Steven D. Wiener, Dba Fantasyland Adult Books v. County of San Diego, a Political Subdivision of the State of California

Opinion by Judge PREGERSON

Steven Wiener, d/b/a Fantasyland Adult Books, appeals the district court’s dismissal of his 42 U.S.C. § 1983 action challenging a San Diego County zoning ordinance (Ordinance No. 8015) that regulates adult bookstores, and the district court’s denial of his motion for a preliminary injunction. We have jurisdiction over the dismissal order under 28 U.S.C. § 1291 , and over the denial of the preliminary injunction motion under 28 U.S.C. § 1292 (a)(1). Because we conclude that Younger abstention did not apply, we reverse and remand.

BACKGROUND

Appellant Steven Wiener (“Wiener”) owns and operates Fantasyland Adult Books (“Fantasyland”), which specializes in selling, renting, and exhibiting adult video tapes, and in selling adult books, magazines, and novelties. Fantasyland is the only adult entertainment business in unincorporated San Diego County, California. It is located approximately 400 feet from two areas which are zoned for residential use.

In September 1990, Wiener was charged in the San Diego Municipal Court with violating § 6930b of the San Diego County Zoning Ordinance (the “Zoning Ordinance”), which was in effect at the time. The County…