MEMORANDUM OF DECISION AND ORDER

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

1. FACTUAL BACKGROUND

The plaintiff in this case, Santa Fe Springs Realty Corporation, is currently operating an adult cabaret (“Scamps”) at 7000 Garden Grove Boulevard in the City of Westminster (“the City”). The plaintiff filed the present action after the City refused to issue a conditional use permit (“CUP”) for the plaintiffs adult cabaret.

The complaint alleges that the presentation of topless dancing is a form of expression protected by the First Amendment of the United States Constitution and that the City of Westminster impinged upon the plaintiffs First Amendment rights when it denied the CUP application.

The City of Westminster regulates adult businesses through Chapter 17.57 of the Westminster Municipal Code. The City’s current adult use ordinances, which have been amended several times, were enacted after another individual (Theron Smith) sought to open an adult cabaret at 7132 Garden Grove Boulevard in the City of Westminster.

At the time when Smith attempted to open his adult cabaret, an urgency ordinance was in effect which banned all adult businesses within the City limits. See Ordinances No. 2148, 2145. The moratorium applied to massage parlors, adult bookstores, adult theatres including topless bars, adult arcades, adult specialty shops, acupressure, escort services, public baths, card rooms, billiard rooms, pool halls, figure modeling studios, adult dance studios, dance studios operating after 10:00 p.m., rap session and interlocutrix businesses, gambling schools, skin care businesses, tanning salons, and any and all other adult uses as defined by the Westminster police department. Id. After Smith began operating his adult cabaret, the police department inspected the premises and found the establishment to be in violation of the two urgency ordinances.

On January 24, 1991, Smith filed a complaint in Orange County Superior Court challenging the constitutionality of the urgency ordinances. In response to the complaint by Smith, the City of Westminster enacted Ordinance No. 2152 on February 12, 1991, which purported to allow some adult businesses to operate within the city limits. Although Ordinance No. 2152 did not allow an adult cabaret to operate at the property occupied by Smith, the City represented to Judge James R. Gray in the Orange County Superi- or Court that other properties within the city limits would meet the requirements of Ordinance No. 2152. In particular, the City represented that the property at 7000 Garden Grove Boulevard (the subject location of the present case) was a suitable site for an adult cabaret.

In order to test the application of the new ordinance, Judge Gray instructed Smith to file a CUP application to operate an adult cabaret at 7000 Garden Grove Boulevard. After the application was filed by Smith, the City Council made the following findings contained in Resolution No. 2944:

1. The proposed use is consistent with the General Plan of the City, any other adopted plan of the city, or the adopted plan of any other governmental agency in that the subject property is designated as “Commercial” by the Land Use Element of the City’s General Plan, and that conditions nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and each of them, attached to this approval, serve to or will bring the proposed use into consistency with the Land Use, Noise, Circulation, and other elements of the General Plan;

2. That the proposed site is adequate in size and shape to accommodate the yards, walls, fences, parking and loading facilities, landscaping, and other development features prescribed in the Municipal Code or as otherwise required in order to integrate said use with the uses in the surrounding area in that condition nos. 1, 2(a), 2(b), 2(c), 2(d), 3,4, 5, 7, 8, 9, and 10, and each of them, attached to this approval, serve to integrate the use with the surrounding area.

3. The proposed site is adequately served by highways or streets of sufficient width and improvement in that the proposed use is the conversion of an existing facility and does not propose to add any additional seating capacity;

4. That the proposed site is adequately served by other public and private service facilities as are required in that the proposed use is the conversion of an existing facility and does not propose to add any additional seating capacity;

5. The requested use at the proposed location will not adversely affect the use of a church, temple, or other place used exclusively for religious worship, school, park, playground, mobile home park, or similar use within a 250 foot radius in that the applicant has submitted a site plan which shows sufficient buffering between the proposed use and these enumerated uses;

6. The requested use at the proposed location will not be located within a 250 foot radius of any residential zone in that the applicant has submitted a site plan which shows that the subject property is not within 250 feet of any residential zone;

7. The requested use at the proposed location will not be located within a 200 foot radius of any other regulated use under this Ordinance in that the applicant has submitted a site plan which shows that the subject property is not within 200 feet of any other regulated use;

8. The requested use at the proposed location is sufficiently buffered in relation to residentially zoned areas within the immediate vicinity so as not to adversely affect such areas in that the applicant has submitted a site plan which shows sufficient buffering between the proposed use and residential areas within the immediate vicinity; and

9. The exterior appearance of the structure will not be inconsistent with the external appearance of commercial structures already constructed or under construction within the immediate neighborhood so as to cause blight or deterioration or substantially diminish or impair property values within the neighborhood, in that condition nos. 1, 2(a), 2(b), 2(c), 2(d), 3, 4, 5, 7, 8, 9, and 10, and each of them, attached to this approval, serve to improve and maintain the exterior appearance of the structure.

