Cities Scratch Heads for Ways to Skin X-Rated Pussycat : Legal Loophole Keeps Movies Rolling in L.B.

LONG BEACH —  From inside its lobby, the Lakewood theater looks like any other neighborhood movie house.

Expansive red and gold carpeting is reflected in fancy mirrored walls. A brightly lit refreshment stand offers popcorn, candy and soft drinks.

Upon closer examination, however, a difference emerges.

At 3 p.m. on a recent weekday some 20 people sat in front of one of the theater’s twin screens watching the day’s double bill, “Sex Appeal” and “Take My Body,” both X-rated. A few yards away in another room, a third feature--”School of Fear,” rated R--played to an audience of empty seats.

One or Two

“Sometimes we get one or two in there,” assistant manager Jose Duarte said of the R-rated screen. “Some weeks we don’t get any.”

Added Jim Johnson, president of Pussycat Theatres which operates the Lakewood: “A big week for the R-rated films can be $14.”

But he says he keeps running them from noon to midnight seven days a week because, if he doesn’t, the city could shut him down. And if that happened he wouldn’t be able to offer the X-rated fare which, he said, draws 99% of his customers.

For nearly eight years the City of Long Beach, under pressure from a local citizens’ group, has been waging a legal battle to shut the Lakewood down. In the most recent skirmish, the U.S. Supreme Court--in a decision with far-reaching implications--let stand a lower court ruling defining an adult theater as one that shows a “preponderance” of X-rated material. Because the Lakewood offers R-rated as well as X-rated fare, city officials say, it is beyond the scope of the local ordinance outlawing adult businesses.

So while the city huddles to determine its next move, the theater just keeps on rolling its two projectors.

‘A Breath of Fresh Air’

“A breath of fresh air,” is how Johnson characterized the Supreme Court decision.

“We’re still licking our wounds,” said Gerry Ensley, the deputy city attorney who handled the case.

The battle began in 1978, shortly after Long Beach passed a zoning ordinance outlawing adult businesses within 500 feet of a residence or 1,000 feet of a school. The Lakewood Theater--which began operating as an adult theater shortly after the ordinance went into effect--is located near the intersection of Carson Street and Lakewood Boulevard, close to the Lakewood Village residential area and only two blocks from Long Beach City College. (A second Pussycat Theatre was in operation before the ordinance was adopted, and remains unaffected.)

In the first test of the ordinance, the city prosecuted and eventually convicted the Lakewood owners for showing X-rated films.

But while the case was winding its way through the courts, an unrelated case in nearby West Covina began muddying the waters. In it, the owner of a theater The decision by the state 4th District Court of Appeal upheld this view, while not defining in detail what “preponderance” meant.

So the Lakewood, which stopped showing X-rated films after the initial conviction, began showing them again on weekends while it showed R-rated films the rest of the week. That, according to Johnson, only led to confusion. Eventually the theater’s present policy evolved--it shows X-rated material on one screen while featuring general release R-rated movies on the other. Johnson believes that because customers have a choice, the theater does not offer a “preponderance” of adult material and therefore is not subject to the local zoning ordinances that relate to adult businesses.

Preponderance Test

“The test,” said Stanley Fleishman, an attorney representing the theater’s owners, “is the preponderance of films exhibited” and not which films the majority of patrons choose to see. “The choice people make is for them to make themselves without government interference.”

The courts have agreed. When Long Beach cited the theater ownership for violating probation on the earlier conviction for resuming the showing of X-rated films, a Long Beach Municipal Court and later a Los Angeles Superior Court ruled against the city. So the city petitioned the U.S. Supreme Court to invalidate the “preponderance” doctrine so cities can enforce what Ensley calls “porn zoning.” The High Court’s recent decision not to hear the case, he said, is tantamount to the “de facto destruction” of such zoning in California.

“It makes enforcement impossible,” he said. “How do we know when ‘preponderance’ is exceeded? We’d have to park a police officer in the theater.”

Ensley said he would be meeting with City Prosecutor John Van der Laans within a few days to discuss the city’s options in its continuing struggle against the Lakewood. Possibilities, he said, include rewriting the local zoning ordinance to define “preponderance” more restrictively than did the West Covina decision, or mounting a second legal challenge to the decision on new, and as yet undetermined, grounds.

‘Like a Cancer’

“Nothing would please me more than to be able to legally close that theater,” said Mayor Ernie Kell, whose district includes Lakewood Village. “It’s like a cancer out there.”

Mary Soth, president of Citizens Against Pornographic Movies at the Lakewood Theater, which over the years has used a variety of tactics against the theater including picketing--said her group would continue to pressure the city for legal closure of the theater.

Attorneys for both sides said they are unaware of any other theaters in California using double screens as a way of overcoming local zoning restrictions, although Fleishman said he would consider such a development a logical extension of the Supreme Court’s “just” refusal to hear the city’s case. “We should now be able to continue without the harassment we’ve been seeing over the last decade,” he said, speaking of the theater chain that he represents. “It makes no sense for a city official to try and control what adults see.”

Said Johnson: “I see this as a victory for the rights of individuals to conduct business.”