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BROWNELL v. CITY OF ROCHESTER

May 14, 2001

THOMAS G. BROWNELL, BARRELL OF DOLLS SALOON, INC., PLAINTIFFS,
v.
CITY OF ROCHESTER, NEW YORK, DEFENDANT. CHUCK ZICARI, C & A PLAYMATES, INC., PLAINTIFFS, V. CITY OF ROCHESTER, NEW YORK, DEFENDANT. S.J.G. OF ROCHESTER, INC., D/B/A MIRAGE, PLAINTIFF, V. CITY OF ROCHESTER, NEW YORK, DEFENDANT.



The opinion of the court was delivered by: David G. Larimer, United States District Court Chief Judge.

      DECISION AND ORDER

This litigation once again compels a federal court to deal with an activity — nude barroom dancing — that is repugnant to a large segment of the community. No doubt in response to that sentiment, the City of Rochester, like other municipalities, has enacted an ordinance ("the Ordinance") which restricts the type of conduct at establishments providing such entertainment. The Ordinance also imposes exhaustive licensing requirements for those who would operate and perform in such emporia.

A newcomer to the dispute over barroom nude dancing might well express skepticism that such activity is covered by the First Amendment at all. Although debates about the morality or social acceptability of nude dancing and other "adult" entertainment will likely continue for many years to come, as a matter of constitutional law the matter largely has been put to rest. The United States Supreme Court has established that such activity, provided that it is not obscene, constitutes expressive conduct that is entitled to protection under the First Amendment. The expressive conduct is an erotic one which, by its nature, may be troubling to a segment of the populace. No matter how tasteless such performances may appear to many, until the United States Supreme Court changes its view, such dancing is entitled to protection under the First Amendment. If the principles set forth in the First Amendment are to survive, then it is precisely those ideas and beliefs which claim the fewest adherents, and which large segments of society find the most offensive, that are in the greatest need of the bulwark of the First Amendment.

Although the dance may be tasteless and indecent to many, like other "unpopular" speech (whether written, spoken or performed) it is entitled to its place, albeit a modest one, in the marketplace of ideas. The Court's task is not to determine the morality, tastefulness or artistic merits of the conduct at issue. The issue before me is simply whether the City's regulation of conduct that all sides agree is constitutionally protected runs afoul of the First Amendment.

After careful review, I find that portions of the Ordinance violate the First Amendment and must be struck down as unconstitutional. Therefore, plaintiffs' motion for an injunction enjoining the City from enforcing the Ordinance is granted in part.

FACTUAL BACKGROUND

These three actions have been brought by three adult entertainment businesses in the City of Rochester, New York ("the City"), and their owners, challenging the Ordinance adopted by the City on September 22, 2000. The Ordinance, most of which took effect on January 31, 2001,*fn1 amends the City's Municipal Code by, inter alia, adding a new chapter ("Chapter 98") that provides for the licensing and regulation of sexually oriented businesses within Rochester. Plaintiffs, who are all represented by the same attorney and whose complaints are virtually identical,*fn2 have sued the City under 42 U.S.C. § 1983, 1985 and 1988, alleging that the Ordinance violates their rights under the First, Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution. Simultaneously with the commencement of the actions, plaintiffs also moved for a preliminary injunction enjoining defendant from enforcing Chapter 98.

The Ordinance (Appendix A to this Decision and Order) states that its purpose is to regulate sexually oriented businesses in the City in order to address certain undesirable "secondary effects" associated with such businesses. Those secondary effects generally include crime (such as prostitution), health concerns (such as the transmission of sexually transmitted diseases), and the downgrading of property values in areas near sexually oriented businesses.

Section 98-3 of the Ordinance sets forth four types of sexually oriented businesses for which licenses are required, the most pertinent to these actions being "adult cabaret," which is defined as "a business enterprise which regularly features or offers to the public, customers or members, performances by persons who appear nude or semi-nude or live performances that are characterized by their emphasis on the exposure, depiction or description of specified anatomical areas*fn3 or the conduct or simulation of specified sexual activities."*fn4 The Ordinance makes it unlawful for anyone to operate a sexually oriented business, or to work or perform, or to allow any employee to work or perform, nude or semi-nude at a sexually oriented business, without a valid license. Ordinance § 98-4(A).

