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May 3, 2011
MANUEL WILSON, PLAINTIFF,v.ALLIED-BARTON SECURITY SERVICES,DEFENDANT.
Pending before this court is defendant Allied-Barton Security Services' ("Allied-Barton's") motion to dismiss. The court has determined that the matter shall be submitted upon the record and briefs on file and, accordingly, the date for hearing of this matter shall be vacated. Local Rule 230. Upon review of the motion and the documents in support and opposition, and good cause appearing therefor, THE COURT MAKES THE FOLLOWING FINDINGS:
The allegations in the complaint are scarce. However, review of the complaint and the exhibits attached to it*fn1 reveal that plaintiff was employed at Washington University in St. Louis, Missouri through Allied-Barton. On January 22, 2008, plaintiff's employment at Allied-Barton was terminated after he took off six days from work due to an unidentified disability. Plaintiff asserts that his dismissal was because of his disability.
On March 21, 2008, plaintiff filed a complaint with the Missouri Commission on Human Rights and the Equal Employment Opportunity Commission ("the EEOC") against Washington University claiming that he was discharged from his job because of his disability. Compl. at 2.
On May 19, 2008, plaintiff filed an identical complaint against Allied-Barton. See Req. for Judicial Notice, Ex. A.
On February 18, 2009, plaintiff was mailed a Dismissal and Notice of Rights letter from the EEOC as to his complaint against Washington University. Compl. at 3-4. Therein, plaintiff was informed that the EEOC file was closed because the agency adopted the findings of the state or local fair employment practices agency that investigated plaintiff's charge.*fn2 Id. Plaintiff was also advised that, if he wished to file a lawsuit pursuant to Title VII, the Americans with Disabilities Act and/or the Age Discrimination in Employment Act, such suit must be filed within 90 days of plaintiff's receipt of the letter. Id.
On April 7, 2009, plaintiff was mailed an identical letter concerning his claim against Allied-Barton. See Req. for Judicial Notice, Ex. B.
On May 11, 2010, plaintiff filed a complaint in this court against Washington University School of Medicine and Apryle Cotton alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. See Case No. 2:10-cv-1157-LKK-KJM. That case was transferred to the Eastern District of Missouri pursuant to 28 U.S.C. § 1391(b). Id. Doc. No. 3. Upon transfer, the case was dismissed as time-barred pursuant to 42 U.S.C. § 12117(a). Req. for Judicial Notice, Ex. E.
Also on May 11, 2010, plaintiff filed the instant complaint pursuant to the ADA. Plaintiff seeks back-pay and "whatever else this court deems just and proper."
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1974 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.
In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989).
The court is permitted to consider material properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). Matters of public record include pleadings and other papers filed with a court. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
1. Judicial Notice
Defendant requests that the court take judicial notice of plaintiff's filings with the EEOC, as well as a lawsuit initiated by plaintiff in this court that was subsequently transferred to and dismissed as time-barred by the Eastern District of Missouri. Judicial notice may be taken of facts "not subject to reasonable dispute" because they are either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201. Additionally, a court may take judicial notice of "matters of public record." Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). Accordingly, defendant's request is granted.
2. Improper Venue
Defendant first argues that plaintiff's suit should be dismissed due to improper venue.
A party may bring a motion asking the court to dismiss the action for improper venue pursuant to Federal Rule of Civil Procedure 12(b) (3). When venue is improper, the court "shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." 28 U.S.C. § 1406(a). It is the plaintiff's burden to show that venue is proper. See Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979) ("Plaintiff had the burden of showing that venue was properly laid in the Northern District of California."). On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(3), "the pleadings need not be accepted as true, and the court may consider facts outside of the pleadings." Murphy v. Schneider National, Inc., 362 F.3d 1133, 1137 (9th Cir. 2004) (citations omitted). Dismissal, rather than transfer, may be appropriate where the transfer would be futile because the case would be dismissed even after transfer. See Altin Havayolu Tasamaciligi Turizm Ve Tic v. Sinnarajah, 2008 WL 691851, *5 (N.D. Cal.,2008) (citing King v. Russell, 963 F.2d 1301, 1304 (9th Cir. 1992)).