After the Smith application was approved by the City Council, the Orange County action was dismissed. Although the CUP application was approved for the property, Smith never opened or operated an adult cabaret at the site. At the time when Smith’s application was approved, the City Council was aware that the owner of the property would refuse to lease the premises at 7000 Garden Grove Boulevard to Smith or any other person who planned to operate an adult cabaret.

THE PRESENT CASE:

At the time when Smith filed his CUP application, the property at 7000 Garden Grove Boulevard was used to operate a nightclub (“the Marquee”) which featured rock and roll bands. The Marquee was operated by an individual named Bob Martin, who is also the current operator of Scamps. After Smith’s CUP application was approved by the City Council, the plaintiffs attorney in this case introduced Mr. Martin to James Massoli and Michelle Inman. Following a series of negotiations, these individuals formed Santa Fe Springs Realty Corporation, the plaintiff in this case.

Santa Fe Springs Realty Corporation applied for a CUP to operate an adult cabaret at 7000 Garden Grove Boulevard, and the plaintiffs application was complete as of December 23,1993. Chapter 17.57, the applicable provision of the Westminster Municipal Code that was in effect at that time provided that:

1. That the proposed use will be consistent with the Westminster General Plan, any other applicable adopted plan of the city, or any applicable adopted plan of any other governmental agency;

2. That the proposed site is adequate in size and shape to accommodate the yards, walls, fences, parking and loading facilities, landscaping, and other development features prescribed in the Municipal Code or as otherwise required in order to integrate said use with the uses in the surrounding area;

3. That the proposed site is adequately served by highways or streets of sufficient width and improved as necessary to carry the kind or quantity of traffic that such use would generate;

4. That the proposed site is adequately served by other public and private service facilities as are required;

5. That the requested use at the proposed location will not adversely affect the use of a church, temple, or other place used exclusively for religious worship; school, park, playground, mobile home park, or similar use within a 250 foot radius;

6. That the requested use at the proposed location will not be located within a 250 foot radius of any residential zone. The distance between a proposed use and a residential zone shall be the nearest lot line included within the residential zone along a straight line extended between two points;

7. That the requested use at the proposed location will not be located within 250 feet of any other regulated use under this chapter. Distances between uses shall be measured between the main entrances of such uses or proposed uses along the shortest route intended and available for public traverse between said uses;

8. That the requested use at the proposed location is sufficiently buffered in relation to residentially zoned areas within the immediate vicinity so as not to adversely affect such areas;

9. That the exterior appearance of the structure will not be inconsistent with the external appearance of commercial structures already constructed or under construction within the immediate neighborhood so as to cause blight or deterioration or substantially diminish or impair property values within the neighborhood; and

10. That the signs posted at the business shall conform to the regulations estab lished in chapter 15.40. (sign code) and chapter 17.67 (Redevelopment Design Standards) of the Municipal Code.

Prior to the Planning Commission meeting on January 24, 1994, the City’s Planning and Building Director, Michael Bouvier, conducted an investigation as required by Section 17.57.110(C) of the Westminster Municipal Code. After consulting with the building, police, fire and health departments, Mr. Bou-vier prepared a detailed report recommending that the Planning Commission conditionally approve the CUP application.

The Planning and Building Director’s Report contained the following findings:

1. The proposed use is allowed in the C2 district, subject to a conditional use permit under Chapter 17.57 of the Westminster Municipal Code.

2. The proposed use is consistent with the General Plan commercial use criteria.

3. The proposed adult cabaret is at least 250 feet away from the nearest residential zone boundary, and therefore meets the separation requirements set forth in the city’s adult use regulations.

