Court of Appeal Addresses City’s Regulation of CyberCafes

Issue

The California Court of Appeal, Fourth Appellate District, recently considered whether a city’s ordinance regulating CyberCafes violates free speech and privacy rights. (Vo v. City of Garden Grove, (2004 Daily Journal, D.A.R. 1043 Cal App. 4 Dist. January 29, 2004))

Facts

In an effort to control crime, particularly gang-related crime, the City of Garden Grove enacted an ordinance regulating CyberCafes (establishments that provide Internet access to fee paying customers). The ordinance required CyberCafes to (1) obtain a conditional use permit (CUP) to operate; (2) restrict access to minors during school hours, unless accompanied by a parent or guardian; (3) provide adequate personnel, including uniformed security guards on weekend nights; and (4) maintain video surveillance systems. Several CyberCafe owners sued City, alleging the ordinance infringed free speech and privacy rights. The trial court granted the owners’ request for a preliminary injunction prohibiting enforcement of the ordinance. City appealed.

Appellate Court Decision

The Court of Appeal addressed each aspect of the ordinance separately:

  • The Conditional Use Permit Requirement. The Court observed that the ordinance impermissibly gives the zoning administrator “unfettered discretion in deciding what conditions to impose when issuing a CUP.” This kind of discretion would allow the zoning administrator to make decisions for impermissible reasons, “such as content-based regulation of speech.” Therefore, the Court concluded the trial court did not abuse its discretion in granting a preliminary injunction prohibiting enforcement of the CUP requirement.
  • The Daytime Curfew for Minors. The Court noted that City had a legitimate interest in preserving public safety, especially the safety of minors. The Court also determined the ordinance was narrowly tailored to promote this interest, because the curfew is limited to CyberCafes which have a risky environment, and to those times when the students are not under their parents’ supervision. City rationally “determined from the facts before it that the daytime curfew was a needed prophylactic measure to deter minors from being recruited or victimized by gangs when they should, under law, be in school.” Therefore, the Court concluded the trial court abused its discretion when it preliminarily enjoined enforcement of the daytime curfew.
  • The Employee and Security Guard Requirements. As with the curfew, the requirement that CyberCafes have a minimum number of employees and security guards under certain circumstances promotes City’s interest in insuring public safety and deterring gang violence. Also, the ordinance is content neutral and narrowly tailored to accomplish City’s purpose. Thus, the trial court should not have enjoined enforcement of that portion of the ordinance.
  • The Video Surveillance Requirement. Again, the Court concluded “the video surveillance requirement is a content-neutral manner restriction narrowly tailored to advance the city’s legitimate interest in public safety and deterring gang violence.” The Court also concluded the requirement does not invade the privacy of customers because they do not have a reasonable expectation of privacy in a public retail establishment. Thus, the trial court should not have preliminarily enjoined enforcement of the video surveillance requirement.

In conclusion, the Court of Appeal upheld the trial court’s preliminary injunction as to the CUP requirement, but reversed the preliminary injunction as to the other three requirements.

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