Pursuant to the venue statute, 28 U.S.C. § 1391(e), a plaintiff may assert venue in "any judicial district in which (1) a defendant in the action resides, [or] a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated." Id. Here, there is no dispute that this action arises from events that occurred in St. Louis, Missouri, and that defendant resides in Missouri. It is evident, then, that venue is proper in the Eastern District of Missouri and not in this court.
Having found that venue in this court is improper, the court has two options: (1) dismiss the action, or (2) transfer venue to the Eastern District of Missouri if it is in the interests of justice to do so. See 28 U.S.C. § 1406(a). For the reasons set forth below, the undersigned finds that transfer would be futile and, therefore, recommends dismissal.
3. Statute of Limitations
Defendant argues that dismissal is appropriate because plaintiff's claim is time- barred as plaintiff failed to file a lawsuit within ninety days of receiving notice of his right to sue from the EEOC.
A plaintiff must file suit in federal district court alleging violations of the ADA and Title VII within ninety days of receipt of a right-to-sue notice from the EEOC. 42 U.S.C. § 2000e-5(f)(1); Mann v. American Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003). A suit is deemed filed when a complaint is submitted to the clerk along with the filing fee. See Fed. R. Civ. P. 3. Where the plaintiff is unable to pay the filing fee, he may submit a petition to the court to proceed in forma pauperis ("IFP"). If the judge approves the IFP petition, the complaint is deemed filed upon the judge's approval. See Williams-Guice v. Board of Educ., 45 F.3d 161, 162 (7th Cir. 1995) (interpreting 28 U.S.C. § 1915(a)).
Here, plaintiff's ninety-day period began running after his receipt of the EEOC letter mailed on April 7, 2009. Although there is no declaration from plaintiff as to when he actually received the letter, the court will, for purposes of this motion, assume that plaintiff received it within one month of its mailing. As such, plaintiff had ninety days to file this action.
This action, however, is considered to have commenced on May 19, 2010 when plaintiff's IFP application was granted. This was clearly beyond the requisite time period.
Although "[t]he court does not have the power to alter the 90 day statute of limitations" Mann, 324 F.3d at 1090, in some instances courts have suspended the statute of limitations if equity requires such action. For instance, courts sometimes apply the doctrine of equitable estoppel, which is also known as "fraudulent concealment." See, e.g., Humphries v. CBOCS W., Inc., 343 F. Supp. 2d 670, 674 (N.D. Ill. 2004). Under this exception, a limitations period is suspended when a defendant takes active steps to prevent the plaintiff from timely suing, such as by hiding evidence or promising not to plead the statute of limitations. Santa Maria v. Pacific Bell, 202 F.3d 1170, 1176-77 (9th Cir. 2000); Humphries, 343 F. Supp. 2d at 674. However, equitable estoppel is not applicable here since plaintiff's complaint neither alleges nor provides a basis to suspect that defendant purposely hindered plaintiff's ability to file a timely complaint.
A second exception is the doctrine of equitable tolling. Santa Maria, 202 F.3d at 1176-77; Humphries, 343 F. Supp. 2d at 674. Equitable tolling permits a plaintiff to avoid the bar of the statute of limitations if despite all due diligence he is unable to obtain vital information bearing on the existence of his claim. Id. Unlike equitable estoppel, equitable tolling does not depend on any wrongful conduct by the defendant to prevent the plaintiff from suing; rather, it focuses on whether there was excusable delay by the plaintiff. Santa Maria, 202 F.3d at 1176-77. As was the case with the first exception, plaintiff's complaint neither alleges nor provides a basis to infer that his untimely filing was the result of his inability to obtain information that was essential to establishing his claim. In fact, the opposite appears true. Plaintiff has, since the time he worked for defendant to the time of his discharge, known all the relevant facts.
As such, defendant's motion to dismiss should be granted and this action dismissed with prejudice.
Accordingly, IT IS HEREBY ORDERED that the May 5, 2011 hearing on defendant's motion to dismiss is vacated; and
IT IS HEREBY RECOMMENDED that
1. Defendant's motion to dismiss be granted; and
2. This action be dismissed with prejudice.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Item #
1800s 1900s Vintage Skirt Edwardian Suffragette
WAIST: 36-38 INCHESLovely black skirt from the late 1800s to early 1900s for my larger ladies. Waist has been changed but looks good. Very full gored skirt longer in back. Several large hook and eye closure. Front has 2 pleats. Lining is shredding and will need to be removed. Will not hurt the skirt. Fabric not sure of but middleweight and sturdy. Please measure yourself for best fit. CONDITION: VERY GOOD. LINING IS SHREDDING NEEDS REMOVED. WILL NOT HURT SKIRT IN ANY WAY. BETTER ACTUALLY. SMALL SPOT(SEE PICTURE). FEW TINY PIN HOLES HARDLY SEEN. WAIST: 36-38 INCHESWAIST TO FRONT HEM: 43 INCHESWAIST TO BACK HEM: 48 INCHES
Circa: 1800s-1900s
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Manufacturer: UNKNOWN
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decided: July 17, 1981.