4. There are no other adult uses within 200 feet of the proposed adult cabaret.

5. The design of the interior, as conditioned, will satisfy the requirements of the adult use regulations and should serve to mitigate the adverse secondary effects that might result from the operation of an adult use establishment.

6. The security measures stipulated by this permit should mitigate the adverse secondary effects that might result from the operation of an adult use establishment.

7. The size and shape of the property provides adequate area to satisfy all commercial development requirements.

At the Planning Commission meeting on January 24,1994, the commission heard testimony from the plaintiffs attorney. The commission also heard testimony from several citizens of the City of Westminster who expressed their strong opposition to the project. Despite the City Council’s findings in the previous Smith application and despite the recommendation by the Planning and Building Director, the Planning Commission declined to grant or conditionally grant the plaintiffs application for a CUP. Instead, the Planning Commission, over plaintiffs objection, postponed their decision for one month in violation of Section 17.57.110 of the Westminster Municipal Code. Following the continuance by the Planning Commission, the plaintiff requested a de novo review by the City Council, as authorized by section 17.57.120 of the Westminster Municipal Code.

Prior to the City Council’s hearing on February 22, 1994, the City’s Planning and Building Director issued a new report recommending that the CUP be denied. The February 22, 1994 report contains the following findings, which differ significantly from those in the January 24 report:

1. The proposed use is allowed in the C2 district, subject to a conditional use permit under Chapter 17.57 of the Westminster Municipal Code.

2. The proposed adult business is of a type that has been well documented by qualified persons, and in case law, as creating secondary adverse effects on surrounding properties, such as criminal activity, blight and degradation of the commercial district. The existing business has generated a large number of calls for police services, involving noise disturbances, fights, assaults, robberies, drug dealing and public inebriation. The present management of the existing nightclub business will continue in that capacity for the proposed adult cabaret. In view of the extensive police activity at the location dining the present management’s tenure, which is of a greater amount than for any other similar establishment in the city, it is reasonable to expect that the management will be no more able to control the undesirable activities that generate calls for police service under the new business than it did under the old one. Accordingly, the finding required under Section 17.57.160(8) cannot be made.

3. The proposed use has a potential seating capacity for over 331 persons, while the available parking is only 76 spaces. The Traffic Bureau of the Police Department has indicated that the present Marquee nightclub, which has fewer seats, experiences severe parking problems, typically on weekends, and that patron parking extends onto the adjacent commercial properties, across Garden Grove Boulevard on the shoulder, and into nearby residential areas. The street adjacent to the Marquee becomes very congested and traffic accidents are common.

4. The present business is licensed to serve beer and wine only, whereas the proposed business will serve beer, wine and spirits. In view of the documented large numbers of police calls for disturbances, assaults and fights involving inebriated patrons, the addition of spirits to the existing beer and wine service is an unacceptable intensification of the business.

5. The proposed new General Plan contains a policy which stipulates that commercial and industrial developments shall be required to clearly demonstrate that they will have no significant detrimental impacts upon the City and its residents, including significant adverse traffic, noise, air pollution and fiscal impacts. The proposed business will exacerbate an existing traffic and parking problem related to the existing use by virtue of the fact that the new business will be an intensification of the use, as it will be providing additional seating and adult entertainment. Therefore, the finding required under Section 17.57.160(1) cannot be made.

6. Based upon police experience with the existing business and the intensification of activity expected to occur with the proposed business, there is substantial evidence to indicate that there is inadequate on-site parking available to serve the proposed use, and as a consequence, the finding required by Section 17.57.160(2) as it relates to parking cannot be made.

7. The proposed design of the parking facilities for the requested business contains a landscaping deficiency of approximately 1700 square feet. Therefore, the finding required by Section 17.57.160(2) as it relates to landscaping cannot be made.

8. The condition of the property, which is characterized by severely deteriorated pavement, absence of landscaping, and poor building maintenance and appearance, results in blight and consequently impairs property values in the area. As the same management who has operated the business for the last several years and has allowed the property to deteriorate to its present condition will also operate the proposed business, it is reasonable to expect that these blighted conditions will not be significantly corrected in the future, or if corrected, will not be maintained. Therefore, the finding required by Section 17.57.160(9) cannot be made.

