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HomeMy WebLinkAbout2005-06-28; City Council; 18187 v4 11-13/1-13; Exhibits to Staff Report Regulating Adult Businesses and Performers11 County of Orange California COMMUNICABLE LTh.,'.„;] t'. S'l'u'UDISEASE SUMMARY 1998 COPY AIDS in the County of Orange HIV Programs Introduction This document describes the sociodemographic profile of the Orange County, California Eligible Metropolitan Area (EMA), as well as the epidemiology of the Acquired Immune Deficiency Syndrome (AIDS) and Human Immunodeficiency Virus (HIV) infection within the EMA. Specifically, it includes a geographic description of the EMA, a sociodemographic description of the population, and reported AIDS cases by selected demographic variables with analyses over time. The chapter also includes analysis of prevalent cases (persons living with AIDS), estimates of persons living with HIV, a comparison of Orange County and U.S. AIDS cases, mortality analysis, years of potential life lost, and the economic impact of the epidemic. Data for clients receiving services at Ryan White-funded medical clinics and community-based organizations are described. The chapter also includes a description of HIV-antibody-testing programs within the EMA including anonymous and confidential testing programs. Finally, it includes a discussion of other diseases/conditions of possible relevance to the HIV epidemic, such as selected sexually transmitted diseases, tuberculosis and hepatitis B. Community Demographics Orange County is a large suburban county of 31 cities and 2.75 million people, covering 798 square miles. It lies between Los Angeles and San Diego counties in southern California. The county has a population larger than 19 U.S. states and is the fifth largest county in the United States, exceeded in population only by Los Angeles County, Cook County (Chicago), Harris County (Houston), and San Diego County. Orange County has reported more AIDS cases than 26 U.S. states. In the last two decades, the region has experienced significant demographic changes. From 1976 to 1996 the total population increased by 50%. In this period the ethnic distribution shifted from 87% White, 10% Latino, 2% Asian/Pacific Islander (A/PI) and 1% African- American to 58% White, 27% Latino, 11% A/PI, and 2% African-American. As can be seen in Figure 2-1, the White population remained relatively stable at approximately 1.5 million persons between 1976 and 1996. The significant population increase experienced in this period is primarily attributable to growth of the non-white population. Further, according to the 1990 census, 24% of Orange County residents are foreign born. Population projections for the year 2000 indicate a continuing racial and ethnic diversification for the county. In the year 2000, the population is projected to be 54% White, 31% Latino, 13% A/PI and 2% African- American. At that time, the county is projected to have grown to 2.9 million persons. Latinos constitute the largest minority group in Orange County; slightly more than one in four persons in the county is Latino (29% of the 1999 population). Orange County Latinos are primarily of Mexican descent. Most cities in Orange County have a substantial Latino population. Santa Ana, for example, the largest city in the county, is 69% Latino. The Latino population increased 307% from 1976 to 1996, much of this due to continuing immigration and a high fertility rate. Reflective of this, an increasing percentage of reported AIDS cases are Latino. Also from 1976 to 1996, the A/PI population, the next largest minority group, grew by 766%; more than one in ten Orange County residents are now A/PI (13% of the 1999 population). Much of the growth in this population resulted from the influx of Southeast Asian or Pacific Islanders during the early 1980s. In particular, Orange County has the largest Vietnamese population in the United States. A/PIs continue to form a very small percentage of Orange County reported AIDS cases. A study of HIV in Orange County's Vietnamese population, funded by the Centers for Disease Control and Prevention, was conducted in Orange County in 1992 and 19931. The project included a seroprevalence study that demonstrated seroprevalence rates among high-risk Vietnamese (7 positive of 824 tested (0.85%)) to be comparable to overall Orange County seroprevalence rates. The project also included a community survey of HIV knowledge, attitudes and risk behavior. With a 1999 population of 43,584, African-Americans represent less than 2% of the population of the county and 4% of the cumulative AIDS cases reported through December 31, 1999. Other minority groups, including American Indians, account for 1.5% of the total population and less than 1% of reported AIDS cases. Figure 2-2 compares the ethnic distribution of the 1999 Orange County population to AIDS cases reported in 1999. As can be seen, African-Americans and Latinos are over-represented among persons reported with AIDS; while Asian/Pacific Islanders are under-represented. Table 2-1 illustrates some of the important differences in the demographic profile of the four major race/ethnic groups in Orange County using 1990 census data. The 1990 population was almost evenly divided between males and females, although a slightly higher proportion of both African-Americans and persons of Hispanic origin were male. (The 1990 census included a separate question for Hispanic origin; therefore, race overlaps with Hispanic origin.) The median age for county residents in 1990 was 30.4 years - 29 years for males and 32 years for females. Age distribution varied by race/ethnicity as can be seen in both Table 2-1 and Figure 2-3. According to 1990 census data, persons of Hispanic origin were younger than members of other Orange County ethnic groups. Eighty-two percent (82%) of Hispanics, 80% of African- Americans, and 71% of A/PIs were under the age of 40, compared to just 58% of Whites. The median age for Hispanics was 24; eleven years lower than the median age for Whites (35). A/PIs and African-Americans had median ages of 29 and 27, six and eight years lower than the median age for Whites. Whites and A/PIs were the wealthiest in terms of annual median household income. While only 8.5% of the Orange County population was identified to be below the poverty level in '"Targeted HIV Seroprevalence Among Vietnamese In Southern California," G. Gellert, D. Moore, R. Maxwell, K. Mai, K. Higgins. Genitourinary Medicine, 1994; 70:265-267. the 1990 census, 18.6% of Hispanics were below the poverty level as were 12.9% of A/PIs. Three Orange County cities had greater than 10% of their population living below poverty: Santa Ana, 19.1%; Westminster, 11.4%; and Garden Grove, 10.4%. Geographically, these cities are all located in the central area of the county. c Table 2-1. Orange County Sociodemographic Profile by Race/Ethnic Origin (1990) Total Population Male ;V;; Female White African- American A/PI Hispanic Origin :l;556,284&vv«,693 ; v>t0.754 56WOO . 50%:49%;-::l$ 51%'' ,^V\'..50%vJ;::.:: J 60 Bolder:, v: Annual Median Hoiuichoid Income Percent below U.S. Poverty Level EducaikKi fiiessMis 25 awl older):' ' • : • HiglvSciiool Gjaduate or higher- Bachelor's Degree or higher :Enij)Jpy|hent Stains (parsons 16 and older): ';'. Oftliose in labor fiJniilf-^*----^* Not in labor force .,, -$35,905m • •••"" :-''••:6.7%; -'••••v9..7%- , ; .12.9% 18.6% Unemployed -i;'-:;y^r ;94%;::;:y;;;;95% 92% i|ifCi^^:^-6%^,v I;-"5%'•'-.'-.-,• Aslii 4/il9%" ,H% ... 24% More than one-half (55%) of Orange County residents of Hispanic origin who were 25 years of age or older in 1990 completed fewer than 12 years of education, compared to only 12% of African-Americans, 16% of Whites, and 19% of A/PIs. 38% of A/PIs, 29% of Whites and 22% of African-Americans had a bachelor's or higher degree. Only 8% of Hispanic residents had a comparable degree. The 1990 census also contains data on the language spoken at home. Of those residents who reported speaking Spanish at home, 40% stated that they spoke English either "not well" or "not at all." Residents who reported speaking an Asian or Pacific Island language at home were more likely to report a better command of the English language (only 25% spoke English either "not well" or "not at all"). Of those residents reporting speaking "other languages" at home only 8% spoke English either "not well" or "not at all". Less than 10% of Orange County residents 16 years of age or older in 1990 who were in the labor force were unemployed. However, 8% of Latinos were unemployed compared to only 4% of Whites, 5% of A/PIs and 6% of African-Americans. The Epidemic The first cases of AIDS reported in the United States were described in the June 5, 1981 issue of Morbidity and Mortality Weekly Report. Since then, more than 700,000 Americans with AIDS have been reported to the Centers for Disease Control and Prevention (CDC). As of June 1999, more than one-half (59%) had died. Orange County has reported more AIDS cases than 26 U.S. states and ranks 29th in number of AIDS cases reported among the 100 metropolitan areas with 500,000 or more population recognized by the CDC. Table 2-2 presents cumulative AIDS cases reported through June 30, 1999 for the United States, New York, California, and the twelve California counties (or combinations of counties) included in the 100 metropolitan areas with 500,000 or more population. Five of these twelve areas have reported more AIDS cases than Orange County: Los Angeles, San Francisco, San Diego, and Alameda counties, and the Riverside County- San Bernardino County EMA. Table 2-2. Cumulative AIDS Cases for Selected Jurisdictions 1981-June 1999 United States New York California Los Angeles County San Francisco County San Diego County Alameda County Riverside-San Bernardino Orange County Sacramento County Santa Clara County Fresno County Kem County Ventura County San Joaquin County 711,344 132,086 113,025 39,863 26,715 9,928 . 7,633 6,455 5,251 3,033 2,963 1,097 926 756 699 Local AIDS Surveillance Data Five thousand four hundred and forty-two (5,442) Orange County residents with AIDS have been reported to the CDC since the time of Orange County's first case report in 1981 through December 31, 1999. As noted in Chapter 1, the first cases of AIDS identified in Orange County were two men who were contacts to Patient Zero. The Orange County Health Care Agency's AIDS Surveillance Program maintains a registry of reported AIDS cases and known HIV-positive persons from whom consent for reporting has been obtained. This registry is the primary source for descriptive information on AIDS cases and estimates of the known HIV-infected persons in Orange County. This information is summarized in the HIV Monitoring Report. Reporting, however, is limited by the health seeking and medical-care patterns of persons with HIV and AIDS and the State reporting requirements related to HIV/AIDS. In California, AIDS is a reportable disease. It is unlikely, however, that all cases are reported. The CDC has estimated that registries such as Orange County's record 80%-90% of cases. Additionally, HIV infection is not reportable in California. HIV testing data included in the HIV Monitoring Report is from the HIV testing database maintained by the County for reporting test results to the State Office of AIDS. This database includes general demographic characteristics of persons tested at County-operated HIV test sites. Table 2-3 presents Orange County AIDS cases by race/ethnicity, gender, age at diagnosis and exposure category. Cumulative cases reported to the CDC through December 31, 1999 are included as well as cases reported during the 24-month period of January 1, 1998 through December 31,1999. The 5,442 Orange County residents with AIDS reported to the CDC through December 31, 1999 include 5,407 adults/adolescents (99%) and 35 children under the age of 13 (1%). Ninety-two percent of these cumulative cases were male (4,992), 8% were female (450). The majority of cumulative cases were among men who have sex with men (71%), injection-drug users (11%) and men who have sex with men and use injection drugs (5%). Another 5% of cases were attributed to heterosexual contact. Sixty-nine percent of cumulative reported cases were White, 24% Latino, 5% African-American and 2% A/PI. Analysis of the demographic distribution of cumulative cases and those cases reported over the most recent 24-month period indicates a trend of increasing case reports among non-Whites (30% of cumulative cases vs. 49% of cases in the 24-month period) and among females (8% vs. 12%, respectively). Men who have sex with men represent a smaller proportion of recent cases than of the total number of cases reported since the beginning of the epidemic (71% of cumulative cases vs. 57% of cases reported in the most recent 24-month period). These data also indicate increasing proportions of cases attributed to injection-drug use (11% of cumulative cases vs. 14% of 1/98-12/99 cases) as well as to heterosexual contact (5% vs. 8%, respectively). Pediatric cases continue to represent less than 1% of the county's AIDS cases. The demographic distribution of cases reported in the 24-month period of January 1998 through December 1999 is similar to that of cases reported in 1999. Further discussion of Orange County trends in AIDS case reporting follows. 2Human Immunodeficiency Virus Monitoring Report. County of Orange, Health Care Agency, December 1999. o Table 2-3. AIDS Case Demographics AIDS CASES REPORTED TO CDC THROUGH 12/31/99 Cumulative 1/1/98-12/31/99 Cases : ..•.-•; .Total"-;.: :• ::?::;.«| Gender *:'. Male- Female ••,;• Age at Diagnosis <20 <:,, -\20-44 ;-:^:;:,::«; ;j:,,: ;=';=:•-: ..-- , >2 . t% I;"" '" \ ..:-.-. ••--.4329-, | am: ••-«; ..; li Race / Ethnicity White :: Afiicira-American 258-.- ...I... ....,.- Latino-' , , 129? - •-AM Exposure Category ,.MSM!' ' 101J -'_', MSM + IDU Hemophilia Heterosexual Blood Products Unkno\vnRisk PeciHfric 282 I j 5% I JO ;-'36>:r.-;f;1%-/ ^H - H ^- • ,:V'»::' Jj ;.,,,,, -;::-. .; ;-y AIDS Case Reporting: Demographic Trends AIDS Cases by Year of Report: As of December 1999, a total of 5,442 Orange County resident AIDS cases had been reported to the CDC. The first Orange County AIDS case was reported in 1981 and, as shown in Figure 2-4, cases continued to rise sharply each year until 1993 except for the slight decrease between 1991 and 1992. Seven-hundred and forty-nine (749) AIDS cases were reported in Orange County in 1993 following the expansion of the AIDS surveillance case definition implemented in January of that year.3 Fifty to sixty percent of the cases reported each year since 1993 would have classified as AIDS at the time of initial case report based on the pre-1993 AIDS case definition. 3M orbidity and M ortalty Week If Report 1993, Volin e 42, 16:308-310. ^•"" Orange County reported 309 AIDS cases in 1999, a number roughly equivalent to the 306 cases reported in 1998 and an 11% increase over the 279 cases reported in 1997. The increases observed in the last two years are thought to be partially related to improved surveillance efforts using computer-generated lists of patients with AIDS diagnoses. Twelve case reports resulted from these new sources in 1999. These cases represent a backlog in reporting with a mean time from diagnosis to report of 43.8 months compared to 11.2 months for all cases reported in 1999. This increase followed 36% and 21% decreases in case reporting between 1996 and 1997 and between 1995 and 1996. These declines most likely reflect both the waning effect of the expanded 1993 AIDS surveillance case definition and a slower progression from HIV infection to AIDS attributable to recent treatment advances such as the use of combination antiretroviral therapies, including protease inhibitors. The recent leveling off in cases may be an indicator of failure of these treatment regimens. Figure 2-5 presents 1993 through 1999 AIDS cases by month of report. As expected the trend indicates heaviest reporting in the early months of 1993 with a decline over time. AIDS case reporting for 1995 was up 22% over cases reported in 1992 prior to the expansion of the AIDS surveillance case definition (550 cases vs. 451 cases). Thirty-one percent fewer cases were reported in 1999 than in 1992 (309 vs. 451). AIDS Cases by Ethnicity: Figures 2-6 and 2-7 illustrate the distribution of Orange County ^>^SfiH*%,AIDS cases by ethnicity and year of report for each year since 1990. As the figures portray, the distribution of cases among ethnic groups has changed. The proportion of Whites has declined from 80% of cases reported in 1990 to 47% of cases reported in 1999. Latino cases have increased from 14% of total cases in 1990 to 42% of 1999 AIDS cases. In 1999, the percent of Latinos among Orange County AIDS cases was greater than the proportion in the total population who were Latino (29%). For African-Americans, who comprise less than 2% of the county population, AIDS case reports increased from 3% of 1990 cases to 8% of cases reported in 1999. The percentage of AIDS cases among A/PIs has remained relatively low at less than 4% of total AIDS cases reported. In comparison, 13% of Orange County residents are A/PI. Trends in AIDS case rates per 100,000 population indicate the greatest increase to be among non-White males and among females in general. Figure 2-8 presents a comparison of 1990 and 1999 adult/adolescent case rates.for White, African-American and Latino males and for females. The AIDS case rate for White males decreased from 42.8 per 100,000 in 1990 to 20.4 in 1999. Case rates for African-American males increased from 73.6 to 113.4 and Latino male case rates increased from 20.5 to 39.1. The female case rate, while remaining low at 3.7 per 100,000 in 1999, more than doubled during this period. ^««K It is important to note that race alone does not increase risk for HIV infection as the disease is \^r associated with well-recognized behaviors. The overwhelming majority of Orange County cases have been associated with sex between men and/or injection-drug use; thus we must continue to target prevention activities towards those who engage in these high-risk behaviors. These local data demonstrating increasing case rates for specific groups indicate that special emphasis needs to be placed on African-Americans and Latinos who engage in behaviors that place them at increased risk for HIV disease. AIDS Cases by Exposure Category: Figures 2-9 and 2-10 show the distribution of reported AIDS cases by exposure category and year of report. Locally, as expected, most reported cases are among men who have sex with men. However, this proportion has declined from 85% of 1990 cases to 60% of cases reported in 1999. Cases reporting injection-drug use and mate- with-male sex are included in the category "men who have sex with men" in the graphs; the percentage of such cases was 6% of both 1990 and 1999 cases. Injection-drug use alone accounted for only 5% of AIDS cases reported in 1990 compared to 16% of 1999 case reports. Heterosexual transmission ranks third among reported risk factors for AIDS in Orange County, increasing from 1% of 1990 cases (N=2) to 7% of 1999 cases (N=21). Of the 21 cases with heterosexual transmission identified in 1999, 67% (14) could not identify the risk factor of their HIV-positive partner, 19% (4) identified an IDU HIV-positive partner, and another 10% a bisexual HIV-positive partner (2). AIDS Cases by Gender: While the majority of Orange County AIDS cases continue to be male (87% of 1999 case reports), female cases have increased from 5% of cases reported prior to 1990 to 13% of 1999 cases. Females represented 23% of 1999 U.S. AIDS cases. Figure 2-11 presents Orange County female adult/adolescent AIDS cases by exposure category. Case reports increased from a low of 14 cases in 1990 to a high of 63 cases in 1995. Case reporting declined 40% between 1995 and 1999. However, with 38 female AIDS cases reported in 1999, case reporting remains above the level reported in the years prior to 1993. The distribution of Orange County AIDS cases by gender demonstrates variation by ethnicity. Higher proportions of African-American (14.4%), Latino (11.2%) and A/PI (10.4%) AIDS cases are female as can be seen in Figure 2-12. Among White males, 74% of 1999 reported cases were men who had sex with men; this exposure category accounted for 71% of African-American male cases, 72% of Latino mate cases and 60% of A/PI male cases. Five (5%) percent of White males, 7% of African- American males, and 5% of Latino males reported injection-drug use in combination with sex with men. Injection-drug use alone was the reported exposure category for 32% of African- American males, 10% of Latino males, and 11% of White males. Three (3%) percent of Latino males reported high-risk heterosexual contact as did 1% of White males. Only two (2) A/PI male cases were reported in 1999. See Figure 2-13. i Among females, heterosexual transmission and injection-drug use accounted for the majority of 1999 reported cases. Heterosexual transmission was reported for 50% of 1999 Latina cases and 40% of 1999 White female cases; injection-drug use for 60% of White female cases and 19% of Latina cases. These differences by ethnicity are most likely explained by the small number of female cases reported. Sk female African-American cases were reported in 1999,4 8 "****** were related to IDU and 2 to heterosexual transmission. No female A/PI cases were reported W- in 1999. See Figure 2-14. Thirty-three (33) African-American female cases have been reported to date, two with unknown risk. Of those with known risk, 15 (48%) were attributable to injection-drug use. Forty-one (41%) percent of cumulative White female cases and 31% of Latina cases with known risk were IDU-related. Only 8 A/PI female cases have been reported to date, none among injection-drug users. Of cumulative female cases attributable to heterosexual transmission, about one-third of White (29%) and Latina cases (29%), twenty percent of A/PI cases and 17% of African-American cases were traced to an HIV-positive injection-drug-using male partner. Twenty-five percent (25%) of White, 20% of A/PI, 12% of Latina and 8% of African-American female cases were traced to an HIV-positive bisexual male partner. More than one-half of African-American (67%), Latina (58%) and A/PI (60%) females and 41% of White females reporting heterosexual transmission, did not know the risk factor of their HIV-positive sexual partner. These are all women who did not know that they were at risk for transmission of HIV. AIDS Cases by Age Group: Persons in their thirties consistently compose the single largest group of reported AIDS cases in Orange County. Forty-five (45%) percent of cumulative cases reported through December 1999 were among persons in this ten-year age cohort. The next two largest age categories represented are persons in their forties and in their twenties (23% and 20% of cumulative cases, respectively). The median age of persons reported with AIDS **•*"" (36 years) and persons testing HIV positive at County test sites (30 years) has remained stable. The age distributions for males and females with AIDS are comparable. The same is true for men and women testing HIV positive at County test sites. Consistent with the low incidence of AIDS cases among Orange County females, pediatric AIDS cases are also low. A total of 35 pediatric cases (under the age of 13) have been reported in Orange County, less than 1% of total AIDS cases reported. Most (77%) are attributed to mothers with HIV infection. Seventeen cases of AIDS have been reported among Orange County adolescents (13-19 years of age). Six (35%) were attributed to receipt of blood products (includes 3 hemophiliacs), 6 (35%) to gay/bisexual contact and 2 (12%) to heterosexual transmission. AIDS Cases by City of Residence: AIDS cases are and have been widely distributed throughout the county; in fact, only one of the thirty-one cities in Orange County has reported fewer than 10 cases of AIDS since the beginning of the epidemic in 1981. Table 2-4 presents cumulative cases reported through December 31, 1999, as well as cumulative incidence rates per 100,000 population by city of residence. None of the cities that ranked in the top five in number of reported cases ranked lower than 10th in terms of cumulative incidence rate. Two of the cities that ranked in the top five in "**""> cumulative incidence rate ranked lower than 10th in number of cases reported (Laguna Hills %W and Dana Point). w Table 2-4. Cumulative AIDS Cases Through December 31,1999 and Rate/100,000 Population by City Reported Cases Santa Ana Anaheim Laguna Beach Garden Grove Costa Mesa Huntington Beach Orange Newport Beach Fullerton Laguna Niguel Westminster Irvine Dana Point Buena Park Tustin Laguna Hills San Ctemente Mission Viejo Stanton Lake Forest Cypress Fountain Valley La Habra Placentia San Juan Capistrano Yorba Linda Seal Beach Brea La Pahna Los Alamitos Villa Park 847 612 564 333 322 320 245 213 189 175 139 135 117 110 109 109 90 89 81 73 71 69 64 55 54 40 38 33 22 18 6 Cumulative Incidence Laguna Beach Laguna Hills Dana Point Costa Mesa Laguna Niguel Newport Beach Santa Ana Stanton Garden Grove Anaheim Orange San Ctemente San Juan Capistrano Tustin Huntington Beach Westminster Los Alamitos Fullerton Cypress Buena Park Seal Beach La Palm a Lake Forest Fountain Valley La Habra Placentia Irvine Mission Viejo Brea Villa Park Yorba Linda Rate/ 100,000 2260.5 354.5 313.3 304.9 295.6 287.8 268.9 239.3 212.8 199.8 192.0 182.7 168.2 163.2 162.7 161.3 149.4 149.1 146.4 144.9 139.7 134.1 122.9 122.3 114.7 111.9 98.8 92.4 90.7 90.6 64.7 w Figures 2-15 through 2-18, inclusive, display Orange County reported AIDS cases for the first 5, 10, 15 and 19 years of the epidemic (i.e. each figure following Figure 2-15 adds four or five additional years of case reports). These maps provide a visual representation of the geographic distribution and concentration of persons diagnosed and reported as AIDS cases. The maps demonstrate the dramatic increases in reported AIDS cases over time and place. AIDS cases have been reported in each of the thirty-one cities in Orange County. Figure 2-18 presents cumulative case reports by city through 1999. These data demonstrate that, with the exception of Laguna Beach in the southeast section of the county, the cities with the highest concentrations of AIDS cases (200 or more cases reported) are all in the central or south-central section of the county. 10 Orange County's overall 1999 AIDS case rate was 11.1 per 100,000 population. The U.S. and California case rates for the same period were 16.7 and 16.4, respectively4. Figure 2-19 presents 1999 AIDS case rates per 100,000 population by city of residence (incorporated cities only). The 1999 case rate for Laguna Beach, the city with the highest case rate in the county, was 64.1 (16 cases reported). Santa Ana, the largest city in the County, reported the highest number of cases in 1999 (68 cases reported) and the third highest rate (21.6). Four additional cities had 1999 case rates between 15 and 50; Anaheim (15.7, 48 cases), Dana Point (18.7, 7 cases), Garden Grove (15.3,24 cases) and Laguna Hills (22.8, 7 cases). Only two of thirty-one Orange County cities reported more AIDS cases in the five-year period of 1995-1999 than in the preceding five-year period (1990-1994). Case reports were up 68% in Lake Forest (22 in 1990-94 vs. 37 cases in 1995-99); and up 23% in Laguna Hills (39 vs. 48). Total AIDS case reporting for these two time periods declined 28% (2,541 vs 1,877). Deaths Among Persons Reported with AIDS The number of deaths among persons reported with AIDS in Orange County increased steadily through 1992 but has since demonstrated a pattern of decline. Figure 2-20 presents AIDS deaths by year of occurrence. As can be seen in the graph, death statistics are greatly affected by reporting delays. The proportion of annual deaths reported in years following the year of death is represented by the red portion of each bar. January through June data for the two most recent years were used for analyzing recent changes in AIDS deaths (Table 2-5). Overall, there was little difference in the number of AIDS deaths reported in each of these periods (1998=39,1999=40). However, differences by subgroup were apparent. Male AIDS deaths increased by 19% while female AIDS deaths decreased by 71%. The number of deaths declined among Whites (down 33%) and African- Americans (down 50%) yet increased among Latinos (up 89%). A/PI deaths increased from 1 to 2 in these two periods. By risk-exposure category, deaths declined 50% among persons infected through heterosexual contact and 17% among injection-drug users while increasing 12% among men who have sex with men. The decrease in AIDS deaths reflects both the leveling of case reports and improved survival among persons with AIDS. This increased survival reflects recent improvements in medical care. AIDS Prevalence As of December 1999, an estimated 2,441 Orange County residents were living with AIDS (this estimate includes only those persons reported as AIDS cases). The number of persons living with AIDS at the end of 1999 was 5% higher than at the end of 1998, and 67% higher than 1993. Of prevalent cases of AIDS in 1999, 89% were among men; 61% were White; 6% African-American; and 30% Latino. Figure 2-21 presents AIDS cases by year of diagnosis (bars) and the total number of Orange County residents living with AIDS (prevalent cases) at the close of each year (line). 4HTV/AIDS Surveillance Report Year-End Edition. U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, Vol. 11, No. 2,1999. 11 Table 2-6 presents a comparison of 1998 and 1999 Orange County prevalent AIDS cases by gender, ethnicity and exposure category. The percentage change (increase or decrease) in the number of persons living with AIDS in 1999 compared to 1998 is also reported. Table 2-5. 1998 & 1999 AIDS Deaths (Januan AIDS DEATHS BY YEAR OF OCCURRENCE January-June Only 1998 1999 %Ch otal -June) AIDS prevalence increased 9% among females and 5% among males. The data also support the trend towards an increasing proportion of people of color living with AIDS. AIDS prevalence increased 10% among Latinos and 8% among African-Americans between 1998 and 1999 compared to just 3% among Whites. These changes demonstrate the need for local HIV-related health and support services that are both culturally competent and linguistically appropriate as well as sensitive to the unique needs of women with HIV disease. Changes in the risk profile of persons living with AIDS are also apparent. As expected, by risk-exposure category, men who have sex with men accounted for the largest number of prevalent cases of AIDS (67%) followed by injection-drug users (13%) and persons infected through heterosexual contact (7%). All other risk-exposure groups combined accounted for less than 7% of prevalent cases of AIDS. The largest proportionate increases in AIDS prevalence occurred among Latinos (up 10% between 1998 and 1999), females (up 9%), persons infected through heterosexual contact (up 7%) and injection-drug users (up 7%). 12 Table 2-6. 1998 & 1999 AIDS Prevalence o AIDS PREVALENCE BY YEAR 1998 1999 % Change ,';.-. • - , • -.•..".. ": •. 'V Total 2322 2441 Male : " •' 2080 • '2177 Female 242 : 264 White •' 1442•J >•' ••;'-- x, '.'.• '^<-' 11 --^"i' 1II HI 11 11Latino • -""••'•.'; ^ •; 67 t-9% ~ IDU" • • - 299 " 321 t I-* •' (I MSM-UDTJ ;; I "W-:, J©,:,-:' : : +6%; ' ^', .'' ' !60 •' " HH fsa^st^ss fcdiaft «• . • • -?r • :•) Cases among men who have sex with men increased by 3%. The largest absolute increases in prevalent cases occurred among males (+ 97 cases), Latinos (+ 66 cases) and men who have sex with men (+ 50 cases). The proportion of cases associated with the receipt of blood or blood products has declined in Orange County as it has elsewhere. Routine screening of the blood supply, instituted in the spring of 1985, has significantly reduced the likelihood of infections associated with the blood supply. Figure 2-22 presents persons living with AIDS by city of residence. Santa Ana, the most populous city in the county, also has the greatest number of persons living with AIDS (440). Anaheim, the second largest city in the county, has 289 living cases. Laguna Beach, the Orange County city with the highest AIDS case rate, remains heavily impacted, with 232 living cases. More than one-half of the persons living with AIDS in Santa Ana (58%), and nearly one-half of those living in Anaheim (46%) are Latino. HIV Seroprevalence Table 2-7 presents estimated HIV seroprevalence (persons living with HIV/AIDS) by gender, race/ethnicity and exposure category. The following methodology was used in developing these estimates: > Develop prevalence estimate range, > Base estimates on midpoint of estimate range, • Establish lower limit from number of living AIDS cases in Orange County, 13 • Derive upper limit using methodology published by S. Holmberg5 as proportion of estimates provided for Los Angeles County (Orange County population is 28.6% of Los Angeles County), > Apply ratios of Diagnosed AIDS to Not Diagnosed proposed by DHHS6. Based on this methodology, an estimated 6,700 Orange County residents are currently living with HIV/AIDS. Less than one-half of one percent (0.31%) of the adult/adolescent population is estimated to be infected. Thirty children under 13 years of age are estimated to be infected (0.01% of all children less than 13). More than one-half (55%) of the total number estimated to be infected with HIV in the county are not yet diagnosed with AIDS (3,700 of 6,700). Table 2-7. July 1999 HIV Prevalence Estimates ESTIMATED HIV POSITIVE PERSONS Total 1700 ,; 1 525 ; 1300 3700 6700 •: ; : : f||oy ; . 3325. w . eooo' White" ' . '•" ilillff:' "^Si^^ ?40 :so; -..,'"•' -:.1 i :' Adult/Adolescent Cases : MSSM'flDU-•.• - - •-••• • •. . - • , - • Blood/Blood Products Pediatric Cases :Ti5i^-;-jjj ^iftf^tiiiiii^; :vv 50 14 30 Table 2-8 compares these estimated persons living with HIV/AIDS (column 4) to persons reported with AIDS in Orange County (column 1 — cumulative cases through December 31, 1999, column 2 -- cases reported January 1, 1998 through December 31, 1999 and column 3 — persons living with 5S. i ol berg, Am erican -burnalof Pubic 8 eal, May 1996, Vol86,No.5, pp.642-654. 6DH B S, Division of H IV Services, seroprevalnce estim ates, Ji^ 1996. 14 Table 2-8. Demographic Distribution - AIDS Cases vs. Estimated Persons Living with HIV/AIDS DISTRIBUTION OF CASES vs. SEROPREVALENCE . -.: •_-•••••••"•_•••-• ;, • : •-..;"- ' . -. • "• , : -••!' •' :'" ': : ' '.',•: ' ' Cumulative AIDS Cas^s Living Estimated AIDS Cases 1/1/98- AIDS Cases Living with As of 12/99 12/31/99 Asof 12/99 HIV/AIDS Gender Male; ; ; Female Race / Ethnicity White ::AfHc;fli-Aiaerjcan:': 92% MKMMKi&f •:••-'' - * '" Exposure Category Adult / Adolescent 75% :;f: Ko!/12%:; MSM Blood Products Pediatric Perinatal : Hemophilia 8% Blood Products 17% 88% :^8%;--^^12%-:-- :ll%SS|f« 69% ';, ' PH2,%'V-:!'.- ' '• • 2% = • 'i"y'4> - '. • ' .:- - . , -..••/-:'"-•,' ]% I«^ ' 1^1 /0 A/ r&-r--<ci% mm I I ^, •,--•?:•<.-;<.:; I J% 100% • & ^ : 7% • • ^ AIDS as of December 31, 1999). The distribution of persons living with HIV in Orange County was revised in 1998 in order to more accurately reflect the more recent trends in case distribution. Males, specifically men who have sex with men, were over-represented in the previous estimate, while injection-drug users and persons who contracted HIV through heterosexual contact were under-represented. The revised distribution provides a better estimate of "where we are going" rather than of "where we have been." Comparison of U.S. and Orange County Cases Figure 2-23 presents a comparison of U.S. and Orange County AIDS case demographics. Orange County and U.S. cases reported in calendar year 1999 are compared. A number of differences between local and national AIDS cases are demonstrated. 15 ***** Twenty-four (24%) percent of U.S. cases were female compared to 13% of Orange County ^^ cases. There is no difference between Orange County and U.S. cases in terms of age at time of AIDS diagnosis. Most cases were between the ages of 20 and 44 (78% of Orange County cases and 77% of U.S. cases). Twenty percent (20%) of Orange County cases and 22% of U.S. cases were 45 or older. About 1% of both Orange County and U.S. cases were among children less than 13 years of age; another 1% were adolescents (between the ages of 13 and 19). The largest proportion of Orange County cases reported in 1999 were White (48%) while the largest proportion of U.S. cases were African-American (47%). In comparison, only 8% of Orange County cases were African-American. Slightly fewer than one-third (32%) of U.S. cases were White. Forty-three percent (43%) of Orange County cases were Latino compared to 20% of U.S. cases. Only one percent (1%) of both Orange County and U.S. cases were A/PI. Differences by exposure category are also apparent. The largest category for both Orange County and U.S. cases with known exposure was men who have sex with men, almost two- thirds of Orange County cases (65%) reported this exposure compared to less than one-half (44%) of U.S. cases. Five percent (5%) of U.S. cases and 7% of Orange County cases were men who have sex with men and also report injection-drug use. Nineteen percent of Orange County cases were attributed to injection-drug use alone (IDU) compared to 29% of U.S. cases. Eight percent of Orange County cases were attributed to heterosexual contact compared to 20% of U.S. cases. r ^ Figure 2-24 presents U.S. and Orange County 1999 AIDS case rates per 100,000 population by ethnic group. As the data demonstrate, persons of color have been disproportionately affected by the AIDS epidemic. The highest case rates are among U.S. and Orange County African- Americans (66.0 and 57.4, respectively). The Orange County, 1999 Latino AIDS case rate (16.1) is higher, for the third year in a row, than the White case rate (9.5). Both U.S. and Orange County A/PI case rates remain low. As reported earlier, Orange County trends in AIDS case rates indicate the greatest increase among non-White males and among females in general. While the Orange County case rate for adult/adolescent White males declined between 1990 and 1999 (from 42.8 to 20.4 per 100,000 adult/adolescent White males), the rate increased among Latino males (from 20.5 to 39.1 per 100,000 adult/adolescent Latino males). The Orange County AIDS case rate also increased among African-American males (from 73.6 to 113.4 per 100,000 adult/adolescent African-American males). As discussed previously, Latinos constitute the largest minority group in Orange County — slightly more than one in four persons in the county is Latino (estimated at 29% of the 1999 population). Thirty-one percent of the year 2000 population is projected to be Latino. Latino AIDS cases have increased from 14% of total cases in 1990 to 42% of 1999 cases. Latinos in Orange County, along with African-Americans, are now disproportionately affected by the AIDS epidemic. Many of these Latino AIDS patients are recent immigrants, with limited or no ' 16 English proficiency. Treatment interventions and prevention messages have been designed to meet the specific language and cultural needs of this population. Survival Analysis Table 2-9 shows the mean and median survival in months by selected intervals of diagnosis, gender, race/ethnicity, age group, probable source of infection, and selected AIDS-defining conditions among Orange County AIDS cases who have died. People whose death occurred in the same month that they were diagnosed (zero survival) and those whose only AIDS-defining condition was a low CD4 count (<200 cells/mm3) were excluded from this analysis. Differences in average survival exist among those who have died according to the interval of diagnosis. People who were diagnosed with AIDS in 1997 or thereafter and have died, lived for a shorter time on average than those diagnosed prior to 1997. Those diagnosed prior to 1994 lived longeron average than those diagnosed between 1994 and 1996. There was little difference between males and females in terms of average survival. Whites lived longer on average than Latinos and African-Americans who have been diagnosed with AIDS and who have died. This might be explained by delays in seeking care. Survival for A/PIs was equivalent to survival for Whites. These data, however, must be interpreted with caution due to the small number of A/PI cases and the larger standard error. Persons aged 20-39 who have died have lived longer on average than those 40 years of age and older. Differences in survival observed among those less than 20 years of age and those between 60 and 64 must be interpreted with caution due to the small numbers of cases and large standard errors. There was little difference in average survival by probable source of infection. Men who have sex with men in addition to IDU, men who have sex with men, injection drug users, and those whose infection was attributed to heterosexual contact have lived longer on average than transfusion recipients. Recipients of factor concentrates who have died have lived longer on average than all others who have died. This observation has been reported elsewhere in the United States and most likely is a reflection of the fact that most patients with hemophilia would already be under the care of a physician, leading to earlier diagnosis and treatment. There were differences in average survival by the initial AIDS-defining condition. Persons who died and had Pneumocystis carinii pneumonia or Kaposi's sarcoma as the initial AIDS-defining condition lived longer on average than those who died and had neurologic involvement as the initial AIDS-defining condition. Years of Potential Life Lost/ Economic Impact Table 2-10 indicates that as of December 31, 1999, the HIV epidemic has resulted in 80,182 years of potential life lost for Orange County residents. 17 It has been estimated by the U.S. Public Health Service that the lifetime cost for providing medical care to one person with HIV disease is $119,000. If this estimate is correct, the 3,001 Orange County residents who have already died from AIDS have cost the health care system at least $357,119,000. If this estimate were expanded to include the 6,700 persons estimated to be living with AIDS/HIV in Orange County, then an additional $797,300,000 would be required to provide the necessary medical care. 18 c Table 2-9. Survival Time in Months Among AIDS Cases Who Have Died Mean Survival (months) Median Survival (months) Standard Error Year of Diagnosis 411 : 19.11987 or earlier 1988-1990 1991-1993 1994-1996 Male Female Ethnicity White : ; African-American Less than 5 5-J2. %?•'. 13-19 • ,, . .,: ' ' * : , .. iMS , , • : :ti v .-y:4;2Pr-- • • ., ,-,' . •;.;;••,Ull 1 •60-64 •--:,;: ler; Risk Factor Sex between men (MSM) Injection-Drug Use (1 DO) Sex be^een:nieh/IDU(MSM + 1DU) Heinophilia/Receipt of factor concentrate 24 71 Irarisfusion rec^lent ; carinii pneumonia•V; :; :: i'v'.-1 •••.-'-• sarcoma Neurological involvement 965 382 i 247 IB o 19 Table 2-10. Years of Potential Life Lost (YPLL) by Age Group Age Group Under 13 13-19 20-29 30-39 40-49 50-59 60-64 65 and over AIDS Deaths 15 8 556 1330 688 286 58 60 Average Years to 65 59 49 40 30 20 10 2.5 0 YPLL 885 392 22,240 39,900 13,760 2,860 145 Completeness of Reporting It is believed that the reporting of AIDS cases in Orange County is excellent. HCA's HIV Surveillance Unit accesses a number of resources for reports of AIDS. These include: > Public and Private Hospitals > Private Physicians > Community Clinics > Community-Based Organizations > Other Health Departments > Death Certificates > AIDS Drug Assistance Program (ADAP) > Tumor and Tuberculosis Registries > Blood Bank Screening Programs > California Department of Corrections > California Department of Health Services > Office of AIDS > Centers for Disease Control and Prevention > United States Department of Defense Timeliness of reporting has been an important issue since this epidemic was first recognized. Table 2-11 presents AIDS cases by year of diagnosis and year of report in Orange County. Prior to 1993, the annual number of cases diagnosed exceeded the number of cases reported. The expansion of the AIDS surveillance case definition in 1993, which allowed for allocation of diagnoses to prior years, marked the first year where reported cases exceeded diagnoses of AIDS. Since then, (except for 1997) the number of reported cases has exceeded the number diagnosed. This is explained by an actual decline in persons diagnosed with AIDS and the identification of previously unreported cases. Ryan White Service Providers Ryan White-funded service providers in Orange County are required to participate in a standardized data collection system. Eight organizations provide service delivery information. 20 More than 2,000 clients have been served in each of the last four years (2,495 in 1999,2,407 in 1998,2,231 in 1997, and 2,129 in 1996). Table 2-12 presents the demographic distribution of 1999 clients. Almost one-quarter (22%) of 1999 clients were new to the system. It is important to note that these clients do not necessarily have an AIDS-defining condition; many are asymptomatic. In fact, clients do not have to be HIV positive to receive some services; they may be family members or friends of those with HIV disease. Table 2-11. AIDS Cases by Year of Diagnosis and Year of Report Year Before 1987 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 Number Diagnosed 313 232 310 381 372 547 570 639 504 472 386 294 233 189 Number Reported 257 207 269 291 358 459 451 749 524 550 433 279 306 309 Of those clients seen in 1999, 89% were HIV infected. Of those with fflV infection, 53% were diagnosed with AIDS. A higher proportion of clients (17%) than of 1999 AIDS cases (13%) was female. The distribution of 1999 clients by ethnicity closely matched that of AIDS cases reported in 1999. Persons in their thirties comprise the largest group of both clients (41%) and AIDS cases (43%) in Orange County. The next two largest age categories represented are persons in their forties and in their twenties (31% and 12% of clients, respectively). The majority (90%) of clients reported income below 300% of the federal poverty level. Few reported having insurance coverage for medical care; 18% had private 21 Table 2-12. 1999 Ryan White Service Providers - Client Data N Undaplicated Glients New Clients Mate 'Female i:vv;:./-;.: ^ •r • White African-American Latino A/PI . ir/Unknown 2,495 100% 4:17 ' 17% Less than 13 fllSiSllif. 20-29; 30-39 40-49; 50 and older • :I .;..-•. ° I I I H i I • _::^-^ ^•.'•,~f^---\ •: ,- .. ff) -: m o/'"'; • 341 14% insurance coverage, 19% Medicaid and 8% other public insurance. More than one-third (35%) reported that they relied on the Health Care Agency's HIV Clinic for their primary health care. Nineteen (19%) percent were under the care of a private physician. Nine percent (9%) went to an outpatient clinic in a hospital for primary medical care; 7% to the VA or a military hospital. Eight (8%) percent were covered by a health maintenance organization (HMO). Fourteen percent (14%) stated that they did not have a primary health care source. Nine (9%) percent of clients were determined by their service provider to have an active substance abuse problem; 8% to have active psychiatric illness. Three (3%) percent of clients were homeless (N=66). Forty-two percent of clients served received primary medical care; 63% received one-on-one case management services. Eighty-one percent (81%) received other case management services, such as the coordination of services by the client's case manager with other providers. Other services received included client advocacy (55% of clients), mental health treatment (37%), other counseling (not mental health) services (34%), and education/risk reduction (28%). Also, food bank/home-delivered meals (29%), dental care (16%), transportation (19%), and housing assistance (16%). Home health care services and buddy/companion services were each received by 5% of clients. 22 AIDS Drug Assistance Program Orange County elected to participate in the California Department of Health Services, AIDS Drug Assistance Program (ADAP) in 1988. Initially, only zidovudine (AZT) was made available to low-income persons with HIV. Since then 142 other drugs have been added to the ADAP formulary. Table 2-12. ADAP Clients by Gender and Ethnic Group White African-American Latino A/PI Other/Unknown Total Column % Male 1,216 107 765 45 23 2,156 89% Female 129 22 109 3 3 266 11% Total 1,345 129 874 48 26 2,422 100% Row% 56% 5% 36% 2% 1% 100% Orange County enrolled 2,172 persons into ADAP between 1987 and December 31, 1997. In 1999, more than a thousand clients were enrolled. Table 2-12 presents ADAP enrollment by gender and ethnicity. Clients enrolled in ADAP are representative of Orange County AIDS cases in terms of gender and race/ethnicity Anonymous HIV Testing Program The Alternative Test Site (ATS) program was developed by the California State Office of AIDS for individuals wanting to know their HIV antibody status. ATSs were established throughout California. One site was established in the Health Care Agency's Special Diseases Clinic which opened June 1, 1985. The HIV antibody test administered in an ATS addresses the confidentiality concerns of individuals at risk for HIV infection. AM testing is anonymous and includes test-linked education. The service includes an explanation of the test procedure and meaning of the results; recording of demographic variables and risk assessment; provision of information on HIV transmission, prevention, and strategies for behavior change; development of a risk-reduction plan; collection of a laboratory specimen; and distribution of condoms and educational materials. All who test positive are offered on-site support services and medical care or are encouraged to seek care through the private medical community. Between June 1,1985 and December 31,1999,127,864 specimens were tested anonymously. Of these, 2,978 (2.3%) were found to have serologic evidence of HIV infection. Fewer positive tests were reported in both 1998 (N=74, 1.2%) and 1999 (N=68, 1.4%). Of cumulative clients presenting for anonymous testing at the Orange County Alternative Test Site, 57% were White, 29% were Latino, 4% were African-American, and 4% were A/PI. Ethnicity was unknown for 6% of those testing. See Table 2-13. 23 Almost one-half (47%) of those testing positive were White, 25% were Latino, and 5% were African-American. However, ethnicity was unknown for 21% of those with positive tests. As can be seen in Table 2-13, the prevalence of HIV infection among specimens submitted by African-Americans (3.1%) was about 1.6 times that for both Whites (1.9%) and Latinos (2.0%). However, prevalence was highest among specimens submitted by clients of unknown ethnicity (8.7%). Most (81%) of the 2,978 infections identified in this program (positive tests) were associated with sex between men and/or injection-drug use compared to only 23% of total tests. These data support the continued need for effective outreach to encourage testing for all persons who engage in behaviors that place them at increased risk for HIV infection. Almost one-third (29%) of those testing reported multiple heterosexual partners as their risk for infection, yet only 3% of positive tests were to persons in this risk group. Six percent (6%) of positives were to persons who did not know or admit their risk at time of testing. Cumulative seroprevalence among those who reported both sex between men and injection- drug use as risk factors was 16.8%. Comparable seroprevalence for 1998 and 1999 was 8.0% and 10.7%. It is important to note that, as the sample size for persons in this risk group is small, seroprevalence is subject to considerable variability. Among men who have sex with men, cumulative seroprevalence was 10.4%. Many infections among men in this risk group were identified early in the epidemic; annual seroprevalence has been declining for several years. 1998 and 1999 rates were 3.9% and 3.8%, respectively. Almost 6% (5.4%) of cumulative tests to those who identified sex with an HIV-positive partner as their risk factor were positive. Annual 1998 and 1999 seroprevalence for this group was 4.1% and 3.8%. These numbers are also small and subject to variability. Among injection-drug users, cumulative seroprevalence was 2.7%. Cumulative seroprevalence was highest, at 26.7%, among hemophiliacs who received factor concentrate. However, the sample size is very small (4 positive tests of 15 total tests). 24 o 0 Table 2-13. Anonymous HIV Test Results by Risk Factor, Ethnicity and Gender Risk Factor ;.; S«x:betvvee MSM + injection-drug use $£•$•• ^ys..,/-, -'•:. ., ... ~ • - • ' .-...• .-• • • •. Hemophiliac : : g,f ^.7 Partner ofhi-risk person 111 ^ Partner HIV+" ' • \ : . i ll^g,^.; Wafe^|||^||i§(|l||)fi^S|if-. : v-3 7 4,347 j ':•' : ' ' 0.- :'5;:^;'l87 [ : 0:0,,.=„,: v^.,_,,-,,•„,•«,,,,. •Heterosexual multi-pas'sis . ij .% '-v.'-.37,379- '-0.3 - Iransfusionrecipient - :,:, • ^2M . '.2,81.9,^-Vl-O •None known/admitted : Ethnicity .-i-o>: ^; i,5i9.;c;o^- TOTAL Seroprevalence among those who reported heterosexual contact as their sole risk factor has remained at less than 1% (0.3% of cumulative tests and 0.2% and 0.4% of 1998 and 1999 tests, respectively). Likewise, cumulative seroprevalence among females is less than 1% (0.5%). The prevalence of HIV infection among specimens submitted by males was 7.0 times that for females (3.4% vs. 0.5%). In 1999, 14 of the 68 positive specimens were submitted by females (21%). The history of anonymous HIV testing in Orange County can be depicted by a squiggly line with five sharp spikes. Each spike, demonstrating a marked increase in voluntary anonymous HIV tests, followed the public disclosure of a celebrity's infection with the human immunodeficiency virus (HIV). The first sharp rise in AIDS testing came in October 1985, after actor Rock Hudson disclosed he had AIDS. The next four spikes coincided with the death of pianist Liberace, the illness of California tax revolt leader Paul Gann, the announcement by basketball star Magic Johnson that he was HIV-infected and the disclosure that tennis champion Arthur Ashe had AIDS. Local officials charted the correlation and reported it in a letter to the New England Journal of Medicine7 in November 1992. The letter noted that Johnson's disclosure particularly helped increase demand for HIV testing among two overlapping groups at especially high risk for HIV infection, the young and racial minorities. "The more frequently members of America's royal family choose to alarm and "Disclosure of AIDS in Celebrities", G. Gellert, P. Weismuller, K. Higgins, R. Maxwell. Medicine, 1992; Vol. 327, No. 19, page 1389. New England Journal of 25 motivate the public about AIDS through personal disclosure," the letter said, "the more successful will be our national effort to control this disease." Confidential HIV Testing Programs In March of 1985 the Orange County Health Care Agency established confidential HIV antibody counseling and testing programs. Confidential testing is offered at the HCA Special Diseases Clinic in Santa Ana and through special outreach testing efforts. Initially, reported confidential testing figures excluded repeat test results because they consisted primarily of referrals of HIV-positive persons tested anonymously. These referrals no longer constitute a significant proportion of repeated confidential tests. Beginning with January 1993, repeat tests are included in reported confidential testing data. The service includes an explanation of the test procedure and meaning of the results; recording of demographic variables and risk assessment; provision of information on HIV transmission, prevention, and strategies for behavior change; development of a risk-reduction plan; collection of a laboratory specimen; and distribution of condoms and educational materials. All who test positive are offered on-site support sendees and medical care or are encouraged to seek care through the private medical community. Between March 1, 1985 and December 31, 1999, 37,295 specimens were tested confidentially at the Special Diseases Clinic. Of these, 339 (0.9%) were found to have serologic evidence of HIV infection. In comparison, seroprevalence was 0.4% for tests done in 1998 and 0.3% for tests done in 1999. Table 2-14 presents these confidential tests by risk factor, ethnicity, and gender. More than one-half (53%) of those tested confidentially were Latino, 33% were White, 4% were African-American, and 6% were A/PI. Ethnicity was unknown for 4% of those testing confidentially. The over-representation of people of color among this 26 Table 2-14. Confidential HIV Test Results by Risk, Ethnicity and Gender c o Positive Totalp Tested Rate .7100 Risk Factor Sex between men ,(MSM) MSM +injection-drug use Injection-drag use Hemophiliac Partner of hi-riskperson Partner HIV+ '-|:; Male w/ prostitute contact: Feniale prostitute Heterosexual multi-partner Transfusion recipient Occupational exposure;: None known/admitted Ethnicity White,- ... :;••:>,... ,::; ;; ;;i8|8ca«- American 101is 898 0.2^::.;:o.5 ;0:8 12,358 x,; jO-8 1,546 0.8 ^6( Other/Unknown Gender Male Female1 : Unknown TOTAL llHS 21,028 1.3 :l5,85fef:';.;:::0: "Y;409' ;:'- 2^ , 37.295: ^Sffi group of testers when compared with those testing anonymously is a reflection of the clients who are currently accessing the Special Diseases Clinic. As shown in Table 2-14, there is little difference between ethnic groups in terms of prevalence of HIV infection; positivity is close to 1% for all groups. As with the anonymous testing program, prevalence is highest for specimens submitted by clients of unknown ethnicity (4.3%). More than one-half (55%) of the 339 infections identified in this program were associated with sex between men and/or injection-drug use compared to only 13% of total tests. Once again these data support the need for outreach efforts designed to encourage testing for those persons who engage in specific behaviors that place them at risk for HIV infection. Twenty- nine percent (29%) of those testing reported multiple heterosexual partners as their risk for infection, yet only 5% of positive tests were to persons in this risk group. One-quarter of positive tests (24%) were to persons who did not know or admit their risk at time of testing. Cumulative seroprevalence among those who reported both sex between men and injection- drug use was 9.2%. Comparable seroprevalence for 1999 was 10.0%. There were no positive tests for members of this risk group in 1998. However, once again, the sample size for persons in this risk group is small and therefore subject to variability. 27 Among men who have sex with men, cumulative seroprevalence was 4.3%; annual seroprevalence was 3.0% in 1998 and 2.0% in 1999. Almost 7% (6.5%) of cumulative tests to those who identified sex with an HIV-positive partner as their risk factor tested positive. Annual 1998 and 1999 seroprevalence for this group was 7.7% and 4.5%. Among injection-drug users, cumulative seroprevalence was 1.9%. Positive tests represented 1.3% and 0.43% of 1998 and 1999 tests for this group. Hemophiliacs who received factor concentrate once again have the highest seroprevalence (25%); however, this rate represents only one positive test. Seroprevalence among those who reported heterosexual contact as their sole risk factor remains very low; 0.2% of both cumulative and 1998 tests and 0.1% of 1999 tests. Seroprevalence among specimens submitted by males (1.3%) was more than 4.0 times that for females (0.3%). Methadone/Drug Clinics HIV Testing Programs Confidential HIV antibody counseling and testing was implemented in HCA's methadone and drug treatment clinics in 1987. Testing is provided in a confidential setting, linked with pre-test and post-test counseling. Included are an explanation of the test procedure and meaning of the results; recording of demographic variables and risk assessment; provision of information on HIV transmission, prevention, and strategies for behavior change; development of a risk-reduction plan; collection of a laboratory specimen; and distribution of condoms and educational materials. All who test positive are offered on-site support services and medical care or are encouraged to seek care through the private medical community. Between August 1, 1987 and December 31, 1999, 36,372 specimens were tested confidentially at HCA's methadone and drug treatment clinics. Of these, 354 (1.0%) were found to have serologic evidence of HIV infection. Seroprevalence for 1997 and 1998 was 1.0% and 0.5%, respectively. Table 2-15 presents methadone and drug treatment tests by risk factor, ethnicity, and gender. Of cumulative clients presenting for testing at methadone and drug treatment clinics, 58% were White, 28% Latino, 6% African-American and 1% A/PI. Ethnicity was other/unknown for 7% of those testing. Almost one-half (45%) of those testing positive were White, 31% Latino and 13% African- American. Ethnicity was other/ unknown for 10%. The prevalence of HIV infection among specimens submitted by African-Americans (2.2%) was almost 3.0 times that for Whites (0.8%) and 2.0 times that for Latinos (1.1%). 28 c Table 2-15. Methadone/Drug Clinic HIV Test Results by Risk, Ethnicity & Gender Risk Factor Sex between men (MSM) ,MSM+; injection-drug use Injection-drug use Hemophiliac Partner of hi-risk person ; Partner HTV+ Male w/prostitute contact Female prostitute !lteg»pie3a^fflj|li|p^ffiSpl Tfiinsfiision recipient Occupational exposure . :/ None known/adrnftted Ethnicity White .. . . 2*m. African-American Latino ' " ', A/Pi :•?- Other/Unknown. • .;'•' ..•-•...•' ':•,', •:,•'.. .";..;<.^ Gender .Mate;/;.V.O;. ;:•-.: - ^ Female Unknown TOTAL : m:<m Positive . Tests ;-32.. 16 197 °; 9 .1 m :'18:>| : .:I I .,•;•'!-A''; :. Total.,Rate 7100 806 4.0 16,207 : 1.2mm 0.0 ;• -'iimm4 ;4;69r:;::;rU9 159 20,960 0.8 47 . -. 2,1.75 ' 2.2 109 10,236V T1 36 8!> , 13,959: 0.6 19 1,380- 1.4 354 ..; 36,372 :;:VLO: As expected, most of the infections identified in this program were associated with injection- drug use (61%). Another 9% were among men who have sex with men, and 8% reported sex with a high-risk partner. These data, once again, support the provision of educational and outreach efforts encouraging testing for all persons who engage in behaviors which place them at increased risk for HIV infection. Cumulative seroprevalence was highest among men who have sex with men (4.0%) and men who have sex with men and also report injection-drug use (3.1%). Cumulative seroprevalence among injection-drug users was 1.2%, while annual seroprevalence among, injection-drug users was 1.0% in 1998 and 0.6% in 1999. Cumulative seroprevalence among injection-drug users tested confidentially at methadone and drug clinics (1.2%) was lower than cumulative seroprevalence among injection-drug users tested at the Alternative Test Site (2.7%). However, when compared with the estimated seroprevalence rate for the general population (0.3%), the seroprevalence rates among injection-drug users support the need for effective outreach and testing for all of those enrolled in methadone and other drug treatment programs. Survey of Childbearing Women The California Department of Health Services, Office of AIDS implemented a blind HIV seroprevalence study in 1988. The purpose of the study was to provide an estimate of the 29 c prevalence of HIV infection among childbearing women in California. Specimens were collected from neonates born in hospitals during the third quarter of each calendar year. The specimens were stripped of identifiers, other than the mother's age, zip code, and race/ethnicity, and then tested for antibodies to HIV. Table 2-16. HIV Antibody Test Results, Survey of Childbearing Women, Orange County 1988-1995 Year 1988 1989 1990 1991 •'4p9t? 1993 Positive :X.,::V 9 9 Tested Rate/10,000 1995 TOTAL As shown in Table 2-16, thirty-four infants were born to HIV-infected women in Orange County during the eight-year period of 1988 through 1995. It is important to recognize that approximately 30% of children born to mothers with serologic evidence of HIV infection actually have the disease. The remaining 70% represent children with maternal HIV antibodies only. In 1995, fifteen counties within California identified between 1 and 40 maternal infections. Orange County identified 3 infections during blinded testing that year, less than 1 (0.8) of every 1,000 neonates tested. Other Diseases of Relevance to the HIV Epidemic Table 2-17 presents annual incidence of a number of diseases thought to be of relevance to the HIV epidemic. Trends in case reporting for the most recent ten-year period are shown. Sexually and Parenterally Transmitted Diseases Gonorrhea cases reported in Orange County8 have declined precipitously from a high of 7,561 cases in 1978 (case rate: 407.6 per 100,000 population) to a low of 435 reported cases in 1996 (case rate: 16.4). Cases increased slightly between 1998 (521) and 1999 (572), yet the 1999 case rate remains low at 20.5 per 100,000 population. The U.S. gonorrhea case rate for 1996 was 124.0. California's Year 2000 Health Objective for gonorrhea is to reduce the incidence to no more than 100 cases per 100,000 people. Orange County reached this objective in 1989. Reported cases of primary and secondary syphilis8 declined steadily since a major outbreak in Orange County in 1986 and 1987, when 605 and 415 cases, respectively, were reported. In 1999, 3 cases of early syphilis were reported, 24 cases were reported in 1998. The 1999 case rate was 1.2 per 100,000 population. The Year 2000 Health Objective for primary and secondary syphilis is 4.2 cases per 100,000 population. Source: County of Orange, H eaU Care Agency, Disease Control 1999 Morbidity Reporting. 30 c Table 2-17. Other Diseases of Relevance to the HIV Epidemic Disease/Condition "90 1991 1992 1993 1994 1995 1996 Gonorrhea Primary/Secondary Syphilis Chlamydia Trachomatis Hepatitis B TB 1496 1123 1220 1162 936 741 435 107 70 53 16 23 15 2958 3148 3223 4197 4563 3303 2693 3292 3498 4893 107 115 107 73 62 83 69 258 305 411 430 365 336 273 330 298 246 Orange County reached this objective in 1991. The U.S. 1996 case rate was 4.3 The decline in cases of gonorrhea and early syphilis in Orange County is believed to reflect the adoption of safer-sex practices in response to the HIV epidemic. Since chlamydial infections were not made reportable in California until late 1989, the dramatic rise in cases between 1990 and 1994 is most likely a reflection of increasing recognition of this disease and improved reporting. Reported chlamydia cases declined in Orange County from 1994 to 1996. New, highly sensitive, non-invasive (urine-based) tests have recently become available which has led to a dramatic increase in both screening and positive tests. Cases increased 6% between 1997 and 1998 and 40% between 1998 and 1999 (from 3,498 to 4,893 cases). Reported cases of acute hepatitis B have declined in Orange County over the most recent ten- year period. More than two-hundred cases were reported in both 1988 (249) and 1989 (215). Ninety (90) cases were reported in 1998 and 55 in 1999, a decline of 39%. Tuberculosis: Orange County reported 246 cases of tuberculosis in 1999, 17% fewer cases than were reported in the previous year (298 in 1998). Case reporting peaked in 1993 with 430 cases reported, followed by decreases in each of the next three years (1994 through 1996)9. TB in Orange County surpassed 200 cases reported annually in 1979 and continues to remain above that level. More than 3,000 cases of TB have been reported in Orange County in the past ten years (1990-99), up 21% over the approximately 2,500 cases reported during the previous ten-year period (1980-89). These increases are closely related to immigration from Southeast Asia, Mexico, and Central and South America. Eighty-seven (87%) percent of all TB cases reported in Orange County in 1999 were in persons born in countries other than the United States; 38% of these from Vietnam, 29% from Mexico, and 10% from the Philippines. Only 41% of U.S. 1998 cases were foreign- born. The 1999 TB case rate is 8.8 cases for every 100,000 Orange County residents. The annual case rates for 1997 and 1998 were 12.4 and 10.9, respectively. The 1999 case rate is 2.5 times California's Year 2000 Health Objective of 3.5 TB cases per 100,000 Califormans. ' Tuberculsis Registry (SURVS-TB) County of Orange B eali Care Agency, Disease Control Pul onary Disease Ser\ices. 31 Orange County TB case rates continue to be higher than U.S. rates, but slightly lower than the rates for California (except for 1993 and 1997). Orange County's 1999 TB case rate of 8.8 is higher than the U.S. 1999 rate of 6.4 and lower than the California 1999 rate of 10.9. TB/HIV co-infection was reported in less than 4% of Orange County TB cases in each of the last five years (1995-99) and in 5% of cases in 1994. In contrast, TB outbreaks among persons with HIV have been reported in many large U.S. cities such as New York, where almost one-half (46%) of 1997 TB cases between the ages of 25 and 44 were co-infected. Only 5% of Orange County 1999 cases in this same age group were co-infected. Fifteen persons with HIV infection were identified through confidential HIV testing at the Health Care Agency's Pulmonary Disease Clinic from January 1991 through December 1998. A total of 1,135 persons were tested during this period for a positivity rate of 1.3%. Pulmonary tuberculosis was added as an AIDS indicator condition when the AIDS definition was revised in 1993. In Orange County, pulmonary TB has been diagnosed in 1% of cumulative AIDS cases (66 of 5,442) reported through December 31, 1999. Conclusion The HIV epidemic came to Orange County in 1981. The impact was immediate and dramatic in the local gay community, especially in gay, white males. Over the years, the HIV epidemic in Orange County has evolved to include increasing proportions of females, ethnic minorities, and persons infected through injection-drug use and heterosexual contact. HIV testing data continue to support the need for effective prevention education, counseling and HIV testing of those persons who engage in behaviors that place them at increased risk for HIV infection. The high-risk groups in Orange County include men who have sex with men; injection-drug users and their sex partners; and female sex partners of bisexual men. 32 3.0 -, ORANGE COUNTY POPULATION TRENDS BY ETHNIC GROUP 1976-1996 Population (Millions) 0.0 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 I White African-American I Latino (Asian Figure 2-1. Orange County Population by Ethnic Group POPULATION vs. AIDS CASES REPORTED Orange County 1999 100.0% 75.0% 50.0% 25.0% 0.0%White African- American Latino Asian Figure 2-2. O. C. Population vs. Reported AIDS Cases 1990 ORANGE COUNTY MEDIAN AGE BY ETHNIC GROUP White African- American Latino Asian Figure 2-3. Median Age by Ethnic Group COPY 33 c AIDS CASES BY YEAR OF REPORT 1993 Definition Pre-1993 Definition 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 Figure 2-4. AIDS Cases by Year of Report 1993-1999 AIDS CASES BY MONTH OF REPORT 13579 11 13579 11 13579 11 13579 11 13579 11 13579 11 13579 11 1993 1994 1995 1996 1997 1998 1999 Figure 2-5. 1993-1999 AIDS Cases by Month AIDS CASES BY ETHNIC GROUP & YEAR OF REPORT White African-American Latino Other/Unknown •90 '91 '92 '93 '94 '95 '96 '97 '98 AIDS CASES BY ETHNIC GROUP & YEAR OF REPORT Percent 100% 90% 80% 70% 60% 50% 40% 30%' 20% 10%' 0%''90 '91 '92 '93 '94 '95 '96 '97 '98 • White O African-American • Latino • Other/Unknown Figure 2-6. AIDS Cases by Ethnicity -#Figure 2-7. AIDS Cases by Ethnicity - % COPY 34 White Males African-American Males Latino Males Females Rate/100.000 pnnulatioRate/100,000 population 20 ADULT/ADOLESCENT AIDS CASE RATES 1990 vs. 1999 I 42.8 40 60 80 113.4 100 120 Figure 2-8. 1990 vs. 1999 AIDS Case Rates AIDS CASES BY EXPOSURE CATEGORY & YEAR OF REPORT Number 500 300 200- 100 Men -sex w/men —•—Injection Drug Use A Heterosexual —•— Pediatric ~-B~ Other Risk —•—Unknown Risk •90 '91 '92 '93 '94 '95 '96 '97 '98 '99 Percent 100% AIDS CASES BY EXPOSURE CATEGORY & YEAR OF REPORT 75% 50% 25% •90 '91 '92 '93 '94 '95 ^96 '97 '98 "99 D Men -sex w/men • Heterosexual D Other Risk • Injection Drug Use • Pediatric • Unknown Risk Figure 2-9. AIDS Cases by Exposure -#Figure 2-10. AIDS Cases by Exposure - % o COPY 35 FEMALE AIDS CASES BY EXPOSURE CATEGORY AND YEAR OF REPORT Adult/Adolescent 64 37 •90 '91 '92 '93 -94 '95 "96 '97 -98 '99 • Injection Drug Use D Transfusion I Heterosexual • Unknown Risk FEMALE AIDS CASES AS PERCENT OF TOTAL CASES BY ETHNICITY Cumulative Cases Through 12/99 White African- American Latina Asian 14.3% 11.2% 10.4% 0.0%5.0%10.0%15.0% Figure 2-11. Female AIDS Cases byExposure Figure 2-12. Female Cases - % by Ethnicity o 1999 MALE AIDS CASES BY EXPOSURE CATEGORY & ETHNIC GROUP White (N=131) African-American (N=19) Latino (N-115) 0%20%40%60%80%100% | OMSM EMSIWIDU IIDU I Hetero • Other/Unknown | Figure 2-13. 1999 Male AIDS Cases 1999 FEMALE AIDS CASES BY EXPOSURE CATEGORY & ETHNIC GROUP White (N=15) African-American (N=6) Latino (N=16) 20%40%60%80%100% 0IDU I Heterosexual EJ Other/Unknown Figure 2-14. 1999 Female AIDS Cases COPY 36 ORANGE COUNTY, CALIFORNIA AIDS CASES BY CITY 1981-1990 Figure 2-16 1981-1985 Figure 2-15 1981-1999 Figure 2-18 1981-1995 Figure 2-17 LEGEND 1 to 24 25 to 49 50 to 99 100to199 200 to 299 300 or more COPY 37 1999 AIDS CASE RATES BY CIT\ RATES/100,000 POPULATION (INCORPORATED CITIES Figure 2-19 LEGEND 0.1 TO 5.0 5.1 TO 10.0 10.1 T015.0 15.1 TO 20.0 20.1 TO 25.0 25.1 OR HIGHER o COPY 38 o 400 350 300 250 - 200 150 100 50 DEATHS AMONG PERSONS REPORTED WITH AIDS BY YEAR OF OCCURRENCE 1981-1999 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 Figure 2-20. AIDS Deaths by Year of Occurrence AIDS PREVALENCE BY YEAR/ AIDS CASES BY YEAR OF DIAGNOSIS 2500 2000 1500 1000 500 2441 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 Expired IBM Living * Prevalence! Figure 2-21. AIDS Prevalence & Cases by Year O COPY 39 ORANGE COUNTY, CALIFORNIA PERSONS LIVING WITH AIDS AS OF 12/31/99 Figure 2-22 LEGEND 1TO24 25 TO 49 50 TO 99 100 T0199 200 TO 299 300 OR MORE COPY 40 COMPARISON OF U.S. & ORANGE COUNTY AIDS CASES BY GENDER, AGE GROUP, ETHNICITY & EXPOSURE CATEGORY Men sex W Men IDU MSM+IDU Heterosexual Other Pedlatric 0%10% 20%30%40% 50% 60% 70%80%90% 100% I Orange County 1999 I United States 1999 Figure 2-23. U.S. & Orange County AIDS Case Demographics O 1999 U.S. AND ORANGE COUNTY AIDS CASE RATES BY ETHNIC GROUP RATE/100,000 POPULATION White African- American Latino Asian 25 50 75 100 • Orange County I United States 125 Figure 2-24. U.S. and O. C. AIDS Rates by Ethnicity COPY 41 12 CITY OF ENCINITAS CITY COUNCIL AGENDA REPORT Meeting Date: November 9,1998 TO; - Mayor and City Council - - -- - VIA: City Manager FROM: Sheriff's Captain, Octavia Parker SUBJECT : Report on Ordinance Imposing Regulations on Adult Businesses The Sheriff's Department has considerable, direct experience in dealing with adult businesses throughout the County, and receives information from law enforcement agencies throughout the State, and Nation. The Department's experience provides the basis for this report, and the recommendations and conclusions presented-. If not properly regulated, adult businesses can foster criminal conduct that endangers the community's interest in maintaining a law abiding, safe environment. Such criminal conduct includes sexually-related crimes, assault, prostitution, and crimes involving minors . Regulations are needed: (a) to eliminate circumstances that encourage criminal conduct; and (b) to preclude the shielding of criminal conduct from effective law enforcement. The minimum regulations necessary for effective law enforcement and for precluding circumstances which foster criminal conduct should include the following: 1. Persons should be. barred from establishing or operating an adult business if they have been convicted of sex-related crimes, or who have lost a permit or license to conduct an adult entertainment business. -15 2. Adult businesses should not be collocated with living quarters or other sleeping accommodations. 3. Operators should not allow the admission of minors into any portion of an adult business. 4. Viewing areas of adult businesses should . not be shielded from view by law enforcement officers, for example by structural blocks or the lack of adequate lighting. 5. -—Operators ghnuld be required to provide effective security on the premises more frequently than the public can afford to have a law enforcement officer present. 6. There should be regulations that separate patrons from persons presenting live displays of adult material. 7. To preclude physical contact and close proximity between ' *-~ '«="i-a f^mnl i ance with taxing laws, R There should be separate dressing rooms and entrance/exitsLSi^^^=c- ^-ssr-. "-£ material, observable by patrons. The proposed ordinance will impose regulations on adult ine pruH operated in a manner that. (a)businesses so that they a p ctg minors, (c) does prevents sexually re ^ ^ enforcement; and (d> prevents ne and£™n"'""-•"£• ~ that e-ades caxing and reporting requirements. The proposed ordinance will deter adult busines£« from creating conditions that: (a) encourage sexually-related crimes, and (b) interfere with effective law enforcement. 13 CASE TYPEF-raJDN iM-MISD. ARCADIA POUCE DEPARTMENT CRIME/ INCIDENT REPORT 250 W. Hunttipmn D-.. CA01M200 CODE SECTION CASE* 00-1337 CHIME BUSINESS CHECK CLASSIFICATION ~«69 -ifl'ES .nDAY 0800-1BOC ,'_ ! FORCE TYPE riCOMM i LI NIGHT 18OV0800 iCJNOFOHCEn AUTO ;r IUNKNOWN SUSPECT INFORMATION: D NONE' 'C SEE ATTACHE1 SEE NARRATIVE: . REPORTED MVD/Y TU. i 3-5-00 0023 ;n-G-GENERAU ** INCIDENT £: C-CRTSYRFT j ATTEMrT i ONLY j OCC. FROM: M/D/Y TIME , OCC. TO: M/D/Y TIME j 3-4-00 2100hrs '• 3-4-00 2400hr? LOCATION 1580 Clark St. (Golden Eyes Gentlemen's Club) ADDITIONAL VIOLATION CODE SECTIONS REPORTING OFFICER Pruitt INV i PARTY* P i 1 n AOOWESSO OUTSIDE JUKS GANG ACTIVITY C1YES ! ID* I BEAT i RD/AREA i 400 | 4 i 36 SHIFT 0 nOHVIOi WEAPON TYPE L> I KN*=E/CUrnNG INST "^ • DS!oWE>iS2s 03OTHERMNQEKXISWEAP O YES . r; i RREAnu D < HANDS. FEET RESIDENCE ADDRESS LAST NAME Pruitt MIDDLE J. TYPE APT CfTY STATE ZIP BUSINESS ADDRESS (SCHOOL) 250 W. Huntington Dr TYPE SUITE CTTY Arcadia CA. 9100L STATE ZIP EVIDENCE PHONE ICE s [V ; PARTY* I BUSINESS PHONE i 626-574-5150 EX i AGE • DOB j LAST NAME i Williams | OCCUPATION WORKING HOURS 1 Police Detective IDL* 1 STATE j VICTIM OF VIOLENT CRIME j i I NOTIFICATION NEEDED B. DYES RESIDENCE ADDRESS 250 W. Huntinoton Dr Arcadia. CA. 91007 BUSINESS ADDRESS (SCHOOL)TYPt sum CTTY STATE ZIP RESIDENCE PHONE | BUSINESS PHONE 626-574-5150 OCCUPATION Police Detective WORKING HOURS IRACE ,NV SEX • PARTY* i 3 AGE DOB I DL* j STATE i VICTIM OF VIOLENT CRIME I | i NOTIFICATION NEEDED DYES LAST NAME HRST MIDDLE Nakamura R. RESIDENCE ADDRESS TYPE APT CITY STATE ZIP BUSINESS ADDRESS (SCHOOL) 25_0 H. Huntington Dr TYPE SUITE CITY Arcadia ,_CA._91007_ STATE ZIP RESIDENCE PHONE BUSINESS PHONE 626-574-5150 I OCCUPATION ! Police Detective STATc" WORKING HOURS SEX AGE [DOB DL*VICTIM Of VIOLENT CRIMENOTIFICATION NEEDS)DYES VERt i LICENSE NUMBER STATE • VIN Of) HULL NUMBER I YEAR I MODEL BS COLOR-PRIMARY i SECONDARY INTERIOR BPU MM1HUCXnc rvu.suQBL MISC. VEHICLE INFORMATION CHP180 j H/D NAME & ADDRESS I REVIEWER'S NAME INCIDENT ENTRY [ M.O. ENTRY" NAME ENTRY PHOPENIMT . NUMBER MO./DAY/YEAH I VEHICLE ENTRY I I FCN ENTRY" DETECTIVE ASSIGNED I DATE QADMIN DREADING BD DDtlfcCIIVE "'OTHER DUE City Ex. 7 -fta£i_a ADULT 0893 100-1337 Over the last four weeks I have received complaints regarding the Golden Eyes Gentlemen s C ub located at 1580 Clark St., Arcadia. The complaints were that the business was actively conducting lap darL" and staee performers committed lewd acts. The lap dancing complaints were described as female employee's having full contact "dancing" with male customers for a fee, while the male is seated . n a stationary position. The lewd act complaints were described as two female stage performers placing themselves in a "69" sexual position and committing cunnilingus. The other lewd act complaint was that a female stage performer was placing a bottle in her vagina. I later explained the lewd acts, which were described by anonymous persons, to the District Attorney's Office Deputy DA Perlstein. He informed me that if the violations were established, he would file lewd act charges against the violators if the violators were doing these acts to stimulate themselves and the crowd, DDA Perlstein said that he would examine the violations on a case-by-case basis. On 3-4-00 at approximately 2100hrs, Detective Williams, Detective Nakamura, and I entered the location in'an undercover capacity to investigate the complaints. After parking our unmarked police vehicle we approached the entrance of the business. On the sidewalk portion of the business there was a male who apparently worked for the establishment. This male was constantly looking east and west on Clark Street observing traffic. As we came close to the male he stated, "It's really happening in there, have a good time." We entered the foyer of the business and a male was behind a front desk operating the cash register. The cashVegister operator was informing customers ahead of us that no pagers, cells phones, or electronic devices were allowed inside. These customers elected to place their cell phones in their vehicle, and it appeared the male outside watched them as they placed their property in their car. The male at the cash register then informed us that we were not allowed to take our pagers and cell phone into the business. We then "checked in" our electronic devices at the front counter and paid the $20 per person cover charge entrance fee. Two other male employees, in the foyer area, conducted a visual check of my person and one used a hand held metal detector to look for metallic objects on our person. Once satisfied, we were allowed entrance into the club. Based on my experience and training, it appeared that the business was not allowing electronic devices into the business so that electronic surveillance devices could not be used. Once inside the club, there were about Wo hundred patrons inside seated at tables watching the stage show. A waitress led us to a table located in the southeast portion of the interior. Along the entire length of the south wall, and about 40' feet of tie east wall from south to north were padded benches. This area had about 4' feet of walkway in front of the benches. This area was raised higher than the table seating area, and was separated from the table seating area by approximately 4' foot tall railing. I noticed that the bench area along the south and east comer of the business had no overhead lighting, or lights directed REPORTING OFFICERpRUiTTMX)ID*REVIEWERS NAME EDS DATE ADMIN READING BOARD DETECTIVE OTffiR p»ge oP_ into this area, making it very dark and hard to see. from even a short distance, until my eyes adjusted. This area of the business I will refer to as the "benches" throughout the remainder of this report. Soon after being seated, a waitress asked us for our drink orders. The first drink was complimentary and 'we were served non-alcoholic beverages. Another female employee wearing a loose blouse and short skirt approached me. The female asked me if I wanted to have a lap dance. I agreed and she then told me to follow her. She held my hand and led me to the benches along the east wall, about 8' feet from our table where Detectives Williams and Nakamura were seated. Once at the benches, she asked me to sit down on the benches. She asked me if I wanted an "all-nude" or "topless" lap dance. I asked her how much it costs for each land of lap dance. She told me that it would cost $40 for an all-nude dance and $20 for a topless dance. She also told me that the lap dance would last the duration of one song. I then told her that I wanted an all-nude lap dance. At this point, a waitress approached me and asked me if I wanted to buy the female a drink. I agreed and the female placed a drink order. The female then removed all of her clothes and started the lap dance. I remained seated and clothed as the female straddled my waist facing me. She began to bounce up and down, rubbing~her breasts against my chest She then slid down to my waist while rubbing her vagina on my thigh. During the lap dance she continually rubbed her breasts and vagina on me in an erotic manner. She rubbed her legs, stomach, and breasts against my penis and groin area in order to sexually arouse me. On several occasions, she turned around with her back to me. She would then grind her vagina on my penis and groin area. During this lap dance, the female rubbed her breasts on my face. On one occasion, she turned her torso so that one of her nipples rubbed along the lips of my mouth. Once the song ended, the female asked if I wanted to continue with another dance. I agreed and she continued with the same acts as in the first lap dance. Once the song came to and end, she stood on the bench straddling my body and facing me. With her vagina about 3" niches from my face, she began to use her fingers to manipulate her vulva and labia folds in a masturbating manner. As she did this, she asked me if I wanted to continue the lap dance "on a two for one". I asked her what a "two for one" was, and she said that it was two songs worth of lap dancing for the price of one. In other words, she would charge me $40 for an all-nude lap dance and it would last for the duration of two songs. I declined mis offer. I paid for the lap dances received, and also for the drink ordered for her. As I was receiving the lap dance from the female, I noticed about six other lap dances occurring along the bench area. Some were all-nude, and others were topless. The actions of the other girls giving lap dances appeared to be consistent with what I experienced during my lap dance. I returned to our table and watched the stage show. The stage shows were consistent with all-nude dancers and performers. This night at the club was the "grand opening party", and therefore featured REPORTING OFFICERpRunr#40o ID#REVIEWERS NAME ID#DATE _ADMIN READING BOARD _DETECTTVE OTHER pace 5 of ' -^ 3 X " I 00-1337 | headlining acts. During the headlining act of "Jenteal" she left the stage on several occasions and walked up to the patrons at their tables, touching their shoulders and arms as part of her stage act. I noticed that the waitresses inside the location carried round serving trays and took drink orders. 1 noticed that the bouncers were males and wore suits or formal wear. The stage performers wore swimsuits, dresses, or tight blouses and short skirts before stripping themselves. The lap dancers did not perform on stage and wore swimsuits, dresses, or blouses. I noticed the lap dancers walked from table to table asking the customers if they wanted lap dances. As we watched the stage shows during the evening, the disc jockey would announce lap dance specials. On several occasions .the disc jockey announced "two for one" specials and "three for one" specials on lap dancing, and encouraged everyone to participate while the special was announced. This occurred several times, and the disc jockey would announce to the crowd when the special was about to end. ^ During a "three for one special" another female employee approached me and asked me if I wanted a "three for one lap dance". I agreed and the female held my hand and led me to the eastside portion of the benches and asked me to sit down. The female asked me if I wanted an all-nude or topless dance. The female explained that the all-nude dance would cost $40 and topless would cost $20. I asked the female for an all-nude lap dance. The female told me to wait for one second, and she walked away to the middle of the benches on the south side of the wall. There she contacted a male with a clipboard, and she then walked back. She told me she was sorry, but she wanted to tell him she was giving a lap dance so that she would get credit for being at the benches. It was apparent, based on her statement that she contacted a co-worker who was keeping track of lap dances given by each girl so they would get paid. fhe female then removed all her clothes and started the lap dance. I remained seated and clothed as the female began to rub her naked body up and down on my chest She then slid down towards the floor between my legs. As she slid down, she rubbed her stomach, breasts, and mouth over my penis and groin area in an erotic manner. She continually rubbed her vagina up and down my thighs and would rub her breasts on my iace. On several occasions she turned around with her back to me. She would then grind her vagina on my penis and groin area in order to sexually arouse me. On several occasion, with her back to me, she would reach behind her with her hands and rub my penis in order to sexually arouse me. She •would then grab both of my hands and place them on her breasts. She directed my hands to rub her breasts. Her nipples became erect due to this activity and she made vocal sounds as if she were becoming aroused. On several occasions, she would direct my hand onto her vagina. She would also direct my hands onto my thighs, and she would rub up and down with her vagina on my hand. With this activity, I felt that her vaginal area was becoming moist as if she were becoming sexually aroused. The three songs ended and she asked me if I wanted to continue. I declined and paid her for the lap dances. REPORTING OFFICER JD# PRUTTT#400 REVIEWERS NAME ID#DATE _ADMIN READING BOARD DETECTIVE 00-1337 o this lap dance 1 looked along the benches and noticed about twelve other lap dances occurring the l^nch arl Some were all'nude, and others were topless. The actions of the other girls giving d^ces app Jed to be consistent with what 1 experienced during my lap dance. 1 even observed one fernalTlap daSeTdo a handstand so that her vagina was about 3' inches from the face of the customer. I returned to our table and continued to watch the stage show. During one stage show, two nude females cunnilingus. As the disc jockey announced another "two for one" special on lap dances another female employee ™S mTand asked me if I wanted a "two for one" lap dance. I agreed and she held my hand and S me t^eastside portion of the benches. She asked me to sit down. The female s*6 that she would conduct an all-nude lap dance for $40. I agreed at which time she removed all her clothes. -I' remained seated and clothed as the female began the lap dance. The female continually rubbed hex sto^S breasts, and face up and down my body, face, and between my legs. She rubbed her breasts and STon my peni and groin area in order to sexually arouse me. At one point she placed her mouth on penS gently brf me in order so continue the sexual arousal. The femak would turn her back to and grind her vagina on my penis and groin area in an erotic manner. She then grabbed my hands and placed them on her breasts. On several occasions, she would place my hands on my tiughs and would rub her vagina on my hand. Once the songs ended, she asked if I wanted to continue. I declined and paid her for the lap dances. Dunn* this lap dance, I noticed about ten other lap dances occurring along the benches^ Some were all- nude, ^nd others were topless. The actions of the other girls giving lap dances appeared to be consistent with what I experienced during my lap dance. I returned to my table with Detectives Williams and Nakamura. We were unable to verify any other complaints previously made to me. At approximately 2400hrs, we left the location- Detectives Williams and Nakamura observed the same circumstances and events as I did, however, due to the close contact of the lap dances, and low lighting conditions, they were unable to observe the detailed encounters I had with the lap dancers. During the business check, Detectives Moore and Lewis were outside the location in an unmarked police car for officer safety reasons. Detectives Moore and Lewis told me that while they were watching me business from outside, they observed two females urinate in the planters located next to the sidewalk and adjacent to the business parking lot REPORTING OFFICERpRunr#4oo rr REVIEWERS NAME ID*DATE ADMIN READING BOARD DETECTIVE OTHER_ S" of. 5" • •"•'•£r-23 -••A;"""-"_•,•-•;¥;* ARCADIA POLICE DEPARTMENT CRIME/ INCIDENT REPORT SUSPECT INFORMATION Q NONE/ v3 SEE ATTACHED ^^ CLASSIFICATION Business Check2SOW. HumngtonDr. ArcadB.CA 4*9ORESid DAY 0600-1800 iQ FORCE TYPE DCOMM ID NIGHT 1800-0800 lONOFORCE OAUTO idUNKNOWN i REPORTED M/D/Y TIME 03-17-00 1550 OCC. FROM: M/D/Y 03-17-00 OCC. TO: M/D/Y TIME 03-17-00 1945a CASE TYPEOF-FELONY nM-MISO. nC-CHTSYHPTG-GENERAU INCIDENT LOCATION 1580 Clark St. (Golden Eyes) ADDITIONAL VIOLATION CODE SECTIONS DOM VIOL WEAPON TYPE ! OONOWEAPONS • DlfWEAHM REPORTING OFFICER Lewis/Pawlicki 3 OTHER OANQBWUS WEAPOH4 HANDS. F^ LAST NAME Lewis RESIDENCE ADDRESS STATE ZIP Ca. 91007 BUSINESS ADDRESS (SCHOOL) 250 W. Huntineton Dr.OCCUPATION Detective BUSINESS PHONE 626-574-5150 WORKING HOURSRESIDENCE PHONE VICTIM OF VIOLENT CRIME NOTIFICATION NEEDED LAST NAME Pawlicki RESIDENCE ADDRESS STATE ZIP Ca. 91007 JSINESS ADDRESS (SCHOOL) 250 W. Huntington Dr. BUSINESS PHONE 626-574-5150 OCCUPATION Detective •ESIDENCE PHONE WORKING HOURS VICTIM OF VIOLENT CRIME NOTIFICATION NEEDED LAST NAME Garza RESIDENCE ADDRESS TYPE SUITE #109 crry Whittier BUSINESS ADDRESS (SCHOOL) 11515 S. Colima Rd. STATE ZIP Ca. 90604 RESIDENCE PHONE OCCUPATION Det./Sergeant BUSINESS PHONE 562-946-7072 WORKING HOURS VICTIM OF VIOLENT CRIME NOTlFICATtON NEEDED LICENSE NUMBER VIN UH HULL NUMBtH COLOR-PRIMARY MISC. VEHICLE INFORMATIONSw> monoMV orQ*« 4M R/O NAME & ADDRESS MO./DAY/YEAR DETECTIVE ASSIGNEDREVIEWER? NAME VEHICLE ENTRY CNENTRN D ADMIN D READING BO D DETECTIVE DOTHEH IRESWENCE ADDRESS AHUMJM ruuvc. uerwn i Men i jk ^CONTINUATION P DSUPPLEMENTAL ? REPORT ' ZSOW.HtntngtonDr. Arcadia CA ITY* + COOESECDON CRBIE CLASSIFICATION Business Check CASE* 00-1562 OATE/TME NEPORTTAKEN RO* 36 LAST NAME FIRST MDOLE Schlosser B. TYPE APT CITY IBUSMESS ADDRESS (SCHOOL) 11515 S. Colima Rd. TYPE SUITE #109 CTTY Whittier STATE ZIP Ca. 90604!«*«»«««* JRACE IEX «*=m w M BU8WCSS PHONE 562-946-7072 DOB DL* 9 MV PARTY* 1 LAST NAME • p 51 Ramirez ^•li^iiTiirT -rnrrrt TYPE OCCUPATION Detective L.A.S.D. STAl FIRST G. APT CITY WORNNQ HOURS re VICTM OF VIOLENT CRIME NOTIFICATION NEEDED QYES MIDDLE STATE ZIP BUSINESS ADDRESS (SCHOOL) II515 S. Colima Road [ RESK3ENCE PHONE TYPE SUITE #109 CITY Whittier RACE H SEX F BUSMESS PHONE 562-946-7072 AQE DOB STATE ZIP Ca. 90604 OCCUPATION Detective L.A.S.D. OL*STATE WORKING HOURS VICTIM OF VIOLENT CfUME NOTIFICATION NEEDED INV PARTYf LAST NAME FIRST TYPE APT CITY STATE BUSINESS ADDRESS (SCHOOL)TYPE SUITE CfTY STATE ZIP P£SU)ENCE PHONE BUSMESS PHONE OCCUPATION WORKJNQ HOURS OL*SfATt~VICTM OF VIOLENT ORME NOTIFICATION NEEDED QYES LAST NAME FIRST TYPE APT CTTY MDDLE STATE ZIP TYPE SUITE CITY STATE ZIP OENCE PHONE £ ISEX BUSINESS PHONE AQE DOB OCCUPATION OL*STATE WORKMQ HOURS VICTM OF VIOLENT CRIME NOTIFICATION NEEDED QYEs LAST NAME FWST TYPE APT CITY TYPE SUITE CITY STATE DL*STATE VICTIM OF VIOLENT CRIME NOmCATION DYES ^ewis, R. / Pawlicki,. S. .•KaOENTI NAME ENTRY PROP ENTRY ID* >51/450 REVIEWERS NAME VEHCLE ENTRY FCN ENTRY DATE D ADMIN QREADMaBD DDETECTME Arcadia Police Department case Number: Incident/Supplemental Report 00-1562 BUSINESS CHECK- GOLDEN EYES On 3-17-00, at 1500 hrs, Lt. Blum, Det. Lewis and I, Det. Pawlicki met with the Los Angeles County Sheriffs Vice Unit. We discussed past AMC violations that had taken place at Golden Eyes. The Arcadia Police Department requested the assistance of the Sheriffs Department, in an undercover capacity to make any observations related to possible state or local violations. Det Lewis and I were assigned as backup Officers. Our function was to maintain visual observation of the exterior of the location and be available to assist the Vice Officers as needed. The Arcadia Police Department provided $400.00 in U.S. currency, to the Vice Officers, to assist them with their investigation. (see attached expense sheet) At approximately 1700 hrs, LASD Vice Sgt- Garza, Det Schlosser and Det. Ramirez went to Golden Eyes, located at 1580 Clark, in the City of Arcadia. (See attached supplemental reports) Reporting Officer: Reviewer's Namtt / Date Officer Scott Pawlicki #450.S«/» //'"^(/Qu' ^/ Distribution: ' Reading Board ^-^"Detectives Administration Other Arcadia Police Department Case Number: Incident/Supplemental Report 00-1562 This report is supplemental to Arcadia P.D. report #001562. I entered the location (Golden Eyes Gentleman's Club) at 1580 Clark St., city of Arcadia, at 1715hrs. The cover charge was ten dollars. There were five other patrons inside the location. I sat down at a table along the south wall and adjacent to a row of padded benches. I sat and watched several females dance on the stage and, at 1805hrs., I was approached by a female black who sat down and introduced herself as "Eve". We talked for several minutes and then she asked me if I wanted a lap dance. I told her that I would be interested in a lap dance but I told her that I wanted to finish my beverage first and watch some of the other dancers. I asked her if she would come back in fifteen minutes and she said that she would During the earlier briefing we had set up for uniformed officers to come into the location and do a bar check at 1830hrs. I wanted to have "Eve" do a lap dance as close to that time as possible so I could see how she reacted when officers came into the club. At 1830hrs.,"Eve" came back to my table, took me by the left hand and asked me if I was ready for the dance. I said I was and stood up, "Eve" then let go of my hand, said, "sit down, I'll be right back" and walked away. I then noted that two uniformed officers had just entered the location. While the officers were in the location, "Eve" had left the main area and went through a door just to the left of the entrance. When the officers left, a blonde female white came out of the door that "Eve" had entered, looked out the front door for several seconds and then re-entered the door that I had seen "Eve" go into. After she went in, several dancers, including "Eve" walked out Based on the previous activity, it is my opinion that the female white was checking to make sure that the uniformed officers had left and then gave an "all clear"! signal to the other dancers. "Eve" came to my table and escorted me to the padded bench area where she told me it cost twenty dollars for a topless dance and forty dollars for a full nude dance. I told her that I would like a fully nude dance. She then removed her clothes and started the lap dance. I remained seated while she rubbed her breasts all over my body, paying particular attention to my crotch area. She then turned so her back was facing me and ground her buttocks into my groin area. She did this for a few minutes and finished the dance by rubbing her breasts across my face. As I paid her for the dance I asked her if that was "the cops" that had come in. She told me it was and that they made her real nervous because she wasn't licensed yet I returned to my seat and, over the course of the next thirty minutes, was offered lap dances by four different female dancers. At 1900hrs. the D J. announced that they were having a two for one lap dance special. I was approached by a white female who said her name was "Ivy". She asked me if I wanted the special dance. I asked her what the special was. She told me it was two lap dances for the price of one. I agreed and she escorted me over to the padded bench area where she told me it cost forty dollars for fully nude and twenty dollars for topless. I told her I would like the topless dance. Reporting Officer: Reviewer's Name: Date: Detective Schlosser, B. #218108 Distribution: Reading Board Detectives Administration Other:TT Arcadia Police Department Case Number: Incident/Supplemental Report 00-1562 "Ivy" pulled down the top of her dress, grabbed her breasts and pushed them together and then said, "would you like to watch me suck my nipples?" I nodded yes and "Ivy" began to suck on her nipples. She then began rubbing her breasts hi my face and down the length of my body. She turned around and began rubbing my groin area with her hands and buttocks. She then faced me, knelt between my legs and began moving her face around my groin area. After a minute or so of this she looked up at me and said, "for another forty I could make you feel real good." It was my opinion that she was offering me oral sex for an additional forty dollars. I told "Ivy" that the night was young and that I might take her up on her offer later. She finished the second dance, was paid by me and left the bench area, I sat back down at my table and was then approached by "Eve" who sat down and asked me if I wanted another dance. I told her that with all of the money she made here she should take a break and rest. "Eve" said that she didn't make that much money on a slow night and that she had to do as many dances as she could because she had to give five dollars of every lap dance to the club owner. She then pointed to a male white with a shaved head and identified him as a bouncer who walks around with a clipboard and keeps track of all the lap dances the girls do. She said that they are charged five dollars per dance and they have to pay the club owner before they leave for the night I then asked her if she worked for a salary or just for tips. She said that she worked for tips. As we continued to make small talk, I asked her if there was a hiring process that she had to go through to work here or if girls just came hi off the street and said they wanted to be dancers. She told me that she had filled out an employment application, but when the club was short of dancers they would let anyone come hi and dance. She said that there were at least three dancers there that night who had just come hi off the street. At that time the D.J. called her to the stage to dance. When she got up on stage, I left the location. Brian Schlosser #218108 Detective, LASD Reporting Officer: Reviewer's Name:^ ^ Date: Detective Schlosser, B. #218108 Distribution: Reading Board _ Detectives _ Administration _ Othertration Arcadia Police Department Case Number: Incident/Supplemental Report 00-1562 This report is supplemental to Arcadia P.D. report #001562. Sgt. Garza #031993 and I, (Det Ramirez, #154297) entered the location (Golden Eyes Gentleman's Club) at 1580 Clark St., city of Arcadia, at 1730 hours. The cover charge was $15.00 for both of us. There were approximately five other patrons inside the location. We sat down at a table along the south wall and adjacent to a row of padded benches. We sat and watched several females dance on the stage and at 1915 hours, we were approached by a female black who introduced herself as "Vivi". Vivi was dressed in a bikini and 5 inch heels. Vivi asked us if we wanted a two for one lap dance. I asked her how much it would cost. Vivi said it would be $20.00 topless and $40.00 nude. For the both of us, she would charge us $50.00 with her top off. We said okay. Vivi escorted us to a padded bench at the south end. When we sat down, Vivi removed her bikini top and straddled Sgt. Garza, who remained seated. Vivi began the lap dance by nibbing her breasts all over his body then up to his face. Vivi then turned her back and planted her buttocks into Sgt. Garza's groin area and began to move up and down. Vivi then turned around facing Sgt Garza in a straddled position. She continued the dance by rubbing her crotch on Sgt. Garza's groin area, and her breasts up his body and across his face until the song ended. Once the song ended Vivi came to me and straddled me in the same fashion as she did Sgt Garza. Sgt Garza stayed next to me as Vivi began the lap dance. Vivi began by rubbing her breasts against my breasts then she moved down to my crotch area then up again until her breasts were in my face. During this time Vivi caused my blouse to crawl up, as she placed her hands at my lower back and pushed me towards her breasts. Vivi then asked me if this was my first time and I said yes. Vivi then asked me to open my legs a little more. Vivi continued the dance by turning her back to me and rubbing her buttocks into my crotch. Vivi turned facing me again and as she rubbed her breasts on my breasts, she said I had very nice breasts and moved up until her breasts were in my face again. The song was finally over and Vivi got off of me. Sgt Garza paid her $50.00 and we returned to our seats. We stayed for approximately 30 minutes more, during which time we were approached by other dancers who offered us lap dances. We declined their offer and left the location a short time later. Gloria Ramirez, #154297 Detective, LASD Reporting Officer: Reviewer's Name: Date Officer: Lewis, R. #451_ Distribution: Reading Board £^uetectives Administration Other_ \o ARCADIA POUCE DEPARTMENT CRIME/ INCIDENT REPORT CA0180200 1580. Clark St. (Golden Eyes Gentlemen's Club) X&G4JENEHAUINCIDENT ADDITIONAL VIOLATION CODE SECTIONS REPORTING OFFICER Pruitt LAST NAME Pruitt RESIDENCE ADDRESS RESIDENCE PHONE LAST NAME Cardenas 3NESS ADDRESS (SCHOOL) 11 S. First St. LAST NAME Medina RESIDENCE ADDRESS BUSINESS ADDRESS (SCHOOL) 211 S. First St. RESIDENCE PHONE VEH-t I LICENSE NUMBER R/0 NAME ft ADDRESS CODE SECTION CASt* 00-1968 CRIME BUSINESS CHECK CLASSIFICATION SUSPECT INFORMATION D NONE/ O SEE ATTACHED SEE NARRATIVE ~SE5 QHES .ODAY 0800-1800 iQ FORCE TYPE OCOMM IDNIQHT 1800-0800 ;D NO FORCEDAUTO ;n UNKNOWN J QC-CHTSYRPT ATTEMPT ONLY OCC. FROM: M/D/Y TIME 4-6-00 1540 REPORTED M/D/Y TIME 4-6-00 1519 OCC. TO: UIDTf TIME 4-6-00 1756 DYES BEAT BUSINESS ADDRESS (SCHOOL) 250 W. Huntinqton Dr. Arcadia CA. 91007 T RD/AREA 36 FIRST J. TYPE APT TYPE SUITE SHIFT DOMVICK.: WEAPONTYPE DZKNI_-, .__ 1 DONOKVEAPOMS DSOI>0 DYES .QHTOEAIUI D«N» FBQSrnNQMST os. FEET J MIDDLE • CfTY STATE CITY STATE ZIP ZIP BUSINESS PHONE 626-574-5150 OCCUPATION Police Detective DOB DL* WORKING HOURS STATE { VICTIM OF VIOLENT CRIME I NOTIFICATION NEEDED DYES Alhambra CA. 91801 BUSINESS PHONE 626-570-5170 OCCUPATION Police -Detective WORKING HOURS ***/[our S1ATE i VICTIM OF VIOLENT CRIME j NOTIFICATION NEEDED QYES TYPE APT crnr STATE ZIP TYPE Alhambra CA. 91801 SUTTE CTTY STATE ZIP BUSINESS PHONE 626-570-5170 OCCUPATION Police Detective WORKING HOURS DOB DL*VICTIM OF VIOLENT CRIME NOTIFICATION NEEDED DYES STATE VIN OR HULL NUMBER YEAH MAKE FIMOCOHIMCKIMCTOR BFHwnuiOMM«IM COLOR-PRIMARY SECONDARY MODEL INTERIOR MISC. VEHICLE INFORMATION REVIEWERS NAME LD. NUMBER MO./DAY/YEAR DETECTIVE ASSIGNED DATE JENT ENTRY NAME ENTRY VEHICLE ENTRY Tommf?— DUE D ADMIN DREADING BD D DETECTIVE DOTHER city tx. «r On 4-6-00, at approximately 1540hrs. Alhambra Detective Medina, Alhambra Detective Cardenas, and 1 entered the location in an undercover capacity to investigate complaints of City Code violations, and other crimes occurring inside the location. We paid the $5 per person cover charge entrance fee. We asked the employee working the cash register if there was beer inside. He told us the place did not have a license for alcohol, and he couldn't provide us with any. We were not searched, and we were then allowed entrance into the club. Once inside the club, J noticed there were 3 male patrons inside. Two were seated at tables watching the stage show. The other male -was seated at the stage table watching the stage show. We sat down at the stage table to watch the stage dance. The stage table is wrapped around the entire stage area and is about one foot wide. I will referto this table area.as the "tipping bar" throughout the rest of this report. Once seated, the female dancer stepped off the stage and walked directly over to us. She was wearing a bikini as she walked up to Det Medina. She leaned over the tipping bar and placed Medina's face between her breasts. She then used her hands to push her breasts together around Medina's face as she jiggled her upper body. She then walked up to Det. Cardenas and climbed up on the tipping bar in front of him. She laid on her back and wrapped her legs around Det Cardenas' neck placing her vagina on his face and wiggling her hips. She then walked up to me and crawled under the tipping bar between my legs. She then rubbed her face on my penis and groin area in an erotic manner. The dancer then returned. to the stage and continued her stage show, which eventually led to full nudity. A waitress approached us and took our drink orders as we watched the stage show. Once the dancer was finished, she collected her clothing and walked directly up to the tipping bar. She took tips from us and the other customer who was seated at the far end of the tipping bar. * The waitress brought us our drinks and another stage dancer appeared on stage. The dancer who finished her stage show approached me and asked me if I wanted a "two for one" lap dance. I agreed and she led me to the south wall of the business. Along the entire length of the south wall, and about 40' feet of the east wall from south to north were padded benches. This area had about 4' feet of walkway in front of the benches. This area was raised higher than the table seating area, and was separated from the table seating area by approximately 4' foot tall railing. I noticed that the bench area along the south and east comer of the business had no overhead lighting, or lights directed into this area, making it very dark and hard to see, from even a short distance, until my eyes adjusted- This area of the business I will refer to as the "benches" throughout the remainder of this report. Once at the benches, she asked me to sit down. She asked me if I wanted an "all-nude" or "topless" lap dance. I asked her how much it costs for each kind of lap dance. She told me that it would cost $40 for an all-nude dance and S20 for a topless dance. She also told me that the lap dance would last the duration of two songs since she would give me a two for one special. I then told her that I wanted an all-nude lap dance. REPORTING OFFICER ID*REVIEWERS NAME ID*DATE _ADMIN READING BOARD .DETECTIVE OTHER P«6e__£__of_ At this point, a waitress approached me and asked, me if! wanted to buy the female a drink. 