KACAR, INC. AND PASQUALE AND JOSEPHINE DEMILIO, APPELLANTSv.THE ZONING HEARING BOARD OF THE CITY OF ALLENTOWN, APPELLEE
Appeal from the Order of the Court of Common Pleas of Lehigh County in case of Kacar, Inc. and Pasquale and Josephine Dimilio v. The Zoning Hearing Board of the City of Allentown, No. 79-C-1846.
William G. Sherr, with him Howard N. Stark, for appellants.
Daniel K. McCarthy, Efron, Black, Epstein and Prokup, for appellee.
Judges Mencer, Rogers and MacPhail, sitting as a panel of three. Opinion by Judge Mencer. Judge Wilkinson, Jr. did not participate in the decision in this case.
[ 60 Pa. Commw. Page 583]
Kacar, Inc., and Pasquale and Josephine DeMilio (appellants) have appealed from an order of the Court of Common Pleas of Lehigh County which upheld the denial of a constitutional challenge to a provision of the zoning ordinance of the City of Allentown and the denial of a special exception under that provision. We affirm.
In 1977, the City of Allentown adopted Ordinance 12260 which amended the Codified Ordinances of the City of Allentown by adding, inter alia, the following provisions:
It shall be unlawful to establish an Adult Book Store, Adult Motion Picture Theater or Cabaret within five hundred feet (500') of any school, church or residential zone, except as a
[ 60 Pa. Commw. Page 584]
special exception in accordance with the procedure set forth in Section 1361.02. The Zoning Hearing Board may authorize the establishment of an Adult Book Store, Adult Motion Picture Theater or Cabaret within five hundred feet (500') of a school, church or residential zone as a special exception only if the following findings are made by the Board:
(a) That the applicant has presented to the Board a petition which indicates approval of the proposed use by 51 per cent of the persons owning, residing or doing business within a radius of five hundred feet (500') of the location of the proposed use. The applicant shall have attempted to contact all eligible locations within this radius, and must supply a list of all addresses at which no contact was made. The circulator of the petition shall have subscribed to an affidavit attesting to the fact that the circulator personally witnessed the signatures on the petition and that the same were affixed to the petition by the persons whose names appear thereon.
In 1978, the appellants established an adult bookstore and adult theater at 22 North Sixth Street in Allentown in an area zoned for business use. After being cited for engaging in a nonpermitted use, they applied for a special exception permit which was denied. In this appeal, the appellants contend that 1) Ordinance 12260 is unconstitutional because it is violative of the standards of Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976); 2) the ordinance was improperly applied to their property; 3) the ordinance is exclusionary; and 4) the ordinance improperly delegates legislative powers. We have carefully examined the appellants' contentions and we find them to be without merit.
[ 60 Pa. Commw. Page 585]
I. Ordinance 12260 is not violative of the standards set forth in Young v. American Mini Theatres
In Young v. American Mini Theatres, the City of Detroit had adopted an ordinance which required that adult theaters be located at least 1,000 feet from adult bookstores, cabarets, and other specified uses and at least 500 feet from a residential zone. A majority of the Court held that the Detroit ordinance did not interfere with the rights of the owners of adult theaters under the first amendment to the U.S. Constitution.
[W]e have no doubt that the municipality may control the location of theaters as well as the location of other commercial establishments, either by confining them to certain specified commercial zones or by requiring that they be dispersed throughout the city. The mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not a sufficient reason for invalidating these ordinances.
Id. at 62.