9. Traffic accident records for the years 1991 through 1993 for the portion of Garden Grove Boulevard between Edwards Street and Goldenwest Street (which contains the Marquee) shows that during the hours when the Marquee is typically open — 9 p.m. to 2 a.m. — -an abnormally high number of traffic accidents occur. As the only source of traffic is patrons of the Marquee, the majority of accidents can be attributed to them. Therefore, the finding required by Section 17.57.160(3) cannot be made.

At the conclusion of the February 22, 1994 hearing, the City Council denied the plaintiffs application for a conditional use permit. On March 8, 1994, the City Council issued Resolution No. 3148, which contained the following findings:

1. The proposed site is not adequate in size and shape to accommodate the landscaping requirements prescribed in the Municipal Code or as required in order to integrate the proposed use with the surrounding area. The applicant proposed to landscape an area which is located within the Flood Control District’s twenty (20) foot wide easement located on the east side of the subject property. This is impermissible as the applicant has failed to provide any evidence that it has any legal authority to encroach onto the District’s easement. Further, the City land scape requirements require a perimeter landscaping of five (5) feet while the offered plan is only three (3) feet wide. The applicant is therefore deficient by 1700 square feet to meet the City’s landscaping requirements.

2. The proposed site is not adequate in size and shape to accommodate the parking requirements or as required in order to integrate the proposed use with the surrounding area. The site has experienced a history of severe parking problems resulting in patron parking overflowing onto adjacent commercial properties, onto the unpaved shoulder of Garden Grove Boulevard to the north and into the residential tract located to the west. Accidents have occurred as a result of patrons crossing Garden Grove Boulevard. The parking problems at the site are impacted further because of the poor condition and design of the parking facilities and the placement of the budding on the site in such a manner to create a narrow passage on the east side of the building.

3. The proposed site is not adequately served by streets of sufficient width and improved as necessary to carry the kind and quality of traffic that such an adult use facility would generate. The traffic data for the period 1991 through 1993 for the portion of Garden Grove Boulevard between Edwards Street on the west and the 22 Freeway off-ramp on the east, which area includes the subject property, revealed an abnormally high number of auto accidents. This stretch of Garden Grove Boulevard primarily services the residential areas located west of Golden-west and accordingly, there should be little home-bound traffic during the hours of 9:00 p.m. and 2:00 a.m. These hours are the typical business hours for the Marquee and accordingly, the majority of accidents can be attributed to this facility. The proposed use including an intensification of the existing use will only serve to continue and/or increase the noted traffic problems.

4. The proposed exterior appearance of the structure will not be consistent with the external appearances of commercial structures already constructed within the immediate neighborhood and will cause blight or deterioration of the property values within the neighborhood. The existing facility presently has severely deteriorated pavement, no landscaping, and poor building maintenance and appearance as illustrated by the photographs. It is reasonable to conclude with the same operator and an intensification of use that these problems will continue.

5. The existing pole sign located on the site which is proposed to be re-faced does not comply with the City’s Design Guidelines as it exceeds the height limitation and pole signs are not permitted.

6. The proposed adult use facility is not consistent with the City’s proposed General Plan policy which states that commercial and industrial developments shall be required to clearly demonstrate that they will have no significant detrimental impacts upon the City and its residents, including significant adverse traffic, noise, air pollution, and fiscal impacts. The proposed use will exacerbate an existing traffic and parking problem related to the present use by virtue of the fact that the new use will be an intensification, as it will be providing additional seating at the facility. Further, the applicant’s representative, Bob Martin, is the present operator of the existing facility commonly known as the Marquee nightclub. The calls for police service evidenced at the Marquee are excessively high for an establishment of this nature and it is reasonable to conclude with the same operator and an intensification of use that these problems will only continue, if not worsen. Further, fiscal impacts to the City and the impacts of noise and parking are significantly adverse.

The current action was filed by the plaintiff on February 2, 1994. The original complaint challenged the manner in which the conditional use permit criteria were applied to the plaintiff in this case. The complaint was later amended to add a facial challenge to the City’s adult use ordinances.

On March 22, 1994, this Court issued an Order denying the defendant’s motion to dismiss or, in the alternative, for summary judgment. The Court also denied the defendant’s motion to abstain from the exercise of jurisdiction. On April 4, 1994, the Court issued a preliminary injunction which allowed the plaintiff to open its adult cabaret without obtaining a CUP from the City.