1 declined nis offer. The female then yelled across the club at the Disk Jockey and MC announcer to get his attention. She then sionaled him that she was giving a two or one lap dance. I then heard the Disk Jockey announce over the sound system that there was a two for one special starting, and he encouraged customers to take a lap dance. The female then removed all of her clothes and started the lap dance. I remained seated and clothed as the female straddled my waist facing me. She began rubbing her breasts against my chest. She then slid down to my waist while rubbing her vagina on my thigh. During the lap dance she continually rubbed her breasts and vagina on me in an erotic manner. She rubbed her legs, stomach, and breasts against my penis and groin area in order to sexually arouse me. On several occasions, she turned around with her back to me. She would then grind her vagina on my penis and groin area. During this lap dance, the female would stand with her back to me and bend over exposing her vagina and anal area to me. She would look at me between her legs as she reached under with her hands nibbing her vagina and anus. Also, during this lap dance, she would turn her back to me and grind her vagina on my penis and groin area. As she did this, she would reach between her legs with her left hand and rub my penis and groin area in an erotic manner. On two occasions during this lap dance she would stand on the benches with her vaaina about 3" inches from my face. She would then use her fingers to manipulate her vulva and labia folds in a masturbating manner. Once the two songs ended, I paid her for the lap dances and returned to the tipping bar. ^s I sat back down at the tipping bar, Del Medina and Cardenas were watching a stage show and also Engaged in a conversation with another female employee. I heard the female ask Del Cardenas if he wanted a lap dance at which time he agreed. The female then led Cardenas away to the benches. After a period of time, Det. Cardenas returned. As we sat at the tipping bar, approximately two other female employees asked us if we wanted lap dances, however, we declined at that time. We watched several stage dances. During the stage shows, the dancers would step off the stage and perform quick dancing routines at the edge of the stage. The dancers would then return back on stage. During one stage performance, the dancer stepped of the stage to perform a dance maneuver. Another female employee, who we observed perform a previous stage dance, yelled at her in a joking manner "That's illegal!!!". The dancer smiled and continued with her performance. After a period of time we moved and sat down at a table. Once we did this, we noticed several employees inside the location running to the backstage area. All the employees disappeared to the backstage area. The cashier that we earlier contacted walked over to us and said that one of the dancers fell down in the back and hurt herself. He explained that the paramedics were coming to help her, and once they were finished, they would "start the party again". REPORTING OFFICER PRUTTT3400 ID*REVIEWERS NAME ID*DATE _ADMIN _ READING BOARD _DETECTTVE _ OTHER wee J of 3 During this waiting period, 1 noticed several female employees walk into the women's bathroom and stay inside^ until the paramedics left the location. It appeared that several female employees went to the bathroom to avoid being seen by emergency personnel. I also noticed that there were about seven female dancers who performed the stage acts and also solicited lap dances. There was one female waitress, one male cashier, and one male Disk Jockey. The male Disk Jockey would make the announcements, including announcing lap dance specials. I noticed that every time a female dancer gave a lap dance, they would contact the Disk Jockey and he would make note of it After a period of time, the stage shows started again. I noticed that the stage dancers, after their performance ended, would usually put their clothes back on and walk up to the tip bar to collect their tips. They would usually accept the tip and kiss the customer on the cheek. Other dancers would walk up to the tipping bar fully nude and collect their tips. The tips were collected through hand exchange. During their tip collection, they would solicit lap dances. During one stage performance, the dancer left the stage and walked up to us at the tipping bar. She then rubbed her bare breasts on Det. Medina's face. She then walked over to Det. Cardenas and climbed on the tipping bar. While lying on her back, she wrapped her legs around Cardenas' rubbing her vagina on his face through her G-string bikini bottoms. She then walked over to me and stood in front of me at the tipping bar. She moved aside her bikini bottoms and exposed her vagina to me. She then took her left index finger and rubbed it on her vagina in a masturbating manner. She then took the same finger and rubbed across my lower lip. Two of the male customers later left the business. During their visit, I noticed that one of them received a two for one lap dance. The third male customer, who appeared to be attending alone, received about >two lap dances. Later, three female customers entered the location. The female customers sat a table for a period of time and watched the activities inside. At one point, they went and sat at the tipping bar. They watched a stage show. The female dancer walked off the stage and approached them at the tipping bar. The female dancer rubbed her bare breasts on one of the female's faces. The dancer went to another female customer and rubbed her exposed vagina in front of her face. She then went to the third female and climbed under the table between her legs. She then rubbed her face in her vaginal area. Det Cardenas and I had a clear view of this activity, and the three female customers looked at us laughing and slightly embarrassed. I had been solicited for four lap dances, and declined them. During our entire visit, we watched twelve to fifteen stage performances. The dancers rotated on stage, and would rotate into the customer area soliciting lap dances. I also witnessed Det Medina and Cardenas being solicited several times for lap dances. Each of them accepted two lap dances during the time we were inside the business (See attached supplemental reports for details). While seated at the tipping bar, a female approached me and asked if I wanted a lap dance. I agreed and the female held my hand and led me to the benches and asked me to sit down. The female asked me if I REPORTING OFFICERpRunr#40o KM REVIEWERS NAME ID#DATE ADMIN _ READING BOARD DETECTIVE _ OTHER V wanted an all-nude or topless dance. The female explained that the all-nude dance would cost $40 and •**** topless would cost S20. 1 asked the female for an all-nude lap dance. '^^ • The female signaled the Disk Jockey of the lap dance and she sat down next to me. The female was waiting for the music to start in order to provide me with a full-length song during the lap dance. 1 asked the female what had happened to the dancer in the back earlier. She told me that the other girl had a seizure and they had to give her "mouth to mouth" in order to revive her. She said that the paramedics took her to the hospital. She also told me that two other dancer engaged in a physical altercation earlier that da3', however, that was resolved before it "gottoo bad". A new song started and the female then removed all her clothes and started the lap dance. I remained seated and clothed as the "female began to rub her naked body up and down on my chest She then slid down towards the floor between my legs. As she slid down, she rubbed her stomach, breasts, and mouth over my penis and groin area in an erotic manner. She continually rubbed her vagina up and down my thighs and would rub her breasts on my face. On several occasions she turned around with her back to me. She would then grind her vagina on my penis and groin area in order to sexually arouse me. On several occasion, with her back to me, she would reach behind her with her hands and rub my penis in order to sexually arouse me. She would then grab both of my hands and place them on her breasts. She directed my hands to rub her breasts. Her nipples became erect due to this activity and she made vocal sounds as if she were becoming aroused. On one occasion, she directed my hand onto her vagina. She also faced me on two occasions during this dance and placed her nipple on my mouth. She conducted two lap dances. I paid her for the lap dances and returned to my seat. 1 returned to tipping bar and continued to watch the stage shows. After a period of time, the disc jockey announced another "two for one" special on lap dances, another female employee approached me and asked me if I wanted a "two for one" lap dance. I agreed and she held my hand and led me to the benches. She asked me to sit down. The female said that she would conduct an all-nude lap dance for $40. I told her I only had $20. She then said that she would give a topless dance for $20. I agreed at which time she removed her top. She remained clothed with only G- string bikini bottoms. I remained seated and clothed as the female began the lap dance. The female continually rubbed her stomach, breasts, and face up and down my body, face, and between my legs. She rubbed her breasts and face on my penis and groin area in order to sexually arouse me. The female would turn her back to me and grind her vagina on my penis and groin area in an erotic manner. Once the songs ended, she asked if I wanted to continue. I declined and paid her for the lap dance. During this lap dance, I noticed one other lap dance occurring along the benches. The action of the other girl giving lap dance appeared to be consistent with what I experienced during my lap dance. At approximately 1756hrs, we left the location. REPORTING OFFICERPRUITTMOO ID*REVIEWERS NAME IDS DATE _ADMIN _ READING BOARD _DETECnVE _ OTHER of CX? -f Detectives Cardenas and Medina observed the same circumstances and events as I did, however, due to the close contact of the lap dances, and low lighting conditions, they were unable to observe the detailed encounters I had with the lap dancers. And 1 was unable to observe detailed encounters they had with the lap dancers. During the business check, Detectives Moore and Walton were outside the location in an unmarked police car for officer safety reasons. Detectives Moore and Walton told me that while they were watching the business from outside, they observed females exit the business and enter vehicles parked outside. After a short period of time, the females would return inside the business. They related that this occurred several times during our business check. REPORTING OFFICER PRUITT#400 REV ADMIN READING BOARD OTHER paw L_*(* ALHAMBRA POLICE DEPARTMENT .,—•> SUPPLEMENTAL REPORT W* On 04/06/00 at approximately 1540 hours, Detective John Pruitt #400 (Arcadia P.O.), Detective Cardenas #179 and 1 (Medina #205) entered the Golden Eyes Gentleman's Club located at 1580 Clark St., in the City of Arcadia. We were working in an undercover capacity to note any violations at the club, per the conditional use permit granted by the City of Arcadia. Upon entering the club, we were charged five dollars for admission. Once inside I noted that the club was dimly lit In the center of the club a dancing stage was surrounded by a "tipping bar" as described by the "DJ". We sat at the tipping bar and watched as a female dancer got undressed by end of a second song. After the dancer was finished dancing her second song, she then put her "bikini back on and then approached us for the tip. I placed two dollars on the table and when she approached me I handed her the money at which point she placed her hands around my head and pulled my face between her breasts and men thanked me. I was later approached by one of the dancers that had just finished dancing on the center stage and asked roe if I wanted a lap dance. I asked the dancer how much it cost, and she told me it was S20 for a topless and $40 for a full nude dance and she added that it was a "two for one special" meaning she would dance two songs nude for me for the price of one. I told the dancer mat it sounded good and she took my hand and escorted me to the south side of the club and had me sit down on a padded bench. Once at the bench the dancer undressed and then straddled my legs and then climbed unto the bench and began \ to rub her crotch area on my thigh. The dancer who was facing me began to rub her '**«"»' breasts in a sexual manner, then turned around and began to rub her buttocks on my groin area. The dancer continued to do the same for the length of two songs (approximately 4 minutes) and when the music ended she stood up got dressed and told me that it was forty dollars. I then returned to stage area and sat down to watch another dancer on the stage. During the time that I was sitting at the tipping bar, I watch dancers as they undressed on the stage and rubbed themselves in a sexual manner as if they were masturbating. After they were done dancing I noticed they would approach us and collect the tips and asked if we were ready for a lap dance. 1 declined, and said I was just going to -watch for a while. Another dancer later approached me and asked me if I wanted a lap dance. I agreed and again I was escorted to the padded bench on the south side of the club. After sitting down the dancer undressed and got down on her knees and placed her face on my groin area and rubbed her face on my groin area for approximately five seconds then stood up. The dancer climbed on top of the bench and began to rub her breasts and nipples as she straddled me. At one point the dancer rubbed her hand on my groin area as she danced then turned around and began to rub her buttocks on my groin area up and down for several seconds. After the music was over the dancer stood up got dressed and told roe it was forty dollars. I paid the dancer and walked back to the table. 7 It should be noted that a male, possibly Middle Eastern (based on his accent), approximately 45 years of age, who appeared to be the manager walked around the club and it was obvious that he was aware of the lap dances going on. I noted that the same male walked inside the club several times and appeared that he was supervising the club. On several occasions I noted that he walked by as the lap dances were being performed. It should be noted that the above mentioned male was the same male that was at the entry and received the money for the admission. At approximately 1800 hours we left the location. J.Medina #205 iP£>. (626) 570-5174 ALHAMBRA POLICE DEPARTMENT SUPPLEMENTAL REPORT page 1-2 On 4-6-2000 at approx. 1540 hrs., Detective Medina # 205, Detective Pruitt # 400 (Arcadia PD) and I entered the Golden Eyes Gentleman's Club (1580 Clark SL, Arcadia) in an undercover capacity. We were charged five dollars each to enter the business and were not searched at the door. We were not asked any questions regarding carrying any pagers, cellular telephones or weapons on our person prior to entering. Inside the club, I noticed that it was extremely dark making it hard to seethe opposite side of the club from the front doors. I noticed (3) male patrons inside the club with approx. (5-6) girls working. We sat down at the stage closest to the front door where there was .a female dancer performing. While seated at the stage, the female dancer who was wearing a bikini stepped off the stage and approached each one of us from the opposite side of the 1' tipping table. After approaching Det Medina and rubbing her body on him sexually, the dancer sat on the tipping table in front of me and wrapped her legs around my neck forcing my face against her crotch area. The female dancer man began thrusting her pelvic area against my face for approx. (5) seconds. The dancer than moved on to Detective Pruitt where she began rubbing her body against him sexually. The female than returned to the stage where she performed totally nude for the second song of her performance. I observed only (1) dancer on stage at a time. After the dancers second song, she would place her clothing back on prior to collecting her tips. The dancer than would approach each customer on the tipping table and ask if they would like a lap dance. If nobody on the tipping table (stage area) wished for a lap dance the female would than ask each customer at the tables located in the center of the club. The second female who performed for us approached me and asked if I wanted a lap dance? I asked her how much she would charge me for a lap dance? She said it was 20.00 dollars for a topless dance and 40.00 dollars for a total nude dance. I told her 1 wanted an all-nude lap dance. The dancer grabbed me by the hand and led me to the south side of the club were she sat me down on a padded bench along the south wall of the club. The dancer notified the DJ that she was going to do a lap dance. I believe the dancer notified the DJ for security reasons and to keep track of her dances. The dancer removed all of her clothes prior to beginning the lap dance. While standing in front of me, the dancer than grabbed the back of my head and forced my face in between her breasts. She man straddled one of my legs and began rubbing her crotch area back and forth on my knee. She than sat on my lap, facing me, and began thrusting her crotch area back and form against my groin area in a sexual manner. She man turned around and sat on my lap rubbing her buttocks against my groin area. Through out the song the dancer continuously rubbed her breasts and crotch area in an attempt to arouse me. Once the song ended, 1 paid the dancer 40.00 dollars and returned to the stage sitting area- After a period of time, we moved and sat down at a circular table towards the center of the club. Another female approached me and asked if I wanted a lap dance. I agreed and followed her to the padded bench on the south side of the club. After sitting down on the bench, the dancer asked page 2-2 me if 1 wanted a nude or topless dance. I told her 1 wanted a nude dance. She said it would be 40.00 dollars for a nude dance. 1 agreed. The dancer than ran over to the DJ's both to notify him that she was going to start a dance. Upon returning, she removed her clothing and started the dance. She began by nibbing her body up against my face and chest area. She rubbed her breasts back and forth across my face horizontally. She then moved down my body and nibbed her mouth against my groin area. She then turned around and sat in my lap and began rubbing her buttocks against my groin area. After the song ended, I paid her 40.00 dollars and returned to the table area to watch the stage show. I noticed that all lap dances were performed exclusively on the padded bench located on the south side of the club and that all lab dances were visible from every angle of the club. It was very clear to me that all female dancers were involved in giving lap dances and that the clubs management was aware of it and encouraged it At approximately 1800 hours, we left the club. Detective Cardenas (626) 570-5175 /O f/ ARCADIA POLICE DEPARTMENT CRIME/ INCIDENT REPORT 250 W. HuntngnnOr. CA0190200 VriG-GENERAUINCIDENT 1580 Clark St. (Golden Eyes Gentlemen's Club) REPORTING OFFICER Pruitt CODE SECTION i CASE*00-3179 CRIME BUSINESS CHECK CLASSIFICATION SUSPECT INFORMATION [ C NONE/ Q SEE ATTACHED SEE NARRATIVE -SSa—,-• RES iDOAY osoFfiwo,Ci FORCETYPE BCOMM JONIOHT isowwoo ;Q NO FORCED AUTO ; D UNKNOWN REPORTED kVD/Y i 6-2-00 2131 Q C-CRTSYRPT ATTEMPT Q ONLY Y OCC. FROM: WDTf TIME 6-2-00 1900hrs OCC. TO: M/D/Y TIME6-2-00 2100hrs DYES to* 400 BEAT 4 RDyAREA 36 Sri 0 DOM VIOL WEAPONTYPE :«rJ^-i w=r ' £2 0 NO WEAPONS QaOTHBIOAMttB»OUS«eAPOIO Y6S .mnEAWi O4MANOC.FEEr LAST NAME Pruitt .FIRST J. MIDDLE TYPE APT cm-STATE 2P BUSINESS ADDRESS {SCMOOU TYPE SLATE |250 W. Huntington Dr. Arcadia CA 91007 CITY STATE ZIP BUSINESS PHONE 626-574-5150 AQE DOB OCCUPATION Police Detective 'WORKING HOURS i DUP STATE VICTIM OP VIOLENT CRIME NOTIFICATION NEEDED DYES LAST NAME Garza FIRST J. MIDDLE CTE ZIP-•aDENCE ADDRESS TYPE APT CTTY BUSINESS ADDRESS (SCHOOL) TYPE SUITE . 1515 S. Colima Rd. Whittier CA. 90604 CITY STATE 2P RESIDENCE PHONE BUSINESS PHONE 562-946-7041 OCCUPATION Detective Seraeant WORKING HOURS STATE i VICTIM OF VIOLENT CHIME NOTIFICATION NEEDED LAST NAME Schlosser RESIDENCE ADDRESS BUSINESS ADDRESS (SCHOOL) TYPE 11515 S. Colima Rd. Whittier CA. 90604 BUSINESS PHONE562-946-7041 OCCUPATION Deputy/ Detective WORKING HOURS VICTIM OF VIOLENT CRIME NOTIFICATION NEEDED vert, w LICENSE nUMBcn STATE VIN OH MULL NUMBER COLOR-PRIMARY MISC. VEHICLE INFORMATION fVO NAME 4 ADDRESS REVIEWER'S NAME MO./DAY/YEAH DETECTIVE ASStONED •NT ENTRY I NAME ENTRY • VEHICLE ENTRY I • fFCTTENTW 3 ADMIN O HEADING BD ""DETECTIVE ZOTHEH City Ex 12 i.y ; CASE* 00-3179 6-2-00 2131Business Check TYPE SUfTE 11515 S. Colima Rd. Whittier CA. 90604 OCCUPATION Deputy/ Detective WORN NG HOURS 562-946-7041 vrmu OF VIOLENT CWMENOTIFICATION NEEDED RE3DEMCE ADDRESS BUSINESS ADDRESS (SCHOOL) RESIDENCE PHONE BUSINESS PHONE • WORNNO HOURS STATE • V1CT1UOFVKH.EKT : NOTIFICATION NEEDED PAflTYf ; LAST NAME *«E9OENCE ADDRESS RESIDENCE PHONE BUSINESS PHONE WORMNQ HOURS VICTIM OF VIOLENT CRIME{ NOTIFICATION NEEDED E9IOENCE ADDRESS AOONESS (SCHOOL)TYPE SUtTE CfTY BUSINESS PHONERESIOENCE PHONE WOfUONa HOURS VICTIM OF VIOLENT CRIMENOTIFICATION NEEDED 3 YES PARTY* LAST NAME rvpE APT cm BUSINESa PHONE VICTIM OFVKXCHTCRME ,-,,,__NOTIFICATION NEEDED GYES REPORTMa OFFICER REVIEWERS NAME OADMM OReAOINOBO O DETECTIVE QOTHER Dn 6-2-00. at approximately 1900nrs, LASO Vice Detectives Sergeant J. Garza. Deputy B. Schlosser, Deputy D. Chapman and I entered the location in an undercover capacity to investigate City Code violations, and other crimes occurring inside the location. Deputy Chapman and Sgt. Garza entered the location separate from Deputy Schlosser and I in order to make the appearance that we were not together as a group. Deputy Schlosser was equipped with a video surveillance camera. We paid the $10 per person cover charge entrance fee. We were not searched, and we were then allowed entrance into the club. Once inside the club, I noticed there were about ten male patrons inside. All patrons were seated at tables watching the stage show. We sat down at a table in the south portion of the building. There is a stage table that wraps around the entire stage area and is about one foot wide. I will refer to this table area as the "tipping bar" throughout the rest of this report. Along the entire length of the south wall, and about 40' feet of the east wall from south to north were padded benches. This area had about 4' feet of walkway in front of the benches. This area was raised higher than the table seating area, and was separated from the table seating area by approximately 4' foot tall railing. I noticed that the bench area along the south and east comer of the business had no overhead 'Anting, or lights directed into this area, making it very dark and hard to see, from even a short distance, ul my eyes adjusted. This area of the business I will refer to as the "benches" throughout the emainder of this report. While in the location, a female approached me and asked if I wanted a "special" dance. I asked what it entailed and she related that h is a lap dance in which she would dance topless for two songs for $20 or she would dance totally nude for three songs for $40. I accepted the "one for three" offer and she led me to the benches. At this point, a waitress approached me and asked me if I wanted to buy the female a drink. I declined this offer. I then heard the Disk Jockey announce over the sound system that there was a two for one special and a three for one special starting, and he encouraged customers to take a lap dance. The female then removed all of her clothes and started the lap dance. I remained seated and clothed as the female straddled my waist facing me. She began rubbing her breasts against my face. She then slid down to my waist while rubbing her vagina on my thigh. During the lap dance she continually rubbed her breasts and vagina on me in an erotic manner. She rubbed her legs, stomach, and breasts against my penis and groin area in order to sexually arouse me. On several occasions, she turned around with her back to me. She would then grind her vagina on my penis and groin area. During the lap dance, the female would stand with her back to^mfl and bend over exposing her vagina and anal area to me. She REPORTING OFFICER It* //pRunr#4oo \//REVIEWERS NAME ID*DATE _ADMIN READING BOARD DETECTIVE OTHER would look at me between her legs as she reached under with her hands rubbing her vagina and anus. Also, during the lap dance, she would turn her back to me and grind her vagina on my penis and groin area. As she did this, she would reach between her legs and rub my penis and groin area in an erotic manner. During the lap dance she would stand on the benches with her vagina about 3" inches from my face. She would then use her fingers to manipulate her vulva and labia folds in a masturbating manner. During the lap dance she would use both her hands and pull on her nipples causing them to become erect. Once the three songs ended, I paid her for the lap dance and returned to the table. During the time I was inside the location I was solicited and received three more lap dances from three different females. These lap dances were conducted in the same manner as the first one I described, and the same events occurred in each of the lap dances. The Disk Jockey also continually announced lap dance special during the time I was inside the location. During the time I was inside the business, I observed about 15 lap dances. The lap dances appeared to be consistent with the lap dances I received. I also noted that the stage performers routinely left the stage and approached the customers seated at the tipping bar during their stage performances. I also noticed that there were about seven to nine female dancers who performed the stage acts and also solicited lap dances. There were two female waitresses, one male cashier, one male Disk Jockey, and about five male bouncers. The male Disk Jockey would make the announcements, including announcing lap dance specials. I noticed that every time a female dancer gave a lap dance, they would contact a bouncer who was carrying a clipboard and he would make note of ft. t noticed that the stage dancers, after their performance ended, would usually put their clothes back on and walk up to the tip bar to collect their tips. They would usually accept the tip and kiss the customer on the cheek. Other dancers would walk up to the tipping bar fully nude and collect their tips. The tips were collected through hand exchange. During our entire visit, we watched several stage performances. The dancers rotated on stage, and would rotate into the customer area soliciting lap dances. During one stage performance, the dancer left the stage and walked up to us at the tipping bar. She then climbed on the tipping bar and pulled my face onto her clothed vagina. She then walked over to Sgt. Garza who was seated away from me at the tipping bar. She then climbed under the tipping bar and placed her face in his crotch. She continued to approach customers at the tipping bar and make some type of physical and erotic contact with them. I observed two televisions located behind the juice bar area. The TV's were broadcasting hardcore XXX pornographic movies and positioned for the patrons to view. I did not observed any signs or rules that described touching or physical contact. At approximately 2100brs, we left the location. REPORTING OFFICERpRunr#40o .ID* t I REVIEWERS NAME ID*DATE ADMIN READING BOARD _ DETECTIVE OTHER SUPPLEMENTAL REPORT This report is supplemental to Arcadia Police Department report under the above file number. I was requested by Officer Pruitt of the Arcadia Police Department to assist him in an investigation of the "Golden Eye" Gentleman's Club to determine if they were in violation of local municipal codes regarding "lap dancing" and "stage dancing". I entered the location with Officer Pruitt at approximately 7:00 p.m. We sat down at a table on the south side of the location. We stayed approximately two hours. During this time I witnessed twenty-two lap dances, both fully nude and partially nude. I also noted that the stage dancers would leave the stage they were dancing on and contact the customers in the "tipping bar" area. They would do this fully clothed, partially nude and fully nude. The stage dancers would get up on the "tipping bar", grab the male customers heads and place them between their breasts. Several of the females also crawled under the "tipping bar" and placed their faces in the male customers laps. I also noted that there was a television on the bar, which played pornographic movies the entire time we were inside the location. During our time inside the location I had a concealed camera on my person. I recorded many of the activities described above. Brian Schlosser, #218108 Detective Los Angeles Sheriffs Department Vice Detail f>v REPORTING OFFICER PRUITT #400 ID*REVIEWERS NAME ID*DATE ADMIN DETECTIVE .READING BOARD OTHER of SUPPLEMENTAL REPORT On Friday, June 2, 2000, at approximately 1900 hrs. I assisted the Arcadia Police Department in an undercover operation at the Golden Eyes Gentlemen's Club; a club in which female strippers dance on stage. The .purpose of the operation was to monitor the conduct and lega] compliance of employees at the location. While standing at the bar, at approximately 1920 hrs., I was approached by a female Hispanic, 22-24 yrs. of age, 5'0", 105 Ibs., with dark short hair, who asked me if I wanted a " lap dance ". She stated that it would cost $ 40.00 dollars. I agreed and the female led me by the hand to the rear corner area of the club and sat me down on a wall couch. The female stripped off her two piece bikini and began dancing within inches of me. She would kneel on the couch, with her legs straddled along side me, and place her breasts in my face. She would also turn around and rub her buttocks and vagina area on my groin area. This performance lasted approximately 2-3 minutes. A short time later I sat by the stage " tip area" and placed a $ 5.00 bill on the counter. The dancer, a female Hispanic, 22-24 yrs. of age, with long wavy light hair, wearing her two piece bikini, stepped off the stage while moving to the music and then crawled on the floor to where I was seated. The female 'iced her head below the counter/bar top and began to gently knawl my groin area. She returned to the age and finished the dance. She then returned for the $ 5.00 tip. At approximately 2000 hrs.,I was approached by a female Hispanic, 25-28 yrs. with medium brown hair, who was wearing a two piece bikini. She asked me if I wanted a " lap dance ** and I agreed to the $40.00 dance. She led me to the same rear area and stripped. She began dancing and rubbing her bare breasts in my face. She would then rub her buttocks and vagina area on my groin area. This performance also lasted for approximately 2-3 minutes. Later, while I was seated in the main spectator area, I was approached by two other females, both tall blonds, who asked me if I wanted a " lap dance ". I refused and they asked if I would buy mem a drink. J agreed and bought them a drink at $ 7.50 each. During the time I was in the location, I witnessed at least 8-10 customers getting " lap dances " in the same area.. I was not present the entire period of the operation because I would occasionally go outside and call to update assisting officers on the activity. I left the location at approximately 2100 hrs. For further information refer to supplemental reports from the other crew members. This report written by Sgt. Joe Garza # 031993, Major Crimes Bureau, Vice-Detail, L.A.S.D. REPORTING OFFICER PRUITT #400 ID*REVIEWERS NAME ID*DATE _ADMIN READING BOARD _DETECT1VE OTHER ARCADIA POUCE DEPARTMENT CRIME/ INCIDENT REPORT ZSDW.HtnlngmnDr. AnadB.CA CAO190200 CODE SECTION CASE* 00-4442 CRIME BUSINESS CHECK CLASSIFICATION TYPE i DDAY O600-1800 iD FORCE !O»jcoMM i ONIQ'HT-leoo-oeoo ID NO FORCE 3 AUTO ID UNKNOWN SUSPECT INFORMATION DNONE/SEE NARRATIVE : ATTACH CASE TYPEFfBDNY-ii*4«sa PS-GENERAL/ JNODENT DC-CRTSYRPT ATTEMPT ONLY OCC. FROM: M/D/Y TIME 8-4-00 0815 REPORTED/ M/D/Y Tl 8-TT-OO ' 1834 OCC.TQ-.WDTf TIM! 8-4-00 2300 hUDCATON1580 Clark St. (Golden €yes -Gentlemen's Club) EM ,ADDtnoNAL DYES jREPORTI v-Pru JNV P INQ OFFICER It* PARTY* 1 ax •-• 400, SEAT 4 RD/AREA 36 SHIFT 0 DOMVKX' WEAPON TYPE O^NDFBCUTTMaMST n v_ lOONOWEAPONS OaOmBIDANaBWUSWIENLJ TES , D!.!^^^^ D4HANDS.-FEET LAST NAME FIRST MIDDLE Pruitt J- RESIDENCE ADDRESS TYPE APT CITY STATE 2IP | BUSINESS ADDRESS (SCHOOL) • TYPE SUITE 250 *L :Hunti.Tigton Dr. Arcadia CA. 91007 STATE 2H> I RESIDENCE PHONE BUSINESS PHONE 626-574-5150 OCCUPATION Police Detective WORKING HOURS IJMCE •SEX AGE DOB DL#STATE VICTIM OF VIOLENT CRIME NOTIFICATION NEEDED DYES LAST NAME Lewis MIDDLE I RESIDENCE ADDRESS TYPE APT cmr STATE I aUSINESS ADDRESS (SCHOOL)TYPE SUITE CITY •250 "W. Itiuntinqton Dr. Arcadia CA. 91007 RESIDENCE PHONE I -RACE -SEX BUSINESS PHONE 626-574-5150 AGE DOB DUt OCCUPATION Police Detective STATE WORKING HOURS VICTIM OF VIOLENT CRIME NOTIHCAT10N NEEDED O^VES PARTY*LAST NAME FIRST MIDDLE RESIDENCE ADDRESS TYPE APT CITY STATE 2IP BUSINESS ADDRESS (SCHOOL)TYPE SUITE CITY STATE ZIP RESIDENCE PHONE BUSINESS PHONE SEX AGE OCCUPATION DOB DL* VEH.#LICENSE NUMBER STATE V1N OR HULL NUMBER YEAR WORKING HOURS VICTIM OF VIOLENT CRIME NOTIFICATION NEEDED DYES MAKE SECONDARY MODEL BID Jto40 40 E'cDMC HOiataos 3PH HMTNUCK5nt FUU.BZE 8VN VAHw umaiaiHOm cmat INTERIOR MISC. VEHICLE INFORMATION ICHPIBO RIO NAME & ADDRESS IHEVEWERS NAME IWODENT ENTRY NAME ENTRY LD. NUMBER MONDAY/YEAR DETECTIVE ASSIGNED DATE DUE VEHICLE ENTRY DADMIN DREADING BD DOETECnVE D°THEH_ City Ex. 16 On 8-5-00, Detective Lewis and 1 went to the location in an undercover capacity to investigate City Code violations, and other crimes occurring inside the location. We tried entering the location at 2000hrs, however, the cashier inside the business told us thafthey were in the middle of a shift-change and there was only one dancer inside. He continued to tell us that it would :be better at 21 OOhrs ibecause the dancers would ibe "back. We agreed to come back at 21 OOhrs, and we -were given "V3P passes that allowed us free entry. At approximately 211 Ohrs, we arrived back at the location and were granted free admission with our VIP passes. Amale who acted as ahouncer physically searched us. We were asked if we had cell phones and pagers. We showed them that we did not have pagers or phones. We -were then allowed entrance into the •club. Once inside the .club, I noticed there were about eight male patrons inside. All patrons were seated at tables watching the stage show. We sat down at a table in the west portion of the building between the stage and bar. There is a -stage table that wraps around the entire stage -area and is about one foot wide. I will refer to -fhig table area as the "tipping bar" throughout the rest of this report Along the .entire length-of the south wall, and about 40' feet of the east wall from south to north were padded tenches. Ibis .area had about 4' feet *>f walkway in front of the benches. This area was raised .higher than the table searing area, and was separated from the table seating area "by approximately 4' foot tall railing. I noticed ihat the Tjench area along the south and .east comer of the business had no overhead lighting, or lights directed into this area, -malcrng it very .dark and hard to see, from even a short distance, until my «yes adjusted. This area of the business I will refer to as the "benches" throughout the remainder of this report "While in the location, a female approached me and asked if I wanted a dance. I agreed and she led me to ihe "benches. Once at the benches, I noticed a male employee take notice of us and he wrote on a clipboardas if keeping track of the dance that was to be performed. The female then asked me if I wanted a topless dance for $20, or an all-nude dance for $40. I told the female that J wanted an all-nude dance. The female then removed all of her clothes and started the lap dance. 1 remained seated and clothed as the female turned around with her back to me. She then grinded her vagina on my penis and jjroin area. She .then turned around and began rubbing her breasts against my face. She then slid down to my waist while rubbing her vagina on my thigh During the lap dance she continually rubbed her breasts and vagina on me in an erotic manner. She rubbed her legs, stomach, and breasts against my penis and groin area in order to sexually arouse me. On several occasions, she turned around with her back to me. She then grinded her vagina on my penis and groin area. During the lap dance she stood on the benches with her vagina about 3" inches from my face. She would then use her fingers to manipulate her vulva and labia folds in a masturbating manner. During the lap dance she REPORTING OFFICERpRunr#4oo ID*REVIEWERS NAME ID*DATE ADMW _ _ READING BOARD _DETECTTVE _ OTHER - v would use both her hands and pull on her nipples causing them to become erect. Once the song ended. I paid her for the lap dance and returned to the table. After a period of time, a female employee sat down at our table with us. "While she talkecf with us, a waitress approached us and asked if we wanted to buy a drink for the lady. 3 declined this offer. During -our light conversation with the female, she stated that she recognized us •"from somewhere". 1 told her that I had been inside the business before and talked with her then. She then directed her question to Detective Lewis and continued to indicate that she felt she knew him from somewhere. The female employee later left -our table. At one point, another female employee approached us and sat at our table. The waitress approached me and asked if 3 •wanted to buy the lady a drink. 3 agreed and the female sat with us fora period of time. Just prior to the beginning -.of a 'Stage dance, 3 neard the Disk Jockey announce that they welcome the Arcadia Police and LA Sheriffs Department officers who were inside -the location. 3t "was unclear whom the Disk Jockey was referring to because 1 did not observe any other law enforcement officers inside the location. I 'did notice, however, that after the announcement the activities Temained the same and customers continued to receive lap dances. ~ During the time 3 was inside the location 3 was solicited and received ;one more lap .dance from a different female. This lap dance "was conducted in the same -manner as the first ,one I described, and the same events occurred during the dance. During the time 3 -was inside the business, 3 observed about '9 lap dances. The lap dances appeared to "be consistent with the lap dances 3 received. The customers also increased to about twenty, some -of who were female. 3 also noticed that there -were about seven to ten female dancers who performed the stage acts and also solicited lap dances. There were two female waitresses, one male cashier, one male Disk Jockey, and about five male bouncers. The male Disk Jockey would make the announcements. 3 noticed that every time a female dancer ;gave a lap dance, they would contact a bouncer who was carrying a clipboard and he would make note of it 3 noticed that the stage dancers, after their performance ended, would usually put their clothes back on and walk up to the tip bar to collect their tips. They would usually accept the tip and "kiss the customer on the cheek. The tips were collected through hand exchange. During our entire visit, we watched several stage performances. The dancers rotated on stage, and would rotate into the customer .area soliciting lap dances. As noted in previous business checks inside the location, I did not hear the Disk Jockey announce lap dances. As in previous business checks, I did not observed the two televisions located behind the juice bar area, which previously broadcasted hardcore XXX pornographic movies. 3 did not observe the stage REPORTING OFFICER PRUTTTMOO IDS REVIEWERS NAME ID*DATE ADMIN .HEADING BOARD DETECTIVE OTHER "2 wee "S of dancers leave the stage area during their performance, as previously observed on previous business checks. I did not observed any signs or rules that described touching or physical contact. ~~ Towards the end .of our business check, the female employee who I lad bought a drink for sat next to me at the table. TWhBe making -small talk, she told me that some of the dancers m the back were telling her mat undercover police officers were inside the location. As she said this she was visually scanning the room. 3 asked her if she knew which .customers were cops and she said that she did not She Ihen told me that she didn't -care if the police were inside the location because she was determined to make her moneyTegardless. At approximately 2300hrs, we left the location. REPORTING OFFICER H» \ \ PRUUT#400 \\... REVIEWED N^jagjSSP* &C7~yr ^•40 _ADMIN DETECTIVE READWG BOARD _OTHER paae fof DCONT1NUAT1ON J2SUPPLEMENTAL RSKDRT 2SDW.H»n*flpunDr. PARTY*LAST NAME CASE* CMU£I DATETTie REPORTTAKEN OASSIHCATIW HD* FIRST MOOUH TYPE APT COY STATE Z*> BUCIaH I I ^1 • m* • • 1tv*frnfv**i ~Z£T& z^-7- /itj^jrj^ifTT)/^; £? TVfE SUITE CITY STATE ZIP OCCUPATION WDRMHO HOURS SEX tOE DOC :INV PARTY-* STATE VICnu OF VIOLENT CHIUE NOTIFICATION NEEDED DYES LACTNAME FIRST TYPE JUT cmr STATE ZIP TYPE SUITE CfTY STATE ZIP fcfl (RESIDENCE PHONE BUSMESSPHONE H RACE SEX AGE DOB ^M kB JtMV 1 -PARTY* LASTNAME OCCUPA-nON WORMNQ HOURS OJ STATE VICTIM OF VIOLENT CRIME NOTIFICATION NEEDED DYES FIRST MUDDLE RESOOCE ADDRESS TYPE APT CITY aUSWESS ADDRESS (SCHOOL)TYPE SUITE STATE ZIP HRESOENCE PHONE BUSINESS PHONE OCCUPATION WOfWNQ HOURS RACE SEX AQE DOB STATE VICTIM OF VIOLENT CRIME NOTIFICATION NEEDED DYES 1NV PARTY*LAST HUE FIRST RESIDENCE ADDRESS TYPE APT CTTY STATE ZIP BUSMESS ADDRESS (SCHOOL)TYPE SUITE STATE ZIP .RESIDENCE PHONE •RACE 3EX BUSINESS PHONE AQE DOB OCCUPATION DU STATE WORKING HOURS VKTHM OF VIOLENT CRIME NOTIFICATION NEEDED DYES PARTY*LAST NAME FWST TYPE APT STATE ZIP S ADDRESS (SCHOOL)TYPE SUITE STATE ZIP • PHONE BUSINESS PHONE OCCUPATION •RACE DL*STATE { VICTIM OF VIOLENT CRIME NOTFICATION NEEDED DYES HtPOH IMQ OFFICER REVIEWERS NAME INODEHT ENTRY MX). ENTRY NAME ENTRY PROP ENTRY VEMCLE ENTRY FCN ENTRY DATE QADMIN OREADINQBD DDETECnVE l~l OTHER Arcadia Police Department Cast Number: Incidcnt/Supplcmaual Report V£ 00-4442 On 08-04-2000, at approximately 2015 hours, Detective Pruitl and 1 (Detective Lewis), entered Golden Eyes Gentleman's Club, in an undercover capacity to investigate complaints of City Code violations, and other crimes occurring inside the location. — Once at the location, I noticed 2 male adults that I recognized as Doorman/Bouncers for the "business. Both were dressed in formal type attire and were equipped with radio communications as evident by the radio on their waist and the attached headsets they •were wearing. Both were standing outside the location in front of the doors. Further, 1 observed two females (1) Hispanic, early 20's and (1) White, early 20's, to be standing outside as well. As we entered the Poyer to the business, we were greeted by a male who was standing behind the front desk, operating the cash register. At this time he advised us that they were in between -shifts and 1hat there was only one -dancer inside. He further stated that the next shift would start at 2100 hours and that more dancers would be inside at that time. Based on this, we elected to exit the club and come back at 2100 hours. In doing so, we were stopped by one of the doormen who apologized for the inconvenience .and then handed us two free passes to xe-enter the club later for free. We accepted these passes and left the location. At approximately 2110 hours, we returned to the club and entered back into the Foyer of the location. As we handed the person at the register our free pass, one of the two doorman asked us to step a side. In doing so, I "was asked if I possessed any pagers, cell phones, or other electronic devices. After telling him no, the Doorman stepped behind me and asked me to raise my arms in the air so that I could be searched. He than proceeded to conduct a complete pat down search of my person prior to letting me into the club. Detective Pruitt, who was hi front of me was handled hi the same manner. Once inside the club, 1 noticed that there were approximately 7-8 other male patrons inside, Who were sitting at various tables and along a long stage table which wraps around the entire stage. This long 1' wide table through my training and experience is called the "tipping bar". As we proceeded to walk south through the club, I noticed that a large sign positioned on a stand to say "this section closed". This sign blocked off approximately half of the club (south side). 1 further noticed that there was little to no lighting hi this area that was closed. I did not observe any sings posted regarding rules relating to personal contact Further, Detective Pruitt advised me that on a prior -visit, he observed two television monitors in the area of the Juice Bar to be showing Pornographic Movies. When I walked by this Bar, I did not observe the television monitors at this time. Reporting Officer: Reviewer's Name: Date: Detective: Lewis, R. #451^ SJ Distribution: {<?Reading Board Detectives Administration Other: Arcadia Police Department Case Number: Jncident'Supplemcntal Raton RE (10-4442 After sitting down at a table on the south side, which was open. 1 was approached by a waitress, who took my drink order. Upon her return, she served me a non-alcoholic drink, and advised me that the cost was SI 0.00 with unlimited re-fills. During this same time, I observed one female dancer on stage. This dancer remained on stage forlwo songs, and by Ihe end of the second song, she would be completely nude. The -dancer would than exit the stage and put her clothing back on before walking around the tipping bar .to .collect tips. As this -dancer collected her tips, she would lean forward and grab each patron with her hands that proceed to give *ach of them a kiss on the cheek. I was then approached by a female Asian Pressed in -a two piece white lace lingerie. She said ""hi my name is Kate". She than asked me if I would like a dance. I asked her what type of dance. Kate told me for $20.00 I could have a topless lap dance and for $40.00 she would give me .an.all nude lap dance. I than agreed and she took my hand and said "come with me". She Jedme to me south/west wall of ihe^club,pasttheareamarked '"Closed". Along this wall, were padded benches which ran the entire length of the south wall and part of the west walL Approximately 4' in front •of ihe benches was •& railing that separated the rest of the club. Kate had me sit-down on the bench. At this time anew song started and she removed ber top and began to dance. :I remained seated and clothed as she straddled my waist facing me. "While dancing, she began rubbing her breasts against my chest She than raised her body Tip and after pinching both of her nipples with her fingers, she Tubbed her breasts on my iace. During this lap -dance she continued to rub her ibreast on me in an erotic manner. At the end of the song, Tfrpte said "^didn't you want an all nude dance". Before 3 -could answer, she said ~"]f so I will make it a good one". 3 .agreed and -she .removed her panties and again straddled me by placing one leg in between my legs and the other over my left leg. She began rubbing her body against mine, manipulating her breasts against my chest and face repeatedly. She then began to slide her body down my leg rubbing her vagina against my thigh in an erotic -manner She then opened my legs with her hands and ran her hands over my penis as she stood straight .up. She then turned around and while feeing away from me, she proceeded to sit in my lap and grind her vagina against my penis and groin area in an attempt to arouse me. "While still facing away from me, she placed her left foot on the bench and bent forward exposing her vaginal and anal area to me (5-6 inches from face). She then reached around with her left hand and inserted her middle finger into her vagina several times. After removing her finger from her vagina, she used her thumb and middle finger to "flick" her finger in my face causing a small amount of vaginal secretions to strike my face. She continued to rub her -vaginal and anal area with her hand while sitting on my lap. Further, on several occasions, she placed my hands on her buttocks and thighs. When the song ended, she stood up and while putting her clothing back on, asked me "did you like that". She then informed me that $60.00 was owed for the two dances. Reporting Officer. Reviewer's Name: Date: Detective: Lewis, R. #451XL/ I Distribution: Reading Board Detectives Administration Other Arcadia Police Department Case Number: Incident/Supplemental Report RE 00-4442 ] then returned to the table where 1 observed several more patrons had entered the club and sat down at various tables and around the tipping bar. I observed approximately 3-4 stage shows, in which dancers rotated on stage for two songs. During these songs, the dancers remove their clothes .and proceed to rub themselves in a sexual manner as if flfey were masturbating. After each show, the dancer would dress and then walk around the •tipping ibar to collect tips. 3n dong 50,1 -observed one dancer to allow patrons to place money into various locations along her Thong underwear. Several other dancers collected tips topless and kissed patrons on the cheek while doing so. While observing stage shows, we were approached by two dancers at different times who sat down and made small talk. During on encounter, a dancer eluded that she recognized us from .somewhere. See Detective Pruitt's report for iurther. Shortly after this, the D J. made an announcement that Arcadia Police and L-A.S.D. Officers were in the club, and asked the patrons to welcome them by -clapping. Based on this, we clapped as well and continued to go about our business. After a short time, I was approached by a different dancer who solicited a dance. 1 accepted this offer and she told me to walk back to the bench area and -to "sit in the middle"- As I did this, I could see that she went to get the attention of a bouncer. He tb«" walked closer to .our location and made what appeared to -be a notation .on a clipboard he was holding. Prior to her starring the dance, I made a comment to her that it appeared to he a .slow night With this, .the dancer told me that she would ask the D J. if she could give me a ""two for one", indicating two songs for -one price. After speaking with the DJL, she -returned and told me that they said yes. She "man told me that an all nude dance for two songs would be $40.00. 1 agreed and she asked me for payment up front. After .giving her Ihe money, she removed her clothes and performed the lap dance„ This dance was conducted in the same manner as the first, with the dancer grinding her vagina on my thigh, penis and crotch area. She further manipulated her breast and vagina area in an -erotic -manner On one occasion, she rubbed her erect nipples across my lips several limes. At the conclusion of the two songs, she dressed and thanked me for the dance. I then returned to my table, where we finished our drinks and left the location at approximately 2300 hours. Refer to Detective Pruitt's report for further information of violations observed. Reporting Officer: -^ ReviewerJrJS^jrfe: Date: Detective: Lewis, R. #451 Distribution: Reading Board Detectives Administration Other. Page 1 Copr. ® West 2001 No Claim to Orig. U.S. Govt. Works 183 F.3d 1108 99 Cal. Daily Op. Serv. 5594, 1999 Daily Journal D.A.R. 7159 (Cite as: 183 F.3d 1108, 1999 WL 493273 (9th Cir.(CaL))) United States Court of Appeals, Ninth Circuit. 4805 CONVOY, INC., a California corporation, Plaintiff-Appellant, v. CITY OF SAN DIEGO, a political subdivision of the State of California, Defendant-Appellee. No. 97-55295. Argued and Submitted June 5, 1998. Filed July 14, 1999. Operator of adult business that presented nude dancing brought facial challenge to city's nude dancing ordinance, asserting that licensing, revocation, and suspension provisions of ordinance violated First Amendment. The United States District Court for the Southern District of California, Napoleon A. Jones, J., granted summary judgment for city, and operator appealed. The Court of Appeals, Hug, Chief Judge, held that: (1) operator had standing to challenge ordinance's suspension and revocation provisions, but not its licensing provisions; (2) time limits for administrative review of suspension or revocation were unnecessary because status quo was preserved pending administrative appeal process; but (3) ordinance did not sufficiently provide for prompt judicial review. Reversed and remanded. West Headnotes [1] Constitutional Law k90.4(3) 92k90.4(3) Nude dancing is a form of expression entitled to First Amendment protection and subject only to reasonable time, place, and manner restrictions. U.S.C.A. Const.Amend. 1. [2] Federal Courts k776 170Bk776 Standing is a question of law reviewed de novo. [3] Constitutional Law k38 92k38 [3] Constitutional Law k42.2(l) 92k42.2(l) A successful First Amendment challenge to the facial constitutionality of a law invalidates the law itself; thus, facial challenges are allowed not primarily for the benefit of the litigant, but for the benefit of society, to prevent the statute from chilling the First Amendment rights of other parties not before the court. U.S.C.A. Const. Amend. 1. [4] Constitutional Law k90(l) 92k90(l) An "as-applied" challenge to a statute under the First Amendment contends that the law is unconstitutional as applied to the plaintiff's particular expressive activity, even though the law may be capable of valid application to others; thus, a successful as-applied challenge does not invalidate the law itself, but only the particular application of that law. U.S.C.A. Const.Amend. 1. [5] Constitutional Law k42.2(l) 92k42.2(l) Operator of business that presented nude dancing had standing to bring facial challenge, under First Amendment, to revocation and suspension procedures of city's nude dancing ordinance, after city suspended operator's license, but operator lacked standing to challenge licensing provisions, because operator already had a license and would not be subject to licensing provisions in the future. U.S.C.A. Const.Amend. 1. [6] Federal Civil Procedure k!03.2 170Akl03.2 In order to bring an action in federal court, a Page 2 plaintiff must have suffered an injury in fact, that is, some threatened or actual injury resulting from the putatively illegal action. [7] Federal Civil Procedure k!03.2 170Akl03.2 Abstract injury is not enough to meet standing requirement of injury in fact; rather, plaintiff must show that he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct and the injury or threat of injury must be both real and immediate, not conjectural or hypothetical. [8] Constitutional Law k82(4) 92k82(4) Under the "overbreadth doctrine," a plaintiff may challenge an overly broad statute or regulation by showing that it may inhibit the First Amendment rights of individuals who are not before the court; that is, the plaintiff can challenge a statute on the ground that it is unconstitutional as applied to someone else, even if his own conduct is not protected under the First Amendment. U.S.C. A. Const. Amend. 1. [9] Constitutional Law k42.2(l) 92k42.2(l) A plaintiff whose conduct is protected may bring a facial challenge to a statute that he contends is unconstitutional under the First Amendment, without having to employ the overbreadth doctrine, by arguing that the statute could never be applied in a valid manner and would chill the speech of others. U.S.C. A. Const. Amend. 1. [10] Federal Courts k776 170BR776 Court of Appeals reviews de novo an order granting summary judgment on the constitutionality of a statute or ordinance. [11] Constitutional Law k90.4(3) 92k90.4(3) [11] Theaters and Shows k3.50 376k3.50 City ordinance governing suspensions and revocations of nude dancing licenses was not unconstitutional for failure to include time limits on administrative review, because ordinance provided for automatic stay of enforcement of suspension or revocation throughout administrative appeal process, and there was thus no risk of suppression of protected activity as result of delayed proceedings. U.S.C.A. Const. Amend. 1. [12] Constitutional Law k90.4(3) 92k90.4(3) [12] Theaters and Shows k3.50 376k3.50 City ordinance governing suspension and revocation of nude dancing licenses did not provide for prompt judicial review, and was thus facially invalid under First Amendment, as ordinance contained no express time limits or guarantee of prompt hearing or decision and, although statutory scheme permitted stay of enforcement pending judicial review, grant of stay was discretionary and thus gave rise to possibility of suppression of protected expression. U.S.C.A. Const.Amend. 1; West's Ann.Cal.C.C.P. § 1094.5(g). *1109 A. Dale Manicom, San Diego, California, for the plaintiff- appellant. Grant Richard Telfer, Deputy City Attorney, San Diego, California, for the defendant-appellee. Appeal from the United States District Court for the Southern District of California; Napoleon A. Jones, District Judge, Presiding. D.C. No. CV-95- 03801-NAJ/CGA. *1110 Before: HUG, Chief Judge, KOZINSKI, Circuit Judge, and FITZGERALD, District Judge. [FN1] FN1. The Honorable James M. Fitzgerald, United States District Judge for the District of Alaska, sitting by designation. HUG, Chief Judge: **1 4805 Convoy, Inc. ("Convoy"), which operates a business that presents nude dancing, brought this facial challenge under 42 U.S.C. § 1983 asserting that the City of San Diego's ("City") nude dancing licensing ordinance was unconstitutional. The district court granted summary judgment in favor of the City, concluding that the City's licensing scheme provided adequate procedural safeguards and that Convoy therefore failed to show that the scheme was facially unconstitutional. Convoy filed a timely appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we REVERSE and REMAND. FACTUAL AND PROCEDURAL BACKGROUND Convoy operates a business which features both male and female nude entertainers. In 1987, Convoy obtained a Nude Entertainment License, which is required of all businesses that present nude dancing. San Diego, Ca., Municipal Code ("SDMC") §§ 33.3605, 33.3606. The SDMC also contains operating regulations for Nude Entertainment Businesses, including the requirements that nude dancers be licensed and that they stay at least six feet away from patrons. SDMC § 33.3610. The City alleges that during an inspection of Convoy's business, officers determined that Convoy broke both of these rules during an "amateur night" by allowing unlicensed women to dance topless and closer than six feet to the patrons. In a written notice of October 3, 1995, the City suspended Convoy's license for two weeks pursuant to SDMC §§ 33.0401 and 33.3616, which provide for the suspension and revocation of a license for violating the regulations. Convoy administratively appealed the suspension of its license, and the suspension was stayed during the administrative appeal process, pursuant to SDMC § 33.0501. The hearing officer ruled on Convoy's appeal on February 20, 1996, holding that Convoy had violated § 33.3610(a) (unlicensed dancers), but not § 33.3610(f) (six-foot rule), and reduced the length of the suspension from fourteen to seven days. Convoy exercised its right to a review of the hearing officer's decision by the Public Services and Safety Committee ("Committee") of the City Council, which denied the appeal on March 22, 1996. On June 18, 1996, Convoy filed a Petition for Writ of Administrative Mandamus, pursuant to Cal.Code Civ. P. § 1094.5, in the Superior Court of California in San Diego County. The court issued a Judgment Denying the Writ of Mandate on April 7, 1997, but ordered the suspension of Convoy's license stayed pending Page 3 resolution of Convoy's federal district court suit and this appeal. In addition to its administrative appeals and state court review, Convoy sought relief concurrently in the federal courts. On November 22, 1995, Convoy filed suit in federal district court to enjoin the City from suspending Convoy's license under the existing administrative scheme. Convoy alleged that the SDMC provisions regulating the issuance, suspension, and revocation of licenses for nude entertainment businesses were unenforceable because they unconstitutionally restrained speech by failing to provide adequate procedural safeguards. On January 12, 1996, the district court granted Convoy's request for a preliminary injunction pending completion of any judicial review of the license suspension. **2 Convoy filed a motion for summary judgment in the district court on July 15, 1996, seeking an order permanently enjoining *1111 the City from suspending its license and declaring the City's licensing scheme unenforceable as an invalid prior restraint. In response, the City filed an opposition which included a cross-motion for summary judgment. The district court granted summary judgment in favor of the City on October 22, 1996, concluding that the City's licensing scheme provided adequate procedural safeguards and that Convoy therefore had failed to show that the City's scheme was unconstitutional on its face. On November 1, 1996, Convoy filed a motion to alter or amend the judgment, pursuant to Fed.R.Civ.P. 59(e). The motion was denied on January 27, 1997, and Convoy filed a timely notice of appeal on February 19, 1997. 1. Standing DISCUSSION [1][2] As an initial matter, we must determine whether Convoy has standing to bring a facial challenge under the First Amendment to the City's licensing scheme. [FN2] Standing is a question of law reviewed de novo. See Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998). FN2. Nude dancing is a form of expression entitled to First Amendment protection and subject only to reasonable time, place, and manner restrictions. See Barnes v. Glen Theatre, Inc., 501 Page 4 U.S. 560, 565-66, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (plurality opinion). Despite the numerous pages the City devotes to discussing the issue, Convoy does not dispute that the restrictions on nude dancing, such as the licensing of dancers or the six foot distance requirements, are reasonable time, place, and manner restrictions. [3][4] "A successful challenge to the facial constitutionality of a law invalidates the law itself." Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998). Thus, facial challenges "are allowed not primarily for the benefit of the litigant, but for the benefit of society-to prevent the statute from chilling the First Amendment rights of other parties not before the court." Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 958, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). [FN3J FN3. In addition to a facial challenge, a party may challenge a statute "as-applied." This type of challenge contends that the law is unconstitutional as applied to the plaintiffs particular expressive activity, even though the law may be capable of valid application to others. Foti, 146 F.3d at 635. Thus, a successful "as-applied" challenge does not invalidate the law itself, but only the particular application of that law. Id. However, in this case Convoy seeks to invalidate the licensing, revocation, and suspension provisions of the City's ordinance through a facial challenge. [5] We have previously observed that facial challenges under the First Amendment are permitted "when the legislation allegedly vests government officials with unbridled discretion" and "when there is a lack of adequate procedural safeguards necessary to ensure against undue suppression of protected speech." Baby Tarn & Co., Inc. v. City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir. 1998). Convoy asserts that because it challenges the City's licensing scheme as lacking constitutionally required procedural safeguards, it has standing under the Supreme Court's "overbreadth" doctrine to challenge the licensing provisions of the City's ordinance as well as the license suspension and revocation provisions applicable to Convoy's situation. We agree that Convoy has standing to bring a facial challenge to the ordinance's revocation and suspension procedures, but hold that it cannot challenge the licensing provisions. [6][7] In order to bring an action in federal court, a plaintiff must have suffered "an injury in fact; that is ... some threatened or actual injury resulting from the putatively illegal action...." Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 392, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988) (internal quotation marks omitted). To meet this requirement, "[ajbstract injury is not enough. The plaintiff must show that he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct and the injury or *1112 threat of injury must be both real and immediate, not conjectural or hypothetical." City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (internal quotation marks omitted). Thus, a "plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Munson, 467 U.S. at 955, 104 S.Ct. 2839 (quoting Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). **3 [8][9] However, under the Supreme Court's "overbreadth" doctrine, a plaintiff may challenge an overly broad statute or regulation by showing that it may inhibit the First Amendment rights of individuals who are not before the court. See, e.g., Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798-99, 104 S.Ct. 21 18, 80 L.Ed.2d 772 (1984); Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 634, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980). That is, the plaintiff can challenge a statute on the ground that it is unconstitutional as applied to someone else, even if his own conduct is not protected under the First Amendment. See Foti, 146 F.3d at 635 (citing Vincent, 466 U.S. at 797, 104 S.Ct. 2118). [FN4] The overbreadth doctrine is based on the observation that "the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court." Forsyth County v. Nationalist Movement, 505 U.S. 123, 129, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992); see also Lind v. Grimmer, 30 F.3d 1115, 1122 (9th Cir. 1994) (overbreadth doctrine is designed to avert a potential chilling effect on speech). Thus, this doctrine "serves to overcome what would otherwise be a plaintiff's lack of standing." Nunez v. City of San Diego, 1 14 F.3d 935, 949 (9th Cir. 1997). Page 5 FN4. Of course, a plaintiff whose conduct is protected may also bring a facial challenge to a statute that he contends is unconstitutional, without having to employ the overbreadth doctrine, by arguing that the statute could never be applied in a valid manner and would chill the speech of others. See Foti, 146 F.3d at 635; Nunez v. City of San Diego, 114 F.3d 935, 949 (9th Cir.1997); Tucker v. State of CaliforniaDep'tof Educ., 97F.3d 1204, 1217 n. 10 (9th Cir.1996); Lind v. Grimmer, 30 F.3d 1115, 1122 (9th Cir. 1994). As we conclude below, this scenario describes Convoy's challenge to the City's license suspension and revocation procedures. According to the Supreme Court, the crucial issues in determining overbreadth standing "are whether [the plaintiff] satisfies the requirement of 'injury-in- fact,' and whether it can be expected satisfactorily to frame the issues in the case." Munson, 467 U:S. at 958, 104 S.Ct. 2839. Thus, [the] slender [overbreadth] exception to the prudential limits on standing ... does not affect the rigid constitutional requirement that plaintiffs must demonstrate an injury in fact to invoke a federal court's jurisdiction. Rather, the exception only allows those who have suffered some cognizable injury, but whose conduct is not protected under the First Amendment, to assert the constitutional rights of others. Bordell v. General Elec. Co., 922 F.2d 1057, 1061 (2nd Cir. 1991) (citations omitted); see also Bigelow v. Virginia, 421 U.S. 809, 816-17, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975) (in order to have overbreadth standing, a plaintiff "must present more than allegations of a subjective chill. There must be a claim of specific present objective harm or a threat of specific future harm." (internal quotations omitted)); Phelps v. Hamilton, 122 F.3d 1309, 1326 (10th Cir. 1997) ("[A] plaintiff bringing a facial challenge to a statute on First Amendment grounds must still satisfy the 'injury-in-fact' requirement in order to demonstrate standing."). **4 With regard to the licensing provisions, Convoy cannot satisfy the "injury-in-fact" requirement. It is undisputed that Convoy already has a license, which was issued by the City in 1987. Moreover, Convoy cannot assert that it will ever again be subject to the licensing provisions, because *1113 it has never indicated that it intends to pursue another license. Thus, Convoy fails to demonstrate an "injury-in-fact" related to the licensing provisions of the City's ordinance, and therefore has no standing to challenge those provisions. However, there is no question that Convoy can satisfy the "injury-in-fact" requirement with regard to the revocation and suspension procedures employed by the City in suspending Convoy's license. See Desert Outdoor Advertising, Inc. v. City of Moreno Valley, 103 F.3d 814, 818 (9th Cir.1996) ("[A]ppellants suffered an injury in fact because the City actually brought an enforcement action against [them]."). Convoy therefore has standing to maintain a facial challenge to the lack of procedural safeguards associated with those procedures. See Baby Tarn, 154 F.3d at 1100. 2. Adequacy of Procedural Safeguards Associated with the License Revocation and Suspension Provisions of the City's Ordinance [10] We review de novo an order granting summary judgment on the constitutionality of a statute or ordinance. Roulette v. City of Seattle, 97 F.3d 300, 302 (9th Cir. 1996); Valley Bank of Nev. v. Plus Sys., Inc., 914 F.2d 1186, 1189 (9th Cir. 1990). Because we have concluded that Convoy has standing to challenge only the license revocation and suspension provisions of the City's ordinance, our determination of whether the City's ordinance includes adequate procedural safeguards is confined to those procedures. We begin our analysis with the Supreme Court's decision in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (plurality opinion). In a fragmented opinion, six justices agreed that a licensing scheme regulating adult entertainment must contain, at a minimum, two procedural safeguards. [FN5] First, "the licensor must make the decision whether to issue the license within a specified and reasonable time period during which the status quo is maintained." Id. at 228, 110 S.Ct. 596. Second, "there must be the possibility of prompt judicial review in the event that the license is erroneously denied." Id. FN5. Justice O'Connor's opinion, joined by Justice Stevens and Justice Kennedy, held that the two safeguards were essential. Justice Brennan, concurring in the judgment and joined by Justice Marshall and Justice Blackmun, agreed with requiring these two safeguards, but also would have required a third safeguard-that the licensor bear the burden of going to court and justifying a license denial. FW/PBS, 493 U.S. at 238-42, 110 S.Ct. 596 (Brennan, J., concurring in the judgment). Convoy contends that the City's ordinance is unconstitutional because it fails to provide either of the procedural safeguards mandated by FW/PBS. The relevant provisions of the ordinance may be summarized as follows: An administrative appeal must be filed within ten days of a suspension or revocation of a license, and a hearing must be set no more than thirty days from the time it is requested. SDMC § 33.0501. A party then has ten days after receipt of the hearing officer's decision to file an appeal with the Committee. SDMC § 33.0502. The ordinance provides for an automatic stay of the suspension or revocation of a license during the time that an appeal to the hearing officer is pending or until the time for filing an appeal has expired, as well as during the time that an appeal of the hearing officer's decision to the Committee is pending or until the time for filing an appeal has expired. SDMC § 33.0501. [FN6] Upon receipt of the appeal, it is put on the Committee's agenda "for the limited purpose of determining whether the Committee will hear the appeal." SDMC § 33.0502. The Committee will only accept an appeal if certain enumerated criteria are met and three members of the *1114 Committee vote in favor of hearing the appeal. Id. If the Committee decides to hear the appeal, "the Consultant to the Committee ... shall set the appeal for hearing before the Committee " Id. "The decision of the Committee to grant or deny the appeal shall be the final administrative remedy unless a hearing is set before the City Council pursuant to Section 22.0101, Rule 4." Id. FN6. These stays are subject to certain emergency provisions, which allow the Chief of Police to take immediate action if it is necessary to protect the public from injury or harm, or where a license was issued based on material misrepresentations in the application and but for those misrepresentations the license would not have been issued. SDMC § 33.0401. Page 6 **5 Judicial review is governed by Cal.Code Civ. P. §§ 1094.5, 1094.6. Once administrative remedies have been exhausted, a party whose license has been suspended or revoked may seek judicial review by filing a petition for writ of administrative mandamus within ninety days of the administrative decision becoming final. Cal.Code Civ. P. § 1094.6(b). The record of administrative proceedings must be prepared by the local agency within 190 days after a request is filed, Cal.Code Civ. P. § 1094.6(c), but there are no express time limits within which the court must take action on the writ petition. The City's ordinance does not provide for a stay during this process. However, the California statutory scheme provides that the administrative decision may be stayed by the court if the court is satisfied that it would not be contrary to the public interest. Cal.Code Civ. P. § 1094.5(g). The licensee may appeal the decision made by the reviewing court, and the appeals court may again stay the administrative decision. Id. Significantly, FW/PBS dealt only with whether the procedural requirements were met with respect to the denial of a license. Therefore, it is unclear how the procedural safeguards mandated by FW/PBS for a license issuance process should be applied in the license suspension/revocation context. We address the application of each of these safeguards in turn. A. Time Limits and the Status Quo [11] With regard to FW/PBS 's reasonable time limit requirement, we conclude that the key to the inquiry in the license suspension/revocation context is the preservation of the status quo during the administrative appeals process. The basis for the procedural safeguards set forth in FW/PBS is the danger of "undue delay" which "compel[s] the speaker's silence," and "results in the unconstitutional suppression of protected speech" as well as "the principle that the freedoms of expression must be ringed about with adequate bulwarks." 493 U.S. at 226, 228, 230, 110 S.Ct. 596 (internal quotation marks omitted). Of course, these considerations apply to license suspensions and revocations as well as license denials. However, this case differs from a license denial because here preservation of the status quo means that the suspension or revocation cannot be enforced, and the business is allowed to continue to operate under its license. Thus, there is no reason to require an administrative decision on a license suspension or revocation within "a specified and reasonable time period" so long as the status quo is maintained, because under those circumstances the administrative appeals process can continue indefinitely without the risk of the suppression of protected speech. As described above, the City's ordinance fails to impose specified and reasonable time limits. For example, there is no limit on the time that the hearing officer may take to issue a decision, no time limit on the Committee's decision as to whether or not to hear the appeal, and no time limit on the Committee's decision on the merits if it decides to hear the appeal. However, the ordinance does provide for an automatic stay of the enforcement of a license suspension or revocation throughout the administrative appeal process. Therefore, regardless of how long this process takes, there is no risk of the suppression of protected activity. Because the City's ordinance preserves the status quo during this process, we conclude that it satisfies the first FW/PBS procedural safeguard with respect to license suspensions and revocations. B. Prompt Judicial Review **6 [12] There is some confusion associated with the meaning of the second FW/PBS safeguard, prompt judicial review, *1115 and this confusion has resulted in a split in the circuits. One view is that prompt access to the courts will satisfy this requirement, even if there is not a time limit for a hearing or decision on the merits. See TK's Video, Inc. v. Denton County, Tex., 24 F.3d 705, 709 (5th Cir.1994); Graff v. City of Chicago, 9 F.3d 1309, 1324-25 (7th Cir. 1993) (en bane); Jews for Jesus, Inc. v. Massachusetts Bay Transp. Auth., 984 F.2d 1319, 1327 (1st Cir. 1993). After noting that the Ninth Circuit had not addressed the issue, the district court adopted this approach and concluded that this safeguard was satisfied because a licensee could file for a writ of mandamus after the administrative appeal became final, and the state court had discretion to issue a stay of the license suspension pending a judgment in the case. However, after the district court issued its grant of summary judgment, this circuit adopted a second interpretation, which is that FW/PBS requires the "opportunity for a prompt hearing and a prompt decision by a judicial officer." Baby Tarn, 154 F.3d at 1101. [FN7] Thus, we proceed under Baby Tarn 's Page 7 understanding of FW/PBS ' s judicial review requirement. FN7. The Baby Tarn court noted that other circuits had held that "prompt judicial review requires a prompt decision on the merits." Baby Tarn, 154 F.3d at 1101 (citing 11126 Baltimore Boulevard, Inc. v. Prince George's County, Md., 58 F.3d 988, (4th Cir. 1995) (en bane); East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220, 225 (6th Cir. 1995)). The Eleventh Circuit also found that access to judicial review will not satisfy the second FW/PBS safeguard, but did not expand on this conclusion. See Redner v. Dean, 29 F.3d 1495, 1501-02 (llth Cir.1994). Again, the policy consideration underlying this safeguard is the need to guard against undue delay that could lead to the suppression of protected speech, and we must determine how to best further that policy in applying the judicial review safeguard to a license suspension or revocation. In pursuing this goal, we conclude that we must extend Baby Tarn 's requirement of an opportunity for a prompt hearing and decision by a judicial officer in license denial cases to license suspensions or revocations as well. However, in the license suspension and revocation context, this second safeguard may also be met by the preservation of the status quo even if there is no provision for a prompt judicial hearing and decision. Cf. 11126 Baltimore Boulevard, Inc. v. Prince George's County, Md., 58 F.3d 988, 1001 n. 18 (4th Cir. 1995) (en bane) (noting that while the County has no control over the time limitations imposed by the Maryland Rules, it "could avoid the constitutional problem engendered by its present scheme by permitting adult bookstores to operate until a judicial determination is rendered affirming a denial of a special permit"). As with the first safeguard, there is no risk of the suppression of speech so long as the status quo of allowing the business to operate is preserved. One example of a method of preserving the status quo which would satisfy the second procedural safeguard in the license suspension/revocation context is a provision, suggested by Convoy, for an automatic stay pending a judicial decision, which could be conditioned upon a timely filing of an appeal or petition for writ of mandamus. **7 In applying these guidelines to the case before us, we observe that the City's ordinance and the California statutory scheme contain no express time limits or guarantee of a prompt hearing or decision, and are therefore similar to the Nevada statute found to be inadequate in Baby Tarn, 154 F.3d at 1101- 02. See also 11126 Baltimore, 58 F.3d at 1001 (4th Cir. 1995) (even where Maryland statutes provided a timetable, typical delay in excess of three months does not ensure sufficiently prompt judicial review); East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220, 225 (6th Cir. 1995) (potential delays of over five months are impermissible). Thus, like the ordinances at issue in Baby Tarn, 11126 Baltimore, and East Brooks Books, the City's ordinance and the California statutory scheme fail to satisfy the requirement of prompt judicial review. *1116 However, as set forth above, it is possible that the scheme could be saved by maintenance of the status quo pending the judicial decision. California's statutory framework provides that a court "may stay the operation of the administrative order or decision pending the judgment of the court" unless a stay would be contrary to the public interest. Cal.Code Civ. Pro. § 1094.5(g). Thus, there is no guarantee of a stay-if the court is satisfied that a stay would not be contrary to the public interest, it may grant the stay, but is not required to do so. This gives rise to the possibility of the suppression of protected expression before judicial review of the case on the merits, and is therefore contrary to the principles which underlie the procedural safeguards set forth in FW/PBS. Thus, while the maintenance of the status quo in the license suspension and revocation context may save an ordinance which does not provide for a prompt judicial hearing or decision, we cannot conclude that a discretionary stay provides the requisite protection in such a case. Cf. JJR Inc. v. City of Seattle, 126 Wash.2d 1, 891 P.2d 720, 724 (1995) (en bane) (holding that, under Washington's constitution, a discretionary stay of license revocation or suspension pending judicial review does not satisfy the minimum constitutionally permissible safeguard). Accordingly, we must conclude that the City's scheme for suspending and revoking licenses fails to satisfy the judicial review safeguard and is therefore unconstitutional. PageS Because we hold that the City's scheme for suspending and revoking licenses fails to provide constitutionally required procedural safeguards, we GRANT Convoy's request for an injunction. The City will be enjoined from enforcing a license suspension or revocation for ninety days after an administrative appeal becomes final, the time allowed for filing a writ of administrative mandamus under the California statutory scheme. If judicial review is sought during that period, the City will be enjoined from enforcing a suspension or revocation until there is a decision by a judicial officer. See Baby Tarn, 154 F.3d at 1102 (final judicial determination or decision means that a judicial officer should make the final decision denying a license rather than a state censor, and does not refer to a court's decision itself becoming final through various rehearing and appellate procedures). This injunction will remain in place so long as the City's ordinance and the California statutory scheme fail to provide for a prompt hearing and decision by a judicial officer, or for the maintenance of the status quo pending a judicial decision on the merits. CONCLUSION **8 We REVERSE the district court's grant of summary judgment in favor of the City, and REMAND to the district court with instructions to enter summary judgment in favor of Convoy and to issue a permanent injunction in accordance with the provisions set forth above. REVERSED and REMANDED. END OF DOCUMENT 3. Relief Page 1 Copr. © West 2001 No Claim to Orig. U.S. Govt. Works 222 F.3d 719 28 Media L. Rep. 2281, 00 Cal. Daily Op. Serv. 6226, 2000 Daily Journal D.A.R. 8287 (Cite as: 222 F.3d 719) United States Court of Appeals, Ninth Circuit. ALAMEDA BOOKS, INC., a California corporation; Highland Books, Inc., a California corporation, Plaintiffs-Appellees, v. CITY OF LOS ANGELES, Defendant-Appellant. No. 98-56200. Argued and Submitted Feb. 8, 2000 Filed July 27, 2000 As Amended on Denial of Rehearing Aug. 28, 2000 Adult businesses sued sitting under § 1983, seeking declaratory and injunctive relief to prevent enforcement of city ordinance prohibiting the operation of adult businesses that both sold adult products and contained facilities for the viewing of adult movies or videos. The United States District Court for the Central District of California, Dean D. Pregerson, J., granted businesses' motion for summary judgment and issued permanent injunction barring enforcement of ordinance. City appealed. The Court of Appeals, Michael Daly Hawkins, Circuit Judge, held that ordinance was not designed to serve city's substantial government interest in reducing crime in its neighborhoods, and, thus, ordinance violated First Amendment. Affirmed. West Headnotes [1] Federal Courts k776 170Bk776 Grant of summary judgment is reviewed de novo. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. [2] Federal Courts k766 170Bk766 [2] Federal Courts k802 170Bk802 On appeal from grant of summary judgment, Court of Appeals must determine, viewing the evidence in the light most favorable to the appellants, whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. [3] Federal Courts k766 170Bk766 On appeal from grant of summary judgment, Court of Appeals does not weigh the evidence or determine the truth of the matter; rather, Court only decides whether there is a genuine issue of material fact for trial. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. [4] Federal Courts k776 170Bk776 Constitutionality of a regulation is a question of law that is reviewed de novo. [5] Constitutional Law k90(3) 92k90(3) Time, place, or manner regulation is "content-neutral," for First Amendment purposes, if the ordinance is aimed to control secondary effects resulting from the protected expression rather than at inhibiting the protected expression itself. U.S.C.A. Const.Amend. 1. [6] Constitutional Law k90.4(l) 92k90.4(l) [6] Zoning and Planning k76 414k76 City ordinance, prohibiting the operation of adult businesses that both sold adult products and contained facilities for the viewing of adult movies or videos, was not designed to serve city's substantial government interest in reducing crime in its neighborhoods, and, thus, ordinance Page 2 violated First Amendment, where study relied on by city addressed secondary impact of concentrations of separate, individual adult businesses, not impact of single adult business establishments operating as combination business. U.S.C.A. Const.Amend. 1. [7] Constitutional Law k90(3) 92k90(3) Burden of proof is on city to justify a regulation which burdens the freedom of expression. U.S.C.A. Const.Amend. 1. [8] Constitutional Law k90(3) 92k90(3) That a legislative body may rely on foreign studies to establish its interest in a time, place, or manner regulation, for First Amendment purposes, does not relieve that entity from the obligation of demonstrating that the study must be reasonably believed to be relevant to the problem that the city addresses. U.S.C.A. Const. Amend. 1. *720(Cite as: 222 F.3d 719, *720) Michael L. Klekner, The City of Los Angeles, Los Angeles, California, for the defendant-appellant. G. Randall Garrou, Weston, Garrou & DeWitt, Los Angeles, California, for the plaintiffs-appellees. Robert W. Hargreaves, Best Best & Krieger, Rancho Mirage, California, for amicus curiae Sixty-Five (65) California Cities, in support of the appellant. G. Randall Garrou, Weston, Garrou & DeWitt, Los Angeles, California, for amicus curiae Center for Fair Public Policy in support of the appellees. Richard J. Hertzberg, Phoenix, Arizona, for amicus curiae L.J. Concepts, Inc., in support of the appellees. Appeal from the United States District Court for the Central District of California; Dean D. Pregerson, District Judge, Presiding, D.C. No. CV-95-07771- DDP. Before: BOOCHEVER, HAWKINS, and THOMAS, Circuit Judges. MICHAEL DALY HAWKINS, Circuit Judge: We must determine whether the district court was correct in concluding as a matter of law that ordinances of the City of Los Angeles (the "City" or "Los Angeles") prohibiting the operation of adult businesses that both sell adult products and contain facilities for the viewing of adult movies or videos were inadequately supported by evidence of adverse impact so as to violate the First Amendment. We affirm. I. BACKGROUND On July 28, 1978, the City enacted Ordinance No. 151,294, adding section 12.70 to the Los Angeles Municipal Code ("L.A.M.C."), which prohibits the "establishment, substantial enlargement or transfer of ownership or control" of an adult business establishment "within 1,000 feet of another such business or within 500 feet of any religious institution, school or public park within the City of Los Angeles." L.A.M.C. § 12.70(C) (1977). The regulation was enacted after a comprehensive study, conducted in 1977 and assessing the impact of concentrations of adult businesses on surrounding areas, found a positive correlation between concentrations of adult businesses and increases in prostitution, robberies, assaults, and thefts. [FN1] FN1. The Study also stated there was "some basis to conclude" that property values in the study areas increased to a lesser degree than in the control areas. It concluded, however, that the concentration of adult businesses was not the primary cause of this phenomenon. In 1983, the City amended section 12.70(C), with the passage of Ordinance No. 157,538 to prohibit so-called "multiple use" adult businesses. Section 12.70(C), as amended, additionally prohibits "the establishment or maintenance of more than one adult entertainment establishment in the *721 same building, structure, or portion thereof...." L.A.M.C. § 12.70(C). The 1983 amendments also modified the existing definition of an "adult entertainment business" to specifically categorize inter alia an "adult bookstore" and an "adult arcade" as "separate adult entertainment businesses even if operated in conjunction with another adult entertainment business at the same establishment. " L.A.M.C. § 12.70(B)(17). Appellees, Alameda Books, Inc. ("Alameda") and Highland Books, Inc. ("Highland"), are two adult businesses operating within the city limits of Los Angeles. Neither is located within 1,000 feet of another adult business nor within 500 feet of any religious institution, public park, or school. Each business occupies less than 3,000 square feet. Both Alameda and Highland rent and sell sexually oriented products, including videotapes. Additionally, both businesses provide booths where patrons can view videotapes for a fee. The booths are of two types. In the Preview Booths customers can view videotapes that are for rent or sale within the store. The Multi-channel Viewing Booths allow customers to choose from dozens of pre-selected videotape selections. The video booths and the retail sales and rental of tapes of both stores are located in the same commercial space within a single building. There are no distinctions, physical or otherwise, between the different operations within each of the stores. Each has only one entrance door, and one employee supervises the entire location. Additionally, the appellees are the sole owners of each of their stores, and revenue from the video booths and the sales and rentals is not distinguished in any way, other than for internal accounting purposes. Notwithstanding these facts, it is uncontested that both businesses have operations that fall within the definitions of "adult bookstore" and "adult arcade" under section 12.70(B)(17) of the L.A.M.C. On March 15, 1995, a City building inspector found that Alameda was operating both an adult bookstore and an adult arcade in the same building and was therefore in violation of section 12.70(C). Alameda and Highland then joined as plaintiffs and sued for declaratory and injunctive relief under 42 U.S.C. § 1983 to prevent enforcement of the ordinance. Both the City and the appellees filed cross-motions for summary judgment. The district court initially denied both motions on the First Amendment issues, concluding that there was a "genuine issue of fact as to whether plaintiffs' bookstore and arcade components were separate businesses, like those whose concentration was examined by the 1977 studies." Alameda and Highland then filed a motion for reconsideration of the First Amendment portion of the district court's order denying summary judgment. On June 2, 1998, the court vacated its prior order and granted Page 3 summary judgment for Alameda and Highland and issued a permanent injunction enjoining the enforcement of the ordinance against the appellees. The City then appealed to this court. We have jurisdiction under 28 U.S.C. § 1291. II. STANDARD OF REVIEW [1][2][3] A grant of summary judgment is reviewed de novo. See, e.g., Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert, denied, — U.S. —, 120 S.Ct. 375, 145 L.Ed.2d 293 (1999). We must determine, viewing the evidence in the light most favorable to the appellants, whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law. See, e.g., Berry v. Valence Tech., Inc., 175 F.3d 699, 703 (9th Cir.), cert, denied, — U.S. —, 120 S.Ct. 528, 145 L.Ed.2d 409 (1999). We do not weigh the evidence or determine the truth of the matter; rather, we only decide whether there is a genuine issue of material *722 fact for trial. See Colacurcio v. City of Kent, 163 F.3d 545, 549 (9th Cir. 1998). [4] The constitutionality of a regulation is a question of law that is reviewed de novo. See Gonzalez v. Metropolitan Transp. Auth., 174 F.3d 1016, 1018 (9th Cir. 1999). III. ANALYSIS A. Renton Analysis Our inquiry, though not the result, is somewhat complicated by two varying formulations of the test governing our analysis. In Tollis v. San Bernardino County, 827 F.2d 1329 (9th Cir. 1987), we were presented with the opportunity to apply the then-recent decision of the Supreme Court in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), which analyzed the constitutionality of city zoning regulations that prohibited adult theaters from being located within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. Tollis held mat Renton had established a "three-step inquiry" to determine the constitutionality of such ordinances. Tollis, 827 F.2d at 1332. A reviewing court must inquire: (1) whether the ordinance is a time, place, manner regulation; (2) if so, whether it is content-neutral or content- based; and (3) if content-neutral, whether it is "designed to serve a substantial governmental interest and do[es] not unreasonably limit alternative avenues of communication." Id. (internal quotations omitted); see also Renton, 475 U.S. at 47, 106 S.Ct. 925. More recently, we formulated this test in a slightly different and (we believe) more coherent manner. In Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir.1998), we looked to the Supreme Court's opinion in Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), to determine the constitutionality of the city's ordinance requiring nude dancers to perform at least ten feet from patrons. [FN2] Citing to Ward, we held that "[municipalities may impose reasonable restrictions on the time, place or manner of protected speech, provided the restrictions are: (1) content- neutral; (2) narrowly tailored to serve a significant government interest; and (3) leave open ample alternative channels for communication of the information." Colacurcio, 163F.3dat551. FN2. Colacurcio involved expressive conduct, which is not at issue here. The Supreme Court, however, has noted that the test for regulations affecting expressive conduct is nearly identical to the test for time, place, or manner regulations affecting protected speech.N See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) ("[V]alidating a regulation of expressive conduct... in the last analysis is little, if any, different from the standard applied to time, place or manner restrictions."). Consequently, in Colacurcio we looked to Ward, a case involving restrictions impacting on speech per se (and not expressive conduct), for guidance. See also Colacurcio, 163 F.3d at 551, n. 4 (quoting Clark and noting that the Ninth Circuit frequently cites both the test for expressive conduct and that for time, place or manner regulations when analyzing regulations of adult entertainment). The differences between the Tollis and Colacurcio test are slight, yet obvious. Colacurcio eliminates Tollis 's first step-determining whether the ordinance is a time, place or manner regulation—and merely Page 4 splits the two inquiries of Tollis 's third step-narrow tailoring to serve a significant government interest and ample alternative means of communication—into two separate steps. [FN3] Clearly, there is no *723 substantive difference between Tollis and Colacurcio, and a given result under one necessarily dictates an identical outcome under the other. Moreover, the jurisprudence governing each test is fully applicable to both. FN3. We note that in Colacurcio we held that the regulation must serve a "significant" government interest, see 163 F.3d at 551, while in Tollis we held that the government interest must be "substantial." 827 F.2d at 1332. We accord no substantive difference to these terms as they are used in the adult zoning context. Indeed, the language in Tollis was taken from our decision in Walnut Properties, Inc. v. City of Whittier, 808 F.2d 1331, 1334-35 (9th Cir.1986), which was cited with approval in Colacurcio. See 163 F.3d at 551 n. 4. Additionally, Tollis did not explicitly include the narrow tailoring requirement as part of its third step. That Tollis requires the regulation must be "narrowly tailored" to serve a substantial government interest is, however, clear from the opinion. See Tollis, 827 F.2d at 1333 (holding that "[t]he County has thus failed to show that the ordinance, as interpreted by the County ... is sufficiently 'narrowly tailored' to affect only that category of theatres shown to produce the unwanted secondary effects") (quoting Renton, 475 U.S. at 51, 106 S.Ct. 925). Colacurcio, however, better formulates the test. First, the third step of Tollis incorporates two distinct inquiries, which are more properly separated for both conceptual and practical reasons in Colacurcio. Additionally, Tollis needlessly establishes the time, place or manner inquiry as a distinct step. Time, place or manner is an objective description of a regulation (or one proffered by the enacting legislative body); it is not a talismanic incantation affording the ordinance a lesser degree of judicial scrutiny. To the contrary, the question the courts must ask is whether the time, place or manner regulation is content-neutral. The Supreme Court recognized as much in Ward when it excluded a Page 5 time, place or manner analysis, which it had included in Renton, from its discussion. For the sake of clarity and consistency in future opinions, and because we believe the Colacurcio formulation is more aptly constructed, we will utilize it here. As a preliminary matter, we note that section 12.70(C) comes under the general category of a time, place, or manner regulation. Renton held that zoning regulations governing adult businesses are generally considered time, place or manner regulations. See Renton, 475 U.S. at 46, 106 S.Ct. 925. Moreover, section 12.70(C) does not ban adult entertainment establishments altogether. See Tollis, 827 F.2d at 1332 (holding that ordinance before the court was "obviously" a time, place, or manner regulation "as it [did] not ban adult theaters altogether"). [5] Under Colacurcio 's first step (i.e. Tollis 's second step), a regulation is content-neutral if the ordinance is "aimed to control secondary effects resulting from the protected expression rather than at inhibiting the protected expression itself." Tollis, 827 F.2d at 1332 (internal quotation omitted) (citing Renton, 475 U.S. at 48-49, 106 S.Ct. 925); see also Renton, 475 U.S. at 48, 106 S.Ct. 925 (regulation is content-neutral if it is "justified without reference to the content of the regulated speech"). [FN4] We need not decide whether the contested regulation is content- neutral, for even if it were, it fails to satisfy the second step in the Colacurcio analysis (i.e. the third step of Tollis ). [FN5] FN4. As discussed above, because the Tollis and Colacurcio tests are identical, the standards applied to one may be applied to another. FN5. The district court conducted its analysis using a slightly different approach that, though perfectly reasonable, somewhat conflated the inquiries under Tollis 's second and third steps. We need not specifically endorse this analysis, as section 12.70(C) fails to satisfy the second step of Colacurcio (i.e. the third step of Tollis.) See Cline v. The Indus. Maintenance Eng'g and Contract Co., 200 F.3d 1223, 1229 (9th Cir.2000) ("Summary judgment may be affirmed on any ground supported in the record, including reasons not relied upon by the district court."). B. Colacurcio 's Second Step: Substantial Government Interest [6] The City has a "substantial government interest" in reducing crime in its neighborhoods. See Young v. American Mini Theatres, 427 U.S. 50, 71, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) ("[T]he city's interest in attempting to preserve the quality of urban life in one that must be accorded high respect."). At issue is *724 whether the regulations are "designed to serve" this interest. We hold they are not. The only evidence relied upon by Los Angeles to justify the 1983 amendments to section 12.70(C) is the 1977 study (the "Study"), which was used as the basis for the enactment of the original regulations. This is insufficient. The Study looked at the concentration of four types of adult businesses: massage parlors, "bookstores/arcades," theaters, and adult motels. It assessed five areas where these businesses were concentrated and compared crime rates in these areas with rates in nearby "control" areas. Additionally, the Study measured changes in assessed land values from 1970 to 1976 in the study and control areas. As noted, the Study concluded that there was a positive correlation between concentrations of these adult businesses and increases in prostitution, robberies, assaults, and thefts. [7] The district court found that the Study addressed the secondary impact not of single adult business establishments, but of concentrations of separate, individual adult businesses, and that appellees' businesses are not separate in the sense that the businesses surveyed in the Study were separate establishments. As the Study was the only evidence to justify the 1983 amendments, the district court held that summary judgment was appropriate because the City could not meet its burden to show that it "relied on evidence supporting a reasonable belief that combination businesses ... produced harmful secondary effects of the type asserted" in the 1977 Study. We agree. [FN6] FN6. It is well-established that the burden of proof is on the City to justify a regulation which burdens the freedom of expression. See, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 n. 5, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) ("[I]t is common Page 6 W to place the burden upon the Government to justify impingements on First Amendment interests"); Lim v. City of Long Beach, 217 F.3d 1050, 1054 (9th Cir.2000) (noting that it is "clear" that the burden of proving alternative avenues of communication rests on the government); Tollis, 827 F.2d at 1333 ("The County must show that in the enacting particular limitations ... it relied upon evidence permitting the reasonable inference that, absent such limitations, the adult theaters would have harmful secondary effects." (emphasis added)). The Study treated a bookstore/arcade combination as a single business or unit of adult entertainment whose secondary effects arise from its proximity to several other units of adult entertainment. It did not analyze an individual bookstore/arcade combination as a concentration of adult businesses. Additionally, the Study was not directed at determining the impact of individual adult entertainment business units. Rather, its purpose was to ascertain the impact of a concentration of such business units in small geographic areas. Therefore, by categorizing certain businesses as "bookstore/arcades," the Study determined not what the impact of a "bookstore/arcade" was on the surrounding area, but the impact of a bookstore/arcade as an individual business entity that was part of a concentration consisting of multiple adult business establishments. As such, the Study did not identify any harmful secondary effects resulting from bookstore/arcade combinations as individual business units. The City does not argue that the Study explicitly considered adult arcades and bookstores as separate business entities, an argument that would support its contention that a combination bookstore/arcade as an individual business entity is a "concentration" of adult businesses. Nor does it dispute that the concentration of adult businesses was the primary cause of the harmful secondary effects identified in the Study. Indeed, the pertinent findings of the Study focus solely on the concentration of separate adult business entities. Rather, the City asserts that the Study provides enough of a basis to allow it to constitutionally proscribe combination *725 adult businesses under section 12.70(C) of L.A.M.C. The City's arguments fail. In examining the City's regulation of adult businesses, we are mindful of numerous admonitions from the Supreme Court about the proper role of the judiciary in scrutinizing legislative judgments. In American Mini Theatres, the Supreme Court recognized that the courts are not to second-guess legislative solutions. In upholding the validity of a zoning regulation prohibiting adult entertainment establishments within 1,000 feet of one another, the Court stated: "It is not our function to appraise the wisdom of [the City Council's] decision.... Moreover, the city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems." 427 U.S. at 71, 96 S.Ct. 2440; see also Renton, 475 U.S. at 52, 106 S.Ct. 925 (quoting American Mini Theatres ); United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985) (validity of a content-neutral time, place, or manner regulation does not "turn on a judge's agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests"); Jones Intercable, Inc. v. City of Chula Vista, 80 F.3d 320, 326 (9th Cir.1996) (courts "accord substantial deference to the predictive judgments" of legislative bodies when analyzing content-neutral regulations that burden speech) (quoting Turner Broad. Sys., Inc. v. FCC ("Turner I"), 512 U.S. 622, 665, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994)). This deference to legislative decision making is not unbounded. In Tollis, we established a predicate evidentiary requirement that must be met before we will defer to the judgments of legislative bodies enacting content- neutral time, place, or manner regulations that incidentally burden speech. Tollis considered an injunction against the enforcement of a county zoning ordinance prohibiting adult-oriented businesses from locating within 1,000 feet of various other establishments (e.g., schools, churches, etc.). The county had interpreted the ordinance such that a single showing of an adult movie would make a theater an "adult-oriented business" for the purposes of the ordinance. See 827 F.2d at 1331. In affirming the injunction, we held that under Renton, the county "must show that in enacting the particular limitations ... it relied upon evidence permitting a reasonable inference that, absent such limitations, the adult theaters would have harmful secondary effects." Id. at 1333 (emphasis added). We then found that the county had presented no evidence that a single showing of an adult film would have any of the harmful secondary effects on the community that the county had identified as the basis for the regulation. Id. Like the county in Tollis, Los Angeles has presented no evidence that a combination adult bookstore/arcade produces any of the harmful secondary effects identified in the Study. As the above discussion indicates, the evidence the City has "relied" upon—the 1977 Study—contains no findings that an individual combination bookstore/arcade produces any of the increased crime the Study found resulting from a concentration of adult businesses. Therefore, it is unreasonable for the City to infer that absent its regulations, a bookstore/arcade combination would have harmful secondary effects. See also Acorn Invs., Inc. v. City of Seattle, 887 F.2d 219,222 (9th Cir. 1989) (holding unconstitutional under Renton a city licensing fee for specific types of adult theaters because the City had "failed to prove" that these theaters were responsible for fostering the alleged secondary effects—criminal activity-mat were given as justification for the licensing fee); Turner Broad. Sys., Inc. v. FCC (Turner II), 520 U.S. 180, 211, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) (holding that in reviewing content-neutral regulations burdening speech under an intermediate scrutiny standard, the question for the courts "is whether the legislative conclusion was reasonable and supported by *726 substantial evidence in the record before [the legislative body] ") (emphasis added). The City argues that the original intent of section 12.70(C), adopted pursuant to the Study, included a ban on more than one adult business in a building. This argument is unpersuasive. Whether the prohibition against combination businesses was intended to be included in the original ordinance is largely immaterial to the question of whether the Study adequately justifies the current regulations. Nor could Los Angeles have reasonably concluded that the expansion of an adult bookstore to include an adult arcade would increase the frequency and regularity of activity for the business and heighten the probability that such activity would produce the harmful secondary effects identified in the Study. Such reasoning would justify the prohibition of the simple expansion of a lone adult bookstore in order to accommodate a larger variety of adult Page 7 products (which, ostensibly, would attract more patrons), and not for the purpose of installing an arcade. Such a prohibition, however, is clearly not supported by the Study. The Supreme Court, as well as this circuit, have held that a legislative body may rely on studies, conducted by other cities and counties, linking a concentration of adult businesses to increased crime to justify its own regulation of adult businesses. In Renton, the Court held that the city was entitled to rely on the experiences of ... other cities ... in enacting its adult theater zoning ordinance. The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses. 475 U.S. at 51-52, 106 S.Ct. 925; see also Colacurcio, 163 F.3d at 551 ("In evaluating the secondary effects of adult entertainment, the city is also permitted to rely on experiences of other jurisdictions."). [8] Los Angeles relies on this ability to use foreign studies for the proposition that the 1983 amendments to section 12.70(C) are entitled to similar deference. If foreign studies can be used to justify the regulation of adult business, then surely, the City argues, its regulations, based upon its own study, are entitled to deference. Again, this argument misses the mark. That a legislative body may rely on foreign studies to establish its interest in a regulation does not relieve that entity from the obligation of demonstrating that the study must be " 'reasonably believed to be relevant to the problem that the city addresses.' " Colacurcio, 163 F.3d at 551 (quoting Renton, 475 U.S. at 51-52, 106 S.Ct. 925). As shown, the Study fails this test. [FN7] FN7. In this regard, the Supreme Court's recent opinion in City of Erie v. Pap's A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000), is of little aid to Los Angeles. In upholding the City of Erie's ban on nude dancing, the Court stated that "Erie could reasonably rely on the evidentiary foundation set forth in Renton and American Mini Theatres " with respect to the secondary effects of adult entertainment establishments PageS because the nude dancing that claimed protection was "of the same character as the adult entertainment at issue" in the two cases. Id. at 1395. For the purposes of the secondary effects identified in the Los Angeles Study, a solitary bookstore/arcade combination is hardly of the "same character" as a grouping of multiple adult business establishments in a given geographical area. The City also points to decisions of our sister circuits in support of its argument that the Study provides the necessary evidentiary basis to satisfy Renton 's third prong. The cases cited, however, are either directly contrary to established Ninth Circuit precedent, or merely restate the requirement that a legislative body's reliance upon the evidence it cites must be reasonable. See, e.g., Renton, 475 U.S. at 51-52, 106S.Q. 925. *727 In ILQ Investments, Inc. v. City of Rochester, 25 F.3d 1413 (8th Cir. 1994), the Eighth Circuit upheld the constitutionality of an adult business zoning ordinance, as applied to adult bookstores, that prohibited on-premises viewing of adult movies or videotapes. The court noted that Rochester relied on foreign studies and held that under Renton, Rochester need not prove that [plaintiffs' business] would likely have the exact same adverse effects on its surroundings as the adult businesses studied by [other cities]. So long as Ordinance No. 2590 affects only categories of businesses reasonably believed to produce at least some of the unwanted secondary effects, Rochester must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems. Id. at 1418 (internal quotation omitted). While this application of Renton may be somewhat more flexible than the standard we announced in Tollis, Los Angeles's regulations would still fail under the Eighth Circuit's analysis. The Los Angeles Study examined concentrations of multiple adult business establishments; it did not study the impact of individual establishments in any form, whether as solitary units or as part of the concentration of businesses. Under the Eighth Circuit's analysis, then, Los Angeles could not have reasonably believed, based on the Study, that an individual adult business could produce some of the secondary effects resulting from a concentration of businesses. In Mitchell v. Commission on Adult Entertainment Establishments, 10 F.3d 123 (3rd Cir. 1993), the Third Circuit upheld a Delaware statute setting closing hours for adult businesses and prohibiting closed viewing booths. The court cited to Renton and held that the state "need only show that adult entertainment establishments as a class cause the unwanted secondary effects the statute regulates." Id. at 138. This statement and the Third Circuit's citation to Renton pertain to whether the regulation is narrowly tailored, not whether the evidence produced can reasonably justify the regulation as serving a substantial government interest. Narrow tailoring of the Los Angeles ordinance is a question we need not address. Moreover, if the Third Circuit's holding were applied to the issue before us, we would have to reject its analysis. Merely requiring that a legislative body show that adult establishments as a class cause the secondary effects the regulation is aimed at preventing could easily fall far short of our requirement in Tollis that a legislative body "must show that in enacting the particular limitations ... it relied upon evidence permitting the reasonable inference that, absent such limitations, the adult [businesses] would have harmful secondary effects." 