It is conceivable that a zoning provision which curtails the use of a property for commercial distribution of adult materials could violate the first amendment. In the recent decision of Entertainment Concepts, Inc., III v. Maciejewski, 631 F.2d 497 (7th Cir. 1980), for example, the Village of Westmont was enjoined from enforcing a zoning ordinance which treated adult theaters as a special exception. The court held that the ordinance was impermissibly vague because it did not define "adult theaters," nor did it express guidelines for enforcement. The court felt that these deficiencies posed too great a threat to first amendment freedoms.
The same court, however, has also upheld a zoning ordinance which treated adult theaters as a special exception.
[ 60 Pa. Commw. Page 586]
After an extensive review of case law, the plurality of the Court in Young v. American Mini Theatres concluded as follows:
Moreover, even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials . . . , it is manifest that society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate that inspired Voltaire's immortal comment. Whether political oratory or philosophical discussion moves us to applaud or to despise what is said, every schoolchild can understand why our duty to defend the right to speak remains the same. But few of us would march our sons and daughters off to war to preserve the citizen's right to see 'Specified Sexual Activities' exhibited in the theaters of our choice. Even though the First Amendment protects communication in this area from total suppression, we hold that the State may legitimately use the content of these materials as the basis for placing them in a different classification from other motion pictures.
Id. at 70-71. The court then found that the "city's interest in the present and future character of its neighborhoods" was justified and "adequately supports its classification of motion pictures." Id. at 72.
The extensive record in the present case indicates that the city fathers of the City of Allentown have a justified concern that the business and residential districts of the city are in serious danger of blight and decay because of the flight of businesses and residents to the surrounding suburbs. They enacted Ordinance 12260 because of an understandable belief that the concentration of "adult" businesses in a neighborhood
[ 60 Pa. Commw. Page 588]
discourages people from locating their homes and businesses nearby.
This is the same problem faced earlier by the City of Detroit, and the City of Allentown, although smaller, was fully justified in adopting the same solution. Thus, if "erotic materials" are a less-protected form of speech, as the plurality in Young v. American Mini Theatres has asserted, then Ordinance 12260 easily survives the equal protection analysis. Unfortunately, the case is not that simple.
Only four members of the Supreme Court agreed, in Young v. American Mini Theatres, that erotic materials may be treated differently than other forms of speech. Four of the justices argued vociferously that the Detroit ordinance impermissibly classified various types of protected speech, based upon their content. Id. at 85 (Stewart, J., dissenting). The "swing vote" was cast by Justice Powell, who considered the equal protection issue in terms of United States v. O'Brien, 391 U.S. 367 (1968), in which the Supreme Court avoided a traditional approach to the problem.
Historically, equal protection cases have been analyzed by applying one of two distinct tests. If a government action affects a fundamental right or interest, the courts undertake a "strict scrutiny" of the legislation. See, e.g., Shapiro v. Thompson, 394 U.S. 618 (1969). Similarly, if the government action is based upon an inherently suspect classification such as race, nationality, or alienage, then the courts will subject the legislation to "close judicial scrutiny." See, e.g., Graham v. Richardson, 403 U.S. 365 (1971). These cases require a very thorough consideration of the relationship between the desired goal and the means employed to reach it.
On the other hand,
in cases where these considerations are absent, courts are quite reluctant to overturn governmental
[ 60 Pa. Commw. Page 589]
action on the ground that it denies equal protection of the laws. The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted. . . .
Vance v. Bradley, 440 U.S. 93, 97 (1979) (footnotes omitted). Therefore, the government action will be upheld if the means employed are rationally related to the end to be achieved.
This two-tiered approach to equal protection analysis has been criticized because some cases fall between the two extremes. Craig v. Boren, 429 U.S. 190, 212 (1976) (Stevens, J., concurring). Cases involving distinctions based upon sex,*fn1 age,*fn2 or income*fn3 have been particularly troublesome. Indeed, Justice Marshall has argued at different times that these cases require a three-tiered analysis*fn4 or a multifactor sliding-scale analysis.*fn5
Justice Powell, however, has taken the position that there is only one equal protection test which is applicable to all cases: whether the legitimate state interest furthered by the government action outweighs the personal rights it endangers. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 173 (1972). See also Gunther, The Supreme Court, 1971 Term -- Forward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harvard L. Rev. 1 (1972). It is important to remember this background when considering Justice Powell's application
[ 60 Pa. Commw. Page 590]
of United States v. O'Brien in his concurring opinion in Young v. American Mini Theatres.
