City Spends $500G’s to Shut Down F Street Adult Bookstore; That Was Well Worth the Taxpayers Money

ENCINITAS — from www.signonsandiego.com – Encinitas’ costly legal battle to shut down an adult business that opened in 2001 has finally ended with the recent sale of the former F Street bookstore on N. Coast Highway 101 in Leucadia.

City rules prohibit an adult business there because it’s close to a day-care facility and homes. Encinitas sued to shut down the business. Years of court fights ensued to resolve the company’s counterclaim that its free-speech rights were being violated. The bookstore company also argued that it wasn’t technically an adult business, saying it carried cookbooks and paperbacks along with its skin magazines, videos and sex toys.

In the years of legal wrangling — during most of which the store wasn’t open — the city spent about $500,000 on legal bills, according to City Attorney Glenn Sabine.

A judge ruled that the city’s adult business regulations were constitutional, although an appellate judge later said the city needed to clarify how much adult material was “substantial” enough to constitute such a business.

The court case is now closed. On Nov. 13, a judge dismissed the lawsuit’s remaining issues because the property had changed hands. F Street sold the building Sept. 9 for $838,000 to a new owner, Capricorn Realty, property records show.

City Councilman Dan Dalager said he is pleased that F Street left town and credited the city’s attorneys with the victory. “Of course, at the time there were people who wanted to go and burn the place down,” he said. “Luckily, cooler heads prevailed. We did things a step at a time.”

F Street Corp. attorney Andy Zmurkiewicz said the company sold its store because of the recession and to focus on online business.

Zmurkiewicz said the company never intended to operate an adult business like those it has in San Diego. He said the company was seeking to expand into a “couples-oriented retail business,” with lingerie and gifts. “The city took this unreasonable position that we could not sell any adult product,” he said. “The only issue to be decided (in court) was the exact mix of products that would comply with the city’s definition.”

Sabine said the company was only pretending to be a regular bookstore. He said it packed shelves with cheap remainder books liquidated by publishers, but made most of its money from the adult materials in the back.

The city’s ordinance prohibits adult businesses within 750 feet of a home, park, religious institution, school or child day-care facility. The F Street bookstore was 24 feet from a home and 440 feet from a day-care center.

Mayor Maggie Houlihan and Councilman Jerome Stocks said the city had to uphold its zoning.

“I think I share the sentiments of the residents, not just of Leucadia but of the whole city,” Houlihan said. “We’re glad it’s gone.”

The store was on the west side of N. Coast Highway 101 at Daphne Street, near cafes, art galleries, hair salons, a dentist’s office and a Mexican restaurant.

Tim Flannery, a former Padres baseball player and coach who lives in Leucadia, said he’s glad F Street left town: “We didn’t think that type of business was appropriate close to an elementary school.”

(The store is 1,695 feet southeast of Paul Ecke Elementary School, according to court documents, so it technically doesn’t violate the 750-feet rule. But residents said their children had to walk by the store on their way home.)

When F Street opened the building in 2001, code enforcement officers closed the business within days. The bookstore reopened in August 2003, with a sign that read: “F Street, San Diego’s Ultimate Sensual Well Being Store.”

Residents picketed, court battles ensued, and the store eventually closed.

In 2005, a Superior Court judge imposed a permanent ban on the business carrying any adult materials, but the ban was later overturned by the state Appeals Court. The court sent the case back to the Superior Court to sort out what constitutes adult materials and what the city’s ordinance meant by the word “substantial.” The ordinance states that a store that sells a substantial amount of adult material is considered an adult business.

Sabine said the issue of what “substantial” means was never resolved in court but said the city uses the “totality of the circumstances.”

F Street bookstore has eight stores in the county: five in San Diego, and one each in Escondido, El Cajon and Chula Vista.

San Diego has had its own legal battles with F Street. Under a settlement, the company closed its stores in Pacific Beach and the Midway District when the stores’ leases expired around 2001.

In El Cajon, city leaders have said they believe that F Street, which opened in the 1980s, has hindered redevelopment. The current zoning would prohibit a new adult store opening in that location. “We’re trying to make the downtown area family-friendly, and an adult bookstore is not a family-friendly business,” said El Cajon City Councilman Gary Kendrick. He hopes that as property values rise, the store will eventually be sold.

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