Ebel

*403 Opinion

These two cases present the same issue, namely whether Garden Grove’s Ordinance No. 1116, which requires all businesses to obtain conditional use permits before they can legally sell or display any “adult” materials, e.g., so-called adult books, magazines and motion pictures, is vague and as such unconstitutional on its face. This requirement applies to all businesses regardless of their location within the municipality.

Plaintiffs lease certain premises in an area zoned for commercial use in the City of Garden Grove, and they intend to operate retail stores out of these rented premises. Plaintiffs admit that they intend to use the premises to sell books, magazines, and related material, the reading of some of which is proscribed for minors. Consequently, the city attorney has threatened to initiate criminal prosecutions against plaintiffs if they sell even one adult magazine without first obtaining a conditional use permit.

Plaintiffs thereupon sought both injunctive and declaratory relief from the trial court to enjoin the City of Garden Grove, both preliminarily and permanently, from enforcing its permit requirements against them and to declare that they need…

I concur in the order denying the petition for rehearing, but I do not concur in the modification of the opinion originally filed. Section 9219.9 expressly requires the order to specify the reasons found by the planning commissioner or zoning administrator for denying or granting an application. Such requirement obviously contemplates review for arbitrariness or caprice and necessarily imports that granting or denying an application is mandatory in some circumstances. If the ordinance could be saved by so construing it, I would so construe it. But the vice of the ordinance is that the standards, if any, set forth are so vague that uniform application and review for abuse of discretion are virtually impossible.

If, of course, a new ordinance is to be enacted, it should plainly provide that issuance of a license is mandatory if the standards set forth in the ordinance are met. Then no court will be called upon to save the ordinance’s validity by construction.

A petition for a rehearing was denied April 14, 1981.

McDANIEL, J.

These two cases present the same issue, namely whether Garden Grove's Ordinance No. 1116, which requires all businesses to obtain conditional use permits before they can legally sell or display any "adult" materials, e.g., so-called adult books, magazines and motion pictures, is vague and as such unconstitutional on its face. This requirement applies to all businesses regardless of their location within the municipality. [1]

Plaintiffs lease certain premises in an area zoned for commercial use in the City of Garden Grove, and they intend to operate retail stores out of these rented premises. Plaintiffs admit that they intend to use the premises to sell books, magazines, and related material, the reading of some of which is proscribed for minors. Consequently, the city attorney has threatened to initiate criminal prosecutions against plaintiffs if they sell even one adult magazine without first obtaining a conditional use permit.

Plaintiffs thereupon sought both injunctive and declaratory relief from the trial court to enjoin the City of Garden Grove, both preliminarily and permanently, from enforcing its permit requirements against them and to declare that…