The Ordinance sets forth a number of requirements for issuance of a sexually oriented business license, as well as various items of information that must be supplied by the applicant, including the applicant's name and address, whether the applicant has been convicted of certain crimes, partnership or corporate information, if applicable, etc.

The Ordinance makes the Chief of Police ("the Chief") the issuing authority for sexually oriented business licenses. Upon the filing of an application for a sexually oriented business license, an investigation is to be performed within thirty days by certain City agencies to determine compliance with the Ordinance and applicable zoning, fire, and property codes. Upon conclusion of the investigation, the Chief must issue the license unless one or more disabling conditions (e.g., conviction of one of the specified crimes) are found to exist.

The Ordinance then goes on to set forth additional regulations relating to activities on the premises of sexually oriented businesses, which affect customers and performers alike. These include a proscription of certain "specified sexual activities," a requirement that performers be on a stage at least eighteen inches above the floor and at least six feet from the nearest customer, a prohibition of physical contact between performers and customers, etc. Ordinance § 98-21.

Section 98-28 provides that the "Municipal Code Violations Bureau shall hear and determine charges involving violations of this chapter. Any person who violates this chapter shall be subject to the penalties set forth in Section 13A-11G of the Municipal Code." The latter section provides for fines ranging from $100 for a first offense to $300 for third and subsequent offenses, with additional penalties of double those amounts upon default.

As stated, plaintiffs in the instant cases are all sexually oriented businesses and their owners. In addition, two of the individual plaintiffs, Thomas G. Brownell and Dennis S. Giunta, are alleged to be managers of their sexually oriented businesses. The sexually oriented businesses in these actions fall within the Ordinance's definition of "adult cabarets," i.e., they all feature live nude or semi-nude entertainers.

Plaintiffs contend that the Ordinance constitutes an impermissible prior restraint on the exercise of their rights under the First Amendment. In particular, plaintiffs challenge several aspects of the licensing system: the requirement that information on the license application be given under oath; the Chief's discretion to determine if any information on the application is false; and the nature of the information required to be provided, much of which plaintiffs contend is sensitive in nature and irrelevant to any legitimate interests of the City. Plaintiffs further argue that requiring applicants to provide information about such matters as their criminal records will have a chilling effect on persons who would like to obtain a sexually oriented business license. In addition, plaintiffs contend that many of the restrictions on performers' actions while on stage impermissibly restrict their freedom of expression under the First Amendment.

DISCUSSION

I. Standing

The first issue that must be addressed is one of standing. The City contends that plaintiffs lack standing, especially relating to the licensing process. The City points out that plaintiffs have not yet submitted license applications pursuant to the Ordinance, or been denied a license, nor do they contend that they would be subject to denial under the Ordinance. In addition, the court was concerned about whether these plaintiffs could assert First Amendment claims on behalf of the performers who work at the plaintiff businesses, none of whom is a party to any of these actions. The court raised this issue sua sponte, since "[t]he federal courts are under an independent obligation to examine their own jurisdiction, and standing `is perhaps the most important of [the jurisdictional] doctrines.'" United States v. Hayes, 515 U.S. 737, 742 (1995) (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230-231 (1990) (citations omitted)).

I conclude that plaintiffs have demonstrated the requisite standing to challenge the Ordinance. First, as to the licensing aspects, the Supreme Court has "long held that when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license." City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 755-56 (1988)). See, e.g., Genusa v. City of Peoria, 619 F.2d 1203, 1218 (7th Cir. 1980) (plaintiff owners had standing to challenge disabling provision based on prior criminal convictions, "even absent allegations that licenses would be denied to any plaintiff owner because of the provisions," since provision "would make it more difficult for the owners to sell their interests in their adult bookstores, would present a continuing threat of loss of license in the event of future conviction of one of the specified offenses, and would subject the owners to . . . investigative and information disclosure requirements"); Baby Dolls Topless Saloons, Inc. v. City of Dallas, 114 F. Supp.2d 531, 542 (N.D.Tex. 2000); Jersey's All-American Sports Bar, Inc. v. Washington State Liquor Control Bd., 55 F. Supp.2d 1131, 1136 (W.D.Wash. 1999) ("There is no dispute that the plaintiff's activities render it subject to the permitting scheme at issue. . . . Thus, the Court finds that the plaintiff has standing to bring this facial challenge and proceeds to consider the merits of its (claims"); Ohio Citizen Action v. City of Avon Lake, 986 F. Supp. 454, 459 (N.D.Ohio. 1997); Natco Theatres, Inc. v. Ratner, 463 F. Supp. 1124, 1126-27 (S.D.N.Y. 1979).