827 F.2d at 1333 (emphasis added). Finally, the City cites Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821 (4th Cir. 1979), a case in which the Fourth Circuit examined a state law almost identical to the Los Angeles ordinance. Hart held constitutional a North Carolina statute prohibiting two or more "adult establishments" from occupying a single building. Adult bookstores and adult arcades were defined as separate establishments under the statute. The Fourth Circuit found that the statute, "on its face," was a "permissible regulation of the external costs of adult establishments that is unrelated to the overall suppression of any protected materials offered by them for public consumption." Id. at 829. In concluding that the statute served a substantial government interest, the court noted that no formal legislative history existed for the statute, but held that a legislative determination that the dispersal of the marketing activities of the businesses might ameliorate adverse secondary effects "cannot be thought unreasonable." Id. at 828. Hart was decided before Renton; therefore, there may be some doubt that it *728 would Page 9 survive scrutiny under the current Supreme Court's precedent. We are sure, however, that the case would not pass muster under our decisions in Tollis and Acorn. In Hart, there was no evidence from foreign studies to support the statute. What evidence the court did cite as being produced by the state—a report on health conditions inside the video viewing booths that the bill's sponsor read to a legislative committee, see id. at 828 n. 9--would not meet Tollis 's reasonable inference requirement. Prohibiting arcades and adult bookstores from being located in the same building would not prevent the type of unhealthy conditions in the booths that the Fourth Circuit cited as the only evidence produced by North Carolina to justify its statute. There is nothing in the case to indicate that the same type of behavior that occurs in viewing booths in combination bookstore/arcades would not occur in an establishment that only furnishes an arcade. Therefore, any inference that the statute could have an ameliorating impact on the identified harmful secondary effects would be unreasonable under both Tollis and Acorn. The decision of the district court is AFFIRMED. END OF DOCUMENT Pagel 101FJd325 65 USLW 2340, 24 Media L. Rep. 2491 (Cite as: 101 F.3d 325) United States Court of Appeals, Fourth Circuit. ANHEUSER-BUSCH, INCORPORATED, Plaintiff-Appellant, v. Kurt L. SCHMOKE, in his official capacity as Mayor of Baltimore City; Mayor and City Council of Baltimore City; City Council of Baltimore City; David Tanner, in his official capacity as the General Superintendent of Zoning Administration and Enforcement, Defendants-Appellees, and John Joseph Curran, Attorney General of the State of Maryland, in his official capacity, Defendant. The Association of National Advertisers, Incorporated; The American Association of Advertising Agencies; The Media Institute; National Association of Broadcasters; The Thomas Jefferson Center for the Protection of Free Expression; Washington Legal Foundation; Center for Science in the Public Interest; Coalition for Beautiful Neighborhoods; Baltimore City Wide Liquor Coalition for Better Laws and Regulations, Amici Curiae. PENN ADVERTISING OF BALTIMORE, INCORPORATED, Plaintiff-Appellant, v. MAYOR AND CITY COUNCIL OF BALTIMORE CITY, A Municipal Corporation, Defendant- Appellee, and John Joseph Curran, Attorney General of the State of Maryland, in his official capacity, Defendant. The Association of National Advertisers, Incorporated; The American Association of Advertising Agencies; The Media Institute; National Association of Broadcasters; The Thomas Jefferson Center for the Protection of Free Expression; Washington Legal Foundation; Center for Science in the Public Interest; Coalition for Beautiful Neighborhoods; Baltimore City Wide Liquor Coalition for Better Laws and Regulations, Amici Curiae. Nos. 94-1431, 94-1432. Nov. 13, 1996. The United States District Court for the District of Maryland, JohnR. Hargrove, Senior District Judge, 855 F.Supp. 811, upheld against First Amendment attack city ordinance banning stationary outdoor advertising of alcoholic beverages in certain areas of city where children were likely to walk to school or play. The Court of Appeals, 63 F.3d 1305, affirmed. The United States Supreme Court, 517 U.S. 1206, 116 S.Ct. 1821, 134 L.Ed.2d 927, granted certiorari, and vacated judgment for reconsideration in light of 44 Liquormart, Inc. v.Rhode Island, 5 n\J.S.4%4,116S.Ct. 1495,134 L.Ed.2d 711. On remand, the Court of Appeals, Niemeyer, Circuit Judge, held that city ordinance prohibiting placement of stationary outdoor advertising that advertised alcoholic beverages in areas where it was likely to be encountered by minors merely restricted time, place and manner of such advertisements did not violate First Amendment's commercial speech guarantees. Judgment of District Court affirmed. Adopting in part opinion at 63 F.3d 1305. Butzner, Senior Circuit Judge, filed dissenting opinion. West Headnotes Constitutional Law 92k90.3 Most Cited Cases Intoxicating Liquors 223kl5 Most Cited Cases City ordinance prohibiting placement of stationary outdoor advertising that advertises alcoholic beverages in certain areas where children are likely to walk to school or play, in effort to promote welfare and temperance of minors, did not violate commercial speech protections of First Amendment; unlike statute banning all advertising of liquor prices, ordinance expressly targeted persons who could not be legal users of alcoholic beverages; moreover, ordinance did not foreclose plethora of newspaper, magazine, radio, television, direct mail, Internet and other media available to liquor manufacturers. U.S.C.A. Const. Amend. 1. Page 2 Eric Michael Rubin, Walter E. Diercks, Jeffrey Harris, Rubin, Winston, Diercks, Harris & Cooke, Washington, D.C.; John Joseph Walsh, Steven G. Brody, Cadwalader, Wickersham & Taft, New York, New York; Thomas M. Wood, IV, Neuberger, Quinn, Gielen, Rubin & Gibber, P. A., Baltimore, Maryland; P. Cameron DeVore, Davis, Wright, Tremaine, Seattle, Washington, for Appellant. Neal M. Janey, City Solicitor, Burton Harry Levin, Principal Counsel, Department of Law, Baltimore, Maryland, for Appellees. Richard E. Wiley, Lawrence W. Secrest, III, Daniel E. Troy, Luis de la Torre, Frank Winston, Jr., Wiley, Rein & Fielding, Washington, D.C.; J. Joshua Wheeler, Robert M. O'Neil, Thomas Jefferson Center for the Protection *327 of Free Expression, Charlottesville, Virginia, for Amici Curiae Media Institute, et al. Daniel J. Popeo, David A. Price, Richard A. Samp, Washington Legal Foundation, Washington, D.C., for Amicus Curiae Washington Legal Foundation. Christopher J. Fritz, Julie Ellen Squire, Thomas C. Dame, Gallagher, Evelius & Jones, Baltimore, Maryland, for Amici Curiae Coalition for Beautiful Neighborhoods, et al. George Hacker, Center for Science in the Public Interest, Washington, D.C., for Amicus Curiae Center for Science. John F. Kamp, Washington, D.C.; Gilbert H. Weil, New York, New York; Burt Neuborne, New York, New York, for Amici Curiae Association of National Advertisers, Inc. Before NIEMEYER and HAMILTON, Circuit Judges, and BUTZNER, Senior Circuit Judge. Affirmed by published opinion. Judge NIEMEYER wrote the majority opinion, in which Judge HAMILTON joined. Senior Judge BUTZNER wrote a dissenting opinion. OPINION NIEMEYER, Circuit Judge: On May 13,1996, the Supreme Court handed down its decision in 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484,116 S.Ct. 1495,134 L.Ed.2d 711(1996), and a week later vacated our decision in this case and remanded it to us "for further consideration in light of 44 Liquormart, Inc. v. Rhode Island" 517 U.S. 1206, 116 S.Ct. 1821, 134 L.Ed.2d 927. We have read the opinion in 44 Liquormart and have considered its impact on the judgment in this case. For the reasons that follow, we conclude that 44 Liquormart does not require us to change our decision. Accordingly, we affirm the district court's judgment for the reasons previously given and readopt our previous decision. [FN*] See Anheuser-Busch. Inc. v. Schmoke, 63 F.3d 1305 (4th Cir.1995) (Anheuser-Busch I). FN* In readopting our opinion, we do not continue to rely on Posadas de Puerto Rico Associates v. Tourism Co. ofP.R., 478 U.S. 328, 106 S.Ct. 2968, 92 L.Ed.2d 266 (1986), in view of the doubt placed on that opinion by a majority of the Court in 44 Liquormart. See 517 U.S. at —, 116 S.Ct. at 1511 (Stevens, J., concurring in the judgment) (joined by Kennedy, Thomas, and Ginsburg, JJ.) and 517 U.S. at —, 116 S.Ct. at 1522 (O'Connor, J., concurring in the judgment) (joined by Rehnquist, C.J., and Souter and Breyer, JJ.). Because we do not defer blindly to the legislative rationale, but rather agree with it based on our own independent conclusion about the fit between legislative objective and the regulation used to achieve that objective, the holding in Posadas is not necessary to our opinions upholding Baltimore City's ordinance. I In Anheuser-Busch I, we upheld against a constitutional challenge a city ordinance prohibiting the placement of stationary, outdoor advertising that advertises alcoholic beverages in certain areas of Baltimore City. 63 F.3d at 1317. The ordinance was designed to promote the welfare and temperance of minors exposed to advertisements for alcoholic beverages by banning such advertisements in particular areas where children are expected to walk to school or play in their neighborhood. Mat 1314-17. Applying the four- prong test for evaluating commercial speech announced in Central Hudson Gas & Elec. Corp. v. PublicServ. Comm'n, 447 U.S. 557, 100 S.Ct. 2343,65 L.Ed.2d 341 (1980), we concluded, in respect to the disputed prongs, that the ban of outdoor advertising of alcoholic beverages in limited areas directly and materially advances Baltimore's interest in promoting the welfare and temperance of minors. See Anheuser-Busch I, 63 F.3d at 1314. After our own independent assessment, we recognized the reasonableness of Baltimore City's legislative finding that there is a "definite correlation between alcoholic beverage advertising and underage drinking." Id. We also concluded that the regulation of commercial speech is not more extensive than necessary to serve the governmental interest. M at 1316-17. Recognizing that in the regulation of commercial speech there is some latitude in the "fit" between the regulation and the Page 3 objective, we concluded that "no less restrictive means may be available to advance the government's interest." Id at 1316. While we acknowledged that the geographical limitation on outdoor advertising may also reduce *328 the opportunities for adults to receive the information, we recognize that there were numerous other means of advertising to adults that did not subject the children to "involuntary and unavoidable solicitation [while] ... walking to school or playing in their neighborhood." Id at 1314. Based on our close look at Baltimore's asserted goal and the billboard zoning used to achieve that objective, we concluded: Although no ordinance of this kind could be so perfectly tailored as to all and only those areas to which children are daily exposed, Baltimore's efforts to tailor the ordinance by exempting commercial and industrial zones from its effort renders it not more extensive than is necessary to serve the governmental interest under consideration. Id at 1317. II In 44 Liquormart. by contrast, the State prohibited all advertising throughout Rhode Island, "in any manner whatsoever," of the price of alcoholic beverages except for price tags or signs displayed with the beverages and not visible from the street. 517 U.S. at —, 116 S.Ct. at 1501. The State contended that the ban served the State's interest in promoting temperance by keeping alcoholic prices high and therefore consumption low. See id The district court found as a fact, however, that the ban "has no significant impact" on consumption. 44 Liquor Mart, Inc. v. Racine, 829 F.Supp. 543, 549 (D.R.I.1993). The State also argued that the Twenty-first Amendment's delegation to the states of the power "to prohibit commerce in, or the use of, alcoholic beverages," U.S. Const, amend. XXI, § 2, favors the state's ban of price advertising of alcoholic beverages. See 517 U.S. at —, 116 S.Ct. at 1502. The Supreme Court held the blanket ban unconstitutional simply as "an abridgement of speech protected by the First Amendment" and rejected the claim that the Twenty-first Amendment "save[d] Rhode Island's ban on liquor price advertising." 517 U.S. at —t , 116 S.Ct. at 1501,1514-15. The opinion for the Court did not provide a rationale for its conclusion that the ban violated the First Amendment, and no opinion addressing the First Amendment violation commanded a majority of the Court. Under Marks v. United States, 430 U.S. 188,97 S.Ct. 990, 51 L.Ed.2d 260 (1977), when a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." Id at 193, 97 S.Ct. at 993. Applying the Marks rule, eight justices in three separate opinions concluded that the mechanism of keeping alcoholic prices high as a way to keep consumption low imposes too broad a prohibition on speech to be justified by the end. See 44 Liquormart, 517 U.S. at , 116 S.Ct. at 1509-10 (Stevens, J., concurring in the judgment); id at —, 116 S.Ct. at 1519 (Thomas, J., concurring in the judgment); id at f 116 S.Ct. at 1521-22 (O'Connor, J., concurring in the judgment). Justice Stevens, joined by Justices Kennedy, Souter, and Ginsburg, noted that "without any findings of fact, or indeed any evidentiary support whatsoever, we cannot agree with the assertion that the price advertising ban will significantly advance the State's interest in promoting temperance." Id at —, 116 S.Ct. at 1509. Justice Stevens also noted that alternative forms of regulation were available that would not impinge speech and would "be more likely to achieve the State's goal of promoting temperance. As the State's own expert conceded, higher prices can be maintained either by direct regulation or by increased taxation." Id at —, 116 S.Ct. at 1510. Similarly, Justice O'Connor, writing an opinion in which Chief Justice Rehnquist, Justice Souter and Justice Breyer joined, concluded, If the target is simply higher prices generally to discourage consumption, the regulation imposes too great, and unnecessary, a prohibition on speech in order to achieve it.... "[T]he objective of lowering consumption of alcohol by banning price advertising could be accomplished by establishing minimum prices and/or by increasing sales taxes on alcoholic beverages." *329Id at -, 116 S.Ct. at 1521-22 (O'Connor, J., concurring in the judgment) (quoting 44 Liquormart, Inc. v. Rhode Island, 39 F.3d 5, 7 (1st Cir.1994) (quoting Rhode Island's expert witness)). Justice O'Connor concluded that because the regulation fails "even the less stringent standard set out in Central Hudson, nothing here requires adoption of a new analysis for the evaluation of commercial speech regulation." Id at —, 116 S.Ct. at 1522 (O'Connor, J., concurring in the judgment). Eight justices thus concluded that keeping legal users of alcoholic beverages ignorant of prices through a blanket ban on price advertising does not further any legitimate end. See id. at , 116 S.Ct. at 1509-10 (Stevens, J., concurring in the judgment); id at —, 116 S.Ct. at 1518 (Thomas, J., concurring in the judgment); id at —, 116 S.Ct. at 1521-22 (O'Connor, J., concurring in the judgment). Ill While Rhode Island's blanket ban on price advertising Page 4 failed Central Hudson scrutiny, Baltimore's attempt to zone outdoor alcoholic beverage advertising into appropriate areas survived our "close look" at the legislature's means of accomplishing its objective in Anheuser-Busch I. Baltimore's ordinance expressly targets persons who cannot be legal users of alcoholic beverages, not legal users as in Rhode Island. More significantly, Baltimore does not ban outdoor advertising of alcoholic beverages outright but merely restricts the time, place, and manner of such advertisements. And Baltimore's ordinance does not foreclose the plethora of newspaper, magazine, radio, television, direct mail, Internet, and other media available to Anheuser-Busch and its competitors. Moreover, in Baltimore City's case, neither the state nor the city is attempting to undermine democratic processes and circumvent public scrutiny by substituting a ban on advertising for a ban on the product, as the 44 Liquormart Court feared was the case with Rhode Island. 517 U.S. at —, 116 S.Ct. at 1508 (Stevens, J., concurring in the judgment); see also id. at —, 116 S.Ct. at 1517 (Thomas, J., concurring in the judgment) (citing "the dangers of permitting the government to do covertly what it might not have been able to muster the political support to do openly"); Central Hudson, 447 U.S. at 566 n. 9, 100 S.Ct. at 2351 n. 9; Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 780 n. 8,96 S.Ct 1817,1835 n. 8,48 L.Ed.2d 346 (1976) (Stewart, J., concurring). Rather, in Baltimore City, like in other communities, the possession and consumption of alcoholic beverages by minors has been already banned directly and forthrightly through legislation. See MdCode Art. 27, §§ 400-403A. Baltimore's restrictions thus reinforce the democratic decisionmaking mechanism's conclusion as to the dangerousness of underage drinking by protecting children from exposure to advertising which the legislature reasonably considers harmful in itself to children's maturation. And far from undermining the free dissemination of information to independently choosing consumers, Baltimore's ordinance supports the full development of its young so that they will be able to assess their market options intelligently and independently. In addition to the reasons given in Anheuser-Busch I and given here based on our consideration of 44 Liquormart, the differences between the Baltimore and Rhode Island regulations further support the constitutionality of Baltimore's ordinance. In contrast to Rhode Island's desire to enforce adult temperance through an artificial budgetary constraint, Baltimore's interest is to protect children who are not yet independently able to assess the value of the message presented. This decision thus conforms to the Supreme Court's repeated recognition that children deserve special solicitude in the First Amendment balance because they lack the ability to assess and analyze fully the information presented through commercial media. In the context of cable television, the Supreme Court recently upheld restrictions on programming imposed by the Cable Television Consumer Protection and Competition Act as a means of protecting children from indecent programming. See *330Denver Area Educ. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, —-, 116 S.Ct. 2374,2386, 135 L.Ed.2d 888 (1996) (plurality opinion). In the context of the radio medium, the Court has approved extra restrictions on indecent speech because of the pervasiveness of the medium and the presence of children in the audience. See FCC v. Pacifica Foundation, 438 U.S. 726, 750-51, 98 S.Ct. 3026, 3040-41, 57 L.Ed.2d 1073 (1978) (comparing indecent speech during hours when children are listening to the proverbial pig in the parlor); see also Action for Children's Television v. FCC, 58 F.3d 654, 657 (D.C.Cir.1995) (upholding the Public Telecommunications Act against a First Amendment challenge based on the state's compelling interest in protecting minors), cert, denied, — U.S. —, 116 S.Ct. 701,133 L.Ed2d 658 (1996). Similarly, the Supreme Court has sustained a law which protected children from non-obscene literature. See Ginsberg v. New York, 390 U.S. 629, 639-40, 88 S.Ct. 1274, 1280-81, 20 L.Ed.2d 195 (1968). And, while it has acknowledged a right to private possession of adult pornography in the home, see Stanley v. Georgia, 394 U.S. 557,566,89 S.Ct. 1243,1248-49,22 L.Ed.2d 542 (1969), the Court has clearly distinguished child pornography and allowed a stronger legislative response "to destroy a market for the exploitative use of children." Osborne v. Ohio, 495 U.S. 103, 109, 110 S.Ct. 1691, 1696, 109 L.Ed.2d 98 (1990); see also New York v. Ferber, 458 U.S. 747, 759, 102 S.Ct. 3348, 3355-56, 73 L.Ed.2d 1113 (1982). The underlying reason for the special solicitude of children was articulated long ago: "A democratic society rests, for its continuance, upon the healthy, well- rounded growth of young people into full maturity as citizens." Prince v. Massachusetts, 321 U.S. 158, 168, 64 S.Ct. 438,443, 88 L.Ed. 645 (1944). Baltimore's ordinance attempts to protect its children in a manner and with a motive distinct from those evidenced by Rhode Island in 44 Liquormart and in accord with an unbroken chain of Supreme Court cases which indicate its desire to ensure that children do not become lost in the marketplace of ideas. Accordingly, on reconsideration of our Central Hudson analysis of the time, place, and manner restriction in Anheuser-Busch I in light of 44 Liquormart, we again affirm the judgment of the district court. Page5 IT IS SO ORDERED. BUTZNER, Senior Circuit Judge, dissenting: I dissent because I believe we should vacate the district courts' judgments and remand these cases for evidentiary hearings. I address in this dissent both the cases pertaining to advertising of alcoholic beverages and the case pertaining to the advertising of cigarettes. The district court, whose judgment we review, noted that the parties agree that "the [Anheuser-Busch] advertising at issue is not unlawful or misleading, and that the City's interest in promoting the welfare and temperance of minors is substantial...." Anheuser-Busch, Inc. v. Mayor and City Council, 855 F.Supp. 811, 813 (D.Md.1994). This agreement established that the advertising satisfies the first two parts of the test the Supreme Court prescribed for determining whether regulation of commercial speech violates the First Amendment. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 566, 100 S.Ct. 2343, 2351, 65 L.Ed.2d 341 (1980). The difficulty in these cases, and in the related case pertaining to cigarette advertising, [FN*] arises from the third and fourth parts of the Central Hudson inquiry. These are "whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest." Central Hudson, 447 U.S. at 566, 100 S.Ct. at 2351. In the cigarette advertising case, the district court noted that the parties agree with the first—but not the second-part of the Central Hudson test. Penn Advertising, 862 F.Supp. at 1406. This slight difference in the posture of the cases *331 does not change my analysis of the proper response to the Supreme Court's remand. FN* Penn Advertising of Baltimore, Inc. v. Mayor and City Council, 862 F.Supp. 1402 (D.Md.1994), affd, 63 F.3d 1318 (4th Cir. 1995), vacated and remanded sub nom. Penn Advertising of Baltimore, Inc. v. Schmoke, 518 U.S. 1030, 116 S.Ct. 2575, 135 L.Ed.2d 1090 (1996). My dissent concerns how we should respond to the Supreme Court's remand and what procedures we should follow at this stage of the litigation. My dissent does not undertake to express an opinion on the merits of these cases. I wholeheartedly agree with Baltimore's officials, the amid who support them, and the parties that minors should not be encouraged directly or subliminally to drink or smoke. Nevertheless, balancing the First Amendment's protection of commercial speech against the city's restriction of the advertising at issue requires answering the third and fourth inquiries of Central Hudson. To obtain a sound basis for deciding these inquiries, district and reviewing courts need factual records. The district courts reached their decisions in Anheuser-Busch and Penn Advertising without an evidentiary hearing. Instead, the courts relied in large part on Posadas de Puerto Rico Assoc. v. Tourism Co. ofP.R., 478 U.S. 328, 106 S.Ct. 2968, 92 L.Ed.2d 266 (1986), and deferred to the Baltimore City Council's legislative record and findings. Unfortunately, the district courts did not have the benefit of 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S.CL 1495, 134 L.Ed.2d 711 (1996). In 44 Liquor Mart, the district court did not accept Rhode Island's legislative determination that banning the advertising of liquor prices would reduce consumption. Instead, the district court conducted an evidentiary hearing and reached the conclusion, which was based on testimony at the hearing, that the ban was unconstitutional. 44 Liquor Mart, Inc. v. Racine, 829 F.Supp. 543 (D.R.I.1993). The court of appeals reversed, accepting as reasonable Rhode Island's submission that competitive price advertising would increase consumption. It held that the statute was constitutional. 44 Liquormart, Inc. v. Rhode Island, 39 F.3d 5 (1st Cir. 1994). In turn, the Supreme Court reversed, criticizing the court of appeals' reliance on legislative findings to determine whether the ban of commercial speech infringed the First Amendment. 44 Liquormart, 517 U.S. at , 116 S.Ct. at 1503-04 (Stevens, J.) and 517 U.S. at —, 116 S.Ct. at 1515 (O'Connor, J., concurring in the judgment). By deciding not to remand for an evidentiary hearing despite the teaching of 44 Liquormart, I am concerned that our court is following the First Circuit's path. In 44 Liquormart, the Court criticized its own opinion in Posadas, 478 U.S. at 342, 344, 106 S.Ct. at 2977, 2978, because it had "accepted as reasonable, without further inquiry, Puerto Rico's assertions that the regulations furthered the government's interest and were no more extensive than necessary to serve that interest." 44 Liquormart, 517 U.S. at —, 116 S.Ct. at 1522 (O'Connor, J., concurring in the judgment). At least seven members of the Court expressly decided not to follow Posadas, concluding that a legislature's decision to suppress commercial speech, even if reasonable, is not entitled to deference. 44 Liquormart, 517 U.S. at ,116 S.Ct. at 1510-11 (Stevens, J., concurring in the judgment) and 517 U.S. at —, 116 S.Ct. at 1522 (O'Connor, J., concurring in the judgment). Rather than accept at face value the legislature's proffered justification for a speech regulation, courts should take Page 6 a "closer look" and carefully examine "the relationship between the asserted goal and the speech restriction used to reach that goal." 517 U.S. at —, 116 S.Ct. at 1522 (O'Connor, J., concurring in the judgment). In other words, courts should examine the evidence presented by the parties to make an independent determination about whether the underlying facts satisfy the Central Hudson test. See 511 U.S. at , 116 S.Ct. at 1509-10 (Stevens, J., concurring in the judgment). The independent evaluation that is now required is not possible in the absence of a factual record. It is true that the positions taken by Baltimore may turn out to be supported by a preponderance of the evidence. But speculation about what might be is not enough to resolve issues of First Amendment coverage that must ultimately turn on factual findings. In order to meet its burden under Central Hudson, the city must show "not merely that its regulation will advance its interest, but also that it will do so 'to a material degree.' " *33244 Liquormart, 517 U.S. at —, 116 S.Ct. at 1509 (Stevens, J., concurring in the judgment) (quoting Edenfieldv. Fane, 507 U.S. 761, 771, 113 S.Ct. 1792, 1800-01,123 L.Ed.2d 543 (1993)). Even assuming, as common sense might suggest, that Baltimore's restrictions will reduce underage drinking to some degree, without any findings of fact we cannot determine whether the effect will be significant. See 44 Liquormart, 517 U.S. at —, 116 S.Ct. at 1509 (Stevens, J., concurring in the judgment). Accordingly, each party should be given the opportunity to present evidence on this issue and to test the strength of the opposing party's evidence. Baltimore must also show that its speech regulation is narrowly tailored. Anheuser-Busch argued that the city could implement other measures that would reduce underage drinking as effectively as the advertising restrictions without regulating speech. The company specifically suggested education programs and increased law enforcement efforts. Cf. 44 Liquormart, 517 U.S. at —, 116 S.Ct. at 1510 (Stevens, J., concurring in the judgment) and 517 U.S. at , 116 S.Ct. at 1521-22 (O'Connor, J., concurring in the judgment). The company's position must be viewed in light of the numerous exceptions to the ordinance that inevitably will allow a substantial amount of alcohol advertising to reach a great number of minors. The company's argument should be evaluated on the strength of the facts that support and negate it. The parties should be given the opportunity to present and contest those facts. The same reasoning applies to Baltimore's restriction on cigarette advertising. Whether that restriction advances the asserted governmental interest and whether it is unnecessarily extensive raise factual questions that only an evidentiary hearing can answer. For example, Baltimore's transit buses, which carry children as well as adults, are exempted from the ordinance that restricts advertising of cigarettes. The ordinance permits such advertising at a ball park where minors watch games. What effect these and similar facts have on the validity of the city ordinance should be weighed by a court. A charge that advertising restrictions infringe rights guaranteed by the First Amendment requires careful evaluation assessing the credibility of witnesses and weighing the evidence. These functions should be performed by a judge- not by a city council. See 44 Liquormart, 517 U.S. at —, 116 S.Ct. at 1511 (Stevens, J., concurring in the judgment). The court should base its evaluation of the case on the facts underlying the dispute and the reasonable inferences drawn from those facts rather than the version of the facts that appears in the allegations and legislative findings. By affirming the district court's judgment without adducing and examining the facts, a reviewing court engages in the type of deferential review that 44 Liquormart deems improper. Present in this litigation are questions about the credibility of expert witnesses and genuine issues of material fact concerning the inferences that reasonably can be drawn from the evidence. Because of these circumstances, neither summary judgment nor dismissal under Rule of Civil Procedure 12(b)(6) is appropriate. I would vacate the district court's judgment and remand these cases for evidentiary hearings. 101 F.3d 325,65 USLW 2340,24 Media L. Rep. 2491 Briefs and Other Related Documents (Back to top) • 1996 WL 33417860 (Appellate Brief) Brief of Washington Legal Foundation in Response to Order of June 26, 1996 as Amicus Curiae in Support of Appellants (Jul. 17, 1996)Original Image of this Document (PDF) • 1996 WL 33417859 (Appellate Brief) Supplemental Brief of Amici Curiae Submitted by the Coalition for Beautiful Neighborhoods and the Baltimore City Wide Liquor Coalition for Better Laws and Regulations (Jul. 08, 1996)Original Image of this Document (PDF) • 1996 WL 33417854 (Appellate Brief) Supplemental Brief of Plaintiffs - Appellants Anheuser-Busch, Inc. and Perm Advertising of Baltimore, Inc. (1996)OriginaI Page? Image of this Document (PDF) • 1994 WL 16014464 (Appellate Brief) Reply Brief of Plaintiffs - Appellants Anheuser-Busch, Inc. and Perm Advertising of Baltimore, Inc. (Jul. 28, 1994)Original Image of this Document with Appendix (PDF) • 1994 WL 16014465 (Appellate Brief) Brief of Amici Curiae Submitted by the Coalition for Beautiful Neighborhoods and the Baltimore City Wide Liquor Coalition for Better Laws and Regulations (Jul. 21, 1994)Original Image of this Document (PDF) • 1994 WL 16014466 (Appellate Brief) Brief of Amicus Curiae Submitted by the Center for Science in the Public Interest in Support of Defendants-Appellees (Jul. 11, 1994)Original Image of this Document (PDF) • 1994 WL 16014470 (Appellate Brief) Brief of Appellees (Jul. 1994)Original Image of this Document (PDF) • 1994 WL 16014468 (Appellate Brief) Brief Amici Curiae Submitted by the Association of National Advertisers, Inc. and the American Association of Advertising Agencies in Support of Plaintiffs-Appellants (May. 31,1994)Original Image of this Document (PDF) "***"*' • 1994 WL 16014469 (Appellate Brief) Brief of Washington Legal Foundation as Amicus Curiae in Support of Appellants (May. 31, 1994)Original Image of this Document (PDF) • 1994 WL 16014467 (Appellate Brief) Supplemental Brief of Amici Curiae the Thomas Jefferson Center for the Protection of Free Expression and the Media Institute (1994)Original Image of this Document (PDF) END OF DOCUMENT Page 1 Copr. ® West 1999 No Claim to Orig. U.S. Govt. Works 154 F.3d 1097 98 Cal. Daily Op. Serv. 7073, 98 Daily Journal D.A.R. 9789 (Cite as: 154 F.3d 1097) BABY TAM & CO., INC., A Nevada corporation, Plaintiff-Appellant, v. CITY OF LAS VEGAS, Defendant-Appellee. No. 98-15004. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 13, 1998. Decided Sept. 10, 1998. Applicant which had been denied a business license to operate an adult bookstore sued city under § 1983 seeking a permanent injunction against enforcement of the licensing ordinance as an unconstitutional prior restraint on speech. Preliminary injunction was denied by the United States District Court for the District of Nevada, Philip M. Pro, J., and applicant appealed. The Court of Appeals, David R. Thompson, Circuit Judge, held that: (1) applicant had standing to challenge the ordinance, and (2) ordinance was facially unconstitutional as prior restraint on speech without provision for prompt judicial review. Reversed and remanded. [1] INJUNCTION k!38.21 212kl38.21 To obtain a preliminary injunction, a party must establish either: (1) probable success on the merits and irreparable injury, or (2) sufficiently serious questions going to the merits to make the case a fair ground for litigation with the balance of hardships tipping decidedly in its favor. [2] INJUNCTION k!38.21 212kl38.21 The two formulations of prerequisites for a preliminary injunction represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases; they are not separate tests but rather outer reaches of a single continuum. [3] CONSTITUTIONAL LAW k48(4.1) 92k48(4.1) Facial challenges to legislation are permitted in the context of the First Amendment when the legislation allegedly vests government officials with unbridled discretion, or when mere is a lack of adequate procedural safeguards necessary to ensure against undue suppression of protected speech. U.S.C.A. Const.Amend. 1. [4] CONSTITUTIONAL LAW k42.2(l) 92k42.2(l) Applicant denied a business license to operate an adult bookstore had standing to assert facial challenge to applicable licensing and zoning ordinance as an unconstitutional prior restraint of speech, where it alleged that ordinance vested the City with "unbridled discretion" to deny a license and lacked constitutionally required procedural safeguards. U.S.C.A. Const.Amend. 1. [5] CONSTITUTIONAL LAW k90(3) 92k90(3) A "prior restraint" of speech exists when the enjoyment of protected expression is contingent upon the approval of government officials. U.S.C.A. Const.Amend. 1. See publication Words and Phrases for other judicial constructions and definitions. [6] CONSTITUTIONAL LAW k90.1(4) 92k90.1(4) City's licensing scheme was properly analyzed as a prior restraint on speech where ordinance required all proposed bookstores to apply for and obtain a license before engaging in business. U.S.C.A. Const.Amend. 1. [7] CONSTITUTIONAL LAW k90(3) 92k90(3) Although prior restraints on speech are not unconstitutional per se, any system of prior restraint bears a heavy presumption against its constitutional validity. U.S.C.A. Const.Amend. 1. [8] CONSTITUTIONAL LAW k90(3) 92k90(3) To pass constitutional muster, a legislative prior restraint on speech must contain certain procedural safeguards, and a decision to issue or deny a license must be made within a brief, specified and reasonably prompt period of time. U.S.C.A. Const.Amend. 1. [8] CONSTITUTIONAL LAW k90.1(4) 92k90.1(4) To pass constitutional muster, a legislative prior restraint on speech must contain certain procedural safeguards, and a decision to issue or deny a license must be made within a brief, specified and reasonably prompt period of time. U.S.C.A. Const.Amend. 1. [9] CONSTITUTIONAL LAW k90.1(4) 92k90.1(4) A licensing scheme involving a prior restraint on speech must provide an avenue for prompt judicial review in the event a license is denied, and "prompt judicial review" means the opportunity for a prompt hearing and a prompt decision by a judicial officer. U.S.C.A. Const. Amend. 1. See publication Words and Phrases for other judicial constructions and definitions. [10] CONSTITUTIONAL LAW k90.1(4) 92k90.1(4) The First Amendment cannot tolerate a prior restraint that gives the effect of finality to the licensing official's decision to deny a license; only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression. U.S.C.A. Const. Amend. 1. [11] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) Ordinance under which applicant was denied business license to operate an adult bookstore was facially unconstitutional under the First and Fourteenth Amendments as prior restraint on speech without provision for prompt judicial review, though ordinance provided that, if a bookstore license is denied, the applicant may file a petition for a writ of mandamus in state court, where ordinance contained no provision that a judicial hearing must be held or a decision must Page 2 be rendered within a prescribed period of time. U.S.C.A. Const.Amends. 1, 14. [11] CONSTITUTIONAL LAW k287.2(l) 92k287.2(l) Ordinance under which applicant was denied business license to operate an adult bookstore was facially unconstitutional under the First and Fourteenth Amendments as prior restraint on speech without provision for prompt judicial review, though ordinance provided that, if a bookstore license is denied, the applicant may file a petition for a writ of mandamus in state court, where ordinance contained no provision that a judicial hearing must be held or a decision must be rendered within a prescribed period of time. U.S.C.A. Const.Amends. 1, 14. [11] LICENSES k7(l) 238k7(l) Ordinance under which applicant was denied business license to operate an adult bookstore was facially unconstitutional under the First and Fourteenth Amendments as prior restraint on speech without provision for prompt judicial review, though ordinance provided that, if a bookstore license is denied, the applicant may file a petition for a writ of mandamus in state court, where ordinance contained no provision that a judicial hearing must be held or a decision must be rendered within a prescribed period of time. U.S.C.A. Const.Amends. 1, 14. [12] CIVIL RIGHTS k264 78k264 Where ordinance under which applicant was denied business license to operate an adult bookstore was facially unconstitutional, applicant was entitled to a permanent injunction prohibiting the city from enforcing the ordinance in its present form. U.S.C.A. Const.Amends. 1, 14. *1098 Michael D. Stein, Las Vegas, NV, for plaintiff-appellant. Philip R. Byrnes, Las Vegas, NV, for defendant-appellee. Appeal from the United States District Court for the District of Nevada Philip M. Pro, District Judge, Presiding. D.C. No. CV-97-01522-PMP. Before: REINHARDT, NOONAN and THOMPSON, Circuit Judges. DAVID R. THOMPSON, Circuit Judge: Baby Tarn & Co., Inc. ("Baby Tarn") sought, and was denied, a Las Vegas business license to operate an adult bookstore. It sued the City of Las Vegas ("City") under 42 U.S.C. § 1983 seeking a permanent injunction* 1099 enjoining the City from enforcing the licensing ordinance. Baby Tarn alleged that the licensing scheme constituted an unconstitutional prior restraint and suppression of speech in violation of the First and Fourteenth Amendments. The district court denied Baby Tarn's application for a preliminary injunction. Baby Tarn appeals that denial. We have jurisdiction under 28 U.S.C. § 1292(a)(l). Because the ordinance fails to provide for prompt judicial review of a license denial, as required by Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965) and FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 227, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (plurality opinion), the ordinance on its face is a prior restraint of speech which violates the First and Fourteenth Amendments. Accordingly, we reverse the district court's denial of Baby Tarn's application for a preliminary injunction. Because our resolution of this issue is determinative of the litigation, we remand with instructions to the district court to enter a permanent injunction enjoining enforcement of the ordinance in its present form. FACTS Baby Tarn operates its business under the name "Hot Stuff." Among other items, the store sells sexual novelties, adult videos, general videos, T-shirts, and gag gifts. In January of 1997, Baby Tarn sought a business license for Hot Stuff from the City of Las Vegas. In Las Vegas, a business must obtain a license before beginning operations. Las Vegas, Nev. Municipal Code ("L.V.M.C.") § 6.02.060 (1996). Baby Tarn proposed to operate its business at 5100 W. Charleston Boulevard in the City of Las Vegas. This location is within the City's C-l zone. That zone allows the presence of various commercial establishments, but not adult bookstores. L.V.M.C. § 19.74.020(A) (1992). Adult bookstores are permitted in other zones in the City. Under L.V.M.C. § 19.74.020(A), an "adult bookstore" is defined as an establishment "having at least fifty-one percent of its stock in trade books, film, magazines, and other periodicals Page 3 which are distinguished or characterized by an emphasis on depicting or describing sexual conduct or specified anatomical areas." [FN1] FN1. Section 19.74.010(A) defines sexual conduct as: 1) the fondling or other touching of human genitals, pubic region, buttocks or female breasts; 2) Ultimate sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, 3) sodomy; 4) masturbation; and excretory functions as part of or in connection with the activities in 1, 2, or 3 above. Section 19.74.010(6) defines specified anatomical areas as: 1) Human genitals, pubic region, buttocks and female breasts below a point immediately above the top of the areola; 2) Human genitals in a discernibly turgid state, even if completely and opaquely covered. On its application for a business license, Baby Tarn stated that 30% of its merchandise would be adult videos. Based on that application, the City issued a 60-day temporary bookstore license which enabled Hot Stuff to begin operations. After the temporary license expired, the City issued another temporary license. In all, Baby Tarn received four temporary licenses. Under the temporary license provision of the City's licensing ordinance, a business may receive a maximum of only three temporary licenses. L.V.M.C. § 6.02.070(D). Baby Tarn never received a permanent license. [FN2] Before the final temporary license expired, the City conducted an audit of the Hot Stuff store's inventory to determine what percentage of it consisted of adult material. According to the results of that audit, the store's adult inventory exceeded the 51% threshold proscribed by the zoning ordinance. [FN3] The City ordered Baby Tam to *1100 cease operations at the Charleston Boulevard location by October 29, 1997. FN2. During the time that Hot Stuff was operating under the temporary licenses, the City amended the zoning ordinance to include sexual novelties as a product to be considered in computing the percentage of adult inventory. See L.V.M.C. § 19A.04(2). FN3. Under the pre-amendment ordinance, which does not include sexual novelties, the City concluded that 58% of the inventory consisted of adult material. Under the amended ordinance, which added sexual novelties, the auditors found that 83% of the store's inventory was adult material. On October 28, Baby Tarn filed suit against the City in the district court seeking to enjoin the City from enforcing the ordinance. Baby Tarn alleged that the City's bookstore licensing and zoning ordinance was an unconstitutional prior restraint, in violation of the First and Fourteenth Amendments. Baby Tarn also alleged that the amendment to the zoning ordinance, which added sexual novelties to the classification of "sexual material," suppressed Baby Tarn's speech in violation of the First and Fourteenth Amendments. The district court denied Baby Tarn's motion for a preliminary injunction, and this appeal followed. DISCUSSION [1][2] To obtain a preliminary injunction, a party must establish either: (1) probable success on the merits and irreparable injury, or (2) sufficiently serious questions going to the merits to make the case a fair ground for litigation with the balance of hardships tipping decidedly in its favor. Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524, 1528 (9th Cir.1993). "These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases." United States v. Nutri-cology, Inc., 982 F.2d 394, 397 (9th Cir.1992) (quoting Oakland Tribune, Inc. v. Chronicle Publishing Co., 762 F.2d 1374, 1376 (9th Cir.1985)). They are not separate tests but rather "outer reaches of a single continuum." Los Angeles Memorial Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1201 (9th Cir. 1980). The district court determined that the Las Vegas ordinance did not amount to an unconstitutional prior restraint, and Baby Tarn lacked standing to challenge the amendment. The court also concluded that Baby Tarn demonstrated neither a Page 4 probability of success on the merits nor sufficiently serious questions going to the merits to make the case a fair ground for litigation. Baby Tarn asserts both a facial and an as-applied challenge to the constitutionality of the ordinance. We first consider the facial challenge and whether Baby Tarn has standing to assert it. [3][4] Facial challenges to legislation have been permitted in the context of the First Amendment when the legislation allegedly vests government officials with unbridled discretion. The rationale is that "every application of the statute create[s] an impermissible risk of suppression of ideas." City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 n. 15, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). A facial challenge is also appropriate when there is a lack of adequate procedural safeguards necessary to ensure against undue suppression of protected speech. FW/PBS, 493 U.S. at 223-24, 110 S.Ct. 596. Because, according to Baby Tarn, the licensing/zoning ordinance vests the City with "unbridled discretion" to deny a license, and because the ordinance lacks constitutionally required procedural safeguards, Baby Tarn has standing to assert its facial challenge. In making this challenge, it contends the City's licensing and zoning ordinance is an unconstitutional prior restraint of speech. [5][6][7] A prior restraint exists when the enjoyment of protected expression is contingent upon the approval of government officials. Near v. Minnesota, 283 U.S. 697, 713, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). Because L.V.M.C. § 6.06A.015 requires all proposed bookstores to apply for and obtain a license before engaging in business, the City's licensing scheme is properly analyzed as a prior restraint. Although prior restraints are not unconstitutional per se, the Supreme Court has repeatedly stated that "[a]ny system of prior restraint" bears "a heavy presumption against its constitutional validity." FW/PBS, 493 U.S. at 225, 110 S.Ct. 596 (quoting Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975)); Freedman, 380 U.S. at 57, 85 S.Ct. 734; Vance v. Universal Amusement Co., 445 U.S. 308, 315-16, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980). [8] It is well established that, to pass constitutional muster, a legislative prior restraint must contain certain procedural safeguards. Page 5 FW/PBS, 493 U.S. at 228, 110 S.Ct. 596; Freedman, 380 U.S. at 58-59, 85 S.Ct. 734. A decision to issue or deny a license must be made within a brief, specified and reasonably prompt period of time. FW/PBS, *1101 493 U.S. at 226, 110 S.Ct. 596; Freedman, 380 U.S at 59, 85 S.Ct. 734. Promptness is essential because undue "delay compel[s] the speaker's silence" while the applicant awaits a decision. FW/PBS, at 226, 110 S.Ct. 596. Unreasonable and indefinite delay is tantamount to the complete suppression of speech. Id. at 227, 110 S.Ct. 596. [9][10] A licensing scheme involving a prior restraint must also provide an avenue for prompt judicial review in the event a license is denied. Id. This is necessary because the First Amendment cannot tolerate a prior restraint that gives the effect of finality to the licensing official's decision to deny a license. Freedman, 380 U.S. at 58, 85 S.Ct. 734. "[O]nly a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression." Id. These two safeguards were first set forth by the Supreme Court in Freedman, 380 U.S. at 58-59, 85 S.Ct. 734. The Freedman Court also set forth a third procedural safeguard that required the licensor to bear the burden of going to court and justifying a license denial. Id. at 59-60, 85 S.Ct. 734. The current status of this third safeguard is unclear. Justice O'Connor's plurality opinion in FW/PBS dispensed with the requirement in the context of business licensing schemes. FW/PBS, 493 U.S. at 229-30, 110 S.Ct. 596. However, because only Justices Stevens and Kennedy concurred on this point, FW/PBS did not overrule Freedman. We need not consider the applicability of the third Freedman safeguard in this appeal, because the ordinance clearly lacks the second procedural safeguard of "prompt judicial review." Id. This lack of a provision for prompt judicial review also makes it unnecessary for us to determine whether the first Freedman safeguard is satisfied. [11] The ordinance does not completely ignore judicial review. It provides that if a bookstore license is denied, the applicant may file a petition for a writ of mandamus in a Nevada state court. L.V.M.C. § 6.06A.025(D). The question we confront is whether this provision for mandamus relief satisfies the requirement of prompt judicial review. We hold that it does not. Once a mandamus petition is filed in a Nevada state court, the writ may, "in the discretion of the court or judge issuing the writ, be made returnable and hearing thereon be had at any time." Nev.Rev.Stat. §34.180(1997). There is no provision that a judicial hearing must be held or a decision must be rendered within a prescribed period of time. Because of the absence of such a provision, the licensing scheme fails to provide for prompt judicial review. The meaning of "prompt judicial review" in the context of adult business licensing schemes has been considered by five circuits since the Court rendered its plurality decision in FW/PBS. The Fifth and Seventh Circuits have held that prompt access to judicial review is sufficient, even if there is no time frame for a hearing or a decision on the merits. See TK's Video, Inc. v. Denton County, Tex., 24 F.3d 705, 709 (5th Cir.1994); Graff v. City of Chicago, 9 F.3d 1309, 1324-25 (7th Cir.l993)(en bane). The Fourth and Sixth Circuits have held that prompt judicial review requires a prompt decision on the merits. See 11126 Baltimore v. Prince George's County, Md., 58 F.3d 988 (4th Cir. 1995)(en bane); East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220, 225 (6th Cir. 1995). The Eleventh Circuit rejects the view that mere access to judicial review is sufficient, but has not said what more is required to satisfy the prompt judicial review standard. See Redner v. Dean, 29 F.3d 1495, 1501-02 (llth Cir. 1994). We reject the view of the Fifth and Seventh Circuits that mere access to judicial review is sufficient. As the Seventh Circuit acknowledged in Graff, "[a] person always has a judicial forum when his speech is allegedly infringed. " Graff, 9 F.3d at 1324. Thus, to hold that mere access to judicial review fulfills the second Freedman safeguard makes the safeguard itself meaningless. We conclude that "prompt judicial review" means the opportunity for a prompt hearing and a prompt decision by a judicial officer. The phrase "judicial review" compels this conclusion. The phrase necessarily has two elements--(l) consideration of a dispute by a judicial officer, and (2) a decision. Without consideration, there is no review; without a decision, the most exhaustive review is *1102 worthless. In baseball terms it would be like throwing a pitch and not getting a call. As Page 6 legendary major league umpire Bill Klem once said to an inquisitive catcher: "It ain't nothin' till I call it." This is also true of judicial review. Until the judicial officer makes the call, it ain't nothin'. Our view that prompt judicial review requires a prompt judicial decision is supported by the Fourth and Sixth Circuits, and perhaps by the Eleventh Circuit as well. More importantly, the Supreme Court's fountainhead case on this issue, Freedman v. Maryland, supports this view. There, in explaining why a motion picture censor's decision could not be the final decision restraining exhibition of a film, the Court stated, "Only a procedure requiring a judicial determination suffices to impose a valid final restraint." Freedman, 380 U.S. at 58, 85 S.Ct. 734 (emphasis added). The Court further stated: "Any restraint imposed in advance of a final judicial determination on the merits must necessarily be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution." Id. at 59, 85 S.Ct. 734 (emphasis added). And, finally, removing all doubt that "determination" and "resolution" mean a judicial "decision," the Court stated: "Therefore, the procedure must also assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license." Id. (emphasis added). The Court's use of the word "final" in conjunction with "judicial determination" and "judicial decision" means that the judicial officer should make the final decision denying a license rather than a state censor, if judicial review is sought. It does not refer to a court's decision itself becoming final through various rehearing and appellate procedures. This is made clear by the Court's example of a model for the required procedural safeguards. The model the Court referred to was the procedure it upheld in Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957). The Court stated that in Kingsley We upheld a New York injunctive procedure designed to prevent the sale of obscene books. That procedure postpones any restraint against sale until a judicial determination of obscenity following notice and an adversary hearing. The statute provides for a hearing one day after joinder of issue; the judge must hand down his decision within two days after termination of the hearing. Freedman, 380 U.S. at 60, 85 S.Ct. 734. Nothing in this model requires that the judicial decision be final; only that the judicial decision be prompt. The part of the Freedman opinion that required a prompt judicial decision was not discussed by Justice O'Connor in her FW/PBS plurality opinion. But the FW/PBS plurality did not dispute this point. The plurality took issue only with Freedman 's requirement that the censor bear the cost of going to court to obtain judicial review; otherwise, FW/PBS offered nothing different from Freedman 's concept of what "judicial review" meant. See 11126 Baltimore, 58 F.3d at 999 ("when Justice O'Connor [in FW/PBS ] refers to 'prompt judicial review,' she cites to Freedman, and it is unmistakable that Freedman required ... a final judicial determination ...." (quoting Freedman, 380 U.S. at 59, 85 S.Ct. 734) (emphasis added by 11126 Baltimore). [12] We hold that because the City's ordinance fails to provide for a prompt hearing and prompt decision by a judicial officer, it fails to provide for prompt judicial review and violates the First and Fourteenth Amendments. Because the ordinance is unconstitutional, Baby Tarn has a 100% probability of success on the merits of its suit to obtain a permanent injunction. No facts which might be adduced at a trial will change this result. Accordingly, there is no need to remand for a trial. Baby Tam is entitled to a permanent injunction prohibiting the City from enforcing the ordinance in its present form. Having resolved this issue, it is unnecessary for us to decide the other issues Baby Tam raises. CONCLUSION We reverse the district court's denial of Baby Tarn's application for a preliminary injunction. We remand this case to the district court with instructions to issue a permanent *1103 injunction enjoining the City from enforcing Chapter 6.06 A of the Las Vegas Municipal Code against Baby Tam to deny it a license to operate its adult bookstore at 5100 W. Charleston Boulevard in the City of Las Vegas, so long as the applicable bookstore licensing and zoning ordinance fails to provide for a prompt hearing and prompt decision by a judicial officer reviewing the City's denial of an application for a bookstore license. Page 7 REVERSED and REMANDED. END OF DOCUMENT Page 1 Copr. ® West 2000 No Claim to Orig. U.S. Govt. Works 199F.3d 1111 2000 Daily Journal D.A.R. 509 (Cite as: 199 F.3d 1111) BABY TAM & CO., INC., a Nevada corporation, Plaintiff-Appellant, v. CITY OF LAS VEGAS, Defendant-Appellee. No. 99-16809. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 16, 1999. Filed Jan. 14, 2000. Applicant which had been denied a business license to operate an adult bookstore brought § 1983 action against city, seeking a permanent injunction against enforcement of the licensing ordinance as an unconstitutional prior restraint on speech. Preliminary injunction was denied by the United States District Court for the District of Nevada, Philip M. Pro, J., and applicant appealed. The Court of Appeals, 154F.3d 1097, reversed and remanded, finding ordinance unconstitutional. After entering permanent injunction, the District Court, Philip Prow, J., subsequently dissolved injunction based on city's showing that ordinance had been amended to permit judicial review of license denial. Applicant appealed. The Court of Appeals, Noonan, Circuit Judge, held that: (1) mandamus was constitutionally adequate form of review of license denials, but (2) ordinance was invalid for failing to provide definite time period in which city had to act upon application. Reversed and remanded with instructions. David R. Thompson, Circuit Judge, filed dissenting opinion. [1] FEDERAL COURTS k933 170Bk933 Applicant who successfully challenged city's licensing scheme for adult bookstores based on scheme's failure to provide for prompt judicial review did not thereby abandon its other constitutional objections to facial validity of ordinance, so Court of Appeals could address those other issues after city amended scheme's judicial review provisions and district court dissolved permanent injunction. [2] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) Mandamus review was constitutionally adequate form of judicial review for city's denial of license to operate adult bookstore, for purpose of challenge to licensing ordinance as improper prior restraint, since mandamus procedure apparently provided for reasonable opportunity to obtain determination of all constitutional issues. U.S.C.A. Const.Amend. 1. [2] MANDAMUS k87 250k87 Mandamus review was constitutionally adequate form of judicial review for city's denial of license to operate adult bookstore, for purpose of challenge to licensing ordinance as improper prior restraint, since mandamus procedure apparently provided for reasonable opportunity to obtain determination of all constitutional issues. U.S.C.A. Const.Amend. 1. [3] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) City ordinance governing issuance of licenses for adult bookstores was unconstitutional prior restraint, since it provided for no definite time period in which city had to act upon application, in view of requirements under health, zoning, fine, and safety laws for which no time limit was set by law. U.S.C.A. Const.Amend. 1. [3] THEATERS AND SHOWS k3 376k3 City ordinance governing issuance of licenses for adult bookstores was unconstitutional prior restraint, since it provided for no definite time period in which city had to act upon application, in view of requirements under health, zoning, fine, and safety laws for which no time limit was set by law. U.S.C.A. Const.Amend. 1. *1112 Michael D. Stein, Kenehan Lambertsen & Stein, Las Vegas, Nevada, for the plaintiff-appellant. William P. Henry, Deputy City Attorney, Las Vegas, Nevada, for the defendant- appellee. Appeal from the United States District Court for the District of Nevada; Garland E. Burrell, District Judge, Presiding. D.C. No. CV-97-01522-PMP(LML). Before: REINHARDT, NOONAN and THOMPSON, Circuit Judges. Opinion by Judge NOONAN; Dissent by Judge DAVID R. THOMPSON. NOONAN, Circuit Judge: Baby Tarn & Co., Inc., (Baby Tarn) appeals the dissolution of the permanent injunction of the district court enjoining the City of Las Vegas (the City) from enforcing Chapter 6.06A of the Las Vegas Municipal Code against Baby Tarn. We hold that Chapter 6.06A is still on its face unconstitutional. Accordingly, we reverse the judgment of the district court and remand for re- entry of the permanent injunction. PROCEEDINGS This case is a sequel to Baby Tarn & Co., Inc. v. City of Las Vegas, 154 F.3d 1097 (9th Cir. 1998) (Baby Tarn I). The proceedings prior to the decision are fully set out therein. In Baby Tarn I we held that Chapter 6.06A failed to provide for prompt judicial review of a denial of a license to operate a bookstore and therefore was "on its face a prior restraint of speech which violates the First and Fourteenth amendments." Id. at 1099. We stated: "Having resolved this issue, it is unnecessary for us to decide the other issues Baby Tarn raises." Id. at 1102. We remanded with instructions enjoining the City from enforcing Chapter 6.06A of the Las Vegas Municipal *1113 Code against Baby Tarn to deny it a license to operate its adult bookstore at 5100 W. Charleston Boulevard in the City of Las Vegas, so long as the applicable bookstore licensing and zoning ordinance fails to provide for a prompt hearing and prompt decision by a judicial officer reviewing the City's denial of an application for a bookstore licence. The district court issued a permanent injunction Page 2 in the terms set by the remand. The City then took steps to remedy the constitutional defect that the court had identified. The City amended section 6.06A.025 to add subsection D, which provides as follows: (D) In the event that an application is denied, the applicant may file or cause to be filed in the district court a petition for judicial examination of the validity of the denial of the bookstore license as provided by Chapter 34 of NRS. If the district court has not decided the validity of the denial within thirty days after the petition is filed, the Director shall issue a temporary bookstore license. The temporary bookstore license shall remain in effect only until the district court has rendered its opinion concerning the validity of the denial. The City also secured amendments to Chapter 34 of the Nevada Revised Statutes, as follows: 1. If the applicant is alleging an unconstitutional prior restraint of his rights pursuant to the First Amendment to the Constitution of the United States or section 9 of article 1 of the constitution of the State of Nevada, the applicant shall insert the words "First Amendment Petition" in the caption of the application for the writ in at least 10-point type. 2. The court shall render judgment on an application for a writ described in subsection 1 not later than 30 days after the date on which the application for the writ is filed. Sec. 2. NRS 34.180 is hereby amended to read as follows: 34.180 [The ] Except as otherwise provided in section 1 of this act, the writ of mandamus may, in the discretion of the court or judge issuing the writ, be made returnable and a hearing thereon be had at any time. Sec. 3. NRS 34.300 is hereby amended to read as follows: 34.300 Except as otherwise provided in NRS 34.150 to 34.290, inclusive, and section 1 of this act, the provisions of NRS and Nevada Rules of Civil Procedure relative to civil actions in the district court are applicable to and constitute the rules of practice in the proceedings mentioned in NRS 34.150 to 34.290, inclusive [.], and section 1 of this act. Sec. 4. This act becomes effective upon passage and approval. The City also persuaded the Eighth Judicial District Court to change its rules of practice by adding Rule 2.17, which provides as follows: (a) A petitioner seeking review of a claim of PageS prior restraint under the First Amendment to the United States Constitution must label the extraordinary writ and points and authorities "First Amendment Writ." Points and authorities in support of the writ must be served and filed concurrently with the writ, and petitioner must immediately deliver a courtesy copy of the writ and points and authorities to the assigned department. (b) The respondent must serve and file a memorandum of points and authorities in opposition thereto within 15 days after service of petitioner's points and authorities. (c) Petitioner may serve and file reply points and authorities not later than 3 days after service of respondent's opposition. (d) Within 25 days after the writ and accompanying points and authorities are filed and a courtesy copy delivered to the assigned department, the court shall conduct a hearing. The court shall rule on the writ within 30 days after the writ and accompanying points and *1114 authorities are filed and a courtesy copy delivered to the assigned department. The City then applied to the district court for ••%*,„,. dissolution of the permanent injunction. On July 20, 1999, the district court held that "the deficiencies noted by the Ninth Circuit Court of Appeals had been corrected" and dissolved the permanent injunction. Baby Tarn appeals. ANALYSIS [1] In Baby Tarn I this court decided the case on a narrow basis, explicitly noting that Baby Tarn had raised other issues which it was not necessary to reach. By winning the case on the first appeal, Baby Tarn did not abandon its other constitutional objections to the facial validity of the municipal ordinance. The City is mistaken in supposing that those issues are no longer part of this case and no longer before us. [2] The City, the legislature of the State of Nevada, and the Eighth Judicial District Court have cooperated magnificently to eliminate the constitutional defect identified by this court. Baby Tarn objects that the form of judicial review provided—mandamus—will not be constitutionally .j,^ adequate. The Nevada mandamus procedure, however, appears to provide for a reasonable ^*BI1*' opportunity to obtain a determination of all constitutional issues. As we stated in Baby Tarn I, "[t]he phrase Qudicial review] necessarily has two elements—(1) consideration of a dispute by a judicial officer, and (2) a decision." 154 F.3d at 1101. Baby Tarn may, of course, raise an objection if the ordinance is unconstitutionally applied. But on its face the judicial review appears to pass constitutional muster. [3] A Las Vegas council member or a Nevada legislator might think, we did what the courts said the Constitution required. Wasn't that enough? As it turns out, it wasn't, because this court did not take upon itself to expound all the constitutional problems in the statute or write a primer on the First Amendment. This court did give preeminence in its opinion to FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), citing at several places in the opinion. That case points without ambiguity to a continuing defect in the City's ordinance. To quote the decisive language: Where the licensor has unlimited time within which to issue a license, the risk of arbitrary suppression is as great as the provision of unbridled discretion. A scheme that fails to set reasonable time limits on the decisionmaker creates the risk of indefinitely suppressing permissible speech. Although the ordinance states that the "chief of police shall approve the issuance of a license by the assessor and collector of taxes to an applicant within 30 days after receipt of an application," the license may not issue if the "premises to be used for the sexually oriented business have not been approved by the health department, fire department, and the building official as being in compliance with applicable laws and ordinances." § 41A-5(a)(6). Moreover, the ordinance does not set a time limit within which the inspections must occur. The ordinance provides no means by which an applicant may ensure that the business is inspected within the 30-day time period within which the license is purportedly to be issued if approved. The city asserted at oral argument that when applicants apply for licenses, they are given the telephone numbers of the various inspection agencies so that they may contact them. Tr. of Oral Arg. 48. That measure, obviously, does not place any limits, on the time within which the city will inspect the business and thereby make the business eligible for me sexually oriented business license. Thus, the city's regulatory scheme allows indefinite postponement of the issuance *1115 of a license. Id. at 228, 110 S.Ct. 596. As a consequence, the Dallas ordinance in that case was held invalid. The quoted language is from the plurality opinion of Justice O'Connor, concurred in by Justices Stevens and Kennedy; but the implication sometimes conveyed by "plurality opinion" is deceiving, because Justices Brennan, Blackmun, and Marshall would have gone further in holding the ordinance entirely invalid; so, in effect, six members of the Supreme Court found this kind of ordinance defective. Section 6.06A.025 is not any different from the invalid Dallas ordinance. It reads: (A) The Director shall issue or deny the bookstore license to the applicant within thirty days from receipt of a complete application and fees upon compliance with the requirements of this Section and any applicable provisions of Title 6 of this Code. (B) Failure of the Director to approve or deny the license application within the thirty days shall result in the license being granted. Section (B) defines the Director's duty to act "within the thirty days." The use of the definite article "the" identifies this period as the thirty days just referred to in (A). Under (A) the thirty days begin to run "from receipt of a complete application and fees upon compliance with the requirements of this Section and any applicable provisions of Title 6 of this Code." Other applicable provisions of the Code include "the standards of the health, zoning, fine and safety laws of the State of Nevada and ordinances of the City of Las Vegas applicable thereto." LVMC § 6.06A.020. No time limit is set within which satisfaction of these requirements must be found. The time is as indefinite as in the invalid Dallas ordinance. The thirty days within which the Director must act may be indefinitely postponed. The ordinance fails to meet the requirements of the First and Fourteenth Amendments. In reaching this conclusion and invalidating the ordinance for this facial flaw, we do not prejudge any other issue that may arise in further litigation of this case. Baby Tarn in its suit challenged the City's "business and zoning license scheme" on several fronts. In again deciding on one issue, we do not determine whether any other defect may be found in the scheme on its face. Reversed and Remanded to the district court Page 4 with instructions to enter a permanent injunction against the City from denying a license to Baby Tarn until all constitutional defects on the face of its business and zoning license scheme for adult bookstores are remedied. DAVID R. THOMPSON, Circuit Judge, dissenting: I do not dispute my colleagues' statement of the legal principles on which they rely. I do disagree, however, with their application of those principles to the facts of this case. In my view, the acts taken by the Nevada Legislature, the Nevada Supreme Court, pursuant to a petition filed by the Chief Judge of the Eighth Judicial District Court, and the Las Vegas City Council cured the defects in the City's earlier licensing scheme. Accordingly, I would affirm the district court's order dissolving the permanent injunction. The majority asserts that the language of the Las Vegas ordinance pertaining to the time within which a bookstore license must be granted or denied is "not any different from the invalid Dallas ordinance" in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 227, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). I disagree. The Dallas ordinance expressly provided that the chief of police would not issue a business license "if the 'premises to be used for the sexually oriented business have not been approved by the health department, fire department, and the building official as *1116 being in compliance with the applicable laws and ordinances.' " Id. The Las Vegas ordinance is different. True, the Las Vegas ordinance establishes compliance with requirements of health, zoning, fire and safety as conditions precedent to issuance of a license. LVMC § 6.06A.020. But the ordinance also provides that "The Director shall issue or deny the bookstore license to the applicant within thirty days from receipt of a complete application and fees upon compliance with the requirements of this section and any applicable provisions of Title VI of this Code." The "requirements" of the section and "applicable provisions" refer to the conditions precedent of health, zoning, fire and safety. The crucial question is who bears the risk of a non-decision as to these conditions within the thirty-day period? The ordinance quite plainly places that risk on the Director, as the City of Page 5 Las Vegas concedes in its briefs and in oral argument. In section 6.06A.025(B), the ordinance provides: "Failure of the Director to approve or deny the license application within the thirty days shall result in the license being granted." Under this provision, the Director has thirty days in which to act on the license application. If the Director determines that the license applicant has not met the health, zoning, fire and safety requirements within the thirty-day period, he denies the license. If he determines these requirements have been met, he issues the license. If he makes no determination one way or the other, his default results in issuance of the license. Whatever decision the Director makes- denial, issuance, or no decision at all—the applicant's First Amendment rights are protected. Within the thirty days, the applicant either gets his license or his application is denied. If his application is denied, the ordinance provides that he may file in the Nevada state court a petition for judicial relief, and if the "court has not decided the validity of the denial within thirty days after the petition is filed, the Director shall issue a temporary bookstore license." LVMC § 6.06A.025(D). The temporary license remains in effect until the state court renders its decision. Id. There is no First Amendment violation. I respectfully dissent. END OF DOCUMENT Page 1 Copr. © West 2001 No Claim to Orig. U.S. Govt. Works 247 F.3d 1003 1 Cal. Daily Op. Serv. 3295, 2001 Daily Journal D.A.R. 4083 (Cite as: 247 F.3d 1003) United States Court of Appeals, Ninth Circuit. BABY TAM & CO, INC., a Nevada corporation, Plaintiff-Appellant, v. CITY OF LAS VEGAS, Defendant-Appellee. No. 00-16123. Argued and Submitted March 19, 2001 Filed April 26, 2001 Applicant which had been denied a business license to operate an adult bookstore brought § 1983 action against city, seeking a permanent injunction against enforcement of the licensing ordinance as an unconstitutional prior restraint on speech. Preliminary injunction was denied by the United States District Court for the District of Nevada, Philip M. Pro, J., and applicant appealed. The Court of Appeals, 154F.3d 1097, reversed and remanded. The District Court dissolved injunction after amendment of ordinance, and the Court of Appeals again reversed and remanded, 199 F.3d 1111. The city again amended its ordinance, the district court vacated the injunction it issued following remand, and book store appealed. The Court of Appeals, Noonan, Circuit Judge, held that: (1) original finding of unconstitutionaliry did not entitle applicant to a license on theory applicant was entitled to continue its business under the exception of existing nonconforming uses, and (2) amended ordinances were constitutional. Affirmed. West Headnotes [1] Theaters and Shows k3 376k3 Fact that city's licensing scheme applicable to adult bookstores was found to be unconstitutional did not entitle adult bookstore to a license after amended ordinances were ultimately held to be constitutional, on theory that bookstore was lawfully in business when the invalid ordinance came into effect and was therefore entitled to continue its business under the exception of existing nonconforming uses, where, under city code, the grandfathering of nonconforming uses was for uses in existence in 1992, bookstore registered as a business corporation in 1997, at no time did any court order the city to license the bookstore, and litigation had proceeded on the assumption that the city could amend its licensing scheme to meet bookstore's challenges. [2] Zoning and Planning k321 414k321 City zoning may eliminate features of the landscape that pre-existed the zoning code and have been found objectionable under it. [3] Constitutional Law k90.4(l) 92k90.4(l) [3] Theaters and Shows k3 376k3 City's licensing scheme applicable to adult bookstores was not unconstitutional prior restraint on speech where state had provided for prompt judicial review; there was no constitutional requirement that prompt review also be available in federal courts. U.S.C.A. Const. Amend. 1. [4] Constitutional Law k90.4(l) 92k90.4(l) Licensing scheme applicable to adult bookstores was not unconstitutional prior restraint on speech on theory licensing director could stall in deciding whether the applicable fees had been paid; the method of calculating the advance tax on gross sales was set by ordinance, leaving no room for the director to procrastinate. U.S.C.A. Const. Amend. 1. [5] Constitutional Law k90.4(l) 92k90.4(l) Page 2 [5] Theaters and Shows k3 376k3 Provision of city's licensing scheme applicable to adult bookstores that the first semiannual license fee, based on gross sales, shall be an amount determined to be the cumulative average semiannual license fee paid by other businesses in the same industry and shall be due on the date the application for business license is filed was not unconstitutional as a tax on exercise of free speech, in advance of its exercise, as the gross sales tax of the city fell on all businesses in the city and was minimal. U.S.C.A. Const.Amend. 1. [6] Licenses k25 238k25 Nevada Business Registration form that must be submitted by every licensed business, requiring the name of "Owner(s), Partners, Corporate Officers, etc," did not require the listing of all stockholders. [7] Constitutional Law k90.4(l) 92k90.4(l) [7] Theaters and Shows k3 376k3 City's licensing scheme applicable to adult bookstores was not unconstitutional prior restraint on speech on ground that the burden is on the would-be licensee to go to court to challenge a denial. U.S.C.A. Const.Amend. 1. [8] Constitutional Law k90.4(l) 92k90.4(l) Requirement that constitutional censorship scheme involving films must place the burden of instituting judicial proceedings to deny a license on the censor does not apply in the context of a zoning case with respect to location of adult bookstores, where the city does not exercise discretion by passing judgment on the content of any protected speech. U.S.C.A. Const.Amend. 1. [9] Constitutional Law k90.4(l) 92k90.4(l) [9] Theaters and Shows k3 376k3 City's licensing scheme applicable to adult bookstores was not unconstitutionally vague in defining what materials constitute the content of a bookstore meeting the ordinance's definition of "adult, " or in failing to spell out method of taking inventory to determine that 51% or more of inventory is adult, and thus did not unconstitutionally confer too much discretion on the licensor; the ordinance was specific in spelling out what sexual acts and what parts of the human body and what sexual toys qualify as sexual. U.S.C.A. Const.Amend. 1. [10] Theaters and Shows k3 376k3 Challenge to provisions for suspension and revocation of a license, in city's licensing scheme applicable to adult bookstores, was premature, where challenger did not have a license. *1004 Michael D. Stein, Michael Stein & Associates, Ltd., Las Vegas, Nevada, for the plaintiff-appellant. Bradford R. Jerbic, City Attorney, William P. Henry, Senior Litigation Counsel, Philip R. Byrnes, Deputy City Attorney, Las Vegas, Nevada, for the defendant-appellee. Appeal from the United States District Court for the District of Nevada; Philip M. Pro, United States District Judge, Presiding. D.C. No. CV-97-01522- PMP(LML). Before: REINHARDT, NOON AN and DAVID R. THOMPSON, Circuit Judges. NOONAN, Circuit Judge: Baby Tarn & Co., Inc. (Baby Tarn) appeals the order of the district court denying it relief in its suit against the City of Las Vegas (the City) in regard to the City's zoning and licensing scheme. We affirm the judgment of the district court. BACKGROUND AND PROCEDURAL HISTORY The prior history of this case is set out in our two earlier decisions, Baby Tarn & *1005 Co., Inc. v. City of Las Vegas, 154 F.3d 1097 (9th Cir.1998) (Baby Tarn I) and Baby Tarn & Co., Inc. v. City of Las Vegas, 199 F.3d 1111 (9th Cir.2000) (Baby Tarn II). In Baby Tarn I we directed the district court to issue a permanent injunction enjoining the City from denying Baby Page3 Tarn a license to operate its bookstore at 5100 West Charleston Boulevard as long as the licensing and zoning ordinance failed to provide for a prompt judicial hearing and decision on denial of a license. The City then secured the amendment of Nevada law and the rules of the Eighth Judicial District Court to meet these deficiencies. The district court dissolved the injunction it had entered in accordance with our mandate. Baby Tarn again appealed. In Baby Tarn II we held that the City's licensing scheme was still on its face defective because it set no time limit within which the Director of the Department of Finance and Business Services must act upon application for a license. On February 18, 2000, within five weeks of the publication of our opinion, the City amended its ordinance to read: (A) The Director shall issue or deny the bookstore license to the applicant within thirty days from receipt of an application and the applicable fees. (B) Failure of the Director to approve or deny the license application within the thirty days shall result in the license being granted. (C) If the application is denied, the Director shall notify the applicant with the reason(s) stated for denial. Notification shall be sent certified, United States mail, return receipt requested, to the address provided on the license application which shall be considered the correct address. Each applicant has the burden to furnish any change of address to the Director, by United States certified mail, return receipt requested. (D) In the event that an application is denied, the applicant may file or cause to be filed in the district court a petition for judicial examination of the validity of the denial of the bookstore license as provided by Chapter 34 of NRS. If the district court has not decided the validity of the denial within thirty days after the petition is filed, the Director shall issue a temporary bookstore license. The temporary bookstore license shall remain in effect only until the district court has rendered its opinion concerning the validity of the denial. LVMC § 6.06A.025. The City simultaneously adopted LVMC § 1.28.010 to provide: Notwithstanding any other provision of this Code, whenever a person submits to the City an application of any kind that is necessary in order to operate an adult bookstore, as defined in Section 6.06A.010, the City shall approve or deny the application within thirty days after it has been filed and the applicable fees have been paid. If the City fails to do so, the application shall be deemed approved. Finally, the City provided: All ordinances or parts of ordinances or sections, subsections, phrases, sentences, clauses or paragraphs contained in the Municipal Code of the City of Las Vegas, Nevada, 1983 Edition, in conflict herewith are hereby repealed. On March 10, 2000, without reference to these amendments, the district court issued an injunction in compliance with our mandate in Baby Tarn II prohibiting the City from denying a business and zoning license to Baby Tarn "until all constitutional defects on the face of its business and zoning license scheme for adult bookstores *1006 are remedied." 199 F.3d at 1115. [FN1] In the light of the amendments it had made, the City moved to vacate the injunction. Baby Tarn filed a counter motion to hold the City in contempt and to compel the City to issue Baby Tarn an adult bookstore license. The district court heard argument. Baby Tarn stated that it was putting forward all its facial challenges to the ordinances. On May 24, 2000, the district court denied Baby Tarn's counter motion and vacated the permanent injunction. The City issued citations to Baby Tarn, and it closed its store. The City then obtained a state court injunction prohibiting Baby Tarn from operating in an improper zone and without any business license. FN1. Our mandate issued on February 7, 2000. Baby Tarn appeals the judgment of the district court. ANALYSIS [1] Baby Tarn's Present Entitlement To A License. Baby Tarn's first contention is that once the City's licensing scheme was found to be unconstitutional in Baby Tarn I, Baby Tarn was entitled to a license; the City could not refashion its scheme to cover retroactively the time when the scheme was invalid. Even though the amended ordinances were ultimately held to be constitutional, Baby Tarn argues that it was lawfully in business when the invalid ordinance came into effect and contends that it was therefore entitled to continue its business "under the exception of existing nonconforming uses." Baby Tarn cites to Kuzinich v. County of Santa Clara, 689 F.2d 1345, 1349 (9th Cir,1982). [2] The sentence relied on from Kuzinich is dictum uttered in the course of an opinion upholding the denial of a license. But a more serious difficulty attends Baby Tarn's argument. The grandfathering of nonconforming uses is for uses in existence on September 16, 1992. LVMC § 19A.04. Baby Tam registered as a Nevada business corporation in 1997. Baby Tam furnishes no authority for the proposition that a zoning ordinance may not prohibit a use in existence before its enactment, and we are aware of no such authority. To the contrary, it is established that city zoning may eliminate features of the landscape that pre- existed the zoning code and have been found objectionable under it. The classic case on the constitutionality of zoning ordinances noted that land being held for industrial development would suffer a 75% reduction in value by being restricted to residential use. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 384, 47 S.Ct. 114, 71 L.Ed. 303 (1926). The observation did not persuade the Supreme Court to invalidate the ordinance. Id. at 397, 47 S.Ct. 114. In a variety of cases involving zoning that touched on the speech of those zoned it has not been a consideration that the use found objectionable under the zoning had predated the zoning. E.g., Urn v. City of Long Beach, 217 F.3d 1050, 1056 (9th Cir.2000); Lydo Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211 (9th Cir. 1984). We note that at no time did this court or the district court order the City to license Baby Tam. Litigation in this case has proceeded on the assumption that the City could amend its licensing scheme to meet Baby Tarn's challenges. [3] Prompt Judicial Hearing. We have already held in Baby Tam II, 199 F.3d at 1114, that Nevada has provided for prompt judicial review. Baby Tam contends that neither the local rules of the United States District Court nor the Federal Rules of Procedure guarantee an expedited hearing if a denied applicant *1007 should seek relief in-federal court. There is, however, no constitutional requirement of prompt review by both court systems. State courts are entirely capable of adjudicating federal constitutional claims. E.g., California v. Grace Brethren Church, 457 U.S. 393, 414, 102 S.Ct. 2498, 73 L.Ed.2d 93 (1982). Also, we note that Baby Tam has successfully availed itself of a federal forum on two prior occasions, and in appropriate Page 4 cases, federal courts should not hesitate to issue restraining orders expeditiously. [4] Prompt Issuance of a License. Baby Tam argues that the Director can stall in deciding whether "the applicable fees" required by LVMC § 6.06A25 have been paid. The fee set for payment with an application is $30 for "processing." LVMC § 6.02.085. A "first semiannual license fee" is also required to be paid with the application. LVMC § 6.02.180. Neither tax confers discretion on the Director. The $30 is straightforward. The method of calculating the advance tax on gross sales is set by ordinance LVMC § 602.180. On the face of these requirements there is no room for the Director to procrastinate. Assuming that the Director lawfully performs the duties prescribed, the 30-day period set for decision will begin promptly at the time of the filing of the application with the payment of the two fees. [5] The Tax on Sales. Baby Tam points to LVMC § 6.02.180 providing that the first semiannual license fee for a business whose license is based on gross sales "shall be an amount determined by the Director to be the cumulative average semiannual license fee paid by other businesses in the same industry." This tax is due for the first half year "on the date the application for business license is filed." LVMC § 6.02.170. Baby Tam characterizes this tax as a tax on its exercise of free speech, a tax levied in advance of its exercise. The gross sales tax of the City falls on all businesses in the City. LVMC §§ 6.02.085, 6.02.160, 6.02.170. The tax is not imposed on the exercise of free speech. Furthermore, it is minimal. It ranges from $25 on semiannual gross sales of $12,000 to $670 on $1,200,000 of such sales. It is not a burden on speech. It is constitutional. Leathers v. Medlock, 499 U.S. 439, 447, 111 S.Ct. 1438, 113 L.Ed.2d 494 (1991). [6] Disclosure of Ownership. The Nevada Business Registration form that must be submitted by every licensed business requires not only the name of the entity but the name of "Owner(s), Partners, Corporate Officers, etc." Baby Tam interprets the form to require the listing of all stockholders and consequently contends that this required disclosure has a chilling effect on its freedom of expression. See NAACP v. Alabama ex rel. Patterson, 357 U.S. Page 5 449, 462, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). We do not read the form as Baby Tarn does. A single line upon it is provided for "Owner"; there is no space for a listing of stockholders; the single line is intended for the case of "Individual Ownership" where the form adds explicitly, "List only one Owner." [7][8] The Burden of Sustaining Denial of a License. Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), held that a constitutional censorship scheme involving films must place the burden of instituting judicial proceedings to deny a license on the censor. Id. at 58, 85 S.Ct. 734. Baby Tarn asserts that the Las Vegas licensing scheme is invalid because the license may be denied without prior judicial hearing; the burden is on the would-be licensee to go to court. *1008 We hold that the Freedman burden-of-instituting-proceedings safeguard does not apply in the context of a zoning case such as this. In FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), a case concerning an adult entertainment licensing scheme, three Justices concluded in the lead opinion that because the specific scheme at issue did not "present the grave 'dangers of a censorship system' " similar to the scheme in Freedman, this particular Freedman safeguard that the state bear the burden of initiating judicial proceedings did not apply. Id. at 228-30, 110 S.Ct. 596 (internal citation omitted). The Las Vegas scheme is like the one in FW/PBS, and unlike the censorship law in Freedman, because "the city does not exercise discretion by passing judgment on the content of any protected speech," and the businesses subject to license are not "likely to be deterred from challenging the decision to suppress the speech." Id. at 229, 110 S.Ct. 596. We agree with the lead opinion in FW/PBS and conclude that the Freedman safeguard placing the burden of instituting proceedings on the state does not apply to licensing schemes such as the one challenged in this case. [9] The Precision of the Ordinance. Baby Tarn challenges the ordinance determining what materials constitute the content of a bookstore meeting the ordinance's definition of "adult" in the sense of unsuitable for children. Baby Tarn characterizes the definition as unconstitutionally vague and as a consequence also unconstitutionally conferring too much discretion on the licensor. We reject Baby Tarn's argument. The ordinance is specific in spelling out what sexual acts and what parts of the human body and what sexual toys qualify as sexual. No set of regulations can be applied without a modicum of judgment being exercised by the regulators. This ordinance cabins their discretion and directs their judgment and therefore passes constitutional muster. Baby Tarn supplements its challenge by contending that what makes a bookstore "adult" is the fact of 5 1 % or more of its inventory being in the defined category, but the ordinance does not spell out how the inventory shall be taken. A ministerial function of this kind is not the stuff of constitutional objection. We assume that the City will measure inventory in a standard way. On the face of the ordinance there is nothing wrong in leaving the matter to standard practice. See, e.g., Artistic Entm't, Inc. v. City of Warner Robins, 223 F.3d 1306, 1310 (llthCir.2000). [10] Suspension and Revocation of the License. Baby Tarn asserts that the provisions for suspension and revocation of a license are constitutionally defective. This claim, to say the least, is premature. Baby Tarn does not have a license; therefore it has not sustained nor is it about to sustain suspension of the license. See City of Los Angeles v. Lyons, 461 U.S. 95, 101-102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Conclusion. No infirmity on the face of the zoning and licensing scheme of Las Vegas has been shown. Baby Tarn has not shown that it is presently entitled to a license as an adult bookstore. Accordingly the judgment of the district court is AFFIRMED. END OF DOCUMENT Page 1 111 S.Ct. 2456 115 L.Ed.2d 504, 59 USLW 4745 (Cite as: 501 U.S. 560, 111 S.Ct. 2456) Supreme Court of the United States Michael BARNES, Prosecuting Attorney of St. Joseph County, Indiana, et al. v. GLEN THEATRE, INC., et al. No. 90-26. Argued Jan. 8, 1991. Decided June 21, 1991. Establishments wishing to provide totally nude dancing as entertainment and individual dancers employed at establishments brought suit to enjoin enforcement of Indiana public indecency statute which required dancers to wear pasties and a G-string, asserting that statute violated the First Amendment. The United States District Court for the Northern District of Indiana, 726 F.Supp. 728, permanently enjoined enforcement. The Court of Appeals for the Seventh Circuit, 802 F.2d 287, reversed and remanded. On remand, the District Court, 695 F.Supp. 414, found that nude dancing in question was not protected by the First Amendment. On appeal, the Court of Appeals, 887 F.2d 826, reversed and remanded. Opinion was vacated and rehearing en bane granted. The Court of Appeals, 904 F.2d 1081, reversed. After granting certiorari, the Supreme Court, Chief Justice Rehnquist, held that enforcement of public indecency statute to require that dancers at adult entertainment establishments wear pasties and a G-string did not violate the First Amendment. Reversed. Justices Scalia and Souter filed opinions concurring in the judgment. Justice White filed dissenting opinion, in which Justices Marshall, Blackmun, and Stevens joined. West Headnotes {!] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases [1] Constitutional Law €=*>0.4(5) 92k90.4(5) Most Cited Cases Totally nude dancing as sought to be performed in lounge presenting "go-go dancing," and in adult "bookstore," was expressive conduct within the outer perimeters of the First Amendment, although only marginally so. (Per Chief Justice Rehnquist, with two Justices concurring, and two Justices concurring in the judgment.) U.S.C.A. Const.Amend. 1. [2] Constitutional Law €=^90(3) 92k90(3) Most Cited Cases Government regulation of expressive conduct 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 suppression of free expression, and if the incidental restriction on alleged First Amendment freedoms is not greater than is essential to furtherance of that interest. (Per Chief Justice Rehnquist, with two Justices concurring, and two Justices concurring in the judgment.) U.S.C.A. Const. Amend. 1. PI Constitutional Law €==>90.4(3) 92k90.4(3) Most Cited Cases [3] Obscenity €=>2.5 281k2.5 Most Cited Cases Enforcement of Indiana's public indecency law to require nude dancers in adult entertainment establishments to wear pasties and any G-string did not violate the First Amendment's guarantee of freedom of expression; statute was clearly within state's constitutional power, it furthered substantial governmental interest in protecting societal order and morality, governmental interest was unrelated to suppression of free expression, and incidental restriction on First Amendment freedom was no greater than was essential to furtherance of the governmental interest. (Per Chief Justice Rehnquist, with two Justices concurring, and two Justices concurring in the judgment.) West's A.I.C. 35- 45-4-1; U.S.C.A. Const. Amend. 1. **2457 *S60 Syllabus [FN*] FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321,337,26 S.Ct. 282, Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 2 287, 50 L.Ed. 499. Respondents, two Indiana establishments wishing to provide totally nude dancing as entertainment and individual dancers employed at those establishments, brought suit in the District Court to enjoin enforcement of the state public indecency law—which requires respondent dancers to wear pasties and G-strings—asserting that the law's prohibition against total nudity in public places violates the First Amendment. The court held that the nude dancing involved here was not expressive conduct. The Court of Appeals reversed, ruling that nonobscene nude dancing performed for entertainment is protected expression, and that the statute was an improper infringement of that activity because its purpose was to prevent the message of eroticism and sexuality conveyed by the dancers. Held: The judgment is reversed. 904 F.2d 1081 (CA9 1990), reversed. The Chief Justice, joined by Justice O'CONNOR and Justice KENNEDY, concluded that the enforcement of Indiana's public indecency law to prevent totally nude dancing does not violate the First Amendment's guarantee of freedom of expression. Pp. 2460-2463. (a) Nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, although only marginally so. See, e.g., Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568,45 L.Ed.2d 648. P. 2460. (b) Applying the four-part test of United States v. O'Brien, 391 U.S. 367, 376-377, 88 S.Ct. 1673, 1678-1679, 20 L.Ed.2d 672-which rejected the contention that symbolic speech is entitled to full First Amendment protection—the statute is justified despite its incidental limitations on some expressive activity. The law is clearly within the State's constitutional power. And it furthers a substantial governmental interest in protecting societal order and morality. Public indecency statutes reflect moral disapproval of people appearing in the nude among strangers in public places, and this particular law follows a line of state laws, dating back to 1831, banning public nudity. The States' traditional police power is defined as the authority to provide for the public health, safety, and morals, and such a basis for legislation *561 has been upheld. See, e.g., Paris Adult Theatre I v. Slaton, 413 U.S. 49,61,93 S.Ct. 2628,2637,37 L.Ed.2d 446. This governmental interest is unrelated to the suppression of free expression, since public nudity is the evil the State seeks to prevent, whether or not it is combined with expressive activity. The law does not proscribe nudity in these establishments because the dancers are conveying an erotic message. To the contrary, an erotic performance may be presented without **2458 any state interference, so long as the performers wear a scant amount of clothing. Finally, the incidental restriction on First Amendment freedom is no greater than is essential to the furtherance of the governmental interest. Since the statutory prohibition is not a means to some greater end, but an end itself, it is without cavil that the statute is narrowly tailored. Pp. 2460-2463. Justice SCALIA concluded that the statute—as a general law regulating conduct and not specifically directed at expression, either in practice or on its face-is not subject to normal First Amendment scrutiny and should be upheld on the ground that moral opposition to nudity supplies a rational basis for its prohibition. Cf. Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S.Ct. 1595,108 L.Ed.2d 876. There is no intermediate level of scrutiny requiring that an incidental restriction on expression, such as that involved here, be justified by an important or substantial governmental interest. Pp. 2463-2467. Justice SOUTER, agreeing that the nude dancing at issue here is subject to a degree of First Amendment protection, and that the test of United States v. O'Brien, 391 U.S. 367,88 S.Ct. 1673, is the appropriate analysis to determine the actual protection required, concluded that the State's interest in preventing the secondary effects of adult entertainment establishments- prostitution, sexual assaults, and other criminal activity-is sufficient under O'Brien to justify the law's enforcement against nude dancing. The prevention of such effects clearly falls within the State's constitutional power. In addition, the asserted interest is plainly substantial, and the State could have concluded that it is furthered by a prohibition on nude dancing, even without localized proof of the harmful effects. See Rentonv. Playtime Theatres, Inc., 475 U.S. 41, 50, 51, 106 S.Ct. 925, 930, 930, 89 L.Ed.2d 29. Moreover, the interest is unrelated to the suppression of free expression, since the pernicious effects are merely associated with nude dancing establishments and are not the result of the expression inherent in nude dancing. Id., at 48, 106 S.Ct., at 929. Finally, the restriction is no greater than is essential to further the governmental interest, since pasties and a G-string moderate expression to a minor degree when measured against the dancer's remaining capacity and opportunity to express an erotic message. Pp. 2468-2471. *562 REHNQUIST, C.J., announced the judgment of the Court and delivered an opinion, in which Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 3 O'CONNOR and KENNEDY, JJ., joined. SCALIAJ., post, p. 2463, and SOUTER, J., post, p. 2468, filed opinions concurring in the judgment. WHITE, J., filed a dissenting opinion, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, post, p. 2471. Wayne E. Uhl, Deputy Attorney General of Indiana, argued the cause for petitioners. With him on the briefs was Linley E. Pearson, Attorney General. Bruce J. Ennis, Jr., argued the cause for respondents. Lee J. Klein and Bradley J. Shafer filed a brief for respondents Glen Theatre, Inc., et al, Patrick Louis Baude and Charles A. Asher filed a brief for respondents Darlene Miller et al.* *Briefs of amid curiae urging reversal were filed for the State of Arizona et al. by Robert K. Corbin, Attorney General of Arizona, and Steven J. Twist, Chief Assistant Attorney General, Clarine Nardi Riddle, Attorney General of Connecticut, and John J. Kelly, Chief State's Attorney, William L. Webster, Attorney General of Missouri, Lacy H. Thornburg, Attorney General of North Carolina, and Rosalie Simmonds Ballentine, Acting Attorney General of the Virgin Islands; for the American Family Association, Inc., et al. by Alan E. Sears, James Mueller, and Peggy M. Coleman; and for the National Governors' Association et al. by Benna Ruth Solomon and Peter Buscemi. Briefs of amid curiae urging affirmance were filed for the American Civil Liberties Union et al. by Spencer Neth, Thomas D. Buckley, Jr., Steven R. Shapiro, and John A. Powell; for the Georgia on Premise & Lounge Association, Inc., by James A. Walrath; for People for the American Way et al. by Timothy B. Dyk, Robert H. Klonoff, Patricia A. Dunn, Elliot M. Mincberg, Stephen F. Rohde, and Mary D. Dorman. James J. Clancy filed a brief pro se as amicus curiae. Chief Justice REHNQUIST delivered the opinion of the Court. Respondents are two establishments in South Bend, Indiana, that wish to provide totally nude dancing as entertainment, and individual dancers who are employed at these *S63 establishments. They claim that the First Amendment's guarantee of freedom of expression prevents the State of Indiana from enforcing its public indecency law to prevent this form of dancing. We reject their claim. The facts appear from the pleadings and findings of the District Court and are uncontested here. The Kitty Kat Lounge, Inc. (Kitty Kat), is located in the city of South Bend. It sells alcoholic beverages and presents "go-go dancing." Its proprietor desires to present "totally nude dancing," but an applicable Indiana statute regulating public nudity requires that the dancers wear "pasties" **2459 and "G-strings" when they dance. The dancers are not paid an hourly wage, but work on commission. They receive a 100 percent commission on the first $60 in drink sales during their performances. Darlene Miller, one of the respondents in the action, had worked at the Kitty Kat for about two years at the time this action was brought. Miller wishes to dance nude because she believes she would make more money doing so. Respondent Glen Theatre, Inc., is an Indiana corporation with a place of business in South Bend. Its primary business is supplying so-called adult entertainment through written and printed materials, movie showings, and live entertainment at an enclosed "bookstore." The live entertainment at the "bookstore" consists of nude and seminude performances and showings of the female body through glass panels. Customers sit in a booth and insert coins into a timing mechanism that permits them to observe the live nude and seminude dancers for a period of time. One of Glen Theatre's dancers, Gayle Ann Marie Sutro, has danced, modeled, and acted professionally for more than 15 years, and in addition to her performances at the Glen Theatre, can be seen in a pornographic movie at a nearby theater. App. to Pet. for Cert. 131-133. Respondents sued in the United States District Court for the Northern District of Indiana to enjoin the enforcement of the Indiana public indecency statute, *564Ind.Code § 35-45-4-1 (1988), asserting that its prohibition against complete nudity in public places violated the First Amendment. The District Court originally granted respondents' prayer for an injunction, finding that the statute was facially overbroad. The Court of Appeals for the Seventh Circuit reversed, deciding that previous litigation with respect to the statute in the Supreme Court of Indiana and this Court precluded the possibility of such a challenge, [FN1 ] and remanded to the District Court in order for the plaintiffs to pursue their claim that the statute violated the First Amendment as applied to their dancing. Glen Theatre, Inc. v. Pearson, 802 F.2d 287, 288-290 (1986). On remand, the District Court concluded that *565 "the type of dancing these plaintiffs wish to perform is not expressive activity protected by the Constitution of the United States," and rendered judgment in favor of the defendants. Glen Theatre. Inc. v. Civil City of South Bend, 695 F.Supp. 414, 419 (1988). The case was Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 4 again appealed to the Seventh Circuit, and a panel of ,?«*"""*• that court reversed the District Court, holding that the ^^ nude dancing involved here was expressive conduct protected by the First Amendment. **2460 Miller v. Civil City of South Bend, 887 F.2d 826 (1989). The Court of Appeals then heard the case en bane, and the court rendered a series of comprehensive and thoughtful opinions. The majority concluded that nonobscene nude dancing performed for entertainment is expression protected by the First Amendment, and that the public indecency statute was an improper infringement of that expressive activity because its purpose was to prevent the message of eroticism and sexuality conveyed by the dancers. Miller v. Civil City of South Bend. 904 F.2d 1081 (1990). We granted certiorari, 498 U.S. 807,111 S.Ct. 38,112 L.Ed.2d 15 (1990), and now hold that the Indiana statutory requirement that the dancers in the establishments involved in this case must wear pasties and G-strings does not violate the First Amendment. FN1. The Indiana Supreme Court appeared to give the public indecency statute a limiting construction to save it from a facial overbreadth attack: "There is no right to appear nude in public. Rather, it may be constitutionally required to tolerate or to allow some nudity as a part of some larger form of expression meriting protection, when the communication of ideas is involved." State v. Baysinger, 272 Ind. 236, 247, 397 N.E.2d 580, 587 (1979) (emphasis added), appeals dism'd sub nom. Clark v. Indiana, 446 U.S. 931, 100 S.Ct. 2146, 64 L.Ed.2d 783, and Dove v. Indiana, 449 U.S. 806, 101 S.Ct. 52, 66 L.Ed.2d 10 (1980). Five years after Baysinger, however, the Indiana Supreme Court reversed a decision of the Indiana Court of Appeals holding that the statute did "not apply to activity such as the theatrical appearances involved herein, which may not be prohibited absent a finding of obscenity," in a case involving a partially nude dance in the "Miss Erotica of Fort Wayne" contest. Erhardt v. State, 468 N.E.2d 224 (Ind. 1984). The Indiana Supreme Court did not discuss the constitutional issues beyond a cursory comment that the statute had been upheld against constitutional attack in Baysinger, and Erhardt's conduct fell within the statutory prohibition. Justice Hunter dissented, arguing that "a public indecency statute which prohibits nudity in any public place is unconstitutionally overbroad. My reasons for so concluding have already been articulated in State v. Baysinger, (1979) 272 Ind. 236, 397 N.E.2d 580 (Hunter and DeBruler, JJ., dissenting)." 468 N.E.2d at 225-226. Justice DeBruler expressed similar views in his dissent in Erhardt. Id., at 226. Therefore, the Indiana Supreme Court did not affirmatively limit the reach of the statute in Baysinger, but merely said that to the extent the First Amendment would require it, the statute might be unconstitutional as applied to some activities. [ I ] Several of our cases contain language suggesting that nude dancing of the kind involved here is expressive conduct protected by the First Amendment. In Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975), we said: "[Although the customary 'barroom' type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 397, 34 L.Ed.2d 342 (1972), that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances." In Schad v. Mount Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981), we said that "[fjurthermore, as the state courts in this case recognized, nude dancing is not without its First Amendment protections from official regulation" (citations omitted). These statements support the conclusion of the Court of Appeals *S66 that 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. This, of course, does not end our inquiry. We must determine the level of protection to be afforded to the expressive conduct at issue, and must determine whether the Indiana statute is an impermissible infringement of that protected activity. Indiana, of course, has not banned nude dancing as such, but has proscribed public nudity across the board. The Supreme Court of Indiana has construed the Indiana statute to preclude nudity in what are essentially places of public accommodation such as the Glen Theatre and the Kitty Kat Lounge. In such places, respondents point out, minors are excluded and there are no nonconsenting viewers. Respondents contend that while the State may license establishments such as the ones involved here, and limit the geographical area in which they do business, it may not in any way limit the performance of the dances within them without violating the First Amendment. The petitioners contend, on the other hand, that Indiana's restriction on nude dancing is a valid "time, place, or manner" restriction under cases such as Clark v. Community for Copr. © West 2004 No Claim to Orig. U.S. Govt. Works PageS Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221(1984). The "time, place, or manner" test was developed for evaluating restrictions on expression taking place on public property which had been dedicated as a "public forum," Wardv. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989), although we have on at least one occasion applied it to conduct occurring on private property. See Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925,89 L.Ed.2d 29 (1986). In Clark we observed that this test has been interpreted to embody much the same standards as those set forth in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), and we turn, therefore, to the rule enunciated in O'Brien. [2] O'Brien burned his draft card on the steps of the South Boston Courthouse in the presence of a sizable crowd, and *567 was convicted **2461 of violating a statute that prohibited the knowing destruction or mutilation of such a card. He claimed that his conviction was contrary to the First Amendment because his act was "symbolic speech"— expressive conduct. The Court rejected his contention that symbolic speech is entitled to full First Amendment protection, saying: "[E]ven 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 is no greater than is essential to the furtherance of that interest." Id, at 376-377, 88 S.Ct., at 1678-1679 (footnotes omitted). [3] Applying the four-part O'Brien test enunciated above, we find that Indiana's public indecency statute is justified despite its incidental limitations on some expressive activity. The public indecency statute is clearly within the constitutional power of the State and furthers substantial governmental interests. It is impossible to discern, other than from the text of the statute, exactly what governmental interest the Indiana legislators had in mind when they enacted *568 this statute, for Indiana does not record legislative history, and the State's highest court has not shed additional light on the statute's purpose. Nonetheless, the statute's purpose of protecting societal order and morality is clear from its text and history. Public indecency statutes of this sort are of ancient origin and presently exist in at least 47 States. Public indecency, including nudity, was a criminal offense at common law, and this Court recognized the common-law roots of the offense of "gross and open indecency" in Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840 (1948). Public nudity was considered an act malum in se. Le Roy v. Sidley. 1 Sid. 168, 82 Eng.Rep. 1036 (K.B. 1664). Public indecency statutes such as the one before us reflect moral disapproval of people appearing in the nude among strangers in public places. This public indecency statute follows a long line of earlier Indiana statutes banning all public nudity. The history of Indiana's public indecency statute shows that it predates barroom nude dancing and was enacted as a general prohibition. At least as early as 1831, Indiana had a statute punishing "open and notorious lewdness, or ... any grossly scandalous and public indecency." Rev.Laws of Ind., ch. 26, § 60 (1831); Ind.Rev.Stat., ch. 53, § 81 (1834). A gap during which no statute was in effect was filled by the Indiana Supreme Court in Ardery v. State, 56 Ind. 328 (1877), which held that the court could sustain a conviction for exhibition of "privates" in the presence of others. The court traced the offense to the Bible story of Adam and Eve. Id., at 329-330. In 1881, a statute was enacted that would remain essentially unchanged for nearly a century: "Whoever, being over fourteen years of age, makes an indecent exposure of his person in a public place, or in any place where there are other persons to be offended or annoyed thereby,... is guilty of **2462 public indecency...." 1881 IndActs, ch. 37, § 90. *569 The language quoted above remained unchanged until it was simultaneously repealed and replaced with the present statute in 1976. 1976 Ind.Acts, Pub.L. 148, Art. 45, ch. 4, § 1. [FN2] FN2. Indiana Code § 35-45-4-1 (1988) provides: "Public indecency; indecent exposure "Sec. 1. (a) A person who knowingly or intentionally, in a public place: "(1) engages in Copr. © West 2004 No Claim to Orig. U.S. Govt Works Page 6 sexual intercourse; "(2) engages in deviate sexual conduct; "(3) appears in a state of nudity; or "(4) fondles the genitals of himself or another person; commits public indecency, a Class A misdemeanor. "(b) 'Nudity means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernibly turgid state." This and other public indecency statutes were designed to protect morals and public order. The traditional police power of the States is defined as the authority to provide for the public health, safety, and morals, and we have upheld such a basis for legislation. In Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61, 93 S.Ct. 2628, 2637, 37 L.Ed.2d 446 (1973), we said: "In deciding Roth [v. United States, 354 U.S. 476 [77 S.Ct. 1304, 1 L.Ed.2d 1498] (1957) ], this Court implicitly accepted that a legislature could legitimately act on such a conclusion to protect 'the social interest in order and morality.' [Id. ], at 485 [77 S.Ct., at 1309]." (Emphasis omitted.) And in Bowers v. Hardwick, 478 U.S. 186, 196, 106 S.Ct. 2841, 2846, 92 L.Ed.2d 140 (1986), we said: "The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." Thus, the public indecency statute furthers a substantial government interest in protecting order and morality. *570 This interest is unrelated to the suppression of free expression. Some may view restricting nudity on moral grounds as necessarily related to expression. We disagree. It can be argued, of course, that almost limitless types of conduct—including appearing in the nude in public—are "expressive," and in one sense of the word this is true. People who go about in the nude in public may be expressing something about themselves by so doing. But the court rejected this expansive notion of "expressive conduct" in O'Brien, saying: "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." 391 U.S., at 376, 88 S.Ct., at 1678. And in Dallas v. Stanglin, 490 U.S. 19, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989), we further observed: "It is possible to find some kernel of expression in almost every activity a person undertakes—for example, walking down the street or meeting one's friends at a shopping mall—but such a kernel is not sufficient to bring the activity within the protection of the First Amendment. We think the activity of these dance-hall patrons coming together to engage in recreational dancing— is not protected by the First Amendment." Id, at 25, 109 S.Ct., at 1595. Respondents contend that even though prohibiting nudity in public generally may not be related to suppressing expression, prohibiting the performance of nude dancing is related to expression because the State seeks to prevent its erotic message. Therefore, they reason that the application of the Indiana statute to the nude dancing in this case violates the First Amendment, because it fails the third part of the O'Brien test, viz: **2463 the governmental interest must be unrelated to the suppression of free expression. But we do not think that when Indiana applies its statute to the nude dancing in these nightclubs it is proscribing nudity because of the erotic message conveyed by the dancers. *571 Presumably numerous other erotic performances are presented at these establishments and similar clubs without any interference from the State, so long as the performers wear a scant amount of clothing. Likewise, the requirement that the dancers don pasties and G- strings does not deprive the dance of whatever erotic message it conveys; it simply makes the message slightly less graphic. The perceived evil that Indiana seeks to address is not erotic dancing, but public nudity. The appearance of people of all shapes, sizes and ages in the nude at a beach, for example, would convey little if any erotic message, yet the State still seeks to prevent it. Public nudity is the evil the State seeks to prevent, whether or not it is combined with expressive activity. This conclusion is buttressed by a reference to the facts of O'Brien. An Act of Congress provided that anyone who knowingly destroyed a Selective Service registration certificate committed an offense. O'Brien burned his certificate on the steps of the South Boston Courthouse to influence others to adopt his antiwar beliefs. This Court upheld his conviction, reasoning that the continued availability of issued certificates served a legitimate and substantial purpose in the administration of the Selective Service System. O'Brien's deliberate destruction of his certificate frustrated this purpose and "[f]or this noncommunicative impact of his conduct, and for Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page? nothing else, he was convicted." 391 U.S., at 382, 88 S.Ct, at 1682. It was assumed that O'Brien's act in burning the certificate had a communicative element in it sufficient to bring into play the First Amendment, id.. at 376, 88 S.Ct., at 1682, but it was for the noncommunicative element that he was prosecuted. So here with the Indiana statute; while the dancing to which it was applied had a communicative element, it was not the dancing that was prohibited, but simply its being done in the nude. The fourth part of the O'Brien test requires that the incidental restriction on First Amendment freedom be no greater than is essential to the furtherance of the governmental interest. As indicated in the discussion above, the *572 governmental interest served by the text of the prohibition is societal disapproval of nudity in public places and among strangers. The statutory prohibition is not a means to some greater end, but an end in itself. It is without cavil that the public indecency statute is "narrowly tailored"; Indiana's requirement that the dancers wear at least pasties and G- strings is modest, and the bare minimum necessary to achieve the State's purpose. The judgment of the Court of Appeals accordingly is Reversed. Justice SCALIA, concurring in the judgment. I agree that the judgment of the Court of Appeals must be reversed. In my view, however, the challenged regulation must be upheld, not because it survives some lower level of First Amendment scrutiny, but because, as a general law regulating conduct and not specifically directed at expression, it is not subject to First Amendment scrutiny at all. I § 35-45-4-1 (1988). On its face, this law is not directed at expression in particular. As Judge Easterbrook put it in his dissent below: "Indiana *573 does not regulate dancing. It regulates public nudity.... Almost the entire domain of Indiana's statute is unrelated to expression, unless we view nude beaches and topless hot dog vendors as speech." Miller v. Civil City of South Bend, 904 F.2d 1081, 1120 (CA7 1990). The intent to convey a "message of eroticism" (or any other message) is not a necessary element of the statutory offense of public indecency; nor does one commit that statutory offense by conveying the most explicit "message of eroticism," so long as he does not commit any of the four specified acts in the process. [FN1 ] FN1. Respondents assert that the statute cannot be characterized as a general regulation of conduct, unrelated to suppression of expression, because one defense put forward in oral argument below by the attorney general referred to the "message of eroticism" conveyed by respondents. But that argument seemed to go to whether the statute could constitutionally be applied to the present performances, rather than to what was the purpose of the legislation. Moreover, the State's argument below was in the alternative: (1) that the statute does not implicate the First Amendment because it is a neutral rule not directed at expression, and (2) that the statute in any event survives First Amendment scrutiny because of the State's interest in suppressing nude barroom dancing. The second argument can be claimed to contradict the first (though I think it does not); but it certainly does not waive or abandon it. In any case, the clear purpose shown by both the text and historical use of the statute cannot be refuted by a litigating statement in a single case. Indiana's public indecency statute provides: "(a) A person who knowingly or intentionally, in a public place: "(1) engages in sexual intercourse; "(2) engages in deviate sexual conduct; "(3) appears in a state of nudity; or "(4) fondles the genitals of himself or another person; commits public indecency, a Class A misdemeanor. **2464 "(b) "Nudity1 means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a discernibly turgid state." Ind.Code Indiana's statute is in the line of a long tradition of laws against public nudity, which have never been thought to run afoul of traditional understanding of "the freedom of speech." Public indecency-including public nudity—has long been an offense at common law. See 50 Am.Jur.2d, Lewdness, Indecency, and Obscenity 449, 472-474 (1970); Annot., Criminal offense predicated on indecent exposure, 93 A.L.R. 996, 997-998 (1934); Winters v. New York, 333 U.S. 507, 515,68 S.Ct. 665,670,92 L.Ed. 840 (1948). Indiana's first public nudity statute, Rev. Laws of Ind., ch. 26, § 60 (1831), predated by many years the appearance of Copr. © West 2004 No Claim to Orig. U.S. Govt. Works PageS <***>•> nude barroom dancing. It was general in scope, directed at all public nudity, and not just at public nude expression; and all succeeding statutes, down to *574 the present one, have been the same. Were it the case that Indiana in practice targeted only expressive nudity, while turning a blind eye to nude beaches and unclothed purveyors of hot dogs and machine tools, see Miller, 904 F.2d, at 1120, 1121, it might be said that what posed as a regulation of conduct in general was in reality a regulation of only communicative conduct. Respondents have adduced no evidence of that. Indiana officials have brought many public indecency prosecutions for activities having no communicative element. See Bond v. State, 515 N.E.2d 856, 857 (Ind.1987); In re Levinson, 444 N.E.2d 1175, 1176 (Ind. 1983); Preston v. State, 259 Ind. 353, 354-355, 287 N.E.2d 347,348 (1972); Thomas v. State, 238 Ind. 658, 659-660, 154 N.E.2d 503, 504- 505 (1958); Blantonv. State. 533 N.E.2d 190,191 (Ind.App. 1989); Sweeneyv. State, 486N.E.2d651,652 (Ind. App. 1985); Thompson v. State, 482 N.E.2d 1372, 1373-1374 (Ind.App.1985); Adims v. State, 461 N.E.2d 740, 741-742 (Ind.App. 1984); State v. Elliott, 435 N.E.2d 302, 304 (Ind.App. 1982); Lasko v. State. 409 N.E.2d 1124, 1126 (InAApp. 1980). [FN2] FN2. Respondents also contend that the statute, as interpreted, is not content neutral in the expressive conduct to which it applies, since it allegedly does not apply to nudity in theatrical productions. See State v. Baysinger, 272 Ind. 236, 247, 397 N.E.2d 580, 587 (1979). I am not sure that theater versus nontheater represents a distinction based on content rather than format, but assuming that it does, the argument nonetheless fails for the reason the plurality describes, ante, at 2459, n. 1. **2465 The dissent confidently asserts, post, at 2473, that the purpose of restricting nudity in public places in general is to protect nonconsenting parties from offense; and argues that since only consenting, admission-paying patrons see respondents dance, that purpose cannot apply and the only remaining purpose must relate to the communicative elements of the performance. Perhaps the dissenters believe that "offense to others" ought to be the only reason for restricting nudity in public places generally, but there is no *57S basis for thinking that our society has ever shared that Thoreauvian "you - may - do - what - you - like - so - long - as - it - does - not - injure - someone -else" beau ideal— much less for thinking that it was written into the Constitution. The purpose of Indiana's nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosier Dome to display their genitals to one another, even if there were not an offended innocent in the crowd. Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, hi the traditional phrase, "contra bonos mores," i.e., immoral. In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy. While there may be great diversity of view on whether various of these prohibitions should exist (though I have found few ready to abandon, in principle, all of them), there is no doubt that, absent specific constitutional protection for the conduct involved, the Constitution does not prohibit them simply because they regulate "morality." See Bowers v. Hardwick, 478 U.S. 186, 196, 106 S.Ct. 2841, 2846, 92 L.EA2d 140 (1986) (upholding prohibition of private homosexual sodomy enacted solely on "the presumed belief of a majority of the electorate in [the jurisdiction] that homosexual sodomy is immoral and unacceptable"). See also Paris Adult Theatre I v. Slaton, 413 U.S. 49, 68, n. 15, 93 S.Ct. 2628, 2641, n. 15, 37 L.Ed.2d 446 (1973); Dronenburg v. Zech, 239 U.S.App.D.C. 229,238, and n. 6, 741 F.2d 1388, 1397, and n. 6 (1984) (opinion of Bork, J.). The purpose of the Indiana statute, as both its text and the manner of its enforcement demonstrate, is to enforce the traditional moral belief that people should not expose their private parts indiscriminately, regardless of whether those who see them are disedified. Since that is so, the dissent has no basis for positing that, where only thoroughly edified adults are present, the purpose must be repression of communication. [FN3] FN3. The dissent, post, at 2472-2473, 2475-2476, also misunderstands what is meant by the term "general law." I do not mean that the law restricts the targeted conduct in all places at all times. A law is "general" for the present purposes if it regulates conduct without regard to whether that conduct is expressive. Concededly, Indiana bans nudity in public places, but not within the privacy of the home. (That is not surprising, since the common-law offense, and the traditional moral prohibition, runs against public nudity, not against all nudity. E.g., 50 Am.Jur.2d, Lewdness, Indecency, and Obscenity, § 17, pp. 472-474 (1970).) But that confirms, rather than refutes, the general nature of the law: One may not go nude in public, whether or not one intends thereby to convey a Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 9 message, and similarly one may go nude in private, again whether or not that nudity is expressive. *576 II Since the Indiana regulation is a general law not specifically targeted at expressive conduct, its application to such conduct does not in my view implicate the First Amendment. The First Amendment explicitly protects "the freedom of speech [and] of the press"—oral and written speech—not "expressive conduct." When any law restricts speech, even for a purpose that has nothing to do with the suppression of communication (for instance, to reduce noise, see Saia v. New York, 334 U.S. 558, 561, 68 S.Ct. 1148, 1150, 92 L.Ed. 1574 (1948), to regulate election campaigns, see Buckley v. Valeo. 424 U.S. 1, 16, 96 S.Ct. 612, 633,46 L.Ed.2d 659 (1976), or to prevent littering, see Schneider v. State (Town of Irvington), 308 U.S. 147, 163, 60 S.Ct. 146, 84 L.Ed. 155 (1939)), we insist that **2466 it meet the high, First-Amendment standard of justification. But virtually every law restricts conduct, and virtually any prohibited conduct can be performed for an expressive purpose—if only expressive of the fact that the actor disagrees with the prohibitioa See, e.g., Florida Free Beaches, Inc. v. Miami, 734 F.2d 608, 609 (CA11 1984) (nude sunbathers challenging public indecency law claimed their "message" was that nudity is not indecent). It cannot reasonably be demanded, therefore, that every restriction of expression incidentally produced by a general law regulating conduct pass normal First Amendment scrutiny, or even—as some of our cases have suggested, see, e.g., United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673,1679,20 L.Ed.2d 672 (1968)~that it be justified by an "important or substantial" *577 government interest. Nor do our holdings require such justification: We have never invalidated the application of a general law simply because the conduct that it reached was being engaged in for expressive purposes and the government could not demonstrate a sufficiently important state interest. This is not to say that the First Amendment affords no protection to expressive conduct. Where the government prohibits conduct precisely because of its communicative attributes, we hold the regulation unconstitutional. See, e.g., United States v. Eichman, 496 U.S. 310,110 S.Ct. 2404,110 L.Ed.2d 287 (1990) (burning flag); Texas v. Johnson, 491 U.S. 397, 109 S.CL 2533,105 L.Ed.2d 342 (1989) (same); Spence v. Washington. 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (defacing flag); Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503,89 S.Ct. 733,21 L.Ed.2d 731 (1969) (wearing black arm bands); Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (participating in silent sit-in); Strombergv. California, 283 U.S. 359,51 S.Ct. 532,75 L.Ed. 1117 (1931) (flying a red flag). [FN4] In each of the foregoing cases, we explicitly found that suppressing communication was the object of the regulation of conduct. Where that has not been the case, however—where suppression of communicative use of the conduct was merely the incidental effect of forbidding the conduct for other reasons—we have allowed the regulation to stand. O'Brien, supra, 391 U.S., at 377,88 S.Ct., at 1679 (law banning destruction of draft card upheld in application against card burning to protest *578 war); FTC v. Superior Court Trial Lawyers Assn., 493 U.S. 411, 110 S.Ct. 768, 107 L.Ed.2d 851 (1990) (Sherman Act upheld in application against restraint of trade to protest low pay); cf. United States v. Albertini, 472 U.S. 675, 687-688, 105 S.Ct. 2897,2905-2906,86 L.Ed.2d 536 (1985) (rule barring respondent from military base upheld in application against entrance on base to protest war); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (rule barring sleeping in parks upheld in application against persons engaging in such conduct to dramatize plight of homeless). As we clearly expressed the point in Johnson: FN4. It is easy to conclude that conduct has been forbidden because of its communicative attributes when the conduct in question is what the Court has called "inherently expressive," and what I would prefer to call "conventionally expressive"—such as flying a red flag. I mean by that phrase (as I assume the Court means by "inherently expressive") conduct that is normally engaged in for the purpose of communicating an idea, or perhaps an emotion, to someone else. I am not sure whether dancing fits that description, see Dallas v. Stanglin, 490 U.S. 19, 24, 109 S.Ct. 1591, 1595, 104 L.Ed.2d 18 (1989) (social dance group "do[es] not involve the sort of expressive association that the First Amendment has been held to protect"). But even if it does, this law is directed against nudity, not dancing. Nudity is not normally engaged in for the purpose of communicating an idea or an emotion. "The government generally has a freer hand in restricting expressive conduct than it has in Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 10 restricting the written or spoken word. It may not, however, proscribe particular conduct because it has expressive elements. What might be termed the more generalized guarantee of freedom of expression makes the communicative nature of conduct an inadequate basis for **2467 singling out that conduct for proscription." 491 U.S., at 406, 109 S.Ct., at 2540-2541 (internal quotation marks and citations omitted; emphasis in original). All our holdings (though admittedly not some of our discussion) support the conclusion that "the only First Amendment analysis applicable to laws that do not directly or indirectly impede speech is the threshold inquiry of whether the purpose of the law is to suppress communication. If not, that is the end of the matter so far as First Amendment guarantees are concerned; if so, the court then proceeds to determine whether there is substantial justification for the proscription." Community for Creative Non-violence v. Watt, 227 U.SApp.D.C. 19,55-56,703 F.2d586,622-623 (1983) (en bane) (Scalia, J., dissenting), (footnote omitted; emphasis omitted), rev'd sub nom. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). Such a regime ensures that the government does not act to suppress communication, without requiring that all conduct-restricting regulation *579 which means in effect all regulation) survive an enhanced level of scrutiny. We have explicitly adopted such a regime in another First Amendment context: that of free exercise. In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872,110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), we held that general laws not specifically targeted at religious practices did not require heightened First Amendment scrutiny even though they diminished some people's ability to practice their religion. "The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, 'cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development.' " Id, at 885 [110 S.Ct., at 1603], quoting Lyngv. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 451, 108 S.Ct. 1319, 1326, 99 L.Ed.2d 534 (1988); see also Minersville School District v. Gobitis, 310 U.S. 586, 594-595, 60 S.Ct. 1010, 1012-1013, 84 L.Ed. 1375 (1940) (Frankfurter, J.) ("Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs"). There is even greater reason to apply this approach to the regulation of expressive conduct. Relatively few can plausibly assert that their illegal conduct is being engaged in for religious reasons; but almost anyone can violate almost any law as a means of expression. In the one case, as in the other, if the law is not directed against the protected value (religion or expression) the law must be obeyed. HI While I do not think the plurality's conclusions differ greatly from my own, I cannot entirely endorse its reasoning. The plurality purports to apply to this general law, insofar as it regulates this allegedly expressive conduct, an intermediate level of First Amendment scrutiny: The government interest in the regulation must be " 'important or substantial,'" ante, at 2461, quoting O'Brien, supra, 391 U.S., at 377, 88 S.Ct, at 1679. As I have indicated, *580 I do not believe such a heightened standard exists. I think we should avoid wherever possible, moreover, a method of analysis that requires judicial assessment of the "importance" of government interests—and especially of government interests in various aspects of morality. Neither of the cases that the plurality cites to support the "importance" of the State's interest here, see ante, at 2462, is in point. Paris Adult Theatre I v. Slaton, 413 U.S., at 61,93 S.Ct, at 2637 and Bowers v. Hardwick, 478 U.S., at 196, 106 S.Ct, at 2846, did uphold laws prohibiting private conduct based on concerns of decency and morality; but neither opinion held that those concerns were particularly "important" or "substantial," or amounted to anything more than a rational basis for regulation. Slaton involved an exhibition which, since it was obscene **2468 and at least to some extent public, was unprotected by the First Amendment, see Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); the State's prohibition could therefore be invalidated only if it had no rational basis. We found that the State's "right... to maintain a decent society" provided a "legitimate" basis for regulation—even as to obscene material viewed by consenting adults. 413 U.S., at 59-60, 93 S.Ct, at 2636-2637. In Bowers, we held that since homosexual behavior is not a fundamental right, a Georgia law prohibiting private homosexual intercourse needed only a rational basis in order to comply with the Due Process Clause. Moral opposition to homosexuality, we said, provided that rational basis. 478 U.S., at 196, 106 S.Ct, at 2846. I would uphold the Indiana statute on precisely the same ground: Moral opposition to nudity supplies a rational basis for its prohibition, and since the First Amendment has no application to this case no more than that is needed. * * * Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 11 Indiana may constitutionally enforce its prohibition of public nudity even against those who choose to use public nudity as a means of communication. The State is regulating conduct, not expression, and those who choose to employ conduct *581 as a means of expression must make sure that the conduct they select is not generally forbidden. For these reasons, I agree that the judgment should be reversed. Justice SOUTER, concurring in the judgment. Not all dancing is entitled to First Amendment protection as expressive activity. This Court has previously categorized ballroom dancing as beyond the Amendment's protection, Dallas v. Stanglin, 490 U.S. 19,24-25,109S.CI. 1591,1594-1595, 104L.Ed.2d 18 (1989), and dancing as aerobic exercise would likewise be outside the First Amendment's concern. But dancing as a performance directed to an actual or hypothetical audience gives expression at least to generalized emotion or feeling, and where the dancer is nude or nearly so the feeling expressed, in the absence of some contrary clue, is eroticism, carrying an endorsement of erotic experience. Such is the expressive content of the dances described in the record. Although such performance dancing is inherently expressive, nudity per se is not. It is a condition, not an activity, and the voluntary assumption of that condition, without more, apparently expresses nothing beyond the view that the condition is somehow appropriate to the circumstances. But every voluntary act implies some such idea, and the implication is thus so common and minimal that calling all voluntary activity expressive would reduce the concept of expression to the point of the meaningless. A search for some expression beyond the minimal in the choice to go nude will often yield nothing: a person may choose nudity, for example, for maximum sunbathing. But when nudity is combined with expressive activity, its stimulative and attractive value certainly can enhance the force of expression, and a dancer's acts in going from clothed to nude, as in a striptease, are integrated into the dance and its expressive function. Thus I agree with the plurality and the dissent that an interest in freely engaging in the nude dancing at issue here is subject to a degree of First Amendment protection. *5821 also agree with the plurality that the appropriate analysis to determine the actual protection required by the First Amendment is the four- part enquiry described in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673,20 L.Ed.2d 672 (1968), for judging the limits of appropriate state action burdening expressive acts as distinct from pure speech or representation. I nonetheless write separately to rest my concurrence in the judgment, not on the possible sufficiency of society's moral views to justify the limitations at issue, but on the State's substantial interest in combating the secondary effects of adult **2469 entertainment establishments of the sort typified by respondents' establishments. It is, of course, true that this justification has not been articulated by Indiana's Legislature or by its courts. As the plurality observes, "Indiana does not record legislative history, and the State's highest court has not shed additional light on the statute's purpose," ante, at 2461. While it is certainly sound in such circumstances to infer general purposes "of protecting societal order and morality ... from [the statute's] text and history," ibid., I think that we need not so limit ourselves in identifying the justification for the legislation at issue here, and may legitimately consider petitioners' assertion that the statute is applied to nude dancing because such dancing "encouragfes] prostitution, increas[es] sexual assaults, and attract[s] other criminal activity." Brief for Petitioners 37. This asserted justification for the statute may not be ignored merely because it is unclear to what extent this purpose motivated the Indiana Legislature in enacting the statute. Our appropriate focus is not an empirical enquiry into the actual intent of the enacting legislature, but rather the existence or not of a current governmental interest in the service of which the challenged application of the statute may be constitutional. Cf. *583McGowa« v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 1961). At least as to the regulation of expressive conduct, [FN1] "[w]e decline to void [a statute] essentially on the ground that it is unwise legislation which [the legislature] had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a 'wiser1 speech about it." O'Brien, supra, 391 U.S., at 384, 88 S.Ct., at 1683. In my view, the interest asserted by petitioners in preventing prostitution, sexual assault, and other criminal activity, although presumably not a justification for all applications of the statute, is sufficient under O'Brien to justify the State's enforcement of the statute against the type of adult entertainment at issue here. FN1. Cf, e.g., Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (striking down state statute on Establishment Clause grounds due to impermissible legislative intent). Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 12 At the outset, it is clear that the prevention of such evils falls within the constitutional power of the State, which satisfies the first O'Brien criterion. See 391 U.S., at 377, 88 S.Ct., at 1679. The second O'Brien prong asks whether the regulation "furthers an important or substantial governmental interest." Ibid. The asserted state interest is plainly a substantial one; the only question is whether prohibiting nude dancing of the sort at issue here "furthers" that interest. I believe that our cases have addressed this question sufficiently to establish that it does. In Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), we upheld a city's zoning ordinance designed to prevent the occurrence of harmful secondary effects, including the crime associated with adult entertainment, by protecting approximately 95% of the city's area from the placement of motion picture theaters emphasizing " 'matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas" ... for observation by patrons therein.'" Id, at 44, 106 S.Ct., at 927. Of particular importance to the present enquiry, we held that the city of Renton was not compelled to justify its restrictions by studies specifically relating to the problems *584 that would be caused by adult theaters in that city. Rather, "Renton was entitled to rely on the experiences of Seattle and other cities," id. at 51, 106 S.Ct., at 931, which demonstrated the harmful secondary effects correlated with the presence "of even one [adult] theater in a given neighborhood." Id. at 50,106 S.Ct., at 930; cf. Young v. American Mini Theatres, Inc., 427 U.S. 50, 71, n. 34, 96 S.Ct. 2440, 2453, n. 34, 49 L.Ed.2d 310 (1976) (legislative finding that "a concentration of adult' movie theaters causes the area to deteriorate and become a focus of crime"); California v. LaRue, 409 U.S. 109, 111,93 S.Ct. 390,393,34 L.Ed.2d 342 (1972) **2470 (administrative findings of criminal activity associated with adult entertainment). The type of entertainment respondents seek to provide is plainly of the same character as that at issue in Renton, American Mini Theatres, and LaRue. It therefore is no leap to say that live nude dancing of the sort at issue here is likely to produce the same pernicious secondary effects as the adult films displaying "specified anatomical areas" at issue in Renton. Other reported cases from the Circuit in which this litigation arose confirm the conclusion. See, e.g., United States v. Marren, 890 F.2d 924, 926 (CA7 1989) (prostitution associated with nude dancing establishment); United States v. Doerr, 886F.2d944, 949 (CA7 1989) (same). In light of Renton's recognition that legislation seeking to combat the secondary effects of adult entertainment need not await localized proof of those effects, the State of Indiana could reasonably conclude that forbidding nude entertainment of the type offered at the Kitty Kat Lounge and the Glen Theatre's "bookstore" furthers its interest in preventing prostitution, sexual assault, and associated crimes. Given our recognition 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," American Mini Theatres, supra, 427 U.S., at 70,96 S.Ct., at 2452, I do not believe that a State is required affirmatively to undertake to litigate this issue repeatedly in every *585 case. The statute as applied to nudity of the sort at issue here therefore satisfies the second prong of O'Brien. [FN2] FN2. Because there is no overbreadth challenge before us, we are not called upon to decide whether the application of the statute would be valid in other contexts. It is enough, then, to say that the secondary effects rationale on which I rely here would be open to question if the State were to seek to enforce the statute by barring expressive nudity in classes of productions that could not readily be analogized to the adult films at issue in Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). It is difficult to see, for example, how the enforcement of Indiana's statute against nudity in a production of "Hair" or "Equus" somewhere other than an "adult" theater would further the State's interest in avoiding harmful secondary effects, in the absence of evidence that expressive nudity outside the context of Renton-type adult entertainment was correlated with such secondary effects. The third O'Brien condition is that the governmental interest be "unrelated to the suppression of free expression," 391 U.S., at 377,88 S.Ct., at 1679, and, on its face, the governmental interest in combating prostitution and other criminal activity is not at all inherently related to expression. The dissent contends, however, that Indiana seeks to regulate nude dancing as its means of combating such secondary effects "because ... creating or emphasizing [the] thoughts and ideas [expressed by nude dancing] in the minds of the spectators may lead to increased prostitution," post, at 2474, and that regulationof expressive conduct because of the fear that the expression will prove persuasive is inherently related to the suppression of free expression. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 13 Ibid. The major premise of the dissent's reasoning may be correct, but its minor premise describing the causal theory of Indiana's regulatory justification is not. To say that pernicious secondary effects are associated with nude dancing establishments is not necessarily to say that such effects result from the persuasive effect of the expression inherent hi nude dancing. It is to say, rather, only that the effects are correlated with the existence of establishments offering such dancing, without deciding what the precise causes of the correlation *586 actually are. It is possible, for example, that the higher incidence of prostitution and sexual assault in the vicinity of adult entertainment locations results from the concentration of crowds of men predisposed to such activities, or from the simple viewing of nude bodies regardless of whether those bodies are engaged in expression or not In neither case would the chain of causation run through the persuasive effect of the expressive component of nude dancing. **2471 Because the State's interest in banning nude dancing results from a simple correlation of such dancing with other evils, rather than from a relationship between the other evils and the expressive component of the dancing, the interest is unrelated to the suppression of free expression. Renton is again persuasive in support of this conclusioa In Renton, we held that an ordinance that regulated adult theaters because the presence of such theaters was correlated with secondary effects that the local government had an interest in regulating was content neutral (a determination similar to the "unrelated to the suppression of free expression" determination here, see Clark v. Community for Creative Non-Violence, 468 U.S. 288,298, andn. 8,104 S.Ct. 3065,3071, andn. 8, 82 L.Ed.2d 221 (1984)) because it was "justified without reference to the content of the regulated speech." 475 U.S., at 48, 106 S.Ct., at 929 (emphasis in original). We reached this conclusion without need to decide whether the cause of the correlation might have been the persuasive effect of the adult films that were being regulated. Similarly here, the "secondary effects" justification means that enforcement of the Indiana statute against nude dancing is "justified without reference to the content of the regulated [expression]," ibid, (emphasis omitted), which is sufficient, at least in the context of sexually explicit expression, [FN3] to satisfy the third prong of the O'Brien test FN3.1 reach this conclusion again mindful, as was the Court in Renton, that the protection of sexually explicit expression may be of lesser societal importance than the protection of other forms of expression. See Renton. supra, at 49, and n. 2, 106 S.Ct., at 929, and n. 2, citing Young v. American Mini Theatres, Inc., 427 U.S. 50, 70,96 S.Ct. 2440,2452,49 L.Ed.2d310(1976). *587 The fourth O'Brien condition, that the restriction be no greater than essential to further the governmental interest, requires little discussion. Pasties and a G-string moderate the expression to some degree, to be sure, but only to a degree. Dropping the final stitch is prohibited, but the limitation is minor when measured against the dancer's remaining capacity and opportunity to express the erotic message. Nor, so far as we are told, is the dancer or her employer limited by anything short of obscenity laws from expressing an erotic message by articulate speech or representational means; a pornographic movie featuring one of respondents, for example, was playing nearby without any interference from the authorities at the time these cases arose. Accordingly, I find O'Brien satisfied and concur in the judgment. Justice WHITE, with whom Justice MARSHALL, Justice BLACKMUN, and Justice STEVENS join, dissenting. The first question presented to us in this case is whether nonobscene nude dancing performed as entertainment is expressive conduct protected by the First Amendment. The Court of Appeals held that it is, observing that our prior decisions permit no other conclusion. Not surprisingly, then, the plurality now concedes that "nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment...." Ante, at 2460. This is no more than recognizing, as the Seventh Circuit observed, that dancing is an ancient art form and "inherently embodies the expression and communication of ideas and emotions." Miller v. Civil City of South Bend, 904 F.2d 1081, 1087 (1990) (en bane). [FN1] FN1. Justice SCALIA suggests that performance dancing is not inherently expressive activity, see ante, at 2466, n. 4, but the Court of Appeals has the better view: "Dance has been defined as 'the art of moving the body in a rhythmical way, usually to Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 14 music, to express an emotion or idea, to narrate a story, or simply to take delight in the movement itself.' 16 The New Encyclopedia Britannica 935 (1989). Inherently, it is the communication of emotion or ideas. At the root of all '[t]he varied manifestations of dancing ... lies the common impulse to resort to movement to externalise states which we cannot externalise by rational means. This is basic dance.' Martin, J. Introduction to the Dance (1939). Aristotle recognized in Poetics that the purpose of dance is 'to represent men's character as well as what they do and suffer.' The raw communicative power of dance was noted by the French poet Stephane Mallarme who declared that the dancer 'writing with her body ... suggests things which the written work could express only in several paragraphs of dialogue or descriptive prose.'" 904 F.2d, at 1085-1086. Justice SCALIA cites Dallas v. Stanglin, 490 U.S. 19, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989), but that decision dealt with social dancing, not performance dancing; and the submission in that case, which we rejected, was not that social dancing was an expressive activity but that plaintiffs associational rights were violated by restricting admission to dance halls on the basis of age. The Justice also asserts that even if dancing is inherently expressive, nudity is not. The statement may be true, but it tells us nothing about dancing in the nude. **2472 *588 Having arrived at the conclusion that nude dancing performed as entertainment enjoys First Amendment protection, the plurality states that it must "determine the level of protection to be afforded to the expressive conduct at issue, and must determine whether the Indiana statute is an impermissible infringement of that protected activity." Ante, at 2460. For guidance, the plurality turns to United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), which held that expressive conduct could be narrowly regulated or forbidden in pursuit of an important or substantial governmental interest that is unrelated to the content of the expression. The plurality finds that the Indiana statute satisfies the O'Brien test in all respects. The plurality acknowledges that it is impossible to discern the exact state interests which the Indiana Legislature had in mind when it enacted the Indiana statute, but the plurality nonetheless concludes that it is clear from the statute's text and history that the law's purpose is to protect "societal order and morality." Ante, at 2461. The plurality goes on to *589 conclude that Indiana's statute "was enacted as a general prohibition," ante, at 2461 (emphasis added), on people appearing in the nude among strangers in public places. The plurality then points to cases in which we upheld legislation based on the State's police power, and ultimately concludes that the Indiana statute "furthers a substantial government interest in protecting order and morality." Ante, at 2462. The Court also holds that the basis for banning nude dancing is unrelated to free expression and that it is narrowly drawn to serve the State's interest. The plurality's analysis is erroneous in several respects. Both the plurality and Justice SCALIA in his opinion concurring in the judgment overlook a fundamental and critical aspect of our cases upholding the States' exercise of their police powers. None of the cases they rely upon, including O'Brien and Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), involved anything less than truly general proscriptions on individual conduct. In O'Brien, for example, individuals were prohibited from destroying their draft cards at any time and in any place, even in completely private places such as the home. Likewise, in Bowers, the State prohibited sodomy, regardless of where the conduct might occur, including the home as was true in that case. The same is true of cases like Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), which, though not applicable here because it did not involve any claim that the peyote users were engaged in expressive activity, recognized that the State's interest in preventing the use of illegal drugs extends even into the home. By contrast, in this case Indiana does not suggest that its statute applies to, or could be applied to, nudity wherever it occurs, including the home. We do not understand the plurality or Justice SCALIA to be suggesting that Indiana could constitutionally enact such an intrusive prohibition, nor do we think such a suggestion would be tenable in light of our decision in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), in which we held that States could not punish the *590 mere possession of obscenity in the privacy of one's own home. **2473 We are told by the attorney general of Indiana that, in State v. Baysinger, 272 Ind. 236, 397 N.E.2d 580 (1979), the Indiana Supreme Court held that the statute at issue here cannot and does not prohibit nudity as a part of some larger form of expression meriting protection when the communication of ideas is involved. Brief for Petitioners 25,30-31; Reply Brief for Petitioners 9-11. Petitioners also state that the evils sought to be avoided by applying the statute in this case Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 15 would not obtain in the case of theatrical productions, such as "Salome" or "Hair." Id., at 11-12. Neither is there any evidence that the State has attempted to apply the statute to nudity in performances such as plays, ballets, or operas. "No arrests have ever been made for nudity as part of a play or ballet." App. 19 (affidavit of Sgt. Timothy Corbett). Thus, the Indiana statute is not a general prohibition of the type we have upheld in prior cases. As a result, the plurality and Justice SCALIA's simple references to the State's general interest in promoting societal order and morality are not sufficient justification for a statute which concededly reaches a significant amount of protected expressive activity. Instead, in applying the O'Brien test, we are obligated to carefully examine the reasons the State has chosen to regulate this expressive conduct in a less than general statute. In other words, when the State enacts a law which draws a line between expressive conduct which is regulated and nonexpressive conduct of the same type which is not regulated, O'Brien places the burden on the State to justify the distinctions it has made. Closer inquiry as to the purpose of the statute is surely appropriate. Legislators do not just randomly select certain conduct for proscription; they have reasons for doing so and those reasons illuminate the purpose of the law that is passed. Indeed, a law may have multiple purposes. The purpose of *591 forbidding people to appear nude in parks, beaches, hot dog stands, and like public places is to protect others from offense. But that could not possibly be the purpose of preventing nude dancing in theaters and barrooms since the viewers are exclusively consenting adults who pay money to see these dances. The purpose of the proscription in these contexts is to protect the viewers from what the State believes is the harmful message that nude dancing communicates. This is why Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984), is of no help to the State: "In Clark... the damage to the parks was the same whether the sleepers were camping out for fun, were in fact homeless, or wished by sleeping in the park to make a symbolic statement on behalf of the homeless." 904 F.2d, at 1103 (Posner, J., concurring). That cannot be said in this case: The perceived damage to the public interest caused by appearing nude on the streets or in the parks, as I have said, is not what the State seeks to avoid in preventing nude dancing in theaters and taverns. There the perceived harm is the communicative aspect of the erotic dance. As the State now tells us, and as Justice SOUTER agrees, the State's goal in applying what it describes as its "content neutral" statute to the nude dancing in this case is "deterrence of prostitution, sexual assaults, criminal activity, degradation of women, and other activities which break down family structure." Reply Brief for Petitioners 11. The attainment of these goals, however, depends on preventing an expressive activity. The plurality nevertheless holds that the third requirement of the O'Brien test, that the governmental interest be unrelated to the suppression of free expression, is satisfied because in applying the statute to nude dancing, the State is not "proscribing nudity because of the erotic message conveyed by the dancers." Ante, at 2463. The plurality suggests that this is so because the State does not ban dancing that sends an erotic message; it is only nude erotic dancing that is forbidden. The perceived evil is not erotic dancing but public *592 nudity, which may be prohibited despite any incidental impact on **2474 expressive activity. This analysis is transparently erroneous. In arriving at its conclusion, the plurality concedes that nude dancing conveys an erotic message and concedes that the message would be muted if the dancers wore pasties and G-strings. Indeed, the emotional or erotic impact of the dance is intensified by the nudity of the performers. As Judge Posner argued in his thoughtful concurring opinion in the Court of Appeals, the nudity of the dancer is an integral part of the emotions and thoughts that a nude dancing performance evokes. 904 F.2d at 1090-1098. The sight of a fully clothed, or even a partially clothed, dancer generally will have a far different impact on a spectator than that of a nude dancer, even if the same dance is performed. The nudity is itself an expressive component of the dance, not merely incidental "conduct." We have previously pointed out that " '[n]udity alone1 does not place otherwise protected material outside the mantle of the First Amendment." Schad v. Mt. Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176,2181, 68 L.Ed.2d 671 (1981). This being the case, it cannot be that the statutory prohibition is unrelated to expressive conduct. Since the State permits the dancers to perform if they wear pasties and G-strings but forbids nude dancing, it is precisely because of the distinctive, expressive content of the nude dancing performances at issue in this case that the State seeks to apply the statutory prohibition. It is only because nude dancing performances may generate emotions and feelings of eroticism and sensuality among the spectators that the State seeks to regulate such expressive activity, apparently on the assumption that creating or emphasizing such thoughts and ideas in the minds of the spectators may lead to increased prostitution and the degradation of women. But generating thoughts, ideas, and emotions is the essence of communication. The nudity element of Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 16 nude dancing performances cannot *593 be neatly pigeonholed as mere "conduct" independent of any expressive component of the dance. [FN2] FN2. Justice SOUTER agrees with the plurality that the third requirement of the O'Brien test is satisfied, but only because he is not certain that there is a causal connection between the message conveyed by nude dancing and the evils which the State is seeking to prevent. See ante, at 2470. Justice SOUTER's analysis is at least as flawed as that of the plurality. If Justice SOUTER is correct that there is no causal connection between the message conveyed by the nude dancing at issue here and the negative secondary effects that the State desires to regulate, the State does not have even a rational basis for its absolute prohibition on nude dancing that is admittedly expressive. Furthermore, if the real problem is the "concentration of crowds of men predisposed" to the designated evils, ante, at 2470, then the First Amendment requires that the State address that problem in a fashion that does not include banning an entire category of expressive activity. See Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d29(1986). That fact dictates the level of First Amendment protection to be accorded the performances at issue here. In Texasv. Johnson. 491 U.S. 397,411-412,109 S.Ct. 2533, 2543-2544, 105 L.Ed.2d 342 (1989), the Court observed: "Whether Johnson's treatment of the flag violated Texas law thus depended on the likely communicative impact of his expressive conduct.... We must therefore subject the State's asserted interest in preserving the special symbolic character of the flag to 'the most exacting scrutiny.' Boos v. Barry, 485 U.S. [312], 321 [108 S.Ct. 1157, 1164, 99 L.Ed.2d 333] [ (1988) ]." Content based restrictions "will be upheld only if narrowly drawn to accomplish a compelling governmental interest." United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1707, 75 L.Ed.2d 736 (1983); Sable Communications ofCai, Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829,2836,106 L.Ed.2d 93 (1989). Nothing could be clearer from our cases. That the performances in the Kitty Kat Lounge may not be high art, to say the least, and may not appeal to the Court, is hardly an excuse for distorting and ignoring settled doctrine. The Court's assessment of the artistic merits of nude dancing performances **2475 should not be the determining factor in deciding this case. In the words of Justice Harlan: "[I]t is largely because governmental officials cannot make principled decisions *594 in this area that the Constitution leaves matters of taste and style so largely to the individual." Cohen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1971). "[W]hile the entertainment afforded by a nude ballet at Lincoln Center to those who can pay the price may differ vastly in content (as viewed by judges) or in quality (as viewed by critics), it may not differ in substance from the dance viewed by the person who ... wants some 'entertainment' with his beer or shot of rye." Salem Inn, Inc. v. Frank, 501 F.2d 18, 21, n. 3 (CA2 1974), affd in part sub nom., Doran v. Salem Inn, Inc., 422 U.S. 922,95 S.Ct. 2561,45 L.EA2d 648 (1975). The plurality and Justice SOUTER do not go beyond saying that the state interests asserted here are important and substantial. But even if there were compelling interests, the Indiana statute is not narrowly drawn. If the State is genuinely concerned with prostitution and associated evils, as Justice SOUTER seems to think, or the type of conduct that was occurring in California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), it can adopt restrictions that do not interfere with the expressiveness of nonobscene nude dancing performances. For instance, the State could perhaps require that, while performing, nude performers remain at all times a certain minimum distance from spectators, that nude entertainment be limited to certain hours, or even that establishments providing such entertainment be dispersed throughout the city. Cf. Renton v. Playtime Theatres, Inc., 475 U.S. 41,106 S.Ct. 925, 89 L.Ed.2d 29 (1986). Likewise, the State clearly has the authority to criminalize prostitution and obscene behavior. Banning an entire category of expressive activity, however, generally does not satisfy the narrow tailoring requirement of strict First Amendment scrutiny. See Frisby v. Schultz, 487 U.S. 474,485, 108 S.Ct. 2495, 2503, 101 L.Ed.2d 420 (1988). Furthermore, if nude dancing in barrooms, as compared with other establishments, is the most worrisome problem, the State could invoke its Twenty-first Amendment powers and impose appropriate regulation. New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981) (per curiani); California v. LaRue, supra. *595 As I see it, our cases require us to affirm absent a compelling state interest supporting the statute. Neither the plurality nor the State suggest that the statute could withstand scrutiny under that standard. Justice SCALIA's views are similar to those of the plurality and suffer from the same defects. The Justice Copr. © West 2004 No Claim to Orig. U.S. Govt. Works asserts that a general law barring specified conduct does not implicate the First Amendment unless the purpose of the law is to suppress the expressive quality of the forbidden conduct, and that, absent such purpose, First Amendment protections are not triggered simply because the incidental effect of the law is to proscribe conduct that is unquestionably expressive. Cf. Community for Creative Non-Violence v. Watt, 227 U.SApp.D.C. 19, 703 F.2d 586, 622-623 (1983) (Scalia, J., dissenting). The application of the Justice's proposition to this case is simple to state: The statute at issue is a general law banning nude appearances in public places, including barrooms and theaters. There is no showing that the purpose of this general law was to regulate expressive conduct; hence, the First Amendment is irrelevant and nude dancing in theaters and barrooms may be forbidden, irrespective of the expressiveness of the dancing. As I have pointed out, however, the premise for the Justice's position-that the statute is a general law of the type our cases contemplate— is nonexistent in this case. Reference to Justice SCALIA's own hypothetical makes this clear. We agree with Justice SCALIA that the Indiana statute would not permit 60,000 consenting Hoosiers to expose themselves to each other in the Hoosier Dome. No one can doubt, however, that those same 60,000 Hoosiers would be perfectly **2476 free to drive to their respective homes all across Indiana and, once there, to parade around, cavort, and revel in the nude for hours in front of relatives and friends. It is difficult to see why the State's interest in morality is any less in that situation, especially if, as Justice SCALIA seems to suggest, nudity is inherently evil, but clearly the statute does *596 not reach such activity. As we pointed out earlier, the State's failure to enact a truly general proscription requires closer scrutiny of the reasons for the distinctions the State has drawn. See supra, at 2473. As explained previously, the purpose of applying the law to the nude dancing performances in respondents' establishments is to prevent their customers from being exposed to the distinctive communicative aspects of nude dancing. That being the case, Justice SCALIA's observation is fully applicable here: "Where the government prohibits conduct precisely because of its communicative attributes, we hold the regulation unconstitutional." Ante, at 2466. The O'Brien decision does not help Justice SCALIA. Indeed, his position, like the plurality's, would eviscerate the O'Brien test Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S.Ct. 1595,108 L.Ed.2d 876 (1990), is likewise not on point The Indiana law, as applied to nude dancing, Page 17 targets the expressive activity itself; in Indiana nudity in a dancing performance is a crime because of the message such dancing communicates. In Smith, the use of drugs was not criminal because the use was part of or occurred within the course of an otherwise protected religious ceremony, but because a general law made it so and was supported by the same interests in the religious context as in others. Accordingly, I would affirm the judgment of the Court of Appeals, and dissent from this Court's judgment. Ill S.Ct. 2456, 501 U.S. 560, 115 L.Ed.2d 504, 59 USLW 4745 Briefs and Other Related Documents (Back to top) • 1991 WL 636544 (Oral Argument) Oral Argument (Jan. 08, 1991) • 1991 WL 521274 (Appellate Brief) REPLY BRIEF FOR PETITIONERS (Jan. 03, 1991) • 1991 WL 521274 (Appellate Brief) REPLY BRIEF FOR PETITIONERS (Jan. 03, 1991) • 1990 WL 505544 (Appellate Brief) BRIEF FOR RESPONDENTS GLEN THEATRE, INC., GAYLE ANN MARIE SUTRO, AND CARLA JOHNSON (Dec. 19, 1990) • 1990 WL 10012837 (Appellate Brief) Brief of Respondents Darlene Miller and Jr's Kitty Kat Lounge, Inc. (Dec. 17, 1990) • 1990 WL 10012839 (Appellate Brief) Brief of People for the American Way, the Coalition for Freedom of Expression, and the National Campaign for Freedom of Expression as Amici Curiae in Support of the Respondents (Dec. 17, 1990) • 1990 WL 505543 (Appellate Brief) BRIEF OF RESPONDENTS DARLENE MILLER and JR'S KITTY KAT LOUNGE, INC. (Dec. 17, 1990) • 1990 WL 10012829 (Appellate Brief) Brief of the Georgia on Premise & Lounge Association, Inc. as Amicus Curiae in Support of Respondents (Dec. 14, 1990) • 1990 WL 10012835 (Appellate Brief) Motions (2) and Amicus Curiae Brief of James J. Clancy, Attorney at Law, in Support of Neither Petitioners nor Respondents (Dec. 14,1990) Copr. © West 2004 No Claim to Orig. U.S. Govt. Works • 1990 WL 10012826 (Appellate Brief) Brief for Petitioners (Nov. 15, 1990) • 1990 WL 10012828 (Appellate Brief) Brief of the States of Arizona, Connecticut, Missouri, North Carolina, and the Virgin Islands in Support of Petitioners, Amici Curiae (Nov. 15, 1990) • 1990 WL 10022349 (Appellate Brief) Brief of the National Governors' Association, National Association of Counties, United States Conference of Mayors, International City Management Association, and National League of Cities as Amici Curiae in Support of Petitioners (Nov. 15, 1990) • 1990 WL 505542 (Appellate Brief) BRIEF FOR PETITIONERS (Nov. 15, 1990) • 1990 WL 10012822 (Appellate Brief) Brief of American Family Association, Inc., National Family Legal Foundation, Inc., Children's Legal Foundation, Inc., Elena Bowman, Lou Ann Hill, Sally Beard, and Brenda Gill. Amici Curiae, in Support of Petitioners (Oct. Term 1990) • 1990 WL 10012832 (Appellate Brief) Brief Amicus Curiae of the American Civil Liberties Union, Indiana Civil Liberties Union, ACLU of Ohio, and Volunteer Lawyers for the Arts, in Support of Respondents (Oct. Term 1990) • 1990 WL 10012842 (Appellate Brief) Brief for Respondents Glen Theatre, Inc., Gayle Ann Marie Sutro, and Carla Johnson (Oct. Term 1990) • 1990 WL 10012845 (Appellate Brief) Reply Brief for Petitioners (Oct. Term 1990) • 1990 WL 10012820 (Appellate Brief) Supplemental Brief on Behalf of Respondents Glen Theatre, Inc., Gayle Ann Marie Sutro and Carla Johnson (Aug. 27, 1990) • 1990 WL 10022916 (Appellate Filing) Supplemental Brief on Behalf of Respondents Glen Theatre, Inc., Gayle Ann Marie Sutro and Carla Johnson (Aug. 27, 1990) • 1990 WL 10012818 (Appellate Brief) Brief of the States of Arizona, Connecticut, Missouri, North Carolina, and Pennsylvania as Amici Curiae in Support of the Petition for Writ of Certiorari (Aug. 01, 1990) • 1990 WL 10022881 (Appellate Filing) Brief of the States of Arizona, Connecticut, Missouri, North Carolina, and Pennsylvania as Amici Curiae in Support Page 18 of the Petition for Writ of Certiorari (Aug. 01, 1990) • 1990 WL 10022882 (Appellate Filing) Brief Amicus Curiae of American Family Association, Inc. in Support of Petitioners (JuL 31, 1990) • 1990 WL 10022925 (Appellate Filing) Brief in Opposition by Respondents Darlene Miller and JR's Kitty Kat Lounge, Inc (Jul. 30, 1990) • 1990 WL 10022926 (Appellate Filing) Brief in Opposition to Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit (Jul. 27, 1990) • 1990 WL 10022784 (Appellate Filing) Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit (Jul. 02, 1990) • 1990 WL 10012817 (Appellate Brief) Brief Amicus Curiae of American Family Association, Inc. in Support of Petitioners (1990) Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 8 Pagel 40 Cal.App.4th 1075 47 Cal.Rptr.2d 661, 95 Cal. Daily Op. Serv. 9267, 95 Daily Journal D.A.R. 16,107 (Cite as: 40 Cal.App.4th 1075) WAYNE C. BERRY, Plaintiff and Appellant, v. CITY OF SANTA BARBARA et al., Defendants and Respondents. No. B085586. Court of Appeal, Second District, California. Dec 5, 1995. SUMMARY Plaintiff, who distributed an "adult" publication from locked sidewalk newsracks, brought an action challenging enforcement of a city ordinance requiring material harmful to minors, when displayed in a public place from which minors were not excluded, to be placed in blinder racks so that the lower two-thirds of the material was not exposed to view. The trial court granted defendant city's motion for judgment on the pleadings on the basis of its findings that the ordinance was permitted by Pen. Code, §313.1, subd. (d), that the publication at issue constituted harmful matter within •the meaning of the ordinance, that blinding could be required whether or not the cover of the harmful matter contained harmful matter itself, that the ordinance had a proper purpose and effect because it allowed members of the public to identify harmful matter, and that the ordinance did not violate U.S. Const., 1st and 14th Amends. (Superior Court of Santa Barbara County, No. 199647, Patrick L. McMahon, Judge.) The Court of Appeal affirmed the trial court's ruling that the ordinance was facially constitutional but reversed the order requiring the publication at issue to be blinded and remanded for an express ruling as to whether its front page was harmful to minors. The court held that, under the strict scrutiny test applicable to regulations restricting speech on the basis of content, the ordinance did not violate U.S. Const., 1st Amend. It served a compelling state interest, protecting minors from exposure to harmful matter, and it was narrowly drawn, imposing a constitutionally insignificant and therefore permissible burden on adult access to the publication. The court further held, however, that the trial court's finding that the blinders were required whether or not the cover of the harmful matter contained harmful matter itself was logically and legally erroneous: the city could require that display of the publication be blinded only if the front page of the publication contained harmful matter. The court also held that the ordinance did not violate the equal protection clause of U.S. Const., 14th Amend., and did not lack a scienter requirement. Under a narrowing construction that avoided constitutional difficulties, the statute could be read to impose, like *1076Pen. Code, § 313.1, subd. (d), on which it was based, two knowledge requirements: the person displaying the harmful matter must have knowledge of the character of the matter, and must either have knowledge of, or fail to exercise reasonable care in ascertaining, the age of the persons to whom it is displayed. (Opinion by Yegan, J., with Stone (S. J.), P. J., and Gilbert, J., concurring.) HEADNOTES Classified to California Digest of Official Reports (1) Constitutional Law § 62~First Amendment and Other Fundamental Rights— Governmental Regulation—Judicial Review—Standard of Appellate Review. In a case in which a city ordinance restricting the display of adult publications on sidewalk newsracks is challenged as violating U.S. Const., 1st and 14th Amends., the appellate court reviews de novo, i.e., independently decides, whether the ordinance is unconstitutional. (2) Constitutional Law § 26-Constitutionality of Legislation—Rules of Interpretation—Construction in Favor of Constitutionality—Restriction on Display of Adult Publications. A city ordinance restricting the display of adult publications on sidewalk newsracks must be interpreted to avoid constitutional difficulties. It will not be invalidated if it is readily susceptible to a narrowing construction that would make it constitutional. (3) Constitutional Law § 60—First Amendment and Other Fundamental Rights— Governmental Regulation-Pornography—Protection of Minors. Sexual expression that is indecent but not obscene is protected by U.S. Const., 1st Amend. However, there is a compelling interest in protecting the physical and pyschological well-being of minors, and this interest extends to shielding minors from the influence of literature that is not obscene by adult standards. Any such regulation must be narrowly drawn so as to not Copr. © Bancroft-Whitney and West Group 1998 Page 2 unnecessarily interfere with freedoms protected by the First Amendment. (4) Constitutional Law § 65—First Amendment and Other Fundamental Rights— Governmental Regulation--Judicial Review—Compelling Governmental Interest— Content-based Restrictions. Laws attempting to regulate expression are carefully scrutinized. The level of scrutiny depends upon whether the regulation is content-based or content- neutral. Laws that by their terms distinguish favored speech from *1077 disfavored speech on the basis of the ideas or views expressed are content-based. Regulations serving purposes unrelated to the content of expression are deemed neutral, even if they have an incidental effect on some speakers or messages but not others. Contentbased regulations are presumed to be invalid. To uphold such a regulation, the government must demonstrate that the regulation is necessary to serve a compelling state interest and that it has been narrowly tailored to achieve that end. By contrast, a content-neutral regulation will be upheld if it is narrowly tailored to serve a significant governmental interest, and it leaves open ample alternative channels of communication. (5) Constitutional Law § 65~First Amendment and Other Fundamental Rights— Governmental Regulation--Judicial Re view--Compelling Governmental Interest-- Content-based Restrictions—Restriction on Display of Adult Publication. A city ordinance requiring material harmful to minors, when displayed in a public place from which minors were not excluded, to be placed in blinder racks so that the lower two-thirds of the material was not exposed to view, was content-based and therefore subject to strict constitutional scrutiny. It represented a determination by the city that such material was inappropriate for even limited viewing by minors, and the city did not offer any content- neutral justification for the ordinance, such as the secondary effects associated with sidewalk newsracks. (6) Constitutional Law § 60—First Amendment and Other Fundamental Rights— Governmental Regulation—Pornography-Display of Adult Publication in Newsracks—Permissibility of Blinder Requirement. In an action challenging the constitutionality of a city ordinance requiring material harmful to minors, when displayed in a public place from which minors were not excluded, to be placed in blinder racks so that the lower two-thirds of the material was not exposed to view, the trial court did not err in determining that the ordinance did not violate the free speech and press provisions of U.S. Const., 1st Amend. The ordinance served a compelling state interest, protecting minors from exposure to harmful matter. It was also narrowly drawn, imposing a constitutionally insignificant and therefore permissible burden on adult access to the publication. However, the trial court's finding that the blinders were required whether or not the cover of the harmful matter contained harmful matter itself was logically and legally erroneous: the city could require that display of the *1078 publication be blinded only if the front page of the publication contained harmful matter. [Supreme Court's views as to validity of laws restricting or prohibiting sale or distribution to minors of particular types of goods or services otherwise available to adults, note, 52 L.Ed.ld 892. See also 7 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 253.] (7) Constitutional Law § 87.2-Equal Protection—Classification—Judicial Review—Strict Standard of Review for Suspect Classifications or Classifications Touching on Fundamental Interests—Restrictions Discriminating Among Speech-related Activities. A city ordinance requiring material harmful to minors, when displayed in a public place from which minors were not excluded, to be placed in blinder racks so that the lower two-thirds of the material was not exposed to view, did not violate the equal protection clause of U.S. Const., 14th Amend. When a government regulation discriminates among speech-related activities in a public forum, the equal protection clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions drawn must be carefully scrutinized. However, the ordinance did not discriminate among distribution locations. Although it was placed in a chapter of the municipal code devoted to newsracks, it was not limited to the display of harmful material in newsracks; instead, on its face, it applied whenever material that was harmful to minors was displayed in a public place, other than a public place from which minors were excluded. (8) Constitutional Law § 21—Constitutionality of Legislation — Raising Question of Constitutionality— Standing—Restriction on Display of Adult Publication—Lack of Scienter Requirement. In an action challenging the constitutionality of a city ordinance requiring material harmful to minors, when displayed in a public place from which minors were not excluded, to be placed in blinder racks so that the lower two-thirds of the material was not exposed to view, plaintiff, who distributed "adult" publications from sidewalk newsracks, had standing to challenge the ordinance as lacking a scienter requirement (which such Copr. © Bancroft-Whitney and West Group 1998 PageS statutes must have if they impose criminal penalties), even though he was not himself facing criminal charges and obviously knew that the material he was distributing contained harmful matter. Plaintiff was permitted to challenge the ordinance on its face because it also threatened others not before the court-those who might wish to engage in *1079 legally protected expression but might refrain from doing so rather than risk prosecution. If a law's overbreadth is substantial, the law may not be enforced against anyone, including the party before the court, until it is narrowed to reach only unprotected activity, whether by legislative action or by judicial construction or partial invalidation. (9) Constitutional Law § 60—First Amendment and Other Fundamental Rights— Governmental Regulation—Pornography—Display of Adult Publication in Newsracks—Permissibility of Blinder Requirement-Scienter. A city ordinance requiring material harmful to minors, when displayed in a public place from which minors were not excluded, to be placed in blinder racks so that the lower two-thirds of the material was not exposed to view, was not invalid as lacking a scienter requirement. Statutes criminalizing the distribution of such materials must contain a scienter requirement because strict criminal liability would have an unacceptable chilling effect on the public's access to constitutionally protected materials. However, such statutes are akin to the common law offenses against the state, person, property, or public morals that presume a scienter requirement absent express contrary intent. Further, a court must adopt a narrowing construction to avoid constitutional difficulties, if the ordinance is readily susceptible to such a construction. Thus, the statute could be read to impose, like Pen. Code, §313.1, subd. (d), on which it was based, two knowledge requirements: the person displaying the harmful matter must have knowledge of the character of the matter, and must either have knowledge of, or fail to exercise reasonable care in ascertaining, the age of the persons to whom it is displayed. (10) Constitutional Law § 60—First Amendment and Other Fundamental Rights—Governmental Regulation—Pornography-Display of Adult Publication in Newsracks—Permissibility of Blinder Requirement-Application to Matter Contained Inside Publication. In an action challenging enforcement of a city ordinance requiring material harmful to minors, when displayed in a public place from which minors were not excluded, to be placed in blinder racks so that the lower two-thirds of the material was not exposed to view, the trial court's ruling granting defendant city's motion for judgment on the pleadings was erroneous to the extent • it was predicated solely on the finding that harmful matter inside a publication provides a basis for blinding the cover. The crucial determination was whether the front page of the material at issue was harmful to minors, and this was required to be decided by the trial court in the first instance on remand. If the front page was determined to be harmful to minors, then judgment on the pleadings for the city would be proper. *1080 COUNSEL Fleishman, Fisher & Moest and Stanley Fleishman for Plaintiff and Appellant. Daniel J. Wallace, City Attorney, and Janet K. McGinnis, Assistant City Attorney, for Defendants and Respondents. YEGAN, J. We are called upon to delicately balance precious First Amendment rights against the government's interest in protecting minors from viewing harmful matter. Wayne C. Berry, who distributes an "adult" publication from sidewalk newsracks, challenged enforcement of a city ordinance of the City of Santa Barbara (City) on the theory that it violated the United States Constitution. The trial court disagreed. We have strictly scrutinized the ordinance, section 5.66.110 of the Santa Barbara Municipal Code, and conclude that, on its face, the ordinance passes constitutional muster. However, the trial court did not expressly rule on whether the front page of the subject publication is harmful to minors. We cannot affirm the judgment on the pleadings insofar as it requires "L.A. X ... Press" to be blinded. We remand for an express determination on the issue of whether the front page of the publication is harmful to minors. The Ordinance and Statute. Chapter 5.66 of the Santa Barbara Municipal Code regulates the registration, placement and appearance of newsracks within the City. Section 5.66.110, the only portion of chapter 5.66 which is at issue here, provides: "No material which is harmful to minors, as defined in Section 313 of the Penal Code of the State, shall be displayed in a public place, other than a public place from which minors are excluded, unless blinder racks are placed in front of the material so that the lower two-thirds (2/3) of the material is not exposed to view." Penal Code section 313, subdivision (a), defines "harmful matter" as "matter, taken as a whole, which to Copr. © Bancroft-Whitney and West Group 1998 Page 4 the average person, applying contemporary statewide /-***1" standards, appeals to the prurient interest, and is matter w, which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." *1081 The Publication. Appellant distributes an "adult" or "erotic" publication, the "L.A. X... Press," from locked, sidewalk newsracks outside the post office, bus station, grocery stores, restaurants and other locations throughout the City. The publication consists primarily of advertisements for massage parlors, telephone sex lines, other forms of "adult" entertainment, and "personal" advertisements. The advertisements often are accompanied by sexually explicit photographs leaving little to the imagination. The publication also prints news articles, music and movie reviews, and editorials. The publication's front page appears to typically contain a photograph of a scantily clad woman in a provocative pose suggesting sexual conduct. [FN1] could, therefore, apply to those who display material without knowledge of its harmful character. The trial court denied appellant's request for a preliminary injunction and shortly thereafter granted the City's motion for judgment on the pleadings. In granting the motion, the trial court made certain findings: (1) The ordinance is permitted by Penal Code section 313.1, subdivision (d); [FN2] (2) the publication constitutes harmful matter within the meaning of the ordinance; (3) "when harmful matter is displayed in a public place that does not exclude *1082 minors, the city may require that it be blinded whether or not the cover of the harmful matter contains harmful matter itself; (4) the ordinance "has a proper purpose and effect" because it allows members of the public to identify harmful matter; and (5) the ordinance does not violate the First and Fourteenth Amendments to the United States Constitution because the publications are harmful to minors and plaintiff is, therefore, "subject to display and sale restrictions under city ordinance and state law as are all persons displaying and selling harmful matter in public places." [FN3] FN1 Two exemplars were introduced into evidence. The frontpage of volume 5, number 7, issue 272, November 18,1993, depicts two extremely buxom women, "Wendy Whoppers" and "Lisa Lips." They are essentially naked from the waist up. Their nipples are covered with small coverings and small strips of cloth. The front page of volume 5, number 7, issue 278, December 30,1993, depicts a woman on her knees wearing only a shirt and shoes. Her naked buttocks would expose her genitalia but for an opaque dot strategically placed on the photograph. The Litigation. The City enacted the ordinance on November 23,1993. Appellant filed his complaint the next day. He argued in the trial court, as he does here, that the City ordinance fails strict constitutional scrutiny because it unnecessarily prevents adults from viewing the front page of publications distributed through newsracks, even when the front page is not itself harmful material. He further argues that the ordinance violates the equal protection clause of the Fourteenth Amendment because it applies only to the display of "harmful matter" in newsracks but not to the display of similar materials in bookstores and other venues. Finally, appellant contends that the ordinance is facially overbroad because it does not contain a scienter requirement and FN2 Penal Code section 313.1, subdivision (d) provides: "Nothing in this section invalidates or prohibits the adoption of an ordinance by a city, county, or city and county that restricts the display of material that is harmful to minors, as defined in this chapter, in a public place, other than a public place from which minors are excluded, by requiring the placement of devices commonly known as blinder racks in front of the material, so that the lower two-thirds of the material is not exposed to view." FN3 As we shall explain, the city may not blind newsracks that distribute "L.A. X ... Press" unless the front page thereof is "harmful to minors." Based upon the exemplars, a trier of fact could determine that the advertisements inside the publication are harmful to minors. Even though we hold that section 5.66.110 of the Santa Barbara Municipal Code passes constitutional muster, the trial court may not require the subject publication to be blinded unless it determines that the front page is "harmful to minors." We express no opinion on this issue at this tune. Standard of Appellate Review and Rules of Construction. Copr. © Bancroft-Whitney and West Group 1998 PageS In reviewing the trial court's decision to sustain the demurrer and grant judgment on the pleadings, we assume the truth of all material facts properly pleaded in the amended complaint, but not contentions or conclusions of fact or law. We also consider matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 CaLRptr. 718, 703 P.2d 58]; Serrano v. Priest (1971) 5 Cal.3d 584, 591 [96 CaLRptr. 607, 487 P.2d 1241].) (1) In this First Amendment case, we review de novo, i.e., we independently decide, whether the ordinance violates the First and Fourteenth Amendments to the United States Constitution. (Gonzalez v. Superior Court (1986) 180 Cal.App.3d 1116, 1122 [226 CaLRptr. 164] [city sign ordinance];Sussliv. City of 'San Mateo (1981) 120 Cal.App.3d 1, 9 [173 CaLRptr. 781] [city sign ordinance]; see alsoBose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 499-511 [80 L.Ed.2d 502,515-523,104 S.Ct. 1949]; McCoy v. Hearst Corp. (1986) 42 Cal.3d 835,841-846 [231 Cal.Rptr. 518,727 P.2d 711]; Zeitlin v. Arnebergh (1963) 59 Cal.2d 901, 909 [31 Cal.Rptr. 800, 383 P.2d 152]; LA. Teachers Unionv. LA. CityBd. of Ed. (1969) 71 Cal.2d 551,557 [78 Cal.Rptr. 723, 455 P.2d 827].) Even though appellant has not been prosecuted for failing to install blinder racks, we "proceed with caution and restraint, as invalidation may result in unnecessary interference with a [city] regulatory program." (Erznomik v. City of Jacksonville (1975) 422 U.S. 205, 216 [45 L.Ed.2d 125, 135, 95 S.Ct. 2268].) (2) If possible, the ordinance must be interpreted to avoid constitutional difficulties. (Frisby v. Schultz (1988)487 U.S. 474, 483 [101 L.Ed.2d 420, 430-431, 108 S.Ct. 2495].) The ordinance will not be invalidated if it is readily susceptible to a narrowing construction that would *1083 make it constitutional. (Virginia v. American Booksellers Assn. (1988) 484 U.S. 383, 397 [98 L.Ed.2d782,796,108 S.Ct. 636]; Erznoznikv. City of Jacksonville, supra, 422 U.S. at p. 216 [45 L.Ed.2d at p. 135].) Standard of Obscenity and the Protection of Minors. "Sexual expression which is indecent but not obscene is protected by the First Amendment .... The Government may ... regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest. (3) We have recognized that there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from die influence of literature that is not obscene by adult standards. [Citations.] The Government may serve this legitimate interest, but to withstand constitutional scrutiny, 'it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms. [Citations.] It is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends." (Sable Communications ofCai. Inc.v. FCC (1989) 492 U.S. 115, 126[106L.Ed.2d93, 105,109S.Ct. 2829]; Ginsbergv. New For*(1968)390 U.S. 629, 639 [20 L.Ed.2d 195, 203-204, 88 S.Ct. 1274].) This pronouncement from the United States Supreme Court certainly gives the California Legislature and local government the constitutional power to enact laws designed to keep harmful matter away from minors. Judged by adult standards, the publications at issue here are not obscene. The City so conceded at oral argument. Accordingly, they and their distribution through newsracks are entitled to First Amendment protection. (Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 CaL3d 294, 302 [138 CaLRptr. 53, 562P.2d l302];Sebago. inc. v. CityofAlameda(\n9) 211 Cal.App.3d 1372, 1381 [259 Cal.Rptr. 918].) The Ordinance Does Not Violate the Free Speech and Press Provisions of the First Amendment. (4) Because laws that attempt to regulate expression "pose a particular danger of abuse by the State," (Arkansas Writers'Project Inc. v. /tag/am/(1987) 481 U.S. 221, 228 [95 L.Ed.2d 209, 218-219, 107 S.Ct. 1722]), they are carefully scrutinized. (Turner Broadcasting System v. FCC (1994) 512 U.S. , __-__ [129 L.Ed.2d 497,516-517,114 S.Ct. 2445].) The level of scrutiny applied depends upon whether the regulation is content based or content neutral. "As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views *1084 expressed are content-based." (Turner Broadcasting System v. FCC, supra, 512 U.S. at p. [129 L.Ed.2d at p. 518].) In determining whether a regulation is content-based, the "principle inquiry..., is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. [Citation.] The government's purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others. [Citation.]" (Wardv. Rock Against Racism (1989) 491 U.S. 781, 791 [105 L.Ed.2d 661, 675, 109 S.Ct. 2746].) Content-based regulations are presumed to be invalid. (R.A.V. v. St. Paul (1992) 505 U.S. 377, 382 [120 Copr. © Bancroft-Whitney and West Group 1998 Page 6 L.Ed.2d 305, 317, 112 S.Ct. 2538]; City of Fresno v. Press Communications, Inc. (1994) 31 Cal.App.4th 32, 40 [36 Cal.Rptr.2d 456].) To uphold such a regulation, the government must demonstrate that the regulation is necessary to serve a compelling state interest and that it has been narrowly tailored to achieve that end. (Frisby v. Schultz, supra, 487 U.S. 474,481 [ 101 L.Ed.2d 420, 429]; Sebago. Inc. v. City of Alameda, supra, 211 Cal.App.3d 1372,1382.) By contrast, a content-neutral regulation will be upheld if it is " 'narrowly tailored to serve a significant government interest, and [it leaves] open ample alternative channels of communication.' " (Frisby v. Schultz, supra, 487 U.S. at p. 481 [101 L.Ed.2datp. 429].) (5) The ordinance at issue here distinguishes between publications based solely upon whether they contain material which is deemed "harmful matter" for minors. It represents a legislative determination by the City that such material is inappropriate for even limited viewing by minors. (Ward v. Rock Against Racism, supra, 491 U.S. at p. 791 [105 L.Ed.2d at p. 675]; City of Fresno v. Press Communications, Inc., supra, 31 Cal.App.4th at p. 40.) No content-neutral justification for the ordinance has been offered. The City contends it is entitled to protect children from "harmful matter," not that its ordinance seeks to mitigate any "secondary effects" associated with sidewalk newsracks, such as traffic congestion, loitering or crime. (See, e.g., Renton v. Playtime Theaters, Inc. (1986) 475 U.S. 41, 48 [89 L.Ed.2d 29,38, 106 S.Ct. 925] [zoning restrictions for adult movie theaters which seek to control crime and maintain property values are "unrelated to the suppression of free expression," and therefore content neutral]; Sebago, Inc. v. City of Alameda, supra, 211 Cal.App.3d at pp. 1383-1385 [ordinance restricting newsrack sales of "adult" newspapers to areas zoned for "adult" businesses content based because not targeted at "secondary effects" of newsracks].) We conclude that the ordinance is a content-based regulation of speech and is, therefore, subject to strict constitutional scrutiny. *1085 Application of strict scrutiny, however, does not sound the death knell for this ordinance. The Supreme Court has consistently held that states and municipalities have a compelling interest in protecting the welfare of minors and, specifically, in preventing minors from gaining access to materials deemed obscene as to them. (Sable Communications ofCal., Inc. v. FCC, supra, 492 U.S. 115, 126 [106 L.Ed.2d 93, 105, 109 S.Ct. 2829]; FCC v. Pacifica Foundation (1978) 438 U.S. 726, 749-750 [57 L.Ed.2d 1073, 1093-1094, 98 S.Ct. 3026]; Ginsberg v. New York, supra, 390 U.S. 629, 639-641 [20 L.Ed.2d 195, 203-205, 88 S.Ct. 1274].) (6) The ordinance at issue here seeks to protect minors from exposure to harmful matter. It serves a compelling state interest. The remaining question is whether this ordinance is narrowly tailored to achieve the City's interest in protecting minors without unnecessarily restricting the First Amendment freedoms of adults. An ordinance is narrowly tailored only if the City has chosen the "least restrictive means to further the articulated interest." (Sable Communications ofCal., Inc. v. FCC, supra, 492 U.S. at p. 126 [106 L.Ed.2d at p. 105].) In other words, the ordinance must "targetf] and eliminate no more than the exact source of the ' evil' it seeks to remedy." (Frisby v. Schultz, supra, 487 U.S. 474, 485 [101 L.Ed.2d420,432, 108 S.Ct. 2495].) Appellant argues that the ordinance is not narrowly tailored because it impedes the access of adults to the publication he distributes. According to him, sales decline when blinder racks are used because the blinders cover the front page and the entire purpose of the frontpage is to encourage customers to purchase the newspaper. He argues that a warning sticker placed on the newsrack, stating that minors may not purchase the newspaper, would adequately protect children from the harmful aspects of the publication while allowing potential adult customers to view the entire front page. This, of course, assumes that the warning will work, i.e., that the minor will heed the warning. We cannot indulge this assumption. If a minor wants to peruse the entire front page he or she will, in all probability, do so. Appellant has not demonstrated as a matter of law that a warning sticker would further the articulated interest of keeping harmful material away from minors. Here the ordinance targets and eliminates only the display of harmful matter on the lower two-thirds of the front page of the publication. The remainder of the pages which contain harmful matter are blinded by the front page. The front page harmful matter is the exact source of the evil sought to be remedied by the ordinance. This is narrow tailoring. Thus, the trial court's third finding (ante, pp. 1081 -1082) that blinders are required " "... whether or not the cover of the harmful matter contains harmful matter itself " is *1086 logically and legally erroneous. If, but only if, the front page of a publication contains harmful matter, the City may require that it be blinded. Two other courts have cited blinder racks as an example of a permissible display regulation precisely because the racks impose an insignificant burden on adult access to such publications. These courts have reasoned that, because blinder racks allow adults to determine the content of and purchase materials without restriction, "... the burden on adults' access to material Copr. © Bancroft-Whitney and West Group 1998 Page? protected as to them is constitutionally insignificant and therefore permissible." American Booksellers v. Webb (llth Cir. 1990) 919 F.2d 1493, 1509, cert. den. 500 U.S. 942 [114 L.Ed.2d 479, 111 S.Ct. 2237]; see also M.S. News Co. v. Casado (10th Cir. 1983) 721 F.2d. 1281, 1287-1288 [blinder rack ordinance constitutional].) At oral argument, appellant claimed that these decisions should not control because they did not engage in a strict scrutiny analysis. This distinction, however, does not compel the conclusion that a blinder rack ordinance can never pass strict constitutional scrutiny. We agree with the rationale of the 10th and llth Circuits and conclude that the instant blinder rack ordinance imposes a constitutionally insignificant and therefore permissible burden on adult access to the publication. The fact that sales of the publication may decline when blinder racks are in place does not mean that the ordinance unreasonably restricts adult access to these materials. The First Amendment is not a sword to enhance marketing tactics. Nor is it a shield for peddlers of erotica to expose their wares to minors. The ordinance places no restriction on adult access to the materials. It only prevents minors and other nonpurchasers from viewing a portion of the front page of the publication. Because one-third of the front page remains exposed to view, potential customers can determine the basic content of the publication and, thus, whether they wish to purchase it. The Ordinance Does Not Violate the Equal Protection Clause of the Fourteenth Amendment. (7) Like the free speech and press provisions of the First Amendment, the equal protection clause of the Fourteenth Amendment generally prohibits the government from drawing content-based distinctions between speech activities. "When [a] government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized." (Carey v. Brown (1980) 447 U.S. 455, 461-462 [65 L.Ed.2d 263, 269-270, 100 S.Ct. 2286].) *1087 Appellant contends the ordinance violates the equal protection clause because it applies only to the display of "harmful matter" in a sidewalk newsrack, and not to me display of such material in other locations such as bookstores. He is incorrect Although the ordinance appears in a chapter of the Santa Barbara Municipal Code devoted to newsracks, it is not limited to the display of harmful material in newsracks. Instead, on its face, the ordinance applies whenever material which is harmful to minors is "displayed in a public place, other than a public place from which minors are excluded...." The ordinance does not discriminate among distribution locations. Accordingly, it does not violate the equal protection clause. The Ordinance Is Readily Susceptible to a Construction Which Includes the Necessary Scienter Requirement. (8) Appellant's final contention is that the ordinance violates the First Amendment because it does not contain a scienter requirement. According to appellant, a literal interpretation of the ordinance would allow for the prosecution of a person who displayed harmful matter without a blinder rack, even if the person had no knowledge of the content or character of the displayed material. The City argues that the possibility of such a prosecution is irrelevant because appellant is not facing criminal charges and obviously knows that the newspaper he distributes contains harmful matter. We reject the City's argument. Appellant is "permitted to challenge [the ordinance] on its face because it also threatens others not before the court-those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution.... If the overbreadth is 'substantial,' [fh. omitted] the law may not be enforced against anyone, including the party before the court, until it is narrowed to reach only unprotected activity, whether by legislative action or by judicial construction or partial invalidation. [Citation.]" (Brocket! v. Spokane Arcades, Inc. (1985) 472 U.S. 491, 503- 504 [86 L.Ed.2d 394, 405-406, 105 S.Ct. 2794]; see also People v. Library One, Inc. (1991) 229 Cal.App.3d 973, 980, 981 [280 Cal.Rptr. 400]; In re AndreP. (1991 )226Cal.App.3d 1164,1170-1172 [277 CaLRptr. 