                                                                           FILED
                            NOT FOR PUBLICATION                              JUN 25 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ATL CORPORATION, a Washington                    No. 12-35316
Corporation,
                                                 D.C. No. 2:09-cv-01240-RSL
              Plaintiff - Appellant,

  v.                                             MEMORANDUM *

CITY OF SEATTLE,

              Defendant - Appellee.



                    Appeal from the United States District Court
                      for the Western District of Washington
                     Robert S. Lasnik, District Judge, Presiding

                        Argued and Submitted June 7, 2013
                               Seattle, Washington

Before: ALARCÓN, GILMAN **, and IKUTA, Circuit Judges.

       After the entry of final judgment following a three-day bench trial, ATL

Corporation appeals two interlocutory orders granting partial summary judgment in

favor of the City of Seattle. We have jurisdiction under 28 U.S.C. § 1291.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
      The district court erred in granting partial summary judgment to the City

with respect to the constitutionality of the dispersion ordinance in its July 19, 2010

order (amended June 10, 2011), because the City failed to meet its burden of

proving that there were a reasonable number of sites available for adult cabaret use.

See Isbell v. City of San Diego, 258 F.3d 1108, 1112 (9th Cir. 2001). The list of

sites provided by the City did not give the district court a basis for determining that

any particular site would be available for use and “satisfy the conditions of the

zoning ordinance in question.” Lim v. City of Long Beach, 217 F.3d 1050, 1055

(9th Cir. 2000) (citing Topanga Press v. City of Los Angeles, 989 F.2d 1524, 1531

(9th Cir. 1993)). The City conceded at oral argument that it had not identified the

properties that were legally permitted for sensitive uses or for adult cabaret uses

but were not presently operating. Because any parcel on the list could be located

within the buffer zone for properties permitted for such sensitive or adult uses,

there was insufficient evidence that any particular parcel on the list was reasonably

available for use by an adult cabaret. The City also failed to account for the fact

that its list would be systematically reduced each time a new adult cabaret opened.

Therefore, taking all facts in the light most favorable to ATL, the district court did

not have a sufficient basis to determine that there were a reasonable number of




                                           2
alternative sites available as a matter of law.1 Accordingly, we vacate the portion

of the July 19, 2010 order granting partial summary judgment to the City on that

issue.

         We affirm the district court’s May 25, 2011 order (amended June 10, 2011),

granting partial summary judgment in favor of the City with respect to the narrow

tailoring of the ordinance and the reasonableness of the City’s 120-day deadline to

issue a permit. The district court did not err in holding that the dispersion

ordinance was a narrowly tailored means of addressing the City’s substantial

interest in curbing the secondary effects associated with adult cabarets, see Isbell,

258 F.3d at 1115, and the City need not use the least restrictive means of




         1
        We reject ATL’s argument that the availability of only .62 percent of the
City’s total land area is per se insufficient to provide a reasonable number of
alternative sites. The percentage of land available for use for adult purposes is just
one of many factors a district court must consider in evaluating whether a
municipality has provided for a sufficient number of alternative avenues of
communication. See Young v. City of Simi Valley, 216 F.3d 807, 822 (9th Cir.
2000).

                                           3
addressing this interest, see Colacurcio v. City of Kent, 163 F.3d 545, 553 (9th Cir.

1998).2

      The district court did not err in rejecting ATL’s argument that the 120-day

deadline to make a dispersion determination was a facially unconstitutional prior

restraint. ATL was collaterally estopped from relitigating the reasonableness of the

120-day deadline in federal court because the identical issue was litigated and

decided in a prior state-court action, see City of Seattle v. Robert D. Davis, No.

668-62-8-I (Wash. Ct. App. Dec. 3, 2012), and ATL was in privity with Robert

Davis, a named party to the prior action. ATL and Davis had a “sufficient

commonality of interest” because Davis is the president and sole officer of both

ASF and ATL, used both entities in his efforts to secure a permit for the property at

issue in the present case, and was in control of the present litigation. In Re

Gottheiner, 703 F.2d 1136, 1140 (9th Cir. 1983). Moreover, the district court did

not err in concluding that the City had a reasonable need for the 120-day period to

complete all analyses, including the dispersion analysis, in deciding whether to



      2
       Moreover, the City has amended the ordinance to specify that a lot must
contain a “legally permitted” use. This amendment has eliminated any
unconstitutional vagueness from the ordinance. See United States v. Williams, 553
U.S. 285, 306 (2008). The City has a substantial interest in considering
“permitted” as opposed to “currently operating” uses in order to minimize
secondary effects.

                                           4
grant an applicant a permit, see SMC 23.76.002 (discussing the city’s “integrated

and consolidated land use permit process”).3

      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




      3
          The parties shall bear their own costs on appeal.

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