Moreover, plaintiffs' claims are based not just on the possibility that they may be denied licenses, but on the information required by the application itself. Plaintiffs allege that the required information is not reasonably related to any legitimate governmental interest, and that they should not be required to provide that information in the first place. See Buckley v. Valeo, 424 U.S. 1, 64 (1976) ("compelled disclosure, in itself, can seriously infringe on the privacy of association and belief guaranteed by the First Amendment"). For example, the Ordinance provides for denial of a license if the applicant is found to have been convicted of any of a number of specified offenses. Plaintiffs do not allege that they have been convicted of any of those offenses. If they were only challenging the disabling provision itself, they might lack standing to bring their claim. See FW/PBS, 493 U.S. at 234 (to establish standing to challenge provision disabling an applicant who has been convicted of any of certain enumerated crimes within a certain period of time, plaintiff must show both (1) conviction of one or more of the enumerated crimes, and (2) that the conviction or release from confinement occurred recently enough to disable the applicant under the ordinance).

As stated, however, plaintiffs also assert that it is a violation of their rights simply to be required to disclose much of this information. They contend that much of the information required on the application form is not relevant to any legitimate interests that the City may have with respect to regulating sexually oriented businesses, and that required disclosure of this information is intrusive, unnecessary and would tend to have a chilling effect on the exercise of First Amendment rights by persons who wish to obtain a license to operate or perform in a regulated establishment.

The merits of this claim are also intertwined to a great extent with the underlying issue of whether the disabling requirements are themselves valid. Although the range and types of information required do not correspond in every particular with the disabling factors, many of them do correspond; for example, the Ordinance requires that the applicant state whether he has ever been convicted of one or more specified crimes, and it also makes conviction of any of those crimes grounds for denial of a license. Ordinance §§ 98-5(D)(3), 98-10(A)(3). If, as a constitutional matter, the City cannot deny a license based solely on such a conviction, then requiring such information would be unlikely to serve any legitimate purpose, and could constitute a violation of the applicant's privacy.

I therefore conclude that plaintiffs do have standing to challenge the disclosure requirements, even if they lack standing to challenge the disabling provisions directly. See Genusa, 619 F.2d at 1216 (corporation and corporate officer had standing to challenge disclosure requirements that applied to officers, directors, and stockholders of a corporate applicant). Because the two issues are so closely related, however, evaluation of plaintiffs' challenge to the disclosure requirements will necessitate consideration of the validity of the disabling provisions as well. See Ellwest Stereo Theater, Inc. v. Boner, 718 F. Supp. 1553, 1568 (M.D.Tenn. 1989) (striking down, without discussing issue of standing, criminal disclosure requirement on ground that disabling provision based on prior felony conviction was unconstitutional).

I also determine that plaintiffs have standing to assert First Amendment claims with respect to enforcement of the Ordinance's restrictions on activities inside sexually oriented businesses. Although plaintiffs are owners and not the performing artists, they nonetheless have sufficient interest to challenge the Ordinance. See, e.g., Leverett v. City of Pinellas Park, 775 F.2d 1536, 1539 (11th Cir. 1985) (in suit by corporation and its owners challenging city ordinances prohibiting nudity in commercial establishments under certain circumstances, plaintiffs' "direct, authentic and continuing interest" in offering nude dancing at plaintiffs' nightclub led court to find that plaintiffs had standing to sue); Howard v. City of Jacksonville, 109 F. Supp.2d 1360, 1362 (M.D.Fla. 2000) ("The nude dancing and adult media offered by Plaintiff [at its lounge] are claimed to be non-obscene, constitutionally-protected communication. Accordingly, [plaintiff] ha[s] standing to make this constitutional challenge" to ordinance imposing moratorium on issuance of adult entertainment licenses); J.L. Spoons, Inc. v. City of Brunswick, 49 F. Supp.2d 1032, 1042 (N.D.Ohio. 1999) ("J.L. Spoons has persuasively argued that the prohibitions in [a section of an ordinance regarding the conduct of employees and patrons in sexually oriented businesses] directly impinge its own First Amendment rights, as it sponsors the very performances that the section is designed to regulate"); Santa Fe Springs Realty Corp. v. City of Westminster, 906 F. Supp. 1341, 1352-53 (C.D.Cal. 1995) (corporate plaintiff, which operated topless bar, had standing to challenge conditional use permit ordinance, in part because plaintiff would be prohibited from engaging in protected First Amendment activity if its adult cabaret were closed). In addition, while persons to whom a statute may be constitutionally applied normally lack standing to argue that a statute is unconstitutional if applied to persons or situations not before the court, see Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973), an exception to that rule applies when the plaintiff can show that "(1) it faces a threat of actual injury such that it has a sufficiently concrete interest in the controversy; (2) it has a close relationship with the third party; and (3) there is some hindrance to the third party's ability to protect his or her own interests." J.L. Spoons, 49 F. Supp.2d at 1042 (citing Powers v. Ohio, 499 U.S. 400, 411 (1991)).