INTERIM PROCEEDINGS:

Between April of 1994 and February of 1995, the plaintiff made substantial renovations to the property. Among other things, the plaintiff regraded and repaved the parking lot, installed new exterior lighting, landscaped the surrounding property, installed a new fire hydrant, remodeled substantial portions of the building including the stage area and the restrooms, upgraded the sprinkler system, and made other cosmetic changes to the facilities. The property has been significantly improved as a result of the plaintiffs renovations.

On January 10, 1995, the City enacted Ordinance No. 2233, which amended various portions of Chapter 17.57 of the Westminster Municipal Code. The permit approval criteria contained in Section 17.57.160 were amended as follows:

A. Section 17.57.160(2) is repealed and replaced with the following: That the proposed use complies with the development and design requirements of the zone or land use designation in which it is to be located.

B. Section 17.57.160(5) is repealed and replaced with the following: The requested use at the proposed location will not be located within a two hundred fifty (250) foot radius of a church, temple or other place used exclusively for religious worship, school, park, playground, mobile home park or similar use.

C. Sections 17.57.160(8) and (9) are deleted in their entirety.

D. A new section 17.57.160(8) is hereby added as follows: That neither the applicant, if an individual, or any of the officers or general partners, if a corporation or partnership, have been found guilty or pleaded nolo contendere within the past four (4) years of a misdemeanor or a felony classified by the State as a sex or sex-related offense.

On February 21, 1995, this Court granted the plaintiffs motion for leave to file a First Amended Complaint. The First Amended Complaint includes facial challenges to Chapter 17.57 of the Municipal Code as well as an as applied challenge to the manner in which the permit approval criteria was applied in this case. The First Amended Complaint also included claims for monetary damages, but the Court granted partial summary judgment in favor of the defendant which eliminated all monetary damages in the case.

On July 24, 1995, the Court held a court trial to resolve the plaintiffs remaining claims, which are purely equitable in nature.

II. ANALYSIS

A. PRELIMINARY ISSUES

1. Standing

In federal court, a litigant must have a significant stake in the controversy to merit bringing suit. The Supreme Court has stated that the irreducible constitutional minimum of standing contains three elements: (1) the plaintiff must suffer from some “injury in fact;” (2) the injury must be caused by the act being complained of (i.e., a violation of the Constitution); and (3) there must be a significant possibility that the plaintiffs injury will be redressed by giving the litigant the relief it seeks. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 , 112 S.Ct. 2130, 2136 , 119 L.Ed.2d 351 (1992); Worth v. Seldin, 422 U.S. 490, 508 , 95 S.Ct. 2197, 2210 , 45 L.Ed.2d 343 (1975).

This Court has previously concluded that the plaintiff has standing to sue in this case. The plaintiff is currently operating a topless bar in the City of Westminster at a site zoned for such use. The first prong of the three-part test is satisfied because the plaintiff would incur monetary losses and would be prohibited from engaging in protected First Amendment activity if its adult cabaret were closed. The second prong is satisfied because the injury to the plaintiff would be caused by the act being complained of (i.e., a violation of the First Amendment). Finally, the third prong is satisfied because this injury will be redressed by granting injunctive relief which would allow the cabaret to remain open.

2. Abstention

a. Younger Abstention

In Younger v. Harris, 401 U.S. 37 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1971), the Supreme Court held that federal courts may not enjoin pending state court criminal proceedings. The Court has since applied the Younger doctrine to state civil and administrative proceedings.

Under Younger and its progeny, abstention is appropriate in favor of a state proceeding if: (1) the state proceedings are ongoing; (2) the proceedings implicate important state interests; and (3) the state proceedings provide an adequate opportunity to raise federal questions. Beltran v. California, 871 F.2d 777, 781 (9th Cir.1988).

“Abstention from the exercise of federal jurisdiction is the exception, not the rule.” World Famous Drinking Emporium v. City of Tempe, 820 F.2d 1079 , 1082 (9th Cir.1987). “Absent significant countervailing interests, the federal courts are obliged to exercise their jurisdiction.” Id. The rationale of Younger is based upon principles of comity and federalism. Younger, 401 U.S. at 44 , 91 S.Ct. at 750-51 .