363].) (9) Statutes which criminalize the distribution of obscene or indecent materials must contain a scienter requirement because the imposition of strict criminal liability would have an unacceptable chilling effect on the public's access to constitutionally protected materials. (Smith v. California (1959) 361 U.S. 147, 153-155 [4 L.Ed.2d 205, 211-212, 80 S.Ct. 215].) However, such statutes are "akin to the common law offenses against the 'state, person, property, or public morals,' [citation], that presume a scienter *1088 requirement in the absence of express contrary intent." (United States v. X-Citement Video (1994) 513 U.S. __-_[130 L.Ed.2d 372,381,115 S.Ct. 464] quoting Copr. © Bancroft-Whitney and West Group 1998 Morissette v. United States (1952) 342 U.S. 246, 255 [96 L.Ed. 288,296,72 S.Ct. 240].) The ordinance may, therefore, be presumed to require that a person have knowledge of both the "harmful" character of displayed material and the age of the persons to whom it is displayed. We are obliged to adopt a narrowing construction of the ordinance to avoid constitutional difficulties, if the ordinance is readily susceptible to such a construction. (Frisby v. Schultz, supra, 487 U.S. 474, 483 [101 L.Ed.2d 420, 430-431, 108 S.Ct. 2495.]) This rule, together with the presumption in favor of a scienter requirement, lead us to conclude that the ordinance does not impose strict criminal liability. The ordinance defines "material which is harmful to minors" by incorporating the definition of "harmful matter" contained in Penal Code section 313. Neirner the ordinance nor section 313 specifically mentions the mental state necessary for a violation. However, the ordinance is modeled after and specifically authorized by Penal Code section 313.1, subdivision (d). That statute contains two separate knowledge requirements: the person displaying harmful matter must have knowledge of the character of the matter and either have knowledge of, or fail to exercise reasonable care in ascertaining the age of the persons to whom it is displayed. (Pen. Code, §313.1, subds. (a), (c); Gluckv. County ofLos Angeles (1979) 93 Cal.App.3d 121 [155 CaLRptr. 435].) We read the ordinance to contain the same requirements. So limited, the ordinance does not violate the First Amendment. (United States v. X-Citement Video, supra, 513 U.S. at p. [130 L.Ed.2datp. 381].) Application of the Ordinance to "LA. X... Press" (10) To the extent the trial court's ruling was predicated solely on the finding that harmful matter inside a publication provides a basis for blinding the cover, it was erroneous. The crucial determination of whether the front page of "L.A. X ... Press" is harmful to minors is to be addressed, in the first instance, by the trial court. We exercise judicial restraint and remand for a determination of whether the front page is harmful to minors. We express no opinion on the issue at this time and no inference is to be drawn from any language in this opinion. "Wise adjudication has its own time for ripening." (Marylandv. Baltimore Radio Show (1950) 338 U.S. 912, 918 [94 L.Ed. 562, 566, 70 S.Ct. 252].) If the trial court determines that the front page is harmful to minors, then it shall grant judgment on the pleadings requiring the publication to be *1089 blinded. If it determines to the contrary, it shall deny the motion Page8 for judgment on the pleadings. Thereafter, the harmfulness issue may be revisited on summary judgment or plenary adjudiation. Conclusion For the reasons stated above, we conclude that section 5.66.110 of the Santa Barbara Municipal Code does not violate the free speech, free press or equal protection clauses of the United States Constitution. We affirm the trial court's ruling that section 5.66.110 of the Santa Barbara Municipal Code is facially constitutional. We reverse the order requiring "L.A. X ... Press" to be blinded, and remand for an express ruling on whether its front page is harmful to minors. Each party shall bear its own costs. Stone (S. J.), P. J., and Gilbert, J., concurred. A petition for a rehearing was denied January 3,1996, and the opinion was modified to read as printed above. *1090 Cal.App.2.Dist.,1995. Berry v. City of Santa Barbara END OF DOCUMENT Copr. © Bancroft-Whitney and West Group 1998 804F.2dll04 804F.2dll04 (Cite as: 804 F.2d 1104) Page 1 United States Court of Appeals, Ninth Circuit. BSA, INC., a Washington corporation, Plaintiff/Appellant, v. KING COUNTY, et al., Defendants/Appellees, Ronald CHASE, Plaintiff/Appellee, v. PIERCE COUNTY, et al., Defendants/Appellants, SUGAR'S, INC., Plaintiff/Appellee/Cross-Appellant, v. SNOHOMISH COUNTY, et al., Defendants/Appellants/Cross-Appellees. Nos. 83-3991,83-3999 to 83-4001 and 83-4310. Argued and Submitted June 5, 1984. No. 83-4000 Resubmitted Sept. 13, 1984. Decided Nov. 20, 1986. Owners and operators of adult entertainment businesses that featured live topless dancing and sold only nonalcoholic beverages sought declaratory and injunctive relief from Washington county ordinances regulating or prohibiting barroom nude dancing and other exposure characterized as nonexpressive. The United States District Court for the Western District of Washington, Barbara J. Rothstein and Jack E. Tanner, JJ., enjoined enforcement of portions of all three ordinances. On consolidated appeal, the Court of Appeals, Poole, Circuit J., held that: (1) even if county had established substantial interest in reducing burden on law enforcement through showing that topless dancing caused illegal activity, it had not shown that interest could not be achieved by less intrusive means; (2) interest in banning nude performances that were morally offensive to some was not legitimate state interest; (3) owners and operators had standing to raise overbreadth challenge, and two of ordinances were substantially overbroad; (4) requirement of third ordinance that all nude entertainment be performed certain distance from nearest patron was valid place or manner restriction; (5) party who had not been able to obtain injunction against major provisions of one ordinance was not "prevailing party" entitled to attorney's fees; and (6) party who had obtained injunction against enforcement of three of eight sections of ordinance it had expressly challenged was entitled to reasonable fees, but remand was warranted because district court might have awarded fees for claims on which party did not prevail. Affirmed and remanded. West Headnotes [1J Constitutional Law €=>90.4(5) 92k90.4(5) Most Cited Cases Barroom nude dancing can be expressive activity entitled to First Amendment protection, and nudity alone is not sufficient to make that dancing legally obscene. U.S.C.A. Const.Amend. 1. [2] Constitutional Law €=>90.4(5) 92k90.4(5) Most Cited Cases Ordinances which prohibited common barroom nude dancing and other nonexpressive nudity without requiring that prohibited material be patently offensive extended beyond unprotected obscenity into area of protected First Amendment activity. U.S.C.A. Const. Amend. 1. [3] Constitutional Law €=>90.2 92k90.2 Most Cited Cases Even purely commercial speech is not without First Amendment protections. U.S.C.A. Const.Amend. 1. [4] Constitutional Law €=*>0.4(2) 92k90.4(2) Most Cited Cases Prohibition of category of protected expression, including that which is sexually explicit, can be upheld only where it furthers substantial governmental interest that is unrelated to suppression of free expression and where governmental interest could not be served by means that is less intrusive on First Amendment activity. U.S.C.A. Const.Amend. 1. [5] Constitutional Law €=>90(1) 92k90(I) Most Cited Cases Regulation which places substantial restriction on free expression is subject to strict scrutiny. U.S.C.A. Const. Amend. 1. i 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. c 804F.2dll04 804 F.2d 1104 (Cite as: 804 F.2d 1104) Page 2 [6) Constitutional Law €==>90.4(5) 92k90.4(5) Most Cited Cases County ordinance imposing ban on nude barroom dancing violated First Amendment, notwithstanding assertion that "soda pop" topless dancing clubs caused and encouraged illicit activities such as prostitution, narcotics, and violence; even if causation of illegal activity had been shown and substantial interest in reduced burden on law enforcement thereby established, county had not shown that interest could not be achieved by means that were less intrusive on protected First Amendment activity, such as zoning, operating hour limits, licensing fees, and distance requirements. U.S.C.A. Const.Amend. 1. [71 Constitutional Law €=>90.4(5) 92k90.4(5) Most Cited Cases Ban on barroom topless dancing, purportedly enacted to discourage prostitution and other illegal activity and to protect business and residential communities, violated First Amendment; county's overriding purpose in enacting ordinance was to exclude what some found to be morally offensive and was therefore directly related to suppression of free expression, county had less restrictive means of serving legitimate interest in improved law enforcement. U.S.C.A. Const. Amend. 1. [8] Constitutional Law €=>42.1(6) 92k42.1(6) Most Cited Cases Owners and operators of establishments offering nude entertainment had standing to raise overbreadth challenge to county ordinances regulating or prohibiting barroom nude dancing and other nudity characterized as nonexpressive, as they would be personally threatened with prosecution should ordinance be upheld. U.S.C.A. Const. Amend. 1. [9J Constitutional Law €=>48(4.1) 92k48(4.1) Most Cited Cases (Formerly 92k48(4)) Affirmative defense to ordinances prohibiting nudity or other public exposure was invalid; defense impermissibly shifted burden of proving that activity did not appeal to prurient interests from county, which had burden of proving that activity was obscene and could be prohibited. U.S.C.A. Const.Amend. 1. [10] Constitutional Law €==>90.4(5) 92k90.4(5) Most Cited Cases Ordinances were substantially overbroad, where they prohibited nude barroom dancing but protected nude dancing with substantial expression of story, theme, or ideas and nudity connected with drama, science, education, or athletic locker rooms; restrictions imposed total ban on some types of dancing and left nude modeling for artists and models in fashion shows unprotected, and there was no readily apparent construction that would allow ordinances to be applied in constitutional manner. U.S.C.A. Const. Amend. 1. [llj Constitutional Law €==>90.4(5) 92k90.4(5) Most Cited Cases Ordinance imposing requirement that all nude entertainment be performed on stage 1 8 inches high and six feet from nearest patron did not violate First Amendment; even if distance requirement did burden protected expression, it was valid place or manner regulation in that it furthered significant state interest in curtailing public sexual contact and illegal touching between performers and patrons by keeping nude entertainers just out of reach of nearest patron. U.S.C.A. ConstAmend. 1. [12] Constitutional Law 92k90.4(2) Most Cited Cases Regulations of time, place or manner of protected speech will be upheld if necessary to further significant governmental interests, such as curtailing public sexual contact and sexual criminal offenses. U.S.C.A. Const. Amend. 1. [13] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases County had adequately justified ordinance imposing valid distance requirement on nude public entertainment, even though it considered no evidence regarding need for that ordinance before its adoption; ordinance clearly furthered legitimate goal, was adopted to accomplish that end, and imposed at most very minimal restriction on protected activity. U.S.C.A. ConstAmend. 1. [14] Federal Courts €=>8S8 170Bk858 Most Cited Cases © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 804F.2dll04 804F.2dll04 (Cite as: 804 F.2d 1104) Page 3 Finding that party seeking permanent injunction against enforcement of entire ordinance was not "prevailing party" entitled to attorneys' fees under civil rights statute was not clearly erroneous, where district court enjoined enforcement of two of ordinance's sections but upheld ordinance's major provisions against attack. 42 U.S.C.A. § 1988. [15J Civil Rights €=>1482 78kl482 Most Cited Cases (Formerly 78k296, 78kl3.17(13)) [15] Civil Rights €=^1488 78kl488 Most Cited Cases (Formerly 78k303, 78kl3.17(20)) [15J Federal Courts €=>930 170Bk930 Most Cited Cases Party obtaining injunction against enforcement of three of the eight sections of ordinance banning public nude dancing which had been expressly challenged was "prevailing party" entitled to attorneys' fees under civil rights statute and award of $100 per hour for in-court work and $75 per hour for out-of-court work was not unreasonable, but remand was warranted because district court had not clearly considered relationship between extent of success and amount of award and might have awarded fees for claims on which party did not prevail. 42 U.S.C.A. § 1988. *1106 Jack R. Bums, Burns & Meyer, P.S., Bellevue, Wash., for plaintiff/appellant. Darrell L. Syferd, Seattle, Wash., Christine Quinn-Brinthall, Tacoma, Wash., John Dalton, Deputy Pros. Atty., Everett, Wash., for defendants/appellees. Appeals from the United States District Court for the Western District of Washington. Before ANDERSON, POOLE, and NELSON, Circuit Judges. POOLE, Circuit Judge: The three cases before us were consolidated on appeal. They involve constitutional challenges to ordinances from three counties in the State of Washington. The ordinances regulate or prohibit barroom nude dancing and other exposure characterized as non-expressive. The plaintiffs are owners and operators of adult entertainment businesses that feature live topless dancing and sell only non-alcoholic beverages. Each of the plaintiffs sued for declaratory and injunctive relief. No prosecutions have been brought under the ordinances. I. The Ordinances Banning Public Exposure The Pierce County and Snohomish County ordinances prohibit public nudity, but do not apply to the following: A. "Expressive dance" means any dance which, when considered in the context of the entire performance, constitutes an expression of theme, story, or ideas, but excluding any dance such as, but not limited to, common barroom type topless dancing which, when considered in the context of the entire performance, is presented primarily as a means of displaying nudity as a sales device or for other commercial exploitation without substantial expression of theme, story or ideas. B. Play, opera, musical or other dramatic work; C. Class, seminar, or lecture, conducted for a scientific, medical or educational purpose; D. Nudity within a locker room or other similar facility used for changing clothing in connection with athletic or exercise activities. Snohomish County Code, ("SCC"), § 10.04.040 A-D; Pierce County Code, ("PCC"), § 35.02.308 A-D (substantially similar language). *1107 Both Counties provide affirmative defenses to prosecution: It is an affirmative defense to a prosecution for violation of [the ordinance] that the nudity or other public exposure, when considered in the context in which presented, provided actual literary, artistic, political or scientific value and was not provided for commercial or sexual exploitation or with an emphasis on an appeal to a prurient interest. SCC § 10.04.110; PCC § 35.02.309. To summarize, the ordinances prohibit nude exposure except that which is "expressive dance", or that nudity © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 804F.2dll04 804 F.2d 1104 (Cite as: 804 F.2d 1104) Page 4 connected with drama, science, education, or athletic locker rooms. "Common barroom type topless dancing" is expressly prohibited. II. Ban on Barroom Nude Dancing A. Protected Expression The Counties contend that they can prohibit common barroom nude dancing and other non-expressive nudity because it is afforded no protection under the First Amendment. The Counties raise three alternative arguments to support this contention. [ 1 ] First, they assert that barroom nude dancing is not First Amendment activity because it is non-expressive and lacks any communicative element. This argument is controverted by Schad v. Borough of Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176,68 L.Ed.2d 671 (1981), where the Court acknowledged that "nude dancing is not without its First Amendment protections from official regulation." Id at 66, 101 S.Ct. at 2181 (emphasis supplied); accord Dor an v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648(1975); Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943, 946 (11th Cir.), cert, denied, 459 U.S. 859, 103 S.Ct. 132, 74 L.Ed.2d 113 (1982); Chase v. Davelaar, 645 F.2d 735, 737 (9th Cir. 1981). Second, the Counties argue that even if the conduct is expressive, it is "obscene" and therefore unprotected. But, nudity alone is not sufficient to make material legally obscene. Jenkins v. Georgia, 418 U.S. 153, 161, 94 S.Ct. 2750, 2755, 41 L.Ed.2d 642 (1974); Chase v. Davelaar, 645 F.2d at 737. InMillerv. California, 413 U.S. 15,93 S.Ct. 2607,37 L.Ed.2d 419 (1973), the Court adopted a three part test for identifying "obscene" speech not protected by the First Amendment. The Miller test asks whether the work taken as a whole (1) "appeals to the prurient interest," (2) depicts sexual conduct in a "patently offensive way," and (3) "lacks serious literary, artistic, political, or scientific value." Id at 24, 93 S.Ct. at 2614. [2] The ordinances challenged here omit the Miller requirement that the material be "patently offensive." [FN1] Thus, the prohibition extends beyond unprotected "obscenity," into the area of protected First Amendment activity. FN1. Because the affirmative defense impermissibly shifts the burden of proof to the defendant it must fail. Therefore, the ordinances also eliminate the Miller requirement that the conduct appeal to prurient interest. See discussion infra at 1110. [3] Finally, the Counties argue that barroom nude dancing is totally unprotected because it is commercial speech. This argument was rejected in Chase v. Davelaar, where the court reasoned that topless dancing is not "related solely to the economic interests of the ... audience," nor does it propose a commercial transaction. Id. at 738. Moreover, even purely commercial speech is not without First Amendment protections. Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 561-63, 100 S.Ct. 2343, 2348-50, 65 L.Ed.2d 341 (1980). B. Substantial Governmental Interest [4] Prohibition of a category of protected expression, including that which is sexually explicit, can be upheld only where it furthers a substantial governmental interest unrelated to suppression of free expression; and where the governmental interest *1108 could not be served by a means less intrusive on First Amendment activity. Schad, 452 U.S. at 67, 70, 101 S.Ct. at 2181, 2183; Young v. American Mini Theatres, 427 U.S. 50, 71, 96 S.Ct. 2440, 2453, 49 L.Ed.2d 310 (1976) (a municipality's "interest in attempting to preserve the quality of urban life is one that must be accorded the highest respect.") (plurality opinion); United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968); Tovar v. Billmeyer, 721 F.2d 1260,1264 (9th Cir. 1983); Ebelv. City of Corona, 698 F.2d 390, 392 (9th Cir. 1983). I. Pierce County Pierce County asserts that its ban on nude dancing will © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 804 F.2d 1104 804 F.2d 1104 (Cite as: 804 F.2d 1104) PageS reduce the burden on law enforcement resources. PCC-Preamble. The County contends that nude dancing causes or encourages unlawful activity. The district court found that the County's asserted justification was inadequate because there was no relationship between crime and topless dancing and there was no evidence of prostitution or organized crime at topless establishments. The district court also found that the County's interest in effective law enforcement was adequately served by the criminal laws. [5] Where a regulation places a substantial restriction on free expression, as does this ban on nude dancing, it is subject to strict scrutiny. See Schad, 452 U.S. at 71, 101 S.Ct. at 2184; Harper v. Virginia Board of Elections, 383 U.S. 663,679, 86 S.Ct. 1079, 1088, 16 L.Ed.2d 169 (1966). This may require the trial court to "make factual findings on the validity of the ... assertions of harm and then closely scrutinize the ... ordinance's relationship to prevention of the alleged harms." Ebel v. City of Corona, 698 F.2d at 393; Tovar v. Billmeyer, 721 F.2d at 1266 (citing Young. 427 U.S. at 71, 96 S.Ct. at 2453). In Kuzinich v. County of Santa Clara, 689 F.2d 1345 (9th Cir.1982), the court noted that the government must show that the business has an impact "different" than other businesses to justify the restriction was intended to accomplish its stated purposes. Id. at 1348. [6] The Pierce County Sheriff presented testimony and data to the County Council that were designed to show that the "soda pop" topless dancing clubs caused and encouraged illicit activities such as prostitution, narcotics, and violence, and, therefore, such clubs had an added need for law enforcement services. The sheriff provided statistics on the number of police calls to the topless clubs. [FN2] FN2. The data provided by the Sheriffs office show that twenty-five police calls were made to Night Moves Tavern in 1982; two prostitution, four fights, and the remainder were trouble with customer type calls. One hundred and five prostitution arrests were made at or in the "immediate area" of the New Players topless club in 1982. There were sixty calls to Harold's on various complaints from child pornography to suspicious persons. The reported contacts with the clubs from January, 1983, are overwhelmingly investigative contacts, house checks, and traffic accident calls. (PCR-25). The Sheriff concluded, based on this evidence, that barroom topless dancing inherently led to prostitution and lewd conduct. The data provided are not limited to calls to particular clubs, but include "the immediate vicinity." The record indicates that the areas where these clubs are located may be conducive to criminal activity by the combination of liquor taverns, inexpensive motels, and topless clubs. [FN3] No meaningful comparative statistics are provided on hotels where prostitution occurs, or the bars where alcohol is served. The data on police calls to two taverns is of little assistance given that there are fifty to seventy-five in the County. In sum, the County's proof does not show that topless dancing is anymore a cause of lawlessness than any of the other businesses. FN3. Creek Water Dispensary is only several blocks from Harolds on South Tacoma Way. (PCR-25). Night Moves is only a block and a half from Harold's. (PCR-28-9). Night Moves shares a parking lot with a bowling alley that serves alcohol. Even if we found that the County had shown that topless dancing caused illegal activity and had thereby established a substantial *1109 interest in reducing the burden on law enforcement, the County has not shown that its interest could not be achieved by a means less intrusive on protected First Amendment activity. An alternative means of reducing any additional burden on law enforcement caused by topless clubs seems available. The County tentatively approved another ordinance that set a yearly license fee of $500 for dancing establishments. (PCR-30-18). There was discussion of scaling the fee to approximate law enforcement costs. The ordinance also requires public dancing places where food or drink is served to be © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 804 F.2d 1104 804 F.2d 1104 (Cite as: 804 F.2d 1104) Page 6 closed from 2:00 a.m. to 6:00 a.m. (PCR-30-12-30). Zoning, operating hour limits, licensing fees, and distance requirements may well be sufficient to curb any additional burden placed on law enforcement by these establishments. In summary, Pierce County has not shown that the' topless clubs present more of a law enforcement problem than other establishments, or that the prohibition on nude dancing is necessary, or will abate the problem. Furthermore, the County has not carried its burden of showing that lesser restrictive alternatives would be inadequate. We, therefore, agree with the district court's finding that the ordinance violates the First Amendment. 2. Snohomish County The Snohomish County ordinance was enacted for the purpose of discouraging prostitution and other illegal activity, and to protect business and residential communities. SCC-Preamble. Snohomish County has not shown a substantial governmental interest to justify this ban on nude performances. Other than reports of several narcotics transactions at one club, the evidence before the County Council consisted of letters and petitions from church groups and ministers asserting that barroom nude dancing is corrupt and immoral; a sheriffs statement that topless dancing is perceived as vice-ridden, it corrupts public morals and is a drain on police resources; and testimony of several individuals that topless dancing is immoral, lewd, and degrading to womanhood. There are numerous biblical references. No empirical evidence was presented to the Council. (SCR-36). [7] Snohomish County's overriding purpose was to exclude barroom topless dancing because some found it morally offensive. As such, the County's interest in this ban on nude performances is directly related to the suppression of free expression. This is not a legitimate governmental interest, thus the restriction violates the First Amendment. See Ebel v. City of Corona, 698 F.2d at 393 (citing Kuzinich v. County of Santa Clara, 689 F.2d 1345). Snohomish County has available lesser restrictive means of serving its interest in improved law enforcement, see discussion supra at 1108-1109. The County has not shown that these alternatives would not adequately protect their interests. Hence, the ban on barroom nude performances must be invalidated. C. Overbreadth The district court also found that the ban on nude dancing was invalid because the ordinances were substantially overbroad. [8] Initially, the Counties contest plaintiffs' standing to raise the overbreadth challenge, arguing that plaintiffs cannot assert the interests of absent third parties. This argument fails because plaintiffs do not need vicarious standing. As owners and operators of establishments offering nude entertainment they are personally threatened with prosecution should the ordinance be upheld. See Worth v. Seldin, 422 U.S. 490,498-99,95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975). Here, "the parties challenging the statute are those who desire to engage in protected speech that the overbroad statute purports to punish * * * ". Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 2802, 86 L.Ed.2d 394 (1985). *1110 The Supreme Court has invalidated statutes that are facially overbroad in that they sweep in a broad range of First Amendment protected expression. Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). Where that expression is "conduct" and not speech, "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601,615,93 S.Ct. 2908,2917,37 L.Ed.2d 830 (1973) (emphasis added); Chase v. Davelaar, 645 F.2d at 738. The legitimate application of the Pierce and Snohomish ordinances is the prohibition on obscene nudity. The overbreadth challenge arises because the ordinances © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 804 F.2d 1104 804 F.2d 1104 (Cite as: 804 F.2d 1104) Page? also prohibit non-obscene nude performances. Ultimately, only one prong of the three part Miller "obscenity" test is preserved by these ordinances. [9] First, the ordinances do not require that the nudity be "patently offensive." Second, although the affirmative defense has "appeal to prurient interest" requirement, it cannot be used because the affirmative defense must fail. It impermissibly shifts to the defendant the burden of proving the activity did not appeal to prurient interests, and, therefore, is protected expression. The Supreme Court held in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), that the Due Process Clause requires the prosecution to prove all the "elements included in the definition of the offense." Id. at 210, 97 S.Ct. at 2327. Given that the County can only prohibit conduct that is "obscene," it has the burden of proving the activity falls within that category. Also, the Supreme Court has held that the burden of proving that the material is unprotected "must rest on the censor." Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 560, 95 S.Ct. 1239, 1247, 43 L.Ed.2d 448 (1975) (prior restraint); Spokane Arcades, Inc. v. Brockett, 631 F.2d 135, 138 (9th Cir.1980), offd 454 U.S. 1022, 102 S.Ct. 557, 70 L.Ed.2d 468 (1981). Here the Counties argue that the ordinances are not substantially overbroad because they allow nude dancing in most instances: expressive dance, (substantial story, theme, or ideas); drama, science and educational classes, and in athletic locker rooms. [10] Essentially, the Counties have narrowed the category of expression which is afforded First Amendment protection. Only nude dancing with a substantial expression of story, theme, or ideas, and nudity connected with drama, science, or education, or in athletic locker rooms is protected. The restriction is substantially overbroad. Barroom nude dancing is totally banned. Nude modeling for artists is unprotected, as is exposure by models in a fashion show. Before a statute which has not been enforced or authoritatively interpreted can be invalidated by a facial challenge for overbreadth, the court must determine whether there is a "readily apparent construction [by a state court]... for rehabilitating the statutef ] in a single prosecution." Dombrowski v. Pfister, 380 U.S. 479, 491, 85 S.Ct. 1116, 1123, 14 L.Ed.2d 22 (1965). The Counties assert that the affirmative defense would provide ample safeguards for unintended defendants, but that defense is invalid. There is no readily apparent construction which would allow the ordinances to be applied in a constitutional manner, nor has any been suggested by the Counties. We find that these ordinances violate the First Amendment and cannot be given effect. We need not reach the district court's further ruling that the ordinances were unconstitutionally vague. III. Distance Requirements King County and Snohomish County require all nude entertainment to be performed on a stage eighteen inches high and six feet from the nearest patron. King *1111 County Ordinance No. 7216 § 8(A)(6) [FN4]; SCC § 10.04.100. The purpose of the section is to deter sexual contact and illegal touching between performers and patrons. The district court held that this was a reasonable time, place, or manner regulation permissible under the First Amendment. [FN5] We affirm. FN4. When this appeal was initiated the applicable KCC § 6.08.050(A)(6) provided: No employee as described in subdivisions 1 and 2 of this subsection whose breasts and/or buttocks are exposed to view shall perform elsewhere in a public place than upon a stage at least eighteen inches above the immediate floor level and removed at least six feet from the nearest patron. On May 28, 1985, the King County Council passed County Ordinance Number 7216 which amended former KCC § 6.08.050(A)(6) to read as follows: No employee or entertainer shall have their breasts below the top of the areola or any portion of the pubic hair, vulva or genitals, 12005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 804F.2dll04 804 F.2d 1104 (Cite as: 804 F.2d 1104) PageS anus and/or buttocks exposed to view except upon a stage at least eighteen inches above the immediate floor level and removed at least six feet from the nearest patron. Counsel for King County thereafter moved to dismiss the appeal as moot because of the amendment. It is obvious from a mere reading of the two provisions that the height and distance requirements of both enactments are the same in the respects material to this case. Furthermore, the identical issue is raised in Sugars, Inc. v. Snohomish County. Accordingly the motion to dismiss as moot is denied. FN5. We vacated submission in Sugar's v. Snohomish County, No. 83- 4000, and remanded to the district court to allow a correction of the judgment as it appeared the district court had omitted its denial of the challenge to the distance requirement. The case was resubmitted after the amended order denying the plaintiffs challenge was received by this court. We note at the outset that BSA and Chase have failed to explain how the distance requirement impinges upon their First Amendment rights. The requirement does not prohibit nude entertainment. It also does not diminish the expressiveness of nude entertainment. There is no allegation that the distance between entertainer and patron is an integral part of the expressive activity, or that "the viewing public is [less able] to satisfy its appetite for sexually explicit fare." Youngv. American Mini Theatres, Inc., 427 U.S. at 62, 96 S.Ct. at 2448. [11][12] Even assuming, however, that the distance requirement does burden protected expression, it is a valid place or manner regulation. Regulations of the time, place, or manner of protected speech will be upheld if necessary to further significant governmental interests. Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243, 1245 (9th Cir.1982). Curtailing public sexual contact and sexual criminal offenses represents a significant state interest. Id. The six-foot/eighteen inch distance requirement furthers this interest by keeping nude entertainers just out of reach of the nearest patron. The district court therefore properly found that the requirement constitutes a valid place or manner regulation. [FN6] FN6. The Washington Court of Appeals upheld the same distance requirement that is involved in this case as a reasonable time, place or manner regulation. County of King exrel. Sowers v. Chisman, 33 Wash.App. 809, 814, 658 P.2d 1256, 1260 (1983). BSA, however, further raises a procedural challenge to the manner in which the King County ordinance was adopted. The district court found that the King County Council considered no evidence regarding the need for the distance requirement before adoption of the ordinance. Nevertheless, the district court concluded that King County adequately justified the ordinance by introducing at trial affidavits from two police officers. Both officers described their observations of sexual contact between patrons and dancers and concluded that such incidents decreased after the passage of the distance requirement. BSA argues that the County's post facto justification was impermissible. It asserts that a "claim of governmental interest must be supported by empirical, factual evidence actually considered at the time an ordinance is passed." BSA's contention fails on three grounds. First, it is sufficient that the County was able to present some evidence at the time of trial. In *lH2Schad, 452 U.S. at 72, 101 S.Ct. at 2184, the Supreme Court implied that the city could have justified its "substantial restriction of protected activity" by presenting evidence at trial. BSA provides no authority requiring that a legislative body need function like a court of law every time it considers legislation that may implicate the First Amendment. Second, the cases cited by BSA hi which courts have required a "factual basis" all involve ordinances that substantially restrict protected speech. CLR Corp. v. Henline, 702 F.2d 637 (6th Cir.1983); Kminich v. County of Santa Clara, 689 F.2d 1345 (9th Cir.1982); © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 804F.2dll04 804 F.2d 1104 (Cite as: 804 F.2d 1104) Page 9 Basiardanes v. City ofGalveston. 682 F.2d 1203 (5th Cir. 1982); Avalon Cinema Corp. v. Thompson, 667 F.2d 659 (8th Cir.1981); Keego Harbor Co. v. City of Keego Harbor, 657 F.2d 94 (6th Cir.1981); Fantasy BookShop, Inc. v. City of Boston, 652 F.2d 1115 (1st Cir.1981). In this case the distance requirement imposes at most a minimal restriction on First Amendment activity. Third, there is no evidence indicating that King County passed the distance requirement to suppress protected speech rather than to deter illegal sexual contact. Given this, there is no reason to require a "factual basis" in support of the ordinance. Accordingly, Sugar's challenge that Snohomish County's factual findings were inadequate must also fail. [13] The requirement clearly fiirthers a legitimate goal, is adapted to accomplish that end, and imposes at most a very minimal restriction on protected activity. Hence, we find no error. IV. Attorney's Fees A. BSA BSA appeals from the district court's denial of its request for attorneys'fees under 42 U.S.C. § 1988. We affirm. The party seeking attorneys' fees under § 1988 must be the "prevailing party." The district court found that BSA was not the prevailing party. We review this finding of fact under the clearly erroneous standard. Lummi Indian Tribe v. Oltman, 720 F.2d 1124, 1125 (9th Cir. 1983). [14] Here BSA sought a permanent injunction against enforcement of the entire King County ordinance. The district court did enjoin enforcement of two of the ordinance's sections. [FN7] However, it upheld the major provisions against BSA's attack. Given BSA's limited success, the district court's finding was not clearly erroneous. FN7. The district court enjoined enforcement of the following two sections: (1) § 6.08.050(D)(l) which excluded 18 to 21 year olds from adult entertainment studios and (2) § 6.08.050(F)(2) which prohibited convicted felons from obtaining a license to operate an adult entertainment studio. B. Sugar's Snohomish County challenges the district court's award of $2,948.75 in attorneys fees to Sugar's. [15] The County challenges the hourly rate set by the district court. Sugar's requested $125 per hour. The district court set the rate at $100 per hour for in-court work and $75 per hour for out-of-court work. The County contends that the hourly rate should have been $65, but has not shown the prevailing market rates for similar service (civil rights suits) by lawyers of reasonably comparable skill and reputation would be $65 or that the fee set by the court was unreasonable. See Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The district court did not abuse its discretion in setting the rate. Nor did the court err in finding that Sugar's was the prevailing party. We remand, however, because it appears that the district court may have awarded fees for claims on which Sugar's did not prevail. Sugar's sought a permanent injunction against enforcement of the entire ordinance, expressly challenging eight sections. The district court enjoined enforcement of three. Given this, the district court should have made "clear that it had considered the relationship between the extent of success *1113 and the amount of the fee award," Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), before awarding the entire amount of fees requested. V. Conclusion The district court correctly found that the ban on nude dancing violated the First Amendment. The court was also correct in ruling that the distance requirement was a proper place and manner restriction, and that BSA was not a prevailing party entitled to attorneys fees. We remand the attorneys fee award to Sugar's for >2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 804 F.2d 1104 Page 10 804F.2dll04 (Cite as: 804 F.2d 1104) reconsideration in light ofHensley v. Eckerhart. 804 F.2d 1104 END OF DOCUMENT © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 10 Page 1 336 F.3d 1153 3 Cal. Daily Op. Serv. 6603, 2003 Daily Journal D.A.R. 8308 (Cite as: 336 F.3d 1153, 2003 WL 21730756 (9th Cir.(Ariz.))) United States Court of Appeals, Ninth Circuit. CENTER FOR FAIR PUBLIC POLICY, an Arizona non-profit corporation; Dream Palace, a dba of Liberty Entertainment Group, L.L.C., an Arizona Limited Liability Company; Castle Superstore Corporation, an Arizona corporation, Plaintiffs-Appellants, and LJ. Concepts, Inc., Plaintiff, v. MARICOPA COUNTY, ARIZONA; Richard M. Romley, in his official capacity as Maricopa County Attorney; City of Phoenix, a municipal corporation, Defendants-Appellees, State of Arizona, Intervenor-Appellee, and City of Glendale, Defendant. LJ Concepts, Inc., an Arizona corporation; Stummer LLC, Inc., an Arizona corporation; Mid-City Enterprises, Inc., an Arizona corporation; B.C. Books, Inc., a Delaware corporation; Michael J. Ahearn, Plaintiffs-Appellants, State of Arizona, Intervenor-Appellee, and Center for Fair Public Policy, an Arizona non-profit corporation; Dream Palace, an Arizona Limited Liability Company dba Liberty Entertainment Group, L.L.C.; Castle Superstore Corporation, an Arizona corporation; Daniel Ray Golladay, Plaintiffs, v. City of Phoenix, a municipal corporation; Maricopa County, Arizona; Richard Romley, in his official capacity as Maricopa County Attorney; City of Phoenix, a municipal corporation; City of Glendale, an Arizona municipal corporation, Defendants-Appellees. Nos. 00-16858, 00-16905. Argued and Submitted Feb. 11, 2003. Filed July 28, 2003. Owners and operators of sexually-oriented businesses brought civil rights action against city, county, and state, asserting that state statute prohibiting sexually-oriented businesses from operating during late night hours violated the First Amendment, and seeking declaratory and injunctive relief. The United States District Court for the District of Arizona, Earl H. Carroll, J., entered judgment for defendants, and plaintiffs appealed. The Court of Appeals, O'Scannlain, Circuit Judge, held that the statute did not violate the First Amendment. Affirmed. Canby, Circuit Judge, filed dissenting opinion. West Headnotes [1] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases State statute prohibiting sexually-oriented businesses from operating during late night hours and until noon on Sundays would be properly analyzed under the First Amendment as a time, place, and manner regulation. U.S.C.A. ConstAmend. 1; A.R.S. § 13-1422. {2] Constitutional Law €=^90.4(1) 92k90.4(l) Most Cited Cases [2] Theaters and Shows €=?2 376k2 Most Cited Cases For purpose of First Amendment analysis, state statute prohibiting sexually- oriented businesses from operating during late night hours and until noon on Sundays was content based rather than content neutral. U.S.C.A. ConstAmend. 1; A.R.S. § 13-1422. [3] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases Whether a statute challenged as a violation of the First Amendment free speech clause is content neutral or content based is something that can be determined on the face of it; if the statute describes speech by content then it is content based. U.S.C.A. Const.Amend. 1. [4] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases A regulation of sexually-oriented businesses, even Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 2 though content based, is subject to intermediate scrutiny under the First Amendment free speech clause if the regulation is designed to combat the secondary effects of such establishments on the surrounding community, namely crime rates, property values, and the quality of the city's neighborhoods. U.S.C.A. Const.Amend. 1. [5] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases [5] Theaters and Shows 376k2 Most Cited Cases The Court of Appeals, in considering free speech challenge to state statute prohibiting sexually-oriented businesses from operating during late night hours and until noon on Sundays, would look to the full record to determine whether the purpose of the statute was to ameliorate the secondary effects of sexually- oriented businesses on the community, and in so doing, would rely on all objective indicators of intent, including the face of the statute, the effect of the statute, comparison to prior law, facts surrounding enactment, the stated purpose, and the record of proceedings. U.S.C.A. ConstAmend. 1; A.R.S. § 13-1422. [6] Constitutional Law O=>90.4(1) 92k90.4(l) Most Cited Cases Predominant purpose in enacting state statute prohibiting sexually-oriented businesses from operating during late night hours and until noon on Sundays was to ameliorate the secondary effects associated with the regulated establishments, and thus, intermediate scrutiny applied under the First Amendment free speech clause, where the statute regulated both establishments protected by the First Amendment and businesses that had no such protection, such as escort agencies, the regulation was passed as an amendment to a broader bill authorizing counties to develop comprehensive land-use regulations, and majority of comments made by legislators when the bill was under consideration focused on the secondary effects associated with sexually- oriented businesses. U.S.C.A. Const.Amend. 1; A.R.S. § 13-1422. [7] Constitutional Law €>^90.4(1) 92k90.4(l) Most Cited Cases The "predominant purpose" inquiry, in regard to a free speech challenge to a regulation of sexually-oriented businesses that is designed to combat the secondary effects of such establishments on the surrounding community, is separate and independent from the inquiry into whether the regulation is designed to serve a substantial government interest; only with respect to the latter inquiry must courts examine evidence concerning regulated speech and secondary effects. U.S.C.A. ConstAmend. 1. [8] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases Under intermediate scrutiny under First Amendment free speech clause, state statute, prohibiting sexually-oriented businesses from operating during late night hours and until noon on Sundays, predominant purpose of which was to ameliorate the secondary effects associated with the regulated establishments, would be upheld if it was designed to serve a substantial government interest, was narrowly tailored to serve that interest, and did not unreasonably limit alternative avenues of communication. U.S.C.A. Const.Amend. 1; A.R.S. § 13-1422. [9] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases For purpose of analysis under the First Amendment free speech clause, a state's interest in curbing the secondary effects associated with adult entertainment establishments is substantial. U.S.C.A. Const.Amend. 1. [10] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases [10] Theaters and Shows €=>2 376k2 Most Cited Cases Arizona legislature, in enacting statute prohibiting sexually-oriented businesses from operating during late night hours and until noon on Sundays, relied on evidence reasonably believed to be relevant in demonstrating a connection between the protected speech and its stated rationale of reducing the secondary effects associated with late night operations of sexually- oriented businesses, as required under intermediate scrutiny under First Amendment free speech clause, where the legislature held public hearings at which lawmakers heard citizen testimony concerning the late night operation of sexually-oriented businesses, and were briefed on several studies documenting secondary effects, and two of those studies were specific to late night operations. U.S.C.A. ConstAmend. 1; A.R.S. § 13-1422. [11] Civil Rights €=>1406 78kl406 Most Cited Cases (Formerly 78k240(l)) Once state met its burden, under First Amendment Copr. © West 2004 No Claim to Orig. U.S. Govt Works PageS intermediate scrutiny analysis of state statute prohibiting sexually-oriented businesses from operating during late night hours and until noon on Sundays, of showing that it relied on evidence reasonably believed to be relevant in demonstrating a connection between its stated rationale and the protected speech, the burden shifted to those challenging the statute to cast direct doubt on the state's rationale, either by demonstrating that the state's evidence did not support its rationale or by furnishing evidence that disputed the state's factual findings. U.S.C.A. ConsLAmend. 1; A.R.S. § 13-1422. 360k34 Most Cited Cases Legislative committees are not judicial tribunals, and are not bound by rules of evidence, and thus, may rely on anecdotal testimony. [13J Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases [13] Theaters and Shows 376k2 Most Cited Cases State was not required to come forward with empirical data in support of its rationale for state statute, challenged under the First Amendment free speech clause, prohibiting sexually-oriented businesses from operating during late night hours and until noon on Sundays, of reducing the secondary effects associated with late night operations of sexually-oriented businesses. U.S.C.A. Const. Amend. 1; A.R.S. § 13-1422. [14] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases [14] Theaters and Shows €=>2 376k2 Most Cited Cases State statute prohibiting sexually-oriented businesses from operating during late night hours and until noon on Sundays was narrowly tailored, as required under First Amendment free speech clause intermediate scrutiny analysis, in that the government's asserted interest in the amelioration of secondary effects associated with late night operation of sexually-oriented businesses, including prostitution, drug use, and littering, would be achieved less effectively in the absence of the statute. U.S.C.A. Const.Amend. 1; A.R.S. § 13-1422. [15] Constitutional Law €=^90.4(1) 92k90.4( 1 ) Most Cited Cases [15] Theaters and Shows 376k2 Most Cited Cases State statute prohibiting sexually-oriented businesses from operating during late night hours and until noon on Sundays left open ample alternative channels for communication, as required under First Amendment free speech clause intermediate scrutiny analysis, in that the statute permitted the businesses within its purview to operate seventeen hours per day Monday through Saturday, and thirteen hours on Sunday. U.S.C.A. ConstAmend. 1; A.R.S. § 13- 1422. [16] Constitutional Law €=^90.4(1) 92k90.4(l) Most Cited Cases Fact that state statute prohibited sexually-oriented businesses from operating during late night hours and until noon on Sundays but did not prohibit other types of business from operating at those hours did not render the statute underinclusive so as to subject it to strict scrutiny under the First Amendment free speech clause; state could legitimately single out sexually-oriented businesses to regulate their hours of operation. U.S.C.A. ConstAmend. 1; A.R.S. § 13-1422. *1156 G. Randall Garrou, Weston, Garrou & DeWitt, Los Angeles, CA, argued the cause and filed briefs for appellant Center for Fair Public Policy, et al. John H. Weston was on the briefs. Richard J. Hertzberg, Phoenix, AZ, argued the cause and filed briefs for appellants LJ. Concepts, et al. Scott E. Boehm, Copple, Chamberlin, Boehm & Murphy, P.C., Phoenix, AZ, argued the cause and filed briefs for the defendants. Janet A. Napolitano, Arizona Attorney General, and Thomas J. Dennis, Assistant Arizona Attorney General, Phoenix, AZ, were on the briefs. James H. Hays, Assistant City Attorney for the City of Phoenix, and James M. Flenner, Assistant City Attorney for the City of Glendale, were also on the briefs. Appeal from the United States District Court for the District of Arizona; Earl H. Carroll, District Judge, Presiding. D.C. Nos. CV-98-01583-EHC, CV-98-01584-EHC. *1157 Before CANBY, O'SCANNLAIN, and W. FLETCHER, Circuit Judges. Opinion by Judge O'SCANNLAIN; Dissent by Judge CANBY. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 4 OPINION O'SCANNLAIN, Circuit Judge. **1 We must decide whether a state statute prohibiting sexually-oriented businesses from operating during late night hours passes muster under the First Amendment. I The Arizona statute at issue here requires all sexually-oriented businesses [FNI ] to close "between the hours of 1.00 a.m. and 8:00 a.m. on Monday through Saturday and between the hours of 1:00 a.m. and 12:00 noon on Sunday." Ariz.Rev.Stat. § 13-1422(A). A sexually-oriented business is an "adult arcade, adult bookstore or video store, adult cabaret, adult motion picture theater, adult theater, escort agency or nude model studio.... "Id. Violation of § 13-1422(A) is a class one misdemeanor. Id. § 13-1422(8). Russell Smolden and Jane Lewis both testified before House and Senate committees. These individuals worked for mixed-use real estate parks located in Tempe and Phoenix, and both testified that nearby sexually-oriented businesses were disruptive of their attempts to attract new employers to the parks, and prospective employers expressed concern for their employees who worked night-shifts. They testified that limiting the hours of operation of the nearby sexually-oriented businesses would aid in their efforts to attract employers to the parks. Scott Bergthold, the executive director and general counsel to the National Family Legal Foundation ("NFLF"), testified that similar hours of operation restrictions had been upheld as constitutional by federal courts. He also testified that approximately fifteen studies had been conducted concerning the negative secondary effects associated with sexually-oriented businesses. Those studies documented increased crime, prostitution, public sexual indecency and health risks associated with HIV and AIDS transmission. FN1. We adopt the nomenclature used in the statute for the sake of convenience. Section 13-1422 was originally proposed to the Arizona legislature in 1998 as Senate Bill 1367. The bill was assigned to the House of Representatives' Government Reform and States' Rights Committee and to the Senate Family Services Committee, and public hearings were held in both bodies. While the original bill passed in the Senate, it was voted down in the Arizona House Rules Committee. At the same time, Senate Bill 1162, a bill authorizing Arizona counties to develop land-use regulations within their respective jurisdictions, and which included an authorization to license and to regulate sexually-oriented businesses operating within unincorporated areas, was winding its way through the legislature. When original Senate Bill 1367 failed in the House Rules Committee, its provisions were added verbatim as an amendment to the more comprehensive Senate Bill 1162. Amended Senate Bill 1162 passed both the House and the Senate, and was signed into law on June 1, 1998, and became effective on August 21, 1998. The record before the Arizona legislature prior to § 13-1422's enactment consisted of testimonial evidence from several individuals, as well as some limited documentary evidence with respect to the need for restricting sexually- oriented businesses' hours of operation. **2 Donna Neil, co-founder of a group known as the Neighborhood Activist Interlinked *1158 Empowerment Movement ("Nail'em"), testified that, each weekend, parents in her neighborhood cleared up litter emanating from neighborhood sexually-oriented businesses. She also testified that the local school's playground was fenced and closed to neighborhood children on weekends due to incidents of prostitution on school grounds. She stated that the neighborhood had experienced an increase in crime—specifically drug arrests and assaults-associated with sexually-oriented businesses. Finally, Bridget Mannock, a neighborhood legislative liaison for the City of Phoenix testified that a state-level hours of operation regulation was necessary due to the limited nature of the local municipalities' authority. Some documentary evidence was presented to the Arizona legislature. Fust, there is a letter from the NFLF addressed to the House Government Reform and States' Rights Committee. The letter discussed the acute problems associated with sexually-oriented businesses as documented in a report from the Denver Metropolitan Police Department, which concluded mat sexually-oriented businesses "disproportionately deplete police time and resources during the overnight hours." The Denver report itself was not presented to the Committee. The letter also discussed the fact that the proposed regulation was constitutional because it was a reasonable time, place and manner restriction on speech. Second, there.is a letter from the NFLF to House members, discussing ostensibly the same themes raised in the letter to the House Committee. Finally, Copr. © West 2004 No Claim to Orig. U.S. GovL Works Page 5 there is a "fact sheet" prepared by the NFLF, which noted that every study conducted established the negative secondary effects associated with sexually-oriented businesses. In particular, the fact sheet noted a 1989 report prepared by the Minnesota Attorney General's office which concluded that surrounding communities are negatively impacted by 24-hour-a-day or late night operation of sexually-oriented businesses. None of the reports discussed in the fact sheet were presented to the legislature. The fact sheet also contained a discussion of the constitutionality of the proposed restrictions. The plaintiffs in this action are owners and operators of sexually-oriented businesses in Arizona. They include nude-dancer clubs, x-rated video arcades and sellers of sexually-related magazines and paraphernalia. Some of these businesses were open 24-hours a day prior to enactment of § 13-1422. Two separate groups of plaintiffs—the L.J. Concepts, Inc. plaintiffs and the Center for Fair Public Policy plaintiffs (collectively "Fair Public Policy")- filed suit on September 1, 1998 in federal district court, alleging that § 13-1422 violates the First Amendment, and seeking declaratory and injunctive relief. The cases were consolidated and assigned to Judge Carroll, and a briefing schedule with respect to the propriety of issuing a preliminary injunction was agreed upon. **3 While the parties were briefing the preliminary injunction issue, the state defendants placed in the district court record copies of fourteen studies on the negative secondary effects associated with adult-oriented businesses. Fair Public Policy objected because these studies were not before the legislature prior to § 13-1422's enactment. On September 30, 1999, Judge Carroll denied Fan- Public Policy's application for a preliminary injunction. The district court found that the statute was constitutional under the Supreme Court's decision in Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), and that there was sufficient pre-enactment evidence, without regard to the studies introduced during the litigation, to support the statute's enactment. The plaintiff groups filed notices of appeal from *1159 Judge Carroll's decision, and those appeals were duly consolidated by this court. We affirmed the district court's decision not to issue a preliminary injunction. See L.J. Concepts v. City of Phoenix, No. 99-17270, 2000 U.S.App. LEXIS 5906, at *3 (9th Cir. March 30, 2000). On September 13, 1999, the district court denied the plaintiffs' request for a permanent injunction and declaratory relief, and entered judgment for the defendants. Plaintiffs timely appealed. II While the constitutionality of hours of operation restrictions on sexually- oriented businesses is an issue of first impression in this circuit, six other circuits have had occasion to consider similar restrictions, and all have found such restrictions to be constitutional under the "secondary effects" test first enunciated by the Supreme Court in Renton. See DiMa Corp. v. Town of Hallie, 185 F.3d 823 (7th Cir. 1999); Lady J. Lingerie. Inc. v. City of Jacksonville, 176 F.3d 1358 (llth Cir. 1999); Richland Bookman Inc. v. Nichols, 137 F.3d 435 (6th Cir. 1998); Nat'l Amusements Inc. v. Town ofDedham, 43 F.3d 731 (1 st Cir. 1995); Mitchell v. Comm'n on Adult Enter. Est. of the State of Delaware, 10 F.3d 123(3d Cir. 1993); Star Satellite, Inc. v. City ofBiloxi, 779 F.2d 1074 (5th Cir. 1986). In Renton, the Supreme Court considered a constitutional challenge to a zoning ordinance prohibiting adult movie theaters from locating within 1,000 feet of any residential zone. 475 U.S. at 43, 106 S.Ct. 925. Citing its decision in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), the Court established a now familiar three-part analytical framework for evaluating the constitutionality of sexually-oriented business regulations, or what Professor Tribe has described rather aptly as "erogenous zoning laws." Laurence H. Tribe, American Constitutional Law 934 (2d ed.1988). First, the Court asked whether the ordinance was a complete ban on adult theaters. Id. at 46, 106 S.Ct. 925. Because the ordinance was not a total ban, it was properly analyzed as a time, place and manner regulation. Id. Second, the Court considered whether the ordinance was content neutral or content based. The Court held that, because the ordinance at issue was aimed not at the content of the films shown at adult theaters, but rather at the secondary effects such theaters have on the surrounding community, it was properly classified as content neutral. Id. at 47, 106 S.Ct. 925. Third, given this finding, the final step is to ask whether the ordinance is designed to serve a substantial government interest and that reasonable alternative avenues of communication remain available. Id. at 50, 106 S.Ct. 925. With respect to the burden of proof at this stage, the Court held that the First Amendment "does not require a city... to conduct new studies orproduce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses." Id. at 51-52, 106 S.Ct. 925. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 6 **4 The Supreme Court recently reaffirmed the Renton framework in City of Los Angeles v. Alameda Books, Inc.. 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002). At issue in that case was a Los Angeles ordinance prohibiting multiple adult entertainment businesses from operating in the same building. In enacting this ordinance, the city primarily relied on a 1977 study conducted by the city's planning department, which indicated that between 1965 and 1975, crime had grown at a much higher rate in Hollywood, which had the largest concentration of adult establishments in the city, than in the city as a whole. *1160W. at 435, 122 S.Ct. 1728 (plurality opinion). Under the third prong of the Renton analysis, we had found that the 1977 study did not reasonably support the inference that a concentration of adult operations in the same building produced higher crime rates. See Alameda Books, Inc. v. City of Los Angeles, 222 F.3d 719, 725 (9th Cir.2000). This was so, we held, because the study focused on the effect of a concentration of establishments on a given area, not on the effect of a concentration of establishments within a single building. Id. It was therefore unreasonable, we opined, for the city to infer that absent its regulation, a combination of establishments within a single building would have harmful secondary effects on the surrounding community. Id. The Supreme Court reversed. Writing for a four-judge plurality, Justice O'Connor wrote that we had erred in requiring the city to "prove that its theory about a concentration of adult operations ... is a necessary consequence of the 1977 study." 535 U.S. at 437, 122 S.Ct. 1728 (emphasis added). Justice O'Connor explained, In Renton, we specifically refused to set such a high bar for municipalities that want to address merely the secondary effects of protected speech. We held that a municipality may rely on any evidence that is reasonably believed to be relevant for demonstrating a connection between speech and a substantial, independent government interest. This is not to say that a municipality can get away with shoddy data or reasoning. The municipality's evidence must fairly support the municipality's rationale for its ordinance. If plaintiffs fail to cast direct doubt on this rationale, either by demonstrating that the municipality's evidence does not support its rationale or by furnishing evidence that disputes the municipality's factual findings, the municipality meets the standard set forth in Renton. If plaintiffs succeed in casting doubt on a municipality's rationale in either .manner, the burden shifts back to the municipality to supplement the record with evidence renewing support for a theory that justifies the ordinance. Id. at 438-39, 122 S.Ct. 1728 (internal citation and quotation omitted). The plurality made two other points of clarification with respect to the evidentiary burden under Renton. First, it rejected the notion that the state is required to come forward with empirical data in support of its ordinance. "Such a requirement," wrote Justice O'Connor, "would go too far in undermining our settled position that municipalities must be given a reasonable opportunity to experiment with solutions to address the secondary effects of protected speech." Id. at 439,122 S.Ct. 1728. **5 Second, the plurality made it clear that "the inquiry into whether a [sexually-oriented business regulation] is content neutral" and the "inquiry into whether it is designed to serve a substantial government interest" are separate and distinct. Id. at 440, 122 S.Ct. 1728 (quotation and internal citation omitted). Justice O'Connor explained, The former requires courts to verify that the "predominate concerns" motivating the ordinance "were with the secondary effects of adult [speech], and not with the content of adult [speech]." The latter inquiry goes one step further and asks whether the municipality can demonstrate a connection between the speech regulated by the ordinance and the secondary effects that motivated the adoption of the ordinance. Only at this stage did Renton contemplate that courts would examine evidence concerning regulated speech and secondary effects. *1161 Id. at 440-41, 122 S.Ct. 1728 (quoting Renton, 475 U.S. at 47, 106 S.Ct. 925) (alterations in original). 1 Writing separately, Justice Kennedy concurred in the judgment. Because his concurrence is the narrowest opinion joining in the judgment of the Court, Justice Kennedys concurrence may be regarded as the controlling opinion. See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1976) ("When, a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds.") (citation and internal quotation omitted). In his separate concurrence, Justice Kennedy agreed with the plurality that "the central holding of Renton is sound: A zoning restriction that is designed to decrease secondary effects and not speech should be subject to intermediate rather than strict scrutiny." 535 U.S. at 448,122 S.Ct. 1728 (Kennedy, J., concurring). Justice Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page? Kennedy wrote separately, he explained, for two distinct reasons. First, he agreed with the four dissenting justices that sexually-oriented business regulations should no longer be designated as "content neutral" when they were clearly not. Whether a statute is content based or content neutral, he explained, "is something that can be determined on the face of it; if the statute describes speech by content then it is content based." Id. Classifying regulations of the type at issue in Renton and Alameda Books as content neutral, explained Justice Kennedy, was an unhelpful legal fiction which only leads to doctrinal incoherence; these types of ordinances "are content based and we should call them so." Id. Second, while Justice Kennedy agreed with the plurality that Renton remained sound, he wrote separately because in his view, the plurality's application of Renton "might constitute a subtle expansion" of Renton 's principles with which he did not agree. Id. at 445, 122 S.Ct. 1728. He explained that, in his view, the question presented—whether or not the city could rely on judicially approved statutory precedent from other jurisdictions in support of the regulation—"is actually two questions." 535 U.S. at 449, 122 S.Ct. 1728. **6 First, what proposition does a city need to advance in order to sustain a secondary-effects ordinance? Second, how much evidence is required to support the proposition? The plurality skips to the second question and gives the correct answer; but in my view more attention must be given to the first. Id. With regard to the first question—the proposition that the city needs to advance—Justice Kennedy wrote that "a city may not assert that it will reduce secondary effects by reducing speech in the same proportion." Id. The analysis has to address "how speech will fare under the ... ordinance." Id at 450, 122 S.Ct. 1728. Because of this, "it does not suffice to say that inconvenience will reduce demand and fewer patrons will lead to fewer secondary effects." Id The rationale, therefore, has to be that a proposed secondary-effects ordinance will leave "the quantity of speech ... substantially undiminished, and that total secondary effects will be significantly reduced." Id at 451, 122 S.Ct. 1728. To illustrate this proportionality requirement, Justice Kennedy took the facts of the case under consideration, If two adult businesses are under the same roof, an ordinance requiring them to separate will have one of two results: One business will either move elsewhere or close. The city's premise cannot be *1162 the latter. It is true that cutting adult speech in half would probably reduce secondary effects proportionally. But ... a promised proportional reduction does not suffice.... The premise ... must be that businesses ... will for the most part disperse rather than shut down. Wat 451, 122 S.Ct. 1728. Only after identifying "the proposition to be proved" can a court seek to answer "the second part of the question presented; is there sufficient evidence to support the proposition?" Id As to the state's evidentiary burden, Justice Kennedy agreed fully with the plurality that "very little evidence is required." Id. The "reasonable reliance" standard is necessary, he wrote, because "[a]s a general matter, courts should not be in the business of second-guessing fact-bound empirical assessments of city planners." Id Going straight for the jugular, Fair Public Policy pounces on Justice Kennedys concurrence in Alameda Books and argues that there is no way to reconcile the statute at issue here with his "proportionality" requirement It argues that sexually-oriented businesses draw a fan- amount of their patronage in the evening and late night hours—nude dancing establishments are hardly doing a roaring trade after dawn. The ordinance shuts these establishments down during the late night hours, and therefore it cannot be, as Justice Kennedy would require, that "the quantity of speech will be substantially undiminished, and that total secondary effects will be significantly reduced." Id This is precisely the scenario Justice Kennedy warned against, Fair Public Policy argues, because it is only by reducing the enjoyment of protected expression that the state reduces secondary effects. Because the statute cannot be squared with Justice Kennedys proportionality analysis, and because his is the controlling opinion under Marks, it urges that the statute must be invalid under the First Amendment. **7 Fair Public Policys argument is a forceful one, but there are several reasons that lead us to conclude that Justice Kennedy never intended a heightened proportionality requirement to apply in this particular context. First and foremost, the argument that Justice Kennedy meant to invalidate an hours of operation restriction of the type at issue here cannot be squared with his insistence that "the central holding of Renton remains sound." Id at 448, 122 S.Ct. 1728. Limiting the negative externalities associated with certain land uses, as a properly crafted secondary effects ordinance is designed to do, is a "prima facie legitimate purpose," and for this reason "such laws do not automatically raise the specter of impermissible content Copr. © West 2004 No Claim to Orig. U.S. Govt. Works PageS discrimination." Id. at 449, 122 S.Ct. 1728. Justice Kennedy quite clearly agreed with the plurality that laws "designed to decrease secondary effects... should be subject to intermediate rather than strict scrutiny." Id. at 449, 122 S.Ct. 1728. He wrote separately to guard against "a subtle expansion" ofRenton. and not, as Fair Public Policy would have it, to signal a fundamental shift in the Renton 10229 framework. Given his emphatic reaffirmance ofRenton, we are not persuaded that Justice Kennedy meant to precipitate a sea change in this particular corner of First Amendment law. This is especially so given that the circuit courts have thus far been unanimous in upholding similar or even more severe hours of operation restrictions under Renton. See DiMa Corp., 185 F.3d 823; Lady J. Lingerie, Inc., 176 F.3dat 1358; Richland Bookman Inc., 137F.3dat435; Nat'l Amusements Inc., 43 F.3d at 731; Mitchell, 10 F.3d at 123; Star Satellite, Inc., 779 F.2d at 1074. We *1163 read nothing in Justice Kennedys separate opinion signaling disapproval with these results. Justice Kennedy's proportionality analysis also needs to be understood in light of the particular species of secondary effects law that the Court was considering. The ordinance at issue in Alatneda Books was a classic erogenous zoning ordinance whereby the city was restricting certain land uses. It was a "place" restriction, and Justice Kennedy's proportionality analysis is easy enough to understand and to apply to such a typical zoning ordinance. The city's rationale cannot be that when it requires businesses to disperse (or to concentrate), it will force the closure of a number of those businesses, thereby reducing the quantity of protected speech. In contrast, we are faced with a quite different species of secondary effects law—a "time" restriction that forces the closure of all adult entertainment establishments for a limited time. We accept the proposition that such establishments tend to be patronized in the evening and late at night. Given this, the application of Justice Kennedy's proportionality analysis to this particular type of secondary effects law would invalidate all such laws, and we are satisfied that he never intended such a result. His proportionality requirement was simply • not designed with this particular type of restriction in mind. **8 Finally, Fair Public Policy's argument that Justice Kennedys Alameda Books opinion presents a new and different approach to the constitutional analysis of secondary effects law is inconsistent with the weight of authority in the wake of that decision. Courts have routinely upheld properly crafted secondary effects ordinances supported by a proper record in the wake of Alameda Books, and have explicitly stated that Justice Kennedys separate decision did little, if indeed anything, to the traditional Renton framework. See Z.J. Gifts D-4, LLCv. City of Littleton, 311 F.3d 1220,1239 n. 15 (10th Cir.2002) (seeing "nothing in ... Alameda Books that requires reconsideration" of the traditional Renton framework); World Wide Video of Wash.. Inc. v. City of Spokane, 227 F.Supp.2d 1143, — (E.D. Wash.2002) ("While Alameda Books may clarify existing precedent, this court is not persuaded that it fundamentally alters the legal landscape regarding adult entertainment zoning ordinances."). As the Seventh Circuit explained, "[t]he differences between Justice Kennedys concurrence and the plurality opinion are ... quite subtle." Ben's Bar. Inc. v. Village of Somerset, 316 F.3d 702, 721(7thCir.2003). Justice Kennedy's position is not that a municipality must prove the efficacy of its rationale for reducing secondary effects prior to implementation, as Justice Souter and the other dissenters would require, see generally Alameda Books. 122 S.Ct. at 1744-51; but that a municipalitys rationale must be premised on the theory that it "may reduce the costs of secondary effects without substantially reducing speech." Id. (emphasis in original) (quoting Alameda Books. 535 U.S. at 450, 122 S.Ct. 1728 (Kennedy, J., concurring)). Indeed, the plurality in Alameda Books considered Justice Kennedys proportionality analysis "unobjectionable," and "simply a reformulation of the requirement that an ordinance warrants intermediate scrutiny only if it is a time, place, and manner regulation and not a ban." 535 U.S. at 443, 122 S.Ct. 1728 (plurality opinion). In any event, to the extent Justice Kennedys concurrence worked any change in the traditional Renton framework, we are satisfied that his proportionality analysis *1164 does not apply to the particular type of regulation that we deal with here, and we reject Fair Public Policy's argument that the statute must be invalidated on the basis of his opinion. Because five members of the Supreme Court agreed that "the central holding ofRenton is sound" we apply the traditional three-part test in order to determine the constitutionality of § 13-1422. B Our first task under Renton, then, is to determine whether the statute amounts to a complete ban on protected expressive activity. Renton, 475 U.S. at 46, 106 S.Ct. 925; Alameda Books, 535 U.S. at 434, 122 Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 9 S.Ct. 1728 (plurality opinion). [1] The statute at issue here is obviously not a complete ban. It is a classic time, place or manner restriction, prohibiting sexually-oriented businesses from operating during certain nighttime hours, and until noon on Sundays. The businesses may remain open the remainder of the time, 115 hours in a 1 68 hour week, or approximately 5,980 hours in a calendar year. "The ordinance is therefore properly analyzed as a time, place, and manner regulation." Renton, 475 U.S. at 46, 106 S.Ct. 925. **9 Next, we must determine what level of scrutiny to apply. Traditionally, the Court has invoked the content based/content neutral distinction as the basis for determining which level of scrutiny to apply. See Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) ("Our precedents ... apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content.... In contrast, regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny."). [2][3] A regulation restricting the hours of operation of a sexually- oriented business is quite obviously content based. "[WJhether a statute is content neutral or content based is something that can be determined on the face of it; if the statute describes speech by content then it is content based." Alameda Book, 535 U.S. at 448, 122 S.Ct. 1728 (Kennedy, J., concurring). The Arizona statute is content based on its face because whether an establishment falls within its parameters, and is therefore subject to sanction for violating the prohibition against operating during nighttime hours, can only be determined by reference to the content of the expression inside it. See Schnltz v. City of Cumberland, 228 F.3d 831, 843-44 (7th Cir.2000) ("[AJnordinance that regulates only adult-entertainment businesses singles out adult-oriented establishments for different treatment based on the content of the materials they sell or display.") (internal quotation omitted). Because the statute is content based, Fair Public Policy argues that strict scrutiny should apply. Such argument is misplaced. [4] The Supreme Court has clearly carved out sexual and pornographic speech as one type of speech than can be subject to reasonable restriction. "Generally, the government has no power to restrict speech based on content, but there are exceptions to this rule." Alameda Books, 535 U.S. at 448, 122 S.Ct. 1728(Kennedy, J., concurring). The speech and expressive activity at issue here is one such exception; the content based/content neutral distinction simply does not fit in this context. In fine, so long as the regulation is designed to combat the secondary effects of such establishments on the surrounding community, "namely at crime rates, property values, and the quality of the city's neighborhoods," *H65Alameda Books, 535 U.S. at 434, 122 S.Ct. 1728 (plurality opinion), then it is subject to intermediate scrutiny. See also Colacurcio v. City of Kent, 163 F.3d 545, 551 (9th Cir.1998) (explaining that if "the predominant purpose" of an ordinance is ameliorating secondary effects associated with sexually-oriented businesses, then it is subject to intermediate scrutiny). [5] "We will look to the full record" to determine whether the purpose of the statute is to ameliorate secondary effects. Mat 552. "In so doing, we will rely on all 'objective indicators of intent,1 including the 'face of the statute, the effect of the statute, comparison to prior law, facts surrounding enactment, the stated purpose, and the record of proceedings.'" Id. (quoting City of Las Vegas v. Foley, 747 F.2d 1294, 1297(9th Cir.1984)). **10 [6] In this context, the first thing to note about § 13-1422 is that it regulates both establishments protected by the First Amendment-adult bookstores, video stores, cabarets, motion picture theaters and theaters—and businesses that have no such protection—escort agencies, [FN2] for example, suggesting that the state's purpose in enacting the statute was unrelated to the suppression of expression. In Alameda Books, Justice Kennedy noted the fact that the ordinance at issue was "not limited to expressive activities. It also extends... to massage parlors, which the city has found to cause similar secondary effects." 535 U.S. at 447, 122 S.Ct. 1728 (Kennedy, J., concurring). FN2. An "escort agency" is "a person or business association that furnishes, offers to furnish or advertises the furnishing of escorts as one of its primary business purposes for any fee, tip or other consideration." Ariz.Rev.Stat. § 13-1422(DX7). An "escort" is "a person who for consideration agrees or offers to act as a companion, guide or date for another person or who agrees or offers to privately model lingerie or to privately perform a Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 10 striptease for another person." Id. § 13-1422(D)(6). Furthermore, the hours regulation was passed as an amendment to Senate Bill 1162, a broader bill authorizing counties to develop comprehensive land-use regulations within their respective jurisdictions, and to promote the social value of the land as a whole. See Ariz.Rev.Stat. § 11-821 ("The county plan shall be made with the general purpose of guiding and accomplishing a coordinated, adjusted and harmonious development of the area of jurisdiction."). This is yet another objective indicator that the purpose of the statute was to combat the negative secondary effects associated with sexually-oriented businesses. See Alameda Books, 535 U.S. at 447, 122 S.Ct. 1728 (Kennedy, J., concurring) (fact that the ordinance at issue was "one part of an elaborate web of land-use regulations.... suggests that the ordinance is more in the nature of a typical land-use restriction and less in the nature of a law suppressing speech"). There are other "objective indicators of intent" on this record. Foley, 747 F.2d at 1297. For example, the "fact sheet" prepared by the NFLF stated that a statewide hours regulation was necessary to curb the problems associated with sexually-oriented business, which "according to law enforcement, include noise, traffic, unlawful public sexual activity, prostitution and drug trafficking." Moreover, the majority of comments made by legislators when the bill was under consideration focused on the secondary effects associated with sexually- oriented businesses. In short, our examination of the record as a whole, see Colacurcio. 163 F.3d at 552, indicates that the predominant purpose in enacting this provision was to ameliorate the secondary effects associated with the regulated establishments. *1166 b [7] Fair Public Policy argues that there is no pre-enactment evidence on which the legislature could rely to support its conclusion that the restrictions are warranted. But this argument confuses two separate issues which the Supreme Court has made clear need to be carefully distinguished. The 'predominant purpose' inquiry is separate and independent from the inquiry into whether the statute is designed to serve a substantial government interest. Only with respect to the latter inquiry "did Renton contemplate that courts would examine evidence concerning regulated speech and secondary effects." Alameda Books, 535 U.S. at 441, 122 S.Ct. 1728 (plurality opinion). In short, Fair Public Policy's argument is one that was specifically considered and rejected by the Supreme Court in Alameda Books. Because our examination of the record as a whole indicates that, in enacting the hours of operation restriction, the Arizona legislature was concerned with curbing the negative secondary effects associated with such businesses, intermediate scrutiny applies. **11 [8] The statute will be upheld if it is designed to serve a substantial government interest, is narrowly tailored to serve that interest, and does not unreasonably limit alternative avenues of communication. Renton. 475 U.S. at 50, 106 S.Ct. 925; Colacurcio. 163 F.3d at 551. [9] It is beyond peradventure at this point in the development of the doctrine that a state's interest in curbing the secondary effects associated with adult entertainment establishments is substantial. See Young. 427 U.S. at 71, 96 S.Ct. 2440 (city's "interest in attempting to preserve the quality of urban life is one that must be accorded high respect"); Renton, 475 U.S. at 50, 106 S.Ct. 925 (noting the "vital government interests at stake"); Alameda Books, 535 U.S. at 435, 122 S.Ct. 1728 ("reducing crime is a substantial government interest"). Here, Arizona's specific interest is in reducing the secondary effects associated with late night operations of sexually-oriented businesses, which include noise, traffic, unlawful public sexual activity, prostitution and drug trafficking. Each of our sister circuits to have considered similar prohibitions has recognized that such an interest is a substantial one. See, e.g.. National Amusements, Inc., 43 F.3d at 741 (city has a substantial interest in preserving peace and tranquility for citizens during late evening hours); Mitchell, 10 F.3d at 133 (state's interest in preserving character and preventing deterioration of neighborhoods substantial); Richland Bookmart, Inc., 137 F.3d at 440-41 (deterring "prostitution in the neighborhood at night or the creation of'drug comers' on the surrounding streets" a substantial government interest). The critical issue, of course, is whether the state has met its burden under Renton of coming forward with evidence that "demonstrate[s] a connection between the speech regulated ... and the secondary effects that motivated the adoption of the ordinance." Alameda Books, 535 U.S. at 441, 122 S.Ct. 1728(plurality opinion). [FN3] Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 11 FN3. The parties argue at great length over whether or not we may consider the contents of the studies that document the secondary effects associated with sexually-oriented businesses, and that were placed in the district court record during the course of these proceedings. While the Arizona legislature was briefed on these studies, the actual studies themselves were not before the legislature prior to § 13-1422's enactment, and it is therefore so-called post-enactment evidence. However, in Alameda Books the Supreme Court specifically contemplated that the state could indeed rely on post-enactment evidence in support of its position, but only if the plaintiffs succeed in casting doubt on the state's rationale. See Alameda Books, 535 U.S. at 441, 122 S.Ct. 1728(if "the burden shifts back" to the state, then state can "supplement the record with evidence renewing support for a theory that justifies the ordinance" (emphasis added)); see also Mitchell, 10 F.3d at 136 (examining "pre-enactment and post-enactment evidence" in determining whether state met its burden); DiMa Corp., 185 F.3d at 829-30 (holding that "a municipality may make a record for summary judgment or at trial with evidence that it may not have had when it enacted the ordinance"); Ben Rich Trading Inc. v. City of Vineland, 126 F.3d 155, 161 (3d Cir.1997) (discussing city's burden of production and noting that "a record could be established in the court after legislation is passed and challenged"). *1167 The pre-enactment record is a slim one, and consists of certain letters from NFLF documenting in a general sense the "acute problems" associated with sexually-oriented businesses, and discussing a Denver, Colorado study, which concluded that such establishments disproportionately deplete police time and resources during overnight hours. A "fact sheet" distributed to legislatures cited fourteen studies that documented the secondary-effects associated with adult entertainment establishments, and in particular it noted a Minnesota study establishing specific secondary effects associated with sexually-oriented businesses during overnight hours. The Arizona legislature also held public hearings and considered certain testimonial evidence, including evidence that prospective employers were concerned for the safety of their night-shift employees, and testimony from a neighborhood activist concerning the litter, prostitution, and drug use in her neighborhood. All of the evidence the Arizona legislature considered fairly supports its rationale that prohibiting sexually-oriented businesses from operating in the late night hours will lead to a reduction in secondary effects, and generally enhance the quality of life for Arizona citizens. A comparison of the record before the Arizona legislature to the record amassed in prior cases that have been the subject of judicial scrutiny may be helpful in determining whether the state has carried its burden in this case. The quantum and quality of evidence here compares unfavorably to two of the circuit court cases to have considered similar restrictions. The city ordinance upheld by the Fifth Circuit was "adopted after extensive study" by the city. Star Satellite, Inc., 779F.2dat 1077-78. Nosuchstudy was done here. Instead, Arizona relied on the experiences of other communities in support of its rationale. But see Renton, 475 U.S. at 50, 106 S.Ct. 925(rejecting the argument that it was necessary for a city to conduct its own studies). The ordinance at issue in Schnltz v. City of Cumberland. 228 F.3d 831, 846 (7th Cir.2000) was adopted after the city "collected and reviewed a host of studies," and here, while the legislature was briefed with respect to certain studies, no studies were put before the legislature prior to enactment **12 The record compares favorably to the evidence considered in several other cases, however. In Mitchell, lawmakers "received no documents or any sworn testimony in support of the bill" and "the General Assembly did not conduct public hearings." 10 F.3 d at 133. Nonetheless the Third Circuit held that the state had met its evidentiary burden under Renton. See also DiMa Corp., 185 F.3d at 830-31 (city relied on factual record supporting another city's ordinance); Ben Rich Tradinglnc., 126F.3dat 161 (only thing city relied on was evidence presented to state legislature two years previously). *1168 [10] The record here is hardly overwhelming, but it does not have to be. See Alameda Books, 535 U.S. at 451, 122 S.Ct. 1728,(Kennedy, J., concurring) ("very little evidence is required" to justify a secondary effects ordinance). The question is whether the Arizona legislature relied on evidence "reasonably believed to be relevant" in demonstrating a connection between its stated rationale and the protected speech, and we hold that it has done that here. The Arizona Senate and House held public hearings at which lawmakers heard citizen testimony concerning the late night operation of sexually-oriented businesses, and were briefed on several studies documenting secondary effects, and two of those studies were specific to late night operations. See Renton, 475 U.S. at 50, 106 S.Ct. 925(reasonable for regulators to rely on experiences and studies of Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 12 other cities, as well as legal decisions upholding similar regulations). That evidence is both reasonable and relevant, and compares favorably with the evidence presented in other cases. [11][12] Under A lameda Books, the burden now shifts to Fair Public Policy to "cast direct doubt on [the state's] rationale, either by demonstrating that the [state's] evidence does not support its rationale or by furnishing evidence that disputes the [state's] factual findings." 535 U.S. at 441, 122 S.Ct. 1728 (plurality opinion). Fair Public Policy's primary argument on appeal is that the evidence before the Arizona legislature consisted of "irrelevant anecdotes" and "isolated" incidents, and that testimonial evidence is not "real" evidence. If Fair Public Policy means to argue that such evidence is improper, its argument is erroneous, and simply misconstrues the nature of the legislative process. Legislative committees are not judicial tribunals, and they are not bound by rules of evidence. As the First Circuit explained when confronted with a similar argument, A legislative body can act without first acquiring irrefutable proof. In other words, lawmakers need not bury each piece of described trash before acting to combat litter, or confirm each honking horn before acting to abate noise levels. Instead, a legislative body, acting in furtherance of the public interest, is entitled to rely on whatever evidence it reasonably believes to be relevant to the problem at hand. National Amusements, Inc., 43 F.3d at 742(internal quotation and citations omitted); see also World Wide Video of Wash, 227 F.Supp.2d 1143 ("[A]necdotal evidence and reported experience can be as telling as statistical data and can serve as a legitimate basis for finding negative secondary effects.") (quoting Stringfellow's of N.Y., Ltd. v. City of New York, 91 N.Y.2d 382, 671 N.Y.S.2d 406, 694 N.E.2d 407, 417 (1998)). **13 [ 13] To the extent Fair Public Policy argues that the state needs to come forward with empirical data in support of its rationale, that argument was specifically rejected in Alameda Books. 535 U.S. at 439, 122 S.Ct. 1728 (plurality opinion) ("Such a requirement would go too far in undermining our settled position that municipalities must be given a reasonable opportunity to experiment with solutions to address the secondary effects of protected speech.") (internal quotation omitted); see also Barnes v. Glen Theatre, Inc.. 501 U.S. 560, 584, 111 S.Ct. 2456, 115 L.Ed.2d 504 (Souter, J., concurring) ("legislation seeking to combat the secondary effects of adult entertainment need not await localized proof of those effects"). [12] Fair Public Policy has failed to cast doubt on the state's theory, or on the evidence the state relied on in support of that theory. "Precedent... commands *1169 that courts should not stray from a deferential standard in these contexts, even when First Amendment rights are implicated through secondary effects." Charter Comm's, Inc. v. County of Santa Cruz, 304 F.3d 927, 932 (9th Cir.2002). Since the state relied on evidence that is "reasonably believed to be relevant," Renton, 475 U.S. at 52, 106 S.Ct. 925, we are satisfied that it has met its evidentiary burden. [ 14] The narrow tailoring requirement is satisfied so long as the government's asserted interest "would be achieved less effectively absent the regulation." Colacurcio, 163 F.3d at 553 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)). It appears self-evident that the government's asserted interest—the amelioration of secondary effects associated with late night operation of sexually-oriented businesses, including prostitution, drug use and littering— would be achieved less effectively in the absence of the statute. Fair Public Policy argues that the Arizona legislators did not consider any evidence particular to late night hours, but this assertion is belied by the record. Testimonial evidence was introduced specific to the late night operation of such businesses, and the legislature was briefed on two studies specific to problems associated with nighttime operation of sexually oriented businesses. See National Amusements. Inc., 43 F.3d at 744 ("It is within a government's purview to conclude that such secondary effects as late-night noise and traffic are likely to adhere to all [adult] entertainment."). Nor does the fact that the statute does not permit such establishments to operate prior to noon on Sundays render it overly-broad. The Eleventh Circuit considered and rejected precisely the same argument in Lady J. Lingerie: [T]he plaintiffs would have us look at the City's reasons for this rule on an hour by hour basis. There is no evidence, they submit, of a substantial government interest to justify requiring adult businesses to close from 10:00 a.m. until noon. This is a clever argument, but it confuses the requirement that a regulation serve a substantial government interest with the requirement that it be narrowly tailored to that end.... If we were to side with the plaintiffs here, the next litigants would argue whether evidence of secondary effects at 6:15 in the morning justifies requiring adult businesses to close at 9:30, or Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 13 whether evidence from 9:30 justifies requiring them to close at 10:45. That sort of line-drawing is inconsistent with a narrow tailoring requirement that only prohibits regulations that are "substantially broader than necessary." **14 176 F.3d at 1365 (quoting Ward, 491 U.S. at 800, 109 S.Ct. 2746). Furthermore, all six circuits to have considered hours of operation restrictions such as the one at issue here were confronted with regulations containing special provisions for Sunday closing. Indeed, four circuits have upheld regulations that prohibit Sunday hours altogether. See Ben Rich Trading, 126 F.3d at 158; Schultz. 228 F.3d at 837; Star Satellite. 779 F.2d at 1079; RichlandBookman. Inc., 137 F.3dat438. Two other circuits have upheld regulations prohibiting sexually-oriented businesses from operating before noon on Sunday, as here. See Mitchell, 10 F.3d at 128; Lady J. Lingerie, 176 F.3d at 1365. In short, because Arizona's interest in ameliorating secondary effects "would be achieved less effectively absent the regulation," Colacurcio, 163 F.3d at 553 (quotation omitted), it satisfies the narrow tailoring requirement. *1170 c [15] Finally, the statute must "leave open ample alternative channels for communication." Ward, 491 U.S. at 791, 109 S.Ct. 2746. "The Supreme Court generally will not strike down a governmental action for failure to leave open ample alternative channels of communication unless the government enactment will foreclose an entire medium of public expression across the landscape of a particular community or setting." Colacurcio, 163 F.3dat554. The statute permits the businesses that come within its purview to operate seventeen hours per day Monday through Saturday, and thirteen hours on Sunday, a total of approximately 5,980 hours per year. In Mitchell, the Third Circuit found that a similar restriction "allows those who choose to hear, view, or participate publically in sexually explicit expressive activity more than thirty-six hundred hours per year to do so. We think the Constitution requires no more." 10 F.3d at 139. We find that the statute leaves open "ample alternative channels for communication." Ward, 491 U.S. at 791, 109 S.Ct. 2746. Ill [16] As an alternative ground for finding the statute unconstitutional, Fair Public Policy argues that it is unconstitutionally underinclusive. The argument is that the state's decision to close sexually-oriented businesses during late night hours must be assessed in light of other types of business which the state permits to operate at night. According to Fair Public Policy, the state must demonstrate that greater late night problems are posed by sexually-oriented businesses than by non-regulated businesses, and if it does not, the statute is underinclusive and is therefore subject to strict scrutiny. Fair Public Policy's first major problem is that this argument runs straight into the Supreme Court's decision in Renton. The adult theater plaintiffs in that case argued that the ordinance at issue was underinclusive because it failed to regulate other kinds of adult businesses that are just as likely to produce secondary effects similar to those produced by adult theaters. Renton, 475 U.S. at 52, 106 S.Ct. 925. The Court rejected this argument, holding that simply because the city "chose first to address the potential problems created by one particular kind of adult business in no way suggests that the city has 'singled out1 adult theaters for discriminatory treatment." Id. at 53, 106 S.Ct. 925. **15 Fair Public Policy gamely attempts to distinguish Renton by pointing out that the Court in Renton dealt with a comparison of one kind of adult entertainment business with other kinds of adult entertainment businesses, whereas their argument here is that the state may not single out the entire industry of adult entertainment. As we have previously explained, however, the Supreme Court has consistently stated that so long as the legislature's motive is the amelioration of secondary effects, sexually-oriented businesses may indeed be singled out. As the Supreme Court in R.A. V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), explained, [T]he First Amendment imposes not an "underinclusiveness" limitation but a "content discrimination" limitation upon a State's prohibition of proscribable speech. There is no problem whatever, for example, with a State's prohibiting obscenity (and other forms of proscribable expression) only in certain media or markets, for although that prohibition would be "underinclusive," it would not discriminate on the basis of content... Another valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be associated * 1171 with particular secondary effects of the speech, so that the regulation is justified without reference to the content of the speech. Id at 387,389, 112 S.Ct. 2538 (emphasis in original) (citations and quotations omitted). The State "may choose to treat adult businesses Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 14 differently from other businesses...." Isbell, G and B Emporia, Inc., 258 F.3d 1108, 1116 (9th Cir.2001); see also Young, 427 U.S. at 70-71, 96 S.Ct. 2440 ("[T]he State may legitimately use the content of these materials as the basis for placing them in a different classification from other motion pictures."). If this is true as a general proposition, then it must also be true as to the specific proposition that a state may single out sexually-oriented businesses to regulate their hours of operation. See Ben Rich Trading, Inc., 126 F.Sdat 163 ("[A] municipality may regulate hours of adult businesses differently than other businesses without raising a strong inference of discrimination based on content."). IV In short, we reject Fair Public Policy's argument that we need to assess the regulation in light of how other classes of businesses are treated under Arizona law. [FN4] The State may choose to treat adult businesses differently from other businesses so long as it does so for the right reasons, and it has done that here. It need do no more. FN4. Though we reject Fair Public Policy's argument that the statute needs to be assessed in light of how other classes of business are treated, we note in passing that Arizona law does indeed provide for restrictions on the nighttime operation of other classes of business. See, e.g., Ariz.Rev.Stat. § 44-1632 ("A city or town may adopt an ordinance prohibiting the operation of pawnshops from 12:00 a.m. to 6:00 a.m."); Ariz.Rev.Stat. § 4-244(15) ("It is unlawful.... to sell, dispose of, deliver or give spiritous liquor to a person between the hours of 1:00 a.m. and 6:00 a.m. on weekdays, and 1:00 a.m. and 10:00 a.m. on Sundays."). The judgment of the district court is AFFIRMED. CANBY, Circuit Judge, dissenting: I dissent from the majority opinion because I conclude that it is inconsistent with City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002). As the majority here recognizes, the focus of our examination of Alameda Books is the opinion of Justice Kennedy, because there was no majority opinion and Justice Kennedys concurring opinion was the one that supported the Court's judgment on the narrowest grounds. See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). **16 Like the four dissenters in Alameda Books. Justice Kennedy viewed the regulation of adult entertainment businesses to be content-related, because the businesses to be regulated are identified by the content of their speech. Alameda Books, 535 U.S. at 448, 122 S.Ct. 1728 (Kennedy, J., concurring). Yet Justice Kennedy agreed with City of Rent on v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), that a regulation that is "designed to decrease secondary effects and not speech should be subject to intermediate rather than strict scrutiny." Alameda Books, 535 U.S. at 448, 122 S.Ct. 1728. Justice Kennedy, however, imposed important conditions as part of this intermediate scrutiny. The question in issue in Alameda Books was whether the city's ordinance was invalid because the city did not study the secondary effects of the precise use being regulated, but relied on judicially approved precedent from other *1172 jurisdictions. Justice Kennedy stated that this issue involved two questions: First, what proposition does a city need to advance in order to sustain a secondary-effects ordinance? Second, how much evidence is required to support the proposition? Id. at 449, 122 S.Ct. 1728. Unlike the plurality opinion, Justice Kennedy focused on the first question, and imposed requirements that are crucial to the present case. He elaborated: [A] city must advance some basis to show that its regulation has the purpose and effect of suppressing secondary effects, while leaving the quantity and accessibility of speech substantially intact. The ordinance may identify the speech based on content, but only as a shorthand for identifying the secondary effects outside. A city may not assert that it will reduce secondary effects by reducing speech in the same proportion. Id. (emphasis added). Applying this reasoning to the Los Angeles ordinance that prohibited two or more adult entertainment businesses from operating in the same building, Justice Kennedy made his point once again: It is no trick to reduce secondary effects by reducing speech or its audience; but a city may not attack secondary effects indirectly by attacking speech. The analysis requires a few more steps. If two adult businesses are under the same roof, an ordinance requiring them to separate will have one of two results: One business will either move elsewhere or Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 15 close. The city's premise cannot be the latter. It is true that cutting adult speech in half would probably reduce secondary effects proportionately. But again, a promised proportional reduction does not suffice .... The claim, therefore, must be that this ordinance will cause two businesses to split rather than one to close, that the quantity of speech will be substantially undiminished, and that total secondary effects will be significantly reduced. Id. at 450-51, 122 S.Ct. 1728 (emphasis added). Having thus answered his first sub-question, Justice Kennedy then agreed with the plurality with regard to his second: There was sufficient evidence to support the proposition that forced dispersal of two such businesses was reasonably likely to reduce secondary effects at little cost to speech. Id. at 452-53, 122 S.Ct. 1728. **17 The closing-hours statute in issue here, however, proceeds on precisely the theory that Justice Kennedy found insupportable under the First Amendment. The theory is that adult entertainment establishments [FN1 ] create adverse secondary effects when they are in operation. If operation is prohibited for several hours each day, the undesirable secondary effects will be reduced accordingly. Unlike a dispersal regulation, the state's instrument is not to move speech, but to stop it. And Justice Kennedy has informed us that "a city may not attack secondary effects indirectly by attacking speech." Id. at 450, 122 S.Ct. 1728. A government similarly may not proceed on a theory that "it will reduce secondary effects by reducing speech in the same proportion." Id. at 449, 122 S.Ct. 1728. It would be hard to find a more exact description than this of Arizona's closing hour regulation of adult entertainment establishments. FN1. I use the term "adult entertainment establishments" to refer to expressive activities such as those conducted by the plaintiffs. As the majority opinion points out, the statutory term "sexually-oriented businesses" includes escort services that presumably are not engaged in First Amendment-protected activity. My discussion does not relate to them. *1173 The record in the present case cannot sustain any other theory than the impermissible one. The majority opinion candidly characterizes the pre- enactment support for the statute as "slim." Indeed, it is so slim that I have grave doubts that it suffices under Renton without the gloss ofAlameda Books. I need not address that point, however, because the record clearly fails to support a permissible theory of regulation under Justice Kennedys test inAlameda Books. The evidence in both the legislature and the district court was almost entirely concerned with secondary effects that are unrelated to the hours of occurrence. Studies of the effects of adult entertainment businesses on the crime rate were mentioned in legislative hearings, but none were put into the legislative record. A Minnesota study was said to have reported adverse effects from 24-hour operation of adult establishments, but the study was not produced to the legislature. A study by the city of Phoenix, Arizona, was briefly referred to as having explored the effect of nighttime operation of adult establishments but was said to be "inconclusive"; it also was not produced. Another reference was made to a study by Fulton County, Georgia (also not produced for the legislature), but its conclusions tended to show no disproportionate adverse effect on crime rate because of operation of adult entertainment businesses. See Flanigan's Enterprises, Inc. v. Fulton County, 242 F.3d 976, 979 (llth Cir.2001) (describing Fulton County study). The focus of secondary effects in the record was on those effects generally, not on secondary effects caused by late-night operations, and certainly not on disproportionate secondary effects of late-night operations. Finally, there is a total absence of evidence anywhere in the record to support the existence of disproportionate secondary effects from operation on Sunday mornings before noon. (Indeed, the required closing on Sunday mornings might suggest to a reasonable observer that something other than the mere regulation of secondary effects was going on in the legislature, but I need not pursue that question here.) **18 As for the effect of the statute on speech, there is no question that speech is simply stopped during the hours of forced closure. Several affidavits filed in district court asserted that many customers of adult establishments held two jobs and could not patronize the establishments except during hours subject to the closure. Another stated that closure during the targeted hours caused a twenty-five percent decline in gross revenues of an adult establishment. All in all, the record overwhelmingly establishes that the closure, at best, achieves a one-for-one elimination of speech and secondary effects—a formula that fails to meet the requirements of the First Amendment as Justice Kennedy has stated them. The majority opinion here addresses Justice Kennedys concurrence, but concludes that he did not mean his statements to apply to the present situation. The majority holds that Justice Kennedy meant no change in the Renton analysis because he said "the central holding oftfen/onissound." Id. at 448, 122 S.Ct. 1728. But Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 16 that statement came after Justice Kennedy departed from Renton 's assumption that regulation of adult entertainment establishments to limit secondary effects was not content-based. Justice Kennedy stated that this fiction was not useful, and that it was better to admit that such regulations were content-based. Such an admission would normally call for review under a strict scrutiny, but Justice Kennedy did not accept that consequence. It is with regard only to the standard of review that he then said: "[T]he central holding of Renton is sound: A zoning restriction that is designed to decrease secondary effects and not speech should be *1174 subject to intermediate rather than strict scrutiny." Id. To read this statement as a wholesale endorsement of an unmodified Renton analysis is to ignore context. {FN2] FN2. The majority opinion quotes the Tenth Circuit opinion in Z.J. Gifts D-4, L.L.C. v. City of Littleton, 311 F.3d 1220, 1239 n. 15 (10th Cir.2002), for the proposition that " 'nothing in ... Alameda Books requires reconsideration' of the traditional Renton framework." The Tenth Circuit's statement, however, was that "nothing in ... Alameda Books requires reconsideration of our conclusion as to the applicable standard of review." Id. The Tenth Circuit was merely in agreement with Justice Kennedy that intermediate review was appropriate, not strict scrutiny as Z.J. Gifts was arguing. The Tenth Circuit said nothing about leaving the Renton "framework" intact. Nor is the Seventh Circuit's description of Justice Kennedys opinion, see Ben's Bar. Inc. v. Village of Somerset, 316 F.3d 702,721 (7th Cir.2003), inconsistent with my reading of it. The majority opinion also refers to Justice Kennedys statement that he feared the plurality opinion's "application of Renton might constitute a subtle expansion, with which I do not concur." Id. at 445,122 S.Ct. 1728. Here again, it over-reads Justice Kennedys statement to accept it as an endorsement of Renton without the gloss Justice Kennedy adds to the analysis in his opinion. If Justice Kennedy thought that the Renton analysis was correct, except for its denomination of the ordinance as content-neutral, he could have stated that minor disagreement and joined all the rest of the plurality opinion. His major reason for writing was to establish that the pluralitys analysis was deficient because it did "not address how speech will fare under the citys ordinance." Id. at 450, 122 S.Ct. 1728. He then spends nearly all of the remainder of his opinion explaining his rule that a government cannot reduce secondary effects by reducing speech on a one-for-one basis. That is what Arizona has done here. I would take Justice Kennedy at his word and on this record would hold Arizona's statute to be in violation of the First Amendment. 