Plaintiffs have made such a showing in the cases at bar. Although they are not performers, plaintiffs have some First Amendment rights of their own that are implicated here, inasmuch as they present the performances that the Ordinance is designed to regulate. Id. As for the performers themselves, their First Amendment interests in these cases is "virtually identical" to that of plaintiffs, id. at 1043; see also Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1252 (5th Cir. 1995) (holding that plaintiff corporation that operated topless bar had standing to challenge "no touch" provision as violative of First Amendment rights of its employees and customers, in part because "there [wa]s no indication that Hang On's interest in this litigation diverge[d] from that of its dancers"), and they, like plaintiffs, also have a financial stake in the outcome of these actions, since one of the provisions of the Ordinance prohibits performers from soliciting tips during their performances. See Hang On, 65 F.3d at 1252 ("Significantly, Arlington cannot dispute that its ordinance has a direct financial impact on Hang On, as well as Hang On's employees. Injury is essential to meeting the threshold case or controversy requirement of Article III, and injury of this type is usually a component of a relationship sufficiently `close' to meet prudential standing requirements"). I conclude, therefore, that plaintiffs do have standing to bring these actions.

II. Preliminary Injunctions-General Standards

"A party seeking a preliminary injunction must demonstrate `(1) irreparable harm should the injunction not be granted, and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the party seeking injunctive relief.'" N.A.A.C.P., Inc. v. Town of East Haven, 70 F.3d 219, 223 (2nd Cir. 1995) (quoting Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir. 1991)). The "`serious questions' prong is also frequently termed the `fair ground for litigation' standard." East Haven, 70 F.3d at 223.

The Second Circuit has stated that "`[p]erhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered.'" Bell & Howell: Mamiya Co. v. Masel Supply Co. Corp., 719 F.2d 42, 45 (2d Cir. 1983) (quoting 11 Charles Wright & Arthur Miller, Federal Practice and Procedure, § 2948 at 431 (1973) (footnote omitted)). Accord Reuters Ltd. v. United Press Int'l, Inc., 903 F.2d 904, 907 (2d Cir. 1990). Whether a particular harm is irreparable turns on its imminence and the lack of an adequate remedy at law. See Reuters, 903 F.2d at 907 (citations omitted) ("Irreparable harm must be shown by the moving party to be imminent, not remote or speculative, and the alleged injury must be one incapable of being fully remedied by monetary damages"). Finally, "[i]n making the determination of irreparable harm, both harm to the parties and to the public may be considered." Long Island R.R. Co. v. International Ass'n of Machinists, 874 F.2d 901, 910 (2d Cir. 1989), cert. denied, 493 U.S. 1042 (1990).

As for the second prong of the standard for issuance of injunctive relief, where the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme, the district court should not apply the less rigorous fair-ground-for-litigation standard, and should grant the injunction only if the moving party establishes, along with irreparable injury, a likelihood that he will succeed on the merits of his claim. Charette v. Town of Oyster Bay, 159 F.3d 749, 754 (2d Cir. 1998); Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989).