Abstention under Younger is inappropriate where the state court proceedings fail to provide an adequate remedy. Younger, 401 U.S. at 45 , 91 S.Ct. at 751 . In this case, the court has previously ruled that abstention was inappropriate because the available state court remedy was inadequate.

Through a writ of mandate as provided by CaLCode Civ.Proe. §§ 1084 and 1094.5, the plaintiff could have applied for a hearing with a state court tribunal to determine whether the City’s Planning Commission or the City Council abused its discretion in refusing to issue a conditional use permit. Although some mechanisms exist which may have provided the plaintiff with an expedited hearing through the writ of mandate, an expedited hearing was not guaranteed.

Because this ease involved an alleged ongoing First Amendment violation, time played a critical factor. Therefore, the Court concluded that abstention under Younger was inappropriate because immediate relief in the form of a preliminary injunction and restraining order was required.

No principles of comity or federalism were offended by this Court’s exercise of jurisdiction. No state court proceedings were undermined by this Court’s exercise of jurisdiction because no adjudicatory proceedings had commenced in state court prior to filing the federal action. Cf. World Famous Drinking Emporium, 820 F.2d at 1081. In addition, the plaintiffs federal claims were not presented to the City Council for determination and would not have been adequately addressed if the plaintiff had pursued relief in the state courts through a writ of mandate,

b. Pullman Abstention

Under the Pullman doctrine, federal court abstention is required when state law is uncertain and a state court’s clarification of state law might make a federal court’s constitutional ruling unnecessary. Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496 , 61 S.Ct. 643 , 85 L.Ed. 971 (1941). Under such circumstances, the federal court should not resolve the federal constitutional question until the matter has been sent to state court for determination of the uncertain issue of state law.

The Ninth Circuit has set forth a three-pronged test for determining the applicability of Pullman abstention: (1) the complaint must touch a sensitive area of social policy into which the federal courts should not enter unless there is no alternative to adjudication; (2) a definitive ruling on the state issues by a state court could obviate the need for constitutional adjudication by the federal court; and (3) the proper resolution of the potentially determinative state law issue is uncertain. Kollsman v. City of Los Angeles, 737 F.2d 830, 833 (9th Cir.1984), cert. denied, 469 U.S. 1211 , 105 S.Ct. 1179 , 84 L.Ed.2d 327 (1985).

This Court has previously ruled that Pullman abstention is inappropriate in this case. The defendant attempted to characterize the ease as a typical land-use matter which is primarily a matter of state concern. However, the plaintiff has demonstrated that First Amendment issues are at the core of the present controversy. In addition, the Court finds that there are no genuine issues in this case which implicate uncertain areas of state law. Finally, as explained above, this court would not offend any notions of comity or federalism by exercising jurisdiction because no state court adjudication has taken place.

3. Exhaustion of Administrative Remedies

Unless exhaustion of administrative remedies is specifically required by statute, application of the doctrine of exhaustion is within the sound discretion of the trial court. Daly-Murphy v. Winston, 837 F.2d 348, 354 (9th Cir.1987); United Farm Workers v. Arizona Agric. Employment Relations Bd., 669 F.2d 1249, 1253 (9th Cir.1982). As a general rule, suits under § 1983 of the United States Code are exempted from the exhaustion requirement because the remedy afforded by the Civil Rights Act is supplementary to the state court remedy. Board of Regents v. Tomanio, 446 U.S. 478, 491 , 100 S.Ct. 1790, 1798-99 , 64 L.Ed.2d 440 (1980); Monroe v. Pape, 365 U.S. 167, 183 , 81 S.Ct. 473, 481-82 , 5 L.Ed.2d 492 (1961). Furthermore, a court may excuse a plaintiff from exhausting its administrative remedies if the remedies are inadequate or futile. Damico v. California, 389 U.S. 416, 416-17 , 88 S.Ct. 526, 526-27 , 19 L.Ed.2d 647 (1967); Houghton v. Shafer, 392 U.S. 639, 640 , 88 S.Ct. 2119, 2120 , 20 L.Ed.2d 1319 (1968). In this case, the Court exercised its discretion not to require exhaustion of administrative remedies.