336 F.3d 1153, 2003 WL 21730756 (9th Cir.(Ariz.)), 3 Cal. Daily Op. Serv. 6603,2003 Daily Journal D.A.R. 8308 Briefs and Other Related Documents (Back to top) • 2002 WL 32144911 (Appellate Brief) Supplemental Brief of Appellants Center for Fair Public Policy, et al. (Appellants in Ninth Circuit Case No. 00-16858) (Oct. 04, 2002) (Appellate Brief) Supplemental Brief of Appellants Center for Fair Public Policy, et al. (Appellants in Ninth Circuit Case No. 00-16858) (Oct. 04, 2002) Original Image of this Document with Appendix (PDF) • 2002 WL 32144912 (Appellate Brief) Appellees' Supplemental Brief (Oct. 04, 2002) (Appellate Brief) Appellees' Supplemental Brief (Oct. 04,2002) Original Image of this Document with Appendix (PDF) • 2002 WL 32144910 (Appellate Brief) Supplemental Brief of Appellants L.J. Concepts, et al (Appellants in #00-16905 and Plaintiffs in District Court Case No. CIV-98-1583-PHX-EHC) (Oct. 03, 2002) (Appellate Brief) Supplemental Brief of Appellants L.J. Concepts, et al (Appellants in #00-16905 and Plaintiffs in District Court Case No. CIV-98-1583-PHX-EHC) (Oct. 03, 2002) Original Image of this Document with Appendix (PDF) • 2001 WL 34127999 (Appellate Brief) Reply Brief of Appellants Center for Fair Public Policy, et al. (Appellants in Ninth Circuit Case No. 00-16858) (Jun. 12, 2001) (Appellate Brief) Reply Brief of Appellants Center for Fair Public Policy, et al. (Appellants in Ninth Circuit Case No. 00-16858) (Jun. 12, 2001) Original Image of this Document with Appendix (PDF) • 2001 WL 34128002 (Appellate Brief) Reply Brief of Appellants L.J. Concepts, et al (Appellants in #00-16905 and Plaintiffs in District Court Case No. CIV-98-1583-PHX-EHC) (Jun. 04, 2001) (Appellate Brief) Reply Brief of Appellants L.J. Concepts, et al (Appellants in #00-16905 and Plaintiffs in District Court Case No. CIV-98-1583-PHX-EHC) (Jun. 04, 2001) Original Image of this Document with Appendix (PDF) Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 17 • 2001 WL 34127998 (Appellate Brief) Appellees' Answering Brief (May. 03, 2001) (Appellate Brief) Appellees' Answering Brief (May. 03, 2001) Original Image of this Document with Appendix (PDF) • 2001 WL 34128000 (Appellate Brief) Opening Brief of Appellants Center for Fair Public Policy, et al. (Appellants in Ninth Circuit Case No. 00-16858) (Mar. 05, 2001) (Appellate Brief) Opening Brief of Appellants Center for Fair Public Policy, et al. (Appellants in Ninth Circuit Case No. 00-16858) (Mar. 05, 2001) Original Image of this Document with Appendix (PDF) • 2001 WL 34128001 (Appellate Brief) Opening Brief of Appellants L.J. Concepts, et al (Appellants in #00-16905 and Plaintiffs in District Court Case No. CIV-98-1583-PHX-EHC) (Feb. 02, 2001) (Appellate Brief) Opening Brief of Appellants L.J. Concepts, et al (Appellants in #00-16905 and Plaintiffs in District Court Case No. CIV-98-1583-PHX-EHC) (Feb. 02, 2001) Original Image of this Document with Appendix (PDF) END OF DOCUMENT Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 11 Page 1 Copr. ® West 1999 No Claim to Orig. U.S. Govt. Works 896 P.2d 272 (Cite as: 896 P.2d 272) CITY OF COLORADO SPRINGS, an Incorporated Municipality, Robert Isaac, Leon Young, Lisa Are, Cheryl Gillespie, John Hazelhurst, Mary Lou Makepeace, Randy Purvis, Larry Small, David White, hi their official capacities only as members of the Colorado Springs City Council, Defendants-Appellants/Cross-Appellees, v. 2354 INC., a Colorado Corporation, d/b/a Baby Dolls; Golden Que, Inc., a Colorado Corporation, d/b/a Jerry McNasty's; Fantasy Books, Inc., a Colorado Corporation; Mitchell Kelloff Theatres, Inc., a Colorado Corporation, d/b/a Ambassador Cinema; Sam Leeper, d/b/a Eighth Street Adult Book & Video Store; Modern Books of Colorado, Inc., a Colorado Corporation; Darryl Deighton, d/b/a First Amendment Bookstore, Plaintiffs-Appellees/Cross-Appellants. No. 93SA106. Supreme Court of Colorado, En Bane. May 8, 1995. Rehearing Denied June 5, 1995. Owners of sexually oriented businesses brought action challenging constitutionality of city ordinance requiring licensing of such businesses. The District Court, El Paso County, Donald E. Campbell, J., ruled that portions of ordinance facially violated First Amendment, and appeal was taken. The Supreme Court, Kirshbaum, J., held that: (1) plaintiffs had standing to bring action; (2) provision requiring denial of applications by persons not of good moral character violated First Amendment; (3) provision authorizing suspension or revocation of license for violation of any law violated First Amendment; (4) ordinance's age limitations for licensees and audience members were invalid to extent they apply to businesses not presenting live, nude entertainment; (5) age provisions were enforceable with respect to licensees and audience members at business that presented such entertainment; and (6) provisions requiring corporate holders to sign license application forms were invalid. Affirmed in part and reversed in part. Erickson, J., filed dissenting opinion in which Lohr, J., joined. [1] CONSTITUTIONAL LAW k42.2(l) 92k42.2(l) Operators of sexually oriented businesses had standing to challenge, on First Amendment free speech grounds facial validity of ordinance requiring licensing of such businesses, where operators were required to reapply annually for licenses. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code § 8-9-109. [2] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) City ordinance requiring licensing of sexually oriented businesses established prior restraint on constitutionally protected expression and was subject to strict scrutiny standard of review in action challenging ordinance on First Amendment grounds. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code § 8-9- 104(A). [3] CONSTITUTIONAL LAW k90(l) 92k90(l) Governmental regulations that prohibit the future dissemination of constitutionally protected speech constitute prior restraints. U.S.C.A. Const.Amend. 1. [4] CONSTITUTIONAL LAW k90(3) 92k90(3) Because governmental regulations establishing system of prior restraint on constitutionally protected expression are presumed to be invalid, they must be measured by strict scrutiny standard of review. U.S.C.A. Const.Amend. 1. [5] CONSTITUTIONAL LAW k90.4(l) Page 2 92k90.4(l) City ordinance requiring licensing of sexually oriented business was not facially invalid prior restraint on free speech by requiring approval of license application by various city agencies but providing no remedy in event all agency inspections were not completed within 30-day period for issuing licenses; ordinance expressly required requisite inspections to occur within 30-day period during which licensing officer was required to act, and could be construed to require license not acted upon by licensing officer within 30 days to be deemed granted. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code § 8-9-105(A)(5). [5] LICENSES k7(l) 238k7(l) City ordinance requiring licensing of sexually oriented business was not facially invalid prior restraint on free speech by requiring approval of license application by various city agencies but providing no remedy in event all agency inspections were not completed within 30-day period for issuing licenses; ordinance expressly required requisite inspections to occur within 30-day period during which licensing officer was required to act, and could be construed to require license not acted upon by licensing officer within 30 days to be deemed granted. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code § 8-9-105(A)(5). [6] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) City ordinance requiring application for sexually oriented business license to be accompanied by zoning permit and prohibiting further action pending appeal from denial of such permit was not unconstitutional prior restraint on free speech; ordinance did not provide unlimited period of time for obtaining zoning permit for unsuccessful applicant, since zoning ordinance required zoning administer to approve or deny zoning permit application within ten working days of submittal. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code § 8-9-104(D); Colorado Springs Zoning Ordinance § 14-1-1 l-103(d). [6] LICENSES k7(l) 238k7(l) City ordinance requiring application for sexually oriented business license to be accompanied by zoning permit and prohibiting further action pending appeal from denial of such permit was not unconstitutional prior restraint on free speech; ordinance did not provide unlimited period of time for obtaining zoning permit for unsuccessful applicant, since zoning ordinance required zoning administer to approve or deny zoning permit application within ten working days of submittal. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code § 8-9-104(D); Colorado Springs Zoning Ordinance § 14-1-1 l-103(d). [7] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) City ordinance requiring licensing of sexually oriented businesses was not facially invalid prior restraint on free speech on grounds it did not require prompt judicial review of decisions of licensing officer; city code permitted unsuccessful applicant for sexually explicit business license to appeal that determination, and rules of civil procedure permitted stay of adverse decision pending judicial review. U.S.C.A. Const.Amend. 1; Rules Civ.Proc., Rule 106(a)(4); Colorado Springs, Colo., Ordinance No. 92-159; Code §§ 8-1-601(8- D), 8-9-105(D); Colorado Springs, Colo., Code § 8-l-808(a), (b). [7] LICENSES k7(l) 238k7(l) City ordinance requiring licensing of sexually oriented businesses was not facially invalid prior restraint on free speech on grounds it did not require prompt judicial review of decisions of licensing officer; city code permitted unsuccessful applicant for sexually explicit business license to appeal that determination, and rules of civil procedure permitted stay of adverse decision pending judicial review. U.S.C.A. Const.Amend. 1; Rules Civ.Proc., Rule 106(a)(4); Colorado Springs, Colo., Ordinance No. 92-159; Code §§ 8-1-601(6- D), 8-9-105(D); Colorado Springs, Colo., Code § 8-l-808(a), (b). [8] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) City ordinance requiring licensing of sexually oriented businesses was not impermissible prior restraint on free speech on grounds it did not require licensing authority to prove that particular material or conduct was unprotected and to initiate review proceedings in event application was denied or license was suspended, revoked or not renewed; ordinance established specific, objective criteria that defined basis for Page 3 any decision of licensing authority and did not authorize licensing authority to evaluate content of any book, movie, production, or work of art. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159. [8] LICENSES k7(l) 238k7(l) City ordinance requiring licensing of sexually oriented businesses was not impermissible prior restraint on free speech on grounds it did not require licensing authority to prove that particular material or conduct was unprotected and to initiate review proceedings in event application was denied or license was suspended, revoked or not renewed; ordinance established specific, objective criteria that defined basis for any decision of licensing authority and did not authorize licensing authority to evaluate content of any book, movie, production, or work of art. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159. [9] CONSTITUTIONAL LAW k90.4(3) 92k90.4(3) For purposes of First Amendment free speech requirements, 21-year-old age limitations are reasonable regulations with regards to live, nude dancing establishments. U.S.C.A. Const. Amend. 1. [10] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) City ordinance requiring customers of sexually oriented businesses be at least 21-years of age was not narrowly tailored to further government's purpose of protecting 18 to 20-year-old adults from effects of such businesses, in violation of First Amendment free speech protections, except with respect to businesses presenting live nude entertainment; city produced no evidence that adults under 21 years-of-age are more likely to be adversely affected by prostitution and solicitation at such businesses than other adults. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code §§ 8-9-105(a)(l), 8-9-112. [10] CONSTITUTIONAL LAW k90.4(3) 92k90.4(3) City ordinance requiring customers of sexually oriented businesses be at least 21-years of age was not narrowly tailored to further government's purpose of protecting 18 to 20-year-old adults from effects of such businesses, in violation of First Amendment free speech protections, except with respect to businesses presenting live nude entertainment; city produced no evidence that adults under 21 years-of-age are more likely to be adversely affected by prostitution and solicitation at such businesses than other adults. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code §§ 8-9-105(a)(l), 8-9-112. [10] LICENSES k7(l) 238k7(l) City ordinance requiring customers of sexually oriented businesses be at least 21-years of age was not narrowly tailored to further government's purpose of protecting 18 to 20-year-old adults from effects of such businesses, in violation of First Amendment free speech protections, except with respect to businesses presenting live nude entertainment; city produced no evidence that adults under 21 years-of-age are more likely to be adversely affected by prostitution and solicitation at such businesses than other adults. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code §§ 8-9-105(a)(l), 8-9-112. [11] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) City ordinance prohibiting persons not of good moral character, including persons convicted of any felony or corrupt moral turpitude, from obtaining license to operate sexually oriented business, exceeded scope necessary to further assert governmental interest in reducing crime, disease and urban blight associated with such businesses, in violation of First Amendment free speech protections. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code § 8-9-105(a)(2). [11] LICENSES k7(l) 238k7(l) City ordinance prohibiting persons not of good moral character, including persons convicted of any felony or corrupt moral turpitude, from obtaining license to operate sexually oriented business, exceeded scope necessary to further assert governmental interest in reducing crime, disease and urban blight associated with such businesses, in violation of First Amendment free speech protections. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code § 8-9-105(a)(2). Page 4 ,«*«*«,. [12] CONSTITUTIONAL LAW k90.1(4) 92k90.1(4) Even when character of applicant is properly subjected to evaluation by licensing authority, standards for excluding persons from engaging in licensed activity must bear reasonable relationship to qualifications to engage in that activity, for First Amendment purposes. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159. [13] CONSTITUTIONAL LAW k90.1(4) 92k90.1(4) Governmental decisions which license activities protected by First Amendment must be narrowly tailored to ensure absence of censorship. U.S.C.A. Const.Amend. 1. [14] CONSTITUTIONAL LAW k90.1(4) 92k90.1(4) Licensing provision prohibiting ability of applicant to engage in commercial activities protected by First Amendment on basis of prior misconduct can be sustained only on basis of evidence that serious criminal conduct would result from granting that license. U.S.C.A. Const. Amend. 1. [15] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) City ordinance requiring stockholders in corporation operating adult-oriented business to sign application for license did not further city's interest in enforcing the ordinance and was unconstitutional prior restraint on free speech; because stockholders were not in position to carry out corporate policies or to respond promptly to notification of ordinance violation, requirement that they sign application was not justifiable. U.S.C.A. Const. Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code § 8-9- 104(e). [15] LICENSES k7(l) 238k7(l) City ordinance requiring stockholders in corporation operating adult-oriented business to sign application for license did not further city's interest in enforcing the ordinance and was unconstitutional prior restraint on free speech; because stockholders were not in position to carry out corporate policies or to respond promptly to notification of ordinance violation, requirement that they sign application was not justifiable. U.S.C.A. Const. Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code § 8-9- 104(e). [16] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) City ordinance requiring managers of sexually oriented businesses to be of "good moral character" violated constitutional prohibitions against prior restraints of free speech. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code §§ 8-l-401(a), 8-9-105, 8-9-106(c). [16] LICENSES k7(l) 238k7(l) City ordinance requiring managers of sexually oriented businesses to be of "good moral character" violated constitutional prohibitions against prior restraints of free speech. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code §§ 8-l-401(a), 8-9-105, 8-9-106(c). [17] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) City ordinance requiring licensees who operate sexually oriented businesses to provide city with name and aliases of its employees was reasonably necessary to effectuate ordinance's objective of suppressing criminal conduct and was not unconstitutional prior restraint on free speech. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code § 8-9-107. [17] LICENSES k7(l) 238k7(l) City ordinance requiring licensees who operate sexually oriented businesses to provide city with name and aliases of its employees was reasonably necessary to effectuate ordinance's objective of suppressing criminal conduct and was not unconstitutional prior restraint on free speech. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code § 8-9-107. [18] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) Provisions of city ordinance authorizing denial of license application to operate sexually oriented business for failure to pay certain city assessments and requiring prior compliance with fire, building and zoning procedures were narrowly tailored to further city's interest in ensuring safe facilities and preventing neighborhood blight, and did not constitute impermissible prior restraint on free speech. U.S.C.A. Const.Amend. 1; Colorado Springs, Page5 Colo., Ordinance No. 92-159; Code § 8-9-105(a)(3, 5, 6). [18] LICENSES k7(l) 238k7(l) Provisions of city ordinance authorizing denial of license application to operate sexually oriented business for failure to pay certain city assessments and requiring prior compliance with fire, building and zoning procedures were narrowly tailored to further city's interest in ensuring safe facilities and preventing neighborhood blight, and did not constitute impermissible prior restraint on free speech. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code § 8-9-105(a)(3, 5, 6). [19] CONSTITUTIONAL LAW k90.1(4) 92k90.1(4) Provisions of city ordinance authorizing administrative inspections of sexually oriented business were sufficiently tailored to further substantial governmental interests in ensuring compliance with ordinance and preventing unlawful conduct on the premises, and was not unconstitutional prior restraint on free speech. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code §§ 8-9-108, 8-9-110(a, b). [19] LICENSES k7(l) 238k7(l) Provisions of city ordinance authorizing administrative inspections of sexually oriented business were sufficiently tailored to further substantial governmental interests in ensuring compliance with ordinance and preventing unlawful conduct on the premises, and was not unconstitutional prior restraint on free speech. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code §§ 8-9-108, 8-9-110(a,b). [20] CONSTITUTIONAL LAW k90.1(4) 92k90.1(4) Provision of city ordinance requiring mandatory license revocation for sexually oriented business if one of six factors were present, including sale of drugs or acts of prostitution on premises, was not unconstitutional prior restraint of free speech. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code § 8-9-111. [20] LICENSES k7(l) 238k7(l) Provision of city ordinance requiring mandatory license revocation for sexually oriented business if one of six factors were present, including sale of drugs or acts of prostitution on premises, was not unconstitutional prior restraint of free speech. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code § 8-9-111. [21] CONSTITUTIONAL LAW k90(l) 92k90(l) First Amendment does not bar enforcement of regulations directed at unlawful conduct that manifests no element of protected expression. U.S.C.A. Const.Amend. 1. [22] CONSTITUTIONAL LAW k90(l) 92k90(l) Business engaging in constitutionally protected activity does not enjoy First Amendment immunity from criminal prosecution. U.S.C.A. Const. Amend. 1. [23] CONSTITUTIONAL LAW k90.4(3) 92k90.4(3) All types of nonobscene expression, including sexually explicit expression, whether consisting of printed matter, videos, or live entertainment, are protected by the First Amendment. U.S.C.A. Const.Amend. 1. [23] CONSTITUTIONAL LAW k90.4(4) 92k90.4(4) All types of nonobscene expression, including sexually explicit expression, whether consisting of printed matter, videos, or live entertainment, are protected by the First Amendment. U.S.C.A. Const.Amend. 1. [23] CONSTITUTIONAL LAW k%.4(6) 92k90.4(6) All types of nonobscene expression, including sexually explicit expression, whether consisting of printed matter, videos, or live entertainment, are protected by the First Amendment. U.S.C.A. Const.Amend. 1. [24] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) Government efforts to regulate content of non-obscene expression, whether by means of zoning regulation, licensing programs, or other means, are presumed to violate the First Amendment; government thus may not limit content of such expression, however objectionable or offensive that content may be to many. U.S.C.A. Const.Amend. 1. [25] CONSTITUTIONAL LAW k90(l) 92k90(l) Protection of right to express controversial ideas in controversial ways is at heart of values embodied in First Amendment. U.S.C.A. Const. Amend. 1. [26] CONSTITUTIONAL LAW k90(3) 92k90(3) Government regulations that do not directly or indirectly limit content of protected expression but seek only to impose time, place, and manner regulations on such expression are constitutionally permissible only if they are narrowly crafted to further substantial governmental interest in preserving ample alternative means of communication. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159. [27] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) Although city ordinance creating licensing of sexually oriented businesses affected particular entities only because such entities engaged in activities that implicated constitutionally protected rights of expression, ordinance's suspension, revocation, and premises design provisions were content neutral for purposes of First Amendment analysis; such provisions were designed to regulate undesirable secondary effects of expressive conduct, not its substance. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code § 8-l-801(D). [27] LICENSES k7(l) 238k7(l) Although city ordinance creating licensing of sexually oriented businesses affected particular entities only because such entities engaged in activities that implicated constitutionally protected rights of expression, ordinance's suspension, revocation, and premises design provisions were content neutral for purposes of First Amendment analysis; such provisions were designed to regulate undesirable secondary effects of expressive conduct, not its substance. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code § 8-l-801(D). [28] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) City ordinance permitting license to be revoked if licensee or employee violated any law on Page 6 premises was invalid restriction on free speech as applied to sexually explicit business licensees; ordinance made no reference to any mens rea requirement and was not merely drawn to ensure maximum opportunity for constitutionally protected modes of expression. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code §§ 8-1-801(8), 8-9-109(A). [28] LICENSES k7(l) 238k7(l) City ordinance permitting license to be revoked if licensee or employee violated any law on premises was invalid restriction on free speech as applied to sexually explicit business licensees; ordinance made no reference to any mens rea requirement and was not merely drawn to ensure maximum opportunity for constitutionally protected modes of expression. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code §§ 8-l-801(B), 8-9-109(A). [29] CONSTITUTIONAL LAW k90(3) 92k90(3) In view of dangers of censorship and arbitrary suppression inherent in application of imprecise standards, regulations granting government officials excessive discretion to regulate constitutionally protected modes of expression are unconstitutional on their face. U.S.C.A. Const.Amend. 1. [30] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) Provisions of city ordinance limiting hours of operation of sexually oriented businesses, regulating stage location and seating in premises with live performances and regulating peep booths imposed valid time, place, and manner restrictions on free speech; provisions were narrowly crafted and affected performance, audiences, and expressive creation in minimal ways only. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code §§ 8-9-113, 8-9-114, 8-9-117, 8-9-118. [30] CONSTITUTIONAL LAW k90.4(3) 92k90.4(3) Provisions of city ordinance limiting hours of operation of sexually oriented businesses, regulating stage location and seating in premises with live performances and regulating peep booths imposed valid time, place, and manner restrictions on free speech; provisions were Page 7 narrowly crafted and affected performance, audiences, and expressive creation in minimal ways only. U.S.C.A. Const. Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code §§ 8-9-113, 8-9-114, 8-9-117, 8-9-118. [30] LICENSES k7(l) 238k7(l) Provisions of city ordinance limiting hours of operation of sexually oriented businesses, regulating stage location and seating in premises with live performances and regulating peep booths imposed valid time, place, and manner restrictions on free speech; provisions were narrowly crafted and affected performance, audiences, and expressive creation in minimal ways only. U.S.C.A. Const. Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code §§ 8-9-113, 8-9-114, 8-9-117, 8-9-118. [31] INTOXICATING LIQUORS kll 223kll City ordinance restricting hours of operation of licensed sexually oriented businesses was not preempted by parallel provisions of Colorado Liquor Code, although ordinance imposed further restriction on Monday morning hours of operation of liquor licensed establishments that elect to present sexually explicit entertainment. West's C.R.S.A. §§ 12-47-128(5)(c), 30-15- 401(1)(1 )0)(B); Colorado Springs, Colo., Ordinance No. 92-159; Code § 8-9- 113. [31] MUNICIPAL CORPORATIONS k592(l) 268k592(l) City ordinance restricting hours of operation of licensed sexually oriented businesses was not preempted by parallel provisions of Colorado Liquor Code, although ordinance imposed further restriction on Monday morning hours of operation of liquor licensed establishments that elect to present sexually explicit entertainment. West's C.R.S.A. §§ 12-47-128(5)(c), 30-15- 401(1)(1 )(I)(B); Colorado Springs, Colo., Ordinance No. 92-159; Code § 8-9- 113. [32] MUNICIPAL CORPORATIONS klll(4) 268klll(4) Reasonable time, place, and manner regulations of sexually oriented businesses contained in city ordinance were severable from remaining, invalid provisions of ordinance. U.S.C.A. Const.Amend. 1; Colorado Springs, Colo., Ordinance No. 92-159; Code § 8-9-121(9). *276 James G. Colvin II, City Arty., City of Colorado Springs, and Kurt G. Stiegelmeier, Sr. Litigation Arty., Colorado Springs, for defendants- appellants/cross-appellees. Arthur M. Schwartz, P.C., Arthur M. Schwartz, Bradley J. Reich and Michael W. Gross, Denver, for plaintiffs-appellees/cross-appellants. Justice KIRSHBAUM delivered the Opinion of the Court. The defendants-appellants/cross-appellees, the City of Colorado Springs and the members of the Colorado Springs City Council (the defendants), appeal portions of a summary judgment entered by the El Paso County District Court declaring that two provisions of Colorado Springs Ordinance No. 92-159 (the Ordinance) and a related provision of the 1980 Colorado Springs Code (the Code) are unenforceable because of facial violations of the First Amendment to the United States Constitution. [FN1] The plaintiffs-appellees/cross-appellants, three corporations and two individuals operating bookstores and theaters and two corporations operating liquor-licensed establishments that present various forms of partially nude dancing to their patrons (the plaintiffs), appeal other portions of the trial court's judgment declaring that numerous other provisions contained in the Ordinance are not facially unconstitutional. [FN2] We affirm the judgment in part and reverse in part. FN1. Because the trial court declared a portion of the Ordinance to be unconstitutional, direct appeal to this court is appropriate. § 13-4- 102(l)(b), 6A C.R.S. (1987). FN2. Plaintiffs Fantasy Books, Inc., Mitchell Kelloff Theatres, Inc., and Modern Books of Colorado, Inc., are Colorado corporations doing business in Colorado Springs, Colorado. Plaintiff Darryl Deighton operates the First Amendment Bookstore and plaintiff Sam Leeper operates the Eight Street Adult Book and Video Store in Colorado Springs, Colorado. Plaintiffs 2354 Inc., and Golden Que, Inc., are Colorado corporations operating liquor licensed establishments in Colorado Springs, Colorado. I PageS On November 24, 1992, the Colorado Springs City Council enacted the Ordinance, effective December 17, 1992. Entitled "Colorado Springs' Sexually Oriented Business Licensing Ordinance," it established standards for licensing and regulating a broad spectrum of sexually oriented commercial ventures in Colorado Springs. In adopting the Ordinance, the City Council made the following findings: (1) "[such businesses] are frequently used for unlawful sexual activities including prostitution"; (2) "the concern over sexually transmitted diseases is a legitimate health concern of the City which demands reasonable regulation of sexually oriented businesses in order to protect the health and well-being of the citizens"; (3) "any business which has as its primary purpose the selling, renting or showing of sexually explicit materials which depict or describe specified sexual activities or specified anatomical areas may have a negative impact upon surrounding businesses and residences"; (4) "experience in Colorado Springs and other cities has shown that the location of sexually oriented businesses degrade [sic] the quality of the area of the City in which they are located and cause [sic] a blighting effect upon the City"; and (5) "the City Council desires to control these adverse effects and thereby protect the health, safety and welfare of the citizens; protect the citizens from crime; preserve the quality of life; preserve property values and the character of surrounding neighborhoods and deter the spread of urban blight...." The purpose of the Ordinance is stated in section 8-9-101 thereof as follows: Sexually oriented businesses are frequently used for unlawful sexual activities, including prostitution. The concern over sexually transmitted diseases is a legitimate health concern of the City which *277 demands reasonable regulation of sexually oriented businesses to protect the health and well-being of the citizens, including the patrons of sexually oriented businesses. Licensing of sexually oriented businesses is a legitimate and reasonable means of ensuring that operators of sexually oriented businesses comply with reasonable regulations and that operators do not knowingly allow their businesses to be used as places of illegal sexual activity or solicitation. There is convincing documented evidence that sexually oriented businesses, because of their nature, have a deleterious effect on both the existing businesses around them and surrounding residential areas, causing increased crime and downgrading of property values. The purpose of this Ordinance is to control adverse effects from sexually oriented businesses and thereby protect the health, safety and welfare of the citizens; protect the citizens from increased crime; preserve the quality of life; preserve the property values and character of the surrounding neighborhoods and deter the spread of urban blight. The Ordinance defines "sexually oriented business" to mean "an adult arcade, adult bookstore, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, sexual encounter establishment, or other similar business" that features persons appearing in a state of nudity or live performances or photographic reproductions depicting or describing "specified sexual activities or specified anatomical areas." Colorado Springs, Co., Code § 8-9-102 (1992). The Ordinance also contains the following pertinent definitions: SPECIFIED ANATOMICAL AREAS are defined as: a. Less than completely and opaquely covered: human genitals, pubic region, buttocks, and female breast below a point above the top of the areola. b. Human male genitals in a discernibly turgid state even if completely and opaquely covered. SPECIFIED SEXUAL ACTIVITIES means acts, simulated acts, exhibitions, representations, depictions or descriptions of: a. Human genitals in a state of sexual stimulation or arousal. b. Fondling or other erotic touching of human genitals, pubic region, buttocks or female breast. c. Intrusion, however slight, of any object, any part of an animal's body, or any part of a person's body into the genital or anal openings of any person's body or into the body of an animal. d. Cunnilingus, fellatio, anilingus, masturbation, bestiality, lewd exhibition of genitals or excretory function. e. Flagellation, mutilation or torture for purposes of sexual arousal, gratification, or abuse. Colorado Springs, Co., Code § 8-9-102 (1992). Section 8-9-104 of the Ordinance provides that any person operating a sexually oriented business must obtain a license from the licensing officer Page 9 and describes the qualifications necessary for licensure. Section 8-9-105 of the Ordinance establishes standards and time limits for approval or denial of applications for sexually oriented business licenses. Sections 8-9-106 through -108 of the Ordinance contain requirements for regulation of managers and employees of licensed businesses and authorize periodic inspection of licensed premises. Sections 8-9-109 through -111 of the Ordinance deal with the expiration, suspension, and revocation of issued licenses. Sections 8-9- 112 through -121 of the Ordinance set forth minimum age provisions, hours of operation, peep booth regulations, lighting regulations, regulations particular to adult theaters and adult cabarets, regulations concerning the conduct and tipping of employees, adult motel regulations, injunctions, and fees. In late December 1992, the plaintiffs filed this civil action against the defendants. The plaintiffs claimed, inter alia, that the Ordinance on its face violated federal and state constitutional guarantees of freedom of speech and requested the trial court to enter judgment to that effect and to enjoin the *278 enforcement thereof. [FN3] The plaintiffs and the defendants filed cross-motions for summary judgment, pursuant to C.R.C.P. 56. FN3. The plaintiffs also alleged that the Ordinance was vague, overbroad, and violated "the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution as well as Article II, Sections 10 and 25 to the Colorado Constitution...." The trial court's judgment is based on First Amendment analysis only, as developed by this court in 7250 Corp. v. Board of County Comm'rs, 799 P.2d 917 (Colo. 1990). Although the plaintiffs' briefs on appeal refer to Colorado constitutional provisions, in view of the posture of the case, we address only the issues determined by the trial court. The plaintiffs also sought damages and attorney fees. Questions pertaining to those issues are not before us. The trial court ultimately entered a three-page judgment in effect declaring three sections of the Ordinance and one section of the Code to be facially unconstitutional and declaring that the other sections of the Ordinance did not violate constitutional principles guaranteeing freedom of expression. [FN4] Relying on 7250 Corporation v. Board of County Commissioners, 799 P.2d 917 (Colo. 1990), and applying the criteria developed by the United States Supreme Court in United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968), the trial court concluded that the City had authority to enact the Ordinance, that except for the three sections thereof determined to be unconstitutional the provisions of the Ordinance are content-neutral and restrict expression in a reasonable manner in furtherance of a legitimate governmental interest, that the Ordinance provides reasonable time limits for application and appeal processes, and that the standards established by the Ordinance for suspending or revoking licenses are constitutionally adequate. FN4. The trial court granted the defendants' summary judgment motion in part and granted the plaintiffs' summary judgment motion only insofar as it sought a prohibition on the enforcement of "Sections 8-l-801(D), 8-9-105, and 8-9-112." Section 8-l-801(D) is not contained in the Ordinance. It is contained in the Code, and states in full as follows: D. The licensee or any agent or employee of such licensee has violated any law of the United States, of the State of Colorado or the City of Colorado Springs when such violation occurred on the licensed premises, or relates to conduct or activity of any business required to be licensed by this Chapter. (Ord. 75-164; Ord. 87-153; 1968 Code §5-42; 1980 Code) Colorado Springs, Co., Code § 8-l-801(D) (1980). In addressing the trial court's judgment, the defendants acknowledge that it in effect declares section 8-9-110(A)(3) of the Ordinance invalid, which section states in pertinent part as follows: A. In addition to the grounds set forth for suspension or revocation of a license in Section 8-1-801 of this Chapter, the Licensing Officer shall suspend a license for a period not to exceed six (6) months and may revoke a license if the Licensing Officer determines that a licensee or an employee of a licensee has: 1. Violated or is not in compliance with any Section of this Article; 2. Refused to allow an inspection of the sexually oriented business premises as authorized by this Chapter; or 3. Knowingly permitted any unlawful act upon the premises. Colorado Springs, Co., Code § 8-9-110(A) (1992). The plaintiffs' complaint sought a declaration that both provisions are constitutionally invalid. We agree that the trial court implicitly found section 8-9-110(A)(3) of the Ordinance to be invalid. II [1] The defendants contended at oral argument that the plaintiffs lack standing to challenge the facial validity of the Ordinance. We disagree. Section 8-9-109 of the Ordinance provides that each license expires one year from the date of issuance and may be renewed only by initiation of a new application. This licensing scheme, like the scheme at issue in City of Lakewood v. Plain Dealer Publishing Company, 486 U.S. 750, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988), is "sufficiently threatening to invite judicial concern ... [because] even if the government may constitutionally impose content-neutral prohibitions on a particular manner of speech, it may not condition that speech on obtaining a license or permit...." Id. at 760, 764, 108 S.Ct. at 2145, 2147 (emphasis in original); see also Suburban Video, Inc. v. City of Delafield, 694 F.Supp. 585, 592 n. 6 (E.D.Wis.1988). Because all of the plaintiffs are required to reapply annually for licenses, they have alleged sufficient damage to their First Amendment interests resulting from the *279 adoption of the Ordinance to challenge the facial validity of the Ordinance. See Perrine v. Municipal Court, 5 Cal.3d 656, 97 Cal.Rptr. 320, 322 n. 5, 488 P.2d 648, 650 n. 5 (1971); EWAP, Inc. v. City of Los Angeles, 97 Cal.App.3d 179, 158 Cal.Rptr. 579, 582 (1979). [FN5] FN5. The Ordinance arguably applies to some entities that promote obscene conduct not protected by the First Amendment or art. II, § 10, of the Colorado Constitution. However, plaintiffs' businesses engage in non- obscene sexually explicit expression, which conduct is constitutionally protected. Thus the plaintiffs have sufficient cognizable interests to pursue Page 10 their constitutional challenges. See Marco Lounge, Inc. v. City of Federal Heights, 625 P.2d 982, 985 (Colo. 1981) (live, nude entertainment); cf. Smith v. California, 361 U.S. 147, 150, 80 S.Ct. 215, 217, 4 L.Ed.2d 205 (1959) (bookstores); Young v. American Mini Theatres, Inc., 427 U.S. 50, 62, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310 (1976) (motion picture theaters). HI [2][3] Section 8-9-104(A) of the Ordinance provides that "[i]t shall be unlawful for any person to operate a sexually oriented business without a license issued by the licensing officer under the provisions of this Chapter." If no license is issued to an applicant, access by the public to that applicant's contribution to the "market place of ideas," see Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting), is denied. Because no alternative means of access to those ideas are available, the licensing provisions of the Ordinance constitute a prior restraint that subjects certain communications to governmental regulation in advance of the time that such communications are to occur. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 224-26, 110 S.Ct. 596,603-05, 107 L.Ed.2d 603 (1990) (plurality opinion). Governmental regulations that prohibit future dissemination of constitutionally protected speech constitute prior restraints. City of Lakewood v. Colfax Unlimited Ass'n, 634 P.2d 52 (Colo. 1981). [FN6] FN6. At oral argument the defendants conceded this characterization of the Ordinance. [4] Because governmental regulations establishing a system of prior restraint on constitutionally protected expression are presumed to be invalid, they must be measured by the strict scrutiny standard of review. Plain Dealer Publishing Co., 486 U.S. at 757, 108 S.Ct. at 2144; Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448 (1975); New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141-42, 29 L.Ed.2d 822 (1971); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 938-39, 22 L.Ed.2d 162(1969); Bantam Books, Inc. v. Sullivan, 372 Page 11 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963); Kunz v. New York, 340 U.S. 290, 293, 71 S.Ct. 312, 314-15, 95 L.Ed. 280 (1951); Cox v. New Hampshire, 312 U.S. 569, 574-75, 61 S.Ct. 762, 765, 85 L.Ed. 1049 (1941); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931). Application of this stringent standard of review to governmentally imposed systems of prior restraint is essential to ensure the continued vitality of the premise that in this society the ability to express ideas freely and without governmental censorship is a central component of our concept of ordered liberty. See Lovell v. Griffin, 303 U.S. 444, 451-52, 58 S.Ct. 666, 668-69, 82 L.Ed. 949 (1938). In addressing the question of whether the Ordinance constitutes a prohibited system of prior restraint, we must initially determine whether it contains adequate procedural safeguards to ensure that the licensing officer must determine whether to issue a license to an applicant within a defined period of time and that prompt judicial review of such determination is available. FW/PBS, 493 U.S. at 225-28, 110 S.Ct. at 604-06 (plurality opinion); Freedman v. Maryland, 380 U.S. 51, 58-60, 85 S.Ct. 734, 738-40, 13 L.Ed.2d 649 (1965). If such procedural safeguards are adequate, we must then determine whether there is a compelling government interest in establishing the licensing scheme and whether the criteria for issuing licenses established thereby are sufficiently narrow, objective and definite to prohibit the licensing officer from exercising unfettered discretion. Plain Dealer Publishing Co., 486 *280 U.S. at 757, 108 S.Ct. at 2144; Marco Lounge, 625 P.2d at 988. In FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (plurality opinion), the Supreme Court held a Dallas, Texas, sexually oriented business licensing ordinance to be unconstitutional on its face because it lacked necessary procedural safeguards to assure an absence of unfettered governmental censorship. The Dallas scheme regulated sexually oriented businesses by means of a combination of zoning, licensing, and inspection provisions. The plurality opinion in FW/PBS concluded that the Dallas ordinance was subject to analysis under the prior restraint criteria established by the Court in Freedman, 380 U.S. 51, 85 S.Ct. 734. FW/PBS, 493 U.S. at 227-30, 110 S.Ct. at 605-07 (plurality opinion). In Freedman, the Court held that a film censorship scheme must include three basic procedural safeguards to ensure expeditious governmental decision-making affecting freedom of expression interests: (1) any restraint prior to judicial review could only be imposed for a specified brief period during which the status quo must be maintained; (2) expeditious judicial review of the decision must be available; and (3) the censor must bear the burden of going to court to suppress the speech as well as the burden of proof once in court. Freedman, 380 U.S. at 58-59, 85 S.Ct. at 738-39. The FW/PBS plurality determined that because the Dallas ordinance did not authorize regulation of the content of any constitutionally protected speech, only the first two of the safeguards articulated in Freedman need be considered. FW/PBS, 493 U.S. at 228-30, 110 S.Ct. at 606-07 (plurality opinion). [FN7] The plurality also determined that when constitutionally protected speech is regulated a specific and brief time period for administrative action and prompt judicial review is an indispensable ingredient of any licensing program establishing general qualifications for applicants. The following portion of its opinion emphasizes this principle: FN7. Although the Court's opinion was fragmented, six justices agreed that the first two requirements in Freedman were applicable. See FW/PBS, 493 U.S. at 229-30, 110 S.Ct. at 606-07 (plurality opinion); see also id. at 238-39, 110 S.Ct. at 611-12 (Brennan, J., concurring in the judgment). The core policy underlying Freedman is that the license for a First Amendment-protected business must be issued within a reasonable period of time, because undue delay results in the unconstitutional suppression of protected speech. Thus, the first two safeguards are essential: the licensor must make the decision whether to issue the license within a specified and reasonable time period during which the status quo is maintained, and there must be the possibility of prompt judicial review in the event that the license is erroneously denied. Id. at 228, 110 S.Ct. at 606 (citing Freedman, 380 U.S. at 51, 85 S.Ct. at 734-35; Shuttlesworth, 394 U.S. at 155 n. 4, 89 S.Ct. at Page 12 941 n. 4; National Socialist Party of Am. v. Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977)). Other federal courts have acknowledged this basic policy. See, e.g., East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220, 224-25 (6th Cir.1995); 11126 Baltimore Blvd. Inc. v. Prince George's County, Md., 32 F.3d 109, 114 (4th Cir.1994); Redner v. Dean, 29 F.3d 1495, 1500 (llth Cir.1994); TK's Video, Inc. v. Denton County, Tex., 24 F.3d 705, 707-08 (5th Cir.1994); Graff v. City of Chicago, 9 F.3d 1309, 1323-25 (7th Cir.1993) (en bane); Mga Susu, Inc. v. County of Benton, 853 F.Supp. 1147, 1153 (D.Minn. 1994); Bukaka, Inc. v. County of Benton, 852 F.Supp. 807, 813 (D.Minn. 1993); Chesapeake B & M, Inc. v. HarfordCounty, Md., 831 F.Supp. 1241, 1247-50 (D.Md.1993); T.K.'s Video, Inc. v. Denton County, Tex., 830 F.Supp. 335, 345-47 (E.D.Tex. 1993). These principles of prior restraint analysis inform our initial review of the trial court's summary judgment. 1 [5] Section 8-9-105(A)(5) of the Ordinance provides that a license shall be issued to an applicant otherwise satisfying specific requirements of the Ordinance within thirty *281 days after receipt of the application unless the affected premises "have not been approved by the Fire Department, the Building Official of the Pikes Peak Regional Building Department and the Licensing Officer as being in compliance with applicable laws and ordinances." The plaintiffs note that the Dallas ordinance found unconstitutional in FW/PBS similarly provided that a license would be issued within thirty days of application unless one of several express conditions had not been satisfied, including the obtaining of approval from various municipal agencies. However, the Court concluded in FW/PBS that the Dallas ordinance impermissibly provided "no means by which an applicant may ensure that the business is inspected within the 30-day time period within which the license is purportedly to be issued if approved." FW/PBS, 493 U.S. at 227, 110 S.Ct. at 605 (plurality opinion). The Ordinance does define the time period within which administrative action must occur. Section 8-9-105(C) of the Ordinance requires that requisite fire and building inspections "shall [be completed] ... within twenty (20) days of receipt of the application by the licensing officer"; that certifications by such entities "shall be promptly presented to the Licensing Officer"; and that the licensing officer's inspections "shall be completed within thirty (30) days after the receipt of the application." Thus the Ordinance expressly limits the time within which all requisite inspections must occur to the thirty-day period during which the licensing officer must act. The plaintiffs assert that the Ordinance in effect provides no specific time period for initial administrative action because it provides no remedy in the event all inspections are not completed within the thirty-day time period established by section 8-9-105(A) or the licensing officer fails to act within that time period. The defendants assert that the Ordinance should be construed to require approval of an application if the inspections are not timely completed. That construction of the Ordinance best assures the protection of the plaintiffs' First Amendment interests and is consistent with the numerous requirements for expedited administrative action. See City of Lakewood v. Colfax Unlimited Ass'n, Inc., 634 P.2d 52, 64 n. 18 (Colo.1981). We therefore adopt the defendants' view and hold that an application for a license not acted upon by the licensing officer within thirty days of the receipt of the application must be deemed granted. ,[6] The plaintiffs also argue that the thirty-day period of time for initial administrative action established by the Ordinance is not sufficiently brief for purposes of prior restraint analysis. We disagree. The period of time is in our view reasonable in light of the overall scheme of the Ordinance. See FW/PBS, 493 U.S. at 229, 110 S.Ct. at 606-07 (plurality opinion). Section 8-9-104(D) of the Ordinance provides that an application for a sexually oriented business license must be accompanied by a zoning permit and that if "such permit is subject to appeal, no further action shall be taken upon such application until such appeal is finally adjudicated." Section 8-9- 105(A)(6) of the Ordinance provides in pertinent part as follows: A. The sexually oriented business shall be issued a license within thirty (30) days after receipt of an application [that satisfies relevant requirements] ... unless the Licensing Officer finds one or more of the following: Page 13 6. The applicant has not been issued a permit by the Zoning Administrator ... and that such permit, if issued, is not subject to appeal.... The plaintiffs argue that the period of time for obtaining a zoning permit is in reality unlimited for an unsuccessful applicant that must appeal an adverse zoning administrator decision and that therefore the period of time within which such persons or entities may obtain a sexually oriented business license is similarly unlimited. We disagree. It must first be noted that the requirement of obtaining a zoning permit is a prerequisite condition for obtaining a sexually oriented business license. The licensing authority must act within thirty days of receiving an application. The period of time necessary to comply with prerequisites to licensing, if not *282 itself excessive, does not render an otherwise acceptable time period unreasonably lengthy. We do not view the time period within which the zoning application permit process must be completed to be unreasonable. See, e.g., Redner, 29 F.3d at 1500 (forty-five-day period for administrator's decision to grant or deny license not unreasonable); TK's Video, 24 F.3d at 708 (sixty-day time period for review of licensing application for adult bookstore valid); Chesapeake B & M, 831 F.Supp. at 1249-50 (forty-four-day time period for review of adult bookstore licensing application not unreasonable); Wolff v. City of Monticello, 803 F.Supp. 1568, 1574 (D.Minn. 1992) (ninety-day time period for decision on adult bookstore license application not unreasonable); but see 11126 Baltimore Blvd., 32 F.3d at 116 (150-day time period for administrative decision invalid). Section 14.1-ll-103(d) of the Colorado Springs Zoning Ordinance requires the zoning administrator to approve or deny a zoning permit application within ten working days of the submittal. Thus, assuming a zoning permit is granted, an applicant for a sexually oriented business license will be entitled to a decision on the application within forty days from the date that the request for a zoning permit is filed. Section 8-9-104(D) of the Ordinance provides that in the event an applicant elects to appeal a decision of the zoning administrator, whether because the zoning permit requested is denied, because the zoning permit is deemed inadequate, or for any other reason, "no further action shall be taken upon such application until such appeal is finally adjudicated. " Thus, when the applicant decides to appeal an adverse zoning administrator decision, the process of licensure is tolled by means of the applicant's decision. To conclude, as the plaintiffs do, that the voluntary choice of an applicant to appeal a zoning classification renders the licensing scheme itself unconstitutional because there is no specified time limit for the completion of such appeal process ignores the fact that the time limit specified by the Ordinance for final action by the licensing officer remains intact. The amount of time consumed by the process of judicial review of an adverse zoning administrator determination will also depend in large part on the conduct of the applicant. [7] The plaintiffs contend that the Ordinance is facially invalid because it does not require prompt judicial review of decisions of the licensing officer. We disagree. Section 8-9-105(D) provides that applicants denied a license may appeal such decisions. Sections 8-1-601(8) through -601(D) of the Code establish procedures for such appeals, as follows: B. If the Licensing Officer shall not so find he shall thereupon deny such application and notify the applicant of the denial by serving upon the applicant personally a copy of such denial and the reasons supporting such denial or by mailing the same to him by registered or certified mail at the business address shown on the application. C. Any applicant aggrieved by any final order of the licensing officer after the denial of such application shall have the right to appeal to the City Council by filing a written appeal, stating the grounds thereof, with the City Clerk within ten (10) days following the date of denial of said application. D. In the event an appeal is timely filed, it shall be heard at the next regular City Council meeting occurring at least ten (10) days after said filing with the City Clerk. Review by Council shall be a de novo hearing. Section 8-1-808 of the Code contains the following provisions: A. The decision of the City Council in all cases shall be final and conclusive and shall be served upon the licensee by personal service, by registered or certified mail, or by posting as provided in Section 8-1-804 of this Chapter. B. A decision of City Council is reviewable Page 14 only by Court under Colo.R.Civ.P. 106(a)(4). There shall be no stay of execution pending a review by the Court except by Court order. *283 The following portions of C.R.C.P. 106(a)(4) are also relevant to consideration of the plaintiffs' arguments: (a) ... In the following cases relief may be obtained in the district court.... (4) Where any governmental body ... exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy otherwise provided by law: (I) Review shall be limited to a determination of whether the body or officer has exceeded its jurisdiction or abused its discretion, based on the evidence in the record before the defendant body or officer. (V) The proceedings before or decision of the body or officer may be stayed, pursuant to Rule 65 of the Colorado Rules of Civil Procedure. (VIII) The court may accelerate or continue any action which, in the discretion of the court, requires acceleration or continuance. [FN8] FN8. We have recognized that parties may challenge the constitutionality of ordinances as applied in C.R.C.P. 106(a)(4) review proceedings. Tri- State Generation and Transmission Co. v. City of Thornton, 647 P.2d 670, 676 n. 7 (Colo. 1982). The plaintiffs initially argue that the Ordinance does not authorize any judicial review process for licensing officer denial of license applications because section 8-1-808 of the Code is located in that portion of the Code dealing with suspension and revocation procedures. We reject this narrow construction of the Ordinance and the Code. The Ordinance is designed to ensure rapid and adequate judicial review of license applications as well as license suspensions and revocations. The only provisions of the Code defining appeal procedures in the City Council are established by Part 8 thereof. Section 8-l-808(A) applies to "all" cases under the Code. Section 8-1-808(6) authorizes judicial review of every decision of the City Council. Moreover, sections 8-1 -602(C) and (D) of the Code expressly establish the right of an applicant to appeal the denial of any license application to the City Council. When considered together, part 6 and part 8 of the Code provide that an unsuccessful applicant for a sexually explicit business license may appeal that determination pursuant to section 8-1-808 thereof. The plaintiffs contend that the procedures provided by section 8-1-808 of the Code and C.R.C.P. 106(a)(4) do not withstand prior restraint analysis because they do not establish a mandatory mechanism to preserve the status quo for the shortest fixed period compatible with sound judicial resolution and do not "minimize the deterrent effect of an interim and possible erroneous denial of a license." Freedman, 380 U.S. at 59, 85 S.Ct. at 739. We disagree. In Fernandes v. Limmer, 663 F.2d 619, 628 (5th Cir. 1981), cert, dismissed, 458 U.S. 1124, 103 S.Ct. 5, 73 L.Ed.2d 1395 (1982), the Fifth Circuit Court of Appeals observed that "to an unsuccessful permit applicant, the unavoidable delay posed by judicial review is tantamount to an effective denial of First Amendment rights." In Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975), and in National Socialist Party v. Village of Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977), the Supreme Court recognized that in the absence of a stay of an adverse determination, persons may be forced to abandon constitutionally protected rights to freedom of expression during the period of time necessary to complete appellate judicial review of such adverse determination. In Conrad, the Court held that the denial by municipal licensing authorities of a promoter's application to present scheduled performances of the musical "Hair" based on the content of the production constituted a prior restraint and that the procedures for appellate review available to the promoter were inadequate to obviate the dangers of censorship. Conrad, 420 U.S. at 562, 95 S.Ct. at 1249. In Skokie, the Court concluded that in the absence of a stay of an initial injunction prohibiting a controversial march by a political group or of an expedited review of such injunctive order, *284 the injunction constituted an impermissible prior restraint on the First Amendment rights of the group. Skokie, 432 U.S. at 44, 97 S.Ct. at 2206. The availability of an expedited procedural mechanism to stay adverse administrative Page 15 decisions assures that an applicant's ability to exercise constitutionally protected rights of expression are not unreasonably restrained. Such procedures preserve the status quo of the parties. See FW/PBS, 493 U.S. at 228, 110 S.Ct. at 606 (plurality opinion). In some circumstances an adverse administrative decision would not alter the status quo of the parties. The Ordinance distinguishes between applicants seeking new licenses and applicants appealing the suspension or revocation of previously issued licenses. In the former case, the sexually oriented enterprise will not open for business because no license will have been issued. "The status quo for a business seeking a permit to begin operating a sexually oriented business ... is non-operation. The city, therefore, does not need to allow operation pending review." East Brooks Books, 48 F.3d at 225; accord TK's Video, 24 F.3d at 708 (an applicant for a license not in business when the licensing regulations were adopted is not free to operate while its license is pending). However, if the sexually oriented business is operational, preservation of the status quo will in all probability require that the suspension or revocation be stayed pending final judicial resolution on the merits. TK's Video, 24 F.3d at 708 ("Maintaining the status quo means in our view that the County cannot regulate an existing business during the licensing process."). We conclude that C.R.C.P. 106(a)(4) provides adequate procedural safeguards. The rule authorizes district courts to enter orders staying the effect of decisions of the licensing officer and the city council. Although in some circumstances an applicant may be entitled to a judicial order staying such decisions even before filing a C.R.C.P. 106 claim, such a stay will not be required in every case. The provisions of C.R.C.P. 106(a)(4)(V) and C.R.C.P. 106(a)(4)(VIII) establish procedures for both a stay of the effect of an adverse decision and expedited review thereof. [FN9] Under these circumstances, we conclude that C.R.C.P. 106 and the Ordinance provide adequate safeguards to ensure that any impermissible prior restraint on a particular applicant's protected rights of free speech may be remedied promptly by judicial intervention. FN9. The following provisions of C.R.C.P. 65 are relevant to this analysis: (a) Preliminary Injunction. (1) Notice. No preliminary injunction shall be issued without notice to the adverse party. (2) Consolidation of Hearing with Trial on Merits. Before or after the commencement of the hearing on an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon a trial on the merits becomes part of the record on the trial and need not be repeated upon the trial, this subsection (a)(2) shall be so construed and applied as to save the parties any rights they may have to trial by jury. C.R.C.P. 65. The purpose of the preliminary injunction under C.R.C.P. 65 is to preserve the "status quo" or protect rights pending the final determination of a cause. Combined Communications Corp. v. City & County of Denver, 186 Colo. 443, 528 P.2d 249 (1974). While this rule provides that no restraining order or preliminary injunction shall issue without notice, except under certain situations, and that an early hearing shall be provided, no such conditions appear in C.R.C.P. 106. PII of Colo., Inc. v. District Court, 197 Colo. 239, 591 P.2d 1316 (1979). We also conclude that C.R.C.P. 106(a)(4)(V) and C.R.C.P. 106(a)(4)(VIII) provide "an avenue for prompt judicial review so as to minimize suppression of the speech in the event of a license denial. " FW/PBS, 493 U.S. at 229, 1 10 S.Ct. at 606 (plurality opinion). The provisions of C.R.C.P. 106(a)(4)(VIII) specifically authorize a district court to accelerate or continue any action, and, as indicated, C.R.C.P. 106(a)(4)(V) authorizes a district court to stay any decision to deny, suspend, or revoke a license. These provisions are adequate to withstand the plaintiffs' facial challenge to the Ordinance. [FN10] FN10. The Court has not clarified what constitutes reasonably rapid judicial review. A five-month period for judicial review was determined to be inadequate to satisfy Freedman safeguards in Conrad, 420 U.S. at 562. The Court has also indicated that an appellate review process of over one year is not prompt, and in the absence of immediate appellate review, "the State must instead allow a stay." Skokie, 432 U.S. at 44, 97 S.Ct. at 2206. In United States v. Thirty-Seven Photographs, 402 U.S. 363, 371-74, 91 S.Ct. 1400, 1405-07,28 L.Ed.2d 822 (1971), the Court construed a federal statute imposing a prior restraint to require that judicial review be sought within 14 days and concluded that delays of between 40 days and six months could not be sanctioned. The Eleventh Circuit Court of Appeals has stated that the Court has "implied that a state's statutory or common-law mechanisms for review of administrative decisions [do] not satisfy the procedural requirements of Freedman." Redner, 29 F.3d at 1501 n. 9. Other circuit courts of appeal follow this track in interpreting the Freedman prompt judicial review requirement. See East Brooks Books, 48 F.3d at 224-25; 11126 Baltimore Blvd., 32 F.3d at 116-17; Redner, 29 F.3d at 1501-02 n. 9. Another track seems to indicate that common-law writ of certiorari is a sufficient procedural safeguard, Graff, 9 F.3d at 1324-25, and that the state must only offer a fair opportunity to complete the administrative process and access to the courts within a brief period, not that the total licensing process including judicial review must be completed within a brief period. TK's Video, 24 F.3d at 709. *2853 [8] The plaintiffs argue that the Ordinance impermissibly fails to require the licensing authority to prove that particular material or conduct is unprotected and to initiate review proceedings in the event an application is denied or a license is suspended, revoked or not renewed. We do not agree. The Ordinance establishes specific, objective criteria that define the basis for any decision by the licensing authority. See Part III B, infra. Thus, the licensing authority is not authorized to evaluate the content of any book, movie, production, or work of art. These circumstances are far removed from the censorship conditions Page 16 underlying the Freedman and Conrad decisions upon which the plaintiffs rely. See FW/PBS, 493 U.S. at 228, 110 S.Ct. at 606 (plurality opinion). As we have noted in Part III A 2, supra, the Ordinance, in conjunction with C.R.C.P. 106(a)(4), provides any person or entity aggrieved by a decision of the licensing officer the opportunity to obtain prompt administrative and judicial review thereof and to request a stay of any administrative order that arguably constitutes a prior restraint of protected expression. B We have concluded that applicants for licenses under the Ordinance are provided with adequate administrative and judicial procedural safeguards. We must next determine whether the Ordinance serves a compelling governmental interest and, if so, whether the criteria established by the Ordinance for issuing licenses are sufficiently narrow, objective, and definite to prohibit the licensing officer from exercising unfettered discretion that may result in censorship of constitutionally protected expression. Plain Dealer Publishing Co., 486 U.S. at 757, 108 S.Ct. at 2144; Marco Lounge, 625 P.2d at 988; see FW/PBS, 493 U.S. at 225-26, 110 S.Ct. at 604-05 (plurality opinion). [FN11] FN11. As we stated in City of Lakewood v. Colfax Unlimited Ass'n, Inc., 634 P.2d52, 64 n. 18 (Colo. 1981): Although under some circumstances public expression may be regulated by a narrowly drawn governmental licensing scheme, see Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976), the viability of any legislation which predicates eligibility for a license or permit on the content of the message sought to be conveyed is highly questionable. See Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); see also Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980). The principle that constitutionally protected expression, however objectionable or offensive, cannot be prohibited by governmental authority is grounded in the recognition that "[ujniversal experience has shown that such freedom [of expression] is necessary to the perpetuation of Page 17 our system of government in its integrity " Cooper v. People ex rel. Wyatt, 13 Colo. 337, 367, 22 P. 790, 799 (1889). As the Supreme Court observed with respect to arguably offensive political speech: Madison, who was the leading spirit in the preparation of the First Amendment of the Federal Constitution, thus described the practice and sentiment which led to the *286 guarantees of liberty of the press in state constitutions: "[ ] ... Some degree of abuse is inseparable from the proper use of everything, and in no instance is this more true than in that of the press. It has accordingly been decided by the practice of the states, that it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits...." Near v. Minnesota, ex rel. Olson, 283 U.S. 697, 717-18, 51 S.Ct. 625, 631- 32, 75 L.Ed. 1357 (1930) (citing Report on the Virginia Resolutions, Madison's Works, vol. iv, 544); see Schneider v. State, 308 U.S. 147, 161-64, 60 S.Ct. 146, 150-52, 84 L.Ed. 155 (1939). We have recognized that not all forms of expression enjoy the same level of constitutional protection afforded political speech. 7250 Corp. v. Board of County Comm'rs, 799 P.2d 917, 922 (Colo. 1990); see Young v. American Mini Theatres, 427 U.S. 50, 70, 96 S.Ct. 2440, 2452, 49 L.Ed.2d 310 (1976) (plurality opinion). However, certain avenues of regulation of constitutionally protected expression are foreclosed by the very framework of the Constitution. For example, regulation designed to control the divisive effects of speech is generally thought to be permissible, while regulation seeking to remove the cause of such effects is not. [FN12] FN12. James Madison expressed this view as follows: There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects. There are again two methods of removing the causes of faction: the one by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions.... It could never be more truly said than of the first remedy, that it is worse than the disease. Liberty is to faction, what air is to fire, an aliment without which it instantly expires. But it could not be a less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency. The second expedient is as impracticable, as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed.... The inference to which we are brought, is, that the causes of faction cannot be removed; and that relief is only to be sought in the means of controlling its effects. The Federalist No. 10, at 58-60 (James Madison) (J. Cooke, ed. 1961) (emphasis in original). Section 8-9-105(A) of the Ordinance provides that a sexually oriented business license shall issue within thirty days of receipt of the application unless the licensing officer finds the presence of one or more of the following six provisions, in which case the license must be denied: (1) an applicant is under twenty-one years of age; (2) the applicant is not of good moral character; (3) the applicant is overdue in payment of taxes, fees, fines, or penalties; (4) the applicant has not provided all information reasonably necessary or falsely answered a question on the application form; (5) the premises has not been approved by the fire, building, and licensing inspections; and (6) the applicant has not been issued a zoning permit that is not subject to appeal. The Ordinance also prohibits persons under twenty-one years of age from becoming customers of sexually explicit business licensees. The trial court, applying the United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), test of intermediate scrutiny that we adopted in 7250 Corporation, found that the age and good moral character requirements of the Ordinance exceeded the scope necessary to further the governmental interest. The trial court also held that section 8-l-801(D) of the Code, authorizing suspension of a license for violation on the premises by any licensee, agent or employee, of any law of the United States, the State of Colorado, or the City of Colorado Springs, violated First Amendment constitutional standards. We affirm these conclusions, though on grounds different from those relied upon by the trial court, with the exception of the conclusion that the age limitations contained in the Ordinance are unenforceable with respect to licensees offering live, nude dancing performances. We reverse the trial court's judgment in that respect. 1 In 7250 Corporation, we applied the O'Brien test in concluding that a county ordinance imposing a minimum age restriction of twenty-one years on employees and customers *287 of commercial nude dancing establishments did not violate First Amendment standards. We applied this intermediate level of scrutiny because of our determination that the expressive component of this constitutionally protected mode of expression is "secondary to the conduct itself, and, as such, cannot be considered one of the more traditional forms of expression at the core of the Free Speech Clauses of the United States or Colorado Constitution." 7250 Corp., 799 P.2d at 922. The combination of "speech" and "nonspeech" elements in the same course of conduct is a form of expression entitled to some degree of constitutional protection, but "[a]s the mode of expression moves from pure speech to conduct, however, the scope of permissible state regulation increases." Id. Based on this more deferential intermediate standard of review accorded expressive conduct, we held as follows: In light of the evidence concerning reported property destruction and criminal activity associated with nude entertainment establishments, we may reasonably presume that the age restrictions in the ordinance reflect a legitimate legislative judgment by the county commissioners that youths under 21 years of age should be protected from the potentially harmful consequences associated with such establishments. We are loath to second guess the county commissioner's judgment in this respect. Id. at 926 (footnote and citations omitted). [9][10] The trial court correctly perceived that the Ordinance has a much broader scope than the county regulation at issue in 7250 Corporation. The Ordinance regulates all sexually oriented businesses, not just nude dancing establishments. This distinction is important because expression that does not involve conduct receives a greater degree of protection than does expression that is "mixed" with conduct. Book stores, video stores, and movie theaters stand on a different First Amendment footing than do nude dancing Page 18 establishments. We reaffirm our holding in 7250 Corporation that twenty- one-year-old age limitations are reasonable regulations with regards to live, nude dancing establishments. However, establishments that do not provide live, nude entertainment present a different question because there is no conduct involved in the expression that is sought to be regulated. The City argues that the twenty-one-year-old age requirement reflects a reasonable legislative judgment that persons under the age of twenty-one should be protected from the potentially harmful consequences of sexually oriented businesses. [FN13] This argument is based on the assumption that adults under twenty-one years of age are more likely to be adversely affected by prostitution and solicitation than are other adults. However, the City produced no evidence to support that assumption. Moreover, for purposes of prior restraint analysis, it is not enough that the government's ends are compelling; the means selected to further those ends must be narrowly tailored. See Sable Communications of Cal., Inc. v. F.C.C., 492 U.S. 115, 126, 109 S.Ct. 2829, 2836-37, 106 L.Ed.2d 93 (1989) (statute designed to protect children from exposure to indecent dial-a-porn messages not sufficiently narrowly drawn since it denied adults their free speech rights by allowing them access only to what was acceptable for children). Assuming arguendo that the governmental interest in protecting eighteen to twenty year old adults is identical to the governmental interest in protecting minors, seeking to protect persons who may be particularly vulnerable from the secondary effects of a specified category of speech is not a permissible avenue of regulation. R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, —, 112 S.Ct. 2538, 2549, 120 L.Ed.2d 305 (1992). The court stated in R.A.V.: FN13. The City compares this decision to protect persons between 18 and 20 years of age from sexually explicit speech to governmental judgments as to the appropriate age for other activities including driving, sexual relations, and the consumption of alcoholic beverages. This analogy is inapposite, however, because these activities involve only conduct, not constitutionally protected expression. As [the United States Supreme Court] said in Page 19 Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988), "[listeners' reactions to speech are not the type of 'secondary effects' we referred to in Renton." Id., at 321, 108 S.Ct., at 1163-1164. *288 "The emotive impact of speech on its audience is not a 'secondary effect.' " Ibid. See also id., at 334, 108 S.Ct. at 1170-1171. (opinion of Brennan, J.). R.A.V., 505 U.S. at —, 112 S.Ct. at 2549 (footnote omitted). As Justice O'Connor wrote in Boos: [I]f the ordinance ... was justified by the city's desire to prevent the psychological damage it felt was associated with viewing adult movies, then analysis of the measure as a content-based statute would [be] appropriate. The hypothetical regulation targets die direct impact of a particular category of speech, not a secondary feature that happens to be associated with that type of speech. Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 1163-64,99 L.Ed.2d 333 (1988) (plurality opinion). "[B]ecause non-obscene, sexually explicit materials involving persons over the age of 17 are protected by the First Amendment," United States v. X-Citement Video, Inc., — U.S. —, —, 115 S.Ct. 464, 469, 130 L.Ed.2d 372 (1994) (citing Alexander v. United States, 509 U.S. 544, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993), slip op. at 4-5; Sable Communications of Cal., Inc. v. F.C.C., 492 U.S. 115, 126, 109 S.Ct. 2829, 2836-37, 106 L.Ed.2d 93 (1989); FW/PBS, Inc. v. Dallas, 493 U.S. 215, 224, 110 S.Ct. 596, 603-04, 107 L.Ed.2d 603 (1990) (plurality opinion); Smith v. California, 361 U.S. 147, 152, 80 S.Ct. 215, 218, 4 L.Ed.2d 205 (1959)), there can be no doubt that 18 to 20 year olds fall within our constitutional command that "every person shall be free to speak," Colo. Const, art. II, § 10 (emphasis added). While the City may in some manner directly regulate the harmful consequences of expression, it may not generally prohibit the availability of all such expression to a class of adults. We thus conclude that sections 8-9-105(A)(l) and 8-9-112 of the Ordinance are not narrowly tailored to further the government's purpose, except with respect to licensees presenting live nude entertainment. [11] Section 8-9-105(A)(2) provides that a license application shall be denied if "[t]he applicant is not of good moral character." For purposes of this section, a person who has been convicted of any felony or crime of moral turpitude is not a person of good moral character. Observing that the interest being addressed by this section "would not be furthered by denying a license to a person convicted of the felony of driving after judgment prohibiting," the trial court held that the section exceeded the scope necessary to further the asserted governmental interests in reducing crime, disease, and urban blight. The City contends that this requirement reflects a reasonable legislative judgment that persons of bad moral character are more likely to engage in or tolerate criminal activities. We disagree. [12] While it is true, as the City points out, that character checks are required in other licensed activities, the extent to which a licensing authority may exercise discretion in the granting or withholding of a license depends upon the type of business or vocation which is involved. However, even when the character of an applicant is properly subject to evaluation by a licensing authority, the standards for excluding persons from engaging in the licensed activity must bear a reasonable relationship to the qualifications to engage in that activity. Schware v. Board of Bar Exam'rs, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957). [13][14] Governmental decisions to license activities protected by the First Amendment must be narrowly tailored to ensure the absence of censorship. "Although a municipality may enact regulations in the interest of the public safety, health, welfare or convenience, these may not abridge the individual liberties secured by the Constitution to those who wish to speak, write, print or circulate information or opinion." Schneider v. State, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939). A licensing provision prohibiting the ability of an applicant to engage in commercial activities protected by the First Amendment on the basis of prior misconduct can be sustained only on the basis of evidence that serious criminal conduct would result from granting that license. Criminal laws are particularly designed to effectuate that deterrent purpose. When faced with a *289 similar ordinance, the California Supreme Court stated as follows: No such clear and present danger appears. We cannot assume that because [an applicant] was once convicted . . . [the applicant will violate the law] again, or that if [the applicant] does so, criminal sanctions will not afford an adequate remedy.... To interpret the ordinance in this case to permit denial of a license because of a past conviction ... would do more than create a hazard to protected freedoms; it would suppress them all together. Perrine v. Municipal Court, 5 Cal.3d 656, 97 Cal.Rptr. 320, 488 P.2d 648, 653 (1971) (denial of license for bookstore upon the ground of prior criminal conviction invalid prior restraint); accord Alexander v. City of St. Paul, 227 N.W.2d 370 (Minn. 1975) (movie theater operation); Seattle v. Bittner, 81 Wash.2d 747, 505 P.2d 126 (1973) (same). In general, constitutionally protected expression cannot be prohibited on the basis of discretionary evaluation of the character of the commentator. See Near, 283 U.S. at 720, 51 S.Ct. at 632 ("If, however, the publisher has a constitutional right to publish, without previous restraint... [h]e does not lose his right by exercising it."); Schneider, 308 U.S. at 158, 60 S.Ct. at 149 (municipal ordinance prohibiting solicitation and distribution of circulars unless licensed by the police after an inquiry into applicants "good character" invalid prior restraint and censorship); Staub v. City of Baxley, 355 U.S. 313, 321, 78 S.Ct. 277, 281-82, 2 L.Ed.2d 302 (1958) (ordinance invalid on its face because it conditions enjoyment of the constitutionally guaranteed freedom of speech upon discretion of Mayor and City Council to consider "the character of the applicant" and the effects of solicitation upon "the general welfare" of the city, and thereby constitutes an invalid prior restraint); Organization for a Better Austin v. Keefe, 402 U.S. 415, 418-19, 91 S.Ct. 1575, 1577-78, 29 L.Ed.2d 1 (1971) (injunction which suppresses, "on the basis of previous publications" distribution of literature invalid prior restraint); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 153, 89 S.Ct. 935, 940, 22 L.Ed.2d 162 (1969) ("[A] municipality may not empower its licensing officials to roam essentially at will, dispensing or withholding permission to speak ... according to their own opinions regarding the potential effect of the activity in question on the 'welfare,' 'decency,' or'morals'of the community."); Conrad, 420 U.S. at 555, 95 S.Ct. at 1244-45 (denial of application in anticipation that the production would violate the law gave public officials the power to deny use of a forum in advance of actual expression and thus is an impermissible prior restraint); Vance v. Universal Amusement Co., 445 U.S. 308, 311 n. 3, 100 S.Ct. 1156, 1159 n. 3, 63 L.Ed.2d 413 (1980) (nuisance Page 20 statute construed as authorizing state judges to enjoin future exhibition of films not yet found to be obscene on basis of a showing that a theater exhibited obscene films in the past is unconstitutional as authorizing an invalid prior restraint. "[T]he state made the mistake of prohibiting future conduct after a finding of undesirable present conduct. When that future conduct may be protected by the first amendment, the whole system must fail...."). In this case, the City offered no evidence to suggest that persons convicted of serious traffic infractions are likely to commit the pernicious criminal conduct it properly seeks to contain. Criminal sanctions also prevent such future criminal conduct. The licensing provision sweeps too broadly, as the trial court concluded. Section 8-9-104(E) provides that the applicant and every person who has a five percent or greater interest in the business, company, or corporation "must sign the application for a license." Sections 8-9-106 and 8-9-107 require that managers and employees be registered with the licensing officer. The trial court held that "[i]t is reasonable and necessary that the government know ... the names and addresses of the owners and managers in order to enforce the ordinance." Although the City is not seeking a list of the patrons or members of an organization, cf. N.A.A.C.P. v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), disclosure of the requested information could result in chilling constitutionally protected expression. Because these disclosure provisions constitute conditions precedent to obtaining a license, *290 they are subject to strict scrutiny analysis. See Buckley v. Valeo, 424 U.S. 1, 64, 96 S.Ct. 612, 656, 46 L.Ed.2d 659 (1976). The City asserts two interests in support of these disclosure requirements: the need to prevent persons of bad moral character from engaging in a business associated with criminal activity, and to ensure that these individuals can be located, identified, and prosecuted in the event any violation of the provisions of the Ordinance occurs. As we have noted, the exercise of First Amendment rights cannot be curtailed on the basis of the communicator's general moral character. However, the City's interest in accountability after a violation of the Ordinance has occurred is significant. Thus the question Page 21 becomes whether the information sought is narrowly tailored and sufficiently related to the City's interest in enforcing the Ordinance. [15] Section 8-9-104(E) of the Ordinance provides as follows: If the applicant is an individual, that person must sign the application for a license. If the applicant is other than an individual, every person who has a five percent (5%) or greater interest in the business must sign the application for a license. If the applicant is a corporation, every person owning five percent (5%) or more of the outstanding shares of any class of stock, all officers, and all directors of the corporation must sign the application for a license. If the applicant is a limited liability company, every member holding a five percent (5%) or greater interest in the company and every manager must sign the application for a license. We conclude that with the exception of the requirement that stockholders of a corporate applicant sign the application, the provisions of section 8-9-104(E) of the Ordinance are constitutionally appropriate. Because stockholders of a corporation are not in a position to carry out corporate policies or to respond promptly to notification of an Ordinance violation, the requirement that they sign an application is not justifiable. Acorn Inv., Inc. v. City of Seattle, 887 F.2d 219, 226 (9th Cir. 1989). The Ninth Circuit Court of Appeals addressed this issue as follows: Because officers and directors, not shareholders, are legally responsible for the management of a corporation's business, we fail to see how the city's interest in accountability is served by notifying shareholders [of violations of the ordinance]. These are management, not shareholder, concerns. If panorama booths fail to comply with the ordinance, the City is free to take appropriate enforcement action against the corporation and its officers and directors. The most obvious remedy available to the City is to put the corporation out of the panorama business by revoking its city licenses. In the end, the shareholders will be held accountable in the only way they can be held accountable—through a diminution of the value of their stock. But that will happen automatically whether or not their names are disclosed to the City. In short, there is no logical connection between the City's legitimate interest in compliance with the panorama ordinance and the rule requiring disclosure of the names of shareholders. Id. at 226; see also T.K.'S Video, Inc. v. Denton County, Tex., 830 F.Supp. 335, 343 (E.D.Tex. 1993); Ellwest Stereo Theater, Inc. v. Boner, 718 F.Supp. 1553, 1565-67 (M.D.Tenn. 1989). We agree with the reasoning of Acorn Investments. We therefore reverse that portion of the trial court's judgment concluding that the provisions of section 8-9-104(E) of the Ordinance are enforceable as to stockholders of license applications. [16] Section 8-9-106(C) of the Ordinance provides that "[t]he Licensing Officer shall register a manager if all of the requirements for a license as set forth under parts (3) and (4) of Article 1 of this Chapter and section 8-9- 105 of this Chapter are met." We have concluded that the character and age restrictions contained in sections 8-9-105(A)(l) and 8-9-105(A)(2) of the Ordinance are unenforceable. Thus they cannot be enforced with respect to managers. Although the precise provisions of parts (3) and (4) of the Code were not included in the record on appeal, they appear generally to establish requirements and application procedures for all licenses. Section 8-l-401(A) of the Code requires applicants to be of "good moral *291 character." For the reasons previously indicated, we conclude that this section violates constitutional prohibitions against prior restraints and may not be applied to applicants for licenses governed by the Ordinance. Cf. Genusa v. City of Peoria, 619 F.2d 1203, 1216 (7th Cir. 1980). [17] Section 8-9-107 of the Ordinance provides for employee registration as follows: "Each licensee will provide to the Licensing Officer the full name, aliases if any, address, telephone number and date of birth of any employee within five (5) days of employment." This information is reasonably necessary to effectuate the objectives of the Ordinance of suppressing criminal conduct. Ellwest Stereo Theater, 718 F.Supp. at 1566. While the requirement of the disclosure of aliases is problematical, the City's need to notify license holders if employees violate provisions of the Ordinance is of sufficient concern to justify such requirement. But see Genusa, 619 F.2d at 1216 ("The alias disclosure requirement involves an invasion of privacy not justified by the [governmental] interest and is not otherwise justified. It is therefore invalid."). Page 22 At oral argument, plaintiffs' counsel asserted that section 8-9- 105(A)(4) of the Ordinance impermissibly failed to establish any scienter requirement in authorizing denial of a license ifn[a]n applicant has failed to provide information reasonably necessary for issuance of the license or has falsely answered a question or request for information on the application form." However, the plaintiffs did not raise this issue in their briefs and the record on appeal does not contain other portions of the Code that may relate to general requirements applicable to all license applicants. Under these circumstances, we do not address this argument. [18] Section 8-9-105(A)(3) of the Ordinance authorizes denial of a license application for failure to pay certain City assessments. Sections 8-9- 105(A)(5) and -105(A)(6) require prior compliance with fire, building, and zoning procedures. These ministerial requirements do not grant broad discretion to the licensing officer and are narrowly tailored to further the City's interest in ensuring safe facilities and preventing neighborhood blight. See Alexander, 227 N.W.2d at 373 n. 7; Bittner, 505 P.2d at 133 (Finley, J., concurring); Perrine, 488 P.2d at 652 n. 9. We reject the plaintiffs' arguments that these Ordinance provisions constitute impermissible prior restraints of constitutionally protected activity. [19] Section 8-9-108 of the Ordinance authorizes inspections for the "purpose of ensuring compliance" with the law. Such inspections must be conducted in a "reasonable manner and only as frequently as may be reasonably necessary." Colorado Springs, Co., Code § 8-9-108 (1992). Section 8-9-110(A) of the Ordinance provides for the suspension or revocation of a license for a period not to exceed six months if the licensing officer determines that a licensee or an employee of a licensee has violated or is not in compliance with the Ordinance; has refused to allow an authorized inspection of the premises; or has knowingly permitted any unlawful act upon the premises. Section 8-9- 110(B) establishes eighteen aggravating and mitigating circumstances for consideration by the licensing officer in exercising the authority established by section 8-9-110(A). The City has a substantial interest in ensuring compliance with the Ordinance, and inspections are well suited to such a task. The City also has a substantial interest in preventing unlawful conduct on the premises. The guidelines established by section 8-9-110(8) narrow the authority granted by section 8-9-110(A) and thus limit the discretion of the licensing officer. We reject the plaintiffs' arguments that these provisions are not sufficiently tailored to further the admittedly substantial governmental interests of the City. [20][21][22] Section 8-9-111 of the Ordinance requires mandatory license revocation for one year if one of the following six factors is found by the licensing officer to exist: 1. A license has previously been suspended within the preceding twelve (12) months; *292 2. A licensee gave false information in the material submitted to the Licensing Officer; 3. A licensee or employee has knowingly allowed possession, use, or sale of controlled substance [sic] as defined in Part 3 of Article 22 of Title 12 C.R.S. on the premises; 4. A licensee or an employee has knowingly allowed prostitution on the premises; 5. A licensee or an employee knowingly operated the sexually oriented business during a period of time when the license was suspended; or 6. Excluding conduct within a private room of an adult motel, a licensee or employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or other sexual conduct to occur on the premises. The First Amendment does not bar enforcement of regulations directed at unlawful conduct that manifests no element of protected expression. Arcara v. Cloud Books, Inc., 478 U.S. 697, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986). A business engaging in constitutionally protected activities does not enjoy First Amendment immunity from criminal prosecution. O'Connor v. City and County of Denver, 894 F.2d 1210, 1220 (10th Cir.1990) (First Amendment not implicated by closure of theaters which exhibited sexually explicit movie picture films where theaters were closed because of a significant number of acts of public indecency occurring on their premises). These provisions of the Ordinance are specific and narrow in scope. They limit the discretion of the licensing officer to revoke a license, and, in our view, do not constitute prior restraints. Furthermore, as we note below, the provisions of the Ordinance related to suspension and revocation of issued licenses are more appropriately viewed as time, place, and manner restrictions. Page 23 In summary, we conclude that the age limitations contained in sections 8-9- 105(A)(1) and 8-9-112, except as they are directed at licensees presenting live, nude entertainment; the disclosure provisions of section 8-9-104(E) as applied to corporate shareholders; and the good moral character provisions contained in section 8-9-105(A)(2) of the Ordinance and section 8-l-801(D) of the Code constitute invalid prior restraints and are not enforceable. The remaining portions of the Ordinance do not constitute prior restraints on constitutionally protected expression or conduct. IV The plaintiffs argue alternatively that the Ordinance is a content-based regulation, that it does not serve a compelling state interest, and that it is not narrowly drawn to accomplish any such purpose. We reject these arguments. We have determined that although the Ordinance significantly impacts protected expression, with few exceptions the procedural safeguards contained therein satisfy constitutional criteria fashioned to insure that governmental entities do not impermissibly restrain such expression. In so doing, we relied upon the prior restraint jurisprudence recently articulated by the United States Supreme Court in FW/PBS Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (plurality opinion). Because the Court in FW/PBS found that the Dallas ordinance on its face constituted an impermissible prior restraint on protected expression, the Court did not address additional time, place, and manner issues raised by the parties. In this case we must consider such issues. [23][24][25] All types of non-obscene expression, including sexually explicit expression, whether consisting of printed matter, videos, films, or live entertainment, are protected by the First Amendment. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504 (1991) (live nude dancing); cf. Young v. American Mini Theatres, Inc., 427 U.S. 50, 62, 96 S.Ct. 2440, 2464-65, 49 L.Ed.2d 310 (1976) (motion picture theaters); Smith v. California, 361 U.S. 147, 150, 80 S.Ct. 215, 217, 4 L.Ed.2d 205 (1959) (bookstores); Mitchell v. Commission on Adult Entertainment Establishments, 10F.3d 123,130 (3d Cir. 1993); Marco Lounge, *293 Inc. v. City of Federal Heights, 625 P.2d 982, 985 (Colo. 1981) (live, nude entertainment). Government efforts to regulate the content of non-obscene expression, whether by means of zoning regulation, licensing programs, or other means, are presumed to violate the First Amendment. See City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, — -, 113 S.Ct. 1505, 1516, 123 L.Ed.2d99 (1993); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47, 106 S.Ct. 925,928-29, 89 L.Ed.2d 29 (1986); City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804, 104 S.Ct. 2118, 2128, 80 L.Ed.2d 772 (1984). The government thus may not limit the content of such expression, however objectionable or offensive that content might be to many. Erznoznik v. City of Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 2272- 73, 45 L.Ed.2d 125 (1975); Coates v. City of Cincinnati, 402 U.S. 611, 615, 91 S.Ct. 1686, 1689, 29 L.Ed.2d 214 (1971); see also American Mini Theatres, 427 U.S. at 85, 96 S.Ct. at 2459-60. (Stewart, J., dissenting). Protection of the right to express controversial ideas in controversial ways is at the heart of the values embodied in the First Amendment. Cohen v. California, 403 U.S. 15, 24-25, 91 S.Ct. 1780, 1787-88, 29 L.Ed.2d 284 (1971); Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829-30, 23 L.Ed.2d 430 (1969); see also American Mini Theatres, 427 U.S. at 86-87, 96 S.Ct. at 2460-61 (Stewart, J., dissenting). [FN14] FN14. This sentiment can be traced back to a comment attributed to Voltaire: "I disapprove of what you say, but I will defend to the death your right to say it. " S. Tallentrye, The Friends of Voltaire 199 (1907); see 7250 Corp. v. Board of County Comm'rs, 799 P.2d 917, 922 (Colo. 1990). [26] Government regulations that do not directly or indirectly limit the content of protected expression but seek only to impose time, place, and manner regulations on such expression are constitutionally permissible only if they are narrowly crafted to further a substantial governmental interest and preserve ample alternative means of communication. Ward v. Rock Against Racism, 491 U.S. 781, 798-99, 109 S.Ct. 2746, 2757-58, 105 L.Ed.2d 661 (1989); Renton, 475 U.S. at 46-48, 106 S.Ct. at 928-29; Clark v. Community for Creative Page 24 Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3068- 69, 82 L.Ed.2d 221 (1984); Taxpayers for Vincent, 466 U.S. at 805, 104 S.Ct. at 2128-29; see Marco Lounge, 625 P.2d at 987 n. 6. In view of these principles, courts addressing First Amendment challenges to time, place, and manner regulations have traditionally determined initially whether the regulations are content-based or content-neutral and then, depending on the answer to that question, applied the appropriate level of scrutiny to the regulations. City of Ladue v. Gilleo, 512 U.S. 43, —, 114 S.Ct. 2038, 2047, 129 L.Ed.2d 36 (1994) (O'Connor, J., concurring) (citations omitted). However, the Ordinance, while designed to impose time, place, and manner regulations, by its terms singles out a specific type of defined, constitutionally protected expression—sexually oriented expression—for regulation. Thus it is in fact indirectly content oriented; its time, place, and manner restrictions impact and thus limit constitutionally protected expression precisely because the regulated businesses have chosen to engage in that type of expression. Efforts to develop a framework for First Amendment analysis of such hybrid ordinances have proved difficult. See Note, The Content Distinction in Free Speech Analysis after Renton, 102 Harv.L.Rev. 1904 (1989); Ronald Stern, Note, Sex, Lies, and Prior Restraints: "Sexually Oriented Business"-- The New Obscenity, 68 U.Det.L.Rev. 253 (1991); Gianni Servodidio, Note, The Devaluation of Nonobscene Eroticism As a Form of Expression Protected by the First Amendment, 67 Tul.L.Rev. 1231 (1993). In American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440 (plurality opinion), a divided Supreme Court addressed Equal Protection and First Amendment challenges to two Detroit, Michigan, ordinances restricting the location of adult motion picture theaters presenting sexually expressive activities to the public. The ordinances prohibited locating new adult motion picture theaters within 1,000 feet of two other regulated uses. [FN15] A plurality of four *294 members of the Court endorsed the view that different regulatory standards for different types of expression were compatible with First Amendment analysis; concluded that the ordinances did not constitute prior restraints; and held that the ordinances were content-neutral and survived intermediate time, place, and manner scrutiny. Four other members of the Court concluded that the ordinances did constitute prior restraints and also embodied content-based unreasonable time, place, and manner restrictions. Id. at 85, 96 S.Ct. at 2459-60 (Stewart, J., dissenting). FN15. The ordinance also affected other entities such as adult bookstores, cabarets, certain establishments selling liquor for consumption on the premises, hotels, motels, pawnshops, pool or billiard halls, public lodging houses, secondhand stores, shoeshine parlors, and taxi dance halls. American Mini Theatres, 427 U.S. at 52 n. 3, 96 S.Ct. at 2444 n. 3. Although Justice Powell agreed with the plurality's conclusion that the ordinances did not constitute prior restraints on constitutionally protected expression, he rejected the plurality's suggestion that non-obscene erotic expression was not guaranteed the same First Amendment protection as other modes of expression. Id. at 73 n. 1, 96 S.Ct. at 2453 n. 1 (Powell, J., concurring). He viewed the ordinances as general zoning requirements that affected First Amendment concerns "only incidentally and to a limited extent." Id. at 73, 96 S.Ct. at 2454 (Powell, J., concurring). Observing that the ordinances did not affect the freedom of adult movie makers to create such movies and only minimally restricted the interests of those who wished to view them, he found the four-part intermediate scrutiny test established in United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968), to be applicable. American Mini Theatres, 427 U.S. at 78-80, 96 S.Ct. at 2456-57 (Powell, J., concurring). As we observed in Marco Lounge, 625 P.2d at 987 n. 7, the conclusion in American Mini Theatres that reasonable time, place, and manner restrictions could be imposed governmentally on speech of a specified content deviated from prior First Amendment cases. [FN16] Prior to American Mini Theatres, governmental restrictions affecting constitutionally protected expression were generally considered to be content- based and presumptively invalid, warranting strict scrutiny analysis. Police Dep't of Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 2292, 33 L.Ed.2d 212 (1972). The Court has not abandoned that mode of analysis for regulations deemed to be content-based. See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981); City of Ladue v. Gilleo, Page 25 512 U.S. 43, —, 114 S.Ct. 2038, 2047, 129 L.Ed.2d 36 (1994) (O'Connor, J., concurring). However, the secondary-effects rationale articulated by Justice Powell in his concurring opinion in American Mini Theatres was embraced by the Court in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50, 106 S.Ct. 925, 930, 89 L.Ed.2d 29 (1986), wherein a majority rejected First Amendment challenges to a city ordinance prohibiting defined adult picture theaters from locating within 1000 feet of specified zones. The ordinance in effect confined such defined theaters to a limited geographical area of the city. The Renton majority found the ordinance to be content-neutral; observed that the City of Renton was entitled to rely on evidence that in Seattle, Washington, these particular types of movie theaters caused negative effects on surrounding areas; and emphasized the fact that the ordinance did not completely prevent the establishment of such theaters. Renton, 475 U.S. at 48-54, 106 S.Ct. at 929-33. FN16. It has been noted by many commentators that the American Mini Theatres—Renton line of cases are aberrational in the sense that they apply a relaxed level of review to ordinances that could be characterized as making content-based distinctions, thus distorting traditional freedom of expression analysis in a questionable fashion. See, e.g., Martin Redish, The Content Distinction in First Amendment Analysis, 34 Stan.L.Rev. 113, 127-28 n. 102 (1981) (discussing American Mini Theatres and noting that the case involved subject matter categorization rather than direct viewpoint regulation); Note, The Content Distinction in Free Speech Analysis after Renton, 102 Harv.L.Rev. 1904, 1907-12 (1989) (arguing that the secondary effects doctrine should be confined to restrictions based on subject matter and not extended to restrictions based on viewpoint); Ronald Stern, Note, Sex, Lies, and Prior Restraints: "Sexually Oriented Business "--The New Obscenity, 68 U.Det.L.Rev. 253, 279-85 (1991); Gianni Servodidio, Note, The Devaluation of Nonobscene Eroticism As a Form of Expression Protected by the First Amendment, 67 Tul.L.Rev. 1231, 1236-41 (1993). The Court recently reviewed its First Amendment jurisprudence in City of Ladue *295 v. Gilleo, 512 U.S. 43, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994), wherein it unanimously held that a municipal ordinance designed to reduce aesthetically objectionable visual clutter by restraining the rights of homeowners to display signs on their properties violated First Amendment protections of free speech. The ordinance contained ten exemptions for particular types of signs, such as signs identifying churches, religious institutions, schools, other non-profit organizations, danger, directions, public transportation stops, and sale or rental property. The Court concluded that the ordinance in effect foreclosed an entire medium of expression and impermissibly failed to ensure adequate alternative means of expression. Id. at , 114 S.Ct. at 2045-46. In a concurring opinion, Justice O'Connor commented upon what she described as the Court's "unusual" election to assume that the exemptions contained in the Ordinance were content-neutral and emphasized that such approach did not represent any departure from the Court's "normal" analytical approach of first determining whether the regulation is content-neutral and then, depending on the answer to that question, applying the proper level of scrutiny. Id. at —, 114 S.Ct. at 2047 (O'Connor, J., concurring). [27] Although the ordinance adopted by the City affects particular entities only because such entities engage in activities that implicate constitutionally protected rights of expression, we conclude that its suspension, revocation, and premises design provisions must be deemed content-neutral for purposes of First Amendment analysis. Those provisions of the Ordinance are designed to regulate undesirable secondary effects of such expressive conduct, not the substance thereof. One critical difference between highly suspect content- based regulations and somewhat less suspect content-neutral regulations may be that in the former case the government seeks to restrain conduct based on the particular message sought to be communicated while in the latter case the government seeks to control only the time, place, or manner of expression without regard to the particular message sought to be communicated. Of course, any regulation imposing limits on the time, place, or manner of expressing ideas necessarily limits to some extent the ability of the communicator to convey those ideas and the ability of the recipient to consider them. As the Page 26 Court observed in Ladue, even presumably content-neutral regulations can so severely restrict a mode of communicating constitutionally protected expression that the regulations cannot survive even the reduced level of content-neutral scrutiny. Id. at , 114 S.Ct. at 2045-46. [FN17] FN17. The City contended at oral argument that while a book or a film is pure speech, the business of distributing such material is conduct, not pure speech. However, the constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64 n. 6, 83 S.Ct. 631, 636 n. 6, 9 L.Ed.2d 584 (1963); Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938). "Characterizing the publication as a business, and the business as a nuisance, does not permit an invasion of the constitutional immunity against restraint." Near v. Minnesota ex rel. Olson, 283 U.S. 697, 720, 51 S.Ct. 625, 632, 75 L.Ed. 1357 (1931). Thus, where First Amendment activities are involved, licensing ordinances are subject to strict scrutiny. Sunset Amusement Co. v. Board of Police Comm'rs of L.A., 7 Cal.3d 64, 101 Cal.Rptr. 768, 772, 496 P.2d 840, 844 (1972). But, we agree with the City's contention that regulation of conduct on the premises (as opposed to the "conduct" of circulating sexually explicit expression) of a sexually oriented business is not subject to the heightened scrutiny analysis for regulations directly affecting pure speech. See Arcara v. Cloud Books, Inc., 478 U.S. 697, 705, 106 S.Ct. 3172, 3176-77, 92 L.Ed.2d 568 (1986). In 7250 Corporation v. Board of County Commissioners, 799 P.2d 917 (Colo. 1990), this court upheld a county ordinance imposing restrictions on the operation of commercial establishments not subject to the licensure requirements of the Colorado Liquor Code that presented nude entertainment to their patrons. Id. at 925-26. The ordinance limited the hours and locations of such establishments and prohibited persons under twenty-one years of age from patronizing such entities. In upholding the facial validity of the ordinance, we applied the intermediate scrutiny test elaborated by the Supreme Court in O'Brien, 391 U.S. 367, 88 S.Ct. 1673. 7250 Corp., 799 P.2d at 924. We also observed that application of the O'Brien standard is appropriate only where the governmental *296 regulations are content- neutral. Id. at 923. In this case, the Ordinance does not on its face purport to regulate political speech. However, a variety of specifically defined activities are regulated thereby. Businesses offering nude dancing entertainment are deemed to be cabarets and are subject to the Ordinance. Our discussions in Marco Lounge and 7250 Corporation dealt only with government regulation of that particular type of commercial establishment. The Ordinance also applies to motion picture theaters, motels, bookstores, and video stores. Ordinances deemed to be content-neutral restricting the location, time, and manner of operation of such businesses have been accorded intermediate levels of judicial scrutiny. See, e.g., Renton, 475 U.S. 41, 106 S.Ct. 925; American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440 (plurality opinion); TK's Video, 24 F.3d 705. However, licensing regulations affecting certain of these types of enterprises have also been subjected to strict scrutiny analysis. See, e.g., FW/PBS, 493 U.S. 215, 110 S.Ct. 596 (plurality opinion). We have concluded that some provisions of the Ordinance regulating the license application process constitute impermissible prior restraints on constitutionally protected expression. However, those provisions of the Ordinance related to revocation and suspension of licenses and establishing criteria for the operation and design of premises are of a different nature. While it is true that partial or total deprivation of the right to continue constitutionally protected modes of expression may in some circumstances appear to be the equivalent of a denial of all protected expression, it does not appear on the face of the Ordinance that all or a great portion of such protected activity will be curtailed by the application of the standards for suspension, revocation, premises design, and premises operation established thereby. We conclude that the suspension, revocation, and premises design provisions of the Ordinance are not content oriented and are therefore subject to intermediate scrutiny analysis. The four-part test established in O'Brien, 391 U.S. at 377, 88 S.Ct. at 1679, is Page 27 appropriate for such analysis. 7250 Corp., 799 P.2d at 924. We conclude, as did the trial court, that the Ordinance was adopted pursuant to the City's constitutional authority and furthers the substantial governmental interests of reducing incidents of criminal conduct and preventing neighborhood blight. American Mini Theatres, 427 U.S. at 71, 96 S.Ct. at 2452-53 (plurality opinion); 7250 Corp., 799 P.2d at 924-25. As previously indicated, we also conclude that the revocation, suspension, premises design, and premises operation provisions of the Ordinance, albeit applicable only to businesses classified on the basis of the fact that they are commercial purveyors of constitutionally protected forms of expression, primarily regulate the secondary effects of such expression, and should be deemed content- neutral. Because the provisions of the Ordinance challenged by the plaintiffs to some degree limit constitutionally protected speech, we must determine whether they are narrowly tailored to further the public interest served by their adoption and whether they prohibit protected expression to no greater degree than is essential to further that public interest. O'Brien, 391 U.S. at 377, 88 S.Ct. at 1679; 7250 Corp., 799 P.2d at 925. B [28] Section 8-9-109(A) of the Ordinance provides in pertinent part that a sexually oriented business license shall be revoked or suspended in the event the licensee or an agent or employee thereof violates any of the provisions of section 8-1-801 of the Code. Section 8-l-801(D) of the Code provides in pertinent part that the licensing officer shall suspend for a period not to exceed six months or revoke any license issued by the City if such officer finds: The licensee or any agent or employee of such licensee has violated any law of the United States, of the State of Colorado or the City of Colorado Springs when such violation occurred on the licensed premises, or relates to conduct or activity of any business required to be licensed by this Chapter. *297 The trial court held that insofar as it applied to sexually oriented business licenses, section 8-l-801(D) of the Code exceeded the scope necessary to further the asserted governmental interest in restricting constitutionally protected activity. We agree with this conclusion in the circumstances of this case. Section 8-l-801(D) of the Code requires suspension or revocation of any license if a licensee or any agent or employee thereof violates any law. This section makes no reference to any mens rea requirement. It thus establishes a strict liability standard. Such regulations are constitutionally suspect for purposes of First Amendment analysis. See United States, v. X-Citement Video, Inc., — U.S. — , — , 115 S.Ct. 464, 469, 130 L.Ed.2d 372 (1994); cf. Smith v. California, 361 U.S. 147, 154, 80 S.Ct. 215, 219, 4 L.Ed.2d 205 (1959). [29] In addition, as the trial court observed, section 8-l-801(D) of the Code is not narrowly tailored at all. Any violation of any legislative prohibition triggers mandatory suspension or revocation. Section 8-1-801 of the Code contains no criteria indicating what circumstances warrant suspension as opposed to revocation. Such a sweeping regulation, however appropriate in other contexts, is not narrowly drawn to insure maximum opportunity for constitutionally protected modes of expression. In view of the danger of censorship and arbitrary suppression inherent in the application of imprecise standards, regulations granting government officials excessive discretion to regulate constitutionally protected modes of expression are unconstitutional on their face. Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938); see Vance v. Universal Amusement Co., 445 U.S. 308, 311 n. 3, 100 S.Ct. 1156, 1159 n. 3, 63 L.Ed.2d 413 (1980). We agree with the trial court's conclusion that the provisions of section 8-l-801(D) of the Code are invalid as applied to sexually explicit business licensees. [FN18] FN18. The Colorado Liquor Code authorizes the revocation of a liquor license when the licensee or employee thereof knowingly permits a violation on the licensed premises and also authorizes the denial of a license to an applicant not of good moral character. The defendants reason by analogy that the similar provisions of the Ordinance are also appropriate. However, in most circumstances the licensing of liquor establishments does not generally intrude upon constitutionally protected modes of Page 28 expression. Furthermore, the Twenty-First Amendment to the United States Constitution confers something more than the normal police power accorded states in regulating liquor-licensed establishments. See California v. LaRue, 410 U.S. 948, 93 S.Ct. 1351, 35 L.Ed.2d 615 (1973); Marco Lounge, 625 P.2d at 987. [30] Section 8-9-113 of the Ordinance provides that sexually oriented business licensees must cease commercial operations between the hours of 2:00 a.m. and 8:00 a.m. on Sundays, 12:00 a.m. and 7:00 a.m. on Mondays, and 2:00 a.m. and 7:00 a.m. on all other weekdays and Mondays that fall on January 1st. Section 8-9-114 of the Ordinance provides that all walls of peep booths shall be maintained in good repair and shall not feature holes, prohibits occupancy of any peep booth by more than one person at any one time, and contains several restrictions on the design of the interior of premises upon which peep booths are located. The provisions of section 8-9-115 of the Ordinance establish illumination standards for the interior portions of sexually explicit business premises. Section 8-9-116 of the Ordinance provides that entertainers in adult theaters or adult cabarets shall perform only upon designated fixed and immovable stages and that audience members may not be seated within three feet of the edge of a stage or go onto a stage. [FN19] Section 8-9-117 of the Ordinance *298 provides that no licensee or employee thereof who interacts with the patrons shall be unclothed or leave any specified anatomical areas exposed, nor shall a licensee or employee encourage or knowingly permit any person upon the premises to touch, caress, or fondle such specified anatomical areas of any person. Finally, section 8-9-118 of the Ordinance provides that employee tips are to be placed in a special tip box and not handed directly to the entertainer. The plaintiffs assert that these provisions of the Ordinance are not sufficiently narrow in scope. We disagree. FN19. Because live, nude dancing is conduct with an expressive element, it should technically be analyzed under the O'Brien test. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (plurality opinion); 7250 Corporation v. Board of County Comm'rs, 799 P.2d 917 (Colo. 1990). However, the United States Supreme Court indicated in Barnes that the Renton time, place, and manner test parallels the O'Brien analysis. Barnes, 501 U.S. at 566, 111 S.Ct. at 2460 (plurality opinion). In Mitchell v. Commission on Adult Entertainment Est., 10 F.3d 123, 130-31 n. 7 (3rd Cir.1993), the Third Circuit Court of Appeals observed that "regardless of whether the analytical framework of O'Brien or Renton is applied to the case at hand ... the result would be the same." These provisions of the Ordinance permit expression to proceed without reference to the content thereof. The contents of books, videos, and films are not censored. Dancers are not prohibited from communicating protected expression. The Ordinance does not regulate the expression communicated within peep booths. The regulations concerning stage location, seating, and premises containing peep booths are specific and detailed. Regulations of stage and audience locations have been upheld as valid time, place, and manner restrictions. BSA, Inc. v. King County, 804 F.2d 1104, 1111-12 (9th Cir. 1986). Limitations on hours of operation for live, nude entertainment were specifically approved by this court as content-neutral in 7250 Corporation, 799 P.2d at 925. Peep booth regulations similar to those contained in the Ordinance have uniformly been deemed valid time, place, and manner restrictions. See, e.g., Mitchell v. Commission on Adult Entertainment Establishments, 10 F.3d 123, 139-44 (3rd Cir.1993); Bamon Corp. v. City of Dayton, 923 F.2d 470, 474 (6th Cir. 1991); Postscript Enter, v. City of Bridgeton, 905 F.2d 223, 227 (8th Cir. 1990); Doe v. City of Minneapolis, 898 F.2d 612, 620 (8th Cir. 1990); Berg v. Health & Hosp. Corp. of Marion County, Ind., 865 F.2d 797, 802 (7th Cir. 1989); Wall Distrib., Inc. v. City of Newport News, Va., 782 F.2d 1165, 1170 (4th Cir. 1986); Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243, 1247 (9th Cir. 1982). In our view, these sections of the Ordinance are narrowly crafted and affect performance, audiences, and expressive creation in minimal ways only. They thus constitute valid time, place, and manner restrictions on the conduct of sexually oriented business operations. V [31] The plaintiffs argue that the provisions of Page 29 section 8-9-113 of the Ordinance limiting the hours of operation of licensed sexually oriented businesses are preempted by parallel provisions of the Colorado Liquor Code. We do not agree. Pursuant to section 12-47-128(5)(c), 5B C.R.S. (1991), liquor licensed establishments are permitted, inter alia, to sell, serve, or distribute any malt, vinous, or spirituous liquors on any Monday through Saturday and on any Sunday which falls on December 31 beginning at 12:00 p.m. midnight until 2:00 a.m. and from 7:00 a.m. until 12:00 p.m. midnight, and on any other Sunday beginning at 12:00 p.m. midnight until 2:00 a.m. and from 8:00 a.m. until 8:00 p.m. According to the plaintiffs, these provisions preempt section 8-9-113 of the Ordinance insofar as the latter section further restricts the Monday morning hours of operation of liquor licensed establishments that elect to present sexually explicit entertainment. We disagree. Pursuant to section 30- 15-40 1(1)(1 )(I)(B), 12A C.R.S. (1986), the City has the authority to adopt "reasonable regulations for the operation of establishments open to the public in which persons appear in a state of nudity for the purpose of entertaining the patrons of such establishment" and such regulations may include "[1] imitations on the hours during which such establishments may be open for business...." In the area of live, nude, entertainment, the Colorado Department of Revenue has enacted regulations placing specific, strict limitations on such expression. See Citizens for Free Enter, v. Department of Revenue, 649 P.2d 1054, 1066-68 (Colo. 1982) (upholding such regulations); see also 7250 Corp., 799 P.2d at 925-26 (recognizing that there are practical differences of constitutional relevance between liquor licensed establishments and nude entertainment establishments). In this case, the two-hour time differential for one day per week does not constitute a conflict where "the ordinance *299 authorizes what the state forbids, or forbids what the state has expressly authorized." Sant v. Stephens, 753 P.2d 752, 756-57 (Colo. 1988) (quoting Aurora v. Martin, 181 Colo. 72, 75, 507 P.2d 868, 869-70 (1973)); cf. 7250 Corp., 799 P.2d at 925-26 (upholding limitation on hours of operation for nude entertainment establishment not permitted to sell liquor against free expression challenge). VI [32] Section 8-9-121(9) of the Ordinance provides that "[i]f any section, subsection or clause of this Ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected thereby." The proper inquiry for determining the severability of specific provisions of the Ordinance thus focuses on whether the constitutionally valid provisions are complete in themselves and can, in turn, be given legal effect. Williams v. Denver, 198 Colo. 573, 576, 607 P.2d 981, 983 (1979). The City Counsel has clearly evidenced an intent for the constitutional provisions of the Ordinance to be given full effect regardless of what other provisions are found to be constitutionally invalid. We conclude that the non-discretionary standards applicable to sexually oriented business license applicants, and the reasonable time, place, and manner regulations of such businesses contained in the Ordinance are complete in themselves and can be given legal effect. VII For the foregoing reasons, we affirm the trial court's judgment in part and reverse the judgment in part. We affirm the trial court's conclusion that section 8-9-105(A)(2) of the Ordinance, requiring denial of applications for licenses by persons not of good moral character, violates First Amendment standards, though on grounds different from those relied upon by the trial court. We also affirm the trial court's conclusion that section 8-l-801(D) of the Code and, by implication, section 8-9-110(A)(3) of the Ordinance, authorizing suspension or revocation of a license for any violation of any law, violates First Amendment standards. We also affirm the trial court's determination that sections 8-9-105(A)(l) and 8-9-112 of the Ordinance, which provisions establish age limitations for licensees and audience members, are constitutionally invalid insofar as such restrictions apply to licensees and audience members of businesses not presenting live, nude entertainment. However, we reverse the trial court's judgment insofar as it holds that the age provisions of sections 8-9-105(A)(l) and 8-9-112 may not be enforced with respect to licensees and audience members of businesses that present live, nude entertainment. We also reverse the trial court's judgment upholding that portion of section 8-9-104(E) of the Ordinance requiring corporate shareholders to sign license application Page 30 forms. The judgment of the trial court is affirmed in all other respects. ERICKSON, J., dissents, and LOHR, J., joins in the dissent. Justice ERICKSON dissenting: I respectfully dissent. I would reverse the El Paso County District Court and hold that Colorado Springs Ordinance No. 92-159 (Ordinance) violates the First Amendment to the United States Constitution by imposing a prior restraint on speech and is facially unconstitutional. On March 19, 1993, the El Paso County District Court issued an order declaring certain sections of the Ordinance and a provision of the 1980 Colorado Springs Code (Code) unenforceable because of facial violations of the First Amendment of the United States Constitution. The appellants/cross-appellees, the City of Colorado Springs and the members of the Colorado Springs City Council (defendants), appeal those portions of the district court's order that declared part of the Ordinance unenforceable. The appellees/cross-appellants, operators of sexually oriented business establishments (plaintiffs), appeal from those portions of the district court's order upholding the constitutionality of the Ordinance with portions of the Ordinance stricken. *300 The majority affirms the district court in part and reverses in part. I agree with the majority's First Amendment analysis of the substantive provisions in the Ordinance. However, the majority concludes that the Ordinance provides adequate procedural safeguards to applicants for licenses for sexually oriented businesses. Maj. op. at 289. I disagree. The Ordinance constitutes an unconstitutional prior restraint on speech because it fails to provide for adequate procedural safeguards to preserve freedom of speech guaranteed by the First Amendment. Accordingly, I would hold the licensing scheme provided in the Ordinance to be facially unconstitutional and reverse the judgment of the district court. I The First Amendment to the United States Constitution provides, in relevant part, that "Congress shall make no law ... abridging the freedom of speech." U.S. Const, amend. I. Regulations enacted to restrain protected speech on the basis of content are presumptively unconstitutional. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47, 106 S.Ct. 925, 928-29, 89 L.Ed.2d 29 (1986). If the restrictions are primarily directed at the noncommunicative aspects of protected speech, the government may regulate the time, place, and manner of protected speech. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753-54, 105 L.Ed.2d 661 (1989). Content-neutral time, place, and manner restrictions are permissible "so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication. " City of Renton, 475 U.S. at 47, 106 S.Ct. at 928. Prior restraints are judicial and administrative orders that forbid certain communications when issued prior to the time the communications are to occur. Alexander v. United States, 509 U.S. 544, — , 113 S.Ct. 2766, 2771, 125 L.Ed.2d 441 (1993). A governmental regulation that places a prior restraint on the exercise of free expression bears "a heavy presumption against its constitutional validity." FW/PBS v. City of Dallas, 493 U.S. 215, 225, 110 S.Ct. 596, 604, 107 L.Ed.2d 603 (1990) (plurality opinion); see, e.g., City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 757, 108 S.Ct. 2138,2144, 100 L.Ed.2d 771 (1988); Freedman v. Maryland, 380 U.S. 51, 57, 85 S.Ct. 734, 738, 13 L.Ed.2d 649 (1965). Freedom of speech is abridged when the government may exercise unbridled discretion in determining whether individuals may engage in protected speech. FW/PBS, 493 U.S. at 225-26, 110 S.Ct. at 604-05. When a regulation that creates a prior restraint fails to provide for adequate procedural safeguards to ensure a prompt decision, the government has exercised the prohibited unbridled discretion. Id. at 227, 110 S.Ct. at 605-06. In Freedman, the United States Supreme Court held that a Maryland law requiring film distributors to submit films to the Maryland State Board of Censors for approval was an unconstitutional prior restraint. Freedman, 380 U.S. at 60, 85 S.Ct. at 739-40. Three procedural safeguards are necessary, under Page 31 Freedman, to "obviate the dangers of a censorship system": (1) any restraint prior to judicial review can only be imposed for no longer than necessary to preserve the status quo; (2) prompt judicial review must be available; and (3) the censor must bear the burden of going to court to suppress the speech and bear the burden of proof once in court. Id. at 58- 59, 85 S.Ct. at 738-39. If a licensing scheme does not contain necessary procedural safeguards and "is made unduly onerous, by reason of delay or otherwise, [in providing for] judicial review, the censor's determination may in practice be final." Id. at 58, 85 S.Ct. at 738. In FW/PBS, the Court examined the constitutionality of a Dallas ordinance that imposed a system of zoning and licensing requirements for sexually oriented businesses. The ordinance was directed toward combatting the secondary effects of urban blight and crime. In a plurality opinion, the Court held that the city's licensing scheme was an unconstitutional prior restraint because it failed to provide adequate procedural safeguards. FW/PBS, 493 U.S. at 229, 110 S.Ct. at 606-07. The Court identified two evils associated with the prior restraints imposed *301 by the Dallas ordinance. First, a licensing "scheme that places 'unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship.' " Id. at 225-26, 110 S.Ct. at 605 (quoting City of Lake wood v. Plain Dealer Publishing Co., 486 U.S. 750, 757, 108 S.Ct. 2138, 2144, 100 L.Ed.2d 771 (1988)). Second, a prior restraint is impermissible if it fails to place limits on the time within which the decisionmaker must issue the license. Id. at 226, 110 S.Ct. at 605. The FW/PBS Court reviewed Freedman and concluded that Freedman involved direct censorship, which is presumptively invalid, while the Dallas ordinance involved issuing licenses to applicants, which is not presumptively invalid. Id. at 228, 110 S.Ct. at 606. The Court stated,H[b]ecause the licensing scheme at issue in this case does not present the grave dangers of a censorship system ... we conclude that the full procedural protections set forth in Freedman are not required." Id. (quoting Freedman, 380 U.S. at 58, 85 S.Ct. at 738). [FN20] The plurality determined the first two Freedman safeguards must be considered in evaluating a licensing scheme for sexually oriented businesses. Id. at 228-30, 110 S.Ct. at 606-07. The Court stated: FN20. In FW/PBS, Justice O'Connor, joined by Justices Stevens and Kennedy, reasoned that the Freedman requirement that the censor bear the burden of initiating judicial action and the burden of proof in the judicial proceeding should not apply to the licensing scheme of sexually oriented businesses. Justices Brennan, Marshall, and Blackmun concurred in the judgment, but stated that all three of the Freedman procedural safeguards should apply in analyzing the constitutionality of the Dallas licensing scheme. The fragmented opinion of the FW/PBS Court leaves the application of the third Freedman factor in question. The core policy underlying Freedman is that the license for a First Amendment-protected business must be issued within a reasonable period of time, because undue delay results in the unconstitutional suppression of protected speech. Thus, the first two safeguards are essential: the licensor must make the decision whether to issue the license within a specified and reasonable time period during which the status quo is maintained, and there must be the possibility of prompt judicial review in the event that the license is erroneously denied. Id. at 228, 110 S.Ct. at 606. Federal courts have reaffirmed the FW/PBS procedural safeguards in the context of licensing schemes for sexually oriented businesses. See, e.g., TK's Video, Inc. v. Denton County, Tex., 24 F.3d 705, 707-08 (5th Cir. 1994); Chesapeake B & M, Inc. v. Harford County, Md., 831 F.Supp. 1241, 1247 (D.Md. 1993); Wolff v. City of Monticello, 803 F.Supp. 1568, 1573 (D.Minn. 1992). Section 8-9-104(A) of the Ordinance provides that "[i]t shall be unlawful for any person to operate a sexually oriented business without a license issued by the Licensing Officer under the provisions of this Chapter. " (Footnote omitted.) The licensing scheme contained in the Ordinance constitutes a prior restraint because speech is subjected to governmental regulation prior to the time that the speech is to occur. See FW/PBS, 493 U.S. at 224-26, 1 10 S.Ct. at 603-05. II A Section 8-9-104(D) of the Ordinance states that an application for a sexually oriented business license must be accompanied by a zoning permit. Page 32 Section 8-9-105(A)(6) of the Ordinance provides, in relevant part: A. The sexually oriented business shall be issued a license within thirty (30) days after receipt of an application ... unless the Licensing Officer finds one or more of the following: 6. The applicant has not been issued a permit by the Zoning Administrator ... and that such permit, if issued, is not subject to appeal.... If the zoning permit is subject to appeal, section 8-9-104(D) provides that "no further action shall be taken upon such application until such appeal is finally adjudicated." *302 After reviewing the appeal process for an adverse decision by the zoning administrator, the majority states: Thus, when the applicant decides to appeal an adverse zoning administrator decision, the process of licensure is tolled by means of the applicant's decision. To conclude, as the plaintiffs do, that the voluntary choice of an applicant to appeal a zoning classification renders the licensing scheme itself unconstitutional because there is no specified time limit for the completion of such appeal process ignores the fact that the time limit specified by the Ordinance for final action by the licensing officer remains intact. The amount of time consumed by the process of judicial review of an adverse zoning administrator determination will also depend in large part on the conduct of the applicant. Maj. op. at 282. I disagree with the majority because the Ordinance places unbridled discretion in the zoning administrator and fails to specify a time limit within which a decision on an applicant's appeal must be rendered. In FW/PBS, the Dallas ordinance provided that approval for issuance of a license would be made within thirty days after receipt of an application. FW/PBS, 493 U.S. at 227, 110 S.Ct. at 605-06. Prior to issuance of a license, health, fire, and building inspections were required. Id. Because the licensing scheme did not place time limits on when the inspections had to occur, the Court stated "the city's regulatory scheme allows indefinite postponement of the issuance of a license." Id. The Court concluded: Where the licensor has unlimited time within which to issue a license, the risk of arbitrary suppression is as great as the provision of unbridled discretion. A scheme that fails to set reasonable time limits on the decisionmaker creates the risk of indefinitely suppressing permissible speech. Id. Here, section 8-9-104(D) provides: Contemporaneously with the submission of an application for a license, the applicant shall submit the permit from the Zoning Administrator indicating that the requirements of Article 11 of Chapter 14.1 of the City Code are met unless the applicant's sexually oriented business is an existing non-conforming use under the provisions of Article 13 of Chapter 14.1 of the City Code. In the event that such permit is subject to appeal, no further action shall be taken upon such application until such appeal is finally adjudicated. (Footnote omitted.) Section 14.1-ll-103(d) of the Colorado Springs Zoning Ordinance requires the zoning administrator to approve or deny an application for a zoning permit within ten working days after the application is submitted. The plain language of section 8-9-104(D) is ambiguous as to whether a permit from the zoning administrator is a prerequisite to applying for a license. The first sentence of section 8-9-104(D) states that an applicant must have received a zoning permit before applying for a license. The second sentence implies that an application can be submitted prior to zoning approval, but the application will be held in abeyance until an appeal of the zoning administrator's decision is adjudicated. If approval from the zoning administrator is a prerequisite to submitting an application, the thirty day period for a decision on the application by the city council will not begin to run until after the application is finally approved by the zoning administrator. Approval by the zoning administrator may be delayed indefinitely because no time limit is specified for the zoning administrator's decision on the appeal. If an application can be submitted prior to the zoning administrator's approval, the thirty day time period will start to run, but will be tolled during the time that the zoning administrator is considering the applicant's appeal. The ostensibly thirty day time limit may be extended indefinitely because no time limit is specified for Page 33 the zoning administrator's decision on the appeal. Although the Ordinance sets specific time limits for a decision on an application for a license, appeal of the zoning administrator's decision may delay the licensing process indefinitely *303 regardless of whether a zoning permit is a prerequisite to submitting an application. The process delineated in the Ordinance also places unbridled discretion in the zoning administrator to prevent approval of an application. The majority concludes that the applicant is responsible for any potential delay in the licensing process if the applicant appeals the zoning administrator's decision. Maj. op. at 294. The majority's construction of the Ordinance ignores the presumption against the validity of prior restraints. See, e.g., FW/PBS, 493 U.S. at 225, 110 S.Ct. at 604-05; City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 757, 108 S.Ct. 2138, 2144, 100 L.Ed.2d 771 (1988); Freedman v. Maryland, 380 U.S. 51, 57, 85 S.Ct. 734, 738, 13 L.Ed.2d 649 (1965). The applicant's decision to appeal does not remedy the fact that appeal of the zoning administrator's decision may be delayed indefinitely. The majority misconstrues the rationale of FW/PBS and the burden of proof imposed on the defendants. The burden should not be placed on the plaintiffs because of their decision to appeal an adverse decision by the zoning administrator, but should properly lie with the defendants because they seek to regulate protected speech. B Section 8-9-105(D) of the Ordinance provides that applicants may appeal the denial of their application by the licensing officer. Sections 8-l-601(B) through -601(D) of the Code provide the procedures for appeal when the application for a license is denied: B. If the Licensing Officer shall not so find he shall thereupon deny such application and notify the applicant of the denial by serving upon the applicant personally a copy of such denial and the reasons supporting such denial or by mailing the same to him by registered or certified mail at the business address shown on the application. C. Any applicant aggrieved by any final order of the licensing officer after the denial of such application shall have the right to appeal to the City Council by filing a written appeal, stating the grounds thereof, with the City Clerk within ten (10) days following the date of denial of said application. D. In the event an appeal is timely filed, it shall be heard at the next regular City Council meeting occurring at least ten (10) days after said filing with the City Clerk. Review by Council shall be a de novo hearing. Section 8-1-808 of the Code provides: A. The decision of the City Council in all cases shall be final and conclusive and shall be served upon the licensee by personal service, by registered or certified mail, or by posting as provided in Section 8-1-804 of this Chapter. B. A decision of the City Council is reviewable only by Court under Colo.R.Civ.P. 106(a)(4). There shall be no stay of execution pending a review by the Court except by Court order. C.R.C.P. 106(a)(4) provides, in relevant part: (a) ... In the following cases relief may be obtained in the district court.... (4) Where any governmental body or officer or any lower judicial body exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy otherwise provided by law: (I) Review shall be limited to a determination of whether the body or officer has exceeded its jurisdiction or abused its discretion, based on the evidence in the record before the body or officer. (V) The proceedings before or decision of the body or officer may be stayed, pursuant to Rule 65 of the Colorado Rules of Civil Procedure. (VII) A defendant required to certify a record shall give written notice to all parties, simultaneously with filing, of the date of filing the record with the clerk. The plaintiff shall file, and serve on all parties, an opening brief within forty days after the *304 date on which the record was filed. If no record is requested by the plaintiff, the plaintiff shall file an opening brief within forty days after the defendant has served its answer upon the plaintiff. The defendant may file and serve an answer brief within thirty days after service of the plaintiffs brief, and the plaintiff may file and serve a reply brief to the defendant's answer brief within fifteen days after service of the answer brief. (VIII) The court may accelerate or continue any action which, in the discretion of the court, requires acceleration or continuance. Page 34 After examining the adequacy of the procedural safeguards provided by the Ordinance and the Code, the majority concludes: C.R.C.P. 106 and the Ordinance provide adequate safeguards to ensure that any impermissible prior restraint on a particular applicant's protected rights of free speech may be remedied promptly by judicial intervention.... The provisions of C.R.C.P. 106(a)(4)(VIII) specifically authorize a district court to accelerate or continue any action, and, as indicated, C.R.C.P. 106(a)(4)(V) authorizes a district court to stay any decision to deny, suspend, or revoke a license. These provisions are adequate to withstand the plaintiffs' facial challenge to the Ordinance. Maj. op. at 284. I disagree because the mechanisms provided by the Ordinance and the Code do not provide the appropriate standard of appellate review and do not constitute prompt judicial review of constitutionally protected speech. 1 C.R.C.P. 106(a)(4) fails to provide the appropriate standard of appellate review required for prior restraints of constitutionally protected speech. Under the explicit language of the Ordinance and the Code, judicial review of city council decisions is limited to the procedures provided in C.R.C.P. 106(a)(4). C.R.C.P. 106(a)(4)(V) and (VIII), which provide for a stay and accelerated review, respectfully, are within the discretion of the district court and are extraordinary remedies. The standard of review under C.R.C.P. 106(a)(4) is limited to an abuse of discretion, and cannot be used as a substitute for prescribed appellate procedures. See, e.g., Kirbens v. Martinez, 742 P.2d 330, 333 (Colo. 1987) ("Proceedings authorized by C.R.C.P. 106(a)(4) are extraordinary in nature, and accordingly, may not be employed as a substitute for prescribed appellate procedures.") (citations omitted); People v. Adams County Court, 793 P.2d 655, 656 (Colo.App. 1990) ( "Proceedings authorized by C.R.C.P. 106(a)(4) are extraordinary in nature, and the rule cannot be used as a substitute for prescribed appellate procedures."). In Redner v. Dean, 29 F.3d 1495, 1501 n. 9 (llth Cir.1994), the Court of Appeals for the Eleventh Circuit examined the Freedman standard for the type of judicial review required for protected speech. The court reviewed cases that have interpreted Freedman and stated: the Court indicated that the statute, regulation, or ordinance itself must explicitly provide for prompt judicial review of the decision to suppress expressive activity .... The Court thus implied that a state's statutory or common-law mechanisms for review of administrative decisions does not satisfy the procedural requirements of Freedman. Id. Other federal cases have stated the appropriate level of judicial review required by FW/PBS for a sexually oriented licensing scheme to be constitutional. See, e.g., TK's Video, Inc. v. Denton County, Tex., 24 F.3d 705, 709 (5th Cir.1994) ("FW/PBS requires only a prompt judicial hearing, a standard that the order meets by giving an unsuccessful license applicant 30 days to appeal to a district court in Denton County 'on a trial de novo basis.' ") (quoting Denton County licensing order); Chesapeake B & M, Inc. v. Harford County, Md., 831 F.Supp. 1241, 1250 (D.Md.1993) ("In light of FW/PBS, the Harford County ordinance is constitutional because it expressly provides for judicial review by the County's circuit court."). Section 8-1-801 is a Code provision which states that all business and licensing decisions by the Colorado Springs City Council are subject to review under C.R.C.P. 106(a)(4). Judicial review of the denial of a *305 license for a sexually oriented business is not specifically provided in the Ordinance. Review of administrative decisions under the statutory mechanism in C.R.C.P. 106(a)(4) does not meet the Freedman standard for review of protected speech. See Redner, 29 F.3d at 1501 n. 9. Because the Ordinance fails to provide for the appropriate level of judicial review in the event a license is denied, the Ordinance is facially unconstitutional. In FW/PBS, the Court found the Dallas licensing scheme unconstitutional because it failed to provide a time limit within which the licensor's decision had to be made, and it did not provide "an avenue for prompt judicial review so as to minimize suppression of the speech in the event of a license denial." FW/PBS, 493 U.S. at 229, 110 S.Ct. at 606. The Ordinance fails to provide for prompt judicial review when an application for a license is denied. C.R.C.P. 106(a)(4)(VH) permits up to eighty-five days for filing briefs. Because an applicant who has been denied a Page 35 license will seek to facilitate judicial review, it is unlikely that the applicant will exercise a full forty days to file an opening brief and fifteen days to file a reply brief. However, the city that has denied the license has an incentive to exercise the full thirty days permitted under C.R.C.P. 106(a)(4)(VII) to file an answer brief. A minimum of thirty days and a maximum of eighty-five days is permitted for filing briefs under C.R.C.P. 106(a)(4)(VII). The Supreme Court has not specifically provided a uniform standard for determining what constitutes prompt judicial review. However, in United States v. Thirty-Seven Photographs, 402 U.S. 363, 373, 91 S.Ct. 1400, 1406-07, 28 L.Ed.2d 822 (1971), the Court interpreted a federal statute that imposed a prior restraint to require judicial review to be sought within fourteen days. The Court stated that delays between forty days and six months prior to commencement of proceedings did not constitute prompt judicial review. Id. at 371-72, 91 S.Ct. at 1405-06. The time period under C.R.C.P. 106(a)(4) for the review of protected speech is not prompt judicial review because of the lengthy period for filing briefs, and potential delays and continuances. In addition to the lengthy briefing schedule, an applicant may determine that the procedures outlined in C.R.C.P. 106(a)(4) are too burdensome, which may chill the exercise of protected speech. See Freedman, 380 U.S. at 59, 85 S.Ct. at 739. ordinance did not, on its face, meet the requirements of FW/PBS the ordinance was facially unconstitutional. Id. Section 8-9-104(A) of the Ordinance provides that "[i]t shall be unlawful for any person to operate a sexually oriented business without a license issued by the Licensing Officer under the provisions of this Chapter." (Footnote omitted.) The defendants assert that the Ordinance should be construed to require approval of an application if the application is not acted upon within thirty days. However, the Ordinance provides that a person may not operate a sexually oriented business without a license. In the event an application is not acted upon within thirty days, the Ordinance is silent. Because the application process may be postponed indefinitely, the Ordinance is facially unconstitutional. Accordingly, I would hold the licensing scheme provided in the Ordinance to be facially *306 unconstitutional and reverse the judgment of the district court. LOHR, J., joins in this dissent. END OF DOCUMENT The majority concludes that "an application for a license not acted upon by the licensing officer within thirty days of the receipt of the application must be deemed granted." Maj. op. at 281. The Ordinance, however, fails to explicitly provide that an application not acted upon within thirty days will be granted. In Wolff v. City of Monticello, 803 F.Supp. 1568, 1574 (D.Minn. 1992), an ordinance regulating sexually oriented businesses did not contain a provision to assure that the status quo was maintained during the time that an application for a license was pending with the city council. The city promised not to enforce the ordinance during the pendency of an action on the constitutionality of the ordinance. Id. at 1575. The court determined that because the 12 Page 1 Copr. ® West 2001 No Claim to Orig. U.S. Govt. Works 120 S.Ct. 1382 146 L.Ed.2d 265, 68 USLW 4239, 28 Media L. Rep. 1545, 00 Cal. Daily Op. Serv. 2443, 2000 Daily Journal D.A.R. 3255, 2000 CJ C.A.R. 1618, 13 Fla. L. Weekly Fed. S 203 (Cite as: 529 U.S. 277, 120 S.Ct. 1382) Supreme Court of the United States CITY OF ERIE, et al., Petitioners, v. PAP'S A.M. tdba "Kandyland". No. 98-1161. Argued Nov. 10, 1999. Decided March 29, 2000. Operator of establishment featuring nude erotic dancing brought action challenging constitutionality of city's public indecency ordinance proscribing nudity in public places. The Court of Common Pleas, Erie County, Civil Division, No. 1994-60059, Shad Connelly, A.J., declared ordinance unconstitutional. On appeal, the Pennsylvania Commonwealth Court, 674 A.2d 338, Nos. 445 and 446 C.D. 1995, reversed. Operator appealed. The Pennsylvania Supreme Court, Nos. 016 and 017 W.D. Appeal Docket 1997, reversed. Certiorari was granted, and operator moved to dismiss case as moot. The Supreme Court, Justice O'Connor, held that: (1) case was not rendered moot by closing of the establishment; (2) ordinance was content-neutral regulation; and (3) ordinance satisfied O'Brien standard for restrictions on symbolic speech. Reversed and remanded. Justice Scalia concurred in judgment and filed opinion in which Justice Thomas joined. Justice Souter concurred in part and dissented in part and filed opinion. Justice Stevens dissented and filed opinion in which Justice Ginsburg joined. West Headnotes [1] Federal Courts k!2.1 170Bkl2.1 Case is moot when issues presented are no longer "live" or parties lack legally cognizable interest in outcome. [2] Constitutional Law k46(l) 92k46(l) Suit by operator of establishment featuring nude erotic dancing, challenging constitutionality of city's public indecency ordinance proscribing nudity in public places was not rendered moot by closing of the establishment, since operator was still incorporated, and could have decided to again operate nude dancing establishment in city; "advanced age" of owner did not make it "absolutely clear" that life of quiet retirement was his only reasonable expectation, and city had ongoing injury because it was barred from enforcing ordinance. [3] Constitutional Law k90.4(2) 92k90.4(2) [3] Constitutional Law k90.4(3) 92k90.4(3) Being "in a state of nudity" is not inherently expressive condition, but erotic nude dancing is "expressive conduct," within outer ambit of First Amendment's protection. (Per Justice O'Connor with two Justices and the Chief Justice concurring, and two Justices concurring in judgment). U.S.C.A. Const.Amend. 1. [4] Constitutional Law k90.1(l) 92k90.1(l) If governmental purpose in regulating expression is unrelated to suppression of expression, then regulation need only satisfy "less stringent" O'Brien standard for evaluating restrictions on symbolic speech, but if government interest is related to content of expression, regulation must be justified under more demanding standard. (Per Justice O'Connor with two Justices and the Chief Justice concurring, and two Justices concurring in judgment). U.S.C.A. Const.Amend. 1 Page 2 [5] Constitutional Law k90.4(2) 92k90.4(2) Government restrictions on public nudity should be evaluated under framework set forth in O'Brien for content-neutral restrictions on symbolic speech. (Per Justice O'Connor with two Justices and the Chief Justice concurring, and two Justices concurring in judgment). U. S. C. A. Const. Amend. 1. [6] Constitutional Law k90.4(2) 92k90.4(2) [6] Constitutional Law k90.4(3) 92k90.4(3) Ordinance banning all public nudity, regardless of whether that nudity was accompanied by expressive activity, was content-neutral regulation and thus subject to "less stringent" O'Brien standard for evaluating restrictions on symbolic speech; ordinance was aimed at combating crime and other secondary effects caused by presence of adult entertainment establishments. (Per Justice O'Connor with two Justices and the Chief Justice concurring, and two Justices concurring in judgment). U. S. C. A. Const. Amend. 1. [7] Constitutional Law k70.3(2) 92k70.3(2) Supreme Court will not strike down otherwise constitutional statute on basis of alleged illicit motive. (Per Justice O'Connor with two Justices and the Chief Justice concurring, and two Justices concurring in judgment). [8] Constitutional Law k90.1(l) 92k90.1(l) Under O'Brien standard for evaluating restrictions on symbolic speech, court inquires whether government regulation is within constitutional power of government to enact, whether regulation furthers important or substantial government interest, whether government interest is unrelated to suppression of free expression, and whether restriction is no greater than is essential to furtherance of the government interest. U.S.C.A. Const.Amend. 1. [9] Constitutional Law k90.4(2) 92k90.4(2) [9] Constitutional Law k90.4(3) 92k90.4(3) [9] Municipal Corporations k595 268k595 [9] Obscenity k2.5 281k2.5 [9] Theaters and Shows k3.50 376k3.50 Ordinance proscribing nudity in public places satisfied O'Brien standard for restrictions on symbolic speech; city's efforts to protect public health and safety were clearly within its police powers, ordinance furthered city's interest in combating harmful secondary effects associated with nude dancing, government's interest was unrelated to suppression of free expression, and incidental impact on expressive element of nude dancing was de minimis. (Per Justice O'Connor with two Justices and the Chief Justice concurring, and two Justices concurring in judgment). U.S.C.A. Const.Amend. 1. [10] Constitutional Law k90.4(3) 92k90.4(3) In demonstrating that secondary effects pose threat that justify regulation of nude dancing, city need not conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence city relies upon is reasonably believed to be relevant to problem that city addresses. (Per Justice O'Connor with two Justices and the Chief Justice concurring, and two Justices concurring in judgment). U.S.C.A. Const.Amend. 1. [11] Constitutional Law k90.4(3) 92k90.4(3) [11] Theaters and Shows k3.50 376k3.50 Because nude dancing at establishment was of same character as adult entertainment at issue in prior Supreme Court opinions, it was reasonable for city to conclude that such nude dancing was likely to produce same secondary effects, and, to justify ordinance regulating nude dancing, city could reasonably rely on evidentiary foundation set forth in Supreme Court opinions to effect that secondary effects were caused by presence of even one adult entertainment establishment in Page 3 given neighborhood; city was not required to develop specific evidentiary record supporting ordinance. (Per Justice O'Connor with two Justices and the Chief Justice concurring, and two Justices concurring in judgment). [12] Administrative Law and Procedure k459 15AR459 As long as party has opportunity to respond, administrative agency may take official notice of "legislative facts" within its special knowledge, and is not confined to evidence in record in reaching its expert judgment. (Per Justice O'Connor with two Justices and the Chief Justice concurring, and two Justices concurring in judgment). **1384 Syllabus [FN*] FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499. Erie, Pennsylvania, enacted an ordinance making it a summary offense to knowingly or intentionally appear in public in a "state of nudity." Respondent Pap's A.M. (hereinafter Pap's), a Pennsylvania corporation, operated "Kandyland," an Erie establishment featuring totally nude erotic dancing by women. To comply with the ordinance, these dancers had to wear, at a minimum, "pasties" and a "G-string." Pap's filed suit against Erie and city officials, seeking declaratory relief and a permanent injunction against the ordinance's enforcement. The Court of Common Pleas struck down the ordinance as unconstitutional, but the Commonwealth Court reversed. The Pennsylvania Supreme Court in turn reversed, finding that the ordinance's public nudity sections violated Pap's right to freedom of expression as protected by the First and Fourteenth Amendments. The Pennsylvania court held that nude dancing is expressive conduct entitled to some quantum of protection under the First Amendment, a view that the court noted was endorsed by eight Members of this Court in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456,115 L.Ed.2d 504. The Pennsylvania court explained that, although one stated purpose of the ordinance was to combat negative secondary effects, there was also an unmentioned purpose to "impact negatively on the erotic message of the dance." Accordingly, the Pennsylvania court concluded that the ordinance was related to the suppression of expression. Because the ordinance was not content neutral, it was subject to strict scrutiny. The court held that the ordinance failed the narrow tailoring requirement of strict scrutiny. After this Court granted certiorari, Pap's filed a motion to dismiss the case as moot, noting that Kandyland no longer operated as a nude dancing club, and that Pap's did not operate such a club at any other location. This Court denied the motion. Held: The judgment is reversed, and the case is remanded. 553 Pa. 348, 719 A.2d 273, reversed and remanded. Justice O'CONNOR delivered the opinion of the Court with respect to Parts I and II, concluding that the case is not moot. A case is moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642. Simply closing Kandyland is not sufficient to moot the case because Pap's is still incorporated under Pennsylvania *278 law, and could again decide to operate a nude dancing establishment in Erie. Moreover, Pap's failed, despite its obligation to the Court, to mention the potential mootness issue in its brief in opposition, which was filed after Kandyland was closed and the property sold. See Board of License Comm'rs of Tiverton v. Pastore, 469 U.S. 238, 240, 105 S.Ct. 685, 83 L.Ed.2d 618. In any event, this is not a run of the mill voluntary cessation case. Here it is the plaintiff who, having prevailed below, seeks to have the case declared moot. And it is the defendant city that seeks to invoke the federal judicial power to obtain this Court's review of the decision. Cf. ASARCO Inc. v. Kadish, 490 U.S. 605, 617-618, 109 S.Ct. 2037, 104 L.Ed.2d 696. The city has an ongoing injury because it is barred from enforcing the ordinance's public nudity provisions. If the ordinance is found constitutional, then Erie can enforce it, and the availability of such relief is sufficient to prevent the case from being moot. See Church of Scientology of Cal. v. United States, 506 U.S. 9, 13, 113 S.Ct. 447, 121 L.Ed.2d 313. And Pap's still has a concrete stake in the case's outcome because, to the extent it has an interest in resuming operations, it Page 4 **1385 has an interest in preserving the judgment below. This Court's interest in preventing litigants from attempting to manipulate its jurisdiction to insulate a favorable decision from review further counsels against a finding of mootness. See, e.g., United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303. Pp. 1390-1391. Justice O'CONNOR, joined by THE CHIEF JUSTICE, Justice KENNEDY, and Justice BREYER, concluded in Parts III and IV that: 1. Government restrictions on public nudity such as Erie's ordinance should be evaluated under the framework set forth in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672, for content-neutral restrictions on symbolic speech. Although being "in a state of nudity" is not an inherently expressive condition, nude dancing of the type at issue here is expressive conduct that falls within the outer ambit of the First Amendment's protection. See, e.g., Barnes, supra, at 565-566, 111 S.Ct. 2456 (plurality opinion). What level of scrutiny applies is determined by whether the ordinance is related to the suppression of expression. E.g., ^ Texas v. Johnson, 491 U.S. 397, 403, 109 S.Ct. 2533, 105 L.Ed.2d 342. If the governmental purpose in enacting the ordinance is unrelated to such suppression, the ordinance need only satisfy the "less stringent," intermediate O'Brien standard. E.g., Johnson, supra, at 403, 109 S.Ct. 2533. If the governmental interest is related to the expression's content, however, the ordinance falls outside O'Brien and must be justified under the more demanding, strict scrutiny standard. Johnson, supra, at 403, 109 S.Ct. 2533. An almost identical public nudity ban was held not to violate the First Amendment in Barnes, although no five Members of the Court agreed on a single rationale for that conclusion. The ordinance here, like the statute in Barnes, is on its face a general prohibition on public nudity. By its terms, it regulates conduct alone. It does not target *279 nudity that contains an erotic message; rather, it bans all public nudity, regardless of whether that nudity is accompanied by expressive activity. Although Pap's contends that the ordinance is related to the suppression of expression because its preamble suggests that its actual purpose is to prohibit erotic dancing of the type performed at .*-*. Kandyland, that is not how the Pennsylvania Supreme Court interpreted that language.<<**** Rather, the Pennsylvania Supreme Court construed the preamble to mean that one purpose of the ordinance was to combat negative secondary effects. That is, the ordinance is aimed at combating crime and other negative secondary effects caused by the presence of adult entertainment establishments like Kandyland, and not at suppressing the erotic message conveyed by this type of nude dancing. See 391 U.S., at 382, 88 S.Ct. 1673; see also Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1 157, 99 L.Ed.2d 333. The Pennsylvania Supreme Court's ultimate conclusion that the ordinance was nevertheless content based relied on Justice White's position in dissent in Barnes that a ban of this type necessarily has the purpose of suppressing the erotic message of the dance. That view was rejected by a majority of the Court in Barnes, and is here rejected again. Pap's argument that the ordinance is "aimed" at suppressing expression through a ban on nude dancing is really an argument that Erie also had an illicit motive in enacting the ordinance. However, this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit motive. O'Brien, supra, at 382-383, 88 S.Ct. 1673. Even if Erie's public nudity ban has some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch is dropped, the dancers at Kandyland and other such establishments are free to perform wearing pasties and G-strings. Any effect on the overall expression is therefore de minims. If States are to be able to regulate secondary effects, then such de minimis intrusions on **1386 expression cannot be sufficient to render the ordinance content based. See, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288, 299, 104 S.Ct. 3065, 82 L.Ed.2d 221. Thus, Erie's ordinance is valid if it satisfies the O'Brien test. Pp. 1391-1395. 2. Erie's ordinance satisfies O'Brien's four-factor test. First, the ordinance is within Erie's constitutional power to enact because the city's efforts to protect public health and safety are clearly within its police powers. Second, the ordinance furthers the important government interests of regulating conduct through a public nudity ban and of combating the harmful secondary effects associated with nude dancing. In terms of demonstrating that such secondary effects pose a threat, the city need not conduct new studies or produce evidence independent of that already generated by other cities, so long as the evidence relied on is reasonably believed to Page 5 be relevant to the problem addressed. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52, 106 S.Ct. 925, 89 L.Ed.2d 29. Erie could reasonably *280 rely on the evidentiary foundation set forth in Renton and Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310, to the effect that secondary effects are caused by the presence of even one adult entertainment establishment in a given neighborhood. See Renton, supra, at 51-52, 106 S.Ct. 925. In fact, Erie expressly relied on Barnes and its discussion of secondary effects, including its reference to Renton and American Mini Theatres. The evidentiary standard described in Renton controls here, and Erie meets that standard. In any event, the ordinance's preamble also relies on the city council's express findings that "certain lewd, immoral activities carried on in public places for profit are highly detrimental to the public health, safety and welfare ...." The council members, familiar with commercial downtown Erie, are the individuals who would likely have had first-hand knowledge of what took place at, and around, nude dancing establishments there, and can make particularized, expert judgments about the resulting harmful secondary effects. Cf., e.g., FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 98 S.Ct. 2096, 56 L.Ed.2d 697. The fact that this sort of leeway is appropriate in this case, which involves a content-neutral restriction that regulates conduct, says nothing whatsoever about its appropriateness in a case involving actual regulation of First Amendment expression. Also, although requiring dancers to wear pasties and G-strings may not greatly reduce these secondary effects, O'Brien requires only that the regulation further the interest in combating such effects. The ordinance also satisfies O'Brien's third factor, that the government interest is unrelated to the suppression of free expression, as discussed supra. The fourth O'Brien factor—that the restriction is no greater than is essential to the furtherance of the government interest—is satisfied as well. The ordinance regulates conduct, and any incidental impact on the expressive element of nude dancing is de minimis. The pasties and G-string requirement is a minimal restriction in furtherance of the asserted government interests, and the restriction leaves ample capacity to convey the dancer's erotic message. See, e.g., Barnes, 501 U.S., at 572, 111 S.Ct. 2456. Pp. 1395-1398. Justice SCALIA, joined by Justice THOMAS, agreed that the Pennsylvania Supreme Court's decision must be reversed, but disagreed with the mode of analysis that should be applied. Erie self-consciously modeled its ordinance on the public nudity statute upheld in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504, calculating (one would have supposed reasonably) that the Pennsylvania courts would consider themselves bound by this Court's judgment on a question of federal constitutional law. That statute was constitutional not because it survived some lower level of First Amendment scrutiny, but because, as a **1387 general law regulating conduct and not specifically directed at expression, it was not subject to First Amendment scrutiny at all. Id., at572, 111 S.Ct. 2456 (SCALIA, J., concurring in *281 judgment). Erie's ordinance, too, by its terms prohibits not merely nude dancing, but the act—irrespective of whether it is engaged in for expressive purposes~of going nude in public. The facts that the preamble explains the ordinance's purpose, in part, as limiting a recent increase in nude live entertainment, that city councilmembers in supporting the ordinance commented to that effect, and that the ordinance includes in the definition of nudity the exposure of devices simulating that condition, neither make the law any less general in its reach nor demonstrate that what the municipal authorities really find objectionable is expression rather than public nakedness. That the city made no effort to enforce the ordinance against a production of Equus involving nudity that was being staged in Erie at the time the ordinance became effective does not render the ordinance discriminatory on its face. The assertion of the city's counsel in the trial court that the ordinance would not cover theatrical productions to the extent their expressive activity rose to a higher level of protected expression simply meant that the ordinance would not be enforceable against such productions if the Constitution forbade it. That limitation does not cause the ordinance to be not generally applicable, in the relevant sense of being targeted against expressive conduct. Moreover, even if it could be concluded that Erie specifically singled out the activity of nude dancing, the ordinance still would not violate the First Amendment unless it could be proved (as on this record it could not) that it was the communicative character of nude dancing that prompted the ban. See id., at 577, 111 S.Ct. 2456. There is no need to identify "secondary effects" associated with nude dancing that Erie could properly seek to eliminate. The traditional Page 6 power of government to foster good morals, and the acceptability of the traditional judgment that nude public dancing itself is immoral, have not been repealed by the First Amendment. Pp. 1400-1402. O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which REHNQUIST, C.J., and KENNEDY, SOUTER, and BREYER, JJ., joined, and an opinion with respect to Parts HI and IV, in which REHNQUIST, C.J., and KENNEDY and BREYER, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined, post, p. 1398. SOUTER, J., filed an opinion concurring in part and dissenting in part, post, p. 1402. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined, post, p. 1406. Gregory A. Karle, Erie, PA, for petitioners. *282 John H. Weston, Los Angeles, CA, for respondent. For U.S. Supreme Court Briefs See: 1999 WL 996952 (Reply.Brief) 1999 WL 809553 (Resp.Brief) 1999 WL 618392 (Pet.Brief) 1999 WL 975728 (Amicus.Brief) 1999 WL 966525 (Amicus.Brief) 1999 WL 805047 (Amicus.Brief) 1999 WL 787894 (Amicus.Brief) 1999 WL 787890 (Amicus.Brief) 1999 WL 787886 (Amicus.Brief) 1999 WL 787884 (Amicus.Brief) 1999 WL 787880 (Amicus.Brief) 1999 WL 679047 (Amicus.Brief) 1999 WL 631666 (Amicus.Brief) 1999 WL 631665 (Amicus.Brief) 1999 WL 627099 (Amicus.Brief) 1999 WL 592028 (Amicus.Brief) 1999 WL 459580 (Amicus.Brief) For Transcript of Oral Argument See: 1999 WL 1075161 (U.S.Oral.Arg.) Justice O'CONNOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, and an opinion with respect to Parts III and IV, in which THE CHIEF JUSTICE, Justice KENNEDY, and Justice BREYER join. The city of Erie, Pennsylvania, enacted an ordinance banning public nudity. Respondent Pap's A.M. (hereinafter *283 Pap's), which operated a nude dancing establishment in Erie, challenged the constitutionality of the ordinance and sought a permanent injunction against its enforcement. The Pennsylvania Supreme Court, although noting that this Court in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), had upheld an Indiana ordinance that was "strikingly **1388 similar" to Erie's, found that the public nudity sections of the ordinance violated respondent's right to freedom of expression under the United States Constitution. 553 Pa. 348, 356, 719 A.2d 273, 277 (1998). This case raises the question whether the Pennsylvania Supreme Court properly evaluated the ordinance's constitutionality under the First Amendment. We hold that Erie's ordinance is a content-neutral regulation that satisfies the four-part test of United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Accordingly, we reverse the decision of the Pennsylvania Supreme Court and remand for the consideration of any remaining issues. I On September 28, 1994, the city council for the city of Erie, Pennsylvania, enacted Ordinance 75-1994, a public indecency ordinance that makes it a summary offense to knowingly or intentionally appear in public in a "state of nudity." [FN*] *284 Respondent Pap's, a Pennsylvania corporation, operated an establishment in Erie known as "Kandyland" that featured totally nude erotic dancing performed by women. To comply with the ordinance, these dancers must wear, at a minimum, "pasties" and a "G-string." On October 14, 1994, two days after the ordinance went into effect, Pap's filed a Page 7 complaint against the city of Erie, the mayor of the city, and members of the city council, seeking declaratory relief and a permanent injunction against the enforcement of the ordinance. FN* Ordinance 75-1994, codified as Article 711 of the Codified Ordinances of the city of Erie, provides in relevant part: "1. A person who knowingly or intentionally, in a public place: "a. engages in sexual intercourse "b. engages in deviate sexual intercourse as defined by the Pennsylvania Crimes Code "c. appears in a state of nudity, or "d. fondles the genitals of himself, herself or another person commits Public Indecency, a Summary Offense. "2. "Nudity" means the showing of the human male or female genital [sic], pubic area or buttocks with less than a fully opaque covering; the showing of the female breast with less than a fully opaque covering of any part of the nipple; the exposure of any device, costume, or covering which gives the appearance of or simulates the genitals, pubic hair, natal cleft, perineum anal region or pubic hair region; or the exposure of any device worn as a cover over the nipples and/or areola of the female breast, which device simulates and gives the realistic appearance of nipples and/or areola. "3. "Public Place" includes all outdoor places owned by or open to the general public, and all buildings and enclosed places owned by or open to the general public, including such places of entertainment, taverns, restaurants, clubs, theaters, dance halls, banquet halls, party rooms or halls limited to specific members, restricted to adults or to patrons invited to attend, whether or not an admission charge is levied. "4. The prohibition set forth in subsection l(c) shall not apply to: "a. Any child under ten (10) years of age; or "b. Any individual exposing a breast in the process of breastfeeding an infant under two (2) years of age." The Court of Common Pleas of Erie County granted the permanent injunction and struck down the ordinance as unconstitutional. Civ. No. 60059-1994 (Jan. 18, 1995), Pet. for Cert. 40a. On cross appeals, the Commonwealth Court reversed the trial court's order. 674 A.2d 338 (1996). The Pennsylvania Supreme Court granted review and reversed, concluding that the public nudity provisions of the ordinance violated respondent's rights to freedom of expression as protected by the First and Fourteenth Amendments. 553 Pa. 348, 719 A.2d 273 (1998). The Pennsylvania court first inquired whether nude dancing constitutes expressive conduct that is within the protection of the First Amendment. The court noted that the act of being nude, in and of *28S itself, is not entitled to First Amendment protection because it conveys no message. Id., at 354, 719 A.2d, at 276. Nude dancing, however, is expressive conduct that is entitled to some quantum of protection under the **1389 First Amendment, a view that the Pennsylvania Supreme Court noted was endorsed by eight Members of this Court in Barnes. 553 Pa., at 354, 719 A.2d, at 276. The Pennsylvania court next inquired whether the government interest in enacting the ordinance was content neutral, explaining that regulations that are unrelated to the suppression of expression are not subject to strict scrutiny but to the less stringent standard of United States v. O'Brien, supra, at 377, 88 S.Ct. 1673. To answer the question whether the ordinance is content based, the court turned to our decision in Barnes. 553 Pa., at 355-356, 719 A.2d, at 277. Although the Pennsylvania court noted that the Indiana statute at issue in Barnes "is strikingly similar to the Ordinance we are examining," it concluded that "[ujnfortunately for our purposes, the Barnes Court splintered and produced four separate, non-harmonious opinions. " 553 Pa., at 356, 719 A.2d, at 277. After canvassing these separate opinions, the Pennsylvania court concluded that, although it is permissible to find precedential effect in a fragmented decision, to do so a majority of the Court must have been in agreement on the concept that is deemed to be the holding. See Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). The Pennsylvania court noted that "aside from the agreement by a majority of the Barnes Court that nude dancing is entitled to some First Amendment protection, we can find no point on which a majority of the Barnes Court agreed. " PageS 553 Pa., at 358, 719 A.2d, at 278. Accordingly, the court concluded that "no clear precedent arises out of Barnes on the issue of whether the [Erie] ordinance ... passes muster under the First Amendment." Ibid. Having determined that there was no United States Supreme Court precedent on point, the Pennsylvania court *286 conducted an independent examination of the ordinance to ascertain whether it was related to the suppression of expression. The court concluded that although one of the purposes of the ordinance was to combat negative secondary effects, "[i]nextricably bound up with this stated purpose is an unmentioned purpose ... to impact negatively on the erotic message of the dance." Id., at 359, 719 A.2d, at 279. As such, the court determined the ordinance was content based and subject to strict scrutiny. The ordinance failed the narrow tailoring requirement of strict scrutiny because the court found that imposing criminal and civil sanctions on those who commit sex crimes would be a far narrower means of combating secondary effects than the requirement mat dancers wear pasties and G-strings. Id., at 361-362, 719 A.2d, at 280. Concluding that the ordinance unconstitutionally burdened respondent's expressive conduct, the Pennsylvania court then determined that, under Pennsylvania law, the public nudity provisions of the ordinance could be severed rather than striking the ordinance in its entirety. Accordingly, the court severed §§ l(c) and 2 from the ordinance and reversed the order of the Commonwealth Court. Id., at 363-364, 719 A.2d, at 281. Because the court determined that the public nudity provisions of the ordinance violated Pap's right to freedom of expression under the United States Constitution, it did not address the constitutionality of the ordinance under the Pennsylvania Constitution or the claim that the ordinance is unconstitutionally overbroad. Ibid. In a separate concurrence, two justices of the Pennsylvania court noted that, because this Court upheld a virtually identical statute in Barnes, the ordinance should have been upheld under the United States Constitution. 553 Pa., at 364, 719 A.2d, at 281. They reached the same result as the majority, however, because they would have held mat the public nudity sections of the ordinance violate the Pennsylvania Constitution. Id., at 370, 719 A.2d, at 284. *287 The city of Erie petitioned for a writ of certiorari, which we granted. 526 U.S. **1390 1111, 119 S.Ct. 1753, 143 L.Ed.2d 786 (1999). Shortly thereafter, Pap's filed a motion to dismiss the case as moot, noting that Kandyland was no longer operating as a nude dancing club, and Pap's was not operating a nude dancing club at any other location. Respondent's Motion to Dismiss as Moot 1. We denied the motion. 527 U.S. 1034, 119 S.Ct. 2391, 144 L.Ed.2d 792 (1999). II [1] As a preliminary matter, we must address the justiciability question. " '[A] case is moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.' " County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)). The underlying concern is that, when the challenged conduct ceases such that " 'there is no reasonable expectation that the wrong will be repeated,' " United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953), then it becomes impossible for the court to grant" 'any effectual relief whatever' to [the] prevailing party," Church of Scientology ofCal. v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895)). In that case, any opinion as to the legality of the challenged action would be advisory. [2] Here, Pap's submitted an affidavit stating that it had "ceased to operate a nude dancing establishment in Erie." Status Report Re Potential Issue of Mootness 1 (Sept. 8, 1999). Pap's asserts that the case is therefore moot because "[t]he outcome of this case will have no effect upon Respondent." Respondent's Motion to Dismiss as Moot 1. Simply closing Kandyland is not sufficient to render mis case moot, however. Pap's is still incorporated under Pennsylvania law, and it could again decide to operate a nude dancing establishment in Erie. See Petitioner's Brief in Opposition to Motion to Dismiss 3. Justice SCALIA differs with our assessment as to the likelihood that Pap's may resume its nude dancing *288 operation. Several Members of this Court can attest, however, that the "advanced age" of Pap's owner (72) does not make it "absolutely clear" that a life of quiet Page 9 retirement is his only reasonable expectation. Cf. Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Moreover, our appraisal of Pap's affidavit is influenced by Pap's failure, despite its obligation to the Court, to mention a word about the potential mootness issue in its brief in opposition to the petition for writ of certiorari, which was filed in April 1999, even though, as Justice SCALIA points out, Kandyland was closed and that property sold in 1998. See Board of License Conm'rs ofTiverton v. Pastore, 469 U.S. 238, 240, 105 S.Ct. 685, 83 L.Ed.2d 618 (1985) (per curiam). Pap's only raised the issue after this Court granted certiorari. In any event, this is not a run of the mill voluntary cessation case. Here it is the plaintiff who, having prevailed below, now seeks to have the case declared moot. And it is the city of Erie that seeks to invoke the federal judicial power to obtain this Court's review of the Pennsylvania Supreme Court decision. Cf. ASARCO Inc. v. Kadish, 490 U.S. 605, 617-618, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989). The city has an ongoing injury because it is barred from enforcing the public nudity provisions of its ordinance. If the challenged ordinance is found constitutional, then Erie can enforce it, and the availability of such relief is sufficient to prevent the case from being moot. See Church of Scientology of Cal. v. United States, supra, at 13, 113 S.Ct. 447. And Pap's still has a concrete stake in the outcome of this case because, to the extent Pap's has an interest in resuming operations, it has an interest in preserving the judgment of the Pennsylvania Supreme Court. Our interest in preventing litigants from attempting **1391 to manipulate the Court's jurisdiction to insulate a favorable decision from review further counsels against a finding of mootness here. See United States v. W. T. Grant Co., supra, at 632, 73 S.Ct. 894; cf. Arizonans for Official English v. Arizona, 520 U.S. 43, *289 74, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). Although the issue is close, we conclude that the case is not moot, and we turn to the merits. Ill [3] Being "in a state of nudity" is not an inherently expressive condition. As we explained in Barnes, however, nude dancing of the type at issue here is expressive conduct, although we think that it falls only within the outer ambit of the First Amendment's protection. See Barnes v. Glen Theatre, Inc., 501 U.S., at 565-566, 111 S.Ct. 2456 (plurality opinion); Schad v. Mount Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 68 L.Ed.2d671 (1981). [4] To determine what level of scrutiny applies to the ordinance at issue here, we must decide "whether the State's regulation is related to the suppression of expression. " Texas v. Johnson, 491 U.S. 397, 403, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); see also United States v. O'Brien, 391 U.S., at 377, 88 S.Ct. 1673. If the governmental purpose in enacting the regulation is unrelated to the suppression of expression, then the regulation need only satisfy the "less stringent" standard from O'Brien for evaluating restrictions on symbolic speech. Texas v. Johnson, supra, at 403, 109 S.Ct. 2533; United States v. O'Brien, supra, at 377, 88 S.Ct. 1673. If the government interest is related to the content of the expression, however, then the regulation falls outside the scope of the O'Brien test and must be justified under a more demanding standard. Texas v. Johnson, supra, at 403, 109 S.Ct. 2533. [5] In Barnes, we analyzed an almost identical statute, holding that Indiana's public nudity ban did not violate the First Amendment, although no five Members of the Court agreed on a single rationale for that conclusion. We now clarify that government restrictions on public nudity such as the ordinance at issue here should be evaluated under the framework set forth in O'Brien for content-neutral restrictions on symbolic speech. The city of Erie argues that the ordinance is a content-neutral restriction that is reviewable under O'Brien because the ordinance bans conduct, not speech; specifically, public *290 nudity. Respondent counters that the ordinance targets nude dancing and, as such, is aimed specifically at suppressing expression, making the ordinance a content-based restriction that must be subjected to strict scrutiny. [6] The ordinance here, like the statute in Barnes, is on its face a general prohibition on public nudity. 553 Pa., at 354, 719 A.2d, at 277. By its terms, the ordinance regulates conduct alone. It does not target nudity that contains an erotic message; rather, it bans all public nudity, regardless of whether that nudity Page 10 is accompanied by expressive activity. And like the statute in Barnes, the Erie ordinance replaces and updates provisions of an "Indecency and Immorality" ordinance that has been on the books since 1866, predating the prevalence of nude dancing establishments such as Kandyland. Pet. for Cert. 7a; see Barnes v. Glen Theatre, Inc., supra, at 568, 111 S.Ct. 2456. Respondent and Justice STEVENS contend nonetheless that the ordinance is related to the suppression of expression because language in the ordinance's preamble suggests that its actual purpose is to prohibit erotic dancing of the type performed at Kandyland. Post, at 1406 (dissenting opinion). That is not how the Pennsylvania Supreme Court interpreted that language, however. In the preamble to the ordinance, the city council stated that it was adopting the regulation " 'for the purpose of limiting a recent increase in nude live entertainment within the City, which activity adversely **1392 impacts and threatens to impact on the public health, safety and welfare by providing an atmosphere conducive to violence, sexual harassment, public intoxication, prostitution, the spread of sexually transmitted diseases and other deleterious effects.' " 553 Pa., at 359, 719 A.2d, at 279. The Pennsylvania Supreme Court construed this language to mean mat one purpose of the ordinance was "to combat negative secondary effects." Ibid. *291 As Justice SOUTER noted in Barnes, "on its face, the governmental interest in combating prostitution and other criminal activity is not at all inherently related to expression." 501 U.S., at 585, 111 S.Ct. 2456 (opinion concurring in judgment). In that sense, mis case is similar to O'Brien. O'Brien burned his draft registration card as a public statement of his antiwar views, and he was convicted under a statute making it a crime to knowingly mutilate or destroy such a card. This Court rejected his claim that the statute violated his First Amendment rights, reasoning that the law punished him for the "noncommunicative impact of his conduct, and for nothing else." 391 U.S., at 382, 88 S.Ct. 1673. In other words, the Government regulation prohibiting the destruction of draft cards was aimed at maintaining the integrity of the Selective Service System and not at suppressing the message of draft resistance that O'Brien sought to convey by burning his draft card. So too here, the ordinance prohibiting public nudity is aimed at combating crime and other negative secondary effects caused by the presence of adult entertainment establishments like Kandyland and not at suppressing the erotic message conveyed by this type of nude dancing. Put another way, the ordinance does not attempt to regulate the primary effects of the expression, i.e., the effect on the audience of watching nude erotic dancing, but rather the secondary effects, such as the impacts on public health, safety, and welfare, which we have previously recognized are "caused by the presence of even one such" establishment. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48, 50, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); see also Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1 157, 99 L.Ed.2d 333 (1988). Although the Pennsylvania Supreme Court acknowledged that one goal of the ordinance was to combat the negative secondary effects associated with nude dancing establishments, the court concluded that the ordinance was nevertheless content based, relying on Justice White's position in dissent in Barnes for the proposition that a ban of this type necessarily has the purpose of suppressing the erotic message *292 of the dance. Because the Pennsylvania court agreed with Justice White's approach, it concluded that the ordinance must have another, "unmentioned" purpose related to the suppression of expression. 553 Pa., at 359, 719 A.2d, at 279. That is, the Pennsylvania court adopted the dissent's view in Barnes that " '[s]ince the State permits the dancers to perform if they wear pasties and G--strings but forbids nude dancing, it is precisely because of the distinctive, expressive content of the nude dancing performances at issue in this case that the State seeks to apply the statutory prohibition. ' " 553 Pa., at 359, 719 A.2d, at 279 (quoting Barnes, supra, at 592, 111 S.Ct. 2456 (White, J., dissenting)). A majority of the Court rejected that view in Barnes, and we do so again here. [7] Respondent's argument that the ordinance is "aimed" at suppressing expression through a ban on nude dancing—an argument that respondent supports by pointing to statements by the city attorney that the public nudity ban was not intended to apply to "legitimate" theater productions— is really an argument that the city council also had an illicit motive in enacting the ordinance. As we have said before, however, this Court will not strike down an otherwise Page 11 constitutional statute on the basis of an alleged illicit motive. O'Brien, supra, at 382-383, 88 S.Ct. 1673; **1393 Renton v. Playtime Theatres, Inc., supra, at 47-48, 106 S.Ct. 925 (that the "predominate" purpose of the statute was to control secondary effects was "more than adequate to establish" that the city's interest was unrelated to the suppression of expression). In light of the Pennsylvania court's determination that one purpose of the ordinance is to combat harmful secondary effects, the ban on public nudity here is no different from the ban on burning draft registration cards in O'Brien, where the Government sought to prevent the means of the expression and not the expression of antiwar sentiment itself. Justice STEVENS argues that the ordinance enacts a complete ban on expression. We respectfully disagree with that characterization. The public nudity ban certainly has *293 the effect of limiting one particular means of expressing the kind of erotic message being disseminated at Kandyland. But simply to define what is being banned as the "message" is to assume the conclusion. We did not analyze the regulation in O'Brien as having enacted a total ban on expression. Instead, the Court recognized that the regulation against destroying one's draft card was justified by the Government's interest in preventing the harmful "secondary effects" of that conduct (disruption to the Selective Service System), even though that regulation may have some incidental effect on the expressive element of the conduct. Because this justification was unrelated to the suppression of O'Brien's antiwar message, the regulation was content neutral. Although there may be cases in which banning the means of expression so interferes with the message that it essentially bans the message, that is not the case here. Even if we had not already rejected the view that a ban on public nudity is necessarily related to the suppression of the erotic message of nude dancing, we would do so now because the premise of such a view is flawed. The State's interest in preventing harmful secondary effects is not related to the suppression of expression. In trying to control the secondary effects of nude dancing, the ordinance seeks to deter crime and the other deleterious effects caused by the presence of such an establishment in the neighborhood. See Renton, supra, at 50-51,106 S.Ct. 925. In Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984), we held that a National Park Service regulation prohibiting camping in certain parks did not violate the First Amendment when applied to prohibit demonstrators from sleeping in Lafayette Park and the Mall in Washington, D.C., in connection with a demonstration intended to call attention to the plight of the homeless. Assuming, arguendo, that sleeping can be expressive conduct, the Court concluded that the Government interest in conserving park property was unrelated to the demonstrators' message about homelessness. Id., at 299, 104 S.Ct. 3065. *294 So, while the demonstrators were allowed to erect "symbolic tent cities," they were not allowed to sleep overnight in those tents. Even though the regulation may have directly limited the expressive element involved in actually sleeping in the park, the regulation was nonetheless content neutral. Similarly, even if Erie's public nudity ban has some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch is dropped, the dancers at Kandyland and other such establishments are free to perform wearing pasties and G-strings. Any effect on the overall expression is de minimis. And as Justice STEVENS eloquently stated for the plurality in Young v. American Mini Theatres, Inc., 427 U.S. 50, 70, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), "even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the **1394 interest in untrammeled political debate," and "few of us would march our sons and daughters off to war to preserve the citizen's right to see" specified anatomical areas exhibited at establishments like Kandyland. If States are to be able to regulate secondary effects, then de minimis intrusions on expression such as those at issue here cannot be sufficient to render the ordinance content based. See Clark v. Community for Creative Non-Violence, supra, at 299, 104 S.Ct. 3065; Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (even if regulation has an incidental effect on some speakers or messages but not others, the regulation is content neutral if it can be justified without reference to the content of the expression). This case is, in fact, similar to O'Brien, Community for Creative Non— Violence, and Ward. The justification for the government regulation in each case prevents harmful "secondary" effects that are unrelated to the suppression of expression. See, e.g.. Ward v. Rock Against Racism, supra, at 791-792, 109 S.Ct. 2746 (noting that "[t]he principal justification for the *295 sound-amplification guideline is the city's desire to control noise levels at bandshell events, in order to retain the character of the [adjacent] Sheep Meadow and its more sedate activities," and citing Renton for the proposition that "[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others"). While the doctrinal theories behind "incidental burdens" and "secondary effects" are, of course, not identical, there is nothing objectionable about a city passing a general ordinance to ban public nudity (even though such a ban may place incidental burdens on some protected speech) and at the same time recognizing that one specific occurrence of public nudity-nude erotic dancing—is particularly problematic because it produces harmful secondary effects. Justice STEVENS claims that today we "[fjor the first time" extend Renton's secondary effects doctrine to justify restrictions other than the location of a commercial enterprise. Post, at 1406 (dissenting opinion). Our reliance on Renton to justify other restrictions is not new, however. In Ward, the Court relied on Renton to evaluate restrictions on sound amplification at an outdoor bandshell, rejecting the dissent's contention that Renton was inapplicable. See Ward v. Rock Against Racism, supra, at 804, n. 1, 109 S.Ct. 2746 (Marshall, J., dissenting) ("Today, for the first time, a majority of the Court applies Renton analysis to a category of speech far afield from that decision's original limited focus"). Moreover, Erie's ordinance does not effect a "total ban" on protected expression. Post, at 1407. In Renton, the regulation explicitly treated "adult" movie theaters differently from other theaters, and defined "adult" theaters solely by reference to the content of their movies. 