CITY HOPES RULING KEEPS STRIP CLUBS ON WEST SIDE.

Byline: Joseph Giordono Staff Writer

SIMI VALLEY - Encouraged by last week's Supreme Court ruling that upholds one city's ban on nude dancing, some Simi Valley officials are more confident than ever that their zoning ordinance restricting strip clubs to the western fringes of town will pass constitutional muster.

But an attorney for the businessman who has fought a six-year legal battle over his plan to open an adult night club in Simi Valley disagrees that the high court's ruling has any bearing on his case.

``Arguably, if cities can ban nudity across the board, there may not be a need at all for zoning laws to deal with sexually oriented businesses,'' said Roger Diamond, the attorney for Philip Young, whose case is pending before the Ninth Circuit Court of Appeals.

``If the prohibition is against nudity, what's the difference between a dancer wearing pasties or wearing an ankle-length dress? If the dancers are not nude, you've removed the definition of an adult business, and it doesn't matter where the business is located,'' said Diamond.

In a 6-3 decision released last week, the Supreme Court reinstated a law in Erie, Penn., which requires female night club dancers to wear at least G-strings and pasties while performing.

While Diamond maintains that Young's case deals with zoning law, Simi Valley officials say the Supreme Court ruling on nude clubs vindicates their position.

``We are still evaluating the ruling, but it certainly contains a lot of language that we feel bolsters our case. This is a clear win and should provide guidance to the court of appeals,'' said City Attorney David Hirsch.

``The Supreme Court has been very good about defending the rights of localities to determine for themselves whether they want these kinds of businesses or not.''

The Young case has been pending since last April, when the Ninth Circuit panel heard oral arguments. The court was hearing Simi Valley's appeal of a trial judge's ruling that the city's original adult business zoning ordinance was unconstitutional.

In 1998, the city adopted an even more stringent ordinance which bans nudity in adult establishments and allows adult businesses only in a portion of the city near the west-end landfill.

In July 1999, the Ninth Circuit asked both sides whether a ruling on the city's appeal should be deferred until the Pennsylvania case was decided by Supreme Court.

Mark Mendenhall, a spokesman for the Ninth Circuit, said that the delay is inevitable because of a backlog in criminal cases and bench vacancies in the 28-judge court.

The Supreme Court ruling overturned the Pennsylvania State Supreme Court's finding that the city law infringed on the freedom of expression protected by the Constitution's First Amendment.

``Being in a state of nudity is not an inherently expressive condition,'' Justice Sandra Day O'Connor wrote in the court's majority opinion.

``It may also be true that a pasties-and-G-string requirement would not be as effective as, for example, a requirement the dancers be fully clothed, but the city must balance its efforts to address the problem with the requirement that the restriction be no greater than necessary to further the city's interest,'' O'Connor wrote.

The majority justices decided that cities may ban nude dancing to combat the ``negative secondary effects associated with adult establishments'' such as crime and prostitution.

Eugene Volokh, a law professor at the University of California at Los Angeles who closely watches the Supreme Court, said that the Erie decision appeared to have little bearing on Simi Valley because the specific circumstances surrounding each case were so different.

But Scott Bergthold, director of the Community Defense Council, an Arizona-based, nonprofit legal organization that reviewed Simi's ordinance at the city's request in 1998, said the law matches the city's needs with the First Amendment.

``Simi Valley's ordinance balances the need to protect the city from the blight created by sexually oriented businesses with the need to provide alternative avenues of communication as required by the Supreme Court,'' Bergthold said.

Simi Valley's ordinance includes as a rationale the ``documented evidence that sexually oriented businesses have a deleterious effect on both the existing businesses and the surrounding residential areas,'' causing increased crime and the downgrading of property values.

Some Simi Valley officials welcomed the Supreme Court ruling, and agree with the need to protect residents from the perceived negative secondary effects of adult businesses.

``In the future, I believe that this ruling will help our standing,'' said City Councilman Glen Becerra.

``It is important that the Supreme Court recognize the local governments' abilities to regulate these kinds of establishments.''

And no matter how the Ninth Circuit rules, both sides say they will continue the fight.

``While the case has been in the system, the city has tried to amend some of the defects in the zoning ordinance. These changes are so restrictive as to be invalid and are opening up more arenas ripe for another challenge,'' said Diamond, Young's attorney.

Councilman Becerra, though, said he would fight for the city's desire to protect the community.

``I stand behind the city taking it as far as possible and pushing it to the Supreme Court if we should lose. When you are talking about protecting the community, you should be willing to do battle all the way through to the end.''