4. Res Judicata

The plaintiff filed this federal suit on February 2, 1994. Approximately two months prior to the expiration of the state-law statute of limitations, this Court issued an order stating that the plaintiff was not required to exhaust its administrative remedies. See Order filed March 22, 1994. Because the Court ruled that exhaustion of administrative remedies was not required, the failure of the plaintiff to pursue a writ of mandate in state court cannot have res judicata effect on its current challenge to the denial of the CUP.

B. AS APPLIED CHALLENGE TO THE DENIAL OF A CONDITIONAL USE PERMIT

42 U.S.C. § 1983 provides, in pertinent part, that:

42 U.S.C. § 1983 (West 1994). In order to state a cause of action under § 1983, a plaintiff must demonstrate that a person acting under color of state law subjected the plaintiff or caused the plaintiff to be subjected to the deprivation of a right secured by the Constitution or laws of the United States. City of Oklahoma City v. Tuttle, 471 U.S. 808, 828-29 , 105 S.Ct. 2427, 2438-39 , 85 L.Ed.2d 791 (J. Brennan, concurring), reh’g denied, 473 U.S. 925 , 106 S.Ct. 16 , 87 L.Ed.2d 695 (1985).

1. Municipal Liability Under § 1983

The City of Westminster qualifies as a “person” to whom § 1983 applies. Monell v. Dept. of Social Servs., 436 U.S. 658, 688-89 , 98 S.Ct. 2018, 2034-35 , 56 L.Ed.2d 611 (1978). Municipal liability, upon a proper showing, may attach when action is taken by the City Council. This point need not be addressed, however, since Santa Fe Springs waived all claims for damages of any kind during meetings with city officials, during the hearing before the City Council and again during the course of proceedings in trial.

2. First Amendment Protection Afforded to Topless Dancing

The presentation of topless dancing is a form of expression protected by the First Amendment of the Constitution, as applied to the states through the Fourteenth Amendment. Schad v. Mt. Ephraim, 452 U.S. 61, 65 , 101 S.Ct. 2176, 2180-81 , 68 L.Ed.2d 671 (1981). The type of expressive conduct conveyed through nude or semi-nude dancing, however, receives a lesser level of constitutional protection because it falls on the outer perimeters of the activities protected by the First Amendment. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566 , 111 S.Ct. 2456, 2460 , 115 L.Ed.2d 504 (1991). Because the type of expression conveyed through nude or semi-nude dancing does not implicate core First Amendment concerns, the states can take greater measures to regulate such activities.

Under the analysis set forth in City of Renton v. Playtime Theatres, 475 U.S. 41 , 106 S.Ct. 925 , 89 L.Ed.2d 29 , reh’g denied, 475 U.S. 1132 , 106 S.Ct. 1663 , 90 L.Ed.2d 205 (1986), a city has the right to regulate where adult businesses can be located because of the secondary effects associated with such businesses. Through their zoning and building laws, cities possess substantial powers to limit the zones in which adult businesses can be located and to minimize the adverse effects typically associated with such businesses. No city, however, may totally ban such businesses or make it practically impossible to operate such a business within the city limits. Renton, 475 U.S. at 54 , 106 S.Ct. at 932 ; Topanga Press v. City of Los Angeles, 989 F.2d 1524 , 1529-33 (9th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1537 , 128 L.Ed.2d 190 (1994).

An adult business’ First Amendment rights are violated when a local government effectively denies the adult business a reasonable opportunity to open and operate their enterprise within the city in question. Renton, 475 U.S. at 54 , 106 S.Ct. at 932 ; Topanga Press, 989 F.2d at 1529. If a city adopts a permitting system which purports to allow adult businesses to operate in certain locations, the city must have a legitimate reason if it denies a CUP to an applicant who seeks to open an adult cabaret in a location zoned for such use.

In the context of an as applied challenge to the denial of a CUP, a plaintiff suffers a deprivation of First Amendment rights when a city prohibits the plaintiff from opening a topless bar without a legitimate reason. Southeastern Promotions v. Conrad, 420 U.S. 546 , 95 S.Ct. 1239 , 43 L.Ed.2d 448 (1975).

3. Application in This Case

The City of Westminster regulates adult uses through Chapter 17.57 of the Westminster Municipal Code. At the time when the plaintiff applied for its conditional use permit, Chapter 17.57 provided, in pertinent part: