City Council is prohibited by the United States Constitution from totally outlawing adult bookstores within the city limits. At most, San Jose can make reasonable zoning restrictions in support of a cogent overall policy of directing where various businesses may be......junkyards, livestock auctions, foundries, churches, etc., all can be regulated as to where they may operate, but a city cannot decide that it will not allow a synagogue, slaughterhouse, liquor store at all. Zoning policies are subject to limitations that they must be part of a coherent overall policy, and not designed to prevent a particular kind of legal business from operating anywhere within a city.

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Answered on 7/10/11, 7:03 pm


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