Although a court deciding a motion for a preliminary injunction must conduct a hearing if any essential facts are in dispute, Consolidated Gold Fields PLC v. Minorco, S.A., 871 F.2d 252, 256 (2d Cir.), cert. dismissed, 492 U.S. 939 (1989); Fengler v. Numismatic Americana, Inc., 832 F.2d 745, 747 (2d Cir. 1987), no hearing is necessary if the facts are undisputed or if a hearing would not yield additional pertinent information. Charette, 159 F.3d at 755; United States v. Ianniello, 824 F.2d 203, 207 (2d Cir. 1987); Herbert Rosenthal Jewelry Corp. v. Grossbardt, 428 F.2d 551, 554-55 (2d Cir. 1970) ("not every application for a preliminary injunction require[s] an evidentiary hearing"). Rather, "`there is no hard and fast rule in this circuit that oral testimony must be taken on a motion for a preliminary injunction or that the court can in no circumstances dispose of the motion on the papers before it.'" Consolidated Gold Fields PLC, 871 F.2d at 256 (citation omitted).

In addition, "[w]here a party against whom an injunction is sought is `demonstrably "content to rest" on affidavits submitted to the court,' no evidentiary hearing is necessary." Benten v. Kessler, 799 F. Supp. 281, 283 n. 1 (E.D.N.Y. 1992) (quoting Fengler, 832 F.2d at 748); Association of Flight Attendants v. United Airlines, 797 F. Supp. 1115, 1117 n. 2 (E.D.N.Y.), rev'd on other grounds, 976 F.2d 102 (2d Cir. 1992). Here, counsel from both sides agreed at oral argument that the relevant facts are not in dispute, and that the court need not hold a hearing before deciding plaintiffs' motions.

I agree that no hearing is necessary here. The essential facts of these cases are not in dispute. In addition, the challenges to the Ordinance are not based on the particular circumstances under which the Ordinance is to be applied to plaintiffs, or on any facts peculiar to these plaintiffs; rather, plaintiffs contend that the Ordinance is unconstitutional on its face. There is also no dispute that the plaintiffs and the sexually oriented businesses that they own and operate are covered by and subject to the Ordinance. Indeed, even the existence of the so-called "secondary effects" that the Ordinance is ostensibly intended to combat has not been disputed by plaintiffs, at least for purposes of the pending motions; see Plaintiffs' Memorandum of Law at 14 (noting that "[z]oning has been upheld as justified to control adverse secondary effects which have been found to accompany adult uses").

III. Irreparable Harm

"In the context of a motion for a preliminary injunction, `[v]iolations of First Amendment rights are commonly considered irreparable injuries.'" Charette, 159 F.3d at 755 (quoting Bery v. City of New York, 97 F.3d 689, 693 (2d Cir. 1996), cert. denied, 117 S.Ct. 2408 (1997)). Therefore, "[w]hen an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary." Bery, 97 F.3d at 694 (quoting 11 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2948, at 440 (1973)); accord Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984); see also Scelsa v. City Univ. of New York, 806 F. Supp. 1126, 1135 (S.D.N.Y. 1992) ("The law in this Circuit is that a constitutional deprivation constitutes per se irreparable harm"); Gour v. Morse, 652 F. Supp. 1166, 1173 (D.Vt. 1987) ("Constitutional rights are so basic to our society that their deprivation is almost by definition irreparable"). In addition, "it is the alleged violation of a constitutional right that triggers a finding of irreparable harm." Jolly v. Coughlin, 76 F.3d 468, 482 (1996).

Plaintiffs contend that they have shown irreparable harm because the loss of First Amendment rights, even for brief periods, is per se irreparable harm. Defendant does not directly address that issue, instead basing its arguments on its contention that plaintiffs have not shown a likelihood of success on the merits.

There is case authority supporting plaintiffs' position. See, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury"). Since plaintiffs have alleged a deprivation of their First Amendment rights, and since the chief dispute here appears to be whether plaintiffs are likely to succeed on their claims challenging the Ordinance, I find that plaintiffs have sufficiently alleged irreparable harm for purposes of their motions for a preliminary injunction.

IV. Likelihood of Success on the Merits

A. Regulation of Nude Dancing and Similar Activity-Constitutional Considerations

As stated, the Ordinance covers a range of activities involving nude and semi-nude entertainers. Attempts to regulate, and in some cases ban altogether, such activity have generated an abundance of case law in recent years. These cases have established a number of broad principles, the application of which to specific factual situations has yielded varying results.