In O'Brien, the Supreme Court was considering the constitutionality of a federal statute which imposed criminal liability on any person who burned his draft card. The defendant had argued that "his act of burning his registration certificate was protected 'symbolic speech' within the First Amendment." 391 U.S. at 376. The Court rejected this argument.
We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms
[ 60 Pa. Commw. Page 591]
is no greater than is essential to the furtherance of that interest. We find that the 1965 Amendment to § 12(b)(3) of the Universal Military Training and Service Act meets all of these requirements, and consequently that O'Brien can be constitutionally convicted for violating it.
Id. at 376-77 (footnotes omitted). In essence, the Court applied the "single test" for equal protection in United States v. O'Brien. Justice Powell would have applied this same "single test" in Young v. American Mini Theatres.
We believe that Ordinance 12260 of the City of Allentown satisfies the standards set forth by Justice Powell in Young v. American Mini Theatres. The government action did further a substantial and legitimate state interest without unnecessarily infringing on individual rights. In reaching this decision, we have been guided by the opinion of the Superior Court in Jehovah's Witnesses Appeal, 183 Pa. Superior Ct. 219, 130 A.2d 240, appeal dismissed, 355 U.S. 40 (1957). The Jehovah's Witnesses decision held that the imposition of dimensional zoning requirements on a church did not improperly infringe on the first amendment guaranty of religious freedom. The Superior Court applied a similar test in Jehovah's Witnesses to that espoused by Justice Powell in Young v. American Mini Theatres.
In American Communication Association v. Douds, 339 U.S. 382, 397, Chief Justice Vinson states: 'When the effect of a statute or ordinance upon the exercise of First Amendment freedoms is relatively small and the public interest to be protected is substantial, it is obvious that a rigid test requiring a showing of imminent danger to the security of the Nation is an absurdity. We recently dismissed for want of substantiality an appeal in which a church
[ 60 Pa. Commw. Page 592]
group contended that its First Amendment rights were violated by a municipal zoning ordinance preventing the building of churches in certain residential areas. Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Porterville, 338 U.S. 805, 1949.'
If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control. Euclid v. Ambler Realty Co., 272 U.S. 365, 388. To the same effect see Bell Tel. Co. of Pa.'s Appeal, 138 Pa. Superior Ct. 527, 531, 10 A.2d 817.
Jehovah's Witnesses Appeal, 183 Pa. Superior Ct. at 226-27, 130 A.2d at 244.
We have already demonstrated that Ordinance 12260, as we construe it, does not regulate expression or speech; it regulates economic exploitation of certain films and books.*fn6 The City of Allentown "has silenced no message, has invoked no censorship, and has imposed no limitation upon those who wish to view them." Young v. American Mini Theatres, 427 U.S. at 78 (Powell, J., concurring).
If the City of Allentown had adopted an ordinance to "regulate the showing of sexually explicit movies" rather than the "location of 'adult' uses," then we would be forced to conclude that the government interest was related to the suppression of free expression. Entertainment Concepts, Inc., III v. Maciejewski, 631 F.2d at 504 (emphasis added). Instead, the purpose of the ordinance was to prevent the deterioration of the business and residential neighborhoods of the City of
[ 60 Pa. Commw. Page 593]
Allentown with minimal infringement of constitutional guarantees. This is a legitimate and substantial governmental interest.*fn7
Since Ordinance 12260 of the City of Allentown meets the standards set forth by both Justice Stevens and Justice Powell in Young v. American Mini Theatres, we hold that the ordinance represents a constitutional exercise of the zoning power by the City of Allentown.*fn8
II. Ordinance 12260 was not improperly applied to appellants' property
The appellants contend that the 500-foot dispersion requirement was incorrectly applied by the City of Allentown. They argue that the "feet" referred to in Section 1363.04 must be measured along the public streets of the city, rather than along a straight line, since other provisions of the ordinance refer to "1,000 linear feet" and a "radius of 500 feet." We disagree.
[ 60 Pa. Commw. Page 594]
While the ordinance is somewhat ambiguous, we believe that the plain and simple meaning of all three terms would require a measurement along a straight line. The difference in terminology may be attributed to the fact that the term "radius" is used in describing the measurement of a two-dimensional area while the terms "feet" and "linear feet" refer to a one-dimensional measurement of distance. We need not decide the question, however, because the evidence clearly shows that the property would still be within 500 feet of at least two churches, even if the appellants' method of measurement were employed.