475 U.S., at 44, 106 S.Ct. 925. We nonetheless treated the zoning regulation as content neutral because the ordinance was aimed at the secondary effects of adult theaters, a justification unrelated to the content of the adult movies Page 12 themselves. Id., at *296 48, 106 S.Ct. 925. Here, Erie's ordinance is on its face a content- neutral restriction on conduct. Even if the city thought that nude dancing at clubs like Kandyland constituted a particularly problematic instance of public nudity, the regulation is still properly evaluated as a content-neutral restriction because the interest in combating the secondary effects associated with those clubs is unrelated to the suppression of the erotic message conveyed by nude dancing. We conclude that Erie's asserted interest in combating the negative secondary effects associated with adult entertainment establishments like Kandyland is unrelated to the suppression of the erotic message conveyed by nude dancing. The ordinance prohibiting public nudity is therefore valid **1395 if it satisfies the four-factor test from O'Brien for evaluating restrictions on symbolic speech. IV [8][9][10][11] Applying that standard here, we conclude that Erie's ordinance is justified under O'Brien. The first factor of the O'Brien test is whether the government regulation is within the constitutional power of the government to enact. Here, Erie's efforts to protect public health and safety are clearly within the city's police powers. The second factor is whether the regulation furthers an important or substantial government interest. The asserted interests of regulating conduct through a public nudity ban and of combating the harmful secondary effects associated with nude dancing are undeniably important. And in terms of demonstrating that such secondary effects pose a threat, the city need not "conduct new studies or produce evidence independent of that already generated by other cities" to demonstrate the problem of secondary effects, "so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses." Renton v. Playtime Theatres, Inc., supra, at 51-52, 106 S.Ct. 925. Because the nude dancing at Kandyland is of the same character as the adult entertainment *297 at issue in Renton, Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), and California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), it was reasonable for Erie to conclude that such nude dancing was likely to produce the same secondary effects. And Erie could reasonably rely on the Page 13 evidentiary foundation set forth in Renton and American Mini Theatres to the effect that secondary effects are caused by the presence of even one adult entertainment establishment in a given neighborhood. See Renton v. Playtime Theatres, Inc., supra, at 51-52, 106 S.Ct. 925 (indicating that reliance on a judicial opinion that describes the evidentiary basis is sufficient). In fact, Erie expressly relied on Barnes and its discussion of secondary effects, including its reference to Renton and American Mini Theatres. Even in cases addressing regulations that strike closer to the core of First Amendment values, we have accepted a state or local government's reasonable belief that the experience of other jurisdictions is relevant to the problem it is addressing. See Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 393, n. 6, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) Regardless of whether Justice SOUTER now wishes to disavow his opinion in Barnes on this point, see post, at 1406 (opinion concurring in part and dissenting in part), the evidentiary standard described in Renton controls here, and Erie meets that standard. [12] In any event, Erie also relied on its own findings. The preamble to the ordinance states that "the Council of the City of Erie has, at various times over more than a century, expressed its findings that certain lewd, immoral activities carried on in public places for profit are highly detrimental to the public health, safety and welfare, and lead to the debasement of both women and men, promote violence, public intoxication, prostitution and other serious criminal activity." Pet. for Cert. 6a (emphasis added). The city council members, familiar with commercial downtown Erie, are the individuals who would likely have had firsthand knowledge of what took place at and around nude dancing establishments *298 in Erie, and can make particularized, expert judgments about the resulting harmful secondary effects. Analogizing to the administrative agency context, it is well established that, as long as a party has an opportunity to respond, an administrative agency may take official notice of such "legislative facts" within its special knowledge, and is not confined to the evidence in the record in reaching its expert judgment. See FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 98 S.Ct. 2096, 56 L.Ed.2d 697 (1978); Republic Aviation **1396 Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945); 2 K. Davis & R. Pierce, Administrative Law Treatise § 10.6 (3d ed.1994). Here, Kandyland has had ample opportunity to contest the council's findings about secondary effects-before the council itself, throughout the state proceedings, and before this Court. Yet to this day, Kandyland has never challenged the city council's findings or cast any specific doubt on the validity of those findings. Instead, it has simply asserted that the council's evidentiary proof was lacking. In the absence of any reason to doubt it, the city's expert judgment should be credited. And the study relied on by amicus curiae does not cast any legitimate doubt on the Erie city council's judgment about Erie. See Brief for First Amendment Lawyers Association as Amicus Curiae 16-23. Finally, it is worth repeating that Erie's ordinance is on its face a content-neutral restriction that regulates conduct, not First Amendment expression. And the government should have sufficient leeway to justify such a law based on secondary effects. On this point, O'Brien is especially instructive. The Court there did not require evidence that the integrity of the Selective Service System would be jeopardized by the knowing destruction or mutilation of draft cards. It simply reviewed the Government's various administrative interests in issuing the cards, and then concluded that "Congress has a legitimate and substantial interest in preventing their wanton and unrestrained destruction and assuring their continuing availability by punishing people *299 who knowingly and willfully destroy or mutilate them." 391 U.S., at 378-380, 88 S.Ct. 1673. There was no study documenting instances of draft card mutilation or the actual effect of such mutilation on the Government's asserted efficiency interests. But the Court permitted Congress to take official notice, as it were, that draft card destruction would jeopardize the system. The fact that this sort of leeway is appropriate in a case involving conduct says nothing whatsoever about its appropriateness in a case involving actual regulation of First Amendment expression. As we have said, so long as the regulation is unrelated to the suppression of expression, "[t]he government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word." Texas v. Johnson, 491 U.S., at 406, 109 S.Ct. 2533. See, e.g., United States v, O'Brien, supra, at 377, 88 S.Ct. 1673; United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985) (finding sufficient the Government's assertion that those Page 14 who had previously been barred from entering the military installation pose a threat to the security of that installation); Clark v. Community for Creative Non-Violence, 468 U.S., at 299, 104 S.Ct. 3065 (finding sufficient the Government's assertion that camping overnight in the park poses a threat to park property). Justice SOUTER, however, would require Erie to develop a specific evidentiary record supporting its ordinance. Post, at 1405-1406 (opinion concurring in part and dissenting in part). Justice SOUTER agrees that Erie's interest in combating the negative secondary effects associated with nude dancing establishments is a legitimate government interest unrelated to the suppression of expression, and he agrees that the ordinance should therefore be evaluated under O'Brien. O'Brien, of course, required no evidentiary showing at all that the threatened harm was real. But that case is different, Justice SOUTER contends, because in O'Brien "there could be no doubt" that a regulation prohibiting the destruction of draft cards would alleviate the harmful secondary effects *300 flowing from the destruction of those cards. Post, at 1402-1403, n. 1. But whether the harm is evident to our "intuition," ibid., is not the proper inquiry. If it were, we would simply say there is no doubt that a regulation prohibiting public nudity would alleviate the harmful secondary effects associated with nude dancing. In any event, Justice SOUTER conflates **1397 two distinct concepts under O'Brien: whether there is a substantial government interest and whether the regulation furthers that interest. As to the government interest, i.e., whether the threatened harm is real, the city council relied on this Court's opinions detailing the harmful secondary effects caused by establishments like Kandyland, as well as on its own experiences in Erie. Justice SOUTER attempts to denigrate the city council' s conclusion that the threatened harm was real, arguing that we cannot accept Erie's findings because the subject of nude dancing is "fraught with some emotionalism," post, at 1404. Yet surely the subject of drafting our citizens into the military is "fraught" with more emotionalism than the subject of regulating nude dancing. Ibid. Justice SOUTER next hypothesizes that the reason we cannot accept Erie's conclusion is that, since the question whether these secondary effects occur is "amenable to empirical treatment," we should ignore Erie's actual experience and instead require such an empirical analysis. Post, at 1404, n. 3 (referring to a "scientifically sound" study offered by an amicus curiae to show that nude dancing establishments do not cause secondary effects). In Nixon, however, we flatly rejected that idea. 528 U.S., at 394, 120 S.Ct. 897 (noting that the "invocation of academic studies said to indicate" that the threatened harms are not real is insufficient to cast doubt on the experience of the local government). As to the second point—whether the regulation furthers the government interest—it is evident that, since crime and other public health and safety problems are caused by the presence of nude dancing establishments like Kandyland, a *301 ban on such nude dancing would further Erie's interest in preventing such secondary effects. To be sure, requiring dancers to wear pasties and G-strings may not greatly reduce these secondary effects, but O'Brien requires only that the regulation further the interest in combating such effects. Even though the dissent questions the wisdom of Erie's chosen remedy, post, at 1409 (opinion of STEVENS, J.), the " 'city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems,' " Renton v. Playtime Theatres, Inc., 475 U.S., at 52, 106 S.Ct. 925 (quoting American Mini Theatres, 427 U.S., at 71, 96 S.Ct. 2440 (plurality opinion)). It also may be true that a pasties and G-string requirement would not be as effective as, for example, a requirement that the dancers be fully clothed, but the city must balance its efforts to address the problem with the requirement that the restriction be no greater than necessary to further the city's interest. The ordinance also satisfies O'Brien's third factor, that the government interest is unrelated to the suppression of free expression, as discussed supra, at 1390-1395. The fourth and final O'Brien factor—that the restriction is no greater than is essential to the furtherance of the government interest—is satisfied as well. The ordinance regulates conduct, and any incidental impact on the expressive element of nude dancing is de minimis. The requirement that dancers wear pasties and G-strings is a minimal restriction in furtherance of the asserted government interests, and the restriction leaves ample capacity to convey the dancer's erotic message. See Barnes v. Glen Theatre, Inc., 501 U.S., at 572, 111 S.Ct. 2456 (plurality opinion of REHNQUIST, C. J., joined by O'CONNOR Page 15 and KENNEDY, JJ.); id., at 587, 111 S.Ct. 2456 (SOUTER, J., concurring in judgment). Justice SOUTER points out that zoning is an alternative means of addressing this problem. It is far from clear, however, that zoning imposes less of a burden on expression than the minimal requirement implemented here. In any event, since this is a content-neutral restriction, least restrictive *302 means analysis is not required. See Ward, 491 U.S., at 798-799, n. 6, 109 S.Ct. 2746. **1398 We hold, therefore, that Erie's ordinance is a content-neutral regulation that is valid under O'Brien. Accordingly, the judgment of the Pennsylvania Supreme Court is reversed, and the case is remanded for further proceedings. It is so ordered. Justice SCALIA, with whom Justice THOMAS joins, concurring in the judgment. I In my view, the case before us here is moot. The Court concludes that it is not because respondent could resume its nude dancing operations in the future, and because petitioners have suffered an ongoing, redressable harm consisting of the state court's invalidation of their public nudity ordinance. As to the first point: Petitioners do not dispute that Kandyland no longer exists; the building in which it was located has been sold to a real estate developer, and the premises are currently being used as a comedy club. We have a sworn affidavit from respondent's sole shareholder, Nick Panos, to the effect that Pap's "operates no active business," and is "a 'shell' corporation." More to the point, Panos swears that neither Pap's nor Panos "employfs] any individuals involved in the nude dancing business," "maintain[s] any contacts in the adult entertainment business," "has any current interest in any establishment providing nude dancing," or "has any intention to own or operate a nude dancing establishment in the future." [FN1] App. to Reply to Brief in Opposition to Motion to Dismiss 7-8. FN1. Curiously, the Court makes no mention of Panos' averment of no intention to operate a nude dancing establishment in the future, but discusses the issue as though the only factor suggesting mootness is the closing of Kandyland. Ante, at 1390.1 see no basis for ignoring this averment. The only fact mentioned by the Court to justify regarding it as perjurious is that respondent failed to raise mootness in its brief in opposition to the petition for certiorari. That may be good basis for censure, but it is scant basis for suspicion of perjury-particularly since respondent, far from seeking to "insulate a favorable decision from review," ante, at 1391, asks us in light of the mootness to vacate the judgment below. Reply to Brief in Opposition to Motion to Dismiss 5. *303 Petitioners do not contest these representations, but offer in response only that Pap's could very easily get back into the nude dancing business. The Court adopts petitioners' line, concluding that because respondent is still incorporated in Pennsylvania, it "could again decide to operate a nude dancing establishment in Erie." Ante, at 1390. That plainly does not suffice under our cases. The test for mootness we have applied in voluntary-termination cases is not whether the action originally giving rise to the controversy could not conceivably reoccur, but whether it is "absolutely clear that the ... behavior could not reasonably be expected to recur." United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968) (emphasis added). Here I think that test is met. According to Panos' uncontested sworn affidavit, Pap's ceased doing business at Kandyland, and the premises were sold to an independent developer, in 1998~the year before the petition for certiorari in this case was filed. It strains credulity to suppose that the 72-year-old Mr. Panos shut down his going business after securing his victory in the Pennsylvania Supreme Court, and before the city's petition for certiorari was even filed, in order to increase his chances of preserving his judgment in the statistically unlikely event that a (not yet filed) petition might be granted. Given the timing of these events, given the fact that respondent has no existing interest in nude dancing (or in any other business), given Panos' sworn representation that he does not intend to invest--** 1399 through Pap's or otherwise-in any nude dancing business, and given Panos1 advanced *304 age, [FN2] it seems to me that there is "no reasonable expectation," even if there remains a theoretical possibility, that Pap's Page 16 will resume nude dancing operations in the future. [FN3] FN2. The Court asserts that "[s]everal Members of this Court can attest ... that the 'advanced age' " of 72 "does not make it 'absolutely clear' that a life of quiet retirement is [one's] only reasonable expectation." Ante, at 1390. That is tres gallant, but it misses the point. Now as heretofore, Justices in their seventies continue to do their work competently—indeed, perhaps better than their youthful colleagues because of the wisdom that age imparts. But to respond to my point, what the Court requires is citation of an instance in which a Member of this Court (or of any other court, for that matter) resigned at the age of 72 to begin a new career—or more remarkable still (for this is what the Court suspects the young Mr. Panos is up to) resigned at the age of 72 to go judge on a different court, of no greater stature, and located in Erie, Pennsylvania, rather than Palm Springs. I base my assessment of reasonable expectations not upon Mr. Panos' age alone, but upon that combined with his sale of the business and his assertion, under oath, that he does not intend to enter another. FN3. It is significant that none of the assertions of Panos' affidavit is contested. Those pertaining to the sale of Kandyland and the current noninvolvement of Pap's in any other nude dancing establishment would seem readily verifiable by petitioners. The statements regarding Pap's and Panos' intentions for the future are by their nature not verifiable, and it would be reasonable not to credit them if either petitioners asserted some reason to believe they were not true or they were not rendered highly plausible by Panos' age and his past actions. Neither condition exists here. The situation here is indistinguishable from that which obtained in Arizonansfor Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997), where the plaintiff-respondent, a state employee who had sued to enjoin enforcement of an amendment to the Arizona Constitution making English that State's official language, had resigned her public-sector employment. We held the case moot and, since the mootness was attributable to the " 'unilateral action of the party who prevailed in the lower court,' " we followed our usual practice of vacating the favorable judgment respondent had obtained in the *305 Court of Appeals. Id., at 72, 117 S.Ct. 1055 (quoting U.S. Bancorp Mortgage Co. v. Banner Mall Partnership, 513 U.S. 18, 23, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994)). The rub here is that this case comes to us on writ of certiorari to a state court, so that our lack of jurisdiction over the case also entails, according to our recent jurisprudence, a lack of jurisdiction to direct a vacatur. See ASARCO Inc. v. Kadish, 490 U.S. 605, 621, n. 1, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989). The consequences of that limitation on our power are in this case significant: A dismissal for mootness caused by respondent's unilateral action would leave petitioners subject to an ongoing legal disability, and a large one at that. Because the Pennsylvania Supreme Court severed the public nudity provision from the ordinance, thus rendering it inoperative, the city would be prevented from enforcing its public nudity prohibition not only against respondent, should it decide to resume operations in the future, and not only against other nude dancing establishments, but against anyone who appears nude in public, regardless of the "expressiveness" of his conduct or his purpose in engaging in it. That is an unfortunate consequence (which could be avoided, of course, if the Pennsylvania Supreme Court chose to vacate its judgments in cases that become moot during appeal). But it is not a consequence that authorizes us to entertain a suit the Constitution places beyond our power. And leaving in effect erroneous state determinations regarding the Federal Constitution is, after all, not unusual. It would have occurred here, even without the intervening mootness, if we had denied certiorari. And until the 1914 revision of the Judicial Code, it occurred whenever a state court erroneously sustained a federal constitutional challenge, since we did not even have statutory jurisdiction to entertain **1400 an appeal. Compare Judiciary Act of 1789, ch. 20, § 25, 1 Stat. 85-87, with Act of Dec. 23, 1914, ch. 2, 38 Stat. 790. In any event, the short of the matter is that we have no power to suspend the fundamental precepts that federal Page 17 courts "are limited by the case-or- controversy requirement *306 of Art. Ill to adjudication of actual disputes between adverse parties," Richardson v. Ramirez, 418 U.S. 24, 36, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974), and that this limitation applies "at all stages of review," Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975) (quoting Steffel v. Thompson, 415 U.S. 452, 459, n. 10, 94 S.Ct. 1209,39 L.Ed.2d 505 (1974)) (internal quotation marks omitted). Which brings me to the Court's second reason for holding that this case is still alive: The Court concludes that because petitioners have an "ongoing injury" caused by the state court's invalidation of its duly enacted public nudity provision, our ability to hear the case and reverse the judgment below is itself "sufficient to prevent the case from being moot." Ante, at 1390. Although the Court does not cite any authority for the proposition that the burden of an adverse decision below suffices to keep a case alive, it is evidently relying upon our decision in ASARCO, which held that Article Ill's standing requirements were satisfied on writ of certiorari to a state court even though there would have been no Article III standing for the action producing the state judgment on which certiorari was sought. We assumed jurisdiction in the case because we concluded that the party seeking to invoke the federal judicial power had standing to challenge the adverse judgment entered against them by the state court. Because that judgment, if left undisturbed, would "causje] direct, specific, and concrete injury to the parties who petition for our review," ASARCO, 490 U.S., at 623-624, 109 S.Ct. 2037, and because a decision by this Court to reverse the State Supreme Court would clearly redress that injury, we concluded that the original plaintiffs' lack of standing was not fatal to our jurisdiction, id., at 624, 109 S.Ct. 2037. I dissented on this point in ASARCO, see id., at 634, 109 S.Ct. 2037 (REHNQUIST, C. J., concurring in part and dissenting in part, joined by SCALIA, J.), and remain of the view that it was incorrectly decided. But ASARCO at least did not purport to hold that the constitutional standing requirements of injury, causation, and redressability may be satisfied solely by *307 reference to the lower court's adverse judgment. It was careful to note-however illogical that might have been, see id., at 635, 109 S.Ct. 2037-that the parties "remain[ed] adverse," and that jurisdiction was proper only so long as the "requisites of a case or controversy are also met," id., at 619, 624, 109 S.Ct. 2037. Today the Court would appear to drop even this fig leaf. [FN4] In concluding that the injury to Erie is "sufficient" to keep this case alive, the Court performs the neat trick of identifying a "case or controversy" that has only one interested party. FN4. I say "appear" because although the Court states categorically that "the availability of ... relief [from the judgment below] is sufficient to prevent the case from being moot," it follows this statement, in the next sentence, with the assertion that Pap's, the state-court plaintiff, retains a "concrete stake in the outcome of this case." Ante, at 1390. Of course, if the latter were true a classic case or controversy existed, and resort to the exotic theory of "standing by virtue of adverse judgment below" was entirely unnecessary. II For the reasons set forth above, I would dismiss this case for want of jurisdiction. Because the Court resolves the threshold mootness question differently and proceeds to address the merits, I will do so briefly as well. I agree that the decision of the Pennsylvania Supreme Court must be reversed, but disagree with the mode of analysis the Court has applied. The city of Erie self-consciously modeled its ordinance on the public nudity **1401 statute we upheld against constitutional challenge in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), calculating (one would have supposed reasonably) that the courts of Pennsylvania would consider themselves bound by our judgment on a question of federal constitutional law. In Barnes, I voted to uphold the challenged Indiana statute "not because it survives some lower level of First Amendment scrutiny, but because, as a general law regulating conduct and not specifically directed at expression, it is not *308 subject to First Amendment scrutiny at all." Id., at 572, 111 S.Ct. 2456 (opinion concurring in judgment). Erie's ordinance, too, by its terms prohibits not merely nude dancing, but the act—irrespective of whether it is engaged in for expressive purposes—of going nude in public. The facts that a preamble to the ordinance explains that its Page 18 purpose, in part, is to "limift] a recent increase in nude live entertainment," App. to Pet. for Cert. 42a, that city councilmembers in supporting the ordinance commented to that effect, see post, at 1412-1413, and n. 16 (STEVENS, J., dissenting), and that the ordinance includes in the definition of nudity the exposure of devices simulating that condition, see post, at 1413, neither make the law any less general in its reach nor demonstrate that what the municipal authorities really find objectionable is expression rather than public nakedness. As far as appears (and as seems overwhelmingly likely), the preamble, the councilmembers' comments, and the chosen definition of the prohibited conduct simply reflect the fact that Erie had recently been having a public nudity problem not with streakers, sunbathers or hot dog vendors, see Barnes, supra, at 574,111 S.Ct. 2456 (SCALIA, J., concurring in judgment), but with lap dancers. There is no basis for the contention that the ordinance does not apply to nudity in theatrical productions such as Equus or Hair. Its text contains no such limitation. It was stipulated in the trial court that no effort was made to enforce the ordinance against a production of Equus involving nudity that was being staged in Erie at the time the ordinance became effective. App. 84. Notwithstanding Justice STEVENS' assertion to the contrary, however, set post, at 1411-1412, neither in the stipulation, nor elsewhere in the record, does it appear that the city was aware of the nudity—and before this Court counsel for the city attributed nonenforcement not to a general exception for theatrical productions, but to the fact that no one had complained. Tr. of Oral Arg. 16. One instance of nonenforcement—against a play already in production that prosecutorial discretion might reasonably have *309 "grandfathered"~does not render this ordinance discriminatory on its face. To be sure, in the trial court counsel for the city said that "[t]o the extent that the expressive activity that is contained in [such] productions rises to a higher level of protected expression, they would not be [covered]," App. 53—but he rested this assertion upon the provision in the preamble that expressed respect for "fundamental Constitutional guarantees of free speech and free expression," and the provision of Paragraph 6 of the ordinance that provided for severability of unconstitutional provisions, id., at 53-54. [FN5] What he was saying there (in order to fend off the overbreadth challenge of respondent, who was in no doubt that the ordinance did cover theatrical productions, see id., at 55) was essentially what he said at oral argument before this Court: that the ordinance would not be enforceable against theatrical productions if the Constitution forbade it. **1402 Tr. of Oral Arg. 13. Surely that limitation does not cause the ordinance to be not generally applicable, in the relevant sense of being targeted against expressive conduct. [FN6] FN5. This followup explanation rendered what Justice STEVENS calls counsel's "categorical" assertion that such productions would be exempt, see post, at 1411, n. 12, notably un categorical. Rather than accept counsel's explanation—in the trial court and here—that is compatible with the text of the ordinance, Justice STEVENS rushes to assign the ordinance a meaning that its words cannot bear, on the basis of counsel's initial footfault. That is not what constitutional adjudication ought to be. FN6. To correct Justice STEVENS' characterization of my present point: I do not argue that Erie "carved out an exception" for Equus and Hair. Post, at 1412, n. 14. Rather, it is my contention that the city attorney assured the trial court that the ordinance was susceptible of an interpretation that would carve out such exceptions to the extent the Constitution required them. Contrary to Justice STEVENS' view, ibid., I do not believe that a law directed against all public nudity ceases to be a "general law" (rather than one directed at expression) if it makes exceptions for nudity protected by decisions of this Court. To put it another way, I do not think a law contains the vice of being directed against expression if it bans all public nudity, except that public nudity which the Supreme Court has held cannot be banned because of its expressive content. *310 Moreover, even were I to conclude that the city of Erie had specifically singled out the activity of nude dancing, I still would not find that this regulation violated the First Amendment unless I could be persuaded (as on this record I cannot) that it was the communicative character Page 19 of nude dancing that prompted the ban. When conduct other than speech itself is regulated, it is my view that the First Amendment is violated only "[w]here the government prohibits conduct precisely because of its communicative attributes." Barnes, 501 U.S., at577, 111 S.Ct. 2456 (emphasis deleted). Here, even if one hypothesizes that the city's object was to suppress only nude dancing, that would not establish an intent to suppress what (if anything) nude dancing communicates. I do not feel the need, as the Court does, to identify some "secondary effects" associated with nude dancing that the city could properly seek to eliminate. (I am highly skeptical, to tell the truth, that the addition of pasties and G-strings will at all reduce the tendency of establishments such as Kandyland to attract crime and prostitution, and hence to foster sexually transmitted disease.) The traditional power of government to foster good morals (bonos mores ), and the acceptability of the traditional judgment (if Erie wishes to endorse it) that nude public dancing itself is immoral, have not been repealed by the First Amendment. Justice SOUTER, concurring in part and dissenting in part. I join Parts I and II of the Court's opinion and agree with the analytical approach that the plurality employs in deciding this case. Erie's stated interest in combating the secondary effects associated with nude dancing establishments is an interest unrelated to the suppression of expression under United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), and the city's regulation is thus properly considered under the O'Brien standards. I do not believe, however, that the current record allows us to say that the city has made a sufficient *311 evidentiary showing to sustain its regulation, and I would therefore vacate the decision of the Pennsylvania Supreme Court and remand the case for further proceedings. I In several recent cases, we have confronted the need for factual justifications to satisfy intermediate scrutiny under the First Amendment. See, e.g., Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000); Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) (Turner II); Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (Turner I). Those cases do not identify with any specificity a particular quantum of evidence, nor do I seek to do so in this brief concurrence. [FN1] What the **1403 cases do make plain, however, is that application of an intermediate scrutiny test to a government's asserted rationale for regulation of expressive activity demands some factual justification to connect that rationale with the regulation in issue. FN1. As explained below, infra, at 1405, the issue of evidentiary justification was never joined, and with a multiplicity of factors affecting the analysis, a general formulation of the quantum required under United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), will at best be difficult. A lesser showing may suffice when the means-end fit is evident to the untutored intuition. As we said in Nixon, "The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised." 528 U.S., at 391, 120 S.Ct. 897. (In O'Brien, for example, the secondary effects that the Government identified flowed from the destruction of draft cards, and there could be no doubt that a regulation prohibiting that destruction would alleviate the concomitant harm.) The nature of the legislating institution might also affect the calculus. We do not require Congress to create a record in the manner of an administrative agency, see Turner II, 520 U.S. 180, 213, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997), and we accord its findings greater respect than those of agencies. See id., at 195, 117 S.Ct. 1174. We might likewise defer less to a city council than we would to Congress. The need for evidence may be especially acute when a regulation is content based on its face and is analyzed as content neutral only because of the secondary effects doctrine. And it may be greater when the regulation takes the form of a ban, rather than a time, place, or manner restriction. *312 In Turner I, for example, we stated that "[w]hen the Government defends a regulation Page 20 on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply 'posit the existence of the disease sought to be cured.' Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1455 (C.A.D.C.1985). It must demonstrate that the recited harms are real, not merely conjectural, and mat the regulation will in fact alleviate these harms in a direct and material way." Id., at 664, 114 S.Ct. 2445 (plurality opinion). The plurality concluded there, of course, that the record, though swollen by three years of hearings on the Cable Television Consumer Protection and Competition Act of 1992, was insufficient to permit the necessary determinations and remanded for a more thorough factual development. When the case came back to us, in Turner II, a majority of the Court reiterated those requirements, characterizing the enquiry into the acceptability of the Government's regulations as one that turned on whether they "were designed to address a real harm, and whether those provisions will alleviate it in a material way." 520 U.S., at 195, 117 S.Ct. 1174. Most recently, in Nixon, we repeated that "[w]e have never accepted mere conjecture as adequate to carry a First Amendment burden," 528 U.S., at 392, 120 S.Ct. 897, and we examined the "evidence introduced into the record by petitioners or cited by the lower courts in this action...," ibid. The focus on evidence appearing in the record is consistent with the approach earlier applied in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), and Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). In Young, Detroit adopted a zoning ordinance requiring dispersal of adult theaters through the city and prohibiting them within 500 feet of a residential area. Urban planners and real estate experts attested to the harms created by clusters of such theaters, see 427 U.S., at 55, 96 S.Ct. 2440, and we found that "[t]he record *313 discloses a factual basis" supporting the efficacy of Detroit's chosen remedy, id., at 71, 96 S.Ct. 2440. In Renton, the city similarly enacted a zoning ordinance requiring specified distances between adult theaters and residential zones, churches, parks, or schools. See 475 U.S., at 44, 106 S.Ct. 925. The city "held public hearings, reviewed the experiences of Seattle and other cities, and received a report from the City Attorney's Office advising as to developments in other cities." Ibid. We found that Renton's failure to conduct its own studies before enacting the ordinance was not fatal; "[t]he First Amendment does not require a city **1404 ... to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses." Id., at 51-52, 106 S.Ct. 925. The upshot of these cases is that intermediate scrutiny requires a regulating government to make some demonstration of an evidentiary basis for the harm it claims to flow from the expressive activity, and for the alleviation expected from the restriction imposed. [FN2] See, e.g., Edenfield v. Fane, 507 U.S. 761, 770-773,113 S.Ct. 1792, 123 L.Ed.2d 543 (1993) (striking down regulation of commercial speech for failure to show direct and material efficacy). That evidentiary basis may be borrowed from the records made by other governments if the experience elsewhere is germane to the measure under consideration and actually relied upon. I will assume, further, that the reliance may be shown by legislative invocation of a judicial opinion that accepted an evidentiary foundation as sufficient *314 for a similar regulation. What is clear is that the evidence of reliance must be a matter of demonstrated fact, not speculative supposition. FN2. The plurality excuses Erie from this requirement with the simple observation that "it is evident" that the regulation will have the required efficacy. Ante, at 1397. The ipse dixit is unconvincing. While I do agree that evidentiary demands need not ignore an obvious fit between means and ends, see n. 1, supra, it is not obvious that this is such a case. It is not apparent to me as a matter of common sense that establishments featuring dancers with pasties and G-strings will differ markedly in their effects on neighborhoods from those whose dancers are nude. If the plurality does find it apparent, we may have to agree to disagree. By these standards, the record before us today is deficient in its failure to reveal any evidence on which Erie may have relied, either for the seriousness of the threatened harm or for the efficacy of its chosen remedy. The plurality does Page 21 the best it can with the materials to hand, see ante, at 1395-1396, but the pickings are slim. The plurality quotes the ordinance's preamble asserting that over the course of more than a century the city council had expressed "findings" of detrimental secondary effects flowing from lewd and immoral profitmaking activity in public places. But however accurate the recital may be and however honestly the councilors may have held those conclusions to be true over the years, the recitation does not get beyond conclusions on a subject usually fraught with some emotionalism. The plurality recognizes this, of course, but seeks to ratchet up the value of mere conclusions by analogizing them to the legislative facts within an administrative agency's special knowledge, on which action is adequately premised in the absence of evidentiary challenge. Ante, at 1395-1396. The analogy is not obvious; agencies are part of the executive branch and we defer to them in part to allow them the freedom necessary to reconcile competing policies. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-845, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). That aside, it is one thing to accord administrative leeway as to predictive judgments in applying " 'elusive concepts' " to circumstances where the record is inconclusive and "evidence ... is difficult to compile," FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 796-797, 98 S.Ct. 2096, 56 L.Ed.2d 697 (1978), and quite another to dispense with evidence of current fact as a predicate for banning a subcategory of expression. [FN3] As *315 to current fact, the city council's closest **1405 approach to an evidentiary record on secondary effects and their causes was the statement of one councilor, during the debate over the ordinance, who spoke of increases in sex crimes in a way that might be construed as a reference to secondary effects. See App. 44. But that reference came at the end of a litany of concerns ("free condoms in schools, drive-by shootings, abortions, suicide machines," and declining student achievement test scores) that do not seem to be secondary effects of nude dancing. Ibid. Nor does the invocation of Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), in one paragraph of the preamble to Erie's ordinance suffice. App. to Pet. for Cert. 42a. The plurality opinion in Barnes made no mention of evidentiary showings at all, and though my separate opinion did make a pass at the issue, I did not demand reliance on germane evidentiary demonstrations, whether specific to the statute in question or developed elsewhere. To invoke Barnes, therefore, does not indicate that the issue of evidence has been addressed. FN3. The proposition that the presence of nude dancing establishments increases the incidence of prostitution and violence is amenable to empirical treatment, and the city councilors who enacted Erie's ordinance are in a position to look to the facts of their own community's experience as well as to experiences elsewhere. Their failure to do so is made all the clearer by one of the amicus briefs, largely devoted to the argument that scientifically sound studies show no such correlation. See Brief for First Amendment Lawyers Association as Amicus Curiae 16-23; id., at App. 1-29. There is one point, however, on which an evidentiary record is not quite so hard to find, but it hurts, not helps, the city. The final O'Brien requirement is that the incidental speech restriction be shown to be no greater than essential to achieve the government's legitimate purpose. 391 U.S., at 377, 88 S.Ct. 1673. To deal with this issue, we have to ask what basis there is to think that the city would be unsuccessful in countering any secondary effects by the significantly lesser restriction of zoning to control the location of nude dancing, thus allowing for efficient law enforcement, restricting effects on property values, and limiting exposure of the public. *316 The record shows that for 23 years there has been a zoning ordinance on the books to regulate the location of establishments like Kandyland, but the city has not enforced it. One councilor remarked that "I think there's one of the problems. The ordinances are on the books and not enforced. Now this takes place. You really didn't need any other ordinances." App. 43. Another commented, "I felt very, very strongly, and I feel just as strongly right now, that this is a zoning matter." Id., at 45. Even on the plurality's view of the evidentiary burden, this hurdle to the application of O'Brien requires an evidentiary response. The record suggests that Erie simply did not try to create a record of the sort we have held necessary in other cases, and the suggestion is confirmed by the course of this litigation. The evidentiary question was never decided (or, apparently, argued) below, nor was the issue Page 22 fairly joined before this Court. While respondent did claim that the evidence before the city council was insufficient to support the ordinance, see Brief for Respondent 44-49, Erie's reply urged us not to consider the question, apparently assuming that Barnes authorized us to disregard it. See Reply Brief for Petitioners 6-8. The question has not been addressed, and in that respect this case has come unmoored from the general standards of our First Amendment jurisprudence. [FN4] FN4. By contrast, federal courts in other cases have frequently demanded evidentiary showings. See, e.g., Phillips v. Keyport, 107 F.3d 164, 175 (C.A.3 1997) (en bane); / & B Entertainment, Inc. v. Jackson, 152 F.3d 362, 370-371 (C.A.5 1998). Careful readers, and not just those on the Erie City Council, will of course realize that my partial dissent rests on a demand for an evidentiary basis that I failed to make when I concurred in Barnes, supra. I should have demanded the evidence then, too, and my mistake calls to mind Justice Jackson's foolproof explanation of a lapse of his own, when he quoted Samuel Johnson, " 'Ignorance, sir, ignorance.' " McGrath v. Kristensen, 340 U.S. 162, 178, 71 S.Ct. 224, 95 L.Ed. 173 (1950) (concurring *317 opinion). [FN5] I may not be less ignorant of nude dancing than I was nine years ago, but after many subsequent occasions to think further about the needs of the **1406 First Amendment, I have come to believe that a government must toe the mark more carefully than I first insisted. I hope it is enlightenment on my part, and acceptable even if a little late. See Henslee v. Union Planters Nat. Bank & Trust Co., 335 U.S. 595, 600, 69 S.Ct. 290, 93 L.Ed. 259 (1949) (per curiam) (Frankfurter, J., dissenting). FN5. See Boswell, Life of Samuel Johnson, in 44 Great Books of the Western World 82 (R. Hutchins & M. Adler eds. 1952). II The record before us now does not permit the conclusion that Erie's ordinance is reasonably designed to mitigate real harms. This does not mean that the required showing cannot be made, only that, on this record, Erie has not made it. I would remand to give it the opportunity to do so. [FN6] Accordingly, although I join with the plurality in adopting the O'Brien test, I respectfully dissent from the Court's disposition of the case. FN6. This suggestion does not, of course, bar the Pennsylvania Supreme Court from choosing simpler routes to disposition of the case if they exist. Respondent mounted a federal overbreadth challenge to the ordinance; it also asserted a violation of the Pennsylvania Constitution. Either one of these arguments, if successful, would obviate the need for the factual development that is a prerequisite to O'Brien analysis. Justice STEVENS, with whom Justice GINSBURG joins, dissenting. Far more important than the question whether nude dancing is entitled to the protection of the First Amendment are the dramatic changes in legal doctrine that the Court endorses today. Until now, the "secondary effects" of commercial enterprises featuring indecent entertainment have justified only the regulation of their location. For the first time, the Court has now held that such effects may justify *318 the total suppression of protected speech. Indeed, the plurality opinion concludes that admittedly trivial advancements of a State's interests may provide the basis for censorship. The Court's commendable attempt to replace the fractured decision in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), with a single coherent rationale is strikingly unsuccessful; it is supported neither by precedent nor by persuasive reasoning. I As the preamble to Ordinance No. 75-1994 candidly acknowledges, the council of the city of Erie enacted the restriction at issue "for the purpose of limiting a recent increase in nude live entertainment within the City." Ante, at 1391 (internal quotation marks omitted). Prior to the enactment of the ordinance, the dancers at Kandyland performed in the nude. As the Court recognizes, after its enactment they can perform precisely the same dances if they wear "pasties and G-strings." Ante, at 1393; see also ante, at 1404, n. 2 (SOUTER, J., concurring in part and Page 23 dissenting in part). In both instances, the erotic messages conveyed by the dancers to a willing audience are a form of expression protected by the First Amendment. Ante, at 1391. [FN1] Despite the similarity between the messages conveyed by the two forms of dance, they are not identical. FN1. Respondent does not contend that there is a constitutional right to engage in conduct such as lap dancing. The message of eroticism conveyed by the nudity aspect of the dance is quite different from the issue of the proximity between dancer and audience. Respondent's contention is not that Erie has focused on lap dancers, see ante, at 1401 (SCALIA, J., concurring in judgment), but that it has focused on the message conveyed by nude dancing. If we accept Chief Judge Posner's evaluation of this art form, see Miller v. South Bend, 904 F.2d 1081, 1089-1104 (C.A.7 1990) (en bane), the difference between the two messages is significant. The plurality assumes, however, that the difference in the content of the message resulting from *319 the mandated costume change is "de minimis." Ante, at 1393. Although I suspect that the patrons of Kandyland are more likely to share Chief Judge Posner's view than the plurality's, for present purposes I shall accept the assumption that the difference in the message is small. The crucial point to remember, however, is **1407 that whether one views the difference as large or small, nude dancing still receives First Amendment protection, even if that protection lies only in the "outer ambit" of that Amendment. Ante, at 1391. Erie's ordinance, therefore, burdens a message protected by the First Amendment. If one assumes that the same erotic message is conveyed by nude dancers as by those wearing miniscule costumes, one means of expressing that message is banned; [FN2] if one assumes that the messages are different, one of those messages is banned. In either event, the ordinance is a total ban. FN2. Although nude dancing might be described as one protected "means" of conveying an erotic message, it does not follow that a protected message has not been totally banned simply because there are other, similar ways to convey erotic messages. See ante, at 1393. A State's prohibition of a particular book, for example, does not fail to be a total ban simply because other books conveying a similar message are available. The plurality relies on the so-called "secondary effects" test to defend the ordinance. Ante, at 1391-1395. The present use of that rationale, however, finds no support whatsoever in our precedents. Never before have we approved the use of that doctrine to justify a total ban on protected First Amendment expression. On the contrary, we have been quite clear that the doctrine would not support that end. In Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Iid.2d 310 (1976), we upheld a Detroit zoning ordinance that placed special restrictions on the location of motion picture theaters that exhibited "adult" movies. The "secondary effects" of the adult theaters on the neighborhoods where they were located—lower property values and increases in crime (especially prostitution) to name a few—justified the burden imposed *320 by the ordinance. Id., at 54, 71, and n. 34, 96 S.Ct. 2440 (plurality opinion). Essential to our holding, however, was the fact that the ordinance was "nothing more than a limitation on the place where adult films may be exhibited" and did not limit the size of the market in such speech. Id., at 71, 96 S.Ct. 2440; see also id., at 61, 63, n. 18, 70, 71, n. 35, 96 S.Ct. 2440. As Justice Powell emphasized in his concurrence: "At most the impact of the ordinance on [the First Amendment] interests is incidental and minimal. Detroit has silenced no message, has invoked no censorship, and has imposed no limitation upon those who wish to view them. The ordinance is addressed only to the places at which this type of expression may be presented, a restriction that does not interfere with content. Nor is there any significant overall curtailment of adult movie presentations, or the opportunity for a message to reach an audience." Id., at 78-79, 96 S.Ct. 2440. See also id., at 81, n. 4, 96 S.Ct. 2440 ("[A] zoning ordinance that merely specifies where a theater may locate, and that does not reduce significantly the number or accessibility of theaters presenting particular films, stifles no expression"). In Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), we Page 24 upheld a similar ordinance, again finding that the "secondary effects of such theaters on the surrounding community" justified a restrictive zoning law. Id., at 47, 106 S.Ct. 925 (emphasis deleted). We noted, however, that "[t]he Renton ordinance, like the one in American Mini Theatres, does not ban adult theaters altogether," but merely "circumscribe[s] their choice as to location." Id., at 46, 48, 106 S.Ct. 925; see also id., at 54, 106 S.Ct. 925 ("In our view, the First Amendment requires ... that Renton refrain from effectively denying respondents a reasonable opportunity to open and operate an adult theater within the city ..."). Indeed, in both Renton and American Mini Theatres, the zoning ordinances were analyzed as mere "time, *321 place, and manner" regulations. [FN3] See Renton, 475 U.S., at 46, **1408 106 S.Ct. 925; American Mini Theatres, 427 U.S., at 63, and n. 18, 96 S.Ct. 2440; id., at 82, n. 6, 96 S.Ct. 2440. Because time, place, and manner regulations must "leave open ample alternative channels for communication of the information," Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), a total ban would necessarily fail that test. [FN4] FN3. The plurality contends, ante, at 1394, that Wardv. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), shows that we have used the secondary effects rationale to justify more burdensome restrictions than those approved in Renton and American Mini Theatres. That argument is unpersuasive for two reasons. First, as in the two cases just mentioned, the regulation in Ward was as a time, place, and manner restriction. See 491 U.S., at 791, 109 S.Ct. 2746; id., at 804, 109 S.Ct. 2746 (Marshall, J., dissenting). Second, as discussed below, Ward is not a secondary effects case. See infra, at 1410-1411. FN4. We also held in Renton that in enacting its adult theater zoning ordinance, the city of Renton was permitted to rely on a detailed study conducted by the city of Seattle mat examined the relationship between zoning controls and the secondary effects of adult theaters. (It was permitted to rely as well on "the 'detailed findings' summarized" in an opinion of the Washington Supreme Court to the same effect.) 475 U.S., at 51-52, 106 S.Ct. 925. Renton, having identified the same problem in its own city as that experienced in Seattle, quite logically drew on Seattle's experience and adopted a similar solution. But if Erie is relying on the Seattle study as well (as the plurality suggests, ante, at 1395), its use of that study is most peculiar. After identifying a problem in its own city similar to that in Seattle, Erie has implemented a solution (pasties and G-strings) bearing no relationship to the efficacious remedy identified by the Seattle study (dispersal through zoning). But the city of Erie, of course, has not in fact pointed to any study by anyone suggesting that the adverse secondary effects of commercial enterprises featuring erotic dancing depends in the slightest on the precise costume worn by the performers--it merely assumes it to be so. See infra, at 1409-1410. If the city is permitted simply to assume that a slight addition to the dancers' costumes will sufficiently decrease secondary effects, then presumably the city can require more and more clothing as long as any danger of adverse effects remains. And we so held in Schad v. Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). There, we addressed a zoning ordinance that did not merely require the dispersal of adult theaters, but prohibited *322 them altogether. In striking down that law, we focused precisely on that distinction, holding that the secondary effects analysis endorsed in the past did not apply to an ordinance that totally banned nude dancing: "The restriction [in Young v. American Mini Theatres] did not affect the number of adult movie theaters that could operate in the city; it merely dispersed them. The Court did not imply that a municipality could ban all adult theaters—much less all live entertainment or all nude dancing—from its commercial districts citywide." Id., at 71, 96 S.Ct. 2440 (plurality opinion); see also id., at 76, 96 S.Ct. 2440; id., at 77, 96 S.Ct. 2440 (Blackmun, J., concurring) (joining plurality); id., at 79, 96 S.Ct. 2440 (Powell, J., concurring) (same). The reason we have limited our secondary effects cases to zoning and declined to extend their reasoning to total bans is clear and straightforward: A dispersal that simply limits the Page 25 places where speech may occur is a minimal imposition, whereas a total ban is the most exacting of restrictions. The State's interest in fighting presumed secondary effects is sufficiently strong to justify the former, but far too weak to support the latter, more severe burden. IFN5] Yet it is perfectly clear that in the present case—to use Justice Powell's metaphor in American Mini Theatres-the city of Erie has totally silenced a message the dancers at Kandyland want to convey. The fact that this censorship may have a laudable ulterior purpose cannot mean that censorship is not censorship. **1409 For these reasons, the Court's holding rejects the explicit reasoning in American Mini Theatres and Renton and the express holding in Schad. FN5. As the plurality recognizes by quoting my opinion in Young v. American Mini Theatres, Inc., 427 U.S. 50, 70, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), see ante, at 1393-1394, "the First Amendment will not tolerate the total suppression of erotic materials that have some artistic value," though it will permit zoning regulations. The Court's use of the secondary effects rationale to permit a total ban has grave implications for basic free speech principles. Ordinarily, laws regulating the primary effects of speech, i.e., the intended persuasive effects caused by the *323 speech, are presumptively invalid. Under today's opinion, a State may totally ban speech based on its secondary effects—which are defined as those effects that "happen to be associated" with speech, Boos v. Barry, 485 U.S. 312, 320-321, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988); see ante, at 1392-yet the regulation is not presumptively invalid. Because the category of effects that "happen to be associated" with speech includes the narrower subset of effects caused by speech, today's holding has the effect of swallowing whole a most fundamental principle of First Amendment jurisprudence. II The plurality's mishandling of our secondary effects cases is not limited to its approval of a total ban. It compounds that error by dramatically reducing the degree to which the State's interest must be furthered by the restriction imposed on speech, and by ignoring the critical difference between secondary effects caused by speech and the incidental effects on speech that may be caused by a regulation of conduct. In what can most delicately be characterized as an enormous understatement, the plurality concedes that "requiring dancers to wear pasties and G-strings may not greatly reduce these secondary effects." Ante, at 1397. To believe that the mandatory addition of pasties and a G-string will have any kind of noticeable impact on secondary effects requires nothing short of a titanic surrender to the implausible. It would be more accurate to acknowledge, as Justice SCALIA does, that there is no reason to believe that such a requirement "will at all reduce the tendency of establishments such as Kandyland to attract crime and prostitution, and hence to foster sexually transmitted disease." Ante, at 1402 (opinion concurring in judgment); see also ante, at 1404, n. 2 (SOUTER, J., concurring in part and dissenting in part). Nevertheless, the plurality concludes that the "less stringent" test announced in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), "requires only that the regulation further the interest in *324 combating such effects," ante, at 1397; see also ante, at 1391. It is one thing to say, however, that O'Brien is more lenient than the "more demanding standard" we have imposed in cases such as Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). See ante, at 1391. It is quite another to say that the test can be satisfied by nothing more than the mere possibility of de minimis effects on the neighborhood. The plurality is also mistaken in equating our secondary effects cases with the "incidental burdens" doctrine applied in cases such as O'Brien; and it aggravates the error by invoking the latter line of cases to support its assertion that Erie's ordinance is unrelated to speech. The incidental burdens doctrine applies when " 'speech' and 'nonspeech' elements are combined in the same course of conduct," and the government's interest in regulating the latter justifies incidental burdens on the former. O'Brien, 391 U.S., at 376, 88 S.Ct. 1673. Secondary effects, on the other hand, are indirect consequences of protected speech and may justify regulation of the places where that speech may occur. See American Mini Theatres, 427 U.S., at 71, n. 34, 96 S.Ct. 2440 ("[A] concentration of 'adult' movie theaters causes the area to Page 26 deteriorate and become a focus of crime"). [FN6] When a State enacts **1410 a regulation, it might focus on the secondary effects of speech as its aim, or it might concentrate on nonspeech related concerns, having no thoughts at all with respect to how its regulation will affect speech—and only later, when the regulation is found to burden speech, justify the imposition as an unintended incidental consequence. [FN7] But those interests are not the *325 same, and the plurality cannot ignore their differences and insist that both aims are equally unrelated to speech simply because Erie might have "recognizfed]" that it could possibly have had either aim in mind. See ante, at 1394. [FN8] One can think of an apple and an orange at the same time; that does not turn them into the same fruit. FN6. A secondary effect on the neighborhood that "happen[s] to be associated with" a form of speech is, of course, critically different from "the direct impact of speech on its audience." Boos v. Berry, 485 U.S. 312, 320-321, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988). The primary effect of speech is the persuasive effect of the message itself. FN7. In fact, the very notion of focusing in on incidental burdens at the time of enactment appears to be a contradiction in terms. And if it were not the case that there is a difference between laws aimed at secondary effects and general bans incidentally burdening speech, then one wonders why Justices SCALIA and SOUTER adopted such strikingly different approaches in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991). FN8. I frankly do not understand the plurality's declaration that a State's interest in the secondary effects of speech that "are associated" with the speech are not "related" to the speech. Ante, at 1393. See, e.g., Webster's Third New International Dictionary 132 (1966) (defining "associate" as "closely related"). Sometimes, though, the plurality says that the secondary effects are "caused" by the speech, rather than merely "associated with" the speech. See, e.g., ante, at 1392, 1393, 1395, 1396-1397. If that is the definition of secondary effects the plurality adopts, then it is even more obvious that an interest in secondary effects is related to the speech at issue. See Barnes, 501 U.S., at 585-586, 111 S.Ct. 2456 (SOUTER, J., concurring in judgment) (secondary effects are not related to speech because their connection to speech is only one of correlation, not causation). Of course, the line between governmental interests aimed at conduct and unrelated to speech, on the one hand, and interests arising out of the effects of the speech, on the other, may be somewhat imprecise in some cases. In this case, however, we need not wrestle with any such difficulty because Erie has expressly justified its ordinance with reference to secondary effects. Indeed, if Erie's concern with the effects of the message were unrelated to the message itself, it is strange that the only means used to combat those effects is the suppression of the message. [FN9] For these reasons, the plurality's argument that "this case is similar to O'Brien," ante, at 1392; see also ante, at 1394, is quite wrong, as are its *326 citations to Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984), and Wardv. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), ante, at 1393-1394, neither of which involved secondary effects. The plurality cannot have its cake and eat it too—either Erie's ordinance was not aimed at speech and the plurality may attempt to justify the regulation under the incidental burdens test, or Erie has aimed its law at the secondary effects of speech, and the plurality can try to justify the law under that doctrine. But it cannot conflate the two with the expectation that Erie's interests aimed at secondary effects will be rendered unrelated to speech by virtue of this doctrinal polyglot. FN9. As Justice Powell said in his concurrence in Young v. American Mini Theatres, 427 U.S., at 82, n. 4, 96 S.Ct. 2440: "[H]ad [Detroit] been concerned with restricting the message purveyed by adult theaters, it would have tried to close them or restrict their number rather than circumscribe their choice as to location." Quite plainly, Erie's total ban evinces its concern with the message being regulated. Correct analysis of the issue in this case should Page 27 begin with the proposition that nude dancing is a species of expressive conduct that is protected by the First Amendment. As Chief Judge Posner has observed, nude dancing fits well within a broad, cultural tradition recognized as expressive **1411 in nature and entitled to First Amendment protection. See 904 F.2d, at 1089-1104; see also Note, 97 Colum. L.Rev. 1844 (1997). The nudity of the dancer is both a component of the protected expression and the specific target of the ordinance. It is pure sophistry to reason from the premise that the regulation of the nudity component of nude dancing is unrelated to the message conveyed by nude dancers. Indeed, both the text of the ordinance and the reasoning in the plurality's opinion make it pellucidly clear that the city of Erie has prohibited nude dancing "precisely because of its communicative attributes." Barnes, 501 U.S., at 577, 111 S.Ct. 2456 (SCALIA, J., concurring in judgment) (emphasis in original); see id., at 596, 111 S.Ct. 2456 (White, J., dissenting). Ill The censorial purpose of Erie's ordinance precludes reliance on the judgment in Barnes as sufficient support for the Court's holding today. Several differences between the Erie ordinance and the statute at issue in Barnes belie the plurality's assertion that the two laws are "almost identical." *327 Ante, at 1391. To begin with, the preamble to Erie's ordinance candidly articulates its agenda, declaring: "Council specifically wishes to adopt the concept of Public Indecency prohibited by the laws of the State of Indiana, which was approved by the U.S. Supreme Court in Barnes v. Glen Theatre Inc for the purpose of limiting a recent increase in nude live entertainment within the City." App. to Pet. for Cert. 42a (emphasis added); see also ante, at 1391-1392. [FN10] FN10. The preamble also states: "[T]he Council of the City of Erie has [found] ... that certain lewd, immoral activities carried on in public places for profit... lead to the debasement of both women and men ... ." App. to Pet. for Cert. 41a. As its preamble forthrightly admits, the ordinance's "purpose" is to "limi[t]" a protected form of speech; its invocation of Barnes cannot obliterate that professed aim. [FN11] FN11. Relying on five words quoted from the Supreme Court of Pennsylvania, the plurality suggests that I have misinterpreted that court's reading of the preamble. Ante, at 1392. What follows, however, is a more complete statement of what that court said on this point: "We acknowledge that one of the purposes of the Ordinance is to combat negative secondary effects. That, however, is not its only goal. Inextricably bound up with this stated purpose is an unmentioned purpose that directly impacts on the freedom of expression: that purpose is to impact negatively on the erotic message of the dance.... We believe ... that the stated purpose for promulgating the Ordinance is inextricably linked with the content-based motivation to suppress the expressive nature of nude dancing." 553 Pa. 348, 359,719 A.2d 273, 279(1998). Erie's ordinance differs from the statute in Barnes in another respect. In Barnes, the Court expressly observed that the Indiana statute had not been given a limiting construction by the Indiana Supreme Court. As presented to this Court, there was nothing about the law itself that would confine its application to nude dancing in adult entertainment establishments. See 501 U.S., at 564, n. 1, 111 S.Ct. 2456 (discussing Indiana Supreme Court's lack of a limiting construction); see also id., at 585, n. 2, 111 S.Ct. 2456 (SOUTER, J., concurring in judgment). *328 Erie's ordinance, however, comes to us in a much different posture. In an earlier proceeding in this case, the Court of Common Pleas asked Erie's counsel "what effect would this ordinance have on theater ... productions such as Equus, Hair, O[h!] Calcutta[!]? Under your ordinance would these things be prevented ... ?" Counsel responded: "No, they wouldn't, Your Honor." App. 53. [FN12] Indeed, as stipulated in **1412 the record, the city permitted a production of Equus to proceed without prosecution, even after the ordinance was in effect, and despite its awareness of the nudity involved in the production. Id., at 84. [FN13] Even if, in light of its broad applicability, the statute in Barnes was not aimed at a particular form of speech, Erie's ordinance is quite different. As presented to us, the Page 28 ordinance is deliberately targeted at Kandyland's type of nude dancing (to the exclusion of plays like Equus), in terms of both its applicable scope and the city's enforcement. [FN14] FN12. In my view, Erie's categorical response forecloses Justice SCALIA's assertion that the city's position on Equus and Hair was limited to "[o]ne instance," where "the city was [not] aware of the nudity," and "no one had complained." Ante, at 1401 (opinion concurring in judgment). Nor could it be contended that selective applicability by stipulated enforcement should be treated differently from selective applicability by statutory text. See Barnes, 501 U.S., at 574, 111 S.Ct. 2456 (SCALIA, J., concurring in judgment) (selective enforcement may affect a law's generality). Were it otherwise, constitutional prohibitions could be circumvented with impunity. FN13. The stipulation read: "The play, 'Equus' featured frontal nudity and was performed for several weeks in October/November 1994 at the Roadhouse Theater in downtown Erie with no efforts to enforce the nudity prohibition which became effective during the run of the play." FN14. Justice SCALIA argues that Erie might have carved out an exception for Equus and Hair because it guessed that this Court would consider them protected forms of expression, see Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 550, 557-558, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (holding that Hair, including the "group nudity and simulated sex" involved in the production, is protected speech); in his view, that makes the distinction unobjectionable and renders the ordinance no less of a general law. Ante, at 1401-1402 (opinion concurring in judgment). This argument appears to contradict his earlier definition of a general law: "A law is 'general' ... if it regulates conduct without regard to whether that conduct is expressive." Barnes v. Glen Theatre, Inc., 501 U.S., at 576, n. 3, 111 S.Ct. 2456 (opinion concurring in judgment). If the ordinance regulates conduct (public nudity), it does not do so without regard to whether the nudity is expressive if it exempts the public nudity in Hair precisely "because of its expressive content." Ante, at 1402, n. 6 (opinion concurring in judgment). Moreover, if Erie exempts Hair because it wants to avoid a conflict with the First Amendment (rather than simply to exempt instances of nudity it finds inoffensive), that rationale still does not explain why Hair is exempted but Kandyland is not, since Barnes held that both are constitutionally protected. Justice SCALIA also states that even if the ordinance singled out nude dancing, he would not strike down the law unless the dancing was singled out because of its message. Ante, at 1402. He opines that here, the basis for singling out Kandyland is morality. Ibid. But since the "morality" of the public nudity in Hair is left untouched by the ordinance, while the "immorality" of the public nudity in Kandyland is singled out, the distinction cannot be that "nude public dancing itself is immoral." Ibid. (emphasis in original). Rather, the only arguable difference between the two is that one's message is more immoral than the other's. *329 This narrow aim is confirmed by the expressed views of the Erie City Councilmembers who voted for the ordinance. The four city councilmembers who approved the measure (of the six total councilmembers) each stated his or her view that the ordinance was aimed specifically at nude adult entertainment, and not at more mainstream forms of entertainment that include total nudity, nor even at nudity in general. One lawmaker observed: "We're not talking about nudity. We're not talking about the theater or art.... We're talking about what is indecent and immoral .... We're not prohibiting nudity, we're prohibiting nudity when it's used in a lewd and immoral fashion." App. 39. Though not quite as succinct, the other councilmembers expressed similar convictions. For example, one member illustrated his understanding of the aim of the law by contrasting it with his recollection about high school students swimming in the nude in the school's pool. The ordinance was not intended to cover those incidents of nudity: "But what I'm getting at is [the swimming] wasn't indecent, it Page 29 wasn't an immoral thing, and *330 yet there was nudity." Id., at 42. The same lawmaker then disfavorably compared the nude swimming incident to the activities that occur in "some of these clubs" that exist in Erie—clubs that would be covered **1413 by the law. Ibid. [FN15] Though such comments could be consistent with an interest in a general prohibition of nudity, the complete absence of commentary on that broader interest, and the councilmembers' exclusive focus on adult entertainment, is evidence of the ordinance's aim. In my view, we need not strain to find consistency with more general purposes when the most natural reading of the record reflects a near obsessive preoccupation with a single target of the law. [FN16] FN15. Other members said their focus was on "bottle clubs," and the like, App. 43, and attempted to downplay the effect of the ordinance by acknowledging that "the girls can wear thongs or a G-string and little pasties that are smaller than a diamond." Ibid. Echoing that focus, another member stated that "[t]here still will be adult entertainment in this town, only it will be in a little different form." Id., at 47. FN16. The plurality dismisses this evidence, declaring that it "will not strike down an otherwise constitutional statute on the basis of an alleged illicit motive." Ante, at 1392 (citing United States v. O'Brien, 391 U.S. 367, 382-383, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986)). First, it is worth pointing out that this doctrinaire formulation of O'Brien's cautionary statement is overbroad. See generally L. Tribe, American Constitutional Law § 12-5, pp. 819-820 (2d ed.1988). Moreover, O 'Brien itself said only that we would not strike down a law "on the assumption that a wrongful purpose or motive has caused the power to be exerted," 391 U.S., at 383, 88 S.Ct. 1673 (emphasis added; internal quotation marks omitted), and that statement was due to our recognition that it is a "hazardous matter" to determine the actual intent of a body as large as Congress "on the basis of what fewer than a handful of Congressmen said about [a law]," id., at 384, 88 S.Ct. 1673. Yet neither consideration is present here. We need not base our inquiry on an "assumption," nor must we infer the collective intent of a large body based on the statements of a few, for we have in the record the actual statements of all the city councilmembers who voted in favor of the ordinance. The text of Erie's ordinance is also significantly different from the law upheld in Barnes. In Barnes, the statute defined "nudity" as "the showing of the human male or female *331 genitals" (and certain other regions of the body) "with less than a fully opaque covering." 501 U.S., at 569, n. 2, 111 S.Ct. 2456. The Erie ordinance duplicates that definition in all material respects, but adds the following to its definition of "[n]udity": " '[T]he exposure of any device, costume, or covering which gives the appearance of or simulates the genitals, pubic hair, natal cleft, perineum anal region or pubic hair region; or the exposure of any device worn as a cover over the nipples and/or areola of the female breast, which device simulates and gives the realistic appearance of nipples and/or areola.' " Ante, at 1388, n. * (emphasis added). Can it be doubted that this out-of-the-ordinary definition of "nudity" is aimed directly at the dancers in establishments such as Kandyland? Who else is likely to don such garments? [FN17] We should not stretch to embrace fanciful explanations when the most natural reading of the ordinance unmistakably identifies its intended target. FN17. Is it seriously contended (as would be necessary to sustain the ordinance as a general prohibition) that, when crafting this bizarre definition of "nudity," Erie's concern was with the use of simulated nipple covers on "nude beaches and [by otherwise] unclothed purveyors of hot dogs and machine tools"? Barnes, 501 U.S., at 574, 111 S.Ct. 2456 (SCALIA, J., concurring in judgment); see also ante, at 1401 (SCALIA, J., concurring in judgment). It is true that one might conceivably imagine that is Erie's aim. But it is far more likely that this novel definition was written with the Kandyland dancers and the like in mind, since they are the only ones covered by the law (recall that plays Page 30 like Equus are exempted from coverage) who are END OF DOCUMENT likely to utilize such unconventional clothing. It is clear beyond a shadow of a doubt that the Erie ordinance was a response to a more specific concern than nudity in general, namely, nude dancing of the sort found in Kandyland. [FN18] Given that the **1414 Court has not even tried to defend *332 the ordinance's total ban on the ground that its censorship of protected speech might be justified by an overriding state interest, it should conclude that the ordinance is patently invalid. For these reasons, as well as the reasons set forth in Justice White's dissent in Barnes, I respectfully dissent. FN18. The plurality states that Erie's ordinance merely "replaces and updates provisions of an 'Indecency and Immorality' ordinance" from the mid-19th century, just as the statute in Barnes did. Ante, at 1391. First of all, it is not clear that this is correct. The record does indicate that Erie's Ordinance No. 75-1994 updates an older ordinance of similar import. Unfortunately, that old regulation is not in the record. Consequently, whether the new ordinance merely "replaces" the old one is a matter of debate. From statements of one councilmember, it can reasonably be inferred that the old ordinance was merely a residential zoning restriction, not a total ban. See App. 43. If that is so, it leads to the further question why Erie felt it necessary to shift to a total ban in 1994. But even if the plurality's factual contention is correct, it does not undermine the points I have made in the text. In Barnes, the point of noting the ancient pedigree of the Indiana statute was to demonstrate that its passage antedated the appearance of adult entertainment venues, and therefore could not have been motivated by the presence of those establishments. The inference supposedly rebutted in Barnes stemmed from the timing of the enactment. Here, however, the inferences I draw depend on the text of the ordinance, its preamble, its scope and enforcement, and the comments of the councilmembers. These do not depend on the timing of the ordinance's enactment. 13 124 S.Ct. 2219 Pagel 541 U.S. 774, 124 S.Ct. 2219, 159 L.Ed.2d 84, 72 USLW4451,4 Cal. Daily Op. Serv. 4843, 2004 Daily Journal D.A.R. 6662, 19 Fla. L. Weekly Fed. S 350 (Cite as: 124 S.Ct. 2219) Supreme Court of the United States CITY OF LITTLETON, COLORADO, Petitioner, v. Z.J. GIFTS D-4, L.L.C., a Limited Liability Company, dba Christal's. No. 02-1609. Argued March 24, 2004. Decided June 7, 2004. Background: Owner of store that sold adult books brought § 1983 action challenging city's adult business licensing ordinance as unconstitutional, and seeking declaratory and injunctive relief, attorney fees and damages. The United States District Court for the District of Colorado, Edward W. Nottingham, J., entered summary judgment in favor of city, and owner appealed. The Tenth Circuit Court of Appeals, Lucero, Circuit Judge, 311 F.3d 1220, affirmed in part and reversed in part. Certiorari was granted. Holdings: The Supreme Court, Justice Breyer, held that: (1) for an "adult business" licensing scheme to satisfy First Amendment requirements, it is not enough that licensing scheme provides only assurance of speedy access to courts for review of adverse licensing decisions, without also providing assurance of speedy court decision; but (2) where city's "adult business" licensing scheme simply conditioned operation of adult business on compliance with neutral and nondiscretionary criteria and did not seek to censor content, language in ordinance providing for judicial review of adverse licensing decisions in accordance with state's ordinary review procedures was sufficient to satisfy First Amendment requirements. Reversed. Justice Stevens concurred in part and concurred in judgment and filed opinion. Justice Souter concurred in part and concurred in judgment and filed opinion, in which Justice Kennedy joined. Justice Scalia concurred in judgment and filed opinion. West Headnotes [1J Constitutional Law €=^90.4(1) 92k90.4(l) Most Cited Cases For an "adult business" licensing scheme to satisfy First Amendment requirements, it is not enough that licensing scheme provides only assurance of speedy access to courts for review of adverse' licensing decisions, without also providing assurance of speedy court decision; delay in issuing judicial decision, no less than delay in obtaining access to court, can prevent license for First Amendment-protected business from being issued within requisite reasonable period of time. U.S.C.A. ConstAmend. 1. [2] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases [21 Theaters and Shows €=>3 376k3 Most Cited Cases Where city's "adult business" licensing scheme simply conditioned operation of adult business on compliance with neutral and nondiscretionary criteria and did not seek to censor content, language in ordinance providing for judicial review of adverse licensing decisions in accordance with state's ordinary review procedures was sufficient to satisfy First Amendment requirements, as long as courts remained sensitive to need to prevent First Amendment harms and administered those review procedures accordingly; whether courts have done so is matter normally fit for case-by-case determination rather than facial challenge. U.S.C.A. Const.Amend. 1. [3] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases Where regulation simply conditions operation of adult business on compliance with neutral and nondiscretionary criteria and does not seek to censor content, adult business is not entitled under First Amendment to unusually speedy judicial decision, of the Freedman type, on adverse licensing decision. U.S.C.A. Const.Amend. 1. © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 124 S.Ct. 2219 Page 2 541 U.S. 774, 124 S.Ct. 2219, 159 L.Ed.2d 84, 72 USLW 4451, 4 Cal. Daily Op. Serv. 4843, 2004 Daily Journal D.A.R. 6662, 19 Fla. L. Weekly Fed. S 350 (Cite as: 124 S.Ct. 2219) "2220 Syllabus [FN*] FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321,337, 26 S.Ct. 282, 50 L.Ed. 499. Under petitioner city's "adult business license" ordinance, the city's decision to deny a license may be appealed to the state district court pursuant to Colorado Rules of Civil Procedure. Respondent Z. J. Gifts D-4, L.L.C. (hereinafter ZJ), opened an adult bookstore in a place not zoned for adult businesses. Instead of applying for a license, ZJ filed suit attacking the ordinance as facially unconstitutional. The Federal District Court rejected ZJ"s claims, but the Tenth Circuit held, as relevant here, that state law does not assure the constitutionally required "prompt final judicial decision." Held: The ordinance meets the First Amendment's requirement that such a licensing scheme assure prompt judicial review of an administrative decision denying a license. Pp. 2222-2226. (a) The Court rejects the city's claim that its licensing scheme need only provide prompt access to judicial review, but not a "prompt judicial determination," of an applicant's legal claim. The city concedes that Freedman v. Maryland, 380 U.S. 51, 59, 85 S.Ct. 734, 13 L.Ed.2d 649, in listing constitutionally necessary "safeguards" applicable to a motion picture censorship statute, spoke of the need to assure a "prompt final judicial decision," but adds that Justice O'CONNOR'S controlling plurality opinion in FW/PBS, Inc. v. Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603, which addressed an adult business licensing scheme, did not use the word "decision," instead speaking only of the "possibility of prompt judicial review," id., at 228, 110 S.Ct. 596 (emphasis added). Justice O'CONNOR'S FW/PBS opinion, however, points out that Freedman's "judicial review" safeguard is meant to prevent "undue delay," 493 U.S., at 228,110 S.Ct. 596, which includes judicial, as well as administrative, delay. A delay in issuing a judicial decision, no less than a delay in obtaining access to a court, can prevent a license from being " issued within a reasonable period of time." Ibid. Nothing in the opinion suggests the contrary. Pp. 2222-2224. (b) However, the Court accepts the city's claim that Colorado law satisfies any "prompt judicial determination" requirement, agreeing that the Court should modify FW/PBS, withdrawing its implication that Freedman's special judicial review rules—eg., strict time limits—apply in this case. Colorado's ordinary "judicial review" rules suffice to assure a prompt judicial decision, as long as the courts remain sensitive to the need to prevent First Amendment harms and administer *2221 those procedures accordingly. And whether the courts do so is a matter normally fit for case-by-case determination rather than a facial challenge. Four considerations support this conclusion. First, ordinary court procedural rules and practices give reviewing courts judicial tools sufficient to avoid delay-related First Amendment harm. Indeed, courts may arrange their schedules to "accelerate" proceedings, and higher courts may grant expedited review. Second, there is no reason to doubt state judges' willingness to exercise these powers wisely so as to avoid serious threats of delay-induced First Amendment harm. And federal remedies would provide an additional safety valve in the event of any such problem. Third, the typical First Amendment harm at issue here differs from that at issue in Freedman, diminishing the need in the typical case for procedural rules imposing special decisionmaking time limits. Unlike in Freedman, this ordinance does not seek to censor material. And its licensing scheme applies reasonably objective, nondiscretionary criteria unrelated to the content of the expressive materials that an adult business may sell or display. These criteria are simple enough to apply and their application simple enough to review that their use is unlikely in practice to suppress totally any specific item of adult material in the community. And the criteria's simple objective nature means that in the ordinary case, judicial review, too, should prove simple, hence expeditious. Finally, "•»«»»*'•• 2005 Thomson/West. No Claim to brig. U.S. Govt. Works. 124S.Q. 2219 Page 3 541 U.S. 774, 124 S.Ct. 2219, 159 L.Ed.2d 84, 72 USLW4451, 4 Cal. Daily Op. Serv. 4843, 2004 Daily Journal D.A.R. 6662, 19 Fla. L. Weekly Fed. S 350 (Cite as: 124 S.CL 2219) nothing in FW/PBSor Freedman requires a city or State to place judicial review safeguards all in the city ordinance that sets forth a licensing scheme. Pp. 2224-2226. 311 F.3d 1220, reversed. BREYER, J., delivered the opinion of the Court, in which REHNQUTST, C. J., and O'CONNOR, THOMAS, and GINSBURG, JJ., joined, in which STEVENS, J., joined as to Parts I and II-B, and in which SOUTER and KENNEDY, JJ., joined except as to Part II-B. STEVENS, J., filed an opinion concurring in part and concurring in the judgment. SOUTER, J., filed an opinion concurring in part and concurring in the judgment, in which KENNEDY, J., joined. SCALIA, J., filed an opinion concurring in the judgment. J. Andrew Nathan, Denver, CO, for petitioner. Douglas R. Cole, for Ohio, et al., as amici curiae, by special leave of the Court, supporting the petitioner. Michael W. Gross, Denver, CO, for respondent. J. Andrew Nathan, Counsel of Record, Heidi J. Hugdahl, Nathan, Bremer, Dumm & Myers P.C., Denver, CO, Larry W. Berkowitz, City Attorney, Brad D. Bailey, Assistant City Attorney, Littleton, CO, Scott D. Bergthold, Law Office of Scott D. Bergthold, P.L.L.C., Chattanooga, TN, for petitioner. Arthur M. Schwartz, Counsel of Record, Michael W. Gross, Cindy D. Schwartz, Schwartz & Goldberg, P.C., Denver, Colorado, for Respondent. Justice BREYER delivered the opinion of the Court. In this case we examine a city's "adult business" licensing ordinance to determine whether it meets the First Amendment's requirement that such a licensing scheme assure prompt judicial review of an administrative decision denying a license. See *2222FW/PBS, Inc. v. Dallas, 493 U.S. 215,110 S.Ct. 596, 107 L.Ed.2d 603 (1990); cf. Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). We conclude that the ordinance before us, considered on its face, is consistent with the First Amendment's demands. I Littleton, Colorado, has enacted an "adult business" ordinance that requires an "adult bookstore, adult novelty store or adult video store" to have an "adult business license." Littleton City Code §§ 3-14-2, 3-14-4 (2003), App. to Brief for Petitioner 13a-20a, 23a. The ordinance defines "adult business"; it requires an applicant to provide certain basic information about the business; it insists upon compliance with local "adult business" (and other) zoning rules; it lists eight specific circumstances the presence of which requires the city to deny a license; and it sets forth time limits (typically amounting to about 40 days) within which city officials must reach a final licensing decision. §§ 3-14-2,3-14-3,3-14-5,3-14-7, 3-14-8, id., at 13a-30a. The ordinance adds that the final decision may be "appealed to the [state] district court pursuant to Colorado rules of civil procedure 106(a)(4)." § 3-14-8(B)(3), id.. at30a. In 1999, the respondent, a company called Z.J. Gifts D-4, L.L.C. (hereinafter ZJ), opened a store that sells "adult books" in a place not zoned for adult businesses. Compare Tr. of Oral Arg. 13 (store "within 500 feet of a church and day care center") with § 3-14-3(B), App. to Brief for Petitioner 2 la (forbidding adult businesses at such locations). Instead of applying for an adult business license, ZJ brought this lawsuit attacking Littleton's ordinance as unconstitutional on its face. The Federal District Court rejected ZJ's claims; but on appeal the Court of Appeals for the Tenth Circuit accepted two of them, 311 F.3d 1220, 1224 (2002). The court held that Colorado law "does not assure that [the city's] license decisions will be given expedited [judicial] review"; hence it does not assure the "prompt final judicial decision" that the Constitution demands. Id., at 1238. It also held unconstitutional another ordinance provision (not now before us) on the ground that it threatened lengthy administrative delay—a >2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 124 S.Ct. 2219 Page 4 541 U.S. 774, 124 S.Ct. 2219, 159 L.Ed.2d 84, 72 USLW4451,4 Cal. Daily Op. Serv. 4843, 2004 Daily Journal D.A.R. 6662, 19 Fla. L. Weekly Fed. S 350 (Cite as: 124 S.Ct. 2219) problem that the city believes it has cured by amending the ordinance. Compare id., at 1233-1234, with § 3-14-7, App. to Brief for Petitioner 27a-28a, and Brief for Petitioner 3. Throughout these proceedings, ZFs store has continued to operate. The city has asked this Court to review the Tenth Circuit's "judicial review" determination, and we granted certiorari in light of lower court uncertainty on this issue. Compare, e.g., 311 F.3d, at 1238 (First Amendment requires prompt judicial determination of license denial); Nightclubs, Inc. v. Paducah, 202 F.3d 884,892-893 (C.A.6 2000) (same); Baby Tarn & Co. v. Las Vegas, 154 F.3d 1097, 1101-1102 (C.A.9 1998) (same); II126Baltimore Blvd.. inc. v. Prince George's County, 58 F.3d988,998-1001 (C.A.4 1995)(enbanc) (same), with Boss Capital, Inc. v. Casseiberry, 187 F.3d 1251, 1256-1257 (C.A.ll 1999) (Constitution requires only prompt access to courts); TK's Video, Inc. v. Denton County, 24 F.3d 705, 709 (C.A.5 1994) (same); see also Thomas v. Chicago Park Dist., 534 U.S. 316, 325-326, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002) (noting a Circuit split); City News & Novelty, Inc. v. Waukesha, 531 U.S. 278, 281, 121 S.Ct. 743, 148 L.Ed.2d 757 (2001) (same). II The city of Littleton's claims rest essentially upon two arguments. First, this Court, in applying the First Amendment's *2223 procedural requirements to an "adult business" licensing scheme in FW/PBS, found that the First Amendment required such a scheme to provide an applicant with "prompt access" to judicial review of an administrative denial of the license, but that the First Amendment did not require assurance of a "prompt judicial determination" of the applicant's legal claim. Second, in any event, Colorado law satisfies any "prompt judicial determination" requirement. We reject the first argument, but we accept the second. The city's claim that its licensing scheme need not provide a "prompt judicial determination" of an applicant's legal claim rests upon its reading of two of this Court's cases, Freedman and FW/PBS. In Freedman, the Court considered the First Amendment's application to a "motion picture censorship statute"-a statute that required an " 'owner or lessee' " of a film, prior to exhibiting a film, to submit the film to the Maryland State Board of Censors and obtain its approval. 380 U.S., at 52, and n. 1, 85 S.Ct. 734 (quoting Maryland statute). It said, "a noncriminal process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system." Id. at 58,85 S.Ct. 734. The Court added that those safeguards must include (1) strict time limits leading to a speedy administrative decision and minimizing any "prior restraint"-type effects, (2) burden of proof rules favoring speech, and (3) (using language relevant here) a "procedure" that will "assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license." Id, at 58-59, 85 S.Ct. 734 (emphasis added). In FW/PBS, the Court considered the First Amendment's application to a city ordinance that "regulates sexually oriented businesses through a scheme incorporating zoning, licensing, and inspections." 493 U.S., at 220-221, 110 S.Ct. 596. A Court majority held that the ordinance violated the First Amendment because it did not impose strict administrative time limits of the kind described in Freedman. In doing so, three Members of the Court wrote that "the full procedural protections set forth in Freedman are not required," but that nonetheless such a licensing scheme must comply with Freedman's "core policy-including (1) strict administrative time limits and (2) (using language somewhat different from Freedman's) " the possibility of prompt judicial review in the event that the license is erroneously denied." 493 U.S., at 228, 110 S.Ct. 596 (opinion of O'CONNOR, J.) (emphasis added). Three other Members of the Court wrote that all Freedman' ssss safeguards should apply, including Freedman's requirement that "aprompt judicial determination must © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 124 S.Ct. 2219 Page 5 541 U.S. 774, 124 S.Ct. 2219, 159 L.Ed.2d 84, 72 USLW 4451, 4 Cal. Daily Op. Serv. 4843, 2004 Daily Journal D.A.R. 6662, 19 Fla. L. Weekly Fed. S 350 (Cite as: 124 S.Ct. 2219) be available." 493 U.S., at 239, 110 S.Ct. 596 (Brennan, J., concurring in judgment). Three Members of the Court wrote in dissent that Freedman's requirements did not apply at all. See 493 U.S., at 244-245, 110 S.Ct. 596 (White, J., joined by REHNQUIST, C. J., concurring in part and dissenting in part); id., at 250, 110 S.Ct. 596 (SCALIA, J., concurring in part and dissenting in part). The city points to the differing linguistic descriptions of the "judicial review" requirement set forth in these opinions. It concedes that Freedman, in listing constitutionally necessary "safeguards," spoke of the need to assure a "prompt final judicial decision." 380 U.S., at 59, 85 S.Ct. 734. But it adds that Justice O'CONNOR'S controlling plurality opinion in FW/PBS did not use the word "decision," instead speaking only of the "possibility of prompt judicial *2224 review." 493 U.S., at 228, 110 S.Ct. 596 (emphasis added); see also id, at 229, 110 S.Ct. 596 ("an avenue for prompt judicial review"); id, at 230, 110 S.Ct. 596 ("availability of prompt judicial review"). This difference in language between Freedman and FW/PBS, says the city, makes a major difference: The First Amendment, as applied to an "adult business" licensing scheme, demands only an assurance of speedy access to the courts, not an assurance of a speedy court decision. [1] In our view, however, the city's argument makes too much of too little. While Justice O'CONNOR'S FW/PBS plurality opinion makes clear that only Freedman's "core" requirements apply in the context of "adult business" licensing schemes, it does not purport radically to alter the nature of those "core" requirements. To the contrary, the opinion, immediately prior to its reference to the "judicial review" safeguard, says: "The core policy underlying Freedman is that the license for a First Amendment-protected business must be issued within a reasonable period of time, because undue delay results in the unconstitutional suppression of protected speech. Thus, the first two [Freedman] safeguards are essential...." 493 U.S., at 228, 110 S.Ct. 596. These words, pointing out that Freedman's "judicial review" safeguard is meant to prevent "undue delay," 493 U.S., at 228, 110 S.Ct. 596, include judicial, as well as administrative, delay. A delay in issuing a judicial decision, no less than a delay in obtaining access to a court, can prevent a license from being "issued within a reasonable period of time." Ibid. Nothing in the opinion suggests the contrary. Thus we read that opinion's reference to "prompt judicial review," together with the similar reference in Justice Brennan's separate opinion (joined by two other Justices), see id, at 239, 110 S.Ct. 596, as encompassing a prompt judicial decision. And we reject the city's arguments to the contrary. B [2] We find the second argument more convincing. In effect that argument concedes the constitutional importance of assuring a "prompt" judicial decision. It concedes as well that the Court, illustrating what it meant by "prompt" in Freedman, there set forth a "model" that involved a "hearing one day after joinder of issue" and a "decision within two days after termination of the hearing." 380 U.S., at 60, 85 S.Ct. 734. But the city says that here the First Amendment nonetheless does not require it to impose 2- or 3-day time limits; the First Amendment does not require special "adult business" judicial review rules; and the First Amendment does not insist that Littleton write detailed judicial review rules into the ordinance itself. In sum, Colorado's ordinary "judicial review" rules offer adequate assurance, not only that access to the courts can be promptly obtained, but also that a judicial decision will be promptly forthcoming. Littleton, in effect, argues that we should modify FW/PBS, withdrawing its implication that Freedman'& special judicial review rules apply in this case. And we accept that argument. In our view, Colorado's ordinary judicial review procedures suffice as long as the courts remain sensitive to the need to prevent First Amendment harms and administer those procedures accordingly. And whether the courts do so is a matter normally fit for case-by-case determination rather than a facial challenge. We reach this conclusion for several © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 124 S.Ct. 2219 Page 6 541 U.S. 774, 124 S.Ct. 2219, 159 L.Ed.2d 84, 72 USLW 4451, 4 Cal. Daily Op. Serv. 4843, 2004 Daily Journal D.A.R. 6662, 19 Fla. L. Weekly Fed. S 350 (Cite as: 124 S.Ct. 2219) reasons. First, ordinary court procedural rules and practices, in Colorado as elsewhere, *2225 provide reviewing courts with judicial tools sufficient to avoid delay-related First Amendment harm. Indeed, where necessary, courts may arrange their schedules to "accelerate" proceedings. Colo. Rule Civ. Proc. 106(a)(4)(VIH) (2003). And higher courts may quickly review adverse lower court decisions. See, e.g., Goebel v. Colorado Dept. of Institutions, 764 P.2d 785, 792 (Colo. 1988) (en bane) (granting "expedited review"). Second, we have no reason to doubt the willingness of Colorado's judges to exercise these powers wisely so as to avoid serious threats of delay-induced First Amendment harm. We presume that courts are aware of the constitutional need to avoid "undue delay resulting] in the unconstitutional suppression of protected speech." FW/PBS, supra, at 228, 110 S.Ct. 596; see also, e.g., Schlesinger v. Councilman, 420 U.S. 738, 756, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975). There is no evidence before us of any special Colorado court-related problem in this respect. And were there some such problems, federal remedies would provide an additional safety valve. See Rev. Stat. § 1979, 42 U.S.C. § 1983. Third, the typical First Amendment harm at issue here differs from that at issue in Freedman, diminishing the need in the typical case for special procedural rules imposing special 2- or 3-day decisionmaking time limits. Freedman considered a Maryland statute that created a Board of Censors, which had to decide whether a film was " 'pornographic,' " tended to " 'debase or corrupt morals,' " and lacked " 'whatever other merits.' " 380 U.S., at 52-53, n. 2, 85 S.Ct. 734 (quoting Maryland statute). If so, it denied the permit and the film could not be shown. Thus, in Freedman, the Court considered a scheme with rather subjective standards and where a denial likely meant complete censorship. In contrast, the ordinance at issue here does not seek to censor material. And its licensing scheme applies reasonably objective, nondiscretionary criteria unrelated to the content of the expressive materials that an adult business may sell or display. The ordinance says that an adult business license "shalf be denied if the applicant (1) is underage; (2) provides false information; (3) has within the prior year had an adult business license revoked or suspended; (4) has operated an adult business determined to be a state law "public nuisance" within the prior year; (5) (if a corporation) is not authorized to do business in the State; (6) has not timely paid taxes, fees, fines, or penalties; (7) has not obtained a sales tax license (for which zoning compliance is required, see Tr. of Oral Arg. 16-17); or (8) has been convicted of certain crimes within the prior five years. § 3- 14-8(A), App. to Brief for Petitioner 28a-29a (emphasis added). These objective criteria are simple enough to apply and their application simple enough to review that their use is unlikely in practice to suppress totally the presence of any specific item of adult material in the Littleton community. Some license applicants will satisfy the criteria even if others do not; hence the community will likely contain outlets that sell protected adult material. A supplier of that material should be able to find outlets; a potential buyer should be able to find a seller. Nor should zoning requirements suppress that material, for a constitutional zoning system seeks to determine where, not whether, protected adult material can be sold. See Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). The upshot is that Littleton's "adult business" licensing scheme does "not present the grave 'dangers *2226 of a censorship system.'" FW/PBS, 493 U.S., at 228, 110 S.Ct. 596 (opinion of O'CONNOR, J.) (quoting Freedman, supra, at 58, 85 S.Ct. 734). And the simple objective nature of the licensing criteria means that in the ordinary case, judicial review, too, should prove simple, hence expeditious. Where that is not so~where, for example, censorship of material, as well as delay in opening an additional outlet, is improperly threatened—the courts are able to act to prevent that harm. Fourth, nothing in FW/PBS or in Freedman requires a © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 124 S.Ct. 2219 Page? 541 U.S. 774, 124 S.Ct. 2219, 159 L.Ed.2d 84, 72 USLW 4451,4 Cal. Daily Op. Serv. 4843, 2004 Daily Journal D.A.R. 6662, 19 Fla. L. Weekly Fed. S 350 (Cite as: 124 S.Ct 2219) city or a State to place judicial review safeguards all in the city ordinance that sets forth a licensing scheme. Freedman itself said: "How or whether Maryland is to incorporate the required procedural safeguards in the statutory scheme is, of course, for the State to decide." 380 U.S., at 60, 85 S.Ct. 734. This statement is not surprising given the fact that many cities and towns lack the state-law legal authority to impose deadlines on state courts. [3] These four sets of considerations, taken together, indicate that Colorado's ordinary rules of judicial review are adequate~at least for purposes of this facial challenge to the ordinance. Where (as here and as in FW/PBS) the regulation simply conditions the operation of an adult business on compliance with neutral and nondiscretionary criteria, cf. post, at 2226- 2227 (STEVENS, J., concurring in part and concurring in judgment), and does not seek to censor content, an adult business is not entitled to an unusually speedy judicial decision of the Freedman type. Colorado's rules provide for a flexible system of review in which judges can reach a decision promptly in the ordinary case, while using their judicial power to prevent significant harm to First Amendment interests where circumstances require. Of course, those denied licenses in the future remain free to raise special problems of undue delay in individual cases as the ordinance is applied. For these reasons, the judgment of the Tenth Circuit is Reversed. Justice STEVENS, concurring in part and concurring in the judgment. There is an important difference between an ordinance conditioning the operation of a business on compliance with certain neutral criteria, on the one hand, and an ordinance conditioning the exhibition of a motion picture on the consent of a censor. The former is an aspect of the routine operation of a municipal government. The latter is a species of content-based prior restraint. Cf. Graff v. Chicago, 9 F.3d 1309, 1330-1333 (C.A.7 1993) (Flaum, J., concurring). The First Amendment is, of course, implicated whenever a city requires a bookstore, a newsstand, a theater, or an adult business to obtain a license before it can begin to operate. For that reason, as Justice O'CONNOR explained in her plurality opinion in FW/PBS, Inc. v. Dallas, 493 U.S. 215, 226, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), a licensing scheme for businesses that engage in First Amendment activity must be accompanied by adequate procedural safeguards to avert "the possibility that constitutionally protected speech will be suppressed." But Justice O'CONNOR'S opinion also recognized that the full complement of safeguards that are necessary in cases that "present the grave 'dangers of a censorship system' " are "not required" in the ordinary adult-business licensing scheme. Id, at 228, 110 S.Ct. 596 (quoting Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965)). In both contexts, "undue delay results in the unconstitutional suppression *2227 of protected speech," 493 U.S., at 228, 110 S.Ct. 596, and FW/PBS therefore requires both that the licensing decision be made promptly and that there be "the possibility of prompt judicial review in the event that the license is erroneously denied." Ibid. But application of neutral licensing criteria is a "ministerial action" that regulates speech, rather than an exercise of discretionary judgment that prohibits speech. Id, at 229, 110 S.Ct. 596. The decision to deny a license for failure to comply with these neutral criteria is therefore not subject to the presumption of invalidity that attaches to the "direct censorship of particular expressive material." Ibid. Justice O'CONNOR'S opinion accordingly declined to require that the licensor, like the censor, either bear the burden of going to court to effect the denial of a license or otherwise assume responsibility for ensuring a prompt judicial determination of the validity of its decision. Ibid. The Court today reinterprets FW/PBSs references to "the possibility of prompt judicial review" as the equivalent of Freedman's "prompt judicial decision" requirement. Ante, at 2222-2224. I fear that this misinterpretation of FW/PBS may invite other, more serious misinterpretations with respect to the content of that requirement. As the Court applies it in this case, © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 124 S.Ct. 2219 PageS 541 U.S. 774, 124 S.Ct. 2219, 159 L.EA2d 84, 72 USLW 4451, 4 Cal. Daily Op. Serv. 4843, 2004 Daily Journal D.A.R. 6662, 19 Fla. L. Weekly Fed. S 350 (Cite as: 124 S.Ct. 2219) assurance of a "prompt judicial decision" means little more than assurance of the possibility of a prompt decision—the same possibility of promptness that is available whenever a person files suit subject to "ordinary court procedural rules and practices." Ante, at 2224. That possibility will generally be sufficient to guard against the risk of undue delay in obtaining a remedy for the erroneous application of neutral licensing criteria. But the mere possibility of promptness is emphatically insufficient to guard against the dangers of unjustified suppression of speech presented by a censorship system of the type at issue in Freedman, and is certainly not what Freedman meant by "prompt judicial decision." Justice O'CONNOR'S opinion in FW/PBS recognized that differences between ordinary licensing schemes and censorship systems warrant imposition of different procedural protections, including different requirements with respect to which party must assume the burden of taking the case to court, as well as the risk of judicial delay. I would adhere to the views there expressed, and thus do not join Part II-A of the Court's opinion. I do, however, join the Court's judgment and Parts I and II-B of its opinion. Justice SOUTER, with whom Justice KENNEDY joins, concurring in part and concurring in the judgment. I join the Court's opinion, except for Part II-B. I agree that this scheme is unlike full-blown censorship, ante, at 2224-2226, so that the ordinance does not need a strict timetable of the kind required by Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), to survive a facial challenge. I write separately to emphasize that the state procedures that make a prompt judicial determination possible need to align with a state judicial practice that provides a prompt disposition in the state courts. The emphasis matters, because although Littleton's ordinance is not as suspect as censorship, neither is it as innocuous as common zoning. It is a licensing scheme triggered by the content of expressive materials to be sold. See Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 448, 122 S.Ct. 1728,152 L.Ed.2d 670 (2002) (KENNEDY, J., concurring in judgment) ("These ordinances are content based, and we should call them so"); id., at 455-457, 122 S.Ct. 1728 (SOUTER, J., dissenting). Because the sellers may be unpopular with local authorities, *2228 there is a risk of delay in the licensing and review process. If there is evidence of foot-dragging, immediate judicial intervention will be required, and judicial oversight or review at any stage of the proceedings must be expeditious. Justice SCALIA, concurring in the judgment. Were the respondent engaged in activity protected by the First Amendment, I would agree with the Court's disposition of the question presented by the facts of this case (though not with all of the Court's reasoning). Such activity, when subjected to a general permit requirement unrelated to censorship of content, has no special claim to priority in the judicial process. The notion that media corporations have constitutional entitlement to accelerated judicial review of the denial of zoning variances is absurd. I do not believe, however, that Z.J. Gifts is engaged in activity protected by the First Amendment. I adhere to the view I expressed in FW/PBS, Inc. v. Dallas, 493 U.S. 215,250, 110 S.Ct. 596, 107 L.Ed.2d603 (1990) (opinion concurring in part and dissenting in part): the pandering of sex is not protected by the First Amendment. "The Constitution does not require a State or municipality to permit a business that intentionally specializes in, and holds itself forth to the public as specializing in, performance or portrayal of sex acts, sexual organs in a state of arousal, or live human nudity." Id., at 258, 110 S.Ct. 596. This represents the Nation's long understanding of the First Amendment, recognized and adopted by this Court's opinion in Ginzburgv. United States, 383 U.S. 463, 470-471, 86 S.Ct. 942,16 L.Ed.2d31 (1966). Littleton's ordinance targets sex-pandering businesses, see Littleton City Code § 3-14-2 (2003); to the extent it could apply to constitutionally protected expression its excess is not so great as to render it substantially overbroad and thus subject to facial invalidation, see FW/PBS, 493 U.S., at © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 124S.Q. 2219 Page 9 541 U.S. 774, 124 S.Ct. 2219, 159 L.Ed.2d 84, 72 USLW 4451, 4 Cal. Daily Op. Serv. 4843, 2004 Daily Journal D.A.R. 6662, 19 Fla. L. Weekly Fed. S 350 (Cite as: 124 S.Ct. 2219) 261-262, 110 S.Ct. 596. Since the city of Littleton "could constitutionally have proscribed the commercial activities that it chose instead to license, I do not think the details of its licensing scheme had to comply with First Amendment standards." Id., at 253, 110 S.Ct. 596. 541 U.S. 774, 124 S.Ct. 2219, 159 L.Ed.2d 84, 72 USLW 4451,4 Cal. Daily Op. Serv. 4843, 2004 Daily Journal D.A.R. 6662, 19 Fla. L. Weekly Fed. S 350 Briefs and Other Related Documents (Back to top) • 2004 WL 736431, 72 USLW 3631 (Oral Argument) Oral Argument (Mar. 24, 2004) « 2004 WL 419436 (Appellate Brief) Reply Brief of Petitioner (Mar. 01, 2004) • 2004 WL 188113 (Appellate Brief) Respondent's Brief on the Merits (Jan. 26, 2004) • 2004 WL 199239 (Appellate Brief) Brief of Amicus Curiae First Amendment Lawyers Association in Support of Respondent (Jan. 26, 2004) • 2004 WL 177024 (Appellate Brief) Brief of American Booksellers Foundation for Free Expression, Association of American Publishers Inc., Comic Book Legal Defense Fund, Freedom to Read Foundation, International Periodical Distributors Association, Publishers Marketing Association, and Video Software Dealers Association as Amici Curiae in Support of Respondent (Jan. 23, 2004) • 2003 WL 22988869 (Appellate Brief) Brief of the National League of Cities, International Municipal Lawyers Association, International City/County Management Association, National Conference of State Legislatures, National Association of Counties, and U.S. Conference of Mayors, Joined by the American Planning Association, as Amici Curiae Supporting Petitioner (Dec. 12, 2003) • 2003 WL 22988870 (Appellate Brief) Brief of Petitioner (Dec. 12,2003) • 2003 WL 22988871 (Appellate Brief) Brief of Ohio and 14 Other States as Amici Curiae Supporting Petitioner (Dec. 12, 2003) • 2003 WL 22988872 (Appellate Brief) Brief of Community Defense Counsel as Amicus Curiae in Support of Petitioner (Dec. 12, 2003) •02-1609 (Docket) (May. 06, 2003) END OF DOCUMENT 12005 Thomson/West. 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