"Although once furiously debated, it is now well-established that [non-obscene nude dancing] enjoys constitutional protection as expressive conduct." Schultz v. City of Cumberland, 228 F.3d 831, 839 (7th Cir. 2000) (citing City of Erie v. Pap's A.M., 529 U.S. 277 (2000)); accord Charette, 159 F.3d at 753 (citing Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-66 (1991) (plurality opinion)); see also Sable Communications v. FCC, 492 U.S. 115, 126 (1989) ("Sexual expression which is indecent but not obscene is protected by the First Amendment"). At the same time, however, "nude dancing and erotic materials are not accorded the full spectrum of First Amendment protection." T & A's, Inc. v. Town Bd. of the Town of Ramapo, 109 F. Supp.2d 161, 169 (S.D.N Y 2000). See, e.g., Barnes, 501 U.S. at 566 ("nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so") (plurality opinion); Young v. American Mini Theatres, Inc., 427 U.S. 50, 70 (1976) ("society's interest in protecting [erotic] expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate"); Doran v. Salem Inn, Inc., 422 U.S. 922, 932 (1975) ("the customary `barroom' type of nude dancing may involve only the barest minimum of protected expression").

What this means is that nude dancing can constitutionally be regulated-to a greater degree, perhaps, than many other expressive activities-but only within certain limits. Indeed, plaintiffs concede that municipalities can lawfully enact regulations that apply only to adult uses. Such regulations are generally permissible as long as they are aimed not at suppressing or restricting free expression, but at curbing undesirable secondary effects associated with such businesses. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-49 (1986).

The Supreme Court has set forth two similar, but not identical, tests that have been applied in cases involving governmental regulation of sexually oriented businesses. The first of these is the "time, place, or manner" test that the Court employed in Renton, which involved a zoning ordinance that prohibited adult motion picture theaters from locating within 1000 feet of any residential zone, dwelling, church, park or school.

The Renton test was summarized by the Second Circuit in Charette. First, "[m]unicipal `regulations enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment.'" Charette, 159 F.3d at 754 (quoting Renton, 475 U.S. at 46-47). "Content-neutral" time, place, and manner regulations are permissible, however, so long as they (1) are designed to serve a substantial governmental interest; and (2) do not unreasonably limit alternative avenues of communication. Id. (citing Renton, 475 U.S. at 47). In particular, zoning ordinances designed to combat the undesirable secondary effects of sexually oriented businesses are to be reviewed under the standards applicable to such content-neutral time, place, and manner regulations. Id. Accordingly, "the appropriate inquiry in such cases is `whether the [municipal] ordinance is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication.'" Id. (quoting Renton, 475 U.S. at 50) (brackets in original).

A second test often utilized in this context is the four-part test laid out in United States v. O'Brien, 391 U.S. 367 (1968). This test has been used to analyze the constitutionality of government regulation of expressive conduct, that is, conduct that contains both "speech" and "nonspeech" elements. Id. at 376. Under O'Brien, a governmental regulation of such conduct is sufficiently justified if: it is within the constitutional power of the government; it furthers an important or substantial governmental interest; the governmental interest is unrelated to the suppression of free expression; and the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Id. at 376-77. Thus, in O'Brien, the Court held that a prohibition against mutilation of draft cards, which was intended to further the administration of the Selective Service System, met these requirements and could constitutionally be applied against one who publicly burned his draft card, even though he claimed to have done so as a symbolic protest.

The Supreme Court has since applied the O'Brien test in cases involving regulation of nude dancing and similar activities. See, e.g., Erie, 529 U.S. at 296; Barnes, 501 U.S. at 561. The question, then, is which test-the "time, place and manner" test of Renton, or the four-part O'Brien test-should be applied in the instant case.

While the Supreme Court has observed that the expressive-conduct test of O'Brien and the "time, place, or manner" test of Renton "embody much the same standards," Barnes, 501 U.S. at 566 (plurality opinion); see also Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 (1984) (O'Brien's four-part test, "in the last analysis, is little, if any, different from the standard applied to time, place, or manner restrictions"), the two tests may not necessarily be identical. In Ward v. Rock Against Racism, 491 U.S. 781, 800 (1989), a "time, place, or manner" case, the Court said that the means chosen are narrowly tailored as long as they are "not substantially broader than necessary to achieve the government's interest." In O'Brien, on the other hand, the Court said that regulation of expressive conduct may be "no greater than is essential to the furtherance of [the government's] interest." 391 U.S. at 377 (emphasis added). In Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1364 (11th Cir. 1999), the Eleventh Circuit stated that although "[t]he Court is surely right to suggest that these tests are generally the same[,] . . . in the occasional case, there may be a difference between "not substantially broader" and "no greater than is essential." Although it may frequently have no effect on the outcome, then, it is still necessary to decide which test to apply in any given case, since the approach to the relevant issues is slightly different under the two standards. Id.