III. Ordinance 12260 is not exclusionary
The next contention of the appellants is that the ordinance has the effect of excluding adult bookstores and adult theaters from the City of Allentown. The zoning hearing board found that "[t]here are various areas in the City of Allentown in which adult book stores and adult motion picture theaters may be located either as a matter of right or as special exceptions." Report of Zoning Hearing Board in No. 37344, at 5 (1979). This finding was based upon testimony in the record which was not rebutted by the appellants. Therefore, the appellants' contention must fail. BP Oil, Inc. v. Zoning Hearing Board of the Borough of Brookhaven, 37 Pa. Commonwealth Ct. 258, 389 A.2d 1220 (1978).
We note that the appellants have phrased this issue in terms of the "fair share doctrine." The fair share doctrine applies to residential housing, usually in the context of housing for low-income families. Surrick v. Zoning Hearing Board of Upper Providence Township, 476 Pa. 182, 382 A.2d 105 (1977). We are unaware of any case in which it has been applied to commercial uses. Even if the doctrine were applicable to commercial uses, however, we could not conclude from
[ 60 Pa. Commw. Page 595]
the record before us that the amount of land available in the City for the appellants' proposed use is inadequate.
IV. Does Ordinance 12260 impermissibly delegate legislative powers?
The appellants contend that Section 1362.04(a) improperly delegates legislative power to the local landowners and residents. They cite Perrin's Appeal, 305 Pa. 42, 156 A. 305 (1931), in support of this contention. We need not decide the issue, however, since the zoning hearing board expressly found that none of the other prerequisites for a special exception set forth in Section 1362.04 had been satisfied. Since the appellants do not challenge these findings, we would be required to uphold the denial of a special exception regardless of whether Section 1362.04(a) impermissibly delegates legislative power.
For the various reasons set forth in this opinion, we hold that the Court of Common Pleas of Lehigh County properly upheld the denial of a constitutional challenge to Ordinance 12260 of the City of Allentown and also properly upheld the denial of a special exception under that ordinance to Kacar, Inc., and Pasquale and Josephine DeMillio.
Order affirmed.
And Now, this 17th day of July, 1981, the order of the Court of Common Pleas of Lehigh County, dated January 16, 1980, which affirmed the decision of the Zoning Hearing Board of the City of Allentown, in the above captioned matter, is hereby affirmed.
Judge Wilkinson, Jr. did not participate in the decision in this case.
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These dual screen wallpapers can be used for any purpose, without attribution. The 3840 x 1200 resolution photographs are intended for use with two monitors, each set to 1920 x 1200. To rotate my wallpapers at timed intervals I use DesktopNova running on my Ubuntu system. I used a Canon PowerShot SX200 IS to take […]
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Yesterday I was downloading a number of free dual screen wallpapers. It occurred to me to make some of my own.
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DPA Microphones Travel with Silk Road and Yo-Yo Ma
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NEW YORK - DPA Microphones recently journeyed around the world with The Silk Road Ensemble with Yo-Yo Ma. Audio Engineer/Designer Jody Elff chooses DPA as his go-to mics for a vareity of reasons. "One of the greatest advantages of DPA mics, aside from their fidelity, is that they are nearly invisible from the audience's point of view," adds Elff. "This allows the audience to enjoy the music rather than be distracted by the technology, and frees the artist from feeling 'trapped' by a physical relationship to a microphone on a stand. For a live performance situation this is enormously liberating."Add a comment


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Carbon Creek
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For the ENT episode of the same name, please see "Carbon Creek".
Carbon Creek was a small mining town in Pennsylvania in the United States of America. It lay along State Highway 138 and in the Crest Forest Fire District. In 1957, it had a population of approximately 611.
Some of the local businesses:
- Johnnies Market - 23019 Main Street
- Madeline's Cafe
- Pine Tree Bar and Grill - 22960 Main Street
According to T'Pol, in 1957, a small Vulcan vessel crash landed near the town. The vessel's surviving occupants - her second foremother T'Mir, Mestral and Stron - covertly integrated themselves into the town's population for a period, until their rescue.
After moving to Earth in 2149, at some point during her stay T'Pol took a five-day leave to visit Carbon Creek and see it for herself. (ENT: "Carbon Creek")