In the case at bar, I believe that many of the Ordinance's provisions must be analyzed under the four-part O'Brien test. For one, the Ordinance's restrictions on performers' activities inside sexually oriented businesses clearly amounts to a direct regulation of expressive conduct, insofar as it seeks to restrict the manner in which the performers attempt to convey an erotic message through their performances. Id. I also note that while some of the acts constituting "specified sexual activities" could constitute "pure," or nonexpressive, conduct, the definition of "specified sexual activities" includes "erotic touching" of certain parts of the body. The implication of this language seems to be that touching certain parts of the human anatomy is permitted, but only if the touching is not "erotic." Plainly, then, it is not merely the act of touching that is prohibited, but touching in a way that conveys a message of eroticism.

On the other hand, as to some of the other parts of the Ordinance relating to activities inside sexually oriented businesses-generally, those concerning physical contact between performers and customers, requirements concerning the stage on which dancers perform, payment of tips and so on-I believe that those provisions should be analyzed under the "time, place and manner" test of Renton. On their face, these provisions impose restrictions on certain types of conduct, irrespective of whether that conduct contains any expressive elements, and the applicability of those provisions is not in any way dependent on the expressive conduct of the performers. See, e.g., Colacurcio v. City of Kent, 163 F.3d 545, 553-55 (9th Cir. 1998), cert. denied, 529 U.S. 1023 (2000); BSA, Inc. v. King County, 804 F.2d 1104, 1111 (9th Cir. 1986).

The licensing aspects of the Ordinance are subject to a somewhat different analysis. As explained by the Supreme Court in FW/PBS, 493 U.S. 215, a licensing system that in effect requires government approval before one may engage in activity protected by the First Amendment is to be treated as a prior restraint, and as such, it will be invalidated if the court finds either of "two evils that will not be tolerated in such schemes." Id. at 225. First, "a scheme that places `unbridled discretion in the hands of a government official or agency'" amounts to unconstitutional censorship. Id. at 225-26 (quoting Lakewood, 486 U.S. at 757).

"Second, a prior restraint that fails to place limits on the time within which the decisionmaker must issue the license is impermissible." Id. at 226 (citing Freedman v. Maryland, 380 U.S. 51, 59 (1965)). A majority of the Court in FW/PBS held that a scheme for licensing businesses that purvey sexually oriented speech requires at least two procedural safeguards: "(1) any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be maintained; [and] (2) expeditious judicial review of that decision must be available. . . ." Id. at 227 (plurality opinion) (citing Freedman, 380 U.S. at 58-60).*fn5

FW/PBS thus makes clear "that otherwise valid content-neutral time, place, and manner restrictions that require governmental permission prior to engaging in protected speech must be analyzed as prior restraints and are unconstitutional if they do not limit the discretion of the decisionmaker and provide for the Freedman procedural safeguards." 11126 Baltimore Blvd., Inc. v. Prince George's County, Md., 58 F.3d 988, 995 (4th Cir.), cert. denied, 516 U.S. 1010 (1995) (citing FW/PBS, 493 U.S. at 227-28); accord Franken Equities, L.L.C. v. City of Evanston, 967 F. Supp. 1233, 1236 (D.Wyo. 1997); cf. Marty's Adult World of Enfield, Inc. v. Town of Enfield, Conn., 20 F.3d 512, 515 (2d Cir. 1994) (holding that zoning ordinance requiring special use permit for all changes in use from retail to entertainment, regardless of content of the entertainment, did not constitute licensing scheme amounting to prior restraint, because it did not single out business based on content of speech and permitted business to operate elsewhere without obtaining permit). Here, the Ordinance does not merely limit the exercise of plaintiffs' First Amendment rights to certain places or times, but requires plaintiffs-because of the sexual or erotic nature of the performances conducted at plaintiffs' businesses — to obtain a license before they will be allowed to offer those performances to the public. I therefore conclude that the license requirements should be analyzed as a prior restraint according to the principles set forth in FW/PBS, 493 U.